General conduct and procedure in the Administrative Review Tribunal

The table below contains the key provisions of the ART Act relating to the general conduct and procedure of reviews and their equivalent provisions in the AAT Act.

Once an application is made, the ART is required by section 21(2) of the ART Act to give written notice of the application to the parties to the review.

The parties to the review are generally the applicant and the decision-maker. There is an exception for reviews of migration or protection decisions made under the Migration Act 1958 (Cth), where the decision-maker is taken to be a non-participating party to the review and will not appear before the ART, make submissions or otherwise participate in the review unless ordered to do so by the President or Deputy President. 

Another person can become a party to the review by making an application under section 22(1)(c)(i) of the ART Act, provided that the ART is satisfied the person’s interests are affected by the decision and it is appropriate that the person become a party to the proceeding.

Representation

The general rules for representation before the ART are contained in section 66(1)-(2) of the ART Act. They are that a party to the proceeding may choose another person to represent them in the proceeding and a person who is required or permitted to appear before the ART (such as a witness) may, with the ART’s permission, choose another person to represent them.

The ART has a discretion in section 66(3) to order that a person is not to be represented by the person’s representative if the ART considers that the representative:

• has a conflict of interest;
• is not acting in the best interests of the person;
• presents a safety risk or an unacceptable privacy risk to any person; or
• is otherwise impeding the ART.

Section 56(1) of the ART Act imposes an obligation on decision-makers and their representatives to use their ‘best endeavours’ to assist the ART to make the correct or preferable decision and achieve the ART’s objective. The obligation to use ‘best endeavours’ to assist the ART to achieve its objective extends to parties to proceedings and their representatives: section 56(2). The intention of section 66(3) is to balance the potential benefit to parties of having representation with the need to set reasonable limits where a representative is not assisting the ART.

Litigation supporters

Section 67(1) of the ART Act enables the ART to appoint a litigation supporter for a party to a proceeding in circumstances where the ART considers that the person does not have decision-making ability and the appointment is necessary, taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding. There was no equivalent provision in the AAT Act and the concept of a litigation supporter has been included in the ART Act to rectify that gap to enable parties to meaningfully participate in proceedings.

In appointing a litigation supporter, section 67(2) requires the ART to take into account the party’s will and preferences, or likely will and preferences, in relation to whether the Tribunal should appoint a person to be a litigation supporter and who the Tribunal should appoint to be a litigation supporter. If a party’s will and preferences or likely will and preferences cannot be ascertained, then the ART must take into account ‘the personal and social wellbeing of the party’.

Sections 67(3)-(10) of the ART Act set out the limitations on who may be appointed as a litigation supporter, the role of a litigation supporter, the duty of a litigation supporter, and the circumstances in which a litigation supporter can resign or be removed from the role.

Particular aspects of section 67 reflect the recommendations of the Final Report into the Disability Royal Commission published on 28 September 2023, including:

• the use of the term ‘decision-making ability’ instead of ‘capacity’ or ‘understanding’ (recommendation 6.9);
• the presumption in section 67(1A) that a person has decision-making ability, and the inclusion of section 67(1B) which makes clear that the presumption is not rebutted solely on the basis that a party has a disability (recommendation 6.7); and
• the inclusion of section 67(5)(a), which enables a party to participate in the proceeding with the support of a litigation supporter (recommendation 6.6).

Interpreters

Section 68 of the ART Act relates to the appointment of an interpreter and provides in subsection (1) that a person may request that an interpreter be appointed for them. Section 68(2) of the ART Act imposes an obligation on the ART to comply with the request unless the ART considers that the person does not require an interpreter to communicate with the ART or understand the evidence and submissions given to the ART.

Where a person does not request an interpreter but the ART considers that a person requires an interpreter, the ART is required by section 68(3) to appoint an interpreter on its own initiative.

Under section 23 of the ART Act, within 28 days of being notified of an application for review, decision-makers are required to give the ART a statement of reasons for the decision and a copy of every other document in their possession or under their control that is relevant to the review (commonly referred to as T-documents). The Common Procedures Practice Direction sets out the formatting requirements for T-documents.

The revised explanatory memorandum explains that the requirements relating to the provision of reasons and documents ensure that the Tribunal has the material it needs to conduct the review and provide visibility and transparency to all parties to the proceeding regarding the material before the Tribunal, which is a key element of procedural fairness and the right of the parties to present their case.

Section 31 of the ART Act provides that once an application has been made, and unless the parties and the ART consent to the alteration, only the ART may alter the decision under review. The provision ensures that decision-makers cannot alter their decisions and interfere with the course of the review.

Relatedly, the effect of section 32 of the ART Act is that the making of an application alone will not have the effect of staying the operation of the decision under review. Rather, a party may seek an application for a stay of the operation or implementation of a decision under section 32(2) of the ART Act, and the ART may make such an order if it considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.