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Bills Digest No. 40  2000-01
Administrative Review Tribunal Bill 2000

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Glossary
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Administrative Review Tribunal Bill 2000

Date Introduced: 28 June 2000

House: House of Representatives

Portfolio: Attorney-General

Commencement: Parts 1 to 3, 11 and 12, which establish the Administrative Review Tribunal and the Administrative Review Council, commence on Royal Assent.

Parts 4 to 10, which deal with review of decisions by the Administrative Review Tribunal and appeals to the Federal Court, commence 12 months after Royal Assent, unless an earlier date is fixed by Proclamation.

Glossary

Purpose

The Bill:

• establishes the Administrative Review Tribunal (ART), which will replace the Administrative Appeals Tribunal, Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal
• details the ART's membership, structure, review procedures and related matters, and
• re-establishes the Administrative Review Council.

Background

Judicial review of administrative decisions has been available since the seventeenth century,⁽¹⁾ although the role of the courts in this regard has greatly expanded over the last 50 years. However, the courts are not able to rule on the merits of particular government decisions. They may review administrative decisions only on established legal grounds, such as jurisdictional error, acting beyond power, error of law or failure to accord natural justice to a person affected by the government's decision.

Traditionally, the only other method of control of government decision-making was through the doctrine of ministerial responsibility. Individual grievances could be raised in Parliament, and members of Parliament could seek to hold Ministers accountable for the actions of the department or agency under their control.⁽²⁾

Establishment of Commonwealth Administrative Law System

Increasingly, it was perceived that these mechanisms for reviewing government decisions were inadequate in an age of rapid expansion of government activity and hence the potential for governmental decisions to intrude on the lives of individuals. As a result, in 1968 the Commonwealth established the Commonwealth Administrative Review Committee (the Kerr Committee) to undertake a detailed examination of the methods of review available in relation to federal government decisions. The 1971 Kerr Committee Report⁽³⁾ found the two existing methods of review of government decisions (judicial review and ministerial responsibility) were inadequate to review all governmental decisions. It recommended:⁽⁴⁾

• the establishment of a general administrative review tribunal to review certain governmental decisions on their merits, not merely to test their legality
• the appointment of an ombudsman to be a general counsel for grievances
• the constitution of an administrative review council
• the codification of existing grounds for judicial review by the courts in a simplified statute administered by a specialist administrative law court,⁽⁵⁾ and
• an administrative procedure statute to set out the procedure to be followed by administrative tribunals.

In 1973, the Committee on Administrative Discretions (the Bland Committee)⁽⁶⁾ echoed the call for the establishment of an ombudsman and a general administrative tribunal to review decisions involving the exercise of administrative discretion on their merits. The Bland Committee recommended that not all administrative decisions be subject to tribunal review, but only those specifically assigned to the tribunal by legislation.⁽⁷⁾

The Commonwealth Government gave effect to the majority of these recommendations in the course of the 1970s, and a comprehensive system of federal administrative law was born.⁽⁸⁾ Relevantly for present purposes, in 1975 the Commonwealth passed legislation to establish the Administrative Appeals Tribunal (AAT),⁽⁹⁾ a general administrative tribunal with jurisdiction to review Commonwealth administrative decisions on their merits, and the power to substitute its preferred decision for that of the original decision-maker. The AAT commenced operation on 1 July 1976.⁽¹⁰⁾ The jurisdiction of the AAT has been significant in giving individuals affected by decisions the right to challenge the correctness of a decision on factual grounds, not merely to challenge its legality. It also gives individuals a right to obtain from an administrative decision-maker a statement of reasons for the decision.⁽¹¹⁾

The Administrative Review Council, with functions to oversee the entire system of Commonwealth administrative law, to inquire into its adequacy and recommend improvements to the Minister,⁽¹²⁾ commenced its work in December 1976.

Federal merits review tribunals

In addition to the AAT, which hears general appeals from a broad range of administrative decisions, the Commonwealth has established a number of specialist merits review tribunals in jurisdictions whose high volume of decisions warrants the existence of a dedicated tribunal.

Merits review of decisions about veterans' pensions and benefits has been available since 1920, when decisions could be appealed to the Repatriation Commission. In 1929, the War Pensions Entitlement Appeals Tribunal and the Assessment Appeals Tribunal were established to hear appeals against decisions of the Repatriation Commission. These Tribunals were replaced by the Repatriation Review Tribunal in 1975,⁽¹³⁾ and in turn by the present Veterans' Review Board (VRB) in 1985.⁽¹⁴⁾ The VRB reviews decisions of the Repatriation Commission relating to pensions for war-caused incapacity, defence force and peacekeeper pensions and attendant allowance,⁽¹⁵⁾ and its decisions are subject to second-tier merits review by the AAT.⁽¹⁶⁾

Merits review of income support decisions is of more recent origin. The Student Assistance Review Tribunal was created in 1974 to review decisions relating to student assistance and allowances such as AUSTUDY. The Social Security Appeals Tribunal (SSAT) was established in 1975 by executive action, and was subsequently given a legislative basis in 1988.⁽¹⁷⁾ It initially had a fairly limited jurisdiction, but currently has jurisdiction to review a very broad range of decisions relating to eligibility for and the rate of social security payments.⁽¹⁸⁾ In 1995, the Student Assistance Review Tribunal was abolished, and its functions incorporated in the SSAT.⁽¹⁹⁾ Appeals lie from the SSAT to the AAT,⁽²⁰⁾ thus creating a second tier of merits review.

Administrative review of migration decisions has been available only in the last two decades. The Immigration Review Panel was created in 1982 by executive action, with the function of making recommendations to the Minister.⁽²¹⁾ In 1989, the Panel was disbanded when the Immigration Review Tribunal (IRT) was established by legislation.⁽²²⁾ The IRT was later renamed the Migration Review Tribunal (MRT).⁽²³⁾ The MRT hears applications for review of decisions to refuse to grant visas to, or to cancel visas held by, prospective immigrants, visitors and non-citizens within Australia who are not refugees.⁽²⁴⁾ The Refugee Review Tribunal (RRT) was established in 1993⁽²⁵⁾ and hears applications for review of decisions relating to applications for refugee status and refugee protection visas.⁽²⁶⁾ Appeals lie from decisions of the MRT and RRT direct to the Federal Court of Australia.

Thus, a right to two tiers of independent (that is, not by departmental officers) merits review of decisions currently exists for social security matters and veterans' affairs, but not in other areas. Other decisions in jurisdictions such as workers' compensation and taxation are currently subject to a single avenue of merits review directly to the AAT. Migration decisions are reviewable by the RRT or MRT, alternative specialist tribunals exercising jurisdiction that might otherwise be exercised by the AAT. The creation of the MRT and RRT as specialist tribunals, rather than vesting the jurisdiction in the AAT, has been criticised by the Administrative Review Council for fragmenting what was intended to be an integrated, simple and efficient system of administrative review.⁽²⁷⁾

The five main federal tribunals (the AAT, SSAT, MRT, RRT and VRB) together receive more than 40,000 applications each year for review of Commonwealth government decisions, compared with only 1,000 applications for judicial review of government decisions received by the Federal Court each year.⁽²⁸⁾

Review of the tribunal system

In December 1993, the Administrative Review Council (the Council) was requested to undertake an inquiry into the effectiveness and efficiency of the Commonwealth merits review tribunal system, which had then been in operation for over 15 years. One of the principal issues was the potential for disparate practices and procedures, not only in hearings, but also in appointment and remuneration of members, given the increasing use of specialist tribunals. The result was the Better Decisions report in 1995.⁽²⁹⁾

In its Better Decisions report, the Council recommended a number of improvements to the tribunal system. However, it also commented that:⁽³⁰⁾

The Council recommended the uniting of all the existing specialist review tribunals with the AAT, and the creation of a single review tribunal (the ART) comprising a number of specialist divisions to hear first instance review cases, and a single Review Division to review all cases raising a substantial question of law.⁽³¹⁾ This, it was hoped, would return to the 'comprehensive, coherent and integrated system of Commonwealth administrative law' envisaged by the Kerr Committee, and would be more efficient and less wasteful of public resources.⁽³²⁾

Overview of the ART proposal

On 20 March 1997, the Attorney-General announced the Government's intention to amalgamate into a single Tribunal the AAT, SSAT, VRB, IRT (which later became the MRT) and RRT.⁽³³⁾ In February 1998, the Government amended its intention, omitting the VRB from the amalgamation proposal.⁽³⁴⁾

The proposal for the creation of the ART contained in the Bill is similar in many respects to the structure recommended in the Better Decisions report. It also incorporates some of the recommendations recently made by the Australian Law Reform Commission in its Managing Justice report⁽³⁵⁾ in relation to practice, procedure and case management in federal merits review tribunals.

The Government hopes that the ART will be established and key staff appointed before the end of 2000, so that its goal of having the ART operational early in 2001 may be achieved.⁽³⁶⁾ The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry. The Committee's report was due on 7 September 2000, but the Committee has extended the deadline until after the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 (the Consequentials Bill) has been introduced, to enable submissions to be made on the complete package.

The Main Provisions section of this Bills Digest will compare the composition, structure and procedures proposed for the ART with the current merits review tribunal system, with a particular focus on comparison with the AAT. Some evaluation of whether the advantages claimed for the new system have been achieved will be provided in the Concluding Comments section.

