4526 - 2-SS - Administrative Review Tribunal Bills

The Law Council of Australia appreciated the opportunity to appear at the public hearing held on Friday, 3 May 2024 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. [...] 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. [...] As you will recall, we 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. [...] Given the jurisprudence set out above, the Law Council does not hold concerns about the constitutional validity of the functions of the President of the Tribunal under the ART Bills. [...] We note that in the response provided by the Attorney-General’s Department to a question taken on notice from Senator Shoebridge on this issue at the Committee’s public hearing on 26 April 2024,8 the Department came to the same conclusion.