Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

The Consequential Act affects three broad classes of actor.

1. Applicants for review. Every person who, on or after 14 October 2024, wishes to challenge an administrative decision in taxation, migration, social security, veterans’ entitlements, aged care, superannuation, or any of the other regulated fields must now deal with the ART. Transitional applicants—those whose AAT applications were on foot on 13 October 2024—are automatically transferred (item 24 of Schedule 16) but may find that the procedural law that applied when they lodged continues to apply.

2. Decision-makers. Commonwealth agencies and office-holders (the Commissioner of Taxation, the Minister for Immigration, the Secretary of the Department of Social Services, the Repatriation Commission, the Chief of the Defence Force, authorised officers under the Aged Care Act 1997, etc.) must now give notices that refer to the ART, supply documents under the new ART Act’s Subdivision B of Division 4 of Part 3 (modified in tax by new ss 14ZZF and 165‑25), and respond to ART directions. The Migration Act 1958 amendments are particularly onerous: the Secretary must now deal with the ART Principal Registrar rather than the former Registrar, and the conclusive-certificate regime is preserved.

3. Legal practitioners, migration agents, and tribunal staff. Practitioners must master the new language (“ART review”, “guidance and appeals panel proceeding”, “reviewable protection decision”) and the differential procedural codes that survive in tax, migration, and child-support law. The Chief Executive Officer and Principal Registrar of the ART inherits the staff, registries, and pending matters of the former AAT (items 7–12 of Schedule 16) and must therefore manage a vastly expanded jurisdiction on day one.

The Consequential Act both preserves and modifies the rights and duties that existed under the old law.

Rights to apply for review are maintained but re-expressed. In taxation, the 60-day period for lodging an objection decision review (new s 14ZZC(1) of the Taxation Administration Act 1953) survives, as does the ART President’s power to extend time only before the period expires (new s 14ZZB(3)). In migration, the strict 7-day or 28-day limits for persons in detention or not in detention are retained (new s 347(3) of the Migration Act 1958), and the ART is prohibited from extending them (new s 347(5)). The right to reasons is clarified: s 268 of the ART Act is disapplied in most tax and migration contexts, but the decision-maker must still supply a statement of reasons and all relevant documents within 28 days (new ss 14ZZF, 165‑25, 359A as substituted).

Duties of decision-makers are tightened in several respects. The Commissioner must now notify the ART President when an extension of time to refer a tax decision to the guidance and appeals panel is granted (new s 14ZZB(4)). The Secretary of the Department of Home Affairs must give the ART a list of documents that may be relevant even if not considered necessary by the decision-maker (new s 14ZZF(5)). In social-security matters the decision-maker is taken to have elected not to participate in the proceeding (new s 111C of the A New Tax System (Family Assistance) (Administration) Act 1999, new s 94 of the Child Support (Registration and Collection) Act 1988), a procedural innovation designed to reduce the Commonwealth’s active involvement in routine reviews.

Hearing rights are recalibrated. Most tax objection reviews and social-security reviews must be held in private if the applicant so requests (new s 14ZZE, new s 121, new s 95K, new s 232). Migration protection reviews are always in private (new s 367B). The default public-hearing rule in s 69 of the ART Act is therefore displaced in large tranches of the jurisdiction.

Implementation duties are tightened. Once an ART decision on a tax objection becomes final, the Commissioner must take the necessary action within 60 days (new s 14ZZL). Similar duties appear in superannuation and family-assistance law.

The Consequential Act itself contains no new offence or civil-penalty provisions. It does, however, preserve and in some cases strengthen existing enforcement mechanisms.

In taxation, failure to give documents within 28 days remains an offence of strict liability carrying 30 penalty units (new s 14ZZF(4) cross-referring to the general offence in s 8C of the Taxation Administration Act 1953). The new s 14ZZJ continues the publication-restriction regime for non-public tax hearings. In migration, the existing offence regime for disclosure of protected information (s 336E of the Migration Act 1958) is updated so that references to the former “tribunal member” become references to an “ART member” (items 62–89 of Schedule 2).

