A new system of Federal Administrative Review
12 May 2023
On 12 May 2023, the Law Council lodged a submission to the Attorney-General’s Department in response to an Issues Paper on Administrative Review Reform. The comprehensive Issues Paper set out 67 consultation questions on the design of a new federal administrative review body in the context of the forthcoming abolition of the Administrative Review Tribunal (AAT).
The Law Council’s submission provides responses to each of the consultation questions, emphasising the importance of an administrative review body that is accessible, efficient, and independent. The submission can be found here.
Key points made within the submission include:
- Accessibility, independence and impartiality must underpin all aspects of the new body. The new body must also prioritise rigorous and accurate decision-making, and most importantly, fairness.
- The re-establishment of an adequately funded Administrative Review Council (or similar body) is strongly supported and should aim to be an appropriate mechanism for the facilitation of ongoing, objective and apolitical review of the performance and integrity of Australia’s administrative review system.
- The new body must be properly resourced, with an appropriate number of suitably skilled and qualified members to be able to carry out its functions. A simplification in structure, compared with the existing divisional structure of the AAT, is supported as that would assist in facilitating an efficient and effective merits review body.
- There is a need for increased efforts to achieve simplification, efficiency and better coherence of procedures. In particular, the backlog of migration matters would be reduced if the Codes of Procedure for migration and refugee matters as set out in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) were removed altogether.
- Appointments to the new body must be conducted through a merit-based and transparent process that includes public advertisement, clear and relevant selection criteria, and an independent selection process. Rigorous and transparent procedures should also be applied at the time of reappointment.
- There is a need for certainty and clarity in the length of appointments within any new administrative review body, as well as clearly defined roles and responsibilities to avoid ambiguity in how senior leadership of the body’s administration operates.
- The diversity of the new body’s jurisdiction should be reflected in a diversity of skills, knowledge and lived experience of its members.
- Lodgement processes should be flexible and accessible to all applicants. There is a need for greater consistency in time limitations within which applicants should apply to the new body.
- Application fees should not be excessive and should incorporate meaningful hardship waiver options for applicants. Consideration should be given to harmonising the review application fee across matters, with any application fee being refunded where an application is successful.
- Alternative dispute resolution (ADR) provisions must focus on early resolution, rather than simply creating additional steps for matters that will ultimately end up progressing to a hearing before the review body. There should be a discretion to direct or not direct ADR to occur.
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