IDENTIFYING AND NOTIFYING SYSTEMIC ISSUES

By Justice Emilios Kyrou, President of the Administrative Review Tribunal and Judge of the Federal Court of Australia

Paper presented at the Australian Institute of Administrative Law 2026 National Administrative Law Conference, Canberra, 30 July 2026 

Introduction

The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (ART Bill) makes clear that some key provisions of the Administrative Review Tribunal Act 2024 (ART Act) have been informed by the report of the Robodebt Royal Commission. As is well known, the Royal Commission exposed serious maladministration and profound injustices that were endemic in the Robodebt Scheme. 

For present purposes, the most relevant provisions of the ART Act that were informed by the Robodebt experience are: 
(a)	section 246, which re-established the Administrative Review Council (ARC); 
(b)	section 193(i), which provides that one of the functions of the President of the Administrative Review Tribunal is ‘to inform relevant Ministers, relevant Commonwealth entities and the [ARC] of any systemic issues related to the making of reviewable decisions that have been identified in the caseload of the Tribunal’; and
(c)	section 249(1)(c), which provides that one of the functions of the ARC is ‘to inquire into systemic issues related to the making of administrative decisions and the exercise of administrative discretions’.
Obviously, the function of the President to give notice of systemic issues intersects with the function of the ARC to inquire into such issues.

In the next 15 minutes, I will describe the meaning of ‘systemic issue’ and the processes by which I identify a systemic issue and give notice of it. I will then briefly describe the processes that are followed after a notice is given.  

Meaning of systemic issue

The ART Act does not define the term ‘systemic issue’. The Revised Explanatory Memorandum to the ART Bill contains 33 references to the term ‘systemic issue’. However, it does not explain the meaning of the term. Some guidance is provided in paragraph 1181, which refers to ‘patterns of error or other systemic defects in administrative decision-making’. Further guidance is provided by paragraph 800 which, in the context of discussing what constitutes an issue of significance to administrative decision making under section 122 of the ART Act, refers to ‘a pattern of decision-making that affects significant numbers of people’.  

In broad terms, I consider that a systemic issue for the purposes of section 193(i) of the ART Act is an issue that: 
(a)	is not confined to a particular reviewable decision but is common to a number of reviewable decisions; 
(b)	has an adverse impact on the persons who are the subject of the reviewable decisions; and
(c)	arises from the repeated application of policies, practices or procedures - or interpretations of the law - by an agency in making reviewable decisions of a particular kind. 

Identification of systemic issues  

Because the Tribunal reviews decisions made under more than 400 federal legislative instruments and finalises over 65,000 cases per year, it is impossible for the President to be personally aware of which cases may raise a systemic issue. The ART Act recognises this. Section 197(5)(f) provides that one of the functions of jurisdictional area leaders is ‘to identify systemic issues related to the making of reviewable decisions arising in the caseload of the jurisdictional area and to inform the President of those issues’.

The President, the jurisdictional area leaders and the Principal Registrar are standing members of the Tribunal Advisory Committee (TAC) that is established by section 236(1) of the ART Act. Under paragraphs (e) and (f) of subsection 236(4), the TAC’s functions include: ‘to oversee trends and patterns across, and systemic issues arising in, the jurisdictional areas’ and to advise the President accordingly.  

Given the scale of the Tribunal’s operations, I have formed the view that responsibility for identifying systemic issues should not be confined to the President, the jurisdictional area leaders and the TAC, but should be the shared responsibility of all members and staff of the Tribunal. I have given effect to this view by both informal and formal means. 

The informal means have involved encouraging members and staff at internal forums and training sessions to be on the lookout for systemic issues in any cases with which they may be dealing. 

The formal means have involved the adoption of a protocol titled ‘Notification of Significant Matters to the President’. This protocol deals with five categories of significant matters that members and staff can bring to my attention through a jurisdictional area leader or the Registrar of the Guidance and Appeals Panel. 

One of the five categories is described as ‘matters raising systemic issues related to the making of reviewable decisions by decision-makers’. The protocol gives the following examples of issues that may qualify under this category:
	
(a)	regular misapplication of the law by an agency; 
(b)	regular failure by an agency to comply with orders or directions made by the Tribunal or by a court or another tribunal; 
(c)	an agency regularly failing to provide applicants with procedural fairness before making a decision; 
(d)	an agency regularly failing to make a reviewable decision within an appropriate timeframe; 
(e)	regular non-compliance by an agency or their representative with the Model Litigant Obligations contained under the Legal Services Directions 2017; or 
(f) 	regular instances of an agency engaging in conduct which is lacking in probity, integrity or transparency, or is otherwise indicative of inappropriate disregard for the rights, interests or welfare of individuals with which it deals. 

Process for notifying a Minister or agency of a systemic issue 

Where I am satisfied that an issue may be a systemic issue for the purposes of section 193(i) of the ART Act, my practice is to write to the head of the relevant agency setting out the potential systemic issue, and inviting the head of the agency to provide comments to assist me to decide whether I should give a notice of systemic issue to the agency and the responsible Minister. 

This is the process that I followed in relation to the two notices of systemic issues that I have given to date. They are the Notice of Systemic Issue No 1 of 2024 (2024 notice) and the Notice of Systemic Issue No 1 of 2025 (2025 notice).

The 2024 notice identified the systemic issue as follows: 

Whether a respondent agency should apply the Tribunal’s interpretation of a provision of a statute in a case (primary case) in subsequent cases involving the same provision, rather than continuing to apply its own preferred interpretation of the provision, unless and until the Tribunal’s decision in the primary case is set aside or varied?

