Submission to the Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (ART Bills).

Dear Chair,

Thank you for the opportunity to provide a submission to the Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (ART Bills).

National Legal Aid (NLA) represents the eight State and Territory Legal Aid Commissions (LACs) who are the main providers of legal assistance to people experiencing disadvantage in Australia and have extensive experience in providing legal assistance to applicants regarding social security, child support, National Disability Insurance Scheme (NDIS), migration and veterans issues within the administrative review system.

NLA welcomes the Administrative Review reform and has been an active supporter and participant within the reform process, providing an extensive submission, participating in consultations, supporting the engagement of people with lived experience within the reform process, briefing the Expert Advisory Committee and attending Departmental briefings.

NLA strongly supports the objectives and intention of the ART Bills and welcomes the majority of the changes outlined by the Bills, particularly the abolishment of the Immigration Assessment Authority (IAA), improved focus and monitoring of systemic issues, the increased accountability and transparency of decision-making and the improved supports for vulnerable people in navigating the administrative review system.

Throughout the Administrative Review reform consultation process, NLA has consistently identified the importance of two tiers of review and the safeguards these provide within the Social Security and Child Support Division, including:

Access to independent decision-making that is non-adversarial, trauma informed and client centred, which rectifies a high volume of incorrect government decisions that have substantial impacts on peoples’ lives, and
For more complex or unresolved matters, a second opportunity to rectify errors in decision-making (through tier 2). This triaging or filtering of more complex matters allows most people to benefit from a quick, accessible resolution, and for resources of the Tribunal and other parts of the system (including legal assistance) to be appropriately targeted. It reduces the risk of significant backlogs, unnecessarily protracted matters and reliance on costly, stressful and prolonged Federal Court processes to appeal AAT decisions.

NLA welcomes the range of Federal Government reforms that aim to improve the systems and supports that impact people experiencing disadvantage particularly in the social security and NDIS policy areas, including the implementation of the Robodebt and Disability Royal Commission recommendations, the NDIS Review and the National Legal Assistance Partnership Review. These reforms should greatly improve the quality and transparency of Government agency decision-making prior to the administrative review process and should enhance the availability of legal assistance for people experiencing disadvantage within the administrative review process, including within the ART. It is anticipated that this will lead to a fairer system for all recipients, not just those who utilise the ART process.

However, these changes will take time to implement, and there are significant risks that, in the immediate term, marginalised people will not receive timely and correct outcomes, and that lack of access to a second tier of review will reduce opportunities to rectify incorrect government decision making.

Given the critical linkages between other key reforms and the Administrative Review reform, we recommend that the current two tiers of review for social security matters are retained at least until the range of Federal Government reforms are in place, and their effectiveness has been reviewed. Importantly, this helps ensure that clients are not inadvertently disadvantaged during the transition process of these reforms.

Alongside the consideration of retaining the current two tiers of review, NLA has a number of other suggested changes to improve the Bill. These are outlined in the Annexure.

Finally, given the significant reform agenda across Government and in administrative review it is proposed that the ART Bills are reviewed within 2 years of being enacted to assess the effectiveness and impact of these reforms.

Thank you for the opportunity to provide a submission on this Bill.

Should you require any further information from us please be in touch with the NLA Secretariat on 03 6236 3813 or nla@legalaid.tas.gov.au

Yours sincerely,

Louis Glanville
Chair, National Legal Aid
CEO, Victoria Legal Aid

Recommendations

Recommendation 1

That the changes to the Social Security (Administration) Act 1999 that end the availability of two tiers for social security and child support matters as of right be either removed from the Bills or paused until the range of Federal Government reforms regarding social security are in place and have been reviewed.

Recommendation 2

Introduce a new division that provides non adversarial informal and accessible first tier of review for National Disability Insurance Scheme (NDIS) matters that is modelled on the social security and veterans’ jurisdiction, where the National Disability Insurance Agency (NDIA) would not be represented, and where Members with disability expertise and understanding of the NDIS are appointed.

Recommendation 3

That the Administrative Review Tribunal Bills are reviewed within 2 years of being enacted and
support for implementation of the Bills is enhanced by:

Ongoing consultation with users and relevant stakeholders including legal assistance providers.
Engagement with First Nations communities, organisations including Aboriginal Legal Service providers, and other key stakeholders to develop a culturally safe structure and process.
Funding for Legal Aid Commissions, Community Legal Centres and Aboriginal and Torres Strait Islander Legal
Services to provide legal assistance within administrative review to people experiencing disadvantage.

Recommendation 4

With regard to Guidance and Appeal Panel Reviews (GAP):

Where a person seeks and/or is granted GAP review, the person should be referred to a LAC, CLC or ATSILS to
explore options for legal representation.
That the Administrative Review Council have a clear responsibility to monitor the operation and effectiveness of
GAP review.
Introduce a further ground of GAP review related to new information, as recommended by the ARC report.
That Clause 124 of the Administrative Review Tribunal Bill 2023 be amended to give GAP applicants a further
opportunity to set out the basis for their GAP application before refusing the application, and that Clause 128(3) be amended to remove any fees component, unless a fee was required in relation to the original review application.

Recommendation 5

With regard to Litigation Guardians:

That the Commonwealth fund and establish a panel of litigation guardians.
That the legislation be amended to make clear the interaction between litigation guardians, plan nominees and child representatives in NDIS matters.
That Clause 67 be amended to make clear that the Tribunal may appoint a litigation guardian on its own initiative, or on the application of a person appearing at a Tribunal case event.

Recommendation 6

With regard to Tribunal Powers and Procedures:

That Practice Directions allow for oral applications in appropriate jurisdictions, and that they also limit requirements in relation to the content of those applications to the minimum necessary for an effective application and that clause 268(2) that requests for statement of reasons must be in writing is removed.
Amend clause 271(1)(b) to add “or if the person has been refused a statement of reasons under s269(7)” to ensure that a person is able to obtain a statement of reasons that meet the statutory requirements.
Amend clause 23 to add (iii) “was referred to or designed to guide decisions of that type, including decision making tools used by the decision maker and relevant to the Tribunal’s review of the decision”.
That applicants are able to seek leave to have their matter reinstated where it was dismissed after they withdrew their application or by consent. e) Amend the draft legislation to ensure appropriate consultation regarding the development, monitoring and evaluation of practice directions within a specified timeframe.
Legal assistance services including LACs should be properly consulted throughout the process of creating rules and procedures in the new ART including the GAP and any related fees.

Recommendation 7

Introduce an enforcement mechanism that allows Applicants to revert to the Tribunal to seek compliance where a government agency or other party to the proceedings does not implement the Tribunal’s orders.

Recommendation 8

With regard to Transitional and Consequential Provisions:

Amend Item 218 of the Consequential and Transitional Bill which relates to section 8(f) of the Social Security (Administration) Act 1999, so that the Secretary needs to also have regard to decisions of the previous review body (i.e., the AAT).
Reinstate the ability of the review body to remit social security matters to the decision-maker for reconsideration by removing the proposed provision 147B – Remitting decisions for reconsideration.
Reinstate the ability to apply for legal or financial assistance in social security matters.
Amend clause 127 and item 178 to preserve decisions under GAP review.
Introduce an equivalent provision to Item 174 to be included in the National Disability Insurance Scheme Act 2013.
Extend the time for applications to the ART for migration and protection matters to not less than 28 days.
Remove the 84-day time limit for the Tribunal to review character related decisions.

Annexure: Further detail in response to the draft legislation

1. Improvements to the administrative review landscape

We particularly commend the following provisions that will significantly improve the experience of people proceeding through the administrative review system, and support their retention in the final legislation:

Abolishment of the Immigration Assessment Authority (IAA). We strongly support the repeal of Part 7 and Part 7AA, and the subsequent abolishment of the IAA. We also support the extension of Part 5 of the Migration Act 1958 to deal with migration and protection matters, so that all applicants for protection will be dealt with in the same manner, regardless of their mode of arrival.
Reinstatement of the Administrative Review Council (ARC). We support the re-introduction of the ARC as envisioned by the Kerr report.¹
Objectives. We commend the additional objective of the ART to provide review that is “accessible and responsive to the diverse needs of parties to the proceedings” (clause 9(c)). This should ensure increased accessibility to the ART for all applicants, including people with disability and people in remote areas of Australia.
Appointment of Members. We support the new membership structure and introduction of transparent and merit-based appointment processes for members. The inclusion of merit-based assessment taking into account “lived experience” is particularly welcomed in jurisdictions such as social security and NDIS. We reiterate recommendations 19, 20 and 22 from our previous submission that the legislation should also include a diversity requirement similar to Queensland, appropriate training across a range of key competencies focused on delivering safe and inclusive services, and a positive contemporary approach to disability.

