Moira Coombs
As part of the Budget, the Government announced its intention to amalgamate the Commonwealth’s merits review tribunals, noting:
The reforms will remove unnecessary layers of bureaucracy and deliver an improved and simplified merits review system for all Australians.[1]
This decision implements recommendation 54 of the National Commission of Audit report.[2] The tribunals that will merge are the Administrative Appeals Tribunal (AAT), Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT), Social Security Appeals Tribunal (SSAT) and the Classification Review Board. The merits review of freedom of information matters, which is currently the responsibility of the Office of the Information Commissioner, will transfer to the AAT from 1 January 2015.[3] Legislative change will be required to implement the proposal.
The Veterans’ Review Board (VRB) was not included in the Commission of Audit’s recommendation as the Commission considered that the Board operates essentially as a division of the Department of Veterans’ Affairs and focuses on defence-related matters.[4]
The Attorney-General points to the ‘states and territories which now have established similar ‘super tribunals’ for merits review, with considerable success’.[5]
It is expected that this measure will save $20.2 million over four years.
The idea of streamlining the merits review structure was first raised by the Administrative Review Council (ARC) in its report Better Decisions: Review of Commonwealth Merits Review Tribunals in 1995. The report recommended the unification of the Veterans’ Review Board, the SSAT, Immigration Review Tribunal, the RRT and the AAT into one body called the Administrative Review Tribunal (ART). The Council took the view that this would:
… achieve[s] greater perceived and actual independence, improvements in agency decision making, and improved accessibility and economic efficiencies.[6]
Agreeing with the recommendation of the ARC, the then Coalition Government introduced two Bills: the Administrative Review Tribunal Bill 2000[7] and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000.[8] These Bills would have replaced the AAT, the SSAT, the MRT and the RRT with the ART, but failed to pass the Senate as they did not receive the support of Labor and the Democrats.
The Bills were considered by the Senate Standing Committee on Legal and Constitutional Affairs, which noted the concerns that had been raised in submissions to the Committee about the proposal’s potential adverse impact on the quality of administrative review:
In particular, it has been claimed that the anticipated efficiencies and cost savings will be gained at the expense of:
• Lack of independence of the proposed ART from government agencies
• Loss of multi-member/multi skilled review panels
• Reduced quality of review
• Loss of two-tier external review
• Reduced procedural fairness, and
• Restriction on consumer representation despite increased participation of government agencies.[9]
In 2012 Stephen Skehill conducted a strategic review to assess small and medium agencies in the Attorney-General’s portfolio, and federal courts and tribunals, with reference to the Expenditure Principles. The review was to advise on a range of options for improving the value for money for the Government in terms of the discharge of the functions of the bodies being considered, and accountable and transparent decision-making.[10] The Review recommended that the ARC proposal for tribunal amalgamation be endorsed as the desired end‑state and to extend that proposal to all Commonwealth merits review bodies. However, the Review did not consider that it would be appropriate to attempt to arrive at that end-state at that time, due to the expected costs of setting up the new ART; that implementing the reforms could be protracted and politically difficult with expected opposition from key stakeholders; and that access to second tier review could be compromised.[11]
The then Attorney-General, Nicola Roxon, did not support the recommendation to endorse the ART as a preferred longer-term outcome, but supported a recommendation to establish a forum encompassing the five Commonwealth merits review tribunals, with the aim of encouraging the tribunals to identify initiatives that could result in increased efficiencies across the group.[12] This resulted in the establishment of the Commonwealth Tribunals Collaborative Forum.[13]
[1]. G Brandis (Attorney-General), Streamlined arrangements for external merits review, media release, 13 May 2014, accessed 21 May 2014.
[2]. National Commission of Audit, Towards responsible government: phase one, February 2014, p. lxii, accessed 21 May 2014.
[3]. MA Neilsen, ‘Law and Justice: Commissions’, Budget review 2014–15, Research paper, 2013–14, Parliamentary Library, Canberra, 2014.
[4]. National Commission of Audit, Towards responsible government: phase one, op. cit., p. 212. However, the VRB does not operate as part of the Department. It is an independent merits review Tribunal. For administrative purposes it is included as a sub-program in the Department of Veterans’ Affairs, but it is still an independent statutory authority with the Minister having no statutory power of direction over the VRB. See: Veterans’ Review Board, Annual report 2012–13, 2013, p. 6, accessed 21 May 2014.
[5]. G Brandis (Attorney-General), op. cit.
[6]. Administrative Review Council, Better decisions: review of Commonwealth merits review tribunals, report, 39, 1995, p. 137.
[7]. Parliament of Australia, ‘Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 homepage’, Australian Parliament website, accessed 19 May 2014.
[8]. Parliament of Australia, ‘Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 homepage’, Australian Parliament website, accessed 19 May 2014.
[9]. Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the provisions of the Administrative Review Tribunal Bill 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000, The Senate, Canberra, February 2001, p. 21, accessed 23 May 2014.
[10]. S Skehill, Strategic review of small and medium agencies in the Attorney-General’s Portfolio: report to the Australian Government, (Skehill Review), Department of Finance and Deregulation, January 2012, accessed 21 May 2014.
[11]. Ibid., p. 91.
[12]. N Roxon (Attorney-General), Review of Attorney-General Portfolio Agencies released, media release, 8 June 2012.
[13]. Administrative Appeals Tribunal, Annual report 2012–13, 2013, p. 3, accessed 19 May 2014.
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