The Administrative Review Tribunal: A promising start
This post is part of AUSPUBLAW's forum discussing the abolition of the Administrative Appeals Tribunal and the proposed Administrative Review Tribunal.
14.03.2024
Administrative lawyers around Australia likely issued a collective—albeit tentative—sigh of collective relief when the government introduced its tribunal reform package into Parliament in 2023. There is a lot to like about the proposed Administrative Review Tribunal (ART). The ART Bill and First Consequential Bill, recently supplemented by the Second Consequential Bill, go a long way towards addressing the most pressing concerns that had prompted plans to abolish the Administrative Appeals Tribunal (AAT). The government has also taken the opportunity in these Bills to mop up a number of other longstanding administrative law bugbears.
While the proposed reforms are largely welcome, it would be surprising if plans on this scale were free of any shortcomings. This post highlights some of the key issues likely to attract attention in the coming months, including in the Senate Committee inquiry that is due to report in late July.
Independence in appointments
Concerns about independence in tribunal appointments has been at the forefront in discussions about the AAT for some years. The issue became a major focal point in 2022 following the publication of a Senate committee interim report recommending abolition of the AAT and two reports from public policy institutes highlighting concerning trends in 'political' appointments (here and here). The Attorney-General announced plans to abolish the ‘irreversibly damaged’ AAT in December 2022, indicating that a ‘central feature’ of its replacement would be a transparent and merit-based appointment process.
The ART Bill gives effect to this intention by making merit-based assessment a precondition to the Minister’s appointment power (cl 205, 207, 208). Before recommending a candidate for appointment, the Minister must be satisfied (cl 205, 207, 208) that the candidate has been:
assessed as suitable for the appointment through an assessment process that:
(i) was merit-based; and
(ii) included public advertising.
The definition of ‘merit-based’ is a relatively good one, providing sufficient guidance on key principles without creating a decision-making straitjacket. It requires a ‘competitive selection’ process that considers the ‘comparative suitability’ of candidates, which must be based on comparing a candidate’s ‘skills, expertise, experience and knowledge’ with those of the job. Importantly, it also requires consideration of the Tribunal’s need for diversity in skills, expertise, knowledge and lived experience (cl 4).
The potential letdown here is a lack of rigour around the assessment process itself. The Minister has a discretionary power to establish an assessment panel (cl 209). Presumably regulations will spell out the manner in which such a panel will manage its assessments, and presumably once a panel is established and operating its assessments would satisfy the Minister of a candidate’s suitability.
The difficulty is that the Bill doesn’t spell out the links between these steps in logic. Evidence given before the relevant House committee suggests legislative drafters have assumed appointment decisions will not generally be made outside the assessment panel process. However, as drafted, there is no legislative requirement for the Minister to establish an assessment panel, and no legislative requirement for the Minister to adopt recommendations made by a panel if one is established. Legislatively speaking, it is possible that the Minister might choose some other in-house method of assessing candidates, so long as the Minister is satisfied that this process is merit-based and publicly advertised. In other words, the current model could support a 'captain’s call' appointment process provided that it was advertised and merit-based.
This risk is not merely an academic thought bubble. In its recent inquiry report on the ART Bill, the House of Representatives Standing Committee on Social Policy and Legal Affairs favoured retaining this element of ministerial discretion to ‘allow some flexibility … to appoint members … who may otherwise be ineligible’ (para 2.184). The missing words in that quote demonstrate that the government proposes to reserve this loophole for good rather than evil (eg to ‘appoint members with valuable lived experience’). However, we cannot guarantee that a future government will be so well-intentioned.
The point is that, whether or not the Minister excels in human resources work, the appearance of independence offered by a statutory assessment panel is an important element of public trust in the ART appointment process. It would be good to see this independence baked into the legislative structure, which is something the House committee ultimately supported in its report (para 2.185). A number of options for achieving that goal are outlined in Kate Chaney MP’s additional comments annexed to the majority report.
