Administrative Review Tribunal Bills
23 May 2024
Legislation to establish the Administrative Review Tribunal (ART), in place of the Administrative Appeals Tribunal (AAT), was passed yesterday and welcomed by the Law Council.
In the years leading up to these reforms, the Law Council contributed to various significant inquiries about the operation of the AAT, where we raised concerns about key aspects of the system, including appointments processes, caseload management, procedural differences in the Migration and Refugee Division, and accessibility of merits review.
Since the Government’s announcement of its intention to abolish and replace the AAT, the Law Council has been pleased to engage with the Attorney-General’s Department, the Administrative Review Expert Advisory Group, the House of Representatives Standing Committee on Social Policy and Legal Affairs, and the Senate Legal and Constitutional Affairs Committee as the reform process has progressed.
As noted in the previous LCA Update (10 May 2024), representatives from the Law Council appeared at a public hearing of the Senate Legal and Constitutional Affairs Legislation Committee on 3 May 2024, to provide evidence on the Administrative Review Tribunal Bill 2023 and related bills.
The Law Council subsequently provided two supplementary submissions with the Committee, lodged on 6 and 9 May respectively. The first submission discussed natural justice in migration and refugee matters, while the second submission discussed the constitutionality of having a Judge of the Federal Court of Australia be appointed President of the Tribunal.
On 14 May, the Committee tabled its Report into the Bills. Pleasingly, the Report included 80 references to the Law Council, with extracts from our primary submission and appearance at the hearing featured consistently throughout.
The Majority report recommended that the Senate pass the Bills and made two additional recommendations:
- The Government should refer the proposed amendments to the Migration Act 1958 and matters raised with the Committee regarding the operation of the Tribunal in relation to migration and asylum matters to the Administrative Review Council, upon its establishment.
- The Government should consider referring to the Administrative Review Council the operation of social security-related provisions in the Bill, having regard to the findings of the Robodebt Royal Commission.
In his Dissenting Report, Senator Scarr made seven recommendations. Five of these directly addressed the Law Council’s submission and evidence at the Committee’s public hearing, including:
- As is the case in various state-based merits review tribunals, the ART Bills should provide discretion for the Tribunal to award costs to the applicant in exceptional circumstances.
- Consideration be given to removing ‘without prejudice’ privilege from clause 30 because the obligation to produce documents subject to such privilege may act as a deterrent to the resolution of maters through without prejudice negotiations.
- Clause 66(3) be amended to provide for procedural fairness, including a right for a representative to be provided with adverse information and to respond prior to the Tribunal making an order to remove them.
- That clause 71(2)(d)(ii) should be redrafted to specify the type of harm to a person that is relevant to the Tribunal’s consideration of whether to hold a hearing in private, or for the non-publication or non-disclosure of certain information.
- Part 6 of the ART Bill and related provisions should be referred by the Government to the Independent National Security Legislation Monitor for review, to ensure that an appropriate balance is struck between national security, fairness and transparency objectives.
Following the tabling of the Committee’s Report, the Bills were debated in the Senate, and passed on 16 May. However, because several Government amendments were made to the Bills in the Senate, they had to return to the House of Representatives prior to their passage. Amendments made include a review of the enabling legislation in the first five years, requiring the Minister to establish assessment panels when appointing members, and requiring the Minister or relevant Commonwealth entity to publicly respond, within a specified period, to systemic issues they are advised of by the Tribunal.
Last Updated on 29/05/2024