Administrative Review Tribunal: applying for review of a decision

The table below contains the provisions of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relating to applications for review and their equivalent provisions in the new ART Act.

The ART can review decisions made under more than 400 pieces of federal legislation, including in the areas of migration, freedom of information, privacy, social security, taxation and disability.

The term ‘decision’ is defined in section 4 of the ART Act and is replicated from subsection 3(3) of the AAT Act. While the range of things constituting a ‘decision’ is broad, not all decisions are ‘reviewable decisions’.

Instead, a decision is a ‘reviewable decision’ if an Act or legislative instrument provides for an application to be made to the ART for review of the decision: section 12(1). It is these Acts and legislative instruments that determine the ART’s jurisdiction, rather than the ART Act itself.

The key differences between section 12 of the ART Act and section 25 of the AAT Act are that:

• section 12 uses the term ‘Act or legislative instrument’ rather than the term ‘enactment’ used in the AAT Act, which has the effect of excluding notifiable instruments from providing for applications for review and reflects the position that notifiable instruments do not provide the appropriate level of parliamentary oversight to confer jurisdiction; and
• unlike section 25(3A) of the AAT Act, which referred to decisions by persons to whom power had been delegated and persons ‘lawfully authorised’ to make decisions, section 12(2) of the ART Act operates so that a ‘reviewable decision’ is reviewable even if it is made by a person without lawful authorisation or in the absence of delegation. This reflects the interpretation of similar legislative provisions in Minister for Home Affairs v CSH18 [2019] FCAFC 80.

The ART Act provides that:

• a person whose interests are affected by a reviewable decision may apply to the ART for review of the decision: section 17(1);
• a person may apply even if the person is the Commonwealth or an authority, tribunal or other body established by an Act or an instrument made under an Act: section 17(2); and
• an organisation or association, whether incorporated or not, is taken to be a person whose interests are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association at the time the decision is made and the matter has not been removed from the objects or purposes of the organisation or association.

There are no substantive differences between these provisions and section 27(1) of the AAT Act.

Section 18(1) of the ART Act provides that an application for review must be made within the period prescribed by the Administrative Review Tribunal Rules 2024 (Cth) (Rules). Rules five and six set out the relevant time limits in certain circumstances, all of which are 28 days after a relevant event, namely: after the applicant is given notice; after the applicant is given a statement of reasons; after a request for a statement of reasons is refused; or after an additional statement of reasons is given following a decision by the ART that the first statement of reasons was inadequate.

Section 18(1), read together with the relevant rules, largely reflects section 29(2) and (3) of the AAT Act. Aside from the clarity of section 18, the practical benefit of setting out the relevant time limits in the Rules is that the ART will have more flexibility to amend the Rules, if required, to respond to issues that arise in relation to time limits. 

An applicant may apply to the ART under section 19(1) of the ART Act to extend the period during which they can apply for review. The ART has a discretion to extend the period to apply for review if the ART considers that it is ‘reasonable in all the circumstances to do so’, even if the time for applying has expired: sections 19(1) and (2).

It is important to note that the legislation under which a reviewable decision is made may specify a different period for applying for review of a decision and may prevent the ART from extending time for certain decisions. For migration and protection decisions, an application for review must be made within seven days of notification if the person is in immigration detention and otherwise within 28 days, and the ART does not have the power to extend the time for filing an application for review of these decisions. Relatedly, for character decisions made under the Migration Act 1958 (Cth) where an applicant is in the migration zone, an application must be made within nine days of receipt of the decision and time cannot be extended.

An application for review:

• may be made in writing or in any other manner specified in the practice directions: section 34(1); and
• must include the information specified for the application in the practice directions: section 34(2).

For decisions other than migration and protection decisions, Part 3 of the Common Procedures Practice Direction 2024, issued by the President under 36 of the ART Act, sets out the available ways to apply for review and the information that must be included in an application. Consistent with the ART’s objective of providing an accessible and responsive mechanism of review, the Common Procedures Practice Direction importantly specifies that for social security decisions and decisions made by the National Disability Insurance Agency, an application may also be made by telephoning the registry and providing the necessary application information.

The ART Act makes clear in section 34(3) that a failure to comply with subsection 34(2) does not affect the validity of the application.

It is important to note again that the legislation under which a reviewable decision is made may contain other requirements for applications for review of that type of decision. For example, for migration and protection decisions, the Migration Act 1958 (Cth)and Migration Regulations 1994 (Cth) contain strict requirements for review applications which, if not followed, can result in the invalidity of applications.