1. The following background is taken from the Respondent's written submissions dated 21 May 2025, with some modification, and the oral submissions made on 22 May 2025:

(a) The Applicant is a 41-year-old male residing in Western Australia with his wife and three children, two of whom are also participants in the NDIS and are review applicants. > > (b) On 8 January 2021, the Applicant was granted access to the NDIS because of impairments arising from autism spectrum disorder (Level 1). He has other diagnoses, including major depressive disorder and post-traumatic stress disorder. > > (c) On 24 October 2024, the Applicant requested re-assessment of his SOPS by the Respondent under s 48 of the NDIS Act, which included reliance upon a Functional Capacity Assessment dated 30 August 2024.[2] > > (d) On 6 February 2025, the Respondent made a decision that the SOPS needed to be re-assessed.[3] This included an indication that '[w]e will work with you to reassess your current plan [and] will contact you within 14 days to talk about your plan reassessment'. > > (e) There is a dispute between the parties about the extent to which the Respondent engaged with the Applicant and those treating him with regards to the plan re-assessment.[4] > > (f) On 13 February 2025, the Respondent approved a new SOPS for the Applicant, with one year's duration.[5] This included slightly over $20,000 in Core Supports, broken down to include approximately $15,000 in funding for assistance with personal domestic activities (about 5 hours per week). > > (g) The Applicant subsequently sought internal review of that new plan decision under s 100 of the NDIS Act, including seeking that this plan be considered against the needs of two of his children, who are also participants, and by the same decision-maker. > > (h) On 15 April 2025, the Respondent confirmed a decision to approve a new plan for one of the children (BZJVQ). > > (i) On 29 April 2025, a separate delegate of the Respondent confirmed decisions made to approve the new plans for the Applicant and the other child (FZVQJ). > > (j) On 7 May 2025, all three Applicants sought review by this Tribunal of the decisions made by the two internal reviewers. > > (k) On 13 May 2025, the Applicant lodged a request for a stay order pursuant to s 32(2) of the ART Act. This was made on the basis of 'acute risk of caregiver suicide' by the Applicant's wife (and mother to the other applicants). The Tribunal was provided with a GP referral to the Joondalup Health Campus in late February 2025, for > > in-patient mental health treatment for the wife.[6] The Tribunal was told this occurred in March 2025. The wife has also been diagnosed with fibromyalgia after a motor vehicle accident in 2024, and that she would eventually be applying for access to the NDIS. > > (l) On 15 May 2025, the matter was referred to me on an urgent basis and listed for an interlocutory hearing on 22 May 2025.

2. The Applicant is represented on a pro bono basis by Ms Hamers of Hamers Edge Pty Ltd. Ms Hamers is an accredited social worker and had previously provided them with therapeutic support but transferred their care to another provider to provide them with pro bono advocacy instead. The Tribunal is grateful for Ms Hamers' involvement in the review. The Respondent is represented by Ms Jones-Bolla of Sparke Helmore Lawyers. Ms Jones-Bolla provided detailed written submissions regarding the Respondent's opposition to the application, and she spoke to those submissions at the hearing on 22 May 2025.

1. The Applicant made submissions to the effect that the stay order sought was appropriate for the purpose of securing the effectiveness of the hearing and the determination of the application for review. It was put that the Tribunal had the authority in s 32(2) of the ART Act to make an order in effect amending the Reviewable Decision to include more Core Support funding pending the outcome of the review.
2. The Respondent submitted that, as a 'preliminary matter', the Applicant was not seeking a stay of the Reviewable Decision, and that staying the internal review decision would 'in effect stop the implementation of a decision which confirmed the Applicant's access to supports currently in his [SOPS]'.[7]
3. The Respondent acknowledged the difficulties faced by the Applicant in this proceeding and notes that he is able to access state-based health and social services, and that he could seek legal assistance from Legal Aid WA.[8]
4. The primary point made by the Respondent was that granting the order sought by the Applicant 'is wholly beyond the scope of the power in s 32(2) of the ART Act'.[9]
5. The Respondent otherwise addressed the traditional factors considered by the Tribunal in the oft-cited decision of Justice Downes in Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114.[10] Particular emphasis was placed on the proposition that the Tribunal's power to make a stay order for the purpose of securing the effectiveness of the hearing and the determination of the application for review is not conferred merely for the purpose of alleviating hardship on the part of a party to the application pending the hearing of that application, citing, amongst other decisions, the decision of SM Hotop in Re Bailey and Comcare Australia [1995] AATA 148 at [15].

