Overview Administrative Review Tribunal legislation

The 3 Acts that establish the ART came into effect on 14 October 2024:

The legislation implements:

Administrative Review Tribunal Act 2024

The ART Act establishes a unified, cohesive Tribunal with flexible powers and procedures to best meet the needs of applicants. The Tribunal plays a vital role in protecting the rights and interests of the members of our community, and in ensuring that the government and public service act within the bounds of the law.

The Tribunal is required to pursue the objective of providing administrative review that:

  • is fair and just
  • resolves applications in a timely manner, with as little formality and expense as is consistent with reaching the correct or preferable decision
  • is accessible and responsive to the diverse needs of parties
  • improves the transparency and quality of government decision-making
  • promotes public trust and confidence in the Tribunal.

The Acts provide for a mechanism of review that is fair and just, and incorporates core features of merits review, expressed for a contemporary context.

The ART Act includes general principles relating to proceedings to ensure they are fair and just, including that:

  • the Tribunal has discretion in how it runs a proceeding (subject to the legislation and the rules)
  • the Tribunal must operate with as little formality and technicality as is appropriate
  • proceedings must, as far as practicable, be accessible for parties to a proceeding
  • the Tribunal is not bound by the rules of evidence but may inform itself on any matter in any manner it considers appropriate
  • the Tribunal may determine the scope of the review
  • the Tribunal may exercise the powers of the decision maker
  • the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case.

The ART Act equips the Tribunal with powers and functions to support it to resolve applications in a timely manner, with as little formality and expense as is consistent with reaching the correct or preferable decision. This includes:

  • a new structure that harmonises procedures in the different jurisdictions of the Tribunal, and provides for more flexible allocation of resources
  • powers to give directions about the Tribunal's procedures and consequences for failure to comply with them
  • circumstances where a matter can be resolved without a hearing
  • the ability for an agency party to elect not to participate in the proceeding, and powers for the Tribunal to order them to participate if necessary
  • powers to refer matters to dispute resolution and to make decisions by agreement of the parties
  • the ability for certain powers and functions to be performed by authorised persons within the Tribunal, with appropriate safeguards.

The Tribunal engages with a broad range of people who may require additional, tailored support to meaningfully participate in Tribunal processes. This may include, for example, people with disability and people who do not speak English as a first language (or at all).

In the ART Act, ‘accessible' means enabling people to apply for review and participate effectively in proceedings. This may involve the Tribunal making appropriate adjustments to facilities, technology or access to information.

Powers and functions to support this include:

  • the ability for the Tribunal to appoint a litigation supporter for a party to a proceeding in appropriate circumstances
  • the obligation to appoint an interpreter in certain circumstances
  • the ability for the President of the Tribunal to make practice directions to promote accessibility and responsiveness to users.

The ART Act establishes the Administrative Review Council to:

  • monitor the integrity of the Commonwealth administrative review system
  • inquire into and report on systemic challenges in administrative law
  • support relevant education and training for Commonwealth officials.

The ART Act also establishes a guidance and appeals panel within the Tribunal. The guidance and appeals panel provides a mechanism for escalating significant issues and addressing material errors in Tribunal decisions. This will promote consistent Tribunal decision making and rapid responses to emerging issues.

The ART Act provides the Tribunal with powers and functions that support it to promote transparent and high-quality government decision-making, including:

  • requirements for jurisdictional area leaders to identify systemic issues identified in administrative reviews
  • an explicit function for the President to inform ministers and the Administrative Review Council of systemic issues, and a requirement for ministers and Commonwealth entities to inform the Council of actions taken in relation to those issues
  • scope to publish Tribunal decisions generally, and an obligation to publish decisions of the guidance and appeals panel and any other decision that raises significant issues of law or have major implications for Commonwealth policy.

The ART Act enshrines a transparent and merit-based selection process for members, who are responsible for making the Tribunal’s decisions. This is an important reform to ensure independent and high-quality decision making within the Tribunal.

