Explanatory Statement

Issued by authority of the Attorney-General in compliance with section 15J of the Legislation Act 2003

Administrative Review Tribunal Amendment (2026 Measures No. 1) Rules 2026

Legislation Act 2003

PURPOSE AND OPERATION OF THE INSTRUMENT

The Administrative Review Tribunal Amendment (2026 Measures No. 1) Rules 2026 (Amendment Rules) amend provisions in the Administrative Review Tribunal Rules 2024 (ART Rules) to ensure the Administrative Review Tribunal (ART) operates as efficiently as possible, and to allow the effective implementation of the new 'on the papers' review process contained in Division 4A of Part 5 of the Migration Act 1958 (Migration Act), as amended by Administrative Review Tribunal and Other Legislation Amendment Act 2026 (ARTOLAA). The Amendment Rules also ensure the ART's application fee waiver settings remain appropriate and ensure a consistent approach to imposing fees for service providers applying to the ART for review of regulatory decisions.

Under section 295 of the Administrative Review Tribunal Act 2024 (ART Act), the Minister may make rules prescribing matters that are required or permitted to be prescribed by the rules, or necessary or convenient for carrying out or giving effect to the ART Act.

The purpose of the Amendment Rules is to:

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enable the President of the ART to authorise registrars and staff members of the ART to exercise or perform ART powers or functions contained in Division 4A of Part 5 of the Migration Act as amended by the ARTOLAA, enhancing the ART's ability to efficiently progress matters through the new 'on the papers' review process for applications for review of reviewable migration decisions relating to temporary visa decisions prescribed by the Migration Regulations 1994 , and

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enable the ART to impose application fees in relation to regulatory decisions made by the NDIS Quality and Safeguards Commissioner (NDIS Commissioner) regarding National Disability Insurance Scheme (NDIS) providers, including disqualified providers.

Authorisation powers for registrars and staff members of the ART

Paragraphs 284(1)(b), 285(1)(b) and 286(b) of the ART Act allow the ART Rules to prescribe functions and powers that the President may authorise members, registrars and staff members to perform. Once the matter is constituted, the ART will generally have control over how and by who within the ART a proceeding is conducted, but there are circumstances where it is appropriate to utilise other members, registrars or staff members to resolve a matter as efficiently as possible.

Authorisations under the ART Act are structured so that the functions and powers that a person can perform or exercise increase in accordance with the person's level of seniority:

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functions and powers that require a greater degree of analysis and significant exercise of discretion should only be performed or exercised by members

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functions and powers which have a degree of complexity that require the exercise of some discretion can generally be authorised to registrars to perform or exercise

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functions and powers that do not require an exercise of discretion, or are administrative in nature, are appropriate for staff members of the ART to perform or exercise.

The Amendment Rules amend the ART Rules to include additional functions and powers which the President may authorise registrars and staff members to perform or exercise under the Migration Act. These amendments support the ART in providing an independent mechanism of administrative review that ensures applications to the ART are resolved quickly, and with as little formality, as a proper consideration of the matters before the ART permit.

Imposition of Fees for NDIS Providers

The Amendment Rules amend the ART Rules to impose application fees for reviews of decisions made by the NDIS Commissioner in relation to reviewable decisions pursuant to subsection 99(1) of the National Disability Insurance Act 2013 (NDIS Act) involving NDIS providers. These amendments will enable the ART to distinguish between NDIS providers facing regulatory action and NDIS participants when imposing fees. Removing the benefit of fee waiver provisions for NDIS providers facing regulatory action is in line with the approach of not allowing service providers in other industries (for example financial advisers) to benefit from fee waiver provisions.

CONSULTATION

Subsection 295(6) of the ART Act provides that, before making rules affecting the practice, procedure or operations of the ART, the Minister must consult the President of the ART. The Attorney-General satisfied this requirement by consulting on the draft Amendment Rules with the President on 28 April 2026.

