Administrative Tribunals and Merits Review in Australia: The Administrative Review Tribunal and the Review of Government Decisions

Administrative Tribunals and Merits Review in Australia: The Administrative Review Tribunal and the Review of Government Decisions

Introduction

Administrative decisions shape the relationship between individuals, businesses and the Australian state. Government authorities determine applications for visas, social security benefits, citizenship, professional licences, veterans’ entitlements, disability support, taxation matters and many other forms of public assistance or regulation. Although these decisions are made under statutory authority, the original decision-maker may misunderstand the law, overlook relevant evidence, make an incorrect factual assessment or reach an outcome that is not the correct or preferable decision in the circumstances.

Australian administrative law therefore provides mechanisms through which certain government decisions can be reconsidered. One of the most important is merits review: an independent examination of the substance of an administrative decision, including the relevant facts, law and, where appropriate, policy considerations. Unlike judicial review, which asks whether a decision was legally valid, merits review asks what decision should properly be made under the governing legislation.

At the Commonwealth level, the principal institution responsible for merits review is the Administrative Review Tribunal (ART). It commenced operation on 14 October 2024, replacing the Administrative Appeals Tribunal (AAT) following a substantial reform of the federal administrative review system. The ART was established to provide independent, accessible and fair review of government decisions, with an institutional framework intended to strengthen public confidence, improve accountability and make the review process more responsive to the needs of applicants.

The ART does not have a general power to reconsider every government decision. Its jurisdiction must be conferred by legislation, and the relevant statute determines which decisions may be reviewed, who may apply, what powers the Tribunal may exercise and whether further review or appeal is available. State and Territory jurisdictions also maintain their own tribunals and administrative review arrangements.

This article examines the legal foundations of merits review in Australia, the establishment and structure of the ART, its jurisdiction and procedures, the powers it exercises, the relationship between merits review and judicial review, and the wider role of administrative tribunals in promoting lawful, consistent and accountable government decision-making.

Key Takeaways

• Merits review is a fresh examination of the substance of an administrative decision. The reviewer considers the relevant facts, law and, where applicable, policy to determine the correct or preferable decision.
• The Administrative Review Tribunal (ART) commenced on 14 October 2024 and replaced the Administrative Appeals Tribunal (AAT).
• The ART is governed principally by the Administrative Review Tribunal Act 2024 (Cth), together with the legislation that confers jurisdiction to review particular decisions.
• The ART can review decisions made under more than 400 Commonwealth Acts and legislative instruments, but it has no general jurisdiction over all government decisions.
• Its jurisdiction includes migration, protection, citizenship, social security, child support, taxation, the National Disability Insurance Scheme, veterans’ entitlements, workers’ compensation, information access and regulatory matters.
• The Tribunal is not bound by the ordinary rules of evidence and may adopt procedures appropriate to the case, while ensuring that parties have a reasonable opportunity to present their cases.
• Depending on the legislation, the ART may affirm, vary or set aside an original decision, substitute a new decision or remit the matter to the original decision-maker.
• The Guidance and Appeals Panel provides a mechanism for addressing significant issues and certain material errors in Tribunal decisions.
• An application to the ART does not automatically suspend the original decision. A separate stay or interim order may be necessary.
• The ART is distinct from the federal courts. Judicial review examines legality, whereas the ART reconsiders the merits.
• State and Territory tribunals, including NCAT, VCAT, QCAT and SACAT, exercise their own statutory administrative review jurisdictions.
• Review rights, application deadlines, fees and procedural requirements vary considerably. The legislation and the decision letter must be checked for each case.

1. The Meaning and Purpose of Merits Review

Merits review is a process through which an administrative decision is reconsidered by an independent person or body authorised by law to review its substance.

The central question is not simply whether the original decision-maker acted lawfully. Instead, the reviewer considers the relevant material afresh and determines what decision should be made under the applicable legislation.

The expression correct or preferable decision is central to Australian administrative law.

A decision is generally described as correct where the law and relevant facts permit only one lawful outcome. It is described as preferable where the law allows a range of lawful outcomes and the reviewer must determine which one is most appropriate in the circumstances.

For example, imagine that a government agency refuses an application for a particular benefit because it concludes that the applicant does not satisfy a statutory eligibility requirement. On review, the tribunal may examine the legislation, the applicant’s financial circumstances, supporting documents and any relevant new evidence. If it concludes that the applicant satisfies the legal requirements, it may replace the original decision with a favourable one.

The tribunal is not necessarily limited to examining the precise reasons given by the original officer. Its function is to determine the appropriate administrative outcome within the limits of the legislation.

Merits review serves several purposes.

Individual protection. It gives people and organisations a mechanism to challenge decisions that adversely affect their interests.

Administrative accuracy. It allows errors of fact, law, evidence and assessment to be corrected without requiring a judicial proceeding.

Consistency. It promotes more coherent application of statutory schemes across government departments and agencies.

Public accountability. It subjects administrative decisions to independent examination and encourages decision-makers to maintain accurate records, explain their reasoning and follow appropriate procedures.

Improvement of government administration. Patterns identified through repeated reviews may reveal weaknesses in legislation, administrative guidelines, agency procedures or staff training.

Merits review is therefore more than a dispute-resolution mechanism. It is also an institutional safeguard designed to improve the quality of public administration.

2. Merits Review and the Australian Rule of Law

The availability of independent merits review reflects the principle that administrative decisions affecting individuals should not always be left exclusively to the authority that made them.

Government agencies exercise statutory powers on behalf of the state. Their decisions may affect financial security, immigration status, professional opportunities, access to public services and other important interests. Even where an agency acts honestly and within its legal authority, its original decision may be mistaken or based on incomplete information.

Merits review provides a structured means of reconsideration.

It is particularly important because administrative decisions frequently involve technical assessments and evaluative judgments. A social security determination may require an assessment of income and eligibility. A migration decision may involve statutory criteria, personal circumstances and protection-related evidence. A disability support decision may require consideration of functional needs and statutory funding rules.

A court conducting judicial review generally cannot reassess these matters merely because it would have reached a different conclusion. A merits review tribunal, by contrast, may be authorised to reconsider the evidence and make a fresh determination.

This does not mean that a tribunal has unrestricted discretion. It must apply the legislation governing the original decision and remain within its own statutory jurisdiction.

Merits review is therefore a form of administrative accountability operating within the rule of law: the decision may be reconsidered, but only according to the legal framework established by Parliament.

3. The Historical Development of Commonwealth Merits Review

The Commonwealth administrative review system developed progressively during the second half of the twentieth century.

Before the establishment of a comprehensive administrative appeals system, people affected by government decisions often depended on internal reconsideration, specialised statutory appeal mechanisms or judicial review. These mechanisms provided important safeguards but did not always offer an accessible means of reconsidering the substance of an administrative decision.

The establishment of the Administrative Appeals Tribunal in 1975 represented a major institutional development.

The AAT was designed to provide independent merits review across a growing range of Commonwealth administrative schemes. Its jurisdiction expanded through legislation dealing with taxation, social security, migration, veterans’ entitlements, professional regulation and other areas.

The AAT became a central component of Australian administrative law. It offered an alternative to court proceedings in matters where the essential question was whether the original administrative decision should be affirmed, changed or replaced.

Over time, however, concerns emerged about the operation of the federal administrative review system. These included the complexity of its institutional structure, delays, appointment practices, accessibility and public confidence in the independence and integrity of the review process.

The Senate Legal and Constitutional Affairs References Committee examined the performance and integrity of Australia’s administrative review system. The Royal Commission into the Robodebt Scheme also made recommendations relevant to administrative decision-making and review.

The resulting reforms led to the establishment of the ART.

4. The Establishment of the Administrative Review Tribunal

The ART was established by the Administrative Review Tribunal Act 2024 (Cth). The Act commenced on 14 October 2024, when the new Tribunal began operating and the former AAT ceased to exist.

The transition was supported by two consequential and transitional statutes:

1. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
2. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Cth).

These Acts amended numerous Commonwealth statutes to replace references to the AAT, preserve the operation of existing review rights and facilitate the transfer of staff, cases and administrative arrangements.

The reform was not simply a change of name. It introduced a revised institutional structure, a new membership and appointment framework, more flexible procedural arrangements and mechanisms for identifying significant legal and administrative issues.

The ART Act establishes the Tribunal’s central objective. Under section 9, the Tribunal must provide administrative review that:

• Is fair and just.
• Resolves applications as quickly as possible, with as little formality and expense as proper consideration permits.
• Is accessible and responsive to the diverse needs of parties.
• Improves the transparency and quality of government decision-making.
• Promotes public trust and confidence in the Tribunal.

These objectives guide the interpretation and application of the Tribunal’s procedural framework. They also express the broader institutional purpose of the reform.

The Attorney-General’s Department explains that the three principal ART establishment Acts came into effect on 14 October 2024 and implemented reforms directed at independence, accessibility, transparency and the quality of administrative review. Attorney-General’s Department+2

5. The Legal Framework Governing the ART

The ART operates under a combination of general tribunal legislation and the statutes that confer review jurisdiction over particular administrative decisions.

5.1 Administrative Review Tribunal Act 2024

The Administrative Review Tribunal Act 2024 (Cth) is the principal institutional and procedural statute.

It governs:

• The establishment and objectives of the Tribunal.
• The appointment and functions of members.
• Applications for review.
• Reviewable decisions and the identity of parties.
• Provision of reasons and documents.
• Tribunal procedure and case management.
• Hearings and evidence.
• Dispute resolution.
• The powers and functions of the Tribunal.
• Decisions and written reasons.
• The Guidance and Appeals Panel.
• Administrative arrangements and oversight.

The Act provides a general procedural framework, but it does not itself make every Commonwealth administrative decision reviewable.

5.2 The Enabling Legislation

The legislation that confers review jurisdiction over a particular decision is often called the enabling legislation.

For example, a decision under social security legislation may be reviewable because the relevant social security statute expressly provides for ART review. A migration decision may be reviewable under the Migration Act 1958 (Cth), while taxation decisions are governed by the applicable taxation legislation.

The enabling statute may determine:

• Which decisions are reviewable.
• Who may apply.
• Whether internal review must occur first.
• The applicable application period.
• Whether a fee is payable.
• Whether special procedural rules apply.
• Whether the ART may conduct one or more levels of review.
• Whether further appeal rights are available.

This relationship is fundamental. The ART Act provides the institutional framework, while the relevant enabling legislation determines the existence and scope of jurisdiction in the particular matter.

5.3 ART Regulations and Rules

The Administrative Review Tribunal Regulations 2024 and the Administrative Review Tribunal Rules 2024 supplement the principal Act.

They deal with matters including:

• Appointment procedures.
• Application periods.
• Fees.
• Certain procedural requirements.
• Administrative arrangements.
• Matters requiring more detailed regulation.

The President may also issue practice directions under section 36 of the ART Act. These directions provide practical rules and guidance for particular categories of proceedings.

The Tribunal publishes practice directions covering common procedures, migration and protection matters, child support, freedom of information, expert evidence, the Guidance and Appeals Panel, litigation supporters and generative artificial intelligence. The updated directions introduced in 2026 took effect from 2 March 2026. Administrative Review Tribunal+1

6. The Jurisdiction of the Administrative Review Tribunal

The ART has a broad but specifically defined jurisdiction.

It can review decisions made under more than 400 Commonwealth Acts and legislative instruments. Its jurisdiction includes decisions made by Commonwealth ministers, departments, agencies, statutory authorities and other decision-makers where legislation provides for review.

The Tribunal’s principal areas of work include:

Area	Examples of reviewable decisions
Migration	Visa refusals, cancellations and other migration-related decisions
Protection	Decisions concerning protection visa applications and protection findings
Citizenship	Certain citizenship and related administrative decisions
Social security	Centrelink payments, family assistance and student assistance
Child support	Administrative child support assessments and related decisions
National Disability Insurance Scheme	Certain access and plan-related decisions
Taxation	Specified taxation decisions and disputes
Veterans’ entitlements	Decisions concerning veterans’ benefits and entitlements
Workers’ compensation	Specified Commonwealth workers’ compensation decisions
Information access	Certain freedom of information decisions
Regulatory matters	Selected decisions involving corporations, financial services, civil aviation and other regulated activities
Intelligence and security	Certain security-related administrative decisions

The ART also deals with certain decisions under Norfolk Island laws and, in limited circumstances, decisions made by State government or non-government bodies where legislation confers jurisdiction.

The Tribunal’s official description of its role identifies more than 400 Commonwealth Acts and legislative instruments as sources of reviewable decisions. It also expressly states that the ART has no general power to review decisions simply because they were made by government. Administrative Review Tribunal+2

6.1 No General Jurisdiction Over All Government Decisions

The distinction between broad jurisdiction and universal jurisdiction must be understood.

The ART cannot review every decision made by an Australian Government department. A decision is reviewable only if the relevant Act or legislative instrument provides for an application to the Tribunal.

For example, a person may disagree with a government department’s policy position or administrative communication without having a right to apply to the ART. The existence of a review right depends on the legal character of the action and the legislation governing it.

Section 12 of the ART Act defines a reviewable decision by reference to an Act or legislative instrument that provides for an application to the Tribunal.

This means that applicants must identify the specific statutory basis of review rather than assume that the ART has general authority over government administration.

6.2 Decisions Requiring Prior Internal Review

Some statutory schemes require an applicant to seek internal reconsideration before applying to the ART.

Internal review usually involves another officer or designated decision-maker examining the original decision within the same agency.

This may correct an error without requiring an independent tribunal proceeding. It also gives the agency an opportunity to reconsider the matter and explain the basis of its decision.

However, internal review is not a universal requirement. Whether it must occur first depends on the legislation governing the particular decision.

In some schemes, a person may apply directly to the ART. In others, the applicant must complete a preliminary review process or obtain a decision from a specialist body before the ART can exercise jurisdiction.

7. The Structure and Membership of the ART

The ART is a statutory institution with a central leadership structure and specialised areas of practice.

7.1 The President

The Tribunal is led by a President, who is responsible for managing its business and ensuring that it operates effectively and consistently with its statutory objectives.

Under the ART Act, the President must be a Judge of the Federal Court of Australia.

The President’s functions include institutional leadership, case allocation, oversight of Tribunal operations, the appointment of members to particular proceedings and functions connected with the Guidance and Appeals Panel.

The President also has responsibilities relating to the quality and consistency of Tribunal decision-making.

7.2 Deputy Presidents, Senior Members and General Members

The ART has several categories of members:

• The President.
• Deputy Presidents.
• Senior members.
• General members.

Members exercise the Tribunal’s decision-making powers in the proceedings to which they are assigned.

