1
Q
Front: 📜 ART Act 2024 (Cth) s 12 – What does it provide?
A
Back: Defines reviewable decisions: A decision is reviewable if an Act or instrument provides for ART review.
2
Q
Front (Cloze): 📜 s 17(1): A person whose ___ are affected by a reviewable decision may apply for review.
A
Back: interests
3
Q
Front: 📜 ss 18–20 – What do they regulate?
A
Back: Time limits for making an application to ART.
4
Q
Front (True/False): ✅ T/F – A tribunal has inherent jurisdiction to review administrative decisions.
A
Back: ❌ False – Tribunals have only statutory jurisdiction.
5
Q
Front (Cloze): 📜 s 23 requires the decision maker to provide ___ + ___ within 28 days of notice.
A
Back: Statement of reasons + all relevant documents.
6
Q
Front: 📜 s 52 – Tribunal and rules of evidence?
A
Back: Tribunal is not bound by rules of evidence – may inform itself as it considers appropriate.
7
Q
Front: 📜 s 105 – Tribunal’s remedial powers?
A
Back: Affirm, vary, set aside & substitute, or remit.
8
Q
Front 📜 s 111 📝 – What must Tribunal provide in writing?
A
Back: The decision + statement of reasons.
9
Q
Front (Cloze): 📜 s 113 🔦 – ART must publish decisions with a ___ conclusion of law or ___.
A
Back: significant; significant policy implications.
10
Q
Front: 📜 s 172 – What appeals does it allow?
A
Back: Appeal to the Federal Court on questions of law only.
10
Q
Front: 📜 s 179 – When does the Federal Circuit Court hear ART appeals?
A
Back: Some areas (e.g. migration, child support).
10
Q
Front (Cloze): 📜 s 173 – If the ART decides a person’s interests are not affected, what recourse exists?
A
Back: Right to appeal to Federal Court.
11
Q
Front: ⚖️ Collector of Customs v Brian Lawlor Automotive (1979) – Principle?
A
Back: Even purported/unauthorised decisions may be reviewable.
12
Q
Front: ⚖️ Chaney (1980) – Meaning of “decision”?
A
Back: Appeal under s 44 lies only from the final effective decision disposing of the review.
13
Q
Front (Cloze): ⚖️ Chaney confirms appeal is usually only from a ___ decision, not interim steps.
A
Back: final effective
14
Q
Front: ⚖️ Burns v Corbett (2017) – Why relevant to NCAT?
A
Back: NCAT cannot exercise federal jurisdiction under s 75(iv) (diversity). Matters must be transferred.
14
Q
Front: Flowchart 🛠️ – Jurisdiction checklist for a problem question?
A
✅ Statutory conferral? (s 12 – enabling Act)
👤 Standing? (s 17 – interests affected)
⏰ Time limits? (ss 18–20)
🏛️ Constitutional limits? (Burns v Corbett)
14
Q
Front: Flowchart 🧩 – Steps if a decision is not reviewable?
A
Back:
Check enabling Act – is ART mentioned?
If not → no jurisdiction.
Applicant may consider judicial review instead.
15
Q
Front: Flowchart 🔄 – Standing test in practice?
A
Back:
Is the applicant’s interest affected (s 17)?
If unclear → Tribunal decides.
If ART says “not affected” → right of appeal to FCA (s 173).e0
16
Q
Front: 🔍 What is “merits review” in one line?
A
Back: The Tribunal stands in the shoes of the decision-maker and determines the correct or preferable decision on the material before it.
16
Q
Front (True/False): ✅ T/F – In merits review, the Tribunal is confined to reviewing the DM’s reasoning.
A
Back: ❌ False – Tribunal makes the decision afresh.
16
Q
Front (Cloze): 🔍 “Correct” = __ / __ ; “Preferable” = __.
A
Back: Correct = legally / factually right; Preferable = best exercise of discretion.
17
Q
Front (Cloze): 🧾 The Anatomy of an Administrative Decision (Brennan J, 1980): The Tribunal may exercise all the ___ and ___ of the DM.
A
Back: powers and discretions.
17
Q
Front: ⚖️ Makasa [2021] – key holding on merits review?
A
Back: Tribunal’s role is to “do over again” what the DM did; determine for itself the correct/preferable decision.
17
Front: ⚖️ Drake No 1 – What did the AAT do?
Back: Applied Minister’s criminal deportation policy and affirmed deportation without independent assessment.
