Tribunals Amalgamation from 1 July 2015 – What you need to know

The Tribunals Amalgamation Bill 2015 (Cth) (“the Bill”) will come into effect on 1 July 2015.

Which tribunals are being amalgamated?

This means that from 1 July 2015, the Social Security Appeals Tribunal (“the SSAT”) and the Migration Review Tribunal–Refugee Review Tribunal (“the MRT–RRT”) will be merged into the Administrative Appeals Tribunal (“the AAT”).

Why are the tribunals being amalgamated?

The tribunal’s statutory objective will be to provide a mechanism of review that:

  • is accessible;
  • is fair, just, economical, informal and quick;
  • is proportionate to the importance and complexity of the matter; and
  • promotes public trust and confidence in the tribunal’s decision making.

This core statement of the tribunal’s function builds upon the existing common objectives of the AAT, MRT-RRT and SSAT, which are to provide merits review that is fair, just, economical, informal and quick.

The new objective reflects the diversity of the tribunal’s jurisdiction and emphasises its public role as the “pre-eminent independent forum for review of the merits of government decisions.”

What jurisdiction will the amalgamated tribunal have?

The amalgamated tribunal will have the jurisdictions currently vested in the AAT, MRT-RRT and SSAT.

The AAT has jurisdiction under more than 450 Commonwealth State and Territory laws.

The MRT-RRT has jurisdiction under the Migration Act 1958.

The SSAT has jurisdiction under 10 laws.

The Bill will confer a new jurisdiction on the amalgamated tribunal to review certain child support decisions – specifically, where the Child Support Registrar has refused to make a departure determination because the issues are too complex.

This will make the expertise of the amalgamated tribunal, and its economical and accessible review function, available to parties in complex child support disputes, whereas under existing policy they are required to seek an outcome in the courts.

How will the amalgamated tribunal be structured?

The tribunal will have six divisions:

  • General Division;
  • Migration and Refugee Division;
  • National Disability Insurance Scheme Division;
  • Security Division;
  • Social Services and Child Support Division; and
  • Taxation and Commercial Division.

Further divisions may be created by regulations.

It is expected that a Veterans’ Appeals Division will be created by regulations at 1 July 2015.

The divisions reflect the main review jurisdictions of the existing tribunals.

The Social Services and Child Support Division will review matters currently reviewed by the SSAT.

The Migration and Refugee Division will review matters currently reviewed by the MRT-RRT.

The existing General Administrative Division, Security Appeals Division and Taxation Appeals Divisions of the AAT will be preserved with new names (as listed above).

The National Disability Insurance Scheme Division will be maintained with jurisdiction to review NDIS decisions.

The divisional structure will facilitate the specialisation of members and the adoption of practices and procedures appropriate to specific jurisdictions.

The types of decisions that will be reviewed in the various divisions will be defined either in primary legislation (the AAT Act in the case of the Security Division, and the Migration Act in the case of Migration and Refugee Division), in regulations under the AAT Act, or in practice directions issued by the President.

Are any existing rights to review being affected?

All rights to merits review will be preserved.

Will there be any changes to procedures for reviews?

The Bill maintains key procedures that are essential to managing matters in each of the existing tribunals, while harmonising and simplifying procedures wherever possible.

In divisions reflecting the jurisdiction currently exercised by the AAT, AAT procedures will continue to apply. The Bill will make some minor changes to modernise the AAT Act and support the effective operation of the tribunal.

These include:

  • Obligation to assist the tribunal (new section 33(1AB))
    There will be a new requirement on parties and their representatives to use their best endeavours to assist the tribunal to fulfil its statutory objective. This will complement the existing obligation of a similar nature on decision makers.
  • Continuous disclosure obligation (new section 38AA)
    The decision maker will be subject to an ongoing disclosure requirement – any relevant documents that come into their possession must be lodged with the tribunal, and given to the applicant, up until the time the tribunal makes its final decision.
  • Power to vary or revoke decisions (sections 34D, 42C)
    The Bill will give the tribunal a new power to vary or revoke decisions made with the consent of the parties.
  • Power to dismiss proceedings (section 42B)
    The Bill modernises the language used around the tribunal’s power to dismiss frivolous or vexatious applications, by including additional grounds for dismissal where an application is:
    • misconceived or lacking in substance
    • has no reasonable prospect of success, or
    • an abuse of process of the tribunal.

The codes of procedure in the Migration Act 1958 which currently govern MRT-RRT reviews will apply in the Migration and Refugee Division.

Central features of SSAT reviews will apply for reviews in the Social Services and Child Support Division, including:

  • the ability of applicants to make oral applications (except for employer-initiated paid parental leave matters);
  • existing time limits for making an application for review of a decision by the tribunal;
  • the power of the Secretary to allow applicants in some cases to continue to receive payment of a benefit, pending the review of the decision in relation to that benefit;
  • private hearings, unless the member conducting the hearing permits otherwise;
  • the suite of information gathering powers available to the tribunal, including the power to compel the Secretary or Child Support Registrar to exercise their information gathering powers;
  • a statutory time frame of 14 days from the date of decision for the tribunal to provide parties with the decision and reasons for the decision; and
  • existing rules around when tribunal decisions come into effect where the tribunal varies or sets aside the decision under review, which may affect the extent to which applicants are entitled to back payment.

The President will have the power to issue practice directions about matters, including the operation of the tribunal and the conduct of review within its divisions.