Other elements of the ART Act that recognise the importance of public trust and confidence in the Tribunal include:

  • the requirement for the President to make a publicly-available member code of conduct and performance standard
  • the ability for the President to direct members, investigate conduct and temporarily restrict a member's duties if there is a performance or conduct concern
  • the ability for the Governor-General to terminate a member's appointment for breaches the code of conduct, performance standard, serious misconduct or conviction of an indictable offence
  • clear roles and qualification requirements for senior leadership of the Tribunal, including requirements to consider stakeholder feedback in advising the President on key decisions
  • requirements for disclosing, avoiding and managing conflicts of interest
  • the opportunity to refer Tribunal decisions to the guidance and appeals panel if there may have been a material error
  • enhanced requirements for reporting on how the Tribunal is meeting its objective.

Under the ART Act, the Tribunal has 4 levels of membership:

  • President
  • Deputy President (Judicial and Non-Judicial)
  • Senior Member
  • General Member.

The President is supported by a CEO and Principal Registrar, as the head of the APS agency. The President and Principal Registrar also receive advice and support through a Tribunal Advisory Committee consisting of key senior leaders in the Tribunal.

The Tribunal is made up of 8 jurisdictional areas, each led by a jurisdictional area leader who is the President or a Deputy President, in the following jurisdictions:

  • General
  • Intelligence and Security
  • Migration
  • National Disability Insurance Scheme
  • Protection
  • Social Security
  • Taxation and Business
  • Veterans' and Workers' Compensation.

The President may establish lists within each jurisdictional area, led by a Deputy President or Senior Member, to focus expertise on particular types of applications.

Consequential Act 1

The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1) repeals the Administrative Appeals Tribunal Act 1975 (AAT Act). It makes consequential amendments to 138 Commonwealth Acts, covering the majority of the Tribunal's caseload.

The Act amends legislation relating to reviews of taxation and charity, social security, the National Disability Insurance Scheme, migration, veterans' entitlements and security and intelligence decisions to ensure they are fit for purpose.

Through significant reforms to the Migration Act, the Consequential Act 1 assists to reduce delays and backlogs in migration and refugee matters, increases fairness, and supports the integrity of the migration system.

Additionally, Consequential Act 1:

  • retains a range of existing rules for Tribunal reviews of taxation and charity matters
  • abolishes the Immigration Assessment Authority and harmonises provisions relating to reviews of migration and refugee decisions, providing a broader suite of tools for the efficient and effective resolution of these matters.
  • provides an informal, accessible, trauma-informed and quick form of review of social security and child support decisions, with triage arrangements to ensure matters are resolved according to their complexity, and consideration given to whether the decision-maker's participation will assist a matter's effective and efficient resolution
  • makes consequential amendments to social services legislation to support Part 5A of the ART Act, which provides for second reviews of social security and child support decisions
  • continues existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent, effective approaches
  • maintains merits review in 2 separate bodies as a unique feature of veterans' entitlement law, with matters reviewed in the Veterans' Review Board continuing to also be appealable to the Tribunal
  • promotes consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Act.

Consequential Act 1 also contains measures that enabled the transition from the AAT to the new Tribunal. This includes transitioning the Tribunal's active, pending and potential caseloads, including matters before the courts, to minimise disruption and to maintain review rights.

Consequential Act 2

The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Consequential Act 2) makes consequential amendments to 110 Commonwealth Acts that interact with the AAT Act to ensure continuity for the Tribunal and its users.

The changes in the Act are mainly technical amendments that ensure consistent terminology, concepts, structure and other policy settings. The changes also ensure that the new Tribunal has the same jurisdiction as the AAT had, and that various provisions operate in substantively the same way as they have operated in the AAT.

Additionally, Consequential Act 2:

  • harmonises and streamlines provisions where appropriate, to better support users, and improves predictability in how matters progress through the Tribunal
  • reduces the complexity of the Tribunal's operating environment, with more scope for shared technology, forms, staff and member resources
  • removes the administrative review pathway for preventative detention order (PDO) decisions, so that review of those decisions remains within the purview of the courts
  • extends external merits review to decisions under the Australian Citizenship Act 2007 to not give a person evidence of their Australian citizenship
  • makes minor amendments to 14 Commonwealth Acts which are subject to requirements for the Commonwealth to consult with, or seek the agreement of, the states and territories before introducing amendments into Parliament.