The composition of the Tribunal depends on the relevant legislation, the nature and complexity of the matter and the applicable procedural arrangements.

Some proceedings may be determined by a single member. Others may require a multi-member constitution, particularly where the legislation or institutional arrangements call for a broader range of expertise.

7.3 Appointment and Independence

Members are statutory office holders appointed by the Governor-General under the statutory framework.

The reform introduced a more transparent and merit-based appointment process for non-judicial members. The appointment framework includes public advertising, defined selection criteria, assessment panels, interviews and referee reports.

These safeguards are intended to promote competence, integrity and independence.

The Tribunal’s independence is essential to its credibility. Applicants must have confidence that their cases will be considered on the evidence and law rather than according to the institutional interests of the department whose decision is under review.

The ART is institutionally separate from the government agencies whose decisions it reviews, even though its administrative arrangements are part of the Commonwealth public sector framework.

7.4 Tribunal Staff and the Principal Registrar

The ART also has an administrative structure supporting its members and proceedings.

The Principal Registrar oversees registry services, case administration and other operational functions. Tribunal staff assist with applications, document management, hearings, communications and case management.

It is important to distinguish between members, who exercise statutory decision-making powers, and administrative staff, who support the operation of the institution.

7.5 Jurisdictional Areas

The ART manages its caseload through eight areas of practice:

1. General.
2. Intelligence and Security.
3. Migration.
4. National Disability Insurance Scheme.
5. Protection.
6. Social Security.
7. Taxation and Business.
8. Veterans’ and Workers’ Compensation.

Each area is led by a jurisdictional area leader, and similar cases are organised into specialised lists.

This structure enables the Tribunal to allocate matters according to subject matter and expertise rather than requiring all proceedings to follow an identical administrative pathway. Administrative Review Tribunal+1

8. Who May Apply for Merits Review?

The right to apply depends on the relevant enabling legislation and the ART Act.

Generally, a person whose interests are affected by a reviewable decision may apply for review.

The concept of affected interests is important because administrative decisions may affect people and organisations other than the person who formally submitted the original application.

For example:

• An individual may challenge the refusal of a benefit.
• A business may seek review of a regulatory decision affecting its licence.
• A person affected by a child support decision may have a right to participate in the review.
• An organisation may qualify for review where its interests are affected in the manner recognised by the legislation.

Section 15 of the ART Act specifically addresses organisations and associations whose interests are affected by decisions.

The legislation may also allow another person to apply on behalf of an affected individual. This can be particularly relevant where the applicant has difficulty communicating, managing proceedings or accessing the review process independently.

The ART may also permit other affected persons to become parties to proceedings where the statutory requirements are satisfied.

The applicant must nevertheless establish that the decision is reviewable and that they have the legal entitlement to seek review.

9. Commencing a Review: Applications and Time Limits

An ART review generally begins with an application identifying the decision that the applicant wishes to challenge.

The application should contain sufficient information to identify:

• The original decision.
• The government agency or other decision-maker.
• The statutory basis for review, where known.
• The date on which the decision was made or received.
• The applicant’s interest in the decision.
• The reasons why review is sought.
• Relevant supporting information and documents.

The ART provides application procedures for different categories of decisions. Some applications may be lodged online, while others may require specific forms or additional information.

9.1 Time Limits

Time limits are particularly important.

The ART Act establishes general rules concerning when applications must be made, but the enabling legislation and ART Rules may prescribe different periods.

Some deadlines are strict. Others may permit an extension where the Tribunal is satisfied that the statutory requirements are met.

Migration and protection matters are especially important examples because the applicable deadlines may be short and may not be extendable in the same way as deadlines in other categories.

Applicants should therefore consult the decision letter and the relevant legislation immediately after receiving an adverse decision.

9.2 Fees

The ART charges application fees in many categories of proceedings, although the amount and applicable concessions vary.

Some categories have different fee structures, and certain applications may be exempt. The Tribunal may also provide reduced fees where the statutory or regulatory criteria are satisfied.

Fees can change, so applicants should consult the Tribunal’s current fee schedule rather than rely on amounts quoted in older publications.

As at November 2026, the ART publishes a differentiated schedule covering standard applications, taxation matters, migration reviews, protection matters and applications involving the Guidance and Appeals Panel. Administrative Review Tribunal+1

10. The Effect of an Application on the Original Decision

An important feature of merits review is that applying for review does not automatically suspend the original administrative decision.

Section 32 of the ART Act provides that a reviewable decision generally continues to operate unless the Tribunal orders otherwise.

This can have serious practical consequences.

For example, if a government agency has made a decision cancelling a licence, refusing a payment or imposing an administrative requirement, the decision may continue to have effect while the ART review is pending.

An applicant who requires temporary protection may therefore need to seek a stay or another interim order.

The availability of interim relief depends on the applicable legislation and the circumstances of the case. It should not be assumed that the filing of an application alone preserves the applicant’s previous legal or financial position.

The distinction is important because merits review can take time, and the original decision may continue to affect the applicant during the proceedings. legislation.gov.au+1

11. The Provision of Reasons and Documents

Effective merits review requires access to the information on which the original decision was based.

The ART Act therefore places obligations on decision-makers to provide the Tribunal with relevant reasons and documents.

Under the general framework, the original decision-maker must provide:

• A statement of reasons for the original decision, where required.
• Documents relevant to the decision.
• Additional information or documents requested by the Tribunal.
• Copies of material that must be provided to other parties, subject to applicable restrictions and exceptions.

This documentary process is essential because the Tribunal must be able to examine the original decision-making process and the information available to the agency.

The applicant also needs a reasonable opportunity to understand and respond to the material relied upon.

The provision of documents does not mean that every item of government information must automatically be disclosed in every case. The Act recognises exceptions, including circumstances involving privilege, public interest and restrictions on disclosure.

Where information is sensitive, the Tribunal may need to consider protective arrangements.

The process is therefore designed to balance transparency and procedural fairness with legitimate confidentiality and public-interest considerations.

12. The ART’s Procedural Principles

The ART Act establishes a flexible procedural framework intended to make merits review fair, accessible and efficient.

12.1 Informality and Flexibility

Section 49 gives the Tribunal discretion in relation to procedure, subject to the Act and other applicable legislation.

Section 50 requires the Tribunal to operate with as little formality and technicality as is consistent with the proper consideration of the matters before it.

This does not mean that proceedings are unstructured or that parties may disregard directions. The Tribunal can regulate the process and require compliance with procedural obligations.

Rather, the framework recognises that merits review should not necessarily reproduce the formal procedures of ordinary litigation.

12.2 Accessibility

Section 51 requires the Tribunal to be accessible.

Accessibility may involve arrangements for people with disabilities, interpretation services, adjustments to hearing procedures, assistance for people with communication difficulties and other measures appropriate to the circumstances.

The ART may appoint an interpreter under section 68. It may also appoint a litigation supporter under section 67 in appropriate circumstances.

These provisions are important because applicants may be unfamiliar with legal proceedings or may experience barriers that make participation difficult.

12.3 The Rules of Evidence

Under section 52, the ART is not bound by the ordinary rules of evidence.

It may inform itself on any matter in the manner it considers appropriate.

This gives the Tribunal greater flexibility than a court operating under formal evidentiary rules. It may consider relevant documents, expert reports, oral evidence and other information without necessarily applying every technical rule of admissibility used in judicial proceedings.

However, the absence of strict evidentiary rules does not mean that reliability is irrelevant.

The Tribunal must assess the weight and credibility of the material before it. It must also comply with procedural fairness and give parties a reasonable opportunity to address information that may influence the outcome.

12.4 The Right to Present a Case

Section 55 requires the Tribunal to ensure that each party has a reasonable opportunity to:

• Present their case.
• Access information and documents to which the Tribunal proposes to have regard.
• Make submissions.
• Adduce evidence.

This requirement is central to the fairness of merits review.

The Tribunal’s flexibility cannot be used to deprive a party of a meaningful opportunity to participate.

12.5 Assistance From the Parties

Section 56 requires parties and their representatives to assist the Tribunal.

This reflects the collaborative and inquisitorial aspects of merits review. The Tribunal is not necessarily limited to passively receiving competing submissions in the manner of a traditional adversarial court.

The parties are expected to identify the issues, provide relevant evidence and assist the Tribunal in reaching a sound decision.

The relevant provisions of the ART Act and the Attorney-General’s Department’s legislative overview explain these procedural principles. legislation.gov.au+1

13. Hearings, Conferences and Other Review Processes

Not every ART application proceeds directly to a formal hearing.

The Tribunal may use different processes depending on the case type, complexity, statutory requirements and practical needs of the parties.

13.1 Case Management Events

A case management event may be used to identify the issues, clarify the evidence required and establish a timetable for the proceedings.

The Tribunal may issue directions concerning:

• Filing of documents.
• Written submissions.
• Exchange of evidence.
• Expert reports.
• Witness attendance.
• Further information required from the parties.
• The scheduling of hearings.

These arrangements help ensure that the proceeding is properly prepared.

13.2 Conferences

A conference may provide an opportunity for the parties to clarify their positions and explore whether the dispute can be resolved without a full hearing.

The process may also identify factual or legal issues that remain contested.

13.3 Conciliation and Mediation

The ART may refer appropriate matters to dispute resolution processes.

Conciliation and mediation can be useful where the parties have room to reach an agreement within the statutory framework.

However, not all matters are suitable for these processes. Some statutory schemes impose restrictions, and some disputes involve public-law issues that cannot simply be resolved by private agreement.

13.4 Hearings

Where a matter cannot be resolved through other procedures, the Tribunal may hold a hearing.

At a hearing, the parties may present evidence, explain their positions, respond to questions and make submissions.

The Tribunal may receive oral evidence and require witnesses to attend. It can also summon individuals to give evidence or produce documents where the statutory requirements are satisfied.

Hearings are generally public unless the Act, a practice direction or an order provides otherwise. Confidentiality and publication restrictions may apply in appropriate circumstances.

13.5 Decisions Without a Hearing

Some cases may be determined on the written material without an oral hearing, where the legislation and procedural requirements permit.

The absence of an oral hearing does not remove the obligation to provide procedural fairness. The parties must still have a reasonable opportunity to present their cases and address relevant material.

The ART explains that proceedings may involve case management events, dispute resolution, hearings or, in some circumstances, decisions based on written materials alone. Administrative Review Tribunal+2

14. The ART’s Powers When Reviewing a Decision

The Tribunal’s powers are central to the distinction between merits review and judicial review.

Under section 54 of the ART Act, the Tribunal may exercise the powers and discretions conferred on the original decision-maker by the relevant Act or instrument for the purpose of reviewing a reviewable decision.

This allows the ART to reconsider the matter in a substantive way rather than merely identify a legal defect.

The Tribunal’s principal outcomes include:

14.1 Affirming the Decision

The ART may affirm the original decision if it concludes that the decision should remain unchanged.

This may occur where the original decision was correct or where, after considering the relevant circumstances, the Tribunal concludes that the original outcome remains the correct or preferable one.

14.2 Varying the Decision

The ART may vary the original decision by changing part of its terms or adjusting the outcome.

For example, it may alter the amount of an entitlement, modify a condition or change another aspect of a decision where the relevant legislation permits.

14.3 Setting Aside and Substituting a New Decision

The Tribunal may set aside the original decision and substitute a new one.

This is one of the most significant powers of merits review. It allows the ART to make the administrative decision that should have been made, rather than simply directing the original agency to reconsider the matter.

The substituted decision must remain within the powers conferred by the relevant legislation.

14.4 Remitting the Matter

The ART may set aside a decision and remit the matter to the original decision-maker for reconsideration.

Remittal may be appropriate where further investigation, technical assessment or administrative action is required.

The Tribunal may also specify conditions, directions or recommendations in accordance with its statutory powers.

The ART’s official explanation of possible outcomes confirms these four principal forms of decision: affirmation, variation, setting aside and substitution, or remittal. Administrative Review Tribunal+1

15. The Guidance and Appeals Panel

One of the significant institutional features of the ART is the Guidance and Appeals Panel (GAP).

The Panel provides a mechanism for addressing important issues arising from Tribunal proceedings and certain errors in Tribunal decisions.

It is intended to promote consistency, improve decision quality and allow significant matters to receive further consideration.

15.1 Referrals Raising Issues of Significance

A matter may be referred to the GAP where it raises an issue of significance to administrative decision-making.

Such issues may concern questions of law, policy implications or matters that could affect other administrative decisions beyond the immediate dispute.

The purpose is not merely to provide another opportunity for a dissatisfied party to repeat arguments. The mechanism is intended to identify questions with broader institutional or legal importance.

15.2 Referrals Involving Material Error

The GAP may also consider certain Tribunal decisions that may contain an error of fact or law affecting the outcome.

This is an important safeguard because merits review itself must remain accurate and consistent.

The availability of referral does not mean that every disagreement with a Tribunal decision qualifies for further consideration. The statutory and procedural requirements must be satisfied.

15.3 How a Referral Is Made

The ART Act provides for different referral pathways.

A matter may be referred by the President where an ongoing proceeding raises an issue of significance. The President may also refer a completed Tribunal decision in circumstances involving significant issues or material errors.

A party may apply for referral where the relevant decision and case type are eligible.

For certain completed cases, the ART’s guidance states that an application must generally be made within 28 days after the party receives the Tribunal decision, although an extension may be available in special circumstances.

15.4 Nature of the GAP Review

The GAP conducts a merits review of the relevant matter.

It may examine the case afresh, rather than simply considering whether the original Tribunal member made a narrow procedural mistake.

The Panel is therefore an internal mechanism for further independent review within the ART structure, not an ordinary appeal to a court.

The Panel’s function is particularly significant because it addresses both individual errors and questions that may affect the consistency of administrative decision-making more broadly. Administrative Review Tribunal+2

16. Appeals and Judicial Review of ART Decisions

A party dissatisfied with an ART decision may have further legal options, but these are not unlimited.

The available route depends on the type of decision, the enabling legislation and the nature of the alleged error.

16.1 Guidance and Appeals Panel

As explained above, certain Tribunal decisions may be referred to the GAP where the statutory requirements are satisfied.

This is an additional merits review mechanism, not a general right to appeal every ART decision.

16.2 Appeals to Courts on Questions of Law

Some legislation provides a right of appeal from an ART decision to a court on a question of law.

This is different from a fresh merits review. The court does not ordinarily reconsider the entire administrative dispute or decide which outcome it prefers.

Instead, it determines the legal question identified by the appeal provision.

For example, an appeal may concern whether the ART interpreted the relevant statute correctly or applied the wrong legal test.

The precise appellate route and available remedies depend on the enabling legislation and the relevant court’s jurisdiction.

16.3 Judicial Review

An ART decision may also be subject to judicial review where the relevant jurisdictional requirements are satisfied.

Judicial review may concern jurisdictional error, denial of procedural fairness, legal unreasonableness or another recognised legal defect.

The distinction is important: a party cannot ordinarily obtain judicial review merely by arguing that the Tribunal should have given greater weight to one piece of evidence or reached a different factual conclusion.

The court examines legality, not the merits of the Tribunal’s assessment.

The ART itself explains that some decisions may be appealed to a court and that certain eligible decisions may be considered again through the GAP. Administrative Review Tribunal+1

17. The ART and the Former Administrative Appeals Tribunal

The ART replaced the AAT, but the two institutions should not be treated as identical.

The AAT was established under the Administrative Appeals Tribunal Act 1975 (Cth). It operated for almost five decades and became an important forum for Commonwealth merits review.

The ART was designed to address concerns about the institutional structure, appointment processes, accessibility and integrity of the former system.

The reform introduced several significant changes.

Former AAT framework	ART framework
Governed by the Administrative Appeals Tribunal Act 1975	Governed principally by the Administrative Review Tribunal Act 2024
Former institutional divisions	Eight jurisdictional areas of practice
Earlier appointment and membership arrangements	Revised merit-based appointment framework
Existing review and appeal structures	Revised Guidance and Appeals Panel mechanism
Earlier procedural framework	Harmonised and more flexible procedural principles
AAT ceased operation in October 2024	ART commenced on 14 October 2024

The transitional legislation ensured that pending AAT matters were transferred to the ART without requiring applicants to start again.

The Attorney-General’s Department confirms that the AAT was abolished when the ART commenced and that existing matters were transferred to the new institution. It also explains that the consequential legislation amended a large number of Commonwealth statutes to ensure continuity of review rights. Attorney-General’s Department+2

18. Merits Review in Migration and Protection Matters

Migration and protection decisions represent a major area of the ART’s work.

The Tribunal reviews certain decisions made under the Migration Act 1958 (Cth), including specified visa, character and protection-related decisions.

The nature of these cases can be particularly complex because they may involve:

• Statutory eligibility requirements.
• Family and personal circumstances.
• Character assessments.
• Immigration history.
• Identity and documentation.
• Country information.
• Risk of persecution or other serious harm.
• Credibility and evidentiary issues.

18.1 Migration Decisions

The ART may review specified decisions involving visa refusals, cancellations and other migration-related matters.

The exact jurisdiction depends on the Migration Act and the relevant statutory provisions.

A person should not assume that every migration decision is reviewable. The decision letter normally identifies whether review is available and provides information about the applicable time limit.

18.2 Protection Decisions

Protection-related reviews may require consideration of whether an applicant satisfies the statutory criteria for protection under Australian migration law.

The Tribunal may consider evidence relating to the applicant’s personal circumstances, relevant country information and the statutory protection criteria.

The procedural framework is specialised, and the Tribunal’s Migration, Protection and Character Practice Direction provides additional requirements for these matters.

18.3 Strict Time Limits and Fees

Migration and protection matters may be subject to strict application deadlines and particular fee arrangements.

The ART states that the time limit for many migration reviews cannot be extended. It also publishes different fee arrangements for migration and protection applications, including changes to the payment arrangements for certain protection reviews from 1 November 2026.

These rules demonstrate why applicants must carefully examine the decision letter and the current Tribunal requirements rather than assume that the general application rules apply. Administrative Review Tribunal+2

19. Merits Review in Social Security and Disability Matters

Social security and disability-related decisions are another major part of the ART’s jurisdiction.

19.1 Social Security

The Tribunal may review specified decisions concerning:

• Eligibility for social security payments.
• Family assistance.
• Paid parental leave.
• Student assistance.
• Income and asset assessments.
• Debts and recovery decisions.
• Other matters under Commonwealth social security legislation.

These cases often require the Tribunal to examine financial information, statutory eligibility criteria, changes in personal circumstances and evidence relevant to the original determination.

Some social security matters have specialised internal review or multiple review stages.

The ART may conduct a further review of certain decisions after an earlier administrative review stage where the legislation permits.

19.2 Child Support

Child support decisions may involve assessments of income, care arrangements, family circumstances and statutory formulae.

The Tribunal’s review function allows eligible parties to challenge specified decisions and present relevant information.

The child support jurisdiction has its own procedural arrangements, including a dedicated practice direction.

19.3 National Disability Insurance Scheme

The ART also reviews certain decisions under the National Disability Insurance Scheme framework.

These may involve access to the scheme, participant plans, funding and other matters for which legislation provides review rights.

Such cases can require consideration of medical, functional, social and other evidence.

The Tribunal’s role is to apply the statutory framework to the individual circumstances of the case. It does not have an unrestricted power to grant any support a person requests.

20. Merits Review in Taxation, Business and Regulatory Matters

The ART’s jurisdiction extends beyond individual welfare and migration decisions.

It also reviews certain decisions involving taxation, business regulation and professional or occupational matters.

20.1 Taxation

Taxation disputes may involve assessments, objections, decisions concerning administrative penalties and other matters for which legislation provides a right of review.

These cases can require detailed examination of statutory interpretation, financial records, accounting evidence and the operation of taxation provisions.

The ART’s taxation jurisdiction is statutory and does not cover every disagreement between a taxpayer and the Australian Taxation Office.

20.2 Business and Financial Regulation

Certain decisions involving corporations, financial services and regulatory compliance may be reviewable.

The Tribunal may examine whether the original decision should be affirmed, varied or replaced under the relevant legislation.

The nature of the review depends on the particular regulatory scheme.

20.3 Professional and Occupational Regulation

Some regulatory decisions affecting licences, professional status or disciplinary outcomes may fall within the ART’s jurisdiction.

However, professional regulation is also a major feature of State and Territory tribunal systems.

A person must therefore identify whether the relevant regulator operates under Commonwealth or State legislation and which tribunal or court has jurisdiction.

21. Merits Review and Judicial Review: A Detailed Comparison

Merits review and judicial review are complementary but fundamentally different forms of legal supervision.

Issue	Merits review	Judicial review
Main question	What is the correct or preferable decision?	Was the decision made lawfully?
Institution	ART or another tribunal authorised by statute	Court exercising judicial jurisdiction
Scope	Facts, law and relevant policy within statutory limits	Legal authority, procedure and legality
Evidence	May consider new evidence and information	Generally examines legality of the decision-making process and relevant record, subject to procedural rules
Discretion	May exercise the original decision-maker’s powers where authorised	Does not ordinarily exercise the original administrative discretion
Outcome	May affirm, vary, substitute or remit	May quash, declare unlawful, prohibit, require lawful action or grant another judicial remedy
Legal basis	Express statutory review jurisdiction	Constitution, statute and supervisory jurisdiction
Purpose	Correct or improve the substantive administrative outcome	Ensure public authorities act within the law

A practical example illustrates the distinction.

Suppose a government agency refuses a business licence because it concludes that the applicant does not satisfy a statutory suitability requirement.

In merits review, the ART may examine the application, evidence, statutory criteria and relevant circumstances afresh. It may decide that the applicant does satisfy the requirements and substitute a favourable decision, if authorised.

In judicial review, a court would examine whether the agency applied the correct legal test, considered mandatory matters, followed required procedures and acted within its statutory authority. The court would not ordinarily decide for itself whether the business licence should be granted.

The two processes therefore answer different questions and provide different forms of relief.

