The Administrative Review Tribunal: executive power or quasi-judicial overreach?

Chapter III of the Australian Constitution states that only courts constituted under it may exercise the judicial power of the Commonwealth.[1] Since Boilermakers,[2] the High Court has treated this rule as a hard constitutional limit, not a technicality. The establishment of the Administrative Review Tribunal (‘ART’) invites renewed scrutiny of these boundaries. Its public hearings, compelling of evidence and written reasons bear resemblance to a court. However, its core function, conducting merits review of executive decisions, sits outside the traditional judicial role.

This essay argues that the ART is and must remain an executive body. It will set out the constitutional framework behind the separation of powers, explain how the High Court has distinguished between judicial and administrative power, apply that test to the ART, refute counterarguments that the ART exercises judicial power and why these distinctions matter.

Constitutional framework

The separation of judicial power under Chapter III constrains the institutional design of Commonwealth bodies. Section 71 vests federal judicial power in the High Court and in other courts Parliament creates.[3] Section 72 then entitles federal judges to tenure up to 70 years of age, fixed salaries and protection from arbitrary removal.[4] In Waterside,[5] the Court ruled that those guarantees are essential conditions of any Commonwealth judicial office. Boilermakers also added that judicial power could not be vested in a body that also exercised non-judicial functions save for those incidental or ancillary to judicial functions.[6] Brandy[7] later held that making an administrative determination binding, determinative and enforceable also breached Chapter III. These cases show a consistent theme: coercive decisions that determine legal rights with finality may be given only by courts insulated from executive control.

This doctrine serves three purposes. First, it secures judicial independence.[8] Second, it protects citizens from coercive state power that escapes legal review.[9] And third, it keeps lines of accountability clear by ensuring ministers answer for executive action and judges for legality.[10] As Winterton observes, the separation forms an ‘implied Bill of Rights’ in Australia’s constitutional structure.[11]

Distinguishing judicial power

The High Court distinguishes judicial from administrative power by reference to function rather than form. The three key features of judicial power are: first, that the decision finally and conclusively ascertains existing rights and obligations under law,[12] second, that the decision is immediately binding and enforceable without further executive action,[13] and, third, that the decision is made by a court enjoying Chapter III tenure with freedom from removal.[14]

Administrative power by contrast is typically prospective and discretionary.[15] It may affect interests but does not itself decide what the law is.[16] Its decisions are always subject to supervision by a court for jurisdictional error.[17]

In Precision Data,[18] the majority explained that a tribunal conducting merits review may share ‘common ingredients’ with the exercise of judicial power and may sit like a court, but remains part of the executive so long as its rulings take effect only because statute or a minister later gives them force. Brandy shows the opposite. When Parliament converted a Human Rights and Equal Opportunity Commission ruling into something enforceable as if it were a Federal Court order, judicial power was conferred and the scheme struck down.[19]

Executive character of the ART

Section 105 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) empowers the ART to ‘affirm, vary or set aside’ a reviewable decision and, where it sets a decision aside, to make a substitute decision or remit with orders or recommendations. That substitution/remission operates only because the statute so directs.[20] It has no inherent force as a judgment of law.[21] The decision-maker may also elect not to participate, underscoring that the proceeding is an extension of executive administration, not an adversarial dispute.[22] The ART’s own objectives emphasise accessibility, informality and improvement of governmental decision-making.[23] Those goals reflect the classic aims of merits review identified by the Kerr Committee in 1971: quality control, consistency and policy responsiveness.[24] They do not describe the work of courts which adjudicate disputes according to law.[25]

While an ART determination is operative within the executive hierarchy, it is not immune from judicial supervision. Part 7 confers an appeal on a question of law to the Federal Court, meaning ultimate supervisory jurisdiction under s 75(v) of the Constitution remains intact.[26] As the High Court affirmed in Plaintiff S157,[27] even the most authoritative administrative decision cannot oust Chapter III review for jurisdictional error. This entrenched hierarchy of ART first, Chapter III courts last, confirms the ART’s subordinate executive status.

