FOI in the Administrative Review Tribunal – the 'ART' of resolving proceedings
20 October 2025
When agencies become involved in freedom of information (FOI) review proceedings before the Administrative Review Tribunal (ART), this may present an opportunity for the agency to reconsider its position in respect of documents that were previously found to be exempt under the Freedom of Information Act 1982 (Cth) (FOI Act) and determine whether any further information can be released. This opportunity should be given due consideration particularly where some time may have passed since the original decision was made, or since the commencement of Information Commissioner (IC) review proceedings.
Agencies may also identify additional documents within scope of an applicant’s request during the course of ART proceedings. If this occurs, it will generally be preferable for the agency to make a revised decision, so that any additional documents are also considered in its decision.
If an agency wishes to alter its decision on an FOI request during the course of ART proceedings, s 31 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that this can only occur if:
- both the parties and the Tribunal consent to the revised decision (by way of agreement under s 103 of the ART Act), or
- the decision is remitted to the decision maker (under s 85 of the ART Act).
Remittal of decisions
Agencies can apply to the ART for orders to remit a decision back to the decision maker under s 85 of the ART Act. Ideally this would occur with the other party’s consent.
Even though the reviewable decision before the ART is a decision of the IC, s 61A(m) of the FOI Act operates so that the decision is remitted back to the agency for reconsideration, rather than the IC.
Remitting a decision enables agencies to:
- affirm the decision
- vary the decision, or
- set aside the decision and substitute with a new decision.
Remittal of a decision will be necessary if an agency identifies additional documents within scope of a request during the course of ART proceedings. Remitting the decision will enable agencies to make a revised decision on all documents, including any new documents.
Once a remitted decision is made, the applicant may be satisfied with the outcome and withdraw their application.
If the other party wishes to proceed with ART review once a remitted decision is made, the reviewable decision before the ART will become the remitted decision, such that any additional documents considered as part of a remitted decision would also become the subject of the ART review.
Agreement under s 103
Agencies may also wish to consider whether there are any opportunities to resolve issues in dispute by agreement with the applicant under s 103 of the ART Act. This may not always be possible.
Section 103 permits parties to agree on the terms of a decision, or part of a decision, at any stage of the proceedings. The parties must agree to and sign written terms of agreement, which reflect the parties’ agreement on the decision. The terms of agreement should then be provided to the ART for consideration. If approved, the ART will make a decision giving effect to the terms of agreement.
Before preparing any draft terms of agreement, it is best practice to approach the applicant to gauge whether they would be open to resolving the matter by agreement and to determine which issues they are or are not willing to concede on.
If the s 103 agreement deals with the reviewable decision in its entirety, then the ART proceedings will be dismissed. However, if the s 103 agreement settles one aspect of the reviewable decision, the proceedings will continue without consideration of that particular issue.
At Sparke Helmore, we assist a range of Commonwealth agencies with managing and advising on FOI review proceedings. Please reach out to Molly or Chantal if you require advice or assistance for any FOI review matters.