22. State and Territory Administrative Tribunals

The ART is the principal Commonwealth merits review body, but it is not a national tribunal with jurisdiction over every level of government.

States and Territories have their own administrative review institutions. Their jurisdiction is generally conferred by State or Territory legislation and concerns decisions made under the relevant local legal framework.

The main institutions include:

Jurisdiction	Tribunal	General area of administrative review
New South Wales	NSW Civil and Administrative Tribunal (NCAT)	Specified decisions of NSW government agencies, including licensing, privacy, information access and community services
Victoria	Victorian Civil and Administrative Tribunal (VCAT)	Specified administrative and regulatory decisions under Victorian legislation
Queensland	Queensland Civil and Administrative Tribunal (QCAT)	Review of specified government and disciplinary decisions
South Australia	South Australian Civil and Administrative Tribunal (SACAT)	Specified decisions of State government bodies and local councils
Australian Capital Territory	ACT Civil and Administrative Tribunal (ACAT)	Review of decisions under ACT legislation
Western Australia	State Administrative Tribunal (SAT)	Review of specified administrative and disciplinary decisions
Tasmania	Tasmanian Civil and Administrative Tribunal (TASCAT)	Review and determination of matters assigned by Tasmanian legislation
Northern Territory	Northern Territory Civil and Administrative Tribunal (NTCAT)	Review of specified administrative decisions and other tribunal matters

The precise jurisdiction of each tribunal differs. Their powers, procedures, appeal arrangements and subject areas are not identical.

22.1 New South Wales: NCAT

The NSW Civil and Administrative Tribunal reviews specified administrative decisions made by NSW government agencies.

Its Administrative and Equal Opportunity Division deals with matters such as access to government information, privacy, community services, State revenue and certain other government decisions.

NCAT also has an Occupational Division dealing with certain licensing and professional matters.

Its administrative review jurisdiction is statutory. It can review only those decisions for which legislation gives it authority. In many cases, applicants must first seek internal review from the original agency.

NCAT’s guidance explains that the Tribunal may determine whether the agency made the correct decision and, where authorised, affirm, reverse, substitute or remit the decision. NSW Civil and Administrative Tribunal+2

22.2 Victoria: VCAT

VCAT exercises jurisdiction under Victorian legislation, including administrative review functions assigned by particular Acts.

Its jurisdiction includes a variety of matters involving government decisions, professional regulation and public administration.

As with the ART and NCAT, VCAT does not have an unlimited power to review all Victorian government decisions. The enabling legislation must confer the relevant jurisdiction.

22.3 Queensland: QCAT

QCAT exercises original, review and appellate jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 and other legislation.

Its review jurisdiction allows it to reconsider specified administrative decisions made by government agencies and disciplinary bodies.

The review is generally conducted as a fresh hearing on the merits, although the particular statutory framework determines the scope of review.

22.4 South Australia: SACAT

SACAT reviews specified administrative decisions made by South Australian government departments, agencies and certain other decision-makers, including local councils.

Examples include certain decisions concerning licensing, working-with-children checks and local government regulatory orders.

Its jurisdiction is determined by the relevant South Australian legislation. sacat.sa.gov.au+1

22.5 Other States and Territories

Western Australia, Tasmania, the ACT and the Northern Territory also have tribunal systems with review jurisdictions established by their respective legislation.

These bodies perform an important function in decentralised administrative accountability. They provide specialist review mechanisms for decisions made by local public authorities and regulators.

The existence of separate State and Territory tribunals reflects Australia’s federal structure. A Commonwealth merits review body cannot simply assume jurisdiction over a State administrative decision, nor can a State tribunal review Commonwealth decisions unless legislation provides an appropriate basis.

23. Tribunal Decisions, Publication and Administrative Transparency

The ART’s work has significance beyond the individual cases it decides.

Published decisions can clarify the interpretation of statutory provisions, explain how administrative criteria should be applied and reveal recurring issues in government decision-making.

The Tribunal publishes selected decisions with written reasons. Decisions of broader significance, including those of the Guidance and Appeals Panel, are particularly important to the development of administrative practice.

However, not every Tribunal decision is published. Confidentiality, privacy, statutory restrictions and the nature of the proceedings may affect publication.

The ART Act also contains mechanisms intended to identify systemic problems in administrative decision-making.

These include:

• The role of jurisdictional area leaders in identifying recurring issues.
• The President’s ability to inform ministers and the Administrative Review Council of systemic concerns.
• Requirements concerning responses by relevant ministers and Commonwealth entities.
• Publication of certain significant decisions.

The objective is to ensure that merits review contributes to better public administration rather than merely correcting isolated errors.

For example, if repeated reviews reveal that a government department is consistently misunderstanding a statutory eligibility requirement, the issue may indicate a need for clearer guidance, improved training or legislative clarification.

24. The Administrative Review Council

The ART reform also re-established the Administrative Review Council (ARC).

The Council has an important advisory and systemic role in the development of Commonwealth administrative law.

Its functions include examining aspects of the administrative review system, identifying opportunities for improvement and contributing to the development of sound administrative decision-making practices.

The Council is distinct from the ART itself.

The Tribunal determines individual review applications. The Council’s role is broader and concerned with the operation and quality of the administrative review system.

This distinction is important because administrative law requires both individual remedies and institutional mechanisms for identifying recurring weaknesses.

A review tribunal may correct a decision in a particular case, but systemic problems may require policy changes, legislative reform or improvements in departmental administration.

The Council provides an institutional means of examining such issues.

25. The ART and the Quality of Government Decision-Making

The relationship between merits review and administrative accountability extends beyond the outcome of individual proceedings.

The possibility of independent review can influence the way government agencies make decisions in the first place.

Agencies have incentives to:

• Apply the correct statutory criteria.
• Maintain accurate records.
• Provide clear reasons.
• Consider relevant evidence.
• Follow procedural requirements.
• Communicate review rights.
• Correct mistakes when identified.
• Improve internal training and decision-making guidelines.

The ART’s systemic functions strengthen this relationship.

Where the Tribunal identifies recurring problems, its findings may help improve administrative processes across a department or statutory scheme.

This is especially significant in large government programs, where a single misunderstanding of legislation or policy may affect many applicants.

Nevertheless, the ART is not a general management authority over Commonwealth departments. Its systemic role operates within the limits of its statutory functions and does not permit it to direct government policy generally.

26. Access to Justice and Practical Challenges

Merits review is intended to be more accessible than ordinary court litigation, but accessibility remains a practical challenge.

Applicants may face difficulties involving:

• Complex legislation.
• Short application deadlines.
• Application fees.
• Language barriers.
• Disability-related access requirements.
• Limited access to legal representation.
• Difficulty obtaining relevant documents.
• Long waiting periods.
• Uncertainty about the applicable review pathway.

The Tribunal’s informal procedures, interpreter arrangements and ability to accommodate different needs are intended to address some of these barriers.

However, the availability of a tribunal does not automatically make the process simple or inexpensive in every case.

26.1 Delays and Caseload Management

A significant challenge for administrative tribunals is balancing procedural fairness with the need to resolve cases promptly.

Migration, protection, social security and disability-related reviews may involve large caseloads and complex evidence.

The ART publishes processing-time information for certain categories of cases. Its figures demonstrate that waiting periods can vary considerably depending on the type of decision and the complexity of the matter.

For example, the Tribunal’s published statistics for reviews finalised between April and September 2026 show substantial differences between migration case categories. Some types of cases were finalised much more quickly than others, while certain partner and family visa matters took considerably longer.

