Speech delivered by Justice Emilios Kyrou, President of the Administrative Review Tribunal (ART), in Melbourne on 14 October 2024

The establishment of the ART has been described as a once-in-a-lifetime accomplishment. Many people have worked with incredible diligence and commitment over the past two years to make this day possible. They include staff within the Attorney-General’s office, the members of the Administrative Review Taskforce and other staff of the Attorney-General’s Department, staff within various agencies, and members and staff of the AAT. They are too numerous to acknowledge 
individually. I will simply thank everyone who contributed to make this momentous day a reality. 

The ART will build on the strong foundations established by the AAT in the provision of merits review redress for the community. Merits review of government decisions is now accepted as a fundamental component of our democratic system. Its role extends beyond providing justice for individuals by overturning inappropriate decisions. It also contributes to improvements in administrative decision-making more generally and fosters good government.

This morning, I will focus on three themes relating to the ART: independence, accountability and excellence. 

In my opinion, there are unique features of the ART’s independence which warrant consideration by the courts of whether two concepts that are associated with the AAT should be associated with the ART. They are the concepts that the AAT is part of the administrative continuum in the process of executive decision-making and that the AAT stands in the shoes of the original decision-maker when it performs its functions. These concepts have been used by the courts since the 1980s.

A variant of the expression ‘administrative continuum’ was used by Justice Davies in 1988 in the case of Jebb v Repatriation Commission. His Honour did so in rejecting the proposition that the AAT was required to consider an applicant’s claim on the basis of the circumstances existing at the time the claim was lodged with the department or agency. 

A variant of the metaphor ‘stands in the shoes’ of was used by Justice Smithers in 1980 in dissent in Minister for Immigration and Ethnic Affairs v Pochi. His Honour did so in support of the proposition that the AAT should consider itself as though it was performing the relevant function of the original decision-maker. 

Over time, the metaphor was used to convey that, in reviewing a decision, the AAT had the same powers and discretions as the department or agency which made the decision and was subject to the same legislative constraints. 

Whilst use of the expressions ‘administrative continuum’ and ‘stands in the shoes of’ was motivated by a desire to clarify the scope of the AAT’s functions and powers, it has not assisted in promoting the perception of the AAT’s independence.

The fact that these expressions gained currency in relation to the AAT is not surprising when one has regard to the fact that, at the time the AAT was established, there was less concern about the need for it to be seen as independent from the rest of the executive branch than there is today.

The Kerr Committee in its 1971 Report stated that it did not agree with the UK Committee on Tribunals and Inquiries that ‘complete independence’ was necessary for tribunals or ‘as to the importance of complete physical separation from the premises of the administration.’ The Bland Committee in its 1973 Final Report described review tribunals as ‘an extension of administration.’ 

The AAT Act has never referred to independence. It did not include a statutory objective until 2015, when section 2A was inserted to require the AAT to pursue the objective of providing ‘a mechanism of review’. Section 2A did not describe that mechanism as ‘independent’. An oath of office was not mandated for AAT members until 1982. That oath focused on allegiance to the monarch and required members to ‘faithfully and impartially perform the duties of [their] office’.

By way of contrast, independence from administrative decision-makers has been a primary consideration in the policy documents that have underpinned the establishment of the ART. It is also reflected in the statutory objective of the ART in section 9 of the ART Act. That section requires the ART to pursue the objective of providing an independent mechanism of review. Section 213 of the ART Act provides that members must take an oath of office to ‘well and truly serve the office 
[of member], and do right to all manner of people according to law without fear or favour, affection or ill-will.’ This wording is relevantly identical to the oath taken by Federal Court judges, and is universally associated with judicial independence. 

The independence of members of the ART is fortified by the requirement in the ART Act that members can only be appointed if they have been assessed as suitable through a publicly advertised, merit-based appointment process. There was never an equivalent requirement in the AAT Act. This requirement will assist in fostering public confidence in the ability of ART members to exercise their significant powers to alter government decisions competently, responsibly and 
independently of government.

There is now a symmetry between merit-based appointees to the ART making merit-based administrative review decisions. 