During the development of the draft Amendment Rules, the department also consulted with the ART, the Department of Home Affairs, the National Disability Insurance Agency and the NDIS Quality and Safeguards Commission.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

The Administrative Review Tribunal Amendment (2026 Measures No. 1) Rules 2026 (Amendment Rules) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Amendment Rules amend the Administrative Review Tribunal Rule 2024 (ART Rules) to include additional functions and powers which the President of the Administrative Review Tribunal (ART) may authorise registrars and staff members to perform or exercise under the Migration Act 1958 (Migration Act) as amended by the Administrative Review Tribunal and Other Legislation Amendment Act 2026 (ARTOLAA).

These amendments enable registrars and staff members of the ART to exercise new administrative and procedural powers of the ART contained in Division 4A of Part 5 of the Migration Act to support the efficient operation of the 'on the papers' process. Under Division 4A of Part 5, the ART must review decisions that relate to temporary visas of a kind prescribed in regulations entirely on the basis of written materials, without conducting an oral hearing. The functions or powers authorised by the Amendment Rules support a procedural process to allow applicants to have their matter considered by the ART, and support the efficient operation of the ART. The functions or powers being authorised by the Amendment Rules are largely routine in nature, do not involve the exercise of significant discretion or substantive decision-making, and can be adequately performed by the authorised registrar or staff member.

Section 30 of the ART Rules provides for decisions for which an application fee for a review of the decision is not payable. The Amendment Rules will remove exemptions from the payment of fees for reviews of regulatory decisions made by the NDIS Quality and Safeguards Commissioner (NDIS Commissioner) in relation to reviewable decisions pursuant to subsection 99(1) of the National Disability Insurance Act 2013 (NDIS Act) involving National Disability Insurance Scheme (NDIS) providers, including disqualified providers. These amendments will enable the ART to distinguish between NDIS providers facing regulatory action and NDIS participants when imposing fees.

Human Rights Implications

The Amendment Rules engage the following rights:

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the right to an effective remedy and the right to a fair and public hearing in Article 2(3) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The right to an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR

Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.

Article 14(1) of the ICCPR provides that everyone is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'.

The Amendment Rules promote these rights by supporting the procedural framework for reviews in the ART, enabling better access to effective remedies.

The ART Rules provide for the payment of an application fee for review of a decision in certain circumstances. Requiring the payment of fees is a limitation on a person's right to a fair hearing that is reasonable, necessary and proportionate in the circumstances. The ART Rules also identify circumstances in which a reduced fee, or no fee at all, is payable. The Amendment Rules provide for additional decisions for which a fee is payable to the Tribunal. However, these fees are a legitimate objective to reflect the cost of the service provided by the ART, reflects standard practice for similar bodies, and is subject to exceptions to promote access to justice. For example, the ART Rules provide for a fee reduction if an applicant meets certain criteria, which may include where the applicant is experiencing financial hardship.

Conclusion

The Amendment Rules are compatible with human rights and freedoms because they promote the protection of human rights by advancing the right to an effective remedy, and a fair hearing. To the extent that measures in the Amendment Rules limit those rights and freedoms, such limitations are reasonable, necessary and proportionate.

Attachment A

NOTES ON SECTIONS

Section 1 – Name

1. This section provides that the title of the instrument is the Administrative Review Tribunal Amendment (2026 Measures No. 1) Rules 2026 (Amendment Rules).

Section 2 – Commencement

2. This section provides that sections 1 to 4 and anything in the instrument which is not covered by the table in this section, and Part 1 of Schedule 1 of the Amendment Rules, commence the same day as Schedule 1 of the Administrative Review Tribunal and Other Legislation Amendment Act 2026 (ARTOLAA). Schedule 1 amends Part 5 of the Migration Act 1958 (Migration Act) to require the Administrative Review Tribunal (ART) to make decisions in relation to applications for review of certain kinds of reviewable migration decisions on the papers, without conducting an oral hearing.

