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

The Rules affect a defined set of actors: (1) APS employees in the ART - including those who were AAT employees before the transition and those who commence employment after the transition at covered classification levels. The continuation of the AAT Enterprise Agreement applies to them. The Principal Registrar is also affected as the agency head responsible for those employees. (2) The President of the ART - who must consult the Tribunal Advisory Committee within three months after making a practice direction or establishing a list within the first 28 days (sections 6 and 7). The President also is deemed consulted on assignment of jurisdictional area leaders if the Minister consulted the AAT President before the transition (section 8). (3) The Minister - who assigns jurisdictional area leaders under section 197(1) of the new Act and can rely on pre-transition consultations with the AAT President. (4) Persons with a right to appeal or apply to a court regarding an IAA decision - they can still bring such appeals after the transition as if the old law applied, and the court can remit decisions to the ART rather than to the defunct IAA. (5) Parties to court proceedings relating to IAA decisions - both those commenced but not finalised before transition, and those commenced after transition pursuant to section 10. The court may remit decisions to the ART, and the ART must then review them under Part 5 of the Migration Act without charging a fee. (6) A narrow group of former AAT presidential members - those appointed before 16 May 2005 who were not judges at that time but were subject to the judicial deeming provision. Their pension calculation now uses the salary of a Non‑Judicial Deputy President of the ART instead of the old AAT salary reference. (7) Applicants to the ART - section 9 modifies the application time limit provisions in Schedule 16, which could affect the deadline for lodging review applications. The modification clarifies that subitem (5) is subject to subitem (3) and does not affect paragraph (2)(a), likely resolving a drafting ambiguity in the Schedule. In summary, the Rules impose administrative obligations on ART governance but not on external parties; however, they create procedural rights and obligations for litigants in IAA-related matters and for the pension entitlements of a specific historical cohort.

The instrument creates few new duties and rights; it is mostly interlocking with existing provisions. Duties: The President of the ART must consult the Tribunal Advisory Committee within three months after making any practice direction under section 6 or establishing a list under section 7, if those instruments are made within 28 days after the transition time. This is a backstop , the normal consultation requirement under subsections 36(3) and 196(3) of the new Act is suspended for that initial period, but the President cannot permanently avoid consultation. There is no duty to consult before making the direction or list, only afterwards. Similarly, for assignments of jurisdictional area leaders under section 8, the Minister is deemed to have satisfied the consultation obligation if the Minister consulted the AAT President before the transition. That relieves the Minister of a fresh consultation but does not impose a duty to consult at all , the deeming only applies if the pre-transition consultation actually occurred. Rights: (1) APS employees in the ART have the right to continued coverage by the AAT Enterprise Agreement. This is not a guarantee of unchanged terms; subsection 5(2) expressly permits variation or termination of the agreement under law and variation of individual terms in accordance with those terms or by law. The right is to the continuation of the agreement as a covering instrument, not to its substantive content. (2) Persons who were entitled to appeal an IAA decision to a court immediately before the transition retain that right after the transition, and the old law applies to the making of the appeal (section 10). This is a critical preservation right , without it, the repeal of Part 7AA of the Migration Act could arguably have extinguished those appeal rights. (3) For remittal of IAA decisions to the ART, no fee is payable for ART review (section 12(2)). This is a limited fee exemption; it does not extend to other ART applications. (4) The modified time for applications under section 9 clarifies that subitem (5) of item 20 of Schedule 16 is subject to subitem (3) and does not affect paragraph (2)(a). This is a right to rely on a clearer limitation period; without the modification, the interaction between those subitems could have caused confusion. (5) The pension calculation rule in section 13 ensures that certain former members continue to have a relevant salary reference for the Judges’ Pensions Act after the AAT Act is repealed. The right is to have the appropriate current judicial salary treated as the salary of a Non‑Judicial Deputy President of the ART. This prevents a reduction in pension entitlements caused by the institutional change.