This ensures continuing transparency, consistency and flexibility in approach across the amalgamated tribunal. It is anticipated that the President will make practice directions specific to particular divisions as necessary.

Will rights to second external merits review, where available, be preserved?

In all instances where a person can currently seek review by the AAT of an SSAT decision, the person will have a right to internal review within the amalgamated tribunal. This includes Centrelink decisions, claimant decisions on paid parental leave, and some child support decisions.

The Bill will create new terms of ‘AAT first review’ and ‘AAT second review’.

These terms will correspond to applications that may currently be made to the SSAT, and applications that may currently be made to the AAT for review of SSAT decisions, respectively.

They will mainly be used in the Social Security Administration Act 1991, the Child Support (Registration and Collection) Act 1988, the A New Tax System (Family Assistance) Act 1999, the Paid Parental Leave Act 2010, and the Student Assistance Act 1973.

Regulations will provide that ‘AAT first reviews’ will be conducted in the Social Services and Child Support Division of the tribunal, while ‘AAT second reviews’ will be conducted in the General Division.

The specific procedures of the Social Services and Child Support Division will apply to these proceedings on first review.

On second review, the standard procedures of the General Division will apply.

This approach maintains the procedural differences that currently apply to first and second review of these proceedings in the SSAT and AAT respectively.

There will be no requirement to seek leave of the tribunal before applying for second review.

Rights to review by the AAT of decisions of the Veterans’ Review Board are not affected by the amalgamation.

How will matters still before the tribunals be dealt with at the time of amalgamation?

Proceedings on foot will be transferred to the relevant division of the amalgamated tribunal with the same member or members presiding. This will minimise disruption and inconvenience to parties.

In circumstances where an application for review by a tribunal has been lodged, but not yet heard, the matter will be transferred to the relevant division of the amalgamated tribunal.

The Bill will include transitional arrangements that will ensure there is no disadvantage to applicants or delay in reviews as a result of the amalgamation.

Will there be changes to judicial review rights from the amalgamated tribunal?

Parties to AAT proceedings will still be able to appeal to the Federal Court of Australia under the AAT Act on a question of law from any decision of the amalgamated tribunal, except for:

  • proceedings for review of certain migration decisions (as defined in proposed new section 43C of the AAT Act); or
  • proceedings where a person could make an application for AAT second review.

Judicial review of certain migration decisions is excluded under the AAT Act because there is a separate statutory judicial review scheme under the Migration Act.

Where an application for AAT second review may be made, judicial review would be available to the parties after the tribunal makes its decision on second review.

Statutory rights to appeal to a court from an SSAT decision will be removed from the Child Support (Registration and Collection) Act 1988 and the Paid Parental Leave Act 2010, and will be replaced by a statutory right of appeal under the AAT Act.

In relation to child support decisions, individuals will be able to apply to the Federal Circuit Court or the Federal Court of Australia for judicial review of a child support first review under the AAT Act. This will replace the existing system, where the Family Court, the Federal Circuit Court and certain State and Territory courts have jurisdiction to hear appeals from SSAT child support decisions.

In practice, the vast majority of matters are heard by the Federal Circuit Court. The approach proposed in the Bill for child support matters is simpler and will create greater consistency on appeals across the amalgamated tribunal.

The amalgamation would not affect rights to judicial review arising outside of the AAT Act, the Migration Act, or Acts conferring jurisdiction on the SSAT.

Will there be changes to fees?

No. The Bill makes no changes to fees and the existing fee exemptions and concessions for financial hardship will continue.

Will there still be access to interpreters?

Interpreters will continue to be available in the amalgamated tribunal.

Will there be changes to rules about representation?

No. The Bill maintains the right to representation at a hearing for parties in the divisions reflecting the current jurisdiction of the AAT.

Existing rules on representation that apply in the SSAT and MRT-RRT will be maintained in the Social Services and Child Support Division and the Migration and Refugee Division.

Will there be changes to alternative dispute resolution processes?

There are no changes to existing alternative dispute resolution (“ADR”) practices in the AAT.

ADR will be available in all divisions other than Social Services and Child Support Division and Migration and Refugee Division, which reflects the existing practice in the MRT-RRT and the SSAT.

ADR processes are not appropriate for use in the Migration and Refugee Division and the Social Services and Child Support Division, for reasons including that only the applicant appears in most of the reviews in those jurisdictions and the inquisitorial, informal and quick nature of these reviews makes the use of ADR unnecessary.

Where will the amalgamated tribunal be located? Will any registries be closed?

Registries will continue to operate in all existing locations.

The amalgamated tribunal will continue to have registries and offices in the capital city of each state and in the ACT. Registry services will continue to be provided in Norfolk Island.

In some cities, the amalgamated tribunal will operate from two or more locations at commencement.

Arrangements are being made to consolidate accommodation over a number of years as opportunities to enter into new leases arise.

Tribunal services will continue to be accessible in person, over the telephone and online.

Where will the amalgamated tribunal’s Principal Registry be located?

The Bill will not require that a particular registry be designated as the Principal Registry.

This reflects the current arrangements whereby corporate and executive services are delivered from a number of locations.

The IAA will have the same Agency Head as the amalgamated tribunal and will share staff and other administrative arrangements to achieve efficiencies. However, it will be an independent office and will retain its function of conducting a limited form of review.

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