3. This section provides that Part 2 of Schedule 1 of the Amendment Rules commence on 1 July 2026.

Section 3 – Authority

4. This section provides that the instrument is made under the Administrative Review Tribunal Act 2024.

Section 4 – Schedules

5. This section provides for the operation of the provisions set out in the Schedule. Where an instrument is amended or repealed in the Schedule to this instrument, that amendment has effect as is contained in the Schedule. Any other item in a Schedule has effect according to its terms.

SCHEDULE 1 - Amendments

PART 1 – AUTHORISATIONS BY THE PRESIDENT

Administrative Review Tribunal Rules 2024

6. Paragraphs 284(1)(b), 285(1)(b) and 286(b) of the Administrative Review Tribunal Act 2024 (ART Act) allow the Administrative Review Tribunal Rules 2024 (ART Rules) to prescribe functions or powers that the President of the ART may authorise members, registrars and staff members to perform or exercise.

7. Under paragraph 285(1)(a) of the ART Act, the President can authorise a registrar to perform or exercise any functions or powers a staff member could be authorised to perform or exercise. Likewise, under paragraph 284(1)(a) of the ART Act, a member can be authorised by the President to perform or exercise any powers or functions a registrar could be authorised to perform or exercise. Therefore, if a staff member is authorised to perform or exercise a function or power under the ART Act or another Commonwealth Act, both registrars and members may be authorised to perform or exercise that function or power.

8. The Amendment Rules amend the ART Rules to enable the President of the ART to authorise registrars and staff members to undertake additional functions or powers under Division 4A of Part 5 of the Migration Act as amended by the ARTOLAA. Under new Division 4A of Part 5 of the Migration Act, the ART must review decisions that relate to temporary visas of a kind prescribed in regulations entirely on the basis of written materials, without conducting an oral hearing.

9. The Amendment Rules would preserve the role of members in reviewing applications and making decisions under the new review process. However, the Amendment Rules would enable the President to authorise registrars and staff members to exercise or perform certain functions or powers that are largely routine in nature, do not involve the exercise of significant discretion or substantial decision-making, and can be adequately performed by registrars or staff members to assist Tribunal operations.

10. These additional functions or powers are administrative in nature and support the efficient operation of the ART. Authorising registrars and staff members to exercise and perform the additional powers and functions set out below will support the effective operation of the new 'on the papers' review process, and will enable members to focus on making substantive decisions.

Item 1 – Section 17 (subsection heading)

11. This item repeals and replaces the subheading 'Functions and powers under the Act' in the ART Rules with 'Functions and powers under other Acts' to clarify that, for the purposes of paragraph 284(1)(b) of the ART Act, a member may be authorised to perform or exercise a function or power of the Tribunal under a provision of an Act listed in the table contained in that section.

Item 2 - Subsection 18(1) (table item 7, column 2)

12. This item inserts a reference to subsections 367G and 367M of the Migration Act into the table in subsection 18(1) of the ART Rules. Subsection 18(1) sets out, for the purposes of paragraph 285(1)(b) of the ART Act, the functions and powers a registrar may be authorised to perform or exercise under a provision of an Act listed in the table.

13. Sections 367G and 367M are contained in new Division 4A of Part 5 on the Migration Act, which provides for the new 'on the papers' review process for applications for review of reviewable migration decisions relating to temporary visa decisions of a kind prescribed in regulations under the Migration Act.

14. Section 367G of the Migration Act provides that the ART must provide to the applicant clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review. The ART must also ensure, as far as reasonably practicable, the applicant understands why the information is relevant to the review, the consequences of the information being relied on in affirming the decision that is under review, and invite the applicant to comment on the information. It is appropriate for registrars to perform this function as:

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it would enhance the ART's ability to efficiently case manage reviews of reviewable migration decisions subject to the 'on the papers' process, and

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there are important legislative mechanisms in place to ensure this function is performed appropriately by registrars by ensuring member oversight and consideration of relevant information provided under section 367G of the Migration Act. For example:

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Under subsection 367N(3) of the Migration Act, the Tribunal cannot make a decision until the obligations under section 367G have been discharged.