The Consequentials Bill has yet to be introduced into Parliament. This Bill makes consequential amendments to over 350 Acts which currently confer jurisdiction on federal merits review tribunals, and will detail the jurisdiction to be given to the ART. It will also contain the transitional arrangements governing proceedings which have been commenced but not yet finalised by the existing merits review tribunals, and will determine whether existing members, registry and other tribunal staff will be appointed to the ART. Accordingly, much of the effect of the Bill will not be known until the Consequentials Bill has been tabled.

Main Provisions

The Bill contains core provisions and non-core provisions. Proposed section 7 provides that core provisions relate to:

• the establishment, structure, membership and staffing of the ART
• provisions for initiating second-tier review
• the constitution and reconstitution of the ART and resolution of differences of opinions between ART members, and
• other matters such as procedural fairness, informality of review, practice and procedure directions and determinations.

Other Acts, such as Acts conferring jurisdiction on the ART, may change a number of provisions relating to the ART's procedures. However, those Acts will be interpreted as not intending to change the core provisions mentioned above, unless the intention to change them is clearly expressed (proposed subsection 7(1)).

Structure of the Tribunal

Proposed section 10 establishes the ART. Under proposed section 11 the ART will be divided into six Divisions, to ensure that the ART 'will enjoy the beneficial aspects of the specialist review tribunals,' such as tailored and flexible practice and procedure appropriate for the types of decisions under review.⁽³⁷⁾ The proposed Divisions reflect, in part, the jurisdiction of the existing specialist tribunals. They are:

• the Immigration and Refugee Division (which will assume the jurisdiction of the MRT and RRT)
• the Income Support Division (which will assume the jurisdiction of the SSAT)
• the Veterans' Appeals Division (which will assume the jurisdiction of the AAT in hearing appeals from the VRB)
• the Taxation Division
• the Workers' Compensation Division, and
• the Commercial and General Division.

Contrary to the recommendation in the Better Decisions report,⁽³⁸⁾ the Bill does not create a separate Security Division to exercise the jurisdiction currently conferred on the Security Appeals Division of the AAT.⁽³⁹⁾ Although separate procedures currently apply, the number of security review applications is tiny, and a separate division may not be necessary.⁽⁴⁰⁾

Tribunal membership

The ART will consist of the President (proposed section 12), six executive members, and an unspecified number of senior members and other members (proposed section 13). There will be one executive member appointed to head each Division (proposed section 14). The total number of senior members will be not more than 10 per cent of the total number of members, and not more than 15 per cent of the total number of members in any Division (proposed subsection 13(3)). The restriction on the number of senior members represents a significant departure from current practice. The AAT does not impose a quota on the number of senior members who may be appointed, and currently is comprised by approximately 30 per cent senior members.⁽⁴¹⁾

Members and senior members will be assigned primarily to a particular Division, although they may be appointed to more than one Division. Executive members may only be appointed to one Division (proposed section 14).

President

Unlike the President of the AAT,⁽⁴²⁾ the President of the ART will not have to be a Federal Court judge. Indeed, no qualifications are specified in the Bill for him or her, apart from that he or she must be full-time (proposed subsection 17(1)) and must not engage in outside paid employment without the consent of the Attorney-General (proposed subsection 21(1)). The fact that no qualifications are prescribed for the President departs from the recommendation of the Better Decisions report, which considered that a President:⁽⁴³⁾

Executive members, senior members and members

Executive members will have to be full-time, but senior members and ordinary members may be full-time or part-time (proposed subsection 17(2)). Currently, more than half of the senior members and all ordinary members of the AAT are part-time members.⁽⁴⁴⁾ However, Presidential Members of the AAT (who are broadly equivalent to the proposed executive members) may be full-time or may hold judicial office.⁽⁴⁵⁾ Again, this suggests that executive members of the ART will be unlikely to be judges.

All members, including the President, will hold office for a fixed term of up to 7 years (proposed section 18). Their appointments may be renewed.⁽⁴⁶⁾ This is a significant departure from current practice. Only part-time members of the AAT hold office for 7 year terms. Full-time members, senior members, Deputy Presidents and the President have tenure until the age of 70 (if they are judges) or 65 (if they are not judges).⁽⁴⁷⁾ The President, Deputy Presidents and senior members will lose their tenure on the abolition of the AAT. Whether they will be offered fixed terms of appointment will not be known until the Consequentials Bill is tabled.

Appointment of members

Members, senior members and executive members of the ART will be appointed by the Governor-General, after the portfolio Minister is satisfied, 'having regard to the person's qualifications and experience', that the person should be appointed (proposed section 15). Thus, for example, the Minister for Immigration and Multicultural Affairs will approve the appointment of members, senior members and executive members to the Immigration and Refugee Division, and the Minister for Social Security will approve the appointment of such members to the Income Support Division. The Attorney-General will be responsible for approving the appointment of members to the Commercial and General Division. Currently, the Treasurer must be consulted on (although is not technically required to consent to) appointments of members to the Taxation Appeals Division of the AAT.⁽⁴⁸⁾ Similarly, appointments to the SSAT, MRT and RRT are made by the Minister for Social Security and the Minister for Immigration and Multicultural Affairs respectively.⁽⁴⁹⁾ However, and importantly, members of the AAT are appointed by the Attorney-General, not by portfolio Ministers.

No specific qualifications for appointment are specified. The Administrative Review Council in its Better Decisions report recommended that legal qualifications should not be a prerequisite for appointment to the ART, except for the President.⁽⁵⁰⁾

Acting appointments to senior member level will be made by the President. Acting Presidential appointments will be made by the Attorney-General, and acting executive members will be appointed by the Minister responsible for the relevant Division (proposed section 31).

Other conditions of members

In general, under the proposed system, the President will be accountable to the Attorney-General, and executive members, senior members and ordinary members will be accountable to the President. The Attorney-General will be responsible for approving outside employment, granting leave of absence and requesting disclosure of interests only in respect of the President. In respect of executive members, senior members and ordinary members, these powers will be conferred on the President.

The provisions for remuneration, leave of absence, outside employment, resignation and retirement are similar to those contained in the AAT Act.⁽⁵¹⁾ One significant difference is that the Judges' Pensions Act 1968 does not apply to the President or executive members, whereas the President and Deputy Presidents of the AAT were eligible to receive judicial pensions.⁽⁵²⁾

Proposed sections 22 and 23 retain the prohibition on members reviewing decisions where they have a conflict of interest, financial or otherwise, unless all parties consent.⁽⁵³⁾ Additionally, the President and other members are prohibited from making a decision whether or not to grant leave for second-tier review if they have a conflict of interest, even if all the parties consent. The Bill also strengthens the conflict of interest requirements, requiring all ART members and the President to make written disclosure of their financial interests and those of their immediate family, both at the commencement of their term and on an ongoing basis.

The Bill introduces two new concepts, performance agreements and codes of conduct. Performance agreements will cover productivity, participation in the administrative running of the Tribunal, participation in a performance appraisal scheme and adherence to the code of conduct (proposed subsection 24(2)). The code of conduct will be drafted by a committee consisting of the President, two executive members and an external person, and will be a disallowable instrument (proposed section 25). All members and senior members must enter into a performance agreement with the executive member who is the head of their primary Division, and the executive members will enter into a performance agreement with the President. The President will not be covered by a performance agreement (proposed subsection 24(1)).

Members will be bound to comply with both the performance agreement (proposed subsection 24(4)) and the code of conduct (proposed subsection 25(4)). Non-compliance with either may lead to a written direction from the President to improve a member's performance and to comply with the agreement or code in the future (proposed subsection 26(1)). It may also lead to the member being removed (proposed subsections 26(2) and 28(3)(d) and (e)).

Removal from office

Currently, an AAT member who is not a judge can be removed by the Governor-General only if both Houses of Parliament in the same session pass a resolution to remove the member for proved misbehaviour or incapacity, or the member becomes bankrupt.⁽⁵⁴⁾ These powers will continue in respect of the President of the ART, although proposed section 27(1) simply refers to 'misbehaviour', not 'proved misbehaviour', which may weaken the protection given to the President.

Executive, senior and ordinary members of the ART will be placed in a much more precarious situation. Proposed section 28 provides that they must be removed by the Governor-General if they become bankrupt, but also if the President (and additionally, in the case of executive members, the responsible Minister) is satisfied they should be removed on any one of a large number of grounds, including:

• misbehaviour, physical or mental incapacity
• absence from duty without leave for a specified period of time
• failure to comply with the obligations relating to outside employment and disclosure of interests
• refusal or failure to enter into a performance agreement
• serious or continuing breach of a performance agreement
• serious or continuing breach of the code of conduct, or
• failure to comply with a direction from the President relating to a performance agreement, code of conduct, constitution of the ART in particular matters, or practice and procedure directions.

The first three grounds are already grounds for removal of members of the SSAT, MRT, RRT and VRB,⁽⁵⁵⁾ although they do not apply to members of the AAT. However, the ability to remove ART members on grounds relating to the performance agreement or code of conduct are unprecedented in relation to judicial or quasi-judicial appointments.

Tribunal administration

The President will be responsible for managing the administrative affairs of the ART (proposed section 32), assisted by the executive members (proposed section 33). Members and senior members will provide assistance to both the President and executive members, as required (proposed section 34).

The President may delegate some of his or her powers to a member, the Chief Executive Officer (CEO), staff or a consultant. A number of powers and functions of the President will be non-delegable, including powers relating to the CEO, some powers relating to executive members and other members, practice and procedure directions, the code of conduct and referral of questions of law to the Federal Court. Other powers will be able to be delegated only to executive members. These include certain functions relating to members and granting leave for second-tier review (proposed section 50). The Senate Committee for the Scrutiny of Bills has expressed concern at 'the apparent breadth of the powers that might be delegated under subsection 50(1)), and the apparent width of the class of potential delegates'. It has also expressed its concern that an ART member may be delegated the power of the executive member to consider an application for second-tier review of his or her own decision under proposed subsection 50(4).⁽⁵⁶⁾

Chief Executive Officer

Rather than having a Registrar and Deputy Registrars, as the AAT currently does, the ART will have a CEO to assist the President (proposed sections 35 and 36). Like the present Registrar,⁽⁵⁷⁾ the CEO will be appointed for a fixed term of up to 5 years (proposed section 37), and will be eligible for reappointment.

Other provisions relating to the CEO, including remuneration, disclosure of interests, prohibition of outside employment, resignation, and removal from office, will be substantially the same as those applying to the Registrar of the AAT.⁽⁵⁸⁾ There are some differences of substance, however. Proposed section 41 contains the same strengthened disclosure of interests requirement which also applies to ART members.⁽⁵⁹⁾

The Governor-General will have power to remove the CEO where the President is satisfied that one of a number of grounds justifies his or her removal. The grounds are extensive, and are similar to those which apply to members of the ART, including failure to comply with practice and procedure directions issued by the President, an executive member or the Minister responsible for a particular Division (proposed section 42).⁽⁶⁰⁾

Registries

There will be at least one Registry of the ART in each State, the ACT and the Northern Territory, and the President may establish additional Registries as he or she thinks fit (proposed section 49).⁽⁶¹⁾ Other machinery provisions replicate those found in the AAT Act.⁽⁶²⁾

Staff

The staff of the ART, like the staff of the AAT, will be engaged under the Public Service Act 1999 and their duties will be determined by the CEO.⁽⁶³⁾ The Bill does not explicitly provide for positions such as Deputy Registrar, District Registrar or Conference Registrar. This will be a matter of administrative arrangement. It seems staff employed under the Public Service Act 1999 will be carried over as staff of the ART, as a matter of administrative arrangement.

Curiously, there is no requirement in the Bill that the annual report of the ART be tabled in Parliament, although this is currently required under the AAT Act.⁽⁶⁴⁾

Initiating review of decisions

All decisions will be subject to initial review, generally by a single member of the ART. This is known as 'first-tier' review. Review by the ART of its own first-tier decision - termed 'second-tier' review - will be available in respect of all decisions (not just in the social security area),⁽⁶⁵⁾ but not as of right, only where an issue of general significance is raised.

First-tier review

Decisions will be reviewable by the ART if another Act or regulations provide that the ART may review the decision (proposed section 54). Currently, over 350 Commonwealth Acts provide for review by the AAT and other specialist tribunals,⁽⁶⁶⁾ as well as some State or Territory laws implementing cooperative national schemes. The Consequentials Bill will make amendments to those Acts to provide instead for review by the ART. Whether, and if so in what respects, the jurisdiction of the ART will differ from that of the AAT will not be known until the Consequentials Bill is introduced.

The provisions of the Bill requiring that notice be given that a reviewable decision has been made, and that a statement of reasons for the decision be provided, are substantially identical to those in the AAT Act.⁽⁶⁷⁾ A 'person whose interests are affected' by a decision will have the right to apply to the ART for review of the decision (proposed section 61). The Commonwealth, Commonwealth statutory authorities or statutory bodies may also apply for review. This is the same as the current test of standing.⁽⁶⁸⁾ It is not clear, however, whether organisations or associations whose interests are affected will be able to apply for review, a right they presently enjoy.⁽⁶⁹⁾

Second-tier review

Second-tier review will only be available with leave of the President of the ART or the executive member who heads the relevant Division (proposed section 63). Under proposed section 65, leave must be granted, and may only be granted, if:

• the first-tier review was made by a single member and raises a principle or issue of general significance, or
• the applicant and decision-maker agree that the first-tier decision was materially affected by a manifest error of law or fact.

Constitution of Tribunal for review

If an application is made to the ART for first-tier review, or if leave is granted for second-tier review, and the application is made in the form prescribed by proposed Part 9 Division 2, the ART must review the decision (proposed sections 62 and 67).

The President will determine which Division of the ART will hear each application for review, although an Act or Regulations may specify which Division will hear applications in relation to particular decisions (proposed section 68).

Proposed section 69 states that the ART will be constituted by a single member in most instances, but may be constituted by 2 or 3 members if the review raises a principle or issue of general significance, or one or more members have particular relevant expertise. Even second-tier review may be conducted by a single member. This contrasts with the procedure of the AAT, which often sits as 2 or 3 members, depending on the public importance and complexity of the matter, and the level of seniority of the person whose decision is being reviewed.⁽⁷⁰⁾ There may be a difference between an issue of 'public importance' and one of 'general significance'. There is no provision in the Bill that where the ART is constituted by 2 or 3 members, at least one must be an executive or senior member.⁽⁷¹⁾ The ART could be constituted by 3 ordinary members to hear a matter of general significance on second-tier review.

The ART may be reconstituted during a hearing for one of three reasons:

• if a member ceases to be a member or is unavailable for any reason (proposed section 70)
• if a participant requests reconstitution and the President, after considering the request, agrees (proposed section 72), or
• if the President considers reconstitution will contribute to achieving the object of 'fair, just, economical, informal and quick' review (proposed section 71).

The first two reasons are broadly similar to those contained in the AAT Act.⁽⁷²⁾ One significant difference is that, under the AAT Act, if a member is unavailable, the hearing can continue with the remaining member or members, but if a new member is added, the hearing has to be started again.⁽⁷³⁾ Proposed sections 70 and 74 make no provision for a hearing before the ART to be restarted, but require an ART panel with new members, even if the sole sitting member is replaced, to continue the hearing, having regard to the evidence and documents tendered before the previous member.

The AAT Act contains no counterpart to the President of the ART's ability to direct the reconstitution of the ART to achieve the interests of efficiency. Although the MRT and the RRT may be reconstituted in the interests of efficiency, this may be done only if there is either insufficient evidence for the member to reach a decision, or the member has not handed down his or her decision within the time period prescribed.⁽⁷⁴⁾ No such safeguards will apply to the President's discretion in proposed section 71. The President will even, it seems, be able to reconstitute the ART after the member has handed down oral reasons for decision, but before written reasons are published ('during the review').

Review practice and procedures

Much of proposed Parts 6 to 9 of the Bill is devoted to describing the procedure for lodging and hearing applications for review. Many of these are similar to the procedures currently used by the AAT.

Procedure before review

The detail of the manner and time in which an application must be made will be set out in the practice and procedure directions and regulations (proposed sections 141 and 142).⁽⁷⁵⁾ This will enable different procedures to be used in different Divisions, or even within a Division in different classes of matter. Assistance is to be given to persons who ask for it, both in relation to making an application for review, and in participating in the review itself (proposed subsection 141(2)). An application fee will only be payable if the Regulations require it, and may be waived by the ART on application (proposed section 143). Generally, the procedure on an application for review by the ART is similar to that which applies before the AAT.⁽⁷⁶⁾

As is the case before the AAT, the applicant, the decision-maker, and other persons whose interests are affected will be entitled to participate in the review process (proposed section 84).⁽⁷⁷⁾ The Attorney-General of the Commonwealth or a State or Territory (if the review takes place under a State or Territory law or may involve an issue of confidential State or Territory Cabinet documents) may also intervene in proceedings (proposed section 86).

A new and significant development is that a decision-maker may decline to be a participant, or may be directed by the head of the agency not to participate in the review before the ART (proposed section 85).⁽⁷⁸⁾ This reflects a policy that in many cases the review can be undertaken more efficiently without agency participation. Where the decision-maker does choose to participate in the review, he or she must not behave in an adversarial manner and defend the decision, but must 'use his or her best endeavours in assisting the [ART] to make its decision on the review' (proposed section 94).

Practice and procedure during review

Many of the provisions of the practice of the ART are substantially the same as those which currently exist before the AAT.⁽⁷⁹⁾ Like the AAT, the ART's review procedures are to be as informal and lacking in technicality as possible, and there will be no requirement to follow the rules of evidence.⁽⁸⁰⁾ Review is to be in public, unless the ART directs otherwise to protect the confidential nature of the matter under review (proposed section 100).⁽⁸¹⁾ The ART will also have power to stay the operation or implementation of the original decision, pending the outcome of review.⁽⁸²⁾

However, participants in the review process do not have a right to present their case to the ART, a right currently enjoyed before the AAT.⁽⁸³⁾ Instead, they may make statements and present arguments only with the permission of the ART and subject to any conditions or directions imposed by the ART (proposed section 96). This restriction must be read in the context of proposed section 90, which requires the ART to afford procedural fairness, and thus may go towards ensuring that participants can only be excluded from presenting oral arguments where they have other opportunities to be adequately heard.

