Hearings and evidence in the Administrative Review Tribunal

The table below contains the key provisions of the ART Act relating to hearings and evidence and their equivalent provisions in the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

Section 69(1) of the ART Act provides that the ‘hearing of a proceeding’ must be in public, unless:

• the practice directions specify that the hearing or part of the hearing is to take place in private or only the persons specified in the practice directions may be present (section 69(2)); or
• the ART, by order, directs that the hearing or part of the hearing is to take place in private and gives directions in relation to the persons that may be present (section 69(3)).

The notation to section 69(1) clarifies that the ‘hearing of a proceeding’ is the substantive hearing, which reflects the definition in section 4 of the ART Act. The Common Procedures Practice Direction sets out a list of the types of reviews that must be held in private (at [5.5]), including reviews of protection decisions and reviews of decisions in the Intelligence and Security jurisdictional area.

Section 70 of the ART Act empowers the ART to give directions prohibiting or restricting the publication or other disclosure of information:

• tending to reveal the identity of a party or witness or any person related to or otherwise associated with a party or witness: section 70(1); and
• that relates to a proceeding and comprises evidence or information about evidence or information given to the ART: section 70(2).

Section 70(4) permits the ART to make an order prohibiting or restricting the publication of information on application by a person or on its own initiative.

Section 71(2) sets out the mandatory considerations for the ART in considering whether to make an order under section 69(3) or section 70 of the ART Act. It reflects the general principle that an adequate balance needs to be struck between open justice and the need to protect certain information where harm could result if an order is not made.

Subclause 74(1) permits the ART to summon a person to appear to give evidence or produce any document specified in the summons if the ART has reasonable grounds to believe that the person has information, or a document or thing, relevant to a proceeding. The ART may issue a summons on its own initiative, or at the request of a party (section 74(3)) and may refuse a request for a summons by a party (section 74(4)).

Once a summons is issued, the day to appear before the ART or produce documents must be at least 14 days after the summons is given to the person: section 74(1). The revised explanatory memorandum to the Administrative Review Tribunal Bill 2024 explains that this provision balances the need for conducting proceedings in a timely manner with the need to ensure a person is given reasonable notice to respond to a summons.

Practitioners should also be aware that documents produced under summons are subject to the implied undertaking (commonly referred to as the Harman undertaking), which prohibits the use and disclosure of those documents for purposes external to the proceedings in which they were obtained: Hearne v Street (2008) 235 CLR 125.

A ‘case event’ in the ART includes the hearing, a directions hearing, and dispute resolution processes: section 4. Section 72 of the ART Act is a new provision with no equivalent in the AAT Act. It requires the ART to give written notice to participating parties of the date, time and place of a case event before the case event. The provision is intended to promote procedural fairness by ensuring all participating parties are informed of upcoming case events, thereby affording parties the opportunity to attend these events to present their case.

If the ART is satisfied a party received appropriate notice of the case event but the party is absent, then the ART can exercise the discretion to:

• proceed with the case event in the absence of the party (section 81); or
• adjourn the case event (section 82); or
• order that the party (other than the applicant or a non-participating party) ceases to be a party to the proceeding (section 83).

Section 4 of the ART Act defines ‘dispute resolution process’ as a procedure or service for the voluntary resolution of disputes, including conference, mediation, neutral evaluation, and conciliation.

Section 87 of the ART Act empowers the ART to direct at any time during a proceeding (other than a guidance and appeals panel proceeding) that the proceeding be referred to a dispute resolution process and that a member, registrar or person engaged under section 90(1) conduct the dispute resolution process.

The notation under section 87(1) provides that a non-participating party to the proceeding is not required to appear at a dispute resolution process unless the ART orders the party to do so under section 63. This means that the ART can engage in dispute resolution with a single party or with parties other than the decision-maker if the decision-maker is a non-participating party.

This provision promotes the ART’s objective of providing an informal and non-adversarial method of merits review.