Like the former Administrative Appeals Tribunal (‘AAT’), the ART adopts procedures resembling courts such as public hearings, reasoned decisions and powers of subpoena.[28] However, those same features were present in the former AAT examined in Drake.[29] The Full Federal Court still held the AAT exercised administrative, not judicial power.[30] These procedures promote fairness but do not change the constitutional nature of the body.

The ART’s structure further anchors it to the executive. Members hold fixed five-year terms,[31] the President must provide annual reports to the Attorney-General[32] and non-judicial members may be terminated by the Attorney-General.[33] Such ministerial and departmental oversight would be constitutionally impermissible for a court but is orthodox within the executive. Indeed, they fall far short of the life tenure required by section 72 and when the High Court struck down a federal industrial court in Waterside, the decisive flaw was precisely the absence of such tenure.[34]

Cumulatively, these features of de novo merits review, absence of binding judicial force, subordination to Chapter III supervision and executive accountability confirm that the ART operates as an executive mechanism of administrative justice, not a court in disguise. Its judicialised processes enhance fairness but do not intrude into the realm of judicial power.

Counterarguments

Critics may contend that the ART is a court. This essay identifies three common themes: first, its court-like procedures, second, its statutory independence and third, public perception that it delivers justice in the manner of a court.

The ART conducts public hearings, compels evidence, applies rules of evidence flexibly and must give written reasons. Yet the High Court has long insisted that ‘judicial trappings’ do not confer judicial character. In Precision Data,[35] the Court noted that tribunal procedure such as counsel, evidence and cross-examination did not change the essential nature of the power. What matters is the legal force of the decision. Because an ART ruling takes effect only by statutory command and remains open to appeal for error of law, it lacks judicial finality.

Part 8 of the ART Act provides a degree of decisional autonomy.[36] However, statutory independence itself is not a sufficient condition of judicial power. In Wilson,[37] the High Court held a former High Court judge acting under statute and exercising administrative powers as a royal commissioner was permissible as the judge was independent and the commission’s powers remained executive. In Grollo,[38] a serving Federal Court judge could perform a personal non-judicial function of issuing telecommunications warrants without converting that function into judicial power so long as incompatibility with judicial power was avoided. Independence is desirable for administrative justice but does not alter the constitutional source of power.

Public perception cannot expand federal jurisdiction. The Constitution is concerned with substance, not optics. Legal character turns on constitutional structure, not political optics. The Constitution protects citizens by locking judicial power into courts with tenured judges, not by badges and symbols. If Parliament gives a tribunal court-like attire but withholds Chapter III tenure, the judiciary must treat it as what it is: an administrative body.[39]

Why it matters

Drawing a clear line between executive merits review and judicial power extends beyond mere semantics. It serves two practical benefits. First, it prevents the gradual transfer of judicial power to bodies without constitutional safeguards. If tribunals holding five-year appointments could issue binding judgments, the protections of section 72 would be hollow. This would create a shadow judiciary that would weaken independence and accountability.[40]

Second, it keeps accountability lines clear. Ministers remain answerable to Parliament for the quality of executive decisions even after they are remade by the ART. Courts only answer for legal error. Conflating the two paths would obscure responsibility and accountability.[41]

Were the ART treated like a court, Boilermakers would render it invalid unless Parliament granted members tenure and immunity from direction.[42] This overhaul would be antithetical to its flexible policy-oriented purpose. Respecting the boundary therefore protects both efficiency and legality.

Conclusion

The ART adopts many court-like procedures, but on careful examination its decisions still depend on statute for effect, remain open to judicial review and are made by members lacking Chapter III tenure. Under the functional Boilermakers test, the ART therefore exercises administrative not judicial power. Maintaining that distinction upholds the text and structure of the Constitution, preserves judicial independence and ensures executive decision-making remains properly accountable. Australian administrative law can modernise and improve without eroding the firm constitutional firewall separating our courts from the political branches of government.

Anthony Ma is a third year Bachelor of Laws/Bachelor of Criminology & Criminal Justice student at University of New South Wales.