The Administrative Review Tribunal: Guidance and Appeals Panel

Established by Part 5 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the purpose of the GAP is to ‘provide a mechanism for escalating significant issues and addressing material errors in Tribunal decisions’, in turn promoting ‘consistent Tribunal decision-making and rapid responses to emerging issues’: Revised Explanatory Memorandum to the ART Bill.

There is no automatic right of review by the GAP. Instead, the President has a discretion to refer matters to the GAP in circumstances where:

1. there is no existing ART decision on an application for review and the President is satisfied that the application for review raises an issue of significance to administrative decision making and the referral is appropriate in the interests of justice (first instance referral): section 122(1); or
2. there is an existing ART decision on an application for review and the President is satisfied that the ART decision raises an issue of significance to administrative decision-making. (second instance referral based on administrative significance): section 128(2)(a); or
3. there is an existing ART decision on an application for review and the President is satisfied that the ART decision may contain an error of fact or law materially affecting the decision (second instance referral based on a possible error of fact or law): section 128(2)(b).

A first instance referral can be made by the President on the President’s own initiative or on the request of a party under section 123. Applications under section 123 must be made within 28 days of the ART’s decision and may only be made in respect of decisions to affirm, vary, substitute or set aside a reviewable decision. This means that applications for referral cannot be made in respect of interlocutory decisions relating to extensions of time or jurisdiction or dismissals for non-appearance or non-compliance: section 123(1) and 125.

Importantly, applications for review of decisions made under the Freedom of Information Act 1982 (Cth) and applications for review in the Intelligence and Security jurisdictional area are not eligible for first instance referrals to the GAP.

In considering whether the referral is appropriate in the interests of justice, the President will consider the circumstances of the parties to the proceeding, including whether a referral is likely to disadvantage a party unfairly or cause an unacceptable delay in reaching an outcome. Relatedly, matters that raise ‘an issue of significance to administrative decision-making’ may include novel matters, matters where there are inconsistent or contrary outcomes in decisions based on similar issues, or matters involving systemic issues requiring guidance.

The Revised Explanatory Memorandum to the ART Bill notes that the threshold for second instance referrals is intended to be high and issues that do not materially affect the ART’s substantive decision should be dealt with through judicial review rather than through the GAP to promote the efficient use of resources.

In addition to whether either of the circumstances in section 128(2) are met, the President must consider the circumstances of the parties and any other relevant matters: section 128(4). These matters might include the financial burden of having a matter heard by the GAP, whether the parties have adequate representation, and whether there are health or safety concerns for any party.

The constitution of the GAP will depend on the type of referral made by the President, namely:

1. for first instance referrals, the GAP must be constituted by two or three members, one of whom must be the President or a Deputy President: section 40(2)-(3);
2. for second instance referrals based on administrative significance, the GAP must be constituted by two or three members, one of whom must be the President or Deputy President and none of whom can be the person who constituted the ART for the purposes of the earlier ART decision: section 41(2)-(4); and
3. for second instance referrals based on a possible error of fact or law, the GAP must be constituted by one, two or three members, none of the members can be the person who constituted the earlier ART, and the presiding member must be equally or more senior than the most senior person involved in making the ART decision: section 42(2)-(7).

Section 130(2) of the ART Act provides that once a referral has been made by the President to the GAP, the person who made the application for referral is deemed to have made an application for review. The effect of this provision is that:

• the ‘proceeding’ is an application for review of a reviewable decision within the meaning of section 4(a);
• the GAP will consider the matters referred to it on a de novo basis or ‘afresh’; and
• the GAP will have available to it all of the powers and procedures of the ART when conducting a first instance review, except for the following provisions which do not apply to matters referred to the GAP (section 130(6)):
  • division 3 of Part 3, which relates to applying for review of a decision;
  • section 21, which requires the parties to be notified of the review application; and
  • section 23, which requires the decision-maker to file T-documents.

To facilitate efficient information-sharing and prevent parties from having to present their evidence twice, the GAP is permitted to have regard to any record of the earlier ART proceeding, any documents given in the earlier ART proceeding, and any order or recommendation made by the earlier ART: section 131. 

As the GAP has available to it all of the powers of the ART when conducting a first instance review, the GAP can make a decision under section 105 of the ART Act to affirm, vary, or revoke the reviewable decision.