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Under paragraph 367N(1)(a) of the Migration Act, if any comments are provided by an applicant in response to an invitation given by a registrar under subsection 367G(1) these must be considered by a member before the making of a decision.

15. Section 367M of the Migration Act provides that the ART must dismiss an application if the applicant does not respond to an invitation given by the ART under subsection 367F(1), inviting the applicant to give written submissions and evidence relating to relevant issues, in relation to an application to be reviewed on the papers within the response period identified in the invitation.

16. It is appropriate for registrars to perform this function as:

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the dismissal power is a mandatory power, which does not involve the exercise of a discretion,

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it would enhance the ART's ability to efficiently case manage reviews of reviewable migration decisions subject to the 'on the papers' process, and

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there are safeguards which ensure this function is appropriately performed by registrars. For example:

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If a registrar dismisses an application under section 367M of the Migration Act, an applicant would be able to apply for reinstatement of the application within 28 days of receiving the dismissal notice, in accordance with section 368C.

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The ART would be required to reinstate the application if it considers that it is appropriate to do so or confirm the decision to dismiss the application by written statement under section 368 of the Migration Act.

Item 3 – Subsection 19(1) (table item 3, column 2)

17. This item inserts a reference to section 367F of the Migration Act into the table in subsection 19(1) of the ART Rules. Subsection 19(1) sets out, for the purposes of paragraph 286(b) of the ART Act, the functions and powers a staff member may be authorised to perform or exercise under a provision of an Act listed in the table.

18. Section 367F of the Migration Act provides that the ART must, in relation to an application to be reviewed on the papers, invite the applicant to give the ART written submissions and evidence relating to relevant issues. Relevant issues under subsection 367F(1) include:

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if the application is for review of a decision to refuse to grant a visa, if the refusal was because the applicant did not satisfy a criterion for the visa—whether the applicant satisfies that criterion

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if the application is for review of a decision to refuse to grant a visa, if the refusal was because a provision of the Migration Act or the regulations prevented the grant of the visa—whether that provision prevents the grant of the visa, and

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any other issue prescribed by the Migration Regulations 1994.

19. It is appropriate for staff members to perform this function as:

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The function is administrative in nature and authorising staff members to perform this function will support the efficient operation of the ART by ensuring the ART can effectively deploy its resources in relation to reviews of reviewable migration decisions subject to the 'on the papers' process.

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There are legislative mechanisms in place to ensure this function is performed appropriately by staff members by ensuring member oversight and consideration of relevant information provided through the processes under section 367F of the Migration Act. For example, under paragraph 367N(1)(a) of the Migration Act, if any comments are provided by an applicant in response to an invitation given by a staff member under subsection 367F(1) these must be considered by a member before the making of a decision. Any response or non-response from the applicant in relation to an invitation made under subsection 367F(1) must be considered by a member or registrar before further action is taken on the review application.

PART 2 – APPLICATION FEES

Administrative Review Tribunal Rules 2024

20. Subsection 296(1) of the ART Act enables the ART to charge fees in accordance with the ART Rules. Subsection 296(4) provides that the ART Rules may do any or all of the following:

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prescribe fees in respect of a particular class or classes of applications, costs, proceedings or services

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prescribe different fees in respect of different classes of applications, costs, proceedings or services

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prescribe the amount of, or a method for working out the amount of, a fee

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make provision in relation to the whole or a part of a fee

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provide for the Tribunal to make orders relating to the payment of a fee in relation to a proceeding.

21. Section 30 of the ART Rules prescribes decisions for which an application fee is not payable.

22. The Amendment Rules amend the ART Rules to impose application fees for reviews of regulatory decisions made by the NDIS Commissioner under the National Disability Insurance Act 2013 (NDIS Act) involving NDIS providers, including disqualified providers.