Such figures should not be treated as guarantees for an individual application. They are historical processing indicators, not statutory deadlines or predictions of a particular case’s outcome. Administrative Review Tribunal+1

26.2 Legal Representation

Applicants may represent themselves or obtain assistance from a lawyer or another representative where permitted by the relevant law and Tribunal procedures.

The need for representation depends on the complexity of the matter.

A relatively straightforward review may be manageable without a lawyer. A case involving complex statutory interpretation, migration law, taxation, expert evidence or substantial factual disputes may require specialist assistance.

The Tribunal’s less formal procedures do not remove the importance of understanding the relevant legislation and presenting the case clearly.

26.3 Financial and Practical Barriers

Application fees can be significant in some categories, particularly migration-related proceedings.

The Tribunal provides concessions and exemptions in certain circumstances, but the availability of assistance depends on the applicable fee rules.

Other costs may arise from obtaining documents, expert reports, translation services or legal representation.

The effectiveness of merits review therefore depends partly on whether applicants can realistically access the process.

27. Merits Review and Automated Government Decision-Making

The use of automated systems in public administration creates new challenges for administrative review.

Government agencies may use algorithms, digital tools and automated decision-making processes to assess applications, calculate entitlements, identify risks or determine whether statutory conditions are satisfied.

These systems can improve speed and consistency, but they can also produce errors involving data quality, statutory interpretation, classification and the treatment of individual circumstances.

Merits review is particularly relevant because a tribunal can reconsider the substance of a decision, including relevant information that was not properly considered by an automated process.

For example, an automated system may classify an applicant as ineligible because of inaccurate information. During merits review, the applicant may provide corrected documents and explain the relevant circumstances. The Tribunal can then examine the decision afresh within its statutory jurisdiction.

However, the use of automation does not automatically create a right to ART review. The decision must still be one that the relevant legislation makes reviewable.

The Tribunal’s approach must also respect the applicable statutory scheme. It cannot disregard legal criteria simply because an automated outcome appears unfair.

More broadly, automated decision-making raises questions about transparency, explainability, accountability and the ability of affected individuals to understand how a decision was reached.

The ART’s role in reviewing such decisions is therefore likely to remain an important aspect of the development of Australian administrative law.

28. The Strengths and Limitations of the ART

The ART represents an important institutional safeguard, but its effectiveness should be assessed realistically.

28.1 Strengths

Independent reconsideration. The Tribunal provides a review mechanism separate from the original administrative decision-maker.

Flexible procedure. Its procedures can be adapted to the nature of the case and the needs of the parties.

Substantive decision-making powers. The ART may replace an original decision where the legislation authorises it to do so.

Specialised expertise. Its jurisdictional areas allow cases to be allocated according to subject matter.

Systemic oversight. The Guidance and Appeals Panel and the Administrative Review Council contribute to consistency and institutional improvement.

Transparency. Published decisions and reasons help explain the operation of administrative legislation.

28.2 Limitations

Statutory jurisdiction. The ART cannot review every government decision.

Time limits. Applicants may lose review rights if they fail to apply within the prescribed period.

Costs. Fees and representation expenses may create barriers.

Delays. Complex or high-volume case categories may experience substantial waiting periods.

Limited role in policy-making. The ART applies legislation and cannot replace Parliament’s policy choices with its own.

No automatic suspension. The original decision usually continues to operate while review is pending unless an appropriate order is made.

Limited further review. The GAP and judicial appeal mechanisms are subject to statutory conditions and do not provide unlimited opportunities to challenge an unfavourable outcome.

These limitations do not undermine the importance of the ART. They demonstrate that merits review is one component of a broader administrative justice system, rather than a complete substitute for effective legislation, responsible administration and judicial supervision.

Conclusion

Administrative tribunals are an essential part of Australia’s system of public accountability. They provide an independent means of reconsidering government decisions on their merits and correcting outcomes that should not stand under the applicable statutory framework.

The Administrative Review Tribunal, which replaced the Administrative Appeals Tribunal in October 2024, represents a significant reform of Commonwealth administrative review. Its statutory framework seeks to strengthen independence, improve accessibility, simplify procedures and promote the quality and consistency of government decision-making.

The ART’s jurisdiction is broad but not universal. It extends across migration, protection, citizenship, social security, taxation, disability support, veterans’ entitlements, workers’ compensation and numerous regulatory areas. However, the right to review depends on the relevant enabling legislation, which determines the decisions that may be challenged and the conditions governing an application.

The Tribunal’s procedural flexibility and substantive powers distinguish merits review from judicial review. The ART may reconsider facts and law and, where authorised, make the correct or preferable decision. Courts, by contrast, supervise legality and do not ordinarily replace administrative judgment with their own.

The Guidance and Appeals Panel, the Administrative Review Council and the State and Territory tribunal systems further contribute to the institutional framework of administrative justice.

Ultimately, merits review gives practical effect to the idea that administrative power should be accountable not only to Parliament and the courts, but also to independent institutions capable of reconsidering the substance of decisions affecting individuals and organisations. Its value lies in combining individual redress with the broader improvement of government administration.

Frequently Asked Questions

1. What is merits review in Australian administrative law?

Merits review is the process through which an independent tribunal reconsiders the substance of an administrative decision. It examines the relevant facts, law and, where applicable, policy to determine the correct or preferable decision.

2. What is the Administrative Review Tribunal?

The Administrative Review Tribunal is the principal Commonwealth merits review body. It independently reviews specified administrative decisions made under Commonwealth legislation. It commenced operation on 14 October 2024, replacing the former Administrative Appeals Tribunal.

3. Which legislation establishes the ART?

The ART is established under the Administrative Review Tribunal Act 2024 (Cth). Its jurisdiction is also determined by the Commonwealth Acts and legislative instruments that authorise particular decisions to be reviewed.

4. Why was the AAT replaced by the ART?

The reform followed concerns about the performance, independence, integrity and accessibility of the former administrative review system. The new framework introduced revised appointment arrangements, procedural reforms, a Guidance and Appeals Panel and stronger mechanisms for identifying systemic issues.

5. Does the ART have jurisdiction over every Australian Government decision?

No. The ART has no general power to review all government decisions. A decision is reviewable only where an Act or legislative instrument provides for review by the Tribunal.

6. Which types of decisions can the ART review?

Its jurisdiction includes specified decisions concerning migration, protection, citizenship, social security, child support, taxation, the NDIS, veterans’ entitlements, workers’ compensation, freedom of information, intelligence and security, and certain regulatory matters.

7. Who can apply to the ART?

Generally, a person whose interests are affected by a reviewable decision may apply, subject to the relevant enabling legislation. In certain circumstances, an organisation or association may also qualify, and another person may be permitted to apply on behalf of an affected individual.

8. What is the correct or preferable decision?

It is the outcome that the Tribunal considers should be made under the applicable law and circumstances. If only one lawful outcome is available, the decision is generally described as correct. If several lawful outcomes are available, the Tribunal determines which is preferable.

9. Is the ART independent from the government department whose decision it reviews?

Yes. The ART is a separate statutory tribunal and independently reviews decisions made by government agencies. Its institutional independence is essential to public confidence in the review process.

10. Is the ART a court?

No. It is an administrative tribunal, not a court exercising the judicial power of the Commonwealth. It conducts merits review within its statutory jurisdiction and operates under a more flexible procedural framework than ordinary court litigation.