17
Front (Cloze): ⚖️ Makasa → Merits review = Tribunal must “__” the decision of the DM.
Back: do over again (“stand in the shoes”).
18
Front: ⚖️ Drake v Minister (Fed Court) – What was the error?
Back: Tribunal wrongly treated itself as bound by policy instead of making an independent assessment.
18
Front: ⚖️ Drake No 2 (Brennan J) – What approach to policy?
Back: Tribunal should ordinarily apply lawful Ministerial policy unless unlawful, unjust, or cogent reasons to depart.
18
Front (Quote Cloze): ⚖️ Brennan J: “Consistency is not preferable to ___.”
Back: justice.
18
Front: ⚖️ When is policy unlawful or inappropriate?
Back: If it:
Conflicts with statute
Excludes relevant considerations
Compels consideration of irrelevant factors
Fettered discretion by precluding case-by-case assessment
18
Front: ⚖️ Why must tribunals consider policy at all?
Back: Policy promotes consistency and fairness across cases, especially when decisions involve broad discretion.
19
Front: 🧭 When can the Tribunal vary/set aside a decision? (Brennan J’s test)
Back: If:
Facts are different than believed by DM
Law applies differently
Discretion exercised in a preferable way
19
Front (Cloze): 🧭 Before varying/setting aside, Tribunal must find: facts ___, law ___, or discretion ___ exercised.
Back: facts different, law applied differently, discretion better exercised.
19
Front: ✅ Why is Drake important for policy-heavy cases like licensing (e.g. Network Xtra)?
Back: Shows that ART must consider but not slavishly follow policy; must make its own independent judgment.
19
Front: ✅ Does Drake still apply under ART?
Back: Yes – ART still conducts merits review to reach the correct or preferable decision; principles unchanged.
20
Front: 📜 s 23 – What must the decision-maker provide within 28 days?
Back: Statement of reasons + all relevant documents in possession or control.
21
Front (Cloze): 📜 s 52 – ART is __ bound by rules of evidence.
Back: not
22
Front: 📜 s 70 – What safeguard exists against disclosure?
Back: Tribunal can make non-disclosure/confidentiality orders.
22
Front: 📜 s 74 – Tribunal’s summons power?
Back: Can summon witnesses to give evidence or produce documents.
22
Front (True/False): ✅ T/F – The Tribunal is free to admit anything it wants without regard to fairness.
Back: ❌ False – while not bound by evidence rules (s 52), ART must still act fairly and rationally.
23
Front (Quote Cloze): ⚖️ Greenham: “It would be ___ that the Tribunal should be limited to the material before the DM.”
Back: unthinkable
23
Front: ⚖️ Re Greenham (1979) – Principle?
Back: Tribunal is not restricted to the material before the DM; can consider new evidence.
23
Front: ⚖️ Shi v MRA (2008) – Principle?
Back: Tribunal must consider the best and most current information available when substituting a decision.
23
Front: ⚖️ Frugtniet v ASIC (2019) – Principle?
Back: Tribunal subject to the same statutory constraints as DM; cannot consider material DM was legally prohibited from considering.
24
Front (True/False): ✅ T/F – In Frugtniet, the Tribunal could rely on spent convictions.
Back: ❌ False – statute barred DM from considering them, so Tribunal also could not.
25
Front: 🔍 Evidence in judicial review vs merits review?
Back: Judicial review = confined to material before DM; Merits review = may consider fresh evidence (subject to statutory limits).
26
Front: 🔍 Why is fresh evidence important for Robodebt-type matters?
Back: Ensures Tribunal considers updated factual context and prevents unfair reliance on outdated or flawed material.
27
Front (Cloze): 📜 s 105 powers mnemonic “AVSR” = __, __, __, __.
Back: Affirm, Vary, Set aside & Substitute, Remit.
27
Front: Flowchart 📂 – Evidence handling in ART review
DM provides reasons + docs (s 23)
Tribunal may compel more (s 74)
Tribunal not bound by evidence rules (s 52)
Tribunal can consider fresh/current evidence (Greenham, Shi)
But subject to statutory limits (Frugtniet)
27
Front: 📜 ART Act s 105 – Tribunal’s remedial powers?
Back: Affirm, vary, set aside & substitute, or remit the decision.
28
Front: Flowchart ⚖️ – When to exclude evidence?