2. Impacts of removing two tiers of review in social security and child support matters

The removal of the long-standing two tiers of external review for social security, including the unrestricted (except by time) right to appeal a decision of the Social Security and Child Support Division (SSCSD, or AAT1) to the General Division of the AAT (AAT-GD, or AAT2), and the collapse of this into a single tier of review from an AuthorisedReview Officer (ARO) decision, is a significant and concerning change to independent review rights, particularly for applicants who are experiencing financial hardship and/or self-represented. We appreciate the proposed reforms to administrative review and related systems aim to improve decisions and outcomes. However, these changes will take time to implement, and there are significant risks that in the immediate term, marginalised people will not receive timely and correct outcomes, and that lack of access to a second tier of review will reduce opportunities to rectify incorrect government decision making.

2.1 Fundamental reduction in review rights for social security recipients

Under the draft legislation, Applicants now only have one guaranteed opportunity to have their case reviewed by the ART. As a legal assistance provider that frequently sees the benefit of a second tier of review as of right, we consider the proposed GAP review will create a category of decisions with significant consequences that would likely change in our clients’ favour on review, but for which there is no guaranteed pathway to access that review.

2.2 Complex matters that benefit from timely and efficient initial stage of review

A key benefit of the current two-tier model is that it facilitates speedy, efficient resolution of around 85% of matters. An associated benefit is that this allows the legal assistance sector to target high intensity legal assistance services at the much smaller number of matters that proceed to Tier 2. As noted by the Robodebt Royal Commission, “Whilst the vast majority of cases are resolves expeditiously at AAT1, a smaller proportion of more complex and contested matters are properly resolved at the AAT2 level.”

The current model provides efficient and swift access to a decision in circumstances where delay can be very prejudicial, such as decisions relating to access to payments.² In addition to the impact on efficient resolution for Applicants, the abolition of Tier 2 review as of right may contribute to additional costs for the ART in managing matters. Tier 1 matters are currently dealt with speedily without case conferencing. Depending on resourcing, having only one tier could contribute to ongoing pressure in managing applications and a backlog of ART matters. While triaging and practice notes may have the potential to identify more complex matters, we are not confident - certainly in the immediate term - that this will be able to effectively deliver prompt, accurate decisions and outcomes to a high volume of people, while still preserving the right to review for more complex matters.

Further, through our practice experience in advising and acting for migration applicants, where there is no further review option by right, we see that applicants seeking review often turn to the Federal Court.

2.3 Facilitating correct decision-making

Written Tier 1 decisions provide much greater clarity regarding the reason a claim was refused, or the reasons a debt was raised, which is particularly relevant if they differ from that of the individual decision-maker. Clarification of these positions focuses attention on the key issues in dispute, makes it easier for applicants to understand the issues int heir matter, and for solicitors to provide advice on the merits of further review as well as to assist client to collect or pay for required evidence and reports.

While one part of the solution to this is the provision of clear reasons at first instance, that is a significant and long term reform piece within Services Australia. Further, there will still be complex matters that involve evidence and statutory criteria where the initial process of Tier 1 review clarifies the issues in contention, which will enable a person to then consider the evidence and legal assistance they may need for their matter.

3. Two tiers in NDIS

Through our experience providing legal assistance in NDIS appeals (where there is only a single tier of review), LACs have observed:

A more formal, adversarial environment with Government agencies legally represented in the context of some applicants being self-represented
Lengthy waits for matters to be listed and decided and a significant backlog of matters
The option to appeal any AAT decision to the Federal Court, leading to cost implications, further stress and delays for applicants
Increased complexity of matters, with timelines for submissions and filing of detailed medical evidence
The option of the Federal Court to appeal any AAT decision, leading to cost implications, further stress and delays for applicants
Contested hearings that proceed over multiple days including cross-examination of applicants.

We reiterate our view, outlined in our previous submission (p31-33), that a first tier of merits review should be introduced for NDIS cases, along the lines of the AAT’s SSCSD or the Veterans Review Board, to replicate the experience that social security applicants have of swift, informal, inquisitorial decision-making that gives them an opportunity to be heard.

This should be accompanied by the right to seek a second tier of review as of right, consistent with the rights available in the veterans and (currently) social security jurisdictions.

