*Check against delivery*
Acknowledgments
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.