Another important difference between the AAT Act and the ART Act is that the ART Act expressly requires the ART to perform a normative role in its decision-making, whereas such a requirement was absent from the AAT Act.

Apart from these differences between the AAT Act and ART Act, there are other important factors which warrant consideration by the courts of whether the ‘administrative continuum’ and ‘stands in the shoes of’ concepts should be associated with the ART.

Unlike ART members, the majority of federal administrative decision-makers are not statutory office holders and they do not take any form of oath. Most of them do not make decisions as part of an independent statutory mechanism, but as part of the ordinary business of government, and they are subject to government policies and public service rules.

Although administrative decision-makers are required to afford procedural fairness to persons affected by their decisions, the manner in which that obligation is discharged is very different to the manner in which the ART is required to discharge it. 

At the time an administrative decision is made, there are usually only two participants in the process: the department or agency which makes the decision and the person affected by that decision. When an application for review is lodged with the ART, a new process is commenced in which the department or agency and the applicant are the parties to a dispute, and the ART is the independent adjudicator of that dispute.

The statutory objective in section 9 of the ART Act provides that one of the elements of the independent mechanism of review is the promotion of public trust and confidence in the Tribunal. By definition, people who invoke that mechanism feel aggrieved by the decision made by the relevant department or agency. Many of them are vulnerable individuals without legal representation. From their perspective, any notion that the ART is part of a continuum of decision-making by the relevant department or agency might exacerbate their sense of grievance and thus not promote public trust and confidence in the Tribunal.

The ART will take its independence very seriously. A tangible indication of our commitment to independence is our adoption of a new logo. Unlike the AAT’s logo, the ART logo does not include the Commonwealth coat of arms. This should not be seen as tokenistic. Rather, it embodies our desire to convey to applicants who seek review of a government decision that the review will not be conducted by another part of the government by way of internal review, but by an independent statutory body that is at arm’s length from the original decision-maker.

The second theme of accountability flows from the first theme of independence. The Tribunal will have power to review decisions made under approximately 400 statutory instruments and is likely to make over 50,000 finalisations in its first full year. Those decisions will have profound impacts on the lives of the individuals who seek review. In these circumstances, it is appropriate for the Tribunal to be accountable to the public for its operations. 

If public commentators believe that the reasoning of a Tribunal decision is unpersuasive or the outcome is incorrect, they will be able to critique the reasoning or the outcome. If a party to the decision is not happy with it, they will be able to appeal against it or seek judicial review in the courts. 

The Tribunal will welcome public and judicial scrutiny. Informed public commentary can assist the public in understanding the important work of the Tribunal. Court decisions resulting from appeals against, or judicial review of, decisions of the Tribunal will provide invaluable guidance to the Tribunal. Both forms of feedback will assist the Tribunal in enhancing its programs for the education, training and professional development of its members. 

In my opinion, whilst public scrutiny through informed public commentary and judicial oversight of the Tribunal’s decisions will be in the public interest, personal criticism of the Tribunal members who made those decisions will not advance the public interest. Indeed, it could harm the public interest by undermining public trust and confidence in the Tribunal. 

Members of the Tribunal have been appointed under an independent merit-based selection process. They will take the oath to which I have already referred. They are obliged to make the decision which they consider to be the correct or preferable decision in all the circumstances.

The final theme is excellence. My ambition as President of the ART is for the Tribunal to develop a reputation for excellence in everything that it does. I want it to be known as a tribunal which has efficient, transparent and user-friendly processes. A tribunal with empathetic staff who are committed to assisting parties who need help in using the ART’s services. A tribunal consisting of experienced and dedicated members who conduct fair and inclusive hearings promptly after applications for review are lodged, and who make high-quality and easy to understand decisions within a short time after a hearing concludes.

As President of the ART, I will work very hard to meet the public’s justifiably high expectations in the quality and speed of the Tribunal’s decisions and the accessibility and responsiveness of its processes to the diverse needs of its users. I am confident that all members and staff of the Tribunal will do the same and that, collectively, we will succeed in meeting those expectations and earn the public’s trust and confidence.