Item 4 – Paragraph 22(1)(a)

23. This item omits the words 'or section 30' in paragraph 22(1)(a) of the ART Rules and substitutes them with 'or an application referred to in section 30 in respect of which no fee is prescribed'.

24. Section 22 of the ART Rules provides for the fees for applications to the Tribunal. Under paragraph 22(1)(a), a standard application fee of $1,121 applies to an application to the Tribunal for review of a decision other than an application referred to in section 30 of the ART Rules (Decisions for which application fee is not payable). This amendment provides that a standard application fee would not apply to an application referred to in section 30 in respect of which no fee is prescribed.

25. This item clarifies the distinction between applications referred to in section 30, for which no fees are prescribed, and applications that do not qualify for the prescribed fee exemption.

Item 5 – Subsection 27(1)

26. This item inserts the words 'in respect of which no fee is prescribed' after 'an application referred to in section 30 of this instrument' in subsection 27(1) of the ART Rules. Under subsection 27(1), a standard application fee of $1,121 will apply in respect of an application under section 123 of the ART Act to the President to refer a decision of the Tribunal to the guidance and appeals panel other than an application referred to in section 30 of this instrument in respect of which no fee is prescribed.

27. This item clarifies the distinction between applications referred to in section 30, for which no fees are prescribed, and applications that do not qualify for the prescribed fee exemption.

Item 6 – Section 30 (table item 12)

28. This item repeals item 12 of the table in section 30 of the ART Rules and replaces it with new item 12, which provides that no application fee is payable for 'a decision under the National Disability Insurance Scheme Act 2013, other than a decision made by a reviewer under subsection 100(6) of that Act that relates to a decision mentioned in item 9, 10, 11, 12, 13, 13A, 13B, 13C, 13D, 14, 14A, 15, 16, 16A or 16B of the table in subsection 99(1) of that Act'.

29. This item provides that an application fee to the ART is payable for applications for review of decisions made by the NDIS Quality and Safeguards Commissioner (NDIS Commissioner) under subsection 100(6) of National Disability Insurance Scheme Act 2013 that relate to decisions made under any of the following provisions of that Act:

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a decision to refuse to register a person as a registered NDIS provider under section 73E

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a decision to impose conditions to which the registration of a person as a registered NDIS provide is subject under section 73G

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a decision to vary, or refuse to vary, the registration of a NDIS provider under section 73L

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a decision to suspend the registration of a person as a registered NDIS provider for a specified period under section 73N

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a decision to revoke the registration of a person as a registered NDIS provider under section 73P

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a decision to refuse to approve a person or body to be an approved quality auditor for the purposes of the NDIS Act under paragraph 73U(3)(b)

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a decision to make an approval of a person or body to be an approved quality auditor subject to conditions under subsection 73U(5)

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a decision to vary an approval of a person or body to be an approved quality auditor under subsection 73U(6)

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a decision to revoke an approval of a person or body to be an approved quality auditor under subsection 73U(8)

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a decision to issue an NDIS provider a compliance notice under section 73ZM

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a decision to vary, or refuse to vary, or revoke a compliance notice under subsection 73ZM(4)

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a decision to make a banning order under section 73ZN

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a decision to vary or revoke a banning order under section 73ZO

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a decision to make an anti-promotion order prohibiting or restricting a person from engaging in regulated promotional conduct under section 73ZOA, and

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a decision to vary, or refuse to vary, or revoke an anti-promotion order under section 73ZOC.

30. This item enables the ART to distinguish between NDIS providers facing regulatory action and NDIS participants when imposing fees. Removing the benefit of fee waiver provisions for NDIS providers facing regulatory action is in line with the approach of not allowing service providers in other industries (for example financial advisers) to benefit from fee waiver provisions.

Item 7 – At the end of Part 6

31. This item provides a transitional provision which provides that the changes to fee settings provided for in Part 2 of the Amendment Rules apply in relation to an application that is made on or after the commencement of that Part – being 1 July 2026 – whether the decision or decisions to which the application relates were made before, on or after that date.