Re-establishment of the ARC
Before it was financially gutted in the 2015-16 budget, the Administrative Review Council (ARC) performed a hugely important oversight role in Australia’s system of administrative law. In its lifetime, it published 50 reports on a wide range of administrative law topics, including—somewhat prophetically in light of the Robodebt scandal—a 2004 report warning of the potential dangers of using automated technology in government decision-making. It also issued best practice guides designed to assist primary decision-makers and tribunal members. The ART Bill would see the ARC reformed (Part V). This is of course welcome, but it is worth bearing in mind that the original ARC still exists in zombie form on the statute books. Only strong government commitment to funding can guarantee the new ARC avoids the same fate.
A new Guidance and Appeals Panel
One of the more interesting developments in the ART Bill is the proposed creation of a new 'Guidance and Appeals Panel' (Pt 4-5). The Panel would be a second tier within the Tribunal, constituted by three members (including a presidential member) (cl 41). The President would determine what matters are heard by the Panel through two referral powers:
(a) an own-motion power to refer a matter that ‘raises an issue of significance to administrative decision-making’ where that is ‘appropriate in the interests of justice’, including having regard to the circumstances of the parties (cl 122(b)); and
(b) on application by a party, a power to refer a matter already decided by the Tribunal that ‘raises an issue of significance to administrative decision-making’ or ‘may contain an error of fact or law materially affecting the Tribunal decision’ (cl 128).
Aside from the power to correct material errors by the Tribunal (which is more akin to an appellate function), the Panel’s role in reviewing ‘issues of significance to administrative decision-making’ appears directed at providing a forum to ventilate and address serious and systemic issues in administrative decision-making. Where such issues are identified, one of the President’s functions is to report on and draw these to the attention of government and the ARC (cl 193, 242, 264).
Tasking the Tribunal with a systemic oversight role is a worthy objective, and we can only imagine such a Panel could have proved incredibly valuable in the context of Robodebt. One quibble with this plan is that this oversight function is not really spelled out in the draft legislation. The ART Bill does not go beyond the vague and rather vanilla label of ‘issue of significance’ to define the President’s referral powers. In part, that breadth is a useful way to ensure a wide remit for the types of cases the Panel could consider. However, if one of the important purposes for establishing the Panel is to address potential systemic issues in government administration, why not highlight this in the legislation?
For example, a non-exhaustive definition of ‘issue of significance’ could provide examples of the types of issues that would meet that criteria. That list could refer to some of the ways that systemic issues manifest in government administration, such as patterns of decision-making errors or poor decision-making practices, lack of oversight where power has been delegated or outsourced in problematic ways, the use of error-prone decision-making processes, procedures or tools, or the implementation of a questionable policy. Provided that it is clearly specified to be a non-exhaustive set of examples, such a definition could reinforce that the Panel’s function includes systemic oversight while retaining flexibility to look at other significant issues.
A related difficulty is how these significant and systemic issues will be identified. In part the onus will fall to jurisdictional leaders to raise potential systemic issues in their area with the President (cl 197). A new Tribunal Advisory Committee will also have an oversight function in monitoring ‘trends and patterns’ and ‘systemic issues’ across jurisdictional areas (cl 236).
It will be important that both jurisdictional leaders and the Committee take a robust and proactive approach to these oversight roles, rather than waiting for issues to be escalated by individual tribunal members. This is because many systemic problems may not be visible to individual members on a granular case-by-case review. What appears to be a one-off glitch may in fact be part of a broad pattern of systemic failure that is only visible from a higher vantage point in the administrative decision-making landscape.