If statute explicitly prohibits (e.g. spent convictions – Frugtniet)
If admitting would breach fairness
If irrelevant to merits
29
Front (True/False): ✅ T/F – ART can issue advisory opinions on hypothetical questions.
Back: ❌ False – must decide actual applications within jurisdiction.
29
Front: 📜 s 113 – When must ART publish decisions?
Back: If decision involves a significant conclusion of law or has significant implications for Commonwealth policy.
29
Front: 📜 When should ART remit instead of substitute?
Back: Where further fact-finding/policy choice is required at DM level; or statute reserves discretion to DM.
29
Front: 📜 s 111 – What must ART give to parties in writing?
Back: Its decision + a statement of reasons.
30
Front (Cloze): 📜 s 70 – ART can make ___ orders to restrict disclosure.
Back: confidentiality / non-disclosure
31
Front: 🧭 Why is publication important post-Robodebt?
Back: Prevents agencies burying adverse rulings; ensures transparency and accountability.
32
Front: 🧭 What is the GAP?
Back: Guidance and Appeals Panel – conducts second merits review; can issue Guidance Decisions.
32
Front (True/False): ✅ T/F – GAP is limited to questions of law like the Fed Court.
Back: ❌ False – GAP is a second merits review, can consider new evidence, re-find facts.
32
Front: 🧭 When may the President refer matters to GAP?
Back: Where decision may contain material error or raises significant/systemic issues.
32
Front: 🧭 GAP “Guidance Decisions” (ss 109–110) – effect?
Back: Members must “have regard to” them; not binding like precedent.
33
Front: 📊 ARC – full name and purpose?
Back: Administrative Review Council – oversight and advisory body for Commonwealth admin law system.
34
Front: 📊 ARC’s functions under s 249?
Back: Monitor integrity of system; inquire into systemic issues; publish guidance; support education/training of officials.
34
Front: 📊 ARC membership?
Back: President of ART, Ombudsman, Info Commissioner, up to 10 others.
34
Front: 🚨 s 172 – What appeal rights exist?
Back: Appeal to Federal Court on questions of law only.
35
Front (Cloze): 🚨 What is a “question of law”?
Back: Error in interpreting statute, ignoring mandatory consideration, denial of procedural fairness, “no evidence” finding.
36
Front (True/False): ✅ T/F – An appeal to Fed Court lets parties re-argue the merits.
Back: ❌ False – limited to law questions only.
36
Front: 🚨 High Court role?
Back: Appeals from Fed Court require special leave (FCA Act s 33).
36
Front: 🚨 s 179 – When does Federal Circuit Court hear ART appeals?
Back: For some areas e.g. migration and child support.
36
Front: Flowchart 🚨 – Appeal pathway from ART
Internal: GAP (s 122, 128) → second merits review
External: Federal Court (s 172 – law only)
Some: Federal Circuit Court (s 179)
Then: High Court (special leave, FCA s 33)
37
Front: 🔦 What reform prevents “burying” of adverse decisions like in Robodebt?
Back: Mandatory publication of significant decisions (s 113(2)).
38
Front (Cloze): 🔦 Recommendation 20.4 →
Publish Tier 1 decisions with significant law/policy.
38
Front (True/False): ✅ T/F – Under ART Act, all decisions must be published.
Back: ❌ False – only significant ones are mandatory; others may be published at Tribunal’s discretion.
38
Front: 🧭 Why was GAP created post-Robodebt?
Back: To catch systemic errors and provide a second merits review where needed.
38
Front: 🧭 How does GAP differ from Federal Court appeals?
Back: GAP = second merits review (facts + law); FCA = law only.
39
Front: 🧭 Why is “appeals” in GAP’s name a misnomer?
Back: Because GAP does not confine itself to legal errors – it re-examines merits.
39
Front: 🧭 Tutorial Q – Which reform do you consider most significant to prevent another Robodebt?
Back: Likely mandatory publication → ensures unlawful practices cannot be hidden. (But GAP + ARC also crucial.)
39
Front (Cloze): 📊 ARC membership = President of ART, ___, ___, and up to 10 others.
Back: Ombudsman; Info Commissioner
39
Front: 📊 Why was the ARC reinstated?
Back: Defunded in 2015–16; Recommendation 20.5 said it must be re-established for oversight.
40
Front: 📊 ARC functions (s 249)?
Back: Monitor system integrity; inquire into systemic issues; publish guidance; train/educate officials.
