In October 2024, the Administrative Review Tribunal Act 2024 (Cth) (ART Act) established the new Administrative Review Tribunal (Tribunal), which included a new form of appeal under the Tribunal known as the Guidance and Appeals Panel (GAP).

This article considers the decision made by President Justice Kyrou, on 6 December 2024, which provides guidance for the process of referral applications to the GAP, and the Tribunal’s powers to refuse or accept these applications.

Section 128(1) of the ART Act provides that if a person applies to refer a Tribunal decision to the GAP, the President may refer the Tribunal decision to the GAP or refuse the application. Section 128(2)(b) provides that the President ‘may refer the Tribunal decision…. if satisfied that the decision may contain an error of fact or law materially affecting the Tribunal decision’.

President Justice Kyrou’s decision was confined to examining whether there was an error of fact or law, and did not need to address s128(2)(a) ‘an issue of significance to administrative decision making’ which is the alternate legislative limb for accepting referrals.

The following are key considerations of President Justice Kyrou’s decision and operation of the GAP decision making processes.

Absence of requirement to provide reasons for a decision:

Where a decision is made under s128(1) of the ART Act to grant or refuse an application to refer a Tribunal decision to the GAP, the President is not required by the Act to provide reasons for their decisions.

The absence of a requirement to provide reasons for a decision recognises two significant practical considerations. The first being that if reasons were provided by the President for a decision referred to the GAP, this may be seen to pre-empt the review outcome made by the GAP, as well as avoid any awkwardness around discouraging parties appealing to the Federal Court, and the President making findings on matters being decided by the Court.

Secondly, not having to provide reasons for a decision upholds the statutory objectives of the Tribunal contained in s9 of the ART Act which include to ensure that applications are resolved quickly, with little formality and expense as considerations, assisting in promoting the public trust and confidence in the Tribunal.

Therefore, a decision under s128(1) of the ART Act will be communicated by a notice of decision in accordance with s129(2) rather in the form of  a decision and statement of reasons.

General Principles for Referral

Granting an oral hearing for a referral application:

Paragraph 6.2 of the Administrative Review Tribunal (Guidance and Appeals Panel) Practice Direction 2024 (GAP Practice Direction) provides that the President will determine whether to grant or refuse a referral request without conducting an oral hearing, except where the party seeks an oral hearing, and the President determines an oral hearing is necessary in the interests of justice.

This approach further aims to promote the upholding of statutory objectives through prompt determination as to whether matters are referred to the GAP, as well as to avoid a multiplicity of hearings and the additional costs and delays associated with them. Generally, the information and submissions provided by the parties will be sufficient on their own.

Granting an order staying a Tribunal decision:

Section 127(1) of the ART Act provides that, upon application by a party, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the Tribunal decision the subject of a referral application…. if the Tribunal considers it desirable for the purposes of effectiveness.

However, a stay order will not be granted as a matter of course, with Section 127(2) of the ART Act outlining that the power to make such an order is discretionary. Key considerations of the President around the granting of a stay order include an examination of any prejudice to the party seeking a stay, as well as the party opposing a stay.

Meaning of ‘may contain an error of fact or law’:

As outlined above, Section 128(2)(b) of the ART Act provides that a decision may be referred to the GAP where it ‘may contain an error of fact or law’.

An error of fact or law will not be considered to have been made in circumstances where multiple Tribunal members draw differing reasonably open inferences from a primary fact. Instead, an error of fact or law may be determined to have been potentially made where a primary fact is explicitly incorrectly stated or interpreted.

The second element of this section is the ‘may contain’ component. The word ‘may’ indicates that it is not necessary for the President to conclude a Tribunal decision definitely contains an error of fact or law, and instead the possibility that such an error has occurred may suffice.

In the opinion of ART President Justice Kyrou, the underlying principle which underpins the ‘may contain’ component is that the stronger the possibility of error, the greater the prospect that the requirement that a Tribunal decision may contain an error of fact or law will be satisfied.

Meaning of ‘Materially affecting the Tribunal decision’:

In addition to the potential of an ‘error of fact or law,’ such error must have had a material impact upon the Tribunal’s decision.

An error will be considered to have had a ‘material’ impact upon a decision where had the error not been made, there is a ‘realistic possibility’ that the outcome of the proceeding could have been different. The possibility will not be considered as realistic where it is fanciful or entirely abstract.

Discretionary considerations of GAP:

A key feature of the GAP are the discretionary considerations relevant to referral. Despite the preconditions outlined above, the President retains a discretion to refuse to do so even when the preconditions are met.

In addition to the preconditions, the President may consider the circumstances of the parties and any other matters which they deem relevant to their decision. This may include the financial burden on parties to have a matter heard by the GAP, risk of trauma that further proceedings may have, as well as whether parties have adequate representation.

Additionally, it is relevant for the President to consider the nature and volume of cases waiting to be heard by the Tribunal, in order to promote and uphold the Tribunal’s statutory objective. Such a consideration is particularly pertinent in the current circumstances of the Tribunal, due to the large volume of cases inherited from its predecessor, the Administrative Appeals Tribunal.

Ultimately, the President of GAP has discretion over whether to refer a Tribunal decision to the GAP, regardless of the outlined preconditions.

Decision of the Tribunal

In the recent decision of the Tribunal, President Justice Kyrou’s denied the application for referral. The application had been made by a self-represented Applicant who alleged numerous errors of fact and law. The Applicant requested an oral hearing and sought a stay of the decision.

In making his decision against the referral application President Justice Kyrou considered the following main points:

Firstly, in relation to an oral hearing, President Justice Kyrou noted that neither of the two Respondents had requested an oral hearing. Additionally, the provided written submissions had clearly articulated the Applicant’s contention. An oral hearing was therefore not considered necessary in the interests of justice.

Secondly, in considering errors of facts or law, the alleged misunderstanding in the legal effect of the Tribunal decision was at the low end of possibility. Other alleged errors of fact were considered to relate to inconsequential details rather than primary facts and were insufficient to warrant the referral to the GAP.

Lastly, as the application referral was dismissed, the application for a stay of the Tribunal decision was no longer relevant and was also rejected.

Key Take Aways

This guiding decision by President Justice Kyrou, helpfully provides us with general principles in referral applications, which can be followed in subsequent applications. In our view this decision sets a reasonably high bar to have matters heard for additional review before the GAP under s128(1). We await further guidance from the Tribunal in relation to matters which may be considered issues of significance to administrative decision making under s128(2).

Further information / assistance regarding the issues raised in this article is available from the author, Madelaine August, Partner, Genevieve Rush, Senior Associate or your usual contact at Moray & Agnew. This article was co-authored with the assistance of Tom Curtain, Paralegal.