NDIS News & Analysis

Support Coordination

The new Administrative Review Tribunal

Chris Coombes

The Administrative Appeals Tribunal (AAT) is on its way out, set to be replaced by a newer model - the Administrative Review Tribunal (ART). Today, we will cover why a new Tribunal is needed and how it will differ from the last one. We’ll also look at what could this mean for NDIS participants.

It’s been a big 12 months in the NDIS appeals space. The following happened:

1. A project called the Independent Expert Review was piloted, ended, and evaluated by the NDIA. The IER was an alternative disputes resolution process for NDIS participants.

2. Citing three Commissions and Inquiries, the Attorney General announced they are abolishing the AAT and building a new Tribunal. You can read about the changes on the Attorney General’s website.

3. Tribunal Members at the AAT need to reapply for their jobs.

4. Two new bills have been released, detailing how a new Tribunal and a Council (more on that later) should operate.

The Administrative Review Tribunal Bill (2023) was introduced to parliament on 7th December 2023 and has passed the House of Representatives. A bill is not a law… yet. The bill must first be debated, amended, and pass the Senate (another house of parliament). If this bill becomes law, it will officially create a new body with new powers to review government decisions – this new body will be called the ART. The Attorney General’s website says this will be “as soon as possible”.

The Administrative Appeals Tribunal (AAT)

When a person believes a government agency (e.g. the NDIA) made an incorrect administrative decision, they can request the agency review it. If the agency doubles down on its decision, the person can ask the AAT to review the decision.

When matters go before the AAT, the first step is step is try get the parties to reach an agreement through an informal process. If this is an unsuccessful, the matter goes to a hearing where a Tribunal Member makes a decision to affirm, vary or set aside the original decision, or send it back to the agency for reconsideration.

The process is not just about justice for that one person. The Tribunal can guide Agencies to do better and get it right next time, and it can give us all clarity about the law. It’s a key part of our democracy. The AAT brings in fairness, independence, transparency, a check on power… or so the theory goes.

Why is the government replacing the AAT?

For those who have interacted with the existing Tribunal, it won’t surprise you that it finally broke. To crudely summarise, after many commissions and inquiries, the government decided that the existing Tribunal was:

  • Slow, under-resourced, inaccessible, unfair, and formal;

  • Made up of Tribunal Members that were not likely appointed on merit (some were ex-politicians with connections to political parties);

  • Ineffective at holding Agencies to account; and

  • Bad at fixing big legal questions, particularly when Members decided differently to past decisions.

We’ll let you decide whether the new bill fixes all this.

The proposed Administrative Reviews Tribunal (ART)

According to the Attorney General, the new Tribunal will be “user-focused, efficient, accessible, independent and fair”. There will be new merit criteria and public recruitment process for appointing Members, and the definition of merit is said to include lived experience. More Members will be appointed to try to fix backlog of cases. There are new powers to remove a government or person from proceedings if they haven’t followed the Tribunal’s directions. There will also be more focus on early and informal resolution. And the Tribunal will have more powers to direct an Agency to deliver reasons for their decision.

But wait, there’s more…

Administrative Review Council

Another groovy change is that the government will establish the Administrative Review Council (or the ‘ARC’).

The ARC will:

  • monitor the integrity of the review system;

  • inquire into and report systemic issues;

  • and educate/ train Commonwealth officials.

The ARC will made up of as many as 13 members from the Tribunal President, high level government officials, to expert lawyers and Ombudspersons. Critics might call it a lawyers picnic. But the government has also reassured us that the ARC will have “at least one appointed non-government member who has direct experience, and direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions”.

One diverse person?! Even Noah built an ARC with at least two of each kind.

How might this new ARC weather a flood of incorrect decisions from a department or agency, you might ask? The Robodebt Royal Commission – whose recommendations give life to this bill – contains cautionary parables here. By the 19th April 2017, senior officials in the government were aware of at least 10 Tribunal decisions that confirmed the incorrectness/ unlawfulness of their approach. Yet the Department persisted. Whether we can train, educate, inquire and report our way out of systemic or cultural issues… time will tell.

Guidance and Appeals Panel

The Guidance and Appeals Panel (GAP) is another new proposal in the bill. This panel is made up of senior figures in the Tribunal that will resolve matters where Tribunal Members disagree with previous decisions, materially wrong decisions, and decisions that have a far-reaching impact. Folks can also apply to the President to refer their matters or the President can select matters that fall into this category. PIAC’s NDIS 2023 Insights publication goes into detail on the sorts of NDIS problems an appeals panel could solve – I highly recommend checking it out.

Appointing a Litigation Supporter

This part of the bill taps into a broader debate about what to do when a person doesn’t seem capable of participating in proceedings, even when support is given.

The bill proposes to give the Tribunal new powers to appoint a litigation supporter for a person if:

  • The Tribunal thinks the person does not understand the nature and consequences of the decision; and

  • A litigation supporter appointment is necessary only after considering the availability and suitability of other measures that would allow the person to participate.

According to the explanatory memorandum, the litigation supporter would stand in the place of the person. Supporters must give effect to the will, preferences and interest of the person or, if these are unclear, promote their personal and social wellbeing.

The Parliament’s Human Rights Committee said this power is a model of substitute decision making. It also found this power would likely be used mostly on disabled people, which could be discriminatory and conflict with human rights. You can read more about this on the Australian Parliament’s website.

It’s also not clear in the bill what other measures would be funded or supplied to the party before this substitute decision making power can be used. The Attorney General, along with state and territory governments, are currently considering calls for more advocacy and legal aid funding. You can read more about the rationale for additional legal aid and advocacy funding on DANA's website.

What we don’t know

The NDIS Review has recommended changes to the participant pathways, but there are still unknowns about the proposal. The 10 Year Review supporting analysis does not outline, for example, what part(s) of the functional assessment and NDIS whole-of-package-building process will be reviewable. This could significantly impact the time and resources someone spends on the journey to and through the ART.

While the new Tribunal is being built, current NDIS reviews will continue to be processed within the existing Tribunal – click here for the Tribunal’s application form for NDIS external reviews.

You can read more about the recent the bill and recent amendments on the Attorney General’s website.

I am certainly not a lawyer. So this is general information, not legal advice. Speak with a lawyer or disability advocate if you want to know how these likely changes will affect you. You can find their contact details through Ask Izzy.

Author

Chris Coombes

Chris entered the sector as a support worker 13 years ago. Early on, Chris was working alongside a person who was unnecessarily detained in a prison. The injustice ignited a fire in his belly for a fairer system and drove him to study social policy. Completing a masters from the London Sch...

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