It will also be important to ensure that this oversight role encompasses matters that are resolved before reaching a final hearing, as systemic issues may be concealed if a high volume of matters in a particular area are settled before being considered by the Tribunal. Lack of visibility in AAT settlement outcomes has previously proved to be an accountability problem in some high-volume areas, such as review of NDIS decisions. The ART Bill provides some measure of support for an oversight role in matters that do not reach hearing, restricting an agency’s ability to vary or set aside a decision that is under review (cl 31), and involving the Tribunal in the parties’ decisions to withdraw or settle proceedings (cl 96, 103). It will be important that jurisdictional leaders and the Committee take an active role in monitoring patterns appearing in cases resolved by consent.
Guidance decisions
The significance of the new Panel is bolstered by the requirement that other Tribunal members (except judicial members) have regard to ‘Guidance Decisions’ in relevant cases (cl 110). By default, all decisions made by the Panel in ‘issue of significance’ matters are Guidance Decisions, unless the President declares otherwise (cl 109). The intention here appears to be to promote consistency in Tribunal decision-making as well as to provide an early opportunity to offer clear direction on potential systemic problems.
While there might well be benefits to fostering consistency in tribunal decision-making, there are also risks. The requirement to ‘have regard’ to Guidance Decisions is quite different from a binding doctrine of precedent, and the Bill specifies that failure to have regard to a Guidance Decision does not affect the validity of a Tribunal decision (cl 110(3)). However, it is possible that, in practice, individual members may treat Guidance Decisions as binding and might potentially apply them without due regard to the merits of the case. This has proved to be an issue in the UK’s use of country guidance decisions. To reduce this risk, Guidance Decisions should be framed in a non-prescriptive way that leaves ample room for tribunal members to comply with the fundamental requirement to properly consider the individual merits of their matter.
More generally, however, if Guidance Decisions are to serve as a decision-making benchmark, it is imperative that they are made following a fair and transparent process. The Tribunal’s inquisitorial function is quite different from the more limited judicial approach to dispute resolution. Given that Guidance Decisions will have significant implications for non-parties it would seem appropriate that the Tribunal take a broad approach to deciding what evidence and submissions will inform its decision. This could include, for example, allowing expanded opportunities for interest groups and amicus curiae to participate in proceedings (as has been permitted by the UK Upper Tribunal), and receiving a broader range of evidence and submissions than would be usual in a Tribunal proceeding.
Publication of decisions and reasons
The final feature of the reforms I will comment on here is the publication of decisions by the Tribunal. The current AAT legislation includes a permissive power to publish reasons (s 66B). In practice, the AAT’s policy is to routinely publish all its decisions in the majority of jurisdictional areas (and a representative range in other select areas) unless there are reasons not to do so.
The ART Bill would shift to a two-tiered publication strategy: decisions generally may be published, but decisions involving ‘a significant conclusion of law’ or with ‘significant implications for Commonwealth policy’ must be published (cl 113). The government’s intention here is to strengthen transparency and consistency in tribunal decision-making. At first glance the new mandatory requirement to publish important Tribunal decisions seems consistent with that goal. However, by singling out certain decisions as important enough to warrant mandatory publication, this might suggest that it is comparatively less important to publish other less 'significant' decisions.
This two-tiered approach overlooks the fact that transparency in tribunal decision-making is not only important in 'significant' cases. Public access to 'insignificant' decisions can be valuable for a variety of reasons that travel far beyond the immediate relevance of factual or legal analysis recorded in the decision. Access to decisions allows individuals to understand what factors may be considered relevant when heading into to a decision-making process. It allows researchers to analyse data and patterns in tribunal decision-making. And, to pull out the old chestnut, it serves the accountability function of ensuring that justice is not only done, but seen to be done.
There are of course other important aspects of the ART Bills that have not managed to find their way into the short space available in this post, some of which are considered by other contributors to this forum. While none of these reforms are perfect, they offer a good place to start.
Ellen Rock is a Senior Lecturer at the UTS Faculty of Law.
Suggested citation: Ellen Rock, ‘The Administrative Review Tribunal: A promising start’ on AUSPUBLAW (14 March 2024) <https://auspublaw.org/blog/2024/3/the-administrative-review-tribunal-a-promising-start/>