4. Strengthening the draft legislation

The following outlines several areas of the draft legislation that we are pleased to see, but where we consider further strengthening is required to meet the intent and objectives.

4.1 Strengthening the Guidance and Appeals Panel

We consider the GAP would be an important protective mechanism within a two-tier system, however are concerned that it is an insufficient replacement to the current two-tier system. We see several areas where this function should be further strengthened to make sure the GAP achieves its objectives:

Adequate accountability, resourcing and legal assistance

In our view, under both limbs, practical application of the GAP will be highly dependent on issues that are not sufficiently covered in the draft legislation, such as:

resourcing of legal assistance services to assist clients to apply to the GAP;
accountability of the President or their delegate, who has broad and consequential discretion to choose what matters proceed to GAP review;
resourcing of delegated responsibilities from the President to create efficiency and accountability in GAP decisions; and
the extent to which the culture of the review body supports GAP review as a mechanism, including through appropriate resourcing.

Additional limbs to facilitate a fair and efficient administrative review system

If our recommendations regarding the retention of second tier review as of right are not accepted, GAP review provisions should include scenarios where new information becomes available between the decision and any

relevant timeline for lodging an appeal, where that information could not reasonably have been obtained before the decision was made, particularly where it gives people an opportunity to address a gap in evidence that only becomes clear once the decision is made.

Ensuring timelines and processes for GAP applications are responsive to people’s circumstances

We are concerned that the various requirements set out in clauses 124, 125 and 128(3) for applications to the GAP will result in fewer disadvantaged people seeking further review by the GAP.

We recommend amending clause 124 to make the President’s power of refusal dependent on the President having given the applicant a reasonable further opportunity to comply with the requirements in Clause 124. This will ensure that disadvantaged and/or unrepresented litigants would not have their GAP application refused on technical grounds.

Clause 128(3) implies that in some instances there may be a fee payable in order apply to the GAP. This will be determined in Rules. NLA is concerned that imposing a fee will put review by the GAP out of reach for financially disadvantaged people or increase financial hardship if paid.

4.2 Litigation guardians

NLA is very supportive of the review body being able to appoint a litigation guardian (clause 67) as recommended in our previous submission. We consider the ART Bill provisions provide appropriate safeguards and guidance for Tribunal members when considering whether to appoint a litigation guardian. However, we would support clause 67(1) to be amended to specify that the ART can appoint a litigation guardian on application or on its own initiative; this is because there can be situations where a solicitor is appointed but not instructed, and as such cannot make an application for a litigation guardian to be appointed. We recommend the current wording in clause 67(1) be amended to say “The Tribunal may, on its own initiative or on the application of a person appearing at a Tribunal case event, by order….”

We note that the benefits of the new litigation guardian provisions will not be seen without the Commonwealth funding a litigation panel, since there will be applicants who do not have anyone in their lives who can take the role of litigation guardian. For example, in visa cancellation matters some applicants in immigration detention do not have any close family members or people in the community who would be able or willing to be appointed as a litigation guardian. We consider the Commonwealth should:

fund and establish a panel of suitably qualified and trained litigation guardians; and
develop a Code of Conduct for litigation guardians;
develop a process for appointing litigation guardians to particular matters that takes into account the age, location and cultural requirements of the applicant.

Given the likely use of litigation guardians in NDIS matters we also consider there could be greater clarity in the legislation around the role of a litigation guardian where they are a different person to the plan nominee or child representative, and how the various duties might interact.

4.3 Tribunal powers and procedures

The draft legislation delegates a broad range of procedures to be determined under Rules and Practice Directions. We support the review body having flexibility and being responsive to the individual needs of applicants, however we are also concerned that these Rules may provide for less favourable review rights and procedures than currently exist for AAT applicants.

In particular, we consider there is a need to strengthen provisions related to:

Requests for review. Clause 34(1) and (2) allow the review body to make practice directions specifying whether an application needs to be made in writing, and what information must be included in an application for review to the ART. It is common for clients to present in crisis, or with limited online access, and for the decision under review to amplify those difficulties. We also frequently see applicants who would experience barriers to completing a written application, including due to literacy issues, accessibility needs and/or language barriers. We consider it is important that the practice directions make clear that applicants should simply be required to state they believe a decision is wrong in order for their application for review to be accepted as opposed to having to provide detail as to the basis on which they believe it is incorrect. We also consider that the practice directions should expressly provide for oral applications to continue to be accepted in the social security and child support jurisdiction and expanded to other jurisdictions.
Conduct of proceedings. Clause 36 provides the review body with broad powers to make practice directions that set out the procedures of the ART and the conduct of all proceedings by the review body. We consider the oversight mechanisms for these practice directions should be strengthened to include additional safeguards, for instance through the ARC, including a requirement to consult with user groups in relation to practice directions, and to review and revise the practice directions at regular intervals. Further, we note child support is a highly adversarial jurisdiction with many applicants and respondents reporting family violence. We urge the Tribunal to ensure that procedures, rules and practice directions take this into account.To ensure victim-survivors of family violence are not further harassed or put at risk we recommend that the ART develop a screening process to identify parties at risk of family violence. Where a party makes an application, we suggest that the ART require Services Australia (Child Support) to provide a history of prior applications, including internal reviews, by that party. These matters should be case managed, with early directions, so it can be determined at an early stage whether the application ought to be dismissed.
Ensuring access to adequate decisions. We are concerned about unclear and potentially unavailable pathways for applicants to obtain an adequate “statement of reasons” for a decision under the ART Bill, where a decision-maker purports to have already provided a statement. A decision-maker can refuse a request for a statement of reasons under clause 268 on the basis one has already been provided under clause 269(7) -regardless of whether it is adequate or not. The decision-maker is not required to provide written notice of this decision under clause 269(11). In this instance, the adequacy of the purported statement of reasons does not appear to be able to be under clause 271. Our experience is that applicants often receive deficient statements of reasons that fail to provide adequate reasons or information about the evidence relied upon to make the initial decision or internal review decision. It significantly undermines the protections provided for in clause 268 and 271 if a decision-maker can claim to have already provided a statement of reasons, and the applicant cannot clearly challenge the adequacy of the statement of reasons under s271. The capacity to challenge the adequacy of reasons in this scenario should be clearly set out.
Ensuring access to key documents. Clause 23 of the ART Bill requires decision-makers to provide the Tribunal all documents relevant to the Tribunal’s decision under review, in addition to the statement of reasons for the decision. NLA recommends that the Bill explicitly require decision-makers to also provide the Tribunal access to any decision-making tools that were used or designed to be used to make the original decision or internal review decision, such as the Typical Support Package task cards used by the NDIA to make decisions. These tools can be crucial documents, but government agencies often refuse to provide them as part of their obligations under section 23.
Ensure processes are accessible. A person seeking review of a decision can ask the decision-maker to provide a statement of reasons for the decisions. NLA recommends removing the requirement to make that request in writing to the decision-maker (clause 268(2)), on the basis that it creates a barrier to accessibility. Obtaining an adequate statement of reasons is an important right, as this enables person affected by the decision to participate in the review from a basis of knowledge and improves capacity to prepare for their review.

4.4 Reinstatement of applications: potential prejudice caused to unrepresented litigants

The draft legislation sets out the circumstances when the review body can reinstate an application for review that has been dismissed by the ART. These are important protections to preserve an applicant’s ability to seek the ART’s discretion to allow them to continue with a dismissed review in the interests of justice.

Where an applicant withdraws their application or both parties consent to the withdrawal, the only basis on which the applicant can seek their matter be reinstated is where it is dismissed in error, which is a very narrow ground. This will significantly prejudice unrepresented litigants who agree to resolve their matter based on a misunderstanding (and sometimes misrepresentation) of what will occur once their application is dismissed.

We regularly see agencies, particularly in the NDIS jurisdiction, making representations about what will be included in a new plan if the applicant withdraws their proceeding. However, in some cases, what was agreed mutually by both parties does not occur due to the complexity around how NDIS decisions are implemented in practice. We note that in our experience, the NDIA generally refuses to provide a draft plan as part of negotiations and settlement. In other circumstances, a person misunderstands exactly what the new plan will cover. We also see examples of unrepresented applicants withdrawing applications where they do not understand the consequences of the withdrawal. In these cases we see extraordinary prejudice, because there is no opportunity to revisit the dismissal decision.

We strongly recommend that applicants be able to seek leave to have their matter reinstated where it was dismissed after they withdrew their application or dismissed by consent. We note it will still be a matter for the ART to determine whether to exercise a discretion to reinstate the application, and that the critical issue is providing a pathway for reinstatement to be considered. This would be an important protection against unfair outcomes for applicants, particularly in a complex jurisdiction where many applicants are unrepresented.