One substantial difference from the current system is that there will be no right to be represented by a lawyer or other person before the ART. A person may only be represented if the ART agrees (proposed section 105). Further, the practice and procedure directions, or other Commonwealth legislation, may prohibit the ART from permitting representation in all or certain classes of case. However, the Bill envisages that assistance from an interpreter may be provided to an applicant for review either if a person applies for assistance, or the ART initiates such assistance (proposed section 106).

The provisions for conferencing on a without prejudice basis, and mediation, prior to hearing of a review application will be retained.⁽⁸⁴⁾ The Bill also permits an inquiry (whether limited or comprehensive) to be conducted at any stage during the review process (proposed section 111). The inquiry may be conducted by one member of a multi-member ART panel, an ART member who is not hearing the review, or a member of staff. That person will have the same powers as the ART in relation to summonsing witnesses, production of documents, hearing sworn evidence, and determining his or her own practice and procedure (proposed sections 113 to 117). At the conclusion of the inquiry, the person who conducted it will provide a report to the ART, which the ART may adopt, in its discretion (proposed section 118).

The way the ART will deal with review applications if new evidence becomes available marks a significant departure from the practice of the AAT. If new information becomes available during the review, the ART must decide whether to request the decision-maker to reconsider the decision (proposed section 124). Although discretionary, the provision seems weighted in favour of referring a decision for reconsideration, unless there was a reason why the applicant did not inform the original decision-maker of the information, or it would be more efficient for the ART to continue with the review.

Another novel feature of the Bill is that all the participants to a first-tier review may agree in writing to forgo any right to second-tier review (proposed section 131). Any such agreement will not affect their right to appeal to the Federal Court on a question of law (proposed paragraph 167(1)(c)).

Practice and procedure directions

Under the proposed system, the conduct of ART members and staff will be constrained by administrative practice and procedure directions to a substantial degree. The President will be able to make practice and procedure directions which will either apply to the whole ART, or to one or more Divisions. The Minister and executive member responsible for a Division will also be able to issue directions which will apply within the Division for which they are responsible (proposed section 161). The Minister's directions will prevail over those of the President and executive members, while presidential directions will prevail over those issued by executive members (proposed subsections 161(6)).

Members and staff, including the CEO, must comply with these directions (proposed subsections 161(7)). Although under proposed section 108 the ART may determine its own practice and procedure, ART members must not make any determinations about practice and procedure that are inconsistent with the practice and procedure directions (proposed subsection 108(4)).

Resolution of application for review

The procedures for terminating review by the ART if:

• the parties agree to settle
• the applicant wishes to end the review
• the application is vexatious or frivolous, or
• the applicant fails to attend the review or fails to comply with a direction given by the ART

mirror those currently applicable to the AAT.⁽⁸⁵⁾ Additionally, review may be terminated if the applicant fails without reasonable excuse to comply with any practice and procedure direction (proposed subsection 129(a)).

The ART will have all the powers of the decision-maker in reviewing the decision, and may affirm, vary, or set aside the decision and substitute a new decision.⁽⁸⁶⁾ Like the AAT, the ART must give a written decision,⁽⁸⁷⁾ but may give reasons for its decision either orally or in writing.⁽⁸⁸⁾

Offences

The Bill duplicates the offences contained in the AAT Act relating to the giving of evidence and contempt of the ART.⁽⁸⁹⁾ It also creates a new offence of disclosing confidential information (proposed section 148).

However, the penalties for these offences will be increased. Currently, all these offences are punishable by a maximum fine of $1000 or imprisonment for 3 months. Under the Bill, contempt will be punishable by a fine of 60 penalty units (currently $6,600)⁽⁹⁰⁾ or imprisonment for 12 months, and the remaining offences will attract a fine of 30 penalty units (currently $3,300) or imprisonment for 6 months.

A number of miscellaneous matters contained in the Bill replicate those in the current system, and do not bear repeating here.⁽⁹¹⁾ It is noteworthy that the Bill provides participants should bear their own costs (proposed section 155). No provision as to costs was made under the AAT Act: the issue was left to the individual statutes conferring review jurisdiction on the AAT.

Review of the Tribunal's decision

At present, certain co-operative national schemes confer jurisdiction on the AAT to review decisions made pursuant to those schemes, and the AAT Act confers jurisdiction on the Federal Court to hear appeals from decisions of the AAT, including AAT decisions made under co-operative scheme laws. Proposed section 166 will ensure that provisions of the Bill dealing with appeals and references of questions of law to the Federal Court from ART decisions under State or Territory co-operative scheme laws will apply as a matter of federal law, not State or Territory law.⁽⁹²⁾

An appeal may currently be brought to the Federal Court under the AAT Act,⁽⁹³⁾ and will also be able to be brought under the Bill (proposed section 167), from a decision that a person does not have standing to become a participant, or from a decision about disclosure of information or documents in the public interest, if either decision raises a question of law. Proposed section 167 of the Bill will also permit an appeal to the Federal Court from a decision made by the ART about the adequacy of a statement of reasons, and a refusal of an application for leave to apply for second-tier review of the ART's first-tier decision, or an extension of time to make the application.

A person can also appeal directly from the ART's first-tier review if all parties have signed an agreement to forgo any right to second-tier review by the ART, or if the ART on first-tier review was constituted by 2 or 3 members.

The ART will have power, of its own motion or at the request of a participant, to refer a question of law to the Federal Court for determination (proposed section 172).⁽⁹⁴⁾ Whereas on reference of a question of law from the AAT the Federal Court is required to sit as a Full Court,⁽⁹⁵⁾ under the Bill this will no longer be required.

Procedural provisions relating to appeals to the Federal Court and Federal Magistrates Court are substantially identical with those applicable to the AAT.⁽⁹⁶⁾

Administrative Review Council

The Council is established by section 48 of the AAT Act. Proposed Part 11 of the Bill takes over the role of establishing and regulating the composition and functions of the Council. The provisions dealing with the functions of the Council, its membership, and appointment and termination of appointed Council members, remain unchanged in substance.

Two changes of substance are made to the provisions regulating the Council. The Council must provide the Attorney-General with a copy of any findings or advice given by the Council if it inquires into the adequacy of procedures followed by administrative decision-makers (proposed subsection 176(3)). This is in addition to the existing requirement to provide the Attorney-General with a copy of any report on a project or an inquiry.⁽⁹⁷⁾ Secondly, the Attorney-General will only have to table reports of inquiries by the Council in each House of Parliament 'as soon as practicable' (proposed subsection 181(2)).⁽⁹⁸⁾

Concluding Comments

As the current President of the AAT has observed,⁽⁹⁹⁾

With the diversification of tribunals, this centralisation did not last. The aim of the proposed amalgamation and the creation of a new mega-tribunal is to re-capture the original vision. Specifically, it is hoped that the proposed system will:⁽¹⁰⁰⁾

• increase efficiency and cost-effectiveness in the merits review system
• create a flexible, user-friendly tribunal using a variety of informal, non-adversarial procedures (including conferences, inquiries, informal hearings)
• provide review that is 'fair, just, economical, informal and quick', and
• retain the essential elements of fairness and independence.

The Concluding Comments section evaluates whether the proposed system will achieve these laudable objectives.

Efficiency and cost-effectiveness

There are significant anomalies in the current system of administrative review. In some areas (such as social security and veterans' affairs) there are presently two levels of tribunal review, whereas for other decisions there is only one. The proliferation of specialist tribunals in high-volume jurisdictions such as migration and social security has also been criticised as leading to fragmentation and duplication of resources, and undermining the consistency and integrity of the administrative review framework.⁽¹⁰¹⁾ The proposed creation of the ART has the potential to create an efficient, streamlined, one-stop shop for administrative review matters.

However, the proposed system also contains its own anomalies. Most significantly, the VRB has escaped amalgamation altogether, despite the Council's recommendation that it be included.⁽¹⁰²⁾ This, Creyke claims, is in itself enough to 'negate any assertion that this is a streamlined, hence more efficient structure.'⁽¹⁰³⁾ Another element of fragmentation is the foreshadowed decision to exclude the possibility of second-tier review for migration decisions, but not for any other decisions.⁽¹⁰⁴⁾

Although the loss of the current appeal as of right for income support applicants from the SSAT to the AAT is a significant saving, both in cost and efficiency, it may be offset by the addition of a second tier of external review, with leave, in other jurisdictions which presently have only one level of tribunal review.⁽¹⁰⁵⁾

In addition, having a non-adversarial, investigative approach to review will require additional training of members and the appointment of staff to act as investigators, which has resource implications and detracts from the cost-cutting focus.⁽¹⁰⁶⁾

Despite these reservations, the Government projects that the merger of existing merits review tribunals into the ART will generate $31.4 million in savings over 4 years, chiefly from economies of scale and administrative efficiencies generated by sharing administrative and registry staff and corporate support functions.⁽¹⁰⁷⁾ When compared to the capital injection of $17.6 million over 4 years, (including $15 million in 2000-2001 to establish the ART), this represents a very significant cost saving.

