GAP referral decisions: should reasons usually be given?

Section 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) governed the circumstances in which the President of the Tribunal could refer a matter to the Tribunal's Guidance and Appeals Panel (GAP).

In refusing a referral to the GAP, the President gave reasons which included (emphasis added):

The absence of a requirement in the ART Act for the President to provide reasons for a referral decision recognises two important practical considerations. First, if detailed reasons are provided for a decision that a Tribunal decision be referred to the GAP based on a finding that it may contain an error of fact or law materially affecting it, there may be a perception that the finding may pre-empt the outcome of the review by the GAP. Conversely, if detailed reasons are provided for a decision that a Tribunal decision not be referred to the GAP based on a finding that it did not contain an error of law materially affecting it, the finding may discourage a party adversely affected by the decision from appealing to the Federal Court. Further, if that party does appeal, there may be some awkwardness in the President making detailed findings on matters to be decided by the Court.

Further, s 172 of the ART Act provided (original emphasis):

172    Party may appeal

(1)    A party to a proceeding in the Tribunal may appeal to the Federal Court, on a question of law, from the decision of the Tribunal in the proceeding.

Note 1:    A party to a proceeding for review of a decision of the Child Support Registrar, or second review that relates to the decision, may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 99 of the Child Support (Registration and Collection) Act 1988 and section 131E of this Act).

Note 2:    For when a party to a proceeding for review of a decision under the Migration Act 1958 can make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), see sections 476 and 476A of the Migration Act 1958).

(2)    To avoid doubt, subsection (1) does not apply in relation to a decision under section 128 (President decides whether to refer Tribunal decision to guidance and appeals panel).

Note:    A decision under section 128 is not a decision of the Tribunal.

Also, s 174(3) of the ART Act provided:

(3) If a person applies to refer the decision to the guidance and appeals panel, for the purposes of counting the 28 days mentioned in paragraph (1)(a), (b) or (c), do not take into account any day in the period between the day the application is made and the day the President refers the decision or refuses the application.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Did s 129 of the Administrative Review Tribunal Act 2024 (Cth) require the President of the Tribunal to provide reasons for a decision whether to refer a matter to the GAP?

Question 2: Should reasons as to whether to refer an ART decision to the GAP usually not be given, for instance because, if a party appeals from that decision to the Court, "there may be some awkwardness in the President making detailed findings on matters to be decided by the Court"?

Question 3: Was a decision under s 128 a decision of the Tribunal, despite the note to the contrary under s 128?

Question 4: Is the effect of s 174(3) to provide "additional time for a person to appeal to the Court, should an application be made to the Guidance and Appeals Panel in the meantime, so that, effectively, the time in between is not taken into account in calculating whether or not the appeal to this Court is then made within time"?

Question 5: Is the effect of s 174(3) that "it always remains open to a party to appeal a Tribunal decision to this Court, even if there has been a refusal to refer the matter to the Guidance and Appeals Panel"?

Question 6: Was the decision of the President one actually of the GAP?

The FCA answered those questions as follows: