Decision-making powers in the Administrative Review Tribunal

The table below sets out the key provisions of the ART Act relating to the ART’s decision-making powers and their equivalent provisions in the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

Division eight of the ART Act contains the ART’s decision-making powers on review.

The ART’s general decision-making powers are set out in section 105 of the ART Act, which requires the ART on review of a reviewable decision to either: (a) affirm the reviewable decision; (b) vary the reviewable decision; or (c) revoke the reviewable decision and make a decision in substitution or remit the matter to the decision-maker for reconsideration.

A decision of the ART comes into operation when it is given to the parties to the proceeding, unless the ART specifies that the decision comes into operation at a later date, makes an order staying the reviewable decision, or an order of the ART or the Federal Circuit and Family Court of Australia (Division 2) provides that the decision comes into operation at a different time: section 107(1)-(6).

There are several circumstances in which the ART has a discretion, or is required, to dismiss an application at an early stage.

Section 99 of the ART Act confers a discretion to dismiss an application if the applicant fails to appear at a case event and the ART is satisfied that the person received ‘appropriate notice’ of the date, time and place of the case event. The Explanatory Memorandum to the ART Bill explains that in light of the ART’s obligation in section 55 to ensure that parties have an opportunity to present their case, the discretion to dismiss an application under section 99 should be exercised ‘sparingly’.

Section 100 of the ART Act empowers the ART to dismiss an application if the applicant fails to proceed with the application or fails to comply with the ART Act or an order of the ART ‘within a reasonable time’. What is ‘reasonable’ will depend upon the circumstances of each case, including any history of non-compliance and the interests of other parties. The provision reflects the principle that it is incumbent upon an applicant to take the steps necessary to progress their application.

Section 101(1) of the ART Act permits the ART to dismiss an application if it is satisfied that the application is: frivolous, vexatious, misconceived or lacking in substance; or has no reasonable prospects of success; or is otherwise an abuse of the process of the Tribunal.

Where an order is made under section 101(1), section 101(2) empowers the ART to make an order preventing the applicant from making a subsequent application to the ART of a specified kind without leave of the ART. This promotes the ART’s objective of resolving applications in a timely and inexpensive manner by preventing an applicant from repeatedly bringing meritless applications. The substantive difference between this provision and the now defunct section 42B(2) is that the ART has the power to make an order preventing subsequent applications ‘on its own initiative’.

Applications may also be finalised early where:

• The applicant gives written notice to the ART or notifies the ART in another manner specified in the practice directions to withdraw an application under section 95.
• The ART has the consent of the participating parties to the proceeding to dismiss the application under section 96.
• An application is required to be dismissed under section 97 because the ART is satisfied that the decision is not reviewable (for example, because the ART does not have jurisdiction, the application is out of time and an extension cannot be granted or is refused, or the person who brought the application does not have standing).
• The ART exercises the discretion to dismiss the application under section 98 because the prescribed fee is not paid within the prescribed time period.

Where an application is dismissed under sections 20, 84, or 95 to 101, section 102 of the ART Act provides that the ART has the power to reinstate the application in certain circumstances.

Reinstatement based on error

Section 102 is equivalent to section 42A(8)-(11) of the AAT Act but, importantly, it now permits the ART to reinstate an application (other than an application dismissed by consent under section 96) on its own initiative if it considers that the application was dismissed in error: section 102(2). The ART may otherwise reinstate an application on an application by a party to the proceeding, if the ART considers that the application was dismissed in error: section 102(5)-(6).

Like section 42A of the AAT Act, there is no qualification or limitation on the word ‘error’ in sections 102(2) and 102(6). That is, it is not confined to an ‘administrative’ error or an error by the ART and can include an error by another person, including a representative: Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383.

Reinstatement in other circumstances

If an application is dismissed under sections 95 (applicant withdrawal), 99 (non-appearance) or 100 (non-compliance), then a party may apply to the ART for reinstatement within 28 days after receiving notice that the application is dismissed: section 102(7). The ART may reinstate the application in these circumstances if the ART ‘considers it appropriate’: section 102(9). 

Where the parties to a review have independently resolved the dispute by agreeing to acceptable terms of a decision (terms of agreement), reducing the terms of agreement to writing and signing them, the ART may make a decision in accordance with the terms of agreement if it is satisfied that the decision proposed would be within the powers of the ART: section 103(1)-(3).

Importantly, section 103 no longer contains a requirement that the ART consider whether it is ‘appropriate’ to make a decision in accordance with the terms of agreement. Instead, provided that the parties agree to the proposed terms and the proposed decision is lawful (in that the ART has the power to make it), the decision can be made by consent.