Flexibility and informality

Although the AAT has been perceived to be adversarial, formal and legalistic,⁽¹⁰⁸⁾ in fact it has always had the ability to adopt flexible procedures for the resolution of disputes. Most of the 'flexible' powers proposed for the ART, such as pre-hearing conferences, the lack of a requirement to follow the rules of evidence, and the ability to use telephone and video links to conduct conferences and hearings, are already possessed by the AAT. The AAT and the ART are both subject to the directive to 'conduct proceedings with as little formality and technicality as possible'.⁽¹⁰⁹⁾

It is claimed that the ART will have the flexibility to develop different practices and procedures within the various Divisions, and even within the Divisions according to the nature of the matter under review.⁽¹¹⁰⁾ However, as McMillan and Todd noted in 1994, 'the AAT does to a substantial degree mould its procedures according to the particular case or class of case before it'.⁽¹¹¹⁾ Thus, it does not seem that there is anything in the Bill that legislatively requires or enables the ART to be flexible and informal in ways its predecessor is not. If there are to be changes to the culture of review in this respect, they are unlikely to be achieved by the Bill, and will presumably be implemented administratively.

Fair, just, economical, informal and quick review

One of the objects of the Bill is to provide review on the merits that is 'fair, just, economical, informal and quick' (proposed subsection 3(c)). The proposal for the practice and procedure of the ART contains a number of elements not present in the current AAT system.

Procedures

The proposal that the Department or agency may elect not to participate in the hearing will certainly aid informality and brevity in the review process, but may not serve the aims of fairness and justice as well. Although it may be seen to be to the individual's advantage if the department is not represented at the hearing, 'user responses to the AAT's process indicate that much satisfaction is gained on various levels by this face-to-face interaction.'⁽¹¹²⁾

Similarly, the availability of legal representation only with leave of the ART, not as of right, may have an impact on the fairness of the review process. Bacon is concerned that 'there may arise problems for applicants who suffer from some disadvantage in relation to matters such as their limited capacity to speak English, or because they have a mental illness.'⁽¹¹³⁾ The Government has stated that 'the [ART] will consider the circumstances in which legal representation would be desirable or necessary and develop practice directions accordingly'.⁽¹¹⁴⁾ Notwithstanding this assurance, the Bill as it stands permits portfolio legislation to restrict or remove access to representation altogether. In other cases, where the availability of representation is not legislatively excluded, whether or not it will be granted is in the discretion of the sitting ART member or members, subject to practice and procedure directions, which may be issued by the portfolio Minister, in addition to the ART President and executive members. In the absence of the Consequentials Bill and the proposed practice and procedure directions, that assurance cannot be evaluated.

The expectation that reasons will in normal cases be provided orally rather than in writing has also been criticised, as detracting from the accountability of tribunals both to the participants and to the public, and removing the opportunity to state principles to guide decision-makers.⁽¹¹⁵⁾ However, it should not be forgotten that the power to provide oral reasons is not new to the ART, but is currently possessed by the AAT. Further, participants can apply for written reasons if they wish.

One element of the proposed scheme which may in fact work against its economy and speed is the proposal to remit the majority of cases which disclose new evidence to the original decision-maker. This may unnecessarily prolong the process of review and generate extra costs, both for individuals and agencies, particularly if new evidence is produced part-way through a tribunal hearing.⁽¹¹⁶⁾

Qualifications of members

Another factor critical to the fairness and justice of administrative review is the qualifications of ART members. Although the Council recommended that the selection criteria for tribunal members be publicly available,⁽¹¹⁷⁾ it is not yet known what, if any, qualifications will be required of members. None are specified in the Bill. Certainly, the Government has already indicated that legal qualifications will not be essential, commenting that 'the argument that only lawyers can decide a case fairly and knowledgeably is surely not sustainable.'⁽¹¹⁸⁾ There is no indication whether ART members will need to possess the minimum core skills recommended by the Council: understanding of merits review, knowledge of administrative review principles, analytical skills, personal skills and attributes and communications skills.⁽¹¹⁹⁾

Although few would dispute the proposition that not all ART members need legal qualifications, many commentators (generally themselves lawyers or judges) have argued eloquently that the ART should include at least a good complement of lawyers. The particular skills of lawyers are especially important to ensure that decision-makers do not exceed their power, to correct legal errors in the decision-making process, and at the second-tier review level, when important rights are at stake and the law is often complex.⁽¹²⁰⁾ As former Chief Justice Brennan acutely observed, it is unacceptable for a tribunal not to have the skills to make a decision on the legality of a matter, but to have to rely on obtaining advice from other members or from legal research staff assigned to the tribunal.⁽¹²¹⁾

One of the best features of the present system of administrative tribunals is the mix of skills and professional backgrounds among members, including judicial members, members with legal expertise and those with specialist subject-specific expertise. However, in Johnston's words, there is a 'potential for erosion of the tribunal's credibility' if decisions are predominantly made by one ART member rather than three, because this combination of skills will not be represented.⁽¹²²⁾

Availability of second-tier review

The provision of second-tier review in cases raising an issue of principle or a manifest error of law or fact is fair, in that it ameliorates the risk of an erroneous decision being made on the first-tier review and allows the formulation of principles to guide primary decision-makers. However, it would be fairer if it applied across the board, and did not exclude migration decisions. One element of second-tier review that seems less than just is that second-tier review in cases of manifest error cannot be obtained if one party refuses to agree. This leaves considerable power in the hands of opposing parties to control the right of review. It may be preferable if the President decides whether or not error exists.⁽¹²³⁾ If the manifest error is one of fact, and the other party will not agree to second-tier review, no further avenue of appeal exists. However, if the manifest error is one of law, it is still possible to appeal directly from the first-tier ART decision to the Federal Court on the question of law, which (unlike second-tier review) does not require the agreement of the other party (proposed paragraph 167(1)(a)).

Because second-tier review is available only by leave this opens the way for jurisdictional and definitional arguments over what is an issue of 'significance', or whether an error is 'manifest', which detracts from the efficiency and informality of the review process. Further, the unavailability of second-tier review of migration decisions is expected to put further pressure on the courts.⁽¹²⁴⁾

Independence

There is a natural tension between the fact that administrative tribunals are part of the executive arm of Government, and hence required to be an accountable branch of public administration, and their adjudicative role, which requires them 'to maintain both the reality and the appearance of independence and objectivity.'⁽¹²⁵⁾ The concern has frequently been expressed that the amalgamation could result in a significant loss of independence for the external review tribunals.⁽¹²⁶⁾ As Justice Kenny stated:⁽¹²⁷⁾

A number of elements of the Bill have led to this concern about compromising the independence of administrative tribunals, chiefly:

• the lack of judicial-style tenure and appointment conditions for ART members
• the appointment of the majority of members on the recommendation of the portfolio Minister, rather than the Attorney-General
• the ability of the portfolio Minister to give practice and procedure directions
• that Divisions of the ART will be funded directly by the portfolio agency, and
• the introduction of performance targets.

Independence of members

As noted above, no members of the ART, not even the President, will have tenure until retirement age. The President will not be required to be a judge. The lack of the trappings of judicial office is not in itself a concern, as merits review does not require a quasi-judicial process to be perceived as independent.⁽¹²⁸⁾ However, other incidents of ART membership give rise to concern that the President and other members will not be secure from interference. Members other than the President can be removed from office, at the discretion of the President, for any of a large number of reasons, including failure to comply with a performance agreement or code of conduct. The fact that all members, including the President, will be appointed for fixed terms, which will be renewable, gives rise to fears that members may feel under pressure to deliver decisions to the satisfaction of the Government in order to secure renewal of their appointments. The appointment of members on the recommendation of the portfolio Minister may also have an adverse impact on independence, whether actual or perceived.⁽¹²⁹⁾

The development of performance management standards for evaluating the performance of ART members is also cause for concern. If performance appraisal is limited to the timeliness of decisions and written reasons, the procedure, and quality of reasoning, and is clearly removed from the outcomes of individual cases, it seems sensible.⁽¹³⁰⁾ However, some current Members of the AAT have expressed concern that productivity targets and performance agreements 'will reduce the quality and independence of the review process ... thereby bringing the new tribunal into disrepute.'⁽¹³¹⁾

Independence of Divisions

The proposal that the major Divisions of the ART be funded directly by the Government departments and agencies whose decisions they will be reviewing is of significant concern to some.⁽¹³²⁾ One fear is 'the possibility of funds-starvation', or of 'reducing funding to such an extent that multi-member panels become impracticable.'⁽¹³³⁾ Although the Government claims that the funding will be 'clearly linked to workflow and caseload and will not be used as a vehicle for executive interference in ART decision making',⁽¹³⁴⁾ workflow can be unpredictable and can experience ebbs and flows. Creyke has recommended that the Attorney-General's Department establish a hedge fund to cover unexpected shortfalls in agency funding.⁽¹³⁵⁾

A second, perhaps more fundamental, concern is at the linkage between the ART and portfolio agencies created by direct funding arrangements. The Government claims that portfolio funding already works successfully for the VRB and SSAT. However, these are first-tier tribunals of very different stature from the AAT, and presumably also the ART. The current AAT President, Justice Deirdre O'Connor, says that the SSAT and VRB are perceived as not being independent, in part because of their funding from the portfolio department.⁽¹³⁶⁾ And McMillan and Todd caution:⁽¹³⁷⁾

On the other hand, departmental funding could have some beneficial effects, including a heightened degree of collegiality and enhancing the interrelationship between the agency and the tribunal. Some commentators even hope that regular meetings between the ART President and agency heads may assist the ART to fulfil its normative function of providing guidance to decision-makers on difficult questions of law, policy and administration without compromising the ART's independence.⁽¹³⁸⁾ There will always remain a need to ensure an appropriate distance, so that a particular Division does not become 'too sympathetic to the agency's process, or acquire its institutional biases.'⁽¹³⁹⁾