1. The Tribunal is an independent mechanism of review and has the objectives set out in s 9 of the ART Act. It reviews the merits of decisions made under other enactments.
2. The Tribunal's powers are relevantly subject to contrary provisions in those other enactments.[11]
3. This interlocutory application is not the occasion for a full consideration of the substantive merits of the underlying Reviewable Decision.
4. Relevantly, I gratefully adopt the recent summary of principles concerning review of NDIS Supports prepared by SM Clues in Re YCTK and Chief Executive Officer, National Disability Insurance Agency [2025] ARTA 536 at [6]-[8].
5. To that summary, I would add s 37 of the NDIS Act, which relevantly provides:

1. A participant's plan comes into effect when the CEO has:

(a) received the participant's statement of goals and aspirations from the participant; and > > (b) approved the statement of participant supports. > > Note: Division 4 deals with varying and replacing plans > > ...

6. A participant's plan ceases to be in effect at the earliest of the following times:

(a) when the plan is replaced by another plan (see subsection (4));

(b) if the plan is a new framework plan - immediately after the end of the maximum period of effect specified in the plan under paragraph (32D(2)(d);

(c) in any case - when the participant ceases to be a participant.

Note: A new framework plan may be varied to change the period mentioned in paragraph (b) (see paragraph 47A(1AA)(d)).

1. For the purposes of paragraph (3)(a), if a plan (the replacement plan) comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.
2. Section 32 of the ART Act provides that:

1. The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

Exception - Tribunal may stay operation or implementation

3. However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make 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.
4. The order is subject to any conditions specified in the order.
5. The order has effect until the decision of the Tribunal on the application for review comes into operation.
6. Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the application for review comes into operation;

the order has effect until the end of the period.

1. On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.

Preconditions to making, varying or revoking an order

2. The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:

(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

1. However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.
2. If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.
3. This section is very similar to the terms of s 41 of the Administrative Appeals Tribunal Act 1975 (AAT Act), and the Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) makes clear that power contained in s 32 of the ART Act was intended to be analogous to the former provision.[12]

1. The analysis of the Tribunal's discretion to make an order staying the operation of a decision that is the subject of an application for review must begin with the terms of the ART Act. The discretion to make a stay order is conditioned by the Tribunal forming the opinion that it is desirable to order a stay having regard to the matters specified at sub-sections (a) and (b) of s 32(7). The language used in the sub-section makes it clear that the discretion conferred by s 32(2) of the ART Act is a wide statutory discretion to be exercised judicially.
2. The matters specified in subsections (a) and (b) of s 32(7) do not constitute an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a reviewable decision. Relevant considerations include those identified by Justice Downes in Re Scott and ASIC (cited above) being:

(a) the prospects of success; > > (b) the consequences for the Applicant of the refusal of a stay; > > (c) the public interest; > > (d) the consequences for the Respondent in carrying out its functions depending upon whether a stay is granted or not; > > (e) whether the application for review would be rendered nugatory if a stay were not granted; and > > (f) other matters that might be relevant to the application.

3. There is no onus on either party to a stay application before the Tribunal.[13] Rather, the Tribunal must review the evidence before it and decide whether the stay sought is appropriate.[14] That is not to say that a stay order will be granted as a matter of course.[15]
4. The Tribunal accepts that a conditional stay order could appropriately be issued in a given matter to secure the effectiveness of the review, including to allow adequate preparation for the hearing by both parties or by allowing funds to be available for the acquisition of expert medical evidence necessary to the applicant's case before the Tribunal.[16]
5. Further, the Respondent's preliminary submission that any stay order would affect the Applicants' access to NDIS Supports, is misplaced. In Dart, Justice Davies dealt with an argument that the Tribunal in that case was limited to reviewing a decision made by the Social Security Appeals Tribunal rather than, as a