Understanding the Difference Between the Courts and the Administrative Review Tribunal (ART)

When you challenge a decision made by a government department like the Department of Home Affairs, many people assume they must go to court. However, in Australia, there are two primary ways to review government decisions: the Administrative Review Tribunal (ART) and the Courts. While both can review decisions made by government agencies, they serve very different purposes and have different approaches.

Let’s break down how these two bodies work and how they differ so that you can make informed decisions about the best path to take when challenging a decision.

What is the Administrative Review Tribunal (ART)?

The ART (formerly known as the Administrative Appeals Tribunal or AAT) is responsible for merits review of decisions made by government departments, including the Department of Home Affairs. Merits review means the ART looks at the decision afresh—it does not focus on whether the decision-maker followed the law but instead focuses on the facts of the case, the law, and any new evidence. The ART’s goal is to determine the right outcome based on all available information.

If you're unhappy with the ART’s decision, you can appeal to the courts for a judicial review, which looks at the legal aspects of the decision.

How Do the Courts Review Decisions?

Unlike the ART’s approach, the courts conduct judicial review, which is concerned only with the legality of the decision-making process. Courts do not reassess whether the decision itself was right or wrong; they focus on whether the decision was made according to the law.

If the court finds that the decision was not made legally—for example, if the law was misapplied or the process was flawed—it may send the case back to the ART for reconsideration. However, the court does not change the decision directly; it simply ensures that the right legal principles are followed.

If the court finds that the decision-making process was legal, it will dismiss the application, meaning the original decision stands.

Key Differences Between ART and the Courts

Why Are Both the ART and Courts Important?

Both the ART and the courts play vital roles in ensuring that government decisions are fair and follow the law. The ART offers a flexible, accessible review process where decisions can be re-evaluated with fresh evidence. On the other hand, the courts act as a safeguard, making sure that all decisions are legally sound and that no one, not even government bodies, is above the law.

When Should You Seek ART Review or Court Action?

• Choose the ART: If you believe the original decision by the Department of Home Affairs was incorrect, and you have new evidence or facts that could change the outcome, the ART is the right place to review the decision.
• Choose the Courts: If you believe the decision-making process itself was flawed, such as the Department of Home Affairs or the ART misapplying the law, then you can seek a judicial review in the courts.