Conclusion

A number of commentators have suggested that retaining the present system of separate tribunals is preferable, and have resisted the push to a super-tribunal, for a number of reasons:

• there is no evidence that the new ART will have greater authority than the existing specialist tribunals⁽¹⁴⁰⁾
• there is a risk that some of the major benefits of tribunals, such as accessibility, specialised expertise, diversity and innovation will be lost'⁽¹⁴¹⁾
• the changes may not bring the expected benefits of efficiency and economy, or there may be other ways to achieve these goals⁽¹⁴²⁾
• the need for separate and distinctive approaches in different fields, and a separate identity from a client perspective,⁽¹⁴³⁾ and
• maintenance of three member panels is more likely under the existing system, as under the new system 'financial and political pressures for rationalisation and economy might predominate'.⁽¹⁴⁴⁾

However, the majority of commentators, including senior members of the judiciary and both present and past AAT Presidents, are not opposed to amalgamation itself, but are concerned that the details of the proposal represent a downgrading of the existing system of administrative review. Justice Jane Matthews, in August 1998, argued that:⁽¹⁴⁵⁾

The Law Council of Australia has also stated that, while it is not opposed to amalgamation of administrative tribunals in the interests of efficiency, it is concerned that the Bill represents 'a significant winding back of the original concept of administrative review', particularly because of the reduction in the independence of members.⁽¹⁴⁶⁾

While clearly it is not necessary for the ART to be a tribunal in the judicial mould, and it is appropriate for it to be 'more closely allied to public administration',⁽¹⁴⁷⁾ this should not be done at the expense of the quality and stature of the body. The ART must be a 'high level' tribunal to command the respect of departmental decision-makers and the public,⁽¹⁴⁸⁾ and its credibility depends in part on its members having 'the necessary skills for high quality merits review' as well as independence from the departments whose decisions they are reviewing.⁽¹⁴⁹⁾ As Creyke has observed:⁽¹⁵⁰⁾

Sir Anthony Mason has also cautioned that a sub-standard tribunal system would be a 'passport to disaster', and would lead to a greater number of appeals against and applications for judicial review of tribunal decisions.⁽¹⁵¹⁾ This, in turn, would undermine the projected cost efficiencies.

Obviously, not all commentators share these concerns. Peter Bayne, a part-time senior member of the AAT, sees a potential for the proposed ART to function well as a number of specialised appellate review systems, overseen and unified by the second-tier of review.⁽¹⁵²⁾

Ultimately, the question for Parliament is to examine the details of the ART's membership, structure and review procedures with a view to ensuring that the system proposed will both correct the anomalies and inefficiencies in the present system and will achieve the vision of efficient, independent, informal and fair administrative review without comprising the quality of review presently in place.