4.5 Inclusion of an enforcement mechanism

We reiterate our view, outlined in our previous submission (p53-54), that the new federal administrative body must have enforcement powers to respond to non-compliance with its decisions/orders.

In the NDIS Division in particular, the Tribunal’s final orders can be complex, and there are often errors with

implementing the Tribunal’s orders in Applicant’s NDIS plans once the matter is back with the Agency. Applicants are not currently able to revert to the Tribunal to enforce compliance with the Tribunal’s orders. The new ART should have the power to intervene where its final orders have not been complied with, modelled on the provisions for enforcing judgments in courts around the country but adapted to the particular context of administrative decision making, where government departments are usually responsible for implementing the orders.

4.6 Transitional and consequential provisions

We consider the following amendments are necessary to strengthen and streamline the transitional and consequential provisions:

Make sure policy decisions relate to the past and new review body. Item 218 of the Consequential and Transitional Bill amends section8(f) of the Social Security (Administration) Act 1999 so as to replace reference to the AAT with reference to the ART. Section 8(f) refers to the role decisions of the AAT play in guiding policy and decision-making for the Secretary. We consider that decisions of the ART and previous decisions of the AAT should perform this function. We recommend amending this section so that the Secretary needs to also have regard to decisions of the previous review body (i.e., the AAT).
Reinstate the ability of the review body to remit social security matters to the decision-maker for reconsideration (Item 169 of the Consequential and Transitional Bill, i.e., by removing the proposed provision “147B Remitting decisions for reconsideration”). While used infrequently, we consider it important to have this power available given the potential for the department to participate in the proceeding. It is a useful tool for progressing a matter to settlement or preserving the interests of the applicant while an appeal is on foot and their circumstances change.
Reinstate the ability to apply for legal or financial assistance in social security matters. Item 169 of the Consequential and Transitional Bill removes the capacity for applicants at the ART to apply for legal or financial assistance outside of legal assistance provided by LACs and CLCs from the Attorney-General under section 294(1) for social security matters. Given the importance of access to legal representation, this should be retained.
Preserving decisions under GAP review. Item 178 of the Consequential and Transitional Bill provides a mechanism by which a decision varied or substituted by Services Australia replaces the decision that is the subject of GAP review. We are concerned that, where there is a GAP review on the basis of an issue of significance to administrative decision-making, a unilateral variation or substitution of the decision under review by the relevant agency or department may fundamentally change the issues to be considered. We consider the preferred process would be to set this out in clause 127 of the ART Act, which provides a process for a party to apply to the review body for orders affecting the decision under review when there is a GAP review on foot. We recommend clause 127 and item 178 be amended accordingly.
National Disability Insurance Scheme related provisions. We support the continued requirement for private hearings in social security matters, as provided for by item 174 of the Consequential and Transitional Bill. We consider this should also apply to NDIS matters, with an equivalent provision to item 174 to be included in the National Disability Insurance Scheme Act 2013, as they similarly traverse very personal information.
Time to seek review for migration matters. It is disappointing that there has been no harmonisation of the Migration Act 1958 (Cth) and the ART Bill on the time to seek review for cancellation and refusal decisions for character reasons, i.e., to be 28 days instead of nine days, or regarding applications for an extension of time to the ART. This is a significant accessibility issue, as people that miss the timeframe for applying for merits review miss that opportunity regardless of their circumstances. This clearly disadvantages applicants, particularly for applicants applying and preparing their cases from prison or detained in a mental health inpatient unit. We reiterate our recommendation that the time for applications to the ART for migration and protection matters should be extended to not less than 28 days.
Further, we are concerned about the retention of the 84-day time for the Tribunal to review character related decisions under s501 or 501CA(4) of the Migration Act for the reasons set out in our previous submission.In addition to these reasons, we are concerned the 84-day timeframe could interfere with due consideration of a case that is referred to the GAP, or in cases where the ART member assesses that a ligation guardian is needed.
We reiterate our concern regarding the ability of the Minster to set aside a non-adverse decision (s501A of the Migration Act), which contradicts and counteracts the objectives of the ART to be accessible, independent, and fair.

Footnotes

¹ Commonwealth Administrative Review Committee, Parliamentary Paper No 144, 1971.

² 19% of matters go to hearing, and 37% of those resolve in this way. Cf. 2022/23 AAT Annual Report, p 47.