Administrative Review Tribunal Amendment (Assessment Process) Regulations 2025

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

in compliance with section 15J of the Legislation Act 2003

Purpose and operation of the Instrument

The Administrative Review Tribunal Act 2024 (Act) establishes the Administrative Review Tribunal (Tribunal), which consists of a President, Deputy Presidents, senior members and general members, appointed in accordance with the Act. The Tribunal provides independent review of a wide range of decisions made by the Government and some non-Government bodies.

Section 297 of the Administrative Review Tribunal Act 2024 (Act) provides that the Governor-General may make regulations about matters that are required or permitted by the Act to be prescribed by regulations, or about matters necessary or convenient to give effect to the Act.

The process for appointing members to the Administrative Review Tribunal (Tribunal) is set out in the Act and the Administrative Review Tribunal Regulations 2024 (Regulations). The Act provides high-level provisions on the appointment of Tribunal members by the Governor-General, on recommendation of the Attorney-General. The Regulations provide further detail on the appointment process, including on the process required for a panel established by the Attorney-General under section 209 of the Act to assess an applicant as suitable for appointment.

The Act requires that, before the Attorney-General makes a recommendation for the appointment of Tribunal members, the Attorney-General must be satisfied that an assessment panel assessed the applicant as suitable for the appointment through an assessment process that complied with the requirements prescribed by the Regulations. Part 4 of the Regulations prescribes those requirements, which includes:

• the Attorney-General’s Department must publish an invitation for applications for appointment for at least 2 weeks on the department’s website and in at least one other way accessible to the public (paragraph 9(1)(a)); and

• the assessment panel must allow applications for the appointment to be made for at least 2 weeks after the invitation for applications is published on the department’s website (paragraph 9(1)(b)).

The drafting of paragraph 9(1)(b) has had the unintended effect that the assessment panel for the appointment must be established before the department can publish the invitation for applications on its website. This is because the assessment panel, rather than the department, is referred to as the entity that must ensure applications are open for at least 2 weeks.

The Administrative Review Tribunal Amendment (Assessment Process) Regulations 2025 (Assessment Process Regulations) amend the Regulations to enable the department to publish invitations for applications for Tribunal member appointments before the assessment panel for the appointment has been established. This will facilitate the smooth operation of the appointments process, noting that the panel’s membership can be finalised while the application period is open. The amendment will also reflect that, in practice, it is the Attorney-General’s Department that manages the advertisement and application process, and it is appropriate that the department have the responsibility for ensuring that applications are open for a sufficient period.
 

This change maintains the important requirement that an invitation for applications must be published on the department’s website and by one other form and that applications remain open for at least 2 weeks. The department will be accountable to ensure this occurs.

Consultation

Consultation took place internally within the Attorney-General’s Department, as the amendment only affects departmental processes.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Administrative Review Tribunal Amendment (Assessment Process) Regulations 2025

The Administrative Review Tribunal Amendment (Assessment Process) Regulations 2025 is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

Overview

The process for appointing members to the Administrative Review Tribunal (Tribunal) is set out in the Administrative Review Tribunal Act 2024 (Act) and the Administrative Review Tribunal Regulations 2024 (Regulations). The Act requires that, before the Attorney-General makes a recommendation for the appointment of Tribunal members, the Attorney-General must be satisfied that an assessment panel assessed the applicant as suitable for the appointment through an assessment process that complied with the requirements prescribed by the Regulations. Part 4 of the Regulations prescribes those requirements, which includes:

• the Attorney-General’s Department (department) must publish an invitation for applications for appointment for at least 2 weeks on the department’s website and in at least one other way accessible to the public (paragraph 9(1)(a)); and

• the assessment panel must allow applications for the appointment to be made for at least 2 weeks after the invitation for applications is published on the department’s website (paragraph 9(1)(b)).

The Assessment Process Regulations amend the Regulations to enable the department to publish invitations for applications for Tribunal member appointments before the assessment panel for the appointment has been established.

Human Rights Implications

Right to an effective remedy in Article 2(3) of the ICCPR

Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. The Assessment Process Regulations promote the right to an effective remedy by improving the timeliness of appointments of members, which supports the effective operation of a Tribunal.

The right to a fair hearing in Article 14 of the ICCPR

Article 14(1) of the ICCPR protects the right that all persons are treated equally before courts and tribunals. It further provides that every person, in the determination of rights and obligations in a suit at law, is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a ‘suit at law’) is not fully settled. To the extent it may apply, the Regulations promote the right to a fair hearing.

By improving the timeliness of appointments of members to the Tribunal, the Regulations promote the right to a fair hearing by ensuring that the Tribunal is sufficiently staffed with people who have appropriate skills, experience and independence for providing review.

Conclusion

The Assessment Process Regulations are compatible with human rights. They advance the right to an effective remedy and the right to a fair hearing. The amendment does not derogate from the existing process for appointment of Tribunal members and maintains the transparency and merit-based administrative review system that supports the above‑mentioned human rights.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

Section 1 provides that the title of the instrument is the Administrative Review Tribunal Amendment (Assessment Process) Regulations 2025.

Section 2 – Commencement

This section provides that the Regulations commences on 1 January 2026.

Section 3 – Authority

This section provides that the Regulations are made and given authority under the Administrative Review Tribunal Act 2024.

Section 4 – Schedules

This section provides that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a schedule to this instrument has effect according to its terms.

SCHEDULE 1 – Amendments

Administrative Review Tribunal Regulations 2024

Item 1 – Paragraph 9(1)(b)

Item 1 amends section 9(1)(b) of the Regulations. The amendment omits “assessment panel for the appointment” and substitutes “Department”. This enables the Attorney-General’s Department to publish invitations for applications for Tribunal member appointments before the assessment panel for the appointment has been established. This facilitates the smooth operation of the appointments process by enabling the panel’s membership to be finalised while the application period is open. The amendment will also reflect that, in practice, it is the Attorney-General’s Department that manages the advertisement and application process, and it is appropriate that the department have the responsibility for ensuring that applications are open for a sufficient period.