THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
SPEECH
INAUGURAL CEREMONIAL SITTING OF THE ADMINISTRATIVE REVIEW TRIBUNAL
COMMONWEALTH LAW COURTS, MELBOURNE
I begin by acknowledging the traditional owners of the ancestral lands on which we gather today, the Wurundjeri Woiwurrung and Bunurong / Boon Wurrung Peoples of the Kulin Nation. I pay my respects to their elders past and present, and I extend that respect to Aboriginal or Torres Strait Islander persons here with us.
I’d also like to acknowledge:
- The Hon Debra Mortimer, Chief Justice of the Federal Court of Australia
- The Hon William Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia
- The Hon Anne Ferguson, Chief Justice of the Supreme Court of Victoria
- The Hon Justice Emilios Kyrou AO, President of the Administrative Review Tribunal, as well as deputy presidents and other members
- Other judges and former judges
- Former Presidents of the AAT, the Hon Garry Downes AM and the Hon Duncan Kerr Chev LC SC, along with presidents of state civil and administrative tribunals
- Representatives of the profession
- Members of the Expert Advisory Group
INTRODUCTION
On 16 December 2022, I announced that the Albanese Government would abolish the Administrative Appeals Tribunal and replace it with a new administrative review body that better serves the interests of the Australian community.
Today we gather to inaugurate that new body – the Administrative Review Tribunal – and deliver on our promise to restore trust and confidence in the review of government decisions.
We also mark the most significant institutional reform to Australia’s system of administrative review in almost half a century.
Today is a major milestone for the entire Australian community, for the tens of thousands of people who, every year, access independent merits review of government decisions. These decisions can affect any of us – our friends, colleagues and family members – and concern significant and life-changing matters like eligibility for an age pension, NDIS funding, or whether someone can study, work or live permanently in Australia.
Gerard Brennan, inaugural President, said the AAT was:
charged with the responsibility of blowing the winds of legal orthodoxy through the corridors of administrative power.
It was, he said:
intended not only to give better administrative justice in individual cases but also to secure an improvement in primary administrative decision-making.
This new Tribunal will build on these foundational principles. Like its predecessor, it will provide an independent mechanism of review – but the way it does so will be more efficient and accessible than ever before.
Today, Australians are getting the Tribunal they deserve – one that is user-focused, efficient, accessible, independent and fair.
THE FOUNDATIONAL PRINCIPLES OF ADMINISTRATIVE REVIEW
To understand the future of administrative review, we must first look to the past. The 1960s and 70s in Australia saw rapid social change, with the Commonwealth government expanding its role into education, healthcare and social security. Increasingly, government decision-makers were required to exercise discretionary authority over matters that would directly affect peoples’ lives. Mounting expectations were placed on decision-makers and public servants to act with transparency and integrity, and be accountable to the Australian public for their decisions.
To quote the Kerr Committee – whose 1971 report formed the basis for the design of the AAT:
[w]e accept that the administration must, in the modern community, bear the burden of power and duty thrust upon it by circumstances and the legislature. There must, however, … be a concomitant acceptance of responsibility to correct administrative error and the improper exercise of administrative power.
It was the Whitlam and Fraser governments who gave Australia its modern system of administrative law, through their bipartisan commitment to a mechanism for review of government decisions. Until that time, the only avenue to appeal government decisions was review by courts for error of law. As we know, the wheels of justice move slowly and sometimes at great expense. Merits review was the answer. Gerard Brennan described it as:
a brilliant solution… to the problems of the rapid expansion of administrative decision-making in a complex society.
Simply put, where courts judge a decision solely on a question of law, administrative review permitted scrutiny on the basis of merit – was the decision correct and preferable?
Importantly, merits review placed the means to challenge government decisions within the reach of all Australians, and not just those with the time and resources to go to court. It was a ground-breaking innovation, which has been copied and adapted across all States and Territories.
