ARC Statement of Position – Terms of Reference

Statement of Position – Terms of Reference

1.Background

1.1.On 19 May 2025, the Administrative Review Council (Council) decided to develop a Statement of Position regarding implementation by agencies of administrative review decisions of courts and tribunals.

1.2.The Council’s decision follows its consideration of a systemic issue referral by the President of the Administrative Review Tribunal (ART) sent to the Council on 16 December 2024 (Notice of Systemic Issue No.1 of 2024). Whilst the Council decided not to commence an inquiry into the Notice of Systemic Issue No.1 of 2024, it considered the broader systemic issue of implementation by agencies of decisions of courts and tribunals and decided that the appropriate course was to publish a Statement of Position.

1.3.The Statement will guide agencies on how the decisions of courts and tribunals should be given due consideration in primary and internal review decision-making. This includes the development and implementation of a policy as to correct interpretation and application of relevant statutory provisions. The aim is to improve the quality of primary and internal review decision-making. The Council sees this as a means for strengthening the accessibility, consistency and timeliness of the administrative review system.

2.Scope

2.1.The Statement of Position will focus on the obligations of Commonwealth agencies with respect to the implementation of administrative review decisions of courts and tribunals (including the ART, the Australian Information Commissioner and the Commonwealth Ombudsman).

2.2.In developing the Statement of Position, the Council will conduct research on the implementation by agencies of administrative review decisions of courts and tribunals, with reference to:

1. The binding nature of remedies issued in judicial review;
2. The legal effect of determinations made by federal merits review tribunals and other federal tribunals and by courts determining appeals from tribunals;
3. The operation of the doctrine of precedent;
4. Mechanisms for enforcement of remedial orders or determinations made by courts in judicial review, by tribunals and by courts determining appeals from tribunals;
5. The relevance to (i) to (iv) of a pending appeal, or agency intention to appeal from a decision when a suitable vehicle for appeal presents;
6. The relevance to (i) to (v) of Legal Services Directions;
7. Conventions and agency practices relating to enforcement and implementation of court and tribunal orders and determinations;
8. Recent cases raising issues of implementation of decisions (in some instances with an accompanying public announcement by the relevant agency indicating a policy relating to implementation); and
9. Council’s position with regard to (i) to (viii) in relation to the obligations of agencies and recommendations as to best practice.

2.3.The Council will have regard to sources of research, including but not limited to:

1. In relation to (i) to (vi), relevant case law and other legal authority;
2. In relation to (vii), publicly available information as to practices of particular agencies;
3. In relation to (viii), the recent cases:
   
   Chaplin v Secretary, Department of Social Services [2025] FCAFC 89; (appeal from Re FTXB and Secretary, Department of Social Services [2024] AATA 3021); Secretary, Department of Social Services Public statement regarding income apportionment, 23 October 2024; appeal to Full Federal Court filed on 24 September 2024; Secretary, Department of Social Services Public statement regarding income apportionment, 20 March 2025; Update to Secretary’s public statement on income apportionment, 15 July 2025.
   
   Commissioner of Taxation v Bendel [2025] FCAFC 15 (appeal from Bendel v Commissioner of Taxation (Taxation) [2023] AATA 3074); special leave granted: Commissioner of Taxation (Cth) v Bendel [2025] HCADisp 124 (12 June 2025); Commissioner of Taxation Interim Decision Impact Statement: Commissioner of Taxation v Bendel [2025] FCAFC 15, 19 March 2025.
   
   Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325, [2007] FCAFC 16.
4. In relation to (ix),
   • the material relevant to (i) to (viii);
   • ARC Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39 (Commonwealth of Australia, 1995) Chap 6, recommendations 71, 72, and 73;
   • Solicitor-General’s advice in relation to compliance by agencies with decisions of courts; and
   • Royal Commission into the Robodebt Scheme Final Report (Commonwealth, 2023) Recommendations 19.2,19.4, 19.8, 19.9, 20.1, 20.2, 20.3, 23.8
   • Commonwealth Ombudsman Learning from Merits Review: Best Practice Principles for Agency Engagement with Merits Review (December 2024).

3.Consultation

3.1The Council will not conduct a public consultation process when developing the Statement of Position. However, the Council may conduct a targeted consultation program on limited aspects of the paper.

4.Timeframe

4.1The Council will publish the Statement of Position on its website by 27 February 2026.