This article considers the provisions of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and the Administrative Review Tribunal (Guidance and Appeals Panel) Practice Direction 2024 (Practice Direction), as well as the recent decisions of the Guidance and Appeals Panel, which provide guidance on when a decision of the Administrative Review Tribunal (Tribunal) will be stayed, and the discretionary factors relevant to the determination of a stay application.

The GAP’s power to make a stay order is found in section 127(2) of the ART Act. Section 127(1) provides the “general rule”, which is that the making of an application to the GAP for a reviewable decision does not affect the operation of the earlier Tribunal decision or prevent the taking of action to implement the decision.

However, that general rule is subject to an exception, which is found in section 127(2). This provides that a party to a proceeding for review of a reviewable decision in the GAP may apply for an order “staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review”. Such an order operates subject to any conditions specified in the order (s127(3)).

Procedural Requirements Under the Practice Direction

Part 4 of the Practice Direction sets out detailed requirements for stay applications. Paragraph 4.8 emphasises that the making of a referral application to the GAP does not itself suspend the operation of the Tribunal decision. A party must apply for the stay order, which the Tribunal may grant if it considers it desirable to do so for the purpose of ensuring the effectiveness of the referral application.

Paragraph 4.9 prescribes that a request for a stay order must be made at the same time as the referral application and be included in the GAP Referral Application form. The request must explain why a stay is necessary to ensure that the effectiveness of the referral application is not ‘adversely affected’. In addition to, identifying “any prejudice that the GAP applicant will suffer if a stay order is not granted”.

Where another party wishes to oppose the request, per paragraph 4.10 they must set out why the stay is not necessary or desirable, address the prejudice they would suffer if the stay was granted, and respond to the applicant’s contentions.

Principles for Granting a Stay

The GAP has emphasised that “a stay with not be granted as a matter of course”. In GAP-AAA and GAP-AAB; Child Support Registrar (Guidance and Appeals Panel) [2024] ARTA 1, the President identified the key principles for consideration. A precondition to the exercise of the discretion is that the effectiveness of the referral application would be ‘adversely affected’ without a stay. This will be the case where the party seeking the stay would otherwise suffer irreversible prejudice, such as where a successful referral outcome would be rendered nugatory.

The GAP must then balance the prejudice to the party seeking the stay if it is not granted, against the prejudice to the opposing party if it is granted. This exercise will turn on what the interests of justice require in the particular circumstances. 

These principles are contained in paragraphs [13]-[15] of the decision:

‘A stay order will not be granted as a matter of course. Section 127(2) of the ART Act makes it clear that the power to make such an order is discretionary. A precondition to the exercise of the discretion to grant a stay order is the existence of material before the Tribunal indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay. The effectiveness of the referral application will be adversely affected if the party seeking the stay would suffer irreversible prejudice if the stay sought were not granted, such as where a successful outcome before the GAP would be rendered nugatory. The existence of such prejudice would militate in favour of granting a stay.

The fact that the party seeking a stay is able to point to material indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay does not necessarily mean that the Tribunal is required to exercise the discretion in favour of granting a stay order. That is because any prejudice to the party seeking a stay if the stay sought is not granted must be balanced against any prejudice to the party opposing the stay if the stay sought is granted. Thus, if the party opposing a stay would suffer irreversible prejudice if the stay sought is granted, that would militate against the granting of the stay.

It follows that consideration of an application for a stay will involve an examination of any prejudice to the party seeking a stay if the stay sought is not granted and any prejudice to the party opposing a stay if the stay sought is granted. 

Ultimately, a decision about whether to grant a stay will depend on a balancing of all the considerations militating in favour of a stay with those militating against granting it, and reaching a decision based on what the interests of justice require in the particular circumstances of the case.’

Recent Decisions of the Tribunal

Two recent decisions of Senior Member French in the GAP illustrate the application of these principles in the context of the National Disability Insurance Scheme (NDIS).

In Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242, the GAP granted a stay of a decision requiring funding for a home security system for a vision-impaired participant. The CEO emphasised if she was ultimately successful in establishing her position, the implementation of the decision would result in irrecoverable public expenditure. The participant opposed the stay, highlighting her need for the supports to ensure her safety and autonomy. The GAP granted the stay, giving weight to substantial costs of these supports and the inability of the Applicant to repay the costs of the supports if they were to be installed, irrespective of the value of the NDIS governmental program.

Similarly, in Roberts and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] 2025-002-247, the GAP granted a stay of decision requiring funding for a Thera Trainer Tigo which is a motor-assisted cycling training device. The CEO submitted that in the absence of a stay order, she would be required to fund the device immediately, and that this expenditure could not later be recovered if her contention that the device was not a valid NDIS support was successfully proven. The participant argued that delay would cause deterioration in her health and mobility.  The GAP recognised the potential impact of delayed funding, however, addressed this by expediting the second review, and again found that the potential irrecoverable expenditure of public funds weighed in favour of granting a stay.

Both decisions demonstrate that the GAP carefully weighs the competing prejudices. While individual hardship to the participants was recognised and mitigated, including by expediting substantive hearings, the material risk of prejudicial outcomes for the CEO were central to the GAP’s decision. Particularly, given the expenditure of public funds.

Key Takeaways

The GAP’s approach confirms that parties seeking a stay must do more than show inconvenience, and rather they must demonstrate that the absence of stay would compromise the effectiveness of the referral. The GAP then balances this against the prejudice to the opposing party, with particular weight given to irreversible prejudice to either party. Overall, the emerging body of case law underscores that stay orders are a discretionary remedy, guided by the interests of fairness and justice in the circumstances of each case.

Further information / assistance regarding the issues raised in this article is available from the author, Madelaine August, Partner and Sharon Taylor, Associate or your usual contact at Moray & Agnew. This article was written with the assistance of Eva Wadhwa, Paralegal.