Administrative Review Tribunal (Miscellaneous Measures) Bill 2024

On 21 August 2024, the Miscellaneous Measures Bill was introduced into the Parliament as the final legislative element of the reform. The Bill is before the Senate Committee on Legal and Constitutional Affairs, for inquiry and report by 31 October 2024.

The Bill completes the establishment of the ART and ensures that existing legislation interacts effectively with it. These amendments, which are largely procedural and technical, will amend 52 Commonwealth Acts, including the ART Act.

ART Rules and Regulations

ART Regulations

The ART Regulations are the subordinate legislation to support the operation of the ART Act and the transition to the ART.

The Administrative Review Tribunal Regulations 2024 (ART Regulations) were tabled in Parliament on 19 September 2024.

The ART Regulations contain detailed requirements for the transparent and merit-based appointment of non-judicial members to the ART and set out comprehensive arrangements for the assessment process. These  include:

  • requiring public advertising of roles
  • the selection criteria to be considered for each role
  • steps that an assessment panel must take before assessing an applicant as suitable for appointment (such as considering the person’s application, conducting an interview, and seeking referee reports)
  • matters that must be included in an assessment panel’s report.

The ART Regulations also contain robust safeguards to protect the integrity of the assessment process. These safeguards include 

  • publication of a list of panellists following the conclusion of an assessment process
  • explicitly stating that panel members are not subject to direction by the Minister
  • prohibiting a person who is employed under the Members of Parliament (Staff) Act 1984 from being nominated as a panellist
  • a clear process for disclosing and managing conflicts of interest in assessment processes.

ART Rules

Under the ART Act, the minister may make rules prescribing matters required or permitted to be prescribed in the rules, or necessary (or convenient) to be prescribed for carrying out or giving effect to the ART Act.

The Administrative Review Tribunal Rules 2024 (ART Rules) were tabled in Parliament on 8 October and came into effect on 14 October 2024. They deal with:

  • timeframes for making applications to the Tribunal
  • application fees
  • witness fees and allowances
  • election and participation notices
  • decisions that cannot be appealed to the guidance and appeals panel
  • authorisations for members, registrars and staff to exercise Tribunal powers and functions
  • matters which should generally be included in notices of administrative decisions and review rights.

ART Transitional Rules

The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Transitional Rules) were made on 10 October 2024, and came into effect on 14 October 2024. The Transitional Rules deal with:

  • preserving the AAT’s Enterprise Agreement so that it applies to staff of the ART
  • making practice directions, establishing lists and assigning jurisdictional area leader immediately following the ART’s commencement
  • ensuring timeframes for making an application (between the previous law and new law) are clear
  • appeals and applications to the courts from decisions of the Immigration Assessment Authority (IAA) after it is abolished, and
  • modifying the timeframes for making an application for a review of a reviewable migration and reviewable protection decision for 6 months after commencement, so that individuals in immigration detention have 7 working days to lodge their application.

Consequential amendments to regulations and ordinances

On 10 October, the Governor-General made the following legislative instruments:

  • Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024
  • Jervis Bay Territory Legislation Amendment (Administrative Review Tribunal and Other Matters) Ordinance 2024,
  • Heard Island and McDonald Islands Legislation Amendment (Administrative Review Tribunal) Ordinance 2024
  • Cocos (Keeling) Islands Motor Vehicle (Third Party Insurance) Legislation Amendment (Administrative Review Tribunal) Ordinance 2024
  • Christmas Island Motor Vehicle (Third Party Insurance) Legislation Amendment (Administrative Review Tribunal) Ordinance 2024
  • Australian Antarctic Territory Weapons Amendment (Administrative Review Tribunal) Ordinance 2024

These instruments amend 99 Commonwealth regulations and ordinances to update references to the AAT and the AAT Act. These instruments ensure that legislative instruments reflect the terminology, concepts, structure and other policy settings in the ART Act, and that legal frameworks continue to apply as intended.