By Terry Carney -
Professor Terry Carney AO has been part of the Australia’s tribunal ecosystem since the 1980s. He has chaired various government enquiries and oversaw the writing of the Social Security Act 1991 (Cth). For nearly 40 years, he served as a member of the Social Security Appeals Tribunal and its successor, the Social Services and Child Support Division of the Administrative Appeals Tribunal. Indeed, Professor Carney’s experiences considering early robodebt decisions are oft-cited as a key driver for the present reform, including his last piece for LSJ Online: ‘Bringing robo-debts before the law: why it’s time to right a legal wrong’. Here, he presents his prognosis on the new Administrative Review Tribunal.
For over three years Australia’s much vaunted 1970s institution, coined the ‘new administrative law’, proved to be anything but ‘match fit’ as a referee for bringing robodebt to account under the rule of law. Previously well-performed players such as the Ombudsman and the Administrative Appeals Tribunal (‘AAT’) were found wanting, to the shock and surprise of former fans. The question considered here is whether the newest ‘signing’ — the Administrative Review Tribunal (‘ART’) — can restore public confidence and trust in revitalisation of the rule of law.
Why a new federal merits review tribunal?
By the end of 2024, merits review of Commonwealth administrative decisions will be undertaken by a newly designed ART. The ART replaces the AAT which was established as part of the ‘new administrative law’ of the 1970s.
The AAT’s demise was inevitable. Trust and confidence in the independence and qualifications of AAT membership was undermined by political ‘stacking’ with appointees on terms of up to seven years; it was defunded to the extent members could not meet its caseload; and, as per the Royal Commission into the Robodebt Scheme, it was unable to protect its roughly 210 robodebt invalidation rulings from government ‘gaming’ that prevented those ruling from becoming public — something Commissioner Holmes called a ‘disheartening … ineffectiveness of what one might consider institutional checks and balances’ (p ii).
