6 May 2024 Office of the President

The Law Council is not convinced by the suggestion that the purpose of the Code is to make decision-making easier by avoiding the requirement for Tribunal members to “dive into effectively the nuances of common law natural justice in any given case”.3 11. [...] There are at least three perspectives that illustrate the complexity—and disruptive force—of the Code, as it is intended to be retained under the Administrative Review Tribunal: • the text of the proposed provisions; • the design of the Tribunal; and • the philosophical complexity of the Code. [...] In particular, the Code is incompatible with the above design features of the Tribunal and it will disrupt its basic operations, as made explicit by, for instance, the disapplication of clauses 27 and 55 of the ART Bill under the proposed changes to the Migration Act by the Consequential No. [...] The incongruity of the Code with the design of the Tribunal will make it difficult to apply and is likely to undermine the efficient and coherent operation of the Tribunal. [...] The approach in the Guide reflects that the actual dichotomy in question is between common law interrupted by statutory provisions versus the common law, rather than the Code versus the common law, given the reality that Australia is a common law system.