Administrative Review Tribunal (ART) first review scrutiny and implementation, ART second review, Guidance and Appeals Panel and Court Appeals 109-03050000

The ART is an independent tribunal that reviews decisions made by Services Australia.

A customer applies to the ART for a review of a decision made by an Authorised Review Officer (ARO) or a Subject Matter Expert (SME) for a SME Quality Check requested before 15 May 2021. This is the ART first review.

If the customer disagrees with the ART first review decision, they may apply for an ART second review.

The agency may also seek an ART second review on behalf of the policy department responsible for the original decision.

Do not provide a copy of the ART decision statement to a person who was not a party to an ART first review, even if the decision affected them. Advise the person to contact the ART.

Do not use the system terms ART1 or ART2 when discussing ART reviews with a customer.

Services Australia cannot accept:

• an application for an ART review
• a withdrawal of the application for a review

Customers must:

• apply directly to the ART for a review
• contact the ART if they want to withdraw their application for a review

The ART exercises most of the powers available to Service Officers and AROs. See References page for links to the laws that restrict the ART's powers.

The ART is bound by the same legislation as the agency. The decision of the ART applies only to the case under review and is not to be applied to other similar cases. The relevant policy department will advise the agency if they intend to reconsider a policy position following an ART decision.

There are limits on the ART's ability to review some decisions. In all cases, the customer should be advised to lodge their review application so the ART can decide whether it has jurisdiction.

If it has jurisdiction, the ART must:

• affirm the decision
• vary the decision
• set aside the decision and substitute a new decision, or
• set aside the decision and remit it to the Secretary for reconsideration in accordance with any directions or recommendations

The time limit to apply for ART second review is usually 28 days after the customer receives the ART first review decision. If the customer does not meet the time limit, they may ask the ART to extend it.

ART second review is a no-costs jurisdiction in relation to Services Australia matters. This means that the ART cannot order anyone to pay the costs the other side has incurred in making their application or preparing their case. Each party is responsible for their own travel and accommodation costs.

The customer is responsible for all other expenses they have, including legal representation. The customer will be liable for the cost of their legal representation, regardless of whether they are successful on review.

Customers may choose to represent themselves at the ART or may be helped or represented by someone who may or may not be a lawyer. The customer will have to pay all expenses they incur in having a decision reviewed, including the costs of being represented at the ART, as the ART cannot award costs in Services Australia matters.

Legal Aid may be available for some ART reviews. Community Legal Centres (such as Welfare Rights Centres) may also be able to help customers.

A customer’s payment can only continue if the ART issues a stay order. Where an ART stay order is granted, Litigation Branch will request implementation. Debt recovery can also continue pending the review, unless the Tribunal orders otherwise. The customer may contact Litigation Branch to ask for debt recovery to be paused without a stay order. See Process page > Table 2 > Step 2.

For more information see Table 3 in Recovery of debts pending a reassessment, explanation or review of decision.

Customers may give the agency additional evidence to support their ART second review. The agency will accept this evidence and provide it to the ART within 28 days of it being provided to the agency. The Litigation Branch will provide the customer with a notice of representation letter within 28 days of the ART second review application being received by Litigation. This will contain the relevant Litigation email address for customers to provide additional evidence. Litigation will then provide the evidence to the ART, if the ART has not already received it.

A customer may make a claim or seek reassessment of an existing payment before an ART review is completed. If the customer makes a claim for the same payment that is being reviewed by the ART, the claim process should be completed. A reassessment of an existing payment is also to be processed, unless it affects the decision being reviewed by the ART.

If the evidence or reassessment may affect the decision being reviewed by the ART, it must be discussed with the Litigation Branch before any action is undertaken.

Internal review and external appeal records can be made up of electronic records and a paper file(s), including on and off file (batch) documents and, in some cases, magnetic media (microfiche).

Staff should be aware that anything they record on the customer record, attach to a customer file or batch store can be provided to the ART or to a Court as evidence. Screen shots and DOCs are normally included in documentation provided to the ART and to Courts. Staff must make sure they are factually correct, complete and professionally worded.

The ART sends a copy of its decision to the Litigation Branch. Litigation Branch lawyers examine all set aside and varied decisions, to identify those where a further appeal for ART second review or to the Federal Court is warranted.

If instructions to lodge an appeal are received, this is lodged by the Litigation Branch on behalf of the policy department. Where no appeal is lodged, the Tribunal's decision must be implemented, subject to instructions from the Litigation Branch.