These foundational principles of administrative review have not changed. The core objective of ensuring that government reaches decisions that are correct and preferable is, and remains, the goal.
THE ART ACT 2024 AND THE NEW ADMINISTRATIVE REVIEW TRIBUNAL
A key challenge for the future of Australia will be public administration that meets the needs of its growing and diversifying population – now double what it was when the AAT was founded in 1976 – and the increased scale and complexity of its work, given the new Tribunal has jurisdiction to consider decisions made under more than 400 diverse Acts of the Commonwealth Parliament.
Through the reform process, we heard about the importance of accessibility for people with disability, people for whom English was not their first language, people experiencing hardship, and people not versed in the intricacies of administrative law. While the creation of the AAT in 1976 was a significant step forward, in 2024, we must go further. We must ensure that all people can come to the Tribunal, tell their story and receive a just decision.
The Administrative Review Tribunal Act 2024 establishes a unified, cohesive and accessible institution that I believe will meet the needs and expectations of current and future generations.
It has been said that tribunals are the “face of justice” – which is why it is so important that accessibility is enshrined in the Administrative Review Tribunal. The Act requires that, as far as practicable, the Tribunal must conduct each proceeding in a way that is accessible to those before it. This will require the Tribunal to consider each party, their circumstances and what support they need to meaningfully apply for and participate in a review – whether that be an interpreter, physical accessibility arrangements, a litigation supporter, virtual hearings or other adaptation to procedure.
The right of individuals to access review is at the core of this reform, but to truly realise those rights, the Tribunal must be nimble – in form and in practice. To this end, the Tribunal has a sustainable, demand-driven funding arrangement to support timely decision making across all Tribunal jurisdictions. This will guard against delays and help avoid increases to backlogs, which leave people waiting and frustrate staff and members. Member effort and other resources can now be allocated more flexibly, ensuring they are placed where the need is greatest.
The legislation provides enhancements to support timely, informal and inexpensive decision-making, such as by allowing the Tribunal to resolve certain matters without the participation of the original decision maker, and the opposite – ordering them to participate if considered necessary.
To support transparency and integrity in government decision making, the Tribunal has several self-monitoring and self-improvement mechanisms that will also guide government agencies to improve their internal decision-making.
Time and again, we have heard from those hurt by errors in government decision making: ‘I don’t want this to happen to anyone else’. Time and again, Tribunal members have said that they want their decisions to contribute to systemic improvement. We now have the means to make it happen.
Nearly a decade after it was dismantled by the former Government, the Administrative Review Council is being reinstated to monitor the integrity of the system, inquire into and report on challenges, and support education for officials. This will give the Tribunal and the broader system a mechanism for expert, independent oversight.
The Tribunal features a guidance and appeals panel to which the President can refer matters that raise significant issues, either on their own motion or by application.
In addition, the powers and obligations of the President include informing relevant Ministers, entities and the Administrative Review Council of any systemic issues related to the making of reviewable decisions in the caseload of the Tribunal.
The Tribunal is required to publish decisions of the guidance and appeals panel, and any other decisions that raise significant issues of law or have major implications for public administration. The findings of the Robodebt Royal Commission demonstrate why this matters.
All together, these mechanisms will work to identify issues in the system quickly, and rectify them before they become entrenched.
This is good policy. It allows government to fulfil its promise to the Australian people. When you make the effort to apply for review, and the Tribunal finds that a mistake has been made, we now have the means to extend the benefit to others just like you.
TRANSPARENT AND MERIT-BASED APPOINTMENTS
At the heart of the Tribunal is its membership. As Deputy President Britten-Jones distilled in 2021, Tribunal members have three essential roles
- to make decisions
- to provide access to justice for those affected by administrative decisions, and
- to improve the quality of, and instil greater public confidence in, public administration.
The reputation of Australia’s administrative review system relies on the quality and conduct of the Tribunal’s members. Each member makes decisions in the knowledge that each one affects the life of someone in our community. Public confidence relies on that role being carried out independently and impartially.