I identified this systemic issue personally following the Tribunal’s decision in FTXB and the Secretary, Department of Social Services. That case interpreted a provision of the Social Security Act 1991 dealing with income apportionment. The Secretary of the Department of Social Services did not agree with the Tribunal’s interpretation and decided not to apply it, pending the determination of an appeal. I formed the view that the Secretary’s decision gave rise to a broader issue of whether respondent agencies should apply an interpretation of the law by the Tribunal unless and until that interpretation was overturned by a court. 

The 2025 notice identified the systemic issue as follows: 

Financial hardship (which may sometimes be severe) is caused to recipients of family assistance benefits under the A New Tax System (Family Assistance) (Administration) Act 1999 by the Commissioner of Taxation (Commissioner) offsetting under section 87 of that Act income tax refunds due to those recipients against debts claimed from the recipients in respect of alleged overpayments of such benefits, in circumstances where: 
(a)	many of the recipients are vulnerable individuals, some of whom rely upon the expected income tax refund to meet basic life necessities; 
(b)	the offsetting process is automated, without any consideration being given to the circumstances of the recipient, including whether an approved repayment arrangement or repayment pause is in place between the recipient and Services Australia acting on behalf of the Secretary of the Department of Social Services (Secretary); 
(c)	the failure to take the recipient’s circumstances into account may constitute a jurisdictional error which enlivens the power of the Commissioner to reverse the offset; 
(d)	the Commissioner’s notice of assessment and statement of account which refer to the offset do not advise the recipient of any avenues of review if the recipient is aggrieved by the offset, including the Commissioner’s power to reverse the offset referred to in (c); and 
(e)	both the Secretary and the Commissioner contend that the offsetting of an income tax refund does not give rise to a decision either of the Secretary or the Commissioner, which is reviewable by the Administrative Review Tribunal.

This systemic issue was identified by a member of the Tribunal’s registry staff who considered that cases before the Tribunal displayed a pattern of similar decision-making by Services Australia that was causing financial hardship to family assistance benefit recipients. The issue was brought to my attention after the staff member referred it to the relevant jurisdictional area leader.  

I sent both notices to the head of the relevant agency, the responsible Minister and the ARC. I then posted them on the Tribunal’s website.

Consideration of the systemic issues by the ARC

The ARC is not obliged to conduct an inquiry into a notice of systemic issue notified by the President of the Tribunal. Furthermore, the ARC may conduct an inquiry into a systemic issue on its own initiative. The ARC may identify a systemic issue independently of a notice from the President either from its own knowledge or from information it receives from other sources. The systemic issues into which the ARC can conduct an inquiry independently of a notice from the President do not need to be identified from the caseload of the Tribunal.

Where the President of the Tribunal gives a notice of a systemic issue to an agency or Minister, the agency or Minister is required by section 294B of the ART Act to inform the ARC, within 3 months after that notice is given, of the action the Minister or agency has taken or proposes to take in relation to the systemic issue. The ARC takes into account any information it receives from the agency or the Minister in deciding whether to inquire into the notice given by the President. 

Section 264(2) of the ART Act requires the ARC to include in its annual report ‘a description of any systemic issues related to the making of reviewable decisions that the President has informed the [ARC] of during that year’ and ‘a description of any information given to the [ARC] under section 294B during that year’. Section 264(3) provides that the ARC may include in an annual report ‘a description of any actions taken by the [ARC] during that year in response to a systemic issue related to the making of reviewable decisions’.

The ARC has published a document titled ‘Procedure for Responding to Systemic Issue Reports’. That document sets out the considerations that the ARC will take into account in deciding whether to inquire into a systemic issue and the procedures it will follow in conducting an inquiry. One of the considerations is ‘the seriousness of the systemic issue, including whether it has the potential to cause harm to individuals and/or to undermine the public’s trust and confidence in administrative decision making and the exercise of administrative discretions’. 

The ARC has also published a document titled ‘Conflicts of Interest Procedure’ to give guidance to members of the ARC in relation to the declaration of conflicts of interest and to clarify the procedure that will be followed where such a declaration is made. That document reflects the provisions of section 259 of the ART Act. 

In accordance with the ARC’s ‘Conflicts of Interest Procedure’ document, I declare a conflict of interest in relation to any notice of systemic issue that I give to the ARC. As a result of the declared conflict, I can provide to the ARC any background information it may request to assist its consideration of the notice. However, I am not present in the meeting room when the ARC discusses and makes decisions on the notice.

In the case of the 2024 notice, the ARC decided not to conduct an inquiry. However, on 23 June 2026, it published a ‘Statement of Position’ on ‘Agency Implementation of Court and Tribunal Decisions’. In its introduction, the Statement of Position identifies its purpose as the giving of guidance to government agencies in implementing decisions of courts and tribunals made in review of agency decisions.

In relation to the 2025 notice, on 24 November 2025, the ARC decided to conduct an inquiry. That inquiry is ongoing.

Conclusion

Since the establishment of the Tribunal and the re-establishment of the ARC, Australia has not experienced another instance of maladministration of the scale of the Robodebt Scheme. However, we cannot be complacent. The provisions in the ART Act to which I have referred provide a mechanism for identifying and dealing with systemic issues of all kinds. These provisions are an important safeguard against the repetition of a Robodebt-type tragedy as well as other forms of systemic maladministration. That is of vital significance because hardship and injustice can be just as devastating for vulnerable members of the community, even with less serious forms of systemic maladministration.