The implementation of an ART decision is delayed up to 28 days while the agency considers appealing the ART’s decision. The decision must not be implemented until the Litigation Branch provides instructions to do so, via a work item.

If the customer requests the decision be implemented prior to clearance being recorded, the Litigation Branch must be contacted for advice.

For Compliance staff implementing ART decision directly related to a Compliance Intervention Process only

Since 2021, all ART first review and ART second review implementations directly related to Compliance Intervention processes are undertaken by specific sites under a compliance ART Framework. The Framework and the ART decisions are managed by the Compliance Program team to facilitate a centralised process. See Process for more details.

JCA assessments may be requested by the Litigation Branch for an ART second review. The Litigation Branch will advise whether the JCA report should be accepted. See Reviews and appeals for Disability Support Pension (DSP) rejection or cancellation decisions.

The GAP is a part of the ART and considers issues that are significant to administrative decision making and address errors in ART decisions.

A review by the GAP is available in limited circumstances.

• A person cannot apply to the GAP for a review of an 'eligible social services decision'
• A person can apply to the ART for a GAP review of a non-eligible social services decision, which must be approved by the President of the ART
• The President of the ART may refer any matter before the ART for review by the GAP, including reviews of 'eligible social services decisions'

An eligible social services decision is defined in section 131C of the Administrative Review Tribunal Act 2024 and includes:

• a reviewable decision made under the A New Tax System (Family Assistance) Act 1999
• a reviewable decision made under the A New Tax System (Family Assistance) (Administration) Act 1999, other than a child care provider decision (within the meaning of that Act)
• a reviewable decision made under the Paid Parental Leave Act 2010 that is a claimant decision (within the meaning of that Act)
• a reviewable decision made under the Social Security Act 1991
• a reviewable decision made under the Social Security (Administration) Act 1999
• a reviewable decision made under the Student Assistance Act 1973

The ART cannot undertake a further review of a decision made by the GAP.

All parties to an ART first review, ART second review or GAP final review have a further right of appeal to the Federal Court. Decisions of the Full Federal Court may be appealed, by special leave, to the High Court. Both the customer and the government organisation can appeal a decision of the ART to the Federal Court.

An appeal to the Federal Court in respect of a decision following the ART review can only be made on a point of law. The ART has the final say on any issues of fact. The courts will consider whether the ART has correctly interpreted and applied the law.

The Federal Court is the first level of appeal and is a formal judicial process. The matter is heard and decided by a single judge.

Some matters may be referred from the Federal Court to the Federal Circuit and Family Court of Australia (FCFOA), which is intended to provide a simple and accessible alternative to the Federal Court. The decision of the FCFOA may then be appealed back to the Federal Court.

Decisions of a single judge of the Federal Court can be appealed to the Full Federal Court, with three or more judges deciding the matter. Some ART review decisions go directly to the Full Federal Court.

A decision of the Full Federal Court can in turn be challenged in the High Court. The High Court is the highest level of appeal, consisting of formal appeal consideration by three to seven judges. Although it is often concerned with constitutional matters, the High Court is also the final level of appeal for most jurisdictions, including the State Supreme Courts. Access to the High Court is not automatic. The appellant must seek and obtain special leave to appeal, which can be a significant process in itself.

There are time limits on lodging appeals. If a person takes longer than the limit to lodge an appeal the court holds a hearing to determine whether it should accept the appeal.

Unlike most appeals to the ART, there are costs associated with court appeals. For example, there is a fee to lodge an appeal and there are a range of costs associated with filing documents required by the court. These fees may be waived by the court for Centrelink customers.

In addition, the courts generally award costs to the successful party. This means that the legal costs of the successful party must be paid by the unsuccessful party. As Centrelink must engage lawyers to represent itself or its policy departments, these costs can be substantial and may have to be met by a customer who unsuccessfully appeals a decision.

All Court appeals are handled by the Litigation Branch.

Appeal records can be made up of electronic records and a paper file(s), including on and off file (batch) documents and, in some cases, magnetic media.

A Court file should hold all documents created or obtained for the appeal, including working notes, correspondence from solicitors/barristers and requests for, and clearance of instructions.

Copies of documents directly related to the customer's entitlement or the decision under appeal should be uploaded to the customer record. This includes any new evidence obtained during the review and appeal process.