11. Is the ART bound by the rules of evidence?

No. Section 52 of the Administrative Review Tribunal Act 2024 provides that the Tribunal is not bound by the ordinary rules of evidence. It may inform itself in an appropriate manner, while still observing procedural fairness and assessing the reliability and weight of the material.

12. Can the ART consider new evidence?

Yes, where relevant and within the statutory framework. Merits review generally involves a fresh examination of the matter, and the Tribunal may consider new information that assists it in determining the correct or preferable decision.

13. Must an applicant seek internal review before applying to the ART?

Not always. Some statutory schemes require internal review or another preliminary process, while others permit direct application to the ART. The relevant legislation and decision letter determine the applicable requirements.

14. Does applying to the ART suspend the original government decision?

No, not automatically. Under section 32 of the ART Act, the original decision generally continues to operate unless the Tribunal orders otherwise. An applicant may need to seek a stay or interim order.

15. What decisions can the ART make?

The Tribunal may affirm the original decision, vary it, set it aside and substitute a new decision, or remit the matter to the original decision-maker for reconsideration, depending on its statutory powers.

16. Can the ART make a decision different from the original agency?

Yes. This is a central feature of merits review. Where the relevant legislation permits, the ART may substitute its own decision after considering the facts, law and relevant circumstances.

17. What is the Guidance and Appeals Panel?

The Guidance and Appeals Panel is an internal mechanism within the ART for considering certain significant issues and Tribunal decisions that may contain material errors of fact or law. It aims to improve consistency and decision quality.

18. Can every ART decision be reviewed by the Guidance and Appeals Panel?

No. Only decisions satisfying the statutory and procedural eligibility requirements may be referred. The availability of referral depends on the case type and the nature of the issue or alleged error.

19. Can an ART decision be appealed to a court?

In certain cases, legislation provides an appeal to a court on a question of law. The availability and scope of an appeal depend on the relevant statutory provisions. A court appeal is not ordinarily a fresh merits review.

20. What is the difference between the ART and judicial review?

The ART conducts merits review and considers what the correct or preferable administrative decision should be. Judicial review is conducted by a court and examines whether the decision was lawful. Courts do not ordinarily substitute their own administrative judgment.

21. Does the ART review State government decisions?

Generally, no. The ART principally reviews decisions made under Commonwealth legislation. State and Territory tribunals exercise their own statutory jurisdiction over decisions made under their respective legal systems. The ART may deal with limited State or non-government decisions where legislation expressly confers jurisdiction.

22. What is NCAT?

The NSW Civil and Administrative Tribunal is a tribunal established under New South Wales law. It reviews specified administrative decisions made by NSW government agencies and exercises other civil, regulatory and specialist jurisdiction.

23. What are VCAT and QCAT?

VCAT is the Victorian Civil and Administrative Tribunal, while QCAT is the Queensland Civil and Administrative Tribunal. Both exercise jurisdiction conferred by their respective State legislation, including review of specified government and regulatory decisions.

24. Are application fees payable to the ART?

Fees are payable in many categories of review, but the amount depends on the type of decision and the applicable rules. Certain categories may be exempt or subject to reduced fees. Applicants should check the Tribunal’s current fee schedule.

25. How long does an ART review take?

The duration depends on the subject matter, complexity, evidence, caseload and statutory deadlines. Some reviews are completed relatively quickly, while complex migration, protection and other proceedings may take substantially longer. The ART publishes processing-time information for selected categories.

26. Can a person represent themselves before the ART?

Yes. Applicants may generally represent themselves, although legal or other permitted representation may be useful in complex matters. The Tribunal may also make arrangements for interpreters and other forms of assistance.

27. Does the ART publish its decisions?

The ART publishes selected decisions with written reasons, including decisions of particular significance. Not every decision is published, and confidentiality, privacy and statutory restrictions may affect publication.

28. What is the Administrative Review Council?

The Administrative Review Council is a body re-established under the ART reform. Its role is to examine and contribute to improvements in Commonwealth administrative law and the administrative review system. It is distinct from the ART, which decides individual review applications.

29. Can the ART review automated government decisions?

Yes, where the automated decision is reviewable under the relevant legislation. The Tribunal may reconsider the substance of the decision, including relevant facts and information that were incorrectly assessed by an automated process. The use of technology does not remove the need for lawful decision-making.

30. Why is merits review important to Australian administrative law?

Merits review provides an independent means of correcting administrative decisions and improving government accountability. It complements judicial review by examining the substance of decisions rather than only their legality. Together, these mechanisms help ensure that public power is exercised fairly, consistently and within the law.

Authoritative Sources and Further Reading

A. Commonwealth legislation

1. Administrative Review Tribunal Act 2024 (Cth) – the principal statute governing the ART, its jurisdictional framework, procedures, powers and institutional structure.
2. Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) – transitional and consequential reforms accompanying the establishment of the ART.
3. Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 (Cth) – further consequential amendments supporting the new system.
4. Administrative Review Tribunal Regulations 2024 – regulations supporting the Tribunal’s operation and appointment arrangements.
5. Administrative Review Tribunal Rules 2024 – procedural requirements, application periods, fees and related matters.
6. Migration Act 1958 (Cth) – statutory framework governing migration decisions and relevant ART review rights.

B. Commonwealth government and ART materials

7. Attorney-General’s Department – A New System of Federal Administrative Review – overview of the establishment of the ART and the replacement of the AAT.
8. Attorney-General’s Department – Overview of Administrative Review Tribunal Legislation – explanation of the three establishment Acts and the new procedural framework.
9. Administrative Review Tribunal – Our Role – official explanation of the Tribunal’s jurisdiction, functions and review powers.
10. Administrative Review Tribunal – Structure – institutional structure, members and jurisdictional areas.
11. Administrative Review Tribunal – Practice Directions and Other Guidance – current practice directions and procedural materials.
12. Administrative Review Tribunal – After Applying – information about case management, hearings, dispute resolution and review outcomes.
13. Administrative Review Tribunal – Possible Outcomes – explanation of affirmation, variation, substitution and remittal.
14. Administrative Review Tribunal – Guidance and Appeals Panel – the Panel’s functions and referral mechanisms.
15. Administrative Review Tribunal – Fees – current fee categories and concessions.
16. Administrative Review Tribunal – Processing Times – published processing-time information for selected review categories.
17. Administrative Review Tribunal – Annual Report 2024–25 – the Tribunal’s first annual report, including its functions, operations and performance.

C. State and Territory tribunal resources

18. NSW Civil and Administrative Tribunal – Administrative and Equal Opportunity Division – administrative review of specified NSW government decisions.
19. NCAT – Administrative Review and Regulation – reviewable decisions, procedures and jurisdiction.
20. South Australian Civil and Administrative Tribunal – Reviewing Administrative Decisions – administrative review of specified South Australian government decisions.
21. Queensland Civil and Administrative Tribunal – jurisdiction, review procedures and tribunal resources.

D. Related judicial review authorities

22. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 – constitutional protection of judicial review and jurisdictional error.
23. Kirk v Industrial Court of NSW (2010) 239 CLR 531 – supervisory jurisdiction of State Supreme Courts.
24. Attorney-General (NSW) v Quin (1990) 170 CLR 1 – distinction between merits and legality review and the limits of judicial intervention.

This article is intended for general legal education. It describes the Australian administrative review framework and is not individual legal advice. Review rights, fees, time limits and procedures should be checked against the current legislation and the relevant Tribunal’s official materials.