Endnotes

1. D C Pearce, Commonwealth Administrative Law (1986) p. 1.
2. Ibid., p. 1; H Whitmore and M Aronson, Review of Administrative Action (1978), p. 3.
3. Parliamentary Paper No 144 of 1971.
4. See generally, D C Pearce, op. cit. n. 1, p. 1.
5. In 1973, the Committee of Review of Prerogative Writ Procedure (the Ellicott Committee) affirmed the recommendations of the Kerr Committee relating to the simplification of procedure and codification of grounds of judicial review of administrative action.
6. Parliamentary Paper No 316 of 1973.
7. D C Pearce, op. cit. n. 1, p. 8.
8. In 1976 the Commonwealth passed the Ombudsman Act 1976, which allows for the appointment of an Ombudsman with power to investigate the actions of Commonwealth Departments or authorities (but not the actions of Ministers, judges or magistrates), if a complaint is made by an individual. The first Ombudsman was appointed in 1977. In 1977, the Government implemented the other key recommendation of the Kerr Committee when it enacted the Administrative Decisions (Judicial Review) Act 1977. Section 11 of that Act replaced the cumbersome and technical prerogative writs with a single simplified procedure, and sections 5, 6 and 7 codified the legal grounds on which review of government action can be sought in the courts. By section 8, jurisdiction in judicial review matters arising under the Act was vested not in a specialist administrative law court, as suggested by the Kerr Committee, but in the newly created Federal Court of Australia. Later, the Commonwealth Government passed the Freedom of Information Act 1982, which for the first time made it possible for citizens to obtain access to certain government documents. The only recommendation of the Kerr Committee not to be implemented was the enactment of an administrative procedure statute to govern administrative tribunals.
9. Administrative Appeals Tribunal Act 1975 (AAT Act).
10. Explanatory Memorandum to the Administrative Review Tribunal Bill 2000, p. 1.
11. Section 28 of the AAT Act.
12. See section 51 of the AAT Act.
13. Repatriation Acts Amendment Act 1979, Parts IIIA and IIIB.
14. It was established under section 107VB of the Repatriation Act 1920, and is continued in existence by section 134 of the Veterans' Entitlements Act 1986.
15. Section 135 of the Veterans' Entitlements Act 1986.
16. Section 175 of the Veterans' Entitlements Act 1986.
17. The Social Security (Review of Decisions) Act 1988 inserted section 216 into the Social Security Act 1947, which became section 1322 of the Social Security Act 1991.
18. All decisions made under the Social Security Act 1991, Farm Household Support Act 1992, Child Support (Assessment) Act 1989, and decisions as to an aged care recipient's income made under the Aged Care Act 1997: section 1245 of the Social Security Act 1991.
19. See generally in relation to social security tribunals: Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995), Appendix B, p. 193.
20. Section 1283 of the Social Security Act 1991.
21. Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995), Appendix B, pp. 195-196.
22. The Migration Legislation Amendment Act 1989 inserted section 64ZJ, and Parts III and IIIA into the Migration Act 1958.
23. Migration Legislation Amendment Act (No 1) 1998 inserted the current section 394 into the Migration Act 1958.
24. Section 338 of the Migration Act 1958.
25. The Migration Reform Act 1992 inserted section 166J into the Migration Act 1958, which later became section 457.
26. Section 411 of the Migration Act 1958.
27. See Administrative Review Council Thirteenth Annual Report 1988-89, paragraphs 8-11; Administrative Review Council Sixteenth Annual Report 1991-92, paragraph 207; Administrative Review Council Report No 25, Review of Migration Decisions (1986), paragraphs 246-250.
28. J McMillan, 'Administrative tribunals' (2000) 76 Reform 67 at p. 67.
29. Better Decisions, op. cit. n. 21.
30. Ibid., p. 140.
31. Ibid., p. 142.
32. Ibid., pp. 140-141.
33. The Attorney-General the Hon Daryl Williams, AM QC MP, "Reform of merits tribunals", News release, 20 March 1997.
34. The Attorney-General the Hon Daryl Williams, AM QC MP, "Reform of merits review tribunals", News release, 3 February 1998.
35. Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system, Report No 89 (February 2000).
36. The Attorney-General the Hon Daryl Williams, AM QC MP, "Administrative Review Tribunal Introduced", Press release, 28 June 2000.
37. Explanatory Memorandum to the Administrative Review Tribunal Bill 2000, p. 1.
38. Better Decisions, op. cit. n. 21, p. 144.
39. Powers of review in relation to decisions made under the Australian Security Intelligence Organisation Act 1979 and decisions made concerning access to ASIO's records can only be exercised in the Security Appeals Division of the AAT: subsection 19(6) of the AAT Act.
40. Creyke notes that no security review applications were finalised in 1995-96 and only one in 1996-97: R Creyke 'Whither the Review System?' in Targeting, Accountability and Review: Current Issues in Income Support Law (20 February 1998) at 5.
41. At 30 June 1999, the AAT had a total of 21 senior members and 49 members: Administrative Appeals Tribunal Annual Report 1998-1999, p. 8.
42. Subsection 7(1) of the AAT Act.
43. Better Decisions, op. cit. n. 21, pp. 148-149.
44. At 30 June 1999, 11 of the AAT's 21 senior members were part-time and all 49 ordinary members were part-time: Administrative Appeals Tribunal Annual Report 1998-1999, p. 8.
45. Indeed, as at 30 June 1999, 10 Federal Court judges and 3 Family Court judges are Presidential Members: Administrative Appeals Tribunal Annual Report 1998-1999, p. 8.
46. See section 33(4A) of the Acts Interpretation Act 1901.
47. Section 8 of the AAT Act.
48. Subsection 19(3A) of the AAT Act.
49. R Leon, 'Tribunal Reform: The Government's Position', Administrative Law Forum Proceedings 1998, 350 at 352.
50. Better Decisions, op. cit. n. 21, p. 149.
51. Compare proposed sections 19, 20, 21 and 29 with sections 9, 11, 12 and 15 of the AAT Act. Although there is no specific protection for members against being involuntarily retired on the ground of invalidity, as there is in subsection 13(13) of the AAT Act, this protection is provided in section 13 of the Superannuation Act 1990.
52. Section 16 of the AAT Act.
53. Currently contained in section 14 of the AAT Act.
54. Section 13 of the AAT Act.
55. Subsection 1334(8) of the Social Security Act 1991 (Cth) (SSAT), subsections 403(2) (MRT) and 468(2) (RRT) of the Migration Act 1958 (Cth), subsection 164(5) of the Veterans' Entitlements Act 1986 (Cth) (VRB).
56. Senate Committee for the Scrutiny of Bills, Alert Digest 10/00, p. 7.
57. Section 24F of the AAT Act.
58. Compare proposed section 38 and section 24E of the AAT Act (remuneration), proposed section 39 and section 24G of the AAT Act (leave), proposed section 40 and section 24J of the AAT Act (outside employment), proposed section 43 and section 24H of the AAT Act (resignation), proposed section 45 and section 24M of the AAT Act (Acting Registrar/ CEO).
59. Compare section 24L of the AAT Act.
60. Compare the more limited grounds available in section 24K of the AAT Act.
61. See section 64 of the AAT Act.
62. Compare proposed section 51 and section 24R of the AAT Act (annual report), proposed section 53 and section 24W of the AAT Act (proceedings against the Tribunal are proceedings against the Commonwealth)
63. Currently, their duties are determined by the President of the AAT or in the AAT Act, section 24N of the AAT Act.
64. Section 24R of the AAT Act.
65. Currently, two tiers of tribunal review are available as of right in relation to social security decisions (first by the SSAT and then by the AAT) and veterans' affairs (first by the VRB and then by the AAT). All other decisions are permitted only one tier of review, generally by the AAT, although migration decisions are reviewable by the MRT and refugee determinations by the RRT. Under the Bill, two tiers of review will remain available as of right for veterans' affairs, the first tier being reviewed by the VRB, and then a single right of appeal to the ART.
66. The Attorney-General the Hon Daryl Williams, AM QC MP, Second Reading Speech on the Administrative Review Tribunal Bill 2000, House of Representatives, Hansard, p. 16955, 28 June 2000.
67. The decision-maker must notify the person or persons whose interests are affected by a decision of the right to review (whether directly by the ART or by internal review) (proposed section 56 and section 27A of the AAT Act). The person whose interests are affected can then request a statement of reasons for the decision, if he or she has not already been given such a statement, and it must be provided within 28 days (proposed section 57 and section 28 of the AAT Act). The exemption from including in the statement of reasons information pertaining to national security, Cabinet deliberations or other matters, if the Attorney-General provides a written certificate relating to the disclosure of such material, is retained (proposed section 60 and subsections 28(2) and (3) of the AAT Act). Additionally, the rights to apply to the Tribunal for review of a refusal to provide a statement of reasons, and for review of the adequacy of a statement of reasons which has been provided, are both carried over (proposed sections 58 and 59, and subsections 28(1AC) and 28(5) of the AAT Act).
68. Subsection 27(1) of the AAT Act.
69. Subsection 27(2) of the AAT Act.
70. Subsection 20(3) of the AAT Act.
71. Contrast subsections 21(1AA) and (1AB) of the AAT Act.
72. Subsection 21A of the AAT Act provides that the President may reconstitute the AAT on the request of a participant only if the matters 'are of such public importance as to justify him or her in so doing', whereas proposed section 72 contains no such restriction.
73. Subsection 23(1) of the AAT Act.
74. Subsections 355A(2) and 422A(2) of the Migration Act 1958. Two other conditions before the MRT or RRT can be reconstituted are: it must be done before the member has handed down his or her reasons for decision, and the President must consult the sitting member and seek advice from a senior member.
75. This contrasts with section 29 of the AAT Act, which specifies in detail the manner in which an application to the AAT for review of a decision must be made, and that it must be made within 28 days.
76. After an application for review is made, the CEO gives notice of the application for review to the decision-maker. The decision-maker then provides all relevant documents and a statement of reasons (unless the Tribunal directs that the documents are confidential), and the CEO arranges for copies of the documents to be provided to all participants. Compare proposed section 76 and subsection 29(11) of the AAT Act (notice of application for review to the decision-maker), proposed section 77 and subsection 37(1AAA) of the AAT Act (documents and statement of reasons), proposed section 78 and section 38 of the AAT Act (inadequate statement of reasons), proposed section 79 and subsection 37(2) of the AAT Act (Tribunal can request other relevant documents), proposed section 81 and subsection 37(1AE) of the AAT Act (copies of documents provided to participants), and proposed section 82 and subsection 37(1AF) of the AAT Act (non-disclosure of confidential documents.
77. See also section 30 of the AAT Act.
78. See also section 30A of the AAT Act.
79. These include who shall be the presiding member if the Tribunal is constituted by more than one member (proposed section 88 and section 22 of the AAT Act), resolving disagreements between members (proposed section 89 and section 42(2) of the AAT Act).
80. Compare proposed sections 91 and 92 with paragraphs 33(1)(b) and (c) of the AAT Act. However, both the AAT and ART have the powers ordinarily possessed by courts, to summons persons to give evidence or produce documents (proposed section 95 and subsection 40(1A) of the AAT Act), and to take evidence on oath or affirmation (proposed section 98 and section 40 of the AAT Act). Evidence can also be taken separately on behalf of the Tribunal by another member or other person (proposed section 97 and subsection 40(5) of the AAT Act). The powers of Commonwealth, State and Territory Attorneys-General to certify that disclosure of specified information would be contrary to the public interest, and to declare that a person answering particular questions would be contrary to the public interest are also retained (proposed sections 101, 102 and 103, and sections 36, 36A, 36B, 36C and 36D of the AAT Act).
81. See also section 35 of the AAT Act. Public review includes the ability to conduct any part of the review process by telephone, closed-circuit television or other electronic means (proposed section 104 and section 35A of the AAT Act).
