Countdown to the Administrative Review Tribunal - 3 weeks to go!

It is now 3 weeks until the Administrative Review Tribunal (ART) replaces the Administrative Appeals Tribunal (AAT). Here at KWM, we are counting down the weeks until the introduction of the ART by discussing the new features, and what the changes mean for those looking to seek review of or defend decisions in Commonwealth Tribunal proceedings. If you missed our previous insights, catch up on them here and here.

In this insight, we consider Tribunal Guidance Decisions (TGDs) – a new “precedent-like” feature of the ART requiring non-judicial Members of the ART to, subject to some exceptions, have regard to previous ART decisions.[1]

What is a TGD?

A TGD is a previous ART decision which must, subject to some exceptions, be regarded by non-judicial Members in ongoing ART proceedings raising similar facts or issues.[2]

Not just any ART decision becomes a TGD - the following must be satisfied:

• The decision must have been made by the Guidance and Appeals Panel (GAP);[3]
• The decision must be made on review of a reviewable decision (ie not be a procedural or interlocutory decision);[4] and
• The decision must not have been one that the Tribunal decided on the basis of a decision agreed by the parties (ie not a matter where the parties settled and agreed consent orders).[5]

Once the first wave of GAP decisions become public, we will gain a greater insight into what decisions become a TGD. KWM’s insight on GAP decisions is available here.

Why have TGDs been introduced?

Our understanding is that TGDs have been introduced to “provide internal guidance” and have a “normative effect” on the decision making of the ART and administrative decision-making more broadly.[6] TGDs are also intended to promote rapid responses to emerging and systemic issues in government.[7]

There is a focus on transparency through greater publication of decisions. The AAT currently has no mandatory publication requirements – it has set its own annual target of publishing 25 per cent of its decisions, determined on the basis of a random selection process.[8] In contrast, the ART Act provides that TGDs must be published.[9] This sets a higher bar and ensures that substantive GAP decisions will be published for greater consistency and transparency.

However, TGDs should not be seen as an equivalent of the doctrine of precedent.[10] A precedent binds lower and subsequent Courts, whereas the ART must merely have regard to a TGD. So, while the aims are similar, there are some key distinctions:

How might TGDs be used in practice?

It is well recognised that there is virtue in consistent decision making. Brennan J once commented “inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice”.[17] However, there is a tension for administrative decision makers, who are exercising a discretion that can not be fettered by the decision-makers who came before them.

In practice, the AAT often has regard to the decisions of previously constituted Tribunals, and parties would use those previous decisions as authority to support their respective positions.

The introduction of TGDs codifies this obligation onto the ART for certain decisions. As TGDs are limited to decisions of the GAP, they are also limited to being decisions which raise issues of significance to administrative decision making, or errors that have materially affected an earlier ART decision. Identifying these decisions as TGDs ensures the GAP’s reasoning is before an ART member when exercising their discretion on a similar matter.

Once the ART commences and TGDs are published, we will learn more about how they will be used in practice. We expect that TGDs will inform the approach of Members, Parties and Agencies:   

1. Members: where required or where a Member determines relevant, TGDs will need to be considered when making decisions about similar facts or issues. This is in addition to decisions of superior Courts which the ART will be bound by. This is now an express obligation, and goes beyond the general principles that favour consistent decision making. However, TGDs are not binding like judicial precedent, and we expect ART members to have different positions on following or distinguishing the application of TGDs. There is repeated emphasis on members reaching their decisions independently and considering each matter on its merits.[18]
2. Parties: as the ART must consider a TGD, we expect parties will need to engage with the TGDs in their submissions in proceeding.
3. Agencies: the ART Act aims to not only shape its own members’ decision-making, but also to influence the behaviour of primary decision-making agencies.[19] The publication of TGDs will enable agencies to have regard to those decisions when exercising their statutory powers, potentially limiting the number of disputes commenced in the ART.

If you have any questions, please get in touch with our specialist administrative law team.