The Administrative Review Tribunal – What to expect from the ‘new AAT’

Veronica Williams – Senior Lawyer, Economic Justice Australia

From 14 October 2024 the Administrative Appeals Tribunal (AAT) will cease operations, and the Administrative Review Tribunal (ART) will broadly take over the functions it has been performing. We’ve been active during the consultation processes for this new body, and we’d like to share some thoughts about what might be different for community lawyers working in this space – and what might remain the same, particularly with regards to social security.

About Economic Justice Australia

Economic Justice Australia (EJA) is the peak organisation for community legal centres providing specialist advice to people on their social security issues and rights. EJA’s members across Australia have provided people with free and independent information, advice, education and representation in the area of social security for over 30 years.

Background

In December 2022 the Federal Government announced the AAT would be abolished, citing an ever-increasing degree of political appointments that have led to the perception the tribunal lacks relevant expertise and/or is politically biased. The idea was to scrap the current body and rebuild it from the ground up — and importantly, to introduce much stricter rules around the appointment of members, based on merit rather than political affiliation.

A rebuild is a prime opportunity to make improvements, which is what we have been most concerned with during the relevant consultation processes. We’ll talk about a few of these below.

Increased internal management of tribunal business

One of the bigger changes is in how the ART manages its business, and who has the power to do that. The AAT was organised into ‘divisions’ based on the subject and relevant legislation which applied to a matter. For example, the Social Services and Child Support Division or the Migration and Refugee Division. Each division, while still part of the overall tribunal, was relatively siloed. Appointments of members were made by the Attorney-General and members couldn’t easily move between divisions.

The ART will instead use a ‘lists’ model, with the power to manage those lists vested in the President. This should lead to more flexibility and better outcomes, in that members can more easily be assigned to appropriate matters or lists based on expertise and capacity.

Another internal management change is the increased role for registrars. Registrars in the ART will have the ability to, amongst other things:

  • conduct directions hearings
  • make decisions by consent
  • dismiss certain matters by consent or where there is no jurisdiction to review
  • extend time for requesting a review.

This expanded role is intended to shift what are essentially administrative matters away from members to free up their time for hearing contested matters. We’re hopeful this will lead to faster and better decisions for clients.

Code of Conduct and Standard of Performance

The new ART will feature both a Code of Conduct and a Standard of Performance for members. While we have not had an opportunity to review either of these documents at this time, we understand from the legislation these will be more than aspirational goals and will include provisions for sanctions – including termination of members – in some circumstances. Our member centres regularly tell us about clients having bad experiences with AAT members so a framework within which this can be addressed is very welcome.

Oversight of administrative decision-making – the GAP and the ARC

Two changes worth mentioning are the return of the Administrative Review Council (ARC) and the introduction of the Guidance and Appeals Panel (GAP). The former was effectively abolished through defunding a few years ago, but now returns to assess the state of administrative review and help guide government early.

The GAP is new, and will provide a further mechanism for merit review after a tribunal decision (where normally a person’s only option would be to go to the Federal Court on a question of law). While this is technically new, it’s important to note that the AAT has used a similar mechanism recently in the social security context.

Social security-specific issues

It’s worth noting that the existing two-tier structure for social security matters in the AAT will be retained within the ART. Those with experience in these appeals will be aware the first tier is often less formal and more accessible, particularly for self-represented parties, and keeping this is something we have strongly advocated for. There are some changes though – for example, it will now be easier for first-tier decisions to be reported, which will hopefully lead to more accountability in government decision-making at a systemic level.

In summary

While we expect the ART to ultimately provide a similar review mechanism to the current AAT, the above changes will hopefully make this more effective and efficient, and will ultimately lead to better outcomes for parties. Having said that, we won’t know for sure until the ART actually commences. We look forward to seeing progress, and to contributing to reviews as they begin to take place.