The instrument contains no penalty provisions. It is a purely procedural and transitional instrument, so noncompliance does not carry direct financial or criminal penalties. However, there are indirect enforcement mechanisms through other legislation. For the AAT Enterprise Agreement, any breach is enforceable under the Fair Work Act 2009, which provides for civil penalties, orders for compliance, and compensation. The instrument does not add to or subtract from those remedies. For the consultation duties under sections 6, 7, and 8, failure to comply may expose the President or Minister to judicial review. If a practice direction is made without the required post-hoc consultation within three months, it may be challengeable as ultra vires or procedurally invalid. The instrument does not specify consequences, but general administrative law principles would apply. For the IAA-related provisions, the Rules do not create enforcement mechanisms; they merely preserve existing court jurisdiction and remittal powers. If the ART fails to waive the fee for a remitted IAA decision as required by section 12(2), a party could seek judicial review of that administrative decision. The instrument functions as a set of procedural instructions that courts and tribunals must follow; noncompliance by an ART officer could be remedied through appeal or review under the new Act. The instrument’s legal effect ultimately depends on the enabling Act and the migration and employment laws it references. There is no standalone enforcement agency designated for these Rules; compliance is self-executing through the ART’s obligation to act within its powers and the courts’ supervisory jurisdiction.

The Rules interact with several pieces of legislation. The Fair Work Act 2009 governs the continuation and operation of the AAT Enterprise Agreement; section 5 of the Rules expressly preserves the operation of section 58 of the Fair Work Act (which deals with interaction between multiple enterprise agreements). Variation or termination must still comply with the Fair Work Act. The Public Service Act 1999 is relevant because the Principal Registrar is the agency head for APS employees; the Rules assume that framework continues. The Administrative Review Tribunal Act 2024 (the new Act) is the primary instrument; the Rules modify or suspend certain requirements of that Act , specifically subsections 36(3) and 196(3) for initial practice directions and lists, and subsection 197(1) for assignment consultation. The Administrative Appeals Tribunal Act 1975 is expressly repealed by the enabling Act, but the Rules preserve its effect for limited purposes: the pension deeming provision in former section 16(1) continues to operate for the cohort described in section 13, and the old law continues to apply to certain IAA court appeals. The Migration Act 1958 is heavily affected: Part 7AA (IAA) is repealed, but the Rules ensure that decisions made under that Part are treated as continuing to exist for court purposes, and that remittals result in review under Part 5 of the Migration Act (which governs merits review of protection decisions). The Judges’ Pensions Act 1968 is referenced for pension calculations; the Rules substitute a reference to the salary of a Non‑Judicial Deputy President of the ART for the old AAT presidential member salary. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 is the parent Act; the Rules are made under subitem 51(2) of Schedule 16 and modify items in that Schedule. The interaction with the parent Act is direct and hierarchical: the Rules must not conflict with the enabling Act’s primary provisions. There is no indication of interaction with state or territory legislation; the Rules operate solely within Commonwealth jurisdiction.

The instrument is new and has not been amended. It was made under the enabling Act of 2024 and is likely to remain in force until the transitional period is complete. There is no stated sunset date, but instruments of this nature often become spent once all transitional matters are resolved. Practitioners should check the Federal Register of Legislation for any subsequent amending instruments, as amendments could adjust timeframes, extend exemptions, or add new transitional provisions. As of the date of the instrument, no amendments exist.

The instrument has not been the subject of any reported litigation. Given that it is a set of transitional procedural rules that largely clarifies existing law rather than creating new obligations, it is unlikely to generate standalone litigation. However, there may be challenges to decisions made under the Rules: for example, a practice direction made without the required consultation within three months could be challenged. No such cases have been reported at the time of writing. The instrument’s interaction with IAA decisions and the Migration Act may feature in future cases, particularly regarding the scope of the fee exemption and the treatment of remitted decisions. The court proceeding provisions in sections 10 and 11 essentially preserve existing law, so any litigation will likely be on underlying migration law rather than on the Rules themselves.