The ART’s contempt powers under s 115 of the ART Act are available in respect of non-compliance with summonses or directions issued under the Consequential Act. Because the Consequential Act disapplies s 294(1) of the ART Act for most non-guidance-and-appeals-panel social-security and child-support matters, legal-aid funding remains limited, which may indirectly affect enforcement of applicants’ rights.

The Consequential Act is expressly parasitic on the ART Act. Section 4 provides a statutory interpretation rule: any post-commencement reference in another Act to the old AAT Act, a provision of it, the AAT, or its Registrar is taken to be a reference to the new Act, the equivalent provision, the ART, or the Principal Registrar, unless a contrary intention appears. That rule is then fleshed out in the subject-specific schedules.

In taxation, the Income Tax Assessment Act 1936 and Taxation Administration Act 1953 continue to override large parts of the ART Act (new Division 4 of Part IVC). In migration, the new Part 5 of the Migration Act 1958 expressly disapplies 12 discrete provisions of the ART Act (new s 336P(2)) and substitutes its own natural-justice code (new s 357A). In social security and family assistance, the decision-maker is deemed to have elected non-participation (new s 142B of the Social Security (Administration) Act 1999, new s 111C of the family-assistance administration Act), a device that interacts with the ART Act’s election-notice regime in s 60.

The transitional provisions in Schedule 16 operate as a “bridge” statute. They ensure that the repeal of the old Act (Schedule 17) does not create a jurisdictional void. Item 4 of Schedule 16 provides that references in other laws to the old Act are taken to be references to the new Act from the transition time. Items 20–23 preserve the validity of things done by the AAT and allow pending proceedings to continue in the ART.

The Consequential Act is the second tranche of legislation required to stand up the ART. The first was the ART Act itself, which received royal assent on 14 June 2024 and commences on 14 October 2024. The Consequential Act was introduced on 7 December 2023, passed the House on 6 March 2024, the Senate on 27 March 2024, and received assent on 31 May 2024. Its passage was deliberately timed to allow agencies six months to update forms, IT systems, and internal delegations.

The policy driver was the 2017 Productivity Commission recommendation and the subsequent 2020–22 review that concluded the AAT had become inefficient, lacked independence, and suffered from inconsistent decision quality. The new ART merges the AAT’s four divisions into a single tribunal with a guidance and appeals panel designed to promote consistency. The Consequential Act is the mechanical consequence of that structural reform: without it the ART would have no jurisdiction.

No court has yet considered the Consequential Act. Two controversies are, however, already visible in the migration amendments.

First, the abolition of the Immigration Assessment Authority and the folding of its fast-track jurisdiction into the ART’s “reviewable protection decision” category removes the statutory “safe haven” that existed for certain pre-2014 protection claims. The new s 338A definition is narrower than the old s 5(1) definitions of “fast track decision” and “excluded fast track review applicant”. Whether this narrowing produces a justiciable expansion of jurisdiction will be tested in the Federal Court.

Second, the new s 367A requires the ART to draw an unfavourable credibility inference if an applicant raises a new claim or new evidence in a protection review unless the applicant has a “reasonable explanation” for not having done so earlier. This is a statutory codification of the common-law Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 principle, but expressed in mandatory language. Its interaction with the new natural-justice code in s 357A is likely to generate litigation.

In taxation, the limitation on stay orders in new s 14ZZH (small-business taxation assessment decisions) is drafted in deliberately broad terms (“frivolous, vexatious, misconceived, lacking in substance or otherwise intended to unduly impede … the proper administration … of a taxation law”). The explanatory memorandum states that an order that would permanently alter the assessment would fall outside the power. The precise boundary will require judicial elucidation.

Most practitioners will assume that the substitution of “ART” for “AAT” is cosmetic. It is not. Three traps are particularly dangerous.

