The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

7.2.6 Appeals to Federal Court & references of questions of law

Introduction

A party to a proceeding in relation to an ART reviewable decision (1.1.A.02 or 1.1.A.03) can appeal to the Federal Court on a question of law from the decision of the ART in the proceeding. A person may also appeal to the Federal Court a decision that their interests are not affected by a reviewable decision.

Note: The decision of the President about whether to refer an ART decision to the guidance and appeals panel cannot be appealed to the Federal Court.

When & how an appeal can be made

The appeal to the Federal Court must be made:

  • if the ART is required to give a statement of reasons for the decision or a person has the right to request one and does so, 28 days after the ART gives the person the statement of reasons
  • if a person has the right to request a statement of reasons but does not do so, 28 days after the last day they could have made the request
  • in any other circumstance, no later than 28 days after the person is given the decision.

To make an appeal the person must file a notice of appeal in the manner prescribed by the Federal Court Rules. The relevant forms are available on the Federal Court’s website.

A person wanting to apply for an extension to the 28 day time limit may apply to the Federal Court.

Act reference: ARTAct Part 7 Appeals and references of questions of law to Federal Court, section 172 Party may appeal, section 173 Decisions about standing, section 174 Time and manner for making appeals

Federal Court Rules 2011 Division 33.2–Administrative Appeals Tribunal

Operation & implementation of the ART decision while a Federal Court appeal is ongoing

Generally, an appeal to the Federal Court does not affect the operation of the ART decision or prevent Centrelink taking action to implement the decision.

However, the Federal Court may choose to make an order staying the operation or implementation of the ART decision, in part or in full, to ensure the effectiveness of the hearing and determination of the appeal.

The stay order may specify specific conditions and remains in force for either a stated period or until the decision on the appeal is given. It may also be varied or revoked by the Federal Court.

Act reference: ARTAct section 178 Operation and implementation of Tribunal’s decision

Referring questions of law

In addition to a person appealing to the Federal Court, the ART may, with the agreement of the President of the ART, refer a question of law arising during an ART review to the Federal Court for decision.

The ART may do so either at its own initiative or at the request of one of the parties to the ART review.

Once a question of law has been referred, the ART must not give a decision to which the question is relevant while the reference is still pending, or proceed in a manner or make a decision that is inconsistent with the opinion of the Federal Court on the question.

Act reference: ARTAct section 185 Referring questions of law

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