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Social Security Inquiry: Issues Paper

Submission Date: 7 October 2025

The Law Council of Australia appreciates the opportunity to respond to the Issues Paper published by the Administrative Review Council (ARC) to inform its inquiry into the operation of the social security related provisions in the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

The Law Council acknowledges the contributions of the Law Society of the Australian Capital Territory and the Administrative Law Committee of our Federal Dispute Resolution Section (FDRS) in the preparation of this submission.

The Law Council welcomes the ARC’s inquiry into this issue, noting that such a review is consistent with Recommendation 3 of the May 2024 Report of the Senate Legal and Constitutional Affairs Legislation Committee, produced as part of its inquiry into the Administrative Review Tribunal Bill 2024 (Cth) and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 (Cth) (ART Bills).1

Part 5A of the ART Act provides for a two-tier system for merits review by the Administrative Review Tribunal (ART) of ‘eligible social services decisions’. It has been in force for nearly twelve months since the commencement of the ART on 14 October 2024. Eligible decisions include social security, child support, family assistance decisions, and other reviewable social security decisions, as defined in section 131C of the ART Act.

The Law Council engaged closely with the Attorney-General’s Department (AGD) in the development of the ART Bills. That engagement included providing a detailed submission in response to the Administrative Review Reform Issues Paper,2 and reviewing various iterations of draft legislation. In addition, the Law Council provided a submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs in February 2024 in respect of its inquiry into the ART Bills.3 That inquiry was subsequently transferred to the Senate Legal and Constitutional Affairs Legislation Committee.

Our submissions on reforms to Australia’s system of administrative review did not engage in detail with matters relating to social security. That was primarily due to a lack of engagement from our membership on that specific aspect of the reforms, compounded by very truncated consultation timeframes.

Further, our approach to date has reflected the reality that other bodies, including National Legal Aid and Economic Justice Australia, are sometimes better placed to comment on the operation and impact of the social security provisions of the ART Act. That is because those bodies represent frontline organisations—Legal Aid Commissions and Community Legal Services—that provide advice to people on their social security rights. We encourage the ARC to have regard to the views expressed by those organisations.

The ART Bills, as introduced in December 2023, would have removed the two-tier review structure for social security matters that had existed in the Administrative Appeals Tribunal (AAT). During the Parliamentary inquiry process, strong concerns were raised by certain stakeholders about such proposed changes.4 The Government ultimately amended the ART Bills to reinstate the two-tier system for those matters, retaining many of the key features of the first- and second-tier review that had applied in the AAT.5

The Law Council notes that the first annual report of the ART is not yet available, and the 2024–25 Annual Reports of Services Australia and the Department of Social Services have also not been released. In the absence of those reports, and noting the limited time that the ART has been in operation, the Law Council is unable to provide a comprehensive evidence-based analysis, or offer definitive comments on the consultation questions.

We did, however, receive constructive input from members of the FDRS’s Administrative Law Committee in response to some of the questions in the Issues Paper (noting not all questions have been responded to). Where views have been attributed to the FDRS Administrative Law Committee, these comments should not, at this stage, be taken to reflect the final views of the Law Council more broadly.

1 Ibid 22-31.
2 Law Council of Australia, Administrative Review Reform Issues Paper (Submission to the Attorney-General’s Department, 12 May 2023).
3 Law Council of Australia, Administrative Review Tribunal Bills 2023 (Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, 2 February 2024).
4 Senate Legal and Constitutional Affairs Legislation Committee, Administrative Review Tribunal Bill 2023 [Provisions] and related bills (Report, May 2024) 39.
5 Supplementary Explanatory Memorandum relating to Sheet SE106, Administrative Review Tribunal Bill 2024.

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Last Updated on 20/10/2025

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