41
Front: 🛠️ What did Kyrou identify as a problem with AAT structure?
Back: Historical silos → inflexibility, delay, prevented national unity.
41
Front: 🛠️ Why separate PD for GAP?
Back: GAP is unique (internal second review) so requires its own framework.
41
Front: 🛠️ ART Act solution?
Back: President may establish lists (s 196(2)) + issue practice directions (s 36) for uniformity.
41
Front: 📣 Which ART power forces agencies to engage?
Back: s 63 – ART may require agencies to attend and assist.
42
Front (Cloze): 📣 Post-Robodebt, leadership must report ___ issues to ensure early intervention.
Back: systemic
43
Front: 🎭 Tutorial Q – What ART reforms respond to Robodebt?
Back: Publication (s 113); GAP; ARC reinstatement; s 63 compel; systemic issue reporting.
44
Front: ⚖️ Director-General of Social Services v Chaney (1980) – Issue?
Back: Meaning of “decision” under s 44 AAT Act.
44
Front (Cloze): ⚖️ Deane J in Chaney: Appeal lies only from the Tribunal’s ___ decision disposing of review.
Back: final effective
44
Front: ⚖️ Chaney – Significance?
Back: Clarified appeal scope to Federal Court; prevents “interim” steps being appealable.
45
Front (True/False): ✅ T/F – Owens allowed the FCA to reconsider facts.
Back: ❌ False – FCA limited to questions of law.
45
Front: ⚖️ Repatriation Commission v Owens (1996) – Why important?
Back: Confirmed division of functions: merits = Tribunal; law = courts.
46
Front: ⚖️ Burns v Corbett (2017) – Key holding?
Back: NCAT cannot exercise federal jurisdiction (s 75(iv) diversity).
46
Front: ⚖️ What principle did Neal (1980) establish?
Back: Appeals to Fed Court = confined to law; FCA not concerned with whether it would have reached same conclusion.
46
Front (Cloze): ⚖️ Neal – “Court is not concerned with ___ but with whether Tribunal made an ___ of law.”
Back: merits; error
46
Front: ⚖️ After Burns, what legislative fix applied in NSW?
Back: Pt 3A NCAT Act → if NCAT lacks jurisdiction (diversity cases), matter transferred to authorised court.
47
Front (True/False): ✅ T/F – NCAT can decide disputes between residents of different States.
Back: ❌ False – violates Ch III / Judiciary Act allocation.
47
Front: ⚖️ Bell J’s definition of a tribunal (Re Kracke (2009))?
Back: “Independent statutory body with limited jurisdiction, empowered to make judicial/administrative decisions applying law or policy.”
47
Front (Cloze): ⚖️ Re Kracke → Generally speaking, a tribunal is a ___ body with ___ jurisdiction.
Back: statutory; limited
48
Front: ⚖️ Collector of Customs v Brian Lawlor Automotive (1979) – Principle?
Back: Even purported decisions (by unauthorised officer) are reviewable if power exists.
48
Front (True/False): ✅ T/F – If a decision is unauthorised, it is not reviewable by ART.
Back: ❌ False – still reviewable (Brian Lawlor).
48
Front: ⚖️ Curtis (1989) description of tribunals?
Back: “Tribunals occupy the no-man’s land between law and administration.”
49
Front: 🧭 Which case defines tribunals broadly as hybrid bodies?
Back: Re Kracke (2009).
50
Front: 🧭 Which case confirms appeals limited to law, not merits?
Back: Neal (1980); Owens (1996).
50
Front: 🧭 Which case is authority that ART can review “purported decisions”?
Back: Brian Lawlor Automotive (1979).
51
Front: 🧭 Which case highlights constitutional limits on State CATs?
Back: Burns v Corbett (2017).
52
Front (Cloze): 🎭 Most significant reform preventing future Robodebt?
Back: Mandatory publication of Tier 1 significant decisions → ensures unlawful practices cannot be buried.
52
Front: 🎭 Tutorial Q – What ART reforms identified by Kyrou respond to Robodebt?
Mandatory publication of significant decisions (s 113(2))
GAP (second merits review, ss 122, 128)
Re-establish ARC (s 249)
s 63 power to compel agencies
Systemic reporting duties (ss 193, 197, 236)
52
Front: 🎭 Drake – Facts and procedural history?
Back: US citizen convicted of cannabis cultivation → deportation ordered under Minister’s policy → AAT affirmed applying policy → Fed Court said AAT erred treating policy as binding → remitted → Brennan J reheard in Drake No 2.