Appointment of non-judicial members through a transparent and merit-based selection process is a central feature of the new Tribunal.
The Tribunal starts today with more than 360 foundational members. The President, Chief Executive Officer and Principal Registrar, and every non-judicial member have been assessed as suitable for appointment following a thorough and publicly advertised process where any appropriately qualified person could apply. This undertaking represents one of the largest statutory appointment processes ever conducted in Australia.
A great responsibility rests on members, but it is also the government’s responsibility to ensure that the very best, the brightest, the most qualified and most committed of our community are appointed.
The quality of the foundational membership bears out the success of our reform in this regard. I congratulate you all, both new members and those continuing from the AAT, on your appointment to the Administrative Review Tribunal.
A SHARED REFORM
Development of this reform would not have been possible without guidance provided by the Administrative Review Expert Advisory Group, chaired by former High Court judge, the Honourable Patrick Keane AC KC. I thank the Advisory Group for dedicating its wisdom and expertise to this process.
I also thank staff in the Attorney-General’s Department, and in particular the Administrative Review Taskforce, led by Sara Samios, for their hard work delivering this reform.
The reform benefited enormously from insights of AAT users, AAT staff and members, peak bodies, legal professional bodies, legal assistance providers, academics, Commonwealth departments, and other justice institutions. In particular, I thank the Law Council of Australia for its contribution.
The reform implements several recommendations from recent reports and inquiries, including all three recommendations from the Senate inquiry into the performance and integrity of Australia's administrative review system, and four recommendations from the Robodebt Royal Commission.
The legislation establishing the Tribunal received parliamentary scrutiny from no less than four committees. Like the consultation before it, the parliamentary process shaped the Tribunal that we see before us today.
I thank the inaugural ART President, the Honourable Justice Emilios Kyrou AO for his leadership during the transition period. His Honour is a remarkable jurist and leader and I can think of no better person to be taking on this momentous role. Just as the AAT was soundly served by its first President, Gerard Brennan, the ART will be wonderfully well served by Justice Kyrou.
I also thank inaugural Chief Executive Officer and Principal Registrar of the ART, Mr Michael Hawkins AM, for his dedication to ensuring Tribunal members and staff have been supported during the transition period.
Finally, I recognise the enormous, ongoing contribution made by staff of the AAT. As I have said before, the abolition of the AAT does not reflect in any way on the quality and commitment of its staff. I have met with many of you during my visits to registries as part of this reform, and I look forward to continuing to hear from you as the Tribunal begins its work.
I wish you – President, Principal Registrar, the foundational membership and the staff of the Tribunal – the very best on your first day in your new roles and for the future.
Before I leave you with some concluding remarks, I want to emphasise that the work of reform is never finished. The Tribunal, the Administrative Review Council, my department, the broader public service, and the Government must remain committed to ensuring the promise of the reform is delivered.
CONCLUSION
As I’ve said over the course of this reform, a strong, user-focused administrative review body is critical to protecting the rights and interests of individuals, particularly the most vulnerable members of our community.
The new ART will have a visible impact on the lives of tens of thousands of people every year. It will deliver merits review fit for the 21st century and, together with the Administrative Review Council, will have a systemic effect on the quality and efficiency of government decision-making for the benefit of the whole community.
I am proud of the road we have travelled together to deliver what I hope will be acknowledged as one of the most important institutional reforms to both justice and public administration in decades.
Today we bid farewell to the AAT but not to the core principles it was founded on nearly half a century ago.
We enter a new era of administrative review that is fit to serve us for decades to come.
When it comes to the quality of administrative decisions, we owe the Australian community not the bare minimum, but our very best. That is the legacy of the administrative law reforms of the 1970s, and it is the vision for the new Administrative Review Tribunal – one that is user-focused, efficient, accessible, independent and fair.
Thank you.
Monday, 14 October 2024
