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2nd Supplementary Submission - Administrative Review Tribunal Bill 2023 (Provisions) and related bills

On 3 May 2024, the Law Council of Australia attended a public hearing to assist the Senate Legal and Constitutional Affairs Legislation Committee with its inquiry into the Administrative Review Tribunal Bill 2023 (Cth) (the ART Bill) and related bills.

The Law Council provided a supplementary submission on 6 May 2024, elaborating upon our response at the hearing with respect to natural justice in migration and refugee matters.

The Law Council addressed a separate significant matter.

During the Law Council’s appearance, Senator Shoebridge asked:

One of the witnesses we had at the last hearing raised concerns about potential constitutional problems with having the President [of the Administrative Review Tribunal] be a Chapter III judge as well as having substantial administrative powers, both in the role of President and quite extended administrative powers under the structure of this Bill but also be undertaking the administrative decision-making. Has the Law Council considered that aspect at all?1

The Law Council referred the Committee to the decision in Drake v Minister for Immigration and Ethnic Affairs [1979],2 where, at page 64, Bowen CJ and Deane J said in respect of the Administrative Appeals Tribunal (AAT):3

There is nothing in the Constitution which precludes a Justice of … any … court created by the Parliament under Chapter III of the Constitution from, in his [sic] personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature.

We also emphasised that, while holding the position of a Judge of the Federal Court of Australia is the required antecedent qualification for appointment as President of the Administrative Review Tribunal,4 once an individual commences as President, they will be acting in their personal capacity, rather than as a Judge.5

Read full submission below.


1 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 3 May 2024 (Senator David Shoebridge) 7-8.
2 FCA 39; 24 ALR 577; 2 ALD 60; 46 FLR 409.
3 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 3 May 2024 (Peter Woulfe, Law Council of Australia) 8.
4 Administrative Review Tribunal Bill 2023 (Cth) cl 205(3).
5 Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 3 May 2024 (Peter Woulfe, Law Council of Australia) 8.

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