1. Migration time limits are unforgiving and non-extendable. New s 347(5) of the Migration Act 1958 expressly disapplies s 19 of the ART Act. If an applicant in detention is notified on a Friday, the seven-day period expires the following Friday. There is no power to extend. The old AAT practice of accepting “late” applications where the applicant was not properly notified is now subject to the stricter “properly made” test in new s 348(1).

2. Tax stay orders for small-business assessments are subject to a “systemic” test. New s 14ZZH requires the ART to be satisfied that the application for review and the request for a stay are not frivolous when considered in the context of both the particular circumstances of the decision under review and the overall taxation system. A stay that would defer recovery of $50,000 from a single small business may be refused if granting it would encourage similar applications from thousands of other taxpayers. The note to the section gives examples of orders that would be prohibited (deferral of due date, remission of GIC). Practitioners who file generic stay applications without addressing the systemic dimension risk immediate dismissal.

3. The “election not to participate” fiction in social security. New s 111C of the family-assistance administration Act and new s 94 of the child-support Act deem the decision-maker to have given an election notice under s 60 of the ART Act. The effect is that the Commonwealth is a non-participating party unless the President or a Deputy President orders otherwise under s 63(2). This removes the automatic right of the Secretary to appear and make submissions. It also means that if the ART proposes to make a decision favourable to the applicant the Secretary must first be given an opportunity to elect to participate. Failure to do so may render the decision procedurally unfair.

A fourth, less obvious, gotcha is the interaction between the transitional provisions and the ART Act’s guidance-and-appeals-panel regime. Item 44 of Schedule 16 prevents second review or referral to the panel where the AAT has already conducted what would now be called second review. The provision is drafted as a jurisdictional bar. If a practitioner lodges a referral application under s 123 of the ART Act in ignorance of that bar, the ART must dismiss it, but the 28-day time limit for judicial review under s 477 of the Migration Act 1958 (where applicable) continues to run.

For government agencies:

• Update every template notice, letter, and internal instruction to refer to the ART, the ART Act, and the new section numbers.
• Amend delegations so that the power to appear before the ART is held by the correct officer (usually the Chief Executive Officer of the department, not the former “Registrar”).
• For taxation and migration, build the 28-day document-production obligation into case-management systems; the ART has power under new s 14ZZF(5) and s 165‑25(5) to order lists of documents even beyond the initial 28-day period.
• Train decision-makers on the new “election not to participate” default in social-security matters so that a conscious decision to engage is made only when the case warrants it.

For legal practitioners:

• Maintain separate checklists for taxation objections, migration protection reviews, social-security ART reviews, and veterans’ matters. The procedural law is no longer uniform.
• In migration, advise clients that new claims or evidence filed with the ART will attract a mandatory adverse credibility inference unless a “reasonable explanation” is given (new s 367A). The explanation must be given at the time the material is filed.
• In taxation, address the s 14ZZH systemic test in every stay application; a single-paragraph submission that “the applicant will suffer hardship” is insufficient.
• For transitional matters, obtain a copy of the AAT file immediately after 14 October 2024. The ART is required to treat the proceeding as if it had been commenced under the new law, but any procedural orders already made by the AAT continue in force (item 24(6) of Schedule 16).
• Monitor the first wave of guidance-and-appeals-panel referrals. The President’s power under s 122 of the ART Act to refer a matter on his or her own initiative is new; early decisions will set the parameters for when the panel will intervene.

For self-represented applicants:
The ART website must publish plain-English factsheets for each major jurisdiction (tax, migration, social security, NDIS, veterans). Applicants should assume that the old AAT practice directions no longer apply and that new ART practice directions made under s 36 of the ART Act will govern. Failure to comply with those directions can lead to dismissal under s 100 of the ART Act.

Compliance is not merely a matter of changing the name on the cover sheet. It requires a granular understanding of which provisions of the ART Act have been turned off or modified by the Consequential Act in each subject-matter jurisdiction. The practitioner who treats the Consequential Act as a simple renaming exercise will miss the substantive changes that Parliament has deliberately preserved.