MIL-OSI Australia: Landmark administrative review reforms pass the House

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Source: Australian Executive Government Ministers

Legislation to reform Australia’s system of administrative review has passed the House of Representatives with additional enhancements to strengthen the new Administrative Review Tribunal (ART) and its merits-based appointment process.

The Bills that passed the House of Representatives today would abolish the Administrative Appeals Tribunal (AAT) and replace it with a new and much improved ART.

An effective administrative review system is essential for the tens of thousands of people who seek independent review of government decisions each year – decisions that have major and sometimes life-altering impacts on their lives.

With the Administrative Review Tribunal Bill 2023, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2023, the Government is seeking to restore trust and confidence in Australia’s system of administrative review.

The Bills establish a new Tribunal with the objective of providing independent administrative review that:

  • is fair and just
  • resolves applications in a timely manner, and 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 ART.

Key features of the Bills that promote these objectives include:

  • a transparent merit-based appointment process for members
  • simpler and more consistent processes
  • a focus on non-adversarial approaches to resolving applications
  • a new guidance and appeals panel for identifying and escalating systemic issues
  • giving the President a function of engaging with civil society on the performance of the ART’s functions, to ensure that users’ voices and interests are heard directly by the most senior leaders in the ART
  • powers for the President to manage the performance, conduct and professional development of members.

The Bills also implement a number of recommendations of the Robodebt Royal Commission, including the re-establishment of the Administrative Review Council.

These reforms will also reduce delays and backlogs in migration and refugee matters and enhance the integrity of the migration system.

Government amendments

The Bills passed by the House of Representatives have been made stronger through the introduction of Government amendments.

In developing these amendments the Government has listened to the feedback from stakeholders, the report of the House of Representatives Standing Committee on Social Policy and Legal Affairs and Members of Parliament.

These amendments:

  • strengthen the ART Bill’s already robust appointment provisions by clarifying that the government of the day must appoint and use assessment panels before appointing members to the ART
  • retain a right to two-tier review for social services decisions where it already exists, maintaining the quick, informal and non-adversarial initial reviews that play an important role in the current system
  • require a statutory review to be commenced in five years, providing a holistic examination of the new system and complementing the ongoing role of the re-established Administrative Review Council
  • allow migration and protection applicants to seek legal or financial assistance where a case is referred to the ART’s Guidance and Appeals Panel
  • change the term ‘litigation guardian’ to ‘litigation supporter’ to more clearly reflect supported decision-making.

These Bills have been informed by significant consultation, including guidance from an Expert Advisory Group led by former High Court Justice, the Honourable Patrick Keane AC KC, and engagement over many months with AAT staff and members, AAT users, peak bodies, legal assistance providers, advocates and other experts.

The Albanese Labor Government’s administrative review Bills deliver vital reform that will have a real and lasting benefit for the lives of thousands of Australians.

More information about this significant reform can be found on the Attorney-General’s Department website.

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