Guidance Note 7 – Obligation to assist the Administrative Review Tribunal (ART)

The information in this document applies to all Commonwealth entities involved in proceedings before the Administrative Review Tribunal (Tribunal). The key topics covered in this guidance note include:

• the obligation for Commonwealth entities to assist the Tribunal
• additional actions that entities can take in tribunal proceedings to ensure the review process runs efficiently, and
• how decision-makers participate in proceedings through the election notice framework and the obligations on a non-participating party under the Administrative Review Tribunal Act 2024.

1. The obligation on Commonwealth entities to act as a model litigant extends to merits review proceedings. The obligation on a Commonwealth entity, other than a government business enterprise, to ‘use its best endeavours to assist the tribunal to make its decision’ is set out in section 42 of the Legal Services Directions 2025 (Directions).

2. The obligation in the Directions to assist the tribunal reflects subsection 56(1) of the Administrative Review Tribunal Act 2024 (ART Act), which requires government decision‑makers to use their best endeavours to assist the Tribunal to:

• make the correct and preferable decision in relation to the proceeding, and
• achieve the Tribunal’s objective of pursuing an independent mechanism of review that is fair, just, efficient, accessible, supports public confidence in the Tribunal and builds confidence in the transparency and quality of government decision making (section 9 of the ART Act).

3. The key point under subsection 56(1) of the ART Act and section 42 of the Directions is that, rather than seeking to defend their original decision in the Tribunal, entities should focus on assisting the Tribunal to arrive at the correct or preferable decision.

4. This recognises the position of the Tribunal in reviewing the decision: that is, it considers the matter afresh. The Tribunal may inform itself on any matter in any manner it considers appropriate, and has discretion in relation to its procedure. It is not reliant on arguments between opposing parties.

5. The duty to assist emphasises that the role of government representatives is to support the Tribunal to reach the correct or preferable decision – including where that would be to set aside or vary the decision on review.

What is the ‘duty to assist’?

6. The ‘duty to assist’ recognises that there may be additional actions that entities can take in tribunal proceedings to ensure the process runs effectively, that are responsive to the needs of parties, and that the correct or preferable decision is reached – and that entities have a duty to take these actions.

7. Assisting the Tribunal to arrive at the correct or preferable decision may involve taking steps such as:

• making information easily available to the Tribunal
• avoiding delays and facilitating the early resolution of matters
• presenting new material where relevant, and
• providing specialist evidence when it may assist.

8. This list is not intended to be exhaustive, but to provide an example of conduct that would fulfil this obligation. How an entity may fulfil this obligation will vary according to the specific circumstances of each proceeding.

9. The courts have commented that the ‘duty to assist’ the Tribunal extends to requiring the Commonwealth to furnish the Tribunal with all available evidence that is centrally relevant to the matter, even where it is not raised or advanced by the applicant.^[1]

10. Similarly, to assist the Tribunal to achieve its objective under section 9 of the ART Act, entities must take steps to ensure that, for example:

• the review is fair and just, and
• proceedings are conducted with as little formality as possible, particularly in circumstances where another party is unrepresented.

11. Entities should not encourage the Tribunal to make orders that are inconsistent with its objective – for example, to summon information that will delay the proceeding without assisting the Tribunal to reach the correct or preferable decision.

Duty to assist for non-participating parties

12. The ART Act provides flexibility around how decision-makers participate in proceedings, through the election notice framework (set out in sections 60 to 64 of the ART Act and sections 7 to 12 of the Administrative Review Tribunal Rules 2024).

13. A non-participating party remains a party to the review where an election notice has been given, and must assist the Tribunal to the extent that they are participating in the review. A non-participating party is not required to assist where they are not participating in the review, despite the obligation under subsection 56(1) of the ART Act.

Model litigant obligation

14. Further guidance on the expected standard of conduct for entities before courts and tribunals is set out in the model litigant obligation at Part 5, Division 2 of the Directions.

Where can I get further help?

15. Further information can be accessed through the Attorney-General’s Department website and the Administrative Review Tribunal website.

Office of Legal Services Coordination
Phone: 02 6141 3642
E-mail: olsc@ag.gov.au
Issued: March 2026

This guidance material is of a general nature only and does not convey or contain legal advice.

Endnotes

1. Kasupene v Minister for Immigration and Citizenship [2008] FCA 1608.