Several provisions in the Rules could catch the unwary. Practice directions made within the first 28 days are exempt from prior consultation but must be retrospectively consulted on within three months. A President who neglects that deadline may have made an invalid direction. The same applies to lists under section 7. The Minister can rely on pre-transition consultations with the AAT President to satisfy the consultation requirement for jurisdictional area leader assignments. But there is a factual prerequisite: the consultation must have actually occurred before the transition. If it did not, the Minister might assume the deeming applies and then fail to consult properly. The AAT Enterprise Agreement continues to cover new ART employees at the same classification levels, but this does not lock in terms indefinitely. Employers may vary terms subject to law and the Fair Work Act. New employees who assume their terms are fixed by the old agreement may be surprised if the ART negotiates a new agreement or varies conditions. For IAA decisions remitted to the ART, no fee is payable. However, the ART must treat the review as under Part 5 of the Migration Act. This means the ART applies the protection visa review framework, which has its own procedural rules and time limits , the remittal does not mean a de novo free-for-all. The pension rule in section 13 applies only to a very specific cohort: persons appointed before 16 May 2005 as presidential members who were not judges at that time and who benefited from the judicial deeming provision. Anyone outside that narrow definition does not get the salary substitution. The modification of time for applications under section 9 is deceptively simple. It changes item 20 of Schedule 16 by substituting a new subitem (6). The clarification states that subitem (5) is subject to subitem (3) and that subitems (3) to (5) do not affect paragraph (2)(a). This resolves ambiguity but also means that any assumed time limit based on the original subitem (6) may no longer apply. Applicants and their representatives must recalculate deadlines using the modified Schedule. The instrument does not set a transition time; that is left to the enabling Act or commencement proclamation. Practitioners must verify the actual transition date to know when the 28-day windows start and the consultation obligations kick in.

Compliance with the Rules involves proactive steps for ART management and awareness for external parties. For the ART President: If any practice direction or list is made within 28 days of the transition time, schedule a meeting of the Tribunal Advisory Committee within three months to satisfy the post-hoc consultation requirement. Maintain records of the consultation. For jurisdictional area leader assignments, ensure the Minister consults whether before or after transition; if consultation occurred before transition with the AAT President, document it clearly to rely on the deeming provision. For the Principal Registrar: Adopt the AAT Enterprise Agreement as the governing agreement for APS employees in the ART. Inform new employees that their employment is covered by that agreement, and handle any variations or termination in accordance with the Fair Work Act 2009. Keep a register of classifications covered to ensure new hires at those levels are properly covered. For litigants and practitioners dealing with IAA matters: If you had a right to appeal an IAA decision to a court before the transition, exercise it after the transition using the old law as the procedural framework. File applications for IAA-related judicial review promptly, as the old law continues but the IAA is gone; the court can still deal with the case and refer it to ART. If a court remits a matter to ART, do not pay a fee , the ART must review without charging. Ensure the ART properly treats the remitted matter as a reviewable protection decision under Part 5 of the Migration Act; if not, seek judicial review. For applicants to the ART generally: Be aware of the modified time limit provision in section 9. The Schedule 16 time limits now operate with the substituted subitem (6). Check the interaction between subitems (3), (5), and paragraph (2)(a) carefully: the new subitem confirms that subitem (5) is subject to subitem (3), meaning the overriding provision may be subitem (3) rather than (5). When in doubt, file early. For superannuation or HR administrators: For the narrow cohort of former AAT presidential members described in section 13, update the pension salary reference to use the Non‑Judicial Deputy President salary under the ART. Confirm eligibility: the person must have been appointed before 16 May 2005, not a judge at appointment, and the judicial deeming provision must have continued after that date under the 2005 amendment. Do not apply the new salary reference to anyone outside that class. General compliance tip: The instrument is transparent about its modifications; the risk lies in overlooking the factual preconditions (e.g., whether consultation occurred before transition, whether the person falls into the pension cohort). Maintain clear documentation of all transitional actions and consultations.