Establishing ART – New Merits Review Body

The Australian Government intends to introduce legislation this year to establish a new federal administrative review body known as the Administrative Review Tribunal (ART), which will replace the existing Administrative Appeals Tribunal (AAT). The primary goals of the ART are to be user-centric, efficient, easily accessible, independent, and equitable.

Key Aspects of the Reform:

  1. Implementation of a transparent and merit-based appointment process.
  2. Appointment of additional members to address current backlogs.
  3. Establishment of sustainable funding arrangements.
  4. Adoption of a single, updated case management system to mitigate critical business risks.
  5. Introduction of procedural enhancements and process improvements.
  6. Provision of support services and an emphasis on early conflict resolution when possible.

Public Consultation: On May 12, 2023, the consultation phase concluded on an Issues Paper concerning the fundamental characteristics of the new federal administrative review body. A total of 120 formal submissions and 287 brief survey responses were received in response to the public issues paper.

The government is currently evaluating the matters raised in public submissions, alongside advice from the Administrative Review Expert Advisory Group (Advisory Group), which is chaired by former High Court Justice, the Honorable Patrick Keane AC KC. This evaluation process is part of the development of the draft legislation.

Introduction of Legislation: On September 29, 2023, the government announced several proposed features of the ART. Ongoing work is being carried out to further develop and refine the legislation.

Key features of the legislation to be presented in Parliament will encompass:

  1. Enhanced powers and procedures to enable the ART to respond flexibly to changing caseloads.
  2. A transparent and merit-based selection process for members, informed by the operational needs of the ART.
  3. Clear and well-defined roles and responsibilities for leadership positions within the ART, including the President and Registrar.
  4. A simplified membership structure with explicit qualification requirements and role descriptions for each of the four membership levels: President, Deputy President, Senior Member, and Member.
  5. Expanded powers for the President to oversee the performance, conduct, and professional development of tribunal members.
  6. A user-centered design, featuring simpler and more consistent application processes, a focus on non-adversarial methods for resolving applications, and safeguards to ensure compliance with obligations by representatives.
  7. Clearly defined mechanisms for the ART to identify, escalate, and report systemic issues in administrative decision-making.

Pending the legislative process, the government has proposed that the ART will commence its operations in 2024. A specialized taskforce established within the department is coordinating efforts across the government to implement the reform and ensure a seamless transition to the ART.

Expert Advisory Group: Guiding the overhaul of Australia’s federal administrative review system is an Advisory Group, which includes:

  • Former High Court Justice, the Hon. Patrick Keane AC KC (Chair)
  • Ms. Rachel Amamoo
  • Emeritus Professor Robin Creyke AO
  • Professor Anna Cody
  • Emeritus Professor Ron McCallum AO
  • The Hon. Alan Robertson SC
  • Emeritus Professor Cheryl Saunders AO

Each member brings extensive qualifications and experience to the advisory group, which is focused on delivering a new, trusted federal administrative review body that serves the interests of the Australian community.

Appointments: The government has formulated new AAT Appointment Guidelines that outline a transparent and merit-based process for appointing (including reappointing) members.

Information regarding appointments made to the AAT during this reform can be found on the Statutory Appointments page. This page will also provide details about appointment opportunities for the ART as they become available.

Arrangements for AAT Staff: Upon the establishment of the ART, all ongoing and non-ongoing Australian Public Service employees currently employed by the AAT will transition to the ART under equivalent terms and conditions.

The government engaged in consultations with the AAT regarding the design of the ART and will continue to collaborate with the AAT throughout the reform process.

Impact on AAT Cases: All cases currently pending before the AAT will proceed as usual while the reform is in progress. Applicants who have applied to the AAT for a decision review do not need to submit new applications.

Many cases currently before the AAT are expected to be resolved or concluded before the ART becomes operational. Any cases that remain with the AAT at that time will be transferred to the ART upon its commencement.

The jurisdiction of the ART will mirror that of the AAT, encompassing reviews of decisions made under more than 400 Commonwealth Acts and instruments, spanning areas such as child support, workers’ compensation, social security, the NDIS, migration and refugee visas, taxation, security, and veterans’ entitlements.

Applicants will receive prior notice and guidance on transitioning their cases, eliminating the need to submit new applications for review in these cases.

Written by Ross Ahmadzai

2 Oct, 2023

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