Administrative Review Tribunal Rules 2024 – Public Consultation

On 23 July 2024, we published a draft of the Administrative Review Tribunal Rules 2024 (Rules) on our website.

The Rules prescribe the following matters, to support the operation of the Administrative Review Tribunal Act 2024 (ART Act):

• timeframes for making applications to the Administrative Review Tribunal (ART)
• matters which decision-makers must have regard to when giving notices of decision
• witness fees and allowances
• election and participation notices
• application fees
• authorisations for registrars and members to perform and exercise certain functions and powers of the Tribunal.

The Rules largely deal with matters previously addressed in the Administrative Appeals Tribunal Act 1975 (AAT Act), the Administrative Appeals Tribunal Regulation 2015 and the Administrative Appeals Tribunal (Code of Practice) Determination 2017, with updates to reflect modern drafting practices. The Rules also deal with new matters under the ART Act that were not previously included in subordinate legislation.

We sought written submissions via the website and met with interested and affected stakeholders to discuss the draft Rules.

We undertook public consultation on the draft Rules from 23 July 2024 to 5 August 2024, and received 14 written submissions from stakeholders.

In August 2024, we also facilitated 3 consultation meetings with approximately 15 key stakeholders to discuss the draft Rules. Separately, we spoke with affected Australian Government departments and agencies and the Administrative Appeals Tribunal. We received feedback from Tribunal users, members of the Tribunal, and organisations with an interest in the administrative review framework. We have published 6 of these submissions, with the authors’ consent. 

The submissions provided feedback on all areas proposed to be covered by the Rules. A summary of the submissions is set out below.

Application fees

Stakeholders supported that the Rules maintain existing application fee exemptions and concessions for matters covered by the Rules. Some stakeholders considered that fee exemptions should apply in a wider range of circumstances.

Authorisations

Stakeholders broadly supported the proposed rules authorising ART members and registrars to exercise the identified Tribunal powers. Some stakeholders expressed concern about the proposed authorisation for registrars to exercise the power under section 359A of the Migration Act, noting its importance to procedural fairness.

Election notices

Stakeholders generally supported the rules concerning election and participation notices. In relation to the factors that the Tribunal may consider when deciding whether to allow a non-participating decision-maker to participate in a proceeding, some stakeholders considered some or all of these factors should be mandatory, rather than discretionary, considerations for the Tribunal.

Notices of decision

Stakeholders welcomed the new requirement for decision-makers to take accessibility considerations into account when giving notices of decision. Some stakeholders considered it would be useful to provide additional detail about how requirements could be met. In addition, some stakeholders suggested that it should be made clearer that a notice of decision should identify not only the timeframe for making an application for review of a decision, but also, where possible, the specific deadline or an explanation of when the timeframe starts.

Timeframes to apply

Stakeholders expressed support for clarity regarding the timeframes to apply to the Tribunal, particularly where an applicant applies to Tribunal to obtain adequate statement of reasons and, due to that application, is out of time to make an application for review of the reviewable decision.

Witness fees

Stakeholders supported the maintenance of provisions concerning witness fees and allowances. However, some stakeholders suggested it could be useful to provide additional information about the circumstances in which the Tribunal may order the Commonwealth to cover another party’s witness fees and allowances.

Other issues

Stakeholders provided input on a range of further issues, including non-publication orders, and additional rules for meeting the costs associated with litigation supporters.

We updated the drafting of the ART Rules in response to stakeholder feedback. For example, we updated the draft Rules so that:

1. registrars could not be authorised to exercise the Tribunal’s power under section 359A of the Migration Act
2. a legislative note explains that a person may apply for an extension of time to make an application for review under section 19 of the ART Act if the timeframe has expired where they have applied for a statement of reasons under section 270 of the Act or an adequate statement of reasons under section 271 of the Act
3. it is clearer that decision-makers should include in notices of decision an explanation of when the timeframe for making a review application begins and ends

Feedback about practical issues or the implementation of the ART Act or ART Regulations was passed on to the ART and other Australian Government agencies, as relevant. Additional explanation was also included in the Explanatory Statement for the Rules in response to issues raised in consultation, for example in relation to accessibility of notices of decision.

The Rules were tabled in the Parliament on 8 October 2024 and came into effect on 14 October 2024, which was the day the new Tribunal commenced. Read a copy of the Rules.

We thank everyone who engaged with this consultation process.