Note: The Administrative Review Tribunal (ART) came into operation from 14 October 2024. The ART replaces the administrative Appeals Tribunal (AAT) which ceased from 14 October 2024. The ART has the same jurisdiction as the AAT, and all existing AAT matters are automatically transferred to the ART from 14 October 2024.

Note: The Administrative Review Tribunal Act 2024 comprises two pieces of secondary legislation: The Administrative Review Tribunal Regulations 2024 and the Administrative Review Tribunal Rules 2024. The Regulations largely deal with the composition and assessment of ART panels/members, whilst the Rules generally set out fees, time periods, matters of form and operative details of the ART. Both come into force from 14 October 2024.

In this topic:

What decisions are reviewable by the ART

Procedure

Nature of review

Effect on implementing the decision

Role of the Commissioner

What decisions are reviewable by the ART

Section 224 and reg 22.26 list the decisions under the Act and Regulations that are reviewable by the ART.

These include decisions under:

Section 223 - Extensions of time

Section 32 - Disputes between applicants

Section 74 - Refusal under s74(3) of an application for an extension of term

Where a decision is issued that is reviewable by the ART, the statement of reasons, or more usually the covering letter, must indicate that fact i.e. provide notice of the decision as per section 266(5) of the ART Act. The decision maker must take reasonable steps to give notice of a decision to any person whose interests are affected by the decision. In issuing a notice of the decision, the Commissioner must also have regard to Rule 16 of the ART Rules; see also section 267 of the ART Act.

Note: Section 4 of the ART Act defines a statement of reasons for a decision as a written statement that does all of the following: (a) sets out the findings on material questions of fact; (b) refers to the evidence or other material on which the findings are based; and (c) explains the reasons for the decision.

Procedure

The procedure for seeking review is set by the Administrative Review Tribunal Act 2024 and associated Regulations. Information is available from the ART.

The right to seek review is not limited to the parties who were involved in the particular matter leading to the decision concerned. The ART Act specifically gives a right of review to persons whose interests are affected by the decision (see section 17 of the ART Act, which outlines what are reviewable decisions). It also provides for other affected parties to be joined in the proceedings, such as where the matter before the Commissioner was an opposition or dispute between applicants.

The time limits for filing an appeal to the ART are set out in section 18 of the ART Act and in Rule 5 of the ART Rules. In general, the time is 28 days after the day the applicant is given notice of the decision in writing or, where the applicant is given a statement of reasons for the decision, 28 days after the applicant is given the statement of reasons. However, the Tribunal may, upon application, extend the time for applying for a review of a decision (section 19(1) and do so even though the time to request a review has expired (section 19(3)).

Notification of the application for review of a decision will be provided to the Commissioner by the ART. On receipt of this the Commissioner will prepare and arrange filing of the documents required by section 23 of the ART Act (according with the relevant ART Practice Directions here) .

Section 268 of the ART Act allows a person, whose interests are affected by a reviewable decision to request, in writing, the decision maker provide a statement of reasons for the decision (see note above). This is required to be done within 28 days of receipt of the request (section 269(2) of the ART Act). The decision maker may refuse this request if the person has already been given a statement of reasons for the decision (section 269(7) of the ART Act). Where the decision maker declines to provide a statement of reasons as per section 268, section 270 of the ART Act allows a person to apply to the ART to compel the decision maker to provide a statement of reasons.

Nature of review

The powers of the Tribunal on appeal are stated in section 105 of the ART Act to be:

“In relation to the reviewable decision, the Tribunal must make a decision:

affirming the reviewable decision; or
varying the reviewable decision; or
setting aside the reviewable decision and:
1. making a decision in substitution for the reviewable decision; or
2. remitting the matter to the decision‑maker for reconsideration in accordance with any orders or recommendations of the Tribunal.”

Section 54 of the ART Act allows the ART to exercise all the powers and discretions of the decision maker of the decision under review, whilst section 108 of the ART Act establishes that decision varied or substituted by the ART are generally taken to be decisions of the decision maker. See also section 85 of the ART Act regarding remittal of a decision during proceedings.

Consequently, the ART is empowered to substitute itself for the primary decision maker and to determine the correct and preferable decision that should be made under the legislation. In this it can consider questions of both fact and law.

Effect on implementing the decision

An application to the ART for review of a decision does not normally have the effect of staying the decision - see section 32(1) of the ART Act.

A party to the proceedings may seek a stay of the decision under section 32(2) of the ART Act, which provides:

“(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.”

The making of an order staying a decision is subject to sections 32(7) to 32(9) of the ART Act. In effect, these mean the ART cannot make, vary or revoke an order staying a reviewable decision or otherwise affecting its operation or implementation unless it has:

(a) given the parties to the proceeding a reasonable opportunity to make submissions about the order; and

(b) taken into account the interests of any person who may be affected by the review of the decision.

However, the Tribunal may make, vary or revoke an order without giving a party an opportunity to make a submission if the Tribunal is satisfied that it is not practicable to give the party the opportunity. In these circumstances, the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.

The effect of a stay is governed by sections 32(3) to 32(6) of the ART Act, which provide:

“(3) The order is subject to any conditions specified in the order.

(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.

(5) Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the application for review comes into operation;

the order has effect until the end of the period.

(6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.”

As a result, a stay is usually effective until the decision of the ART comes into operation. This is generally when the ART decision is given to the parties as per section 107 of the ART Act. See also section 111 of the ART Act, which covers the provision of a decision and statements of reasons to the parties.

Role of the Commissioner

The Commissioner is automatically a party to any application for review filed with the ART. However, the role taken by the Commissioner is dependent on the circumstances including whether another party has been joined – in these circumstances, the Commissioner may elect to be a non-participant as per sections 60 to 64 of the ART Act and ART Rules 7 to 12. Similar considerations apply to the Commissioner’s role in appeals - see 7.14.1 Appeals to the Federal Court.

Amended Reasons

Amended Reason	Date Amended
Page updated to reflect replacement of Administrative Appeals Tribunal (AAT) to Administrative Review Tribunal (ART)	11 Oct 2024
	18 Oct 2023