53
Front: 🎭 Drake – What is meant by “correct or preferable”?
Back: Correct = lawful/factual; Preferable = best discretionary decision in circumstances.
54
Front (True/False): 🎭 T/F – Brennan J said consistency in policy application always trumps justice in the individual case.
Back: ❌ False – “Consistency is not preferable to justice.”
54
Front: 🎭 Drake – Brennan J’s view on policy?
Back: Tribunal should ordinarily apply lawful policy unless unlawful, unjust, or cogent reasons to depart.
54
Front: 🎭 Does Drake still apply under ART?
Back: ✅ Yes – ART still makes the correct or preferable decision; must consider policy but not slavishly follow it.
54
Front: 🎭 Shi – Facts?
Back: Shi’s migration agent registration cancelled (2003) → AAT substituted with caution (2005), considering his post-decision conduct.
55
Front: 🎭 Shi – Outcome and reasoning?
Back: HCA held AAT entitled to consider best and most current information when substituting.
56
Front: 🎭 Can ART review Minister’s refusal of licence?
Back: ✅ Yes – s 50 confers jurisdiction; Abby has standing (s 17); must apply within time (ss 18–20).
56
Front (Cloze): 🎭 Does Shi mean ART should always consider facts as they exist at time of decision?
Back: Yes – unless statute restricts (e.g. Frugtniet shows legal limits).
56
Front: 🎭 What outcomes can ART make in Network Xtra?
Back: Affirm refusal; Vary conditions; Set aside & Substitute grant; Remit with directions (s 105).
56
Front: 🎭 How should ART approach Minister’s “track record” policy?
Back: ART considers policy but decides independently → correct or preferable decision (Drake No 2).
57
Front: 🎭 Abby produces new evidence of visual media experience – can ART consider it?
Back: ✅ Yes – ART can consider fresh evidence (s 52; Greenham, Shi).
58
Front: 🎭 Abby unhappy with ART decision – options?
GAP (if systemic error/significant issue)
Federal Court appeal on law only (s 172)
59
Front (Cloze): 🎭 Objects of the TV Broadcasting Act s 2?
Back: Regulate licensing + support quality and diversity in Australian broadcasting.
60
Front: 🎭 If Minister’s policy adds a “track record” requirement not in Act, legal issue?
Back: Could be fettering discretion or inconsistency with statutory purpose (s 25(b): “matters Minister thinks fit”).
61
Front (Cloze): 🛠️ If ART finds applicant’s interests not affected → right of appeal under s ___.
Back: s 173
62
Front: Flowchart 🔄 – How does ART conduct merits review?
1. ⚖️ De novo → stand in DM’s shoes (Makasa, s 54)
2. 📂 Evidence → s 23 docs; s 52 (not bound by evidence rules); s 74 summons; fresh evidence OK (Greenham, Shi); subject to limits (Frugtniet)
3. 📜 Policy → consider but not bound (Drake No 1 & 2)
4. ✅ Outcome → correct or preferable decision (Drake)
5. 📝 Reasons → must give decision + statement (s 111)
62
Front: Flowchart 🧭 – Approach to policy (Drake No 2)
1. Is policy lawful? (consistent with statute, no fetter, relevant factors?)
2. If lawful → ordinarily apply policy for consistency
3. BUT → depart if unjust result or cogent reasons
4. Reminder: “Consistency is not preferable to justice” (Brennan J)
63
Front: Flowchart 🚨 – Appeals from ART
- Internal: GAP (s 122, 128) → second merits review
- External: FCA (s 172) – law only
- Some: FCC (s 179 – migration/child support)
- Final: HCA (special leave, FCA s 33)
law
flashcards
Decks in class (15)
# Cards
-
CONTRACTS191
-
TORTS24
-
PROCEDURE22
-
EVIDENCE107
-
EVIDENCE (NEW)198
-
CIVIL PROCEDURE191
-
ADMIN ON CALL126
-
ADMIN JUDICIAL REVIEW349
-
IPCL END OF SEM EXAM342
-
IPCL (THINGS I KEEP GETTING WRONG)26
-
ADMIN EXAM FINAL FLASHCARDS66
-
IPL INTRO FLASHCARDS40
-
INTERNATIONAL LAW66
-
PIL STUDY GUIDE CARDS121
-
PIL EXAM FLASHCARDS342