82. Compare proposed sections 121 and 122 with section 41 of the AAT Act. Compare also the restrictions on the power of the original decision-maker to alter the decision while it is under review by the ART or the Federal Court, (proposed section 123 and section 26 of the AAT Act) and the power of the ART to request the decision-maker to reconsider the decision at any stage during the review process, (proposed section 125 and section 42D of the AAT Act). However, the time limit of 28 days for the decision-maker to complete his or her reconsideration is new (proposed subsection 125(3)).
83. Section 39 of the AAT Act.
84. Proposed section 110 and section 34 of the AAT Act. Although mediation is not explicitly mentioned in proposed section 110, it would be covered by the term 'some other process'.
85. Compare proposed sections 109, 127, 128, 129, 130, 132 with sections 42A, 42B and 42C of the AAT Act. One small safeguard new to the Bill is that before an application can be terminated for failure to attend the review, the ART must be satisfied that appropriate notice of the time and place of the review had been given (proposed subsection 128(2)).
86. Proposed subsections 133(1) to (4) and subsection 43(1) of the AAT Act. Other provisions relating to the effect and operation of the ART's decision are also the same as those applying to decisions made by the AAT. For example, the ART's decision is deemed to be the decision of the original decision-maker (proposed section 134 and subsection 43(6) of the AAT Act), when the ART's decision becomes operational (proposed section 135 and subsections 43(5A) and (5B) of the AAT Act), provision for the evidentiary effect of ART decisions (proposed section 137 and subsection 43(4) of the AAT Act), correction of obvious errors in ART decisions (proposed section 138 and section 43AA of the AAT Act), and return of documents to the participants upon completion of the review (proposed section 139 and section 43A of the AAT Act).
87. Proposed subsections 133(2) and (4) and subsection 43(1) of the AAT Act.
88. Proposed subsections 136(1) to (4) and subsection 43(2) of the AAT Act.
89. These are: failure to give evidence or to produce documents when summonsed (proposed section 145 and section 61 of the AAT Act); refusal to be sworn or to answer questions (proposed section 146 and section 62 of the AAT Act); giving false or misleading evidence (proposed section 147 and section 62A of the AAT Act); and contempt of the ART (proposed section 149 and section 63 of the AAT Act).
90. Section 4AA of the Crimes Act 1914.
91. These include immunity for ART members, parties, witnesses and representatives (proposed section 144 and section 60 AAT), the obligation not to disclose confidential information (proposed sections 151 and 152 and sections 66 and 66A AAT), fees for witnesses (proposed section 153 and section 67 AAT), provision of legal assistance in cases of hardship (proposed section 154 and section 69 AAT), the procedure for the taxing of costs (proposed section 156 and section 69A AAT), procedures for giving documents to ART officers and decision-makers (proposed sections 157-159 and section 68 AAT), and the ability to give an advisory opinion (proposed section 160 and section 59 AAT).
92. States and Territories implementing co-operative national schemes sometimes include provisions applying certain sections of the AAT Act, including those dealing with appeals to the Federal Court and reference of questions of law to the Federal Court, as State or Territory law. Following the High Court's decision in Re Wakim; Ex parte McNally (1999) 163 ALR 270, these State and Territory laws conferring jurisdiction on the Federal Court would be invalid. Amendments to the AAT Act have been passed (Jurisdiction of Courts Legislation Amendment Act 2000) but have not yet commenced, which will remedy this situation by conferring jurisdiction on the Federal Court as a matter of federal law rather than State or Territory law. Proposed section 166 merely continues the amendments made by the Jurisdiction of Courts Legislation Amendment Act 2000. For more information, see Bills Digest No 149 of 1999-2000.
93. See section 44 of the AAT Act.
94. This is very similar to section 45 of the AAT Act. It specifically includes the question of law whether it would be contrary to the public interest to answer a question which an Attorney-General considers has implications for national security or the disclosure of confidential Cabinet communications (proposed subsection 172(2)).
95. Subsection 45(2) of the AAT Act.
96. These include provisions governing the time limits for instituting appeals (proposed section 168 and subsection 44(2A) of the AAT Act), the jurisdiction of the Federal Court to hear appeals (proposed section 169 and section 44 of the AAT Act), the transfer of appeals from the Federal Court to the Federal Magistrates Court (proposed section 170 and section 44AA of the AAT Act), the stay of decisions pending conclusion of an appeal (proposed section 171 and section 44A of the AAT Act), and the return of documents on conclusion of the appeal (proposed section 173 and section 46 of the AAT Act).
97. See proposed section 181 and subsection 51(3) of the AAT Act.
98. Currently, he or she must do so within 15 sitting days: subsection 51C(2) of the AAT Act.
99. The Hon. Justice D O'Connor, 'Effective Administrative Review: An Analysis of Two-tier Review' (1993) 1 Australian Journal of Administrative Law 4 at 4.
100. See generally Attorney-General the Hon Daryl Williams, AM QC MP and Minister for Justice and Customs, Senator the Hon Amanda Vanstone, "2000-2001 Budget - Law and Justice Overview", News release, 9 May 2000, and Attorney-General the Hon Daryl Williams, AM QC MP, "Establishment of the Administrative Review Tribunal", News release, 9 May 2000; R Leon, 'Tribunal Reform: The Government's Position', Administrative Law Forum Proceedings 1998, 350 at 351; S Pidgeon, 'Amalgamating Commonwealth Tribunals: The Government's Accountability Through the Proposed Administrative Review Tribunal' (16 February 1999, http://www.ag.gov.au/publications/accountconf/accountconf.html.
101. J McMillan and R Todd, 'The Administrative Tribunals System: Where to from Here?' in Proceedings of the Administrative Law Forum (1994) 116 at 117-118.
102. See Better Decisions, op. cit. n. 21, p. 146.
103. R Creyke 'Whither the Review System?' in Targeting, Accountability and Review: Current Issues in Income Support Law (20 February 1998) at 8 (Creyke 'Whither'). See also R Creyke, 'the Administrative Appeals Tribunal - What's Happening?' Current Issues Brief No 8 1999-2000 (19 October 1999), p. 2 (Creyke 'What's Happening?').
104. See J McMillan, 'Administrative tribunals' (2000) 76 Reform 67 at 69, Creyke 'What's Happening?', op. cit., n. 103, p. 2.
105. Social security applicants appealing from the SSAT currently comprise around 25 per cent of applications to the AAT. However, the other jurisdictions acquiring second-tier review rights in certain circumstances, tax, workers' compensation, commercial and general matters, together comprise nearly half the AAT's present caseload. See Creyke 'What's Happening?', op. cit., n. 103, p. 2.
106. Creyke 'Whither', op. cit., n. 103, p. 13.
107. See Attorney-General the Hon Daryl Williams, AM QC MP and Minister for Justice and Customs, Senator the Hon Amanda Vanstone, "2000-2001 Budget - Law and Justice Overview", News release, 9 May 2000, and Attorney-General the Hon Daryl Williams, AM QC MP, "Establishment of the Administrative Review Tribunal", News release, 9 May 2000.
108. McMillan and Todd, op. cit., n. 101, p. 120.
109. Paragraph 33(1)(b) of the AAT Act, and proposed section 92.
110. Pidgeon, op. cit., n. 100.
111. McMillan and Todd, op. cit., n. 101, p. 124.
112. O'Connor, op. cit., n. 99, p. 7.
113. R Bacon, 'Tribunals in Australia - Recent Developments' (2000) 7 Australian Journal of Administrative Law 69 at 73. The Law Council of Australia and Australian Law Reform Commission have echoed these concerns: President of the Law Council of Australia, Dr G Hughes, Australian Lawyer, p. 3 (September 2000); ALRC, Review of the Federal Civil Justice System, Discussion Paper 62 (August 1999).
114. Pidgeon, op. cit., n. 100.
115. R Creyke, 'Tribunal Reform: A Commentary', Administrative Law Forum Proceedings 1998, 359 at 367-368 (Creyke 'Tribunal Reform'). See also Osmond v Public Service Board of NSW [1984] 3 NSWLR 447 at 461 per Kirby P.
116. See Creyke 'Tribunal Reform', op. cit., n. 115, p. 368; Bacon, op. cit., n. 113, p. 72.
117. Better Decisions, op. cit. n. 21, p. 77.
118. Leon, op. cit., n. 100, p. 354.
119. Better Decisions, op. cit. n. 21, p. 72.
120. See P Johnston, 'Recent Developments Concerning Tribunals in Australia' (1996) 24 Federal Law Review 323 at 339; Bacon, op. cit., n. 113, p. 74; The Hon. G Brennan, 'The Mechanics of Responsibility in Government' (1999) 58(3) Australian Journal of Public Administration 3 at 7; Creyke 'Tribunal Reform', op. cit., n. 115, p. 365; P Bayne, 'The Proposed Administrative Review Tribunal - Is There A Silver Lining in the Dark Cloud?' (2000) 7 Australian Journal of Administrative Law 86 at 91-95 and 98.
121. Brennan, op. cit., n. 120, p. 7.
122. Johnston, op. cit., n. 120, pp. 328-329. See also O'Connor, op. cit., n. 99, p. 9; Creyke 'Tribunal Reform', op. cit., n. 115, p. 365.
123. Creyke 'Tribunal Reform', op. cit., n. 115, p. 366. This follows the recommendation in Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995), p. 155.
124. Creyke 'Tribunal Reform', op. cit., n. 115, p. 367.
125. See Johnston, op. cit., n. 120, p. 341; McMillan, op. cit., n. 104, p. 72; The Hon. Justice S Kenny, 'Opening Address', Administrative Law Forum Proceedings 1998, p. 11.
126. See Creyke 'What's Happening?', op. cit., n. 103, p. 2.
127. The Hon. Justice S Kenny, 'Opening Address', Administrative Law Forum Proceedings 1998, p. 13.
128. In any case, in 1998 only 32 members of the AAT held tenured positions, and the rest of approximately 400 members of the AAT, SSAT, VRB, MRT and RRT hold fixed term appointments. Leon, op. cit., n. 100, p. 354. See also Creyke 'Tribunal Reform', op. cit., n. 115, p. 360.
129. Former President of the AAT, the Hon. Justice J Mathews, quoted in Brennan, op. cit., n. 120, p. 8. See also Shadow Attorney-General Robert McClelland MP, "Proposed Administrative Review Tribunal is Seriously Flawed", Media statement, 28 June 2000.
130. Better Decisions, op. cit. n. 21, p. 86.
131. Quoted in Bacon, op. cit., n. 113, p. 74.
132. See the Hon. Justice J Matthews, quoted in Brennan, op. cit., n. 120, p. 8; Shadow Attorney-General Robert McClelland MP, "Proposed Administrative Review Tribunal is Seriously Flawed", Media statement, 28 June 2000.
133. Creyke 'Tribunal Reform', op. cit., n. 115, p. 369.
134. Leon, op. cit., n. 100, p. 353.
135. Creyke 'Tribunal Reform', op. cit., n. 115, p. 364.
136. O'Connor, op. cit., n. 99, p. 8.
137. McMillan and Todd, op. cit., n. 101, p. 122.
138. See generally Creyke 'Tribunal Reform', op. cit., n. 115, p. 364; McMillan and Todd, op. cit., n. 101, p. 122; Johnston, op. cit., n. 120, p. 330.
139. Bayne, op. cit., n. 120, p. 91. See also Brennan, op. cit., n. 120, p. 8.
140. Johnston, op. cit., n. 120, p. 329.
141. Johnston, op. cit., n. 120, p. 329; R West, 'Commentary' on P Johnston, 'Recent Developments Concerning Tribunals in Australia' (1996) 24 Federal Law Review 343 at 343.
142. West, op. cit., n. 141, p. 343.
143. S Tongue, Principal Member of the IRT, 'Administrative Review by Other Commonwealth Tribunals' conference paper presented at The AAT - Twenty Years Forward, Canberra, 1-2 July 1996, cited in Johnston, op. cit., n. 120, p. 337; West, op. cit., n. 141, p. 343.
144. Johnston, op. cit., n. 120, p. 329.
145. The Hon. Justice J Matthews, 'Whither (wither!) the Administrative Appeals Tribunal', AIAL Twilight Seminar Address, 5 August 1998, quoted in Bacon, op. cit., n. 113, p. 75. See also Brennan, op. cit., n. 120, p. 9 and Creyke 'Tribunal Reform', op. cit., n. 115, p. 370.
146. President of the Law Council of Australia, Dr G Hughes, Australian Lawyer, pp. 1, 3 (September 2000).
147. Creyke 'Tribunal Reform', op. cit., n. 115, p. 369.
148. O'Connor, op. cit., n. 99, p. 7.
149. The Hon. Justice S Kenny, 'Opening Address', Administrative Law Forum Proceedings 1998, p. 11.
150. Creyke 'What's Happening?', op. cit., n. 103, p. 17. See also the warnings of former Chief Justice Brennan in Brennan, op. cit., n. 120, p. 9.
151. Quoted in Brennan, op. cit., n. 120, p. 7.
152. Bayne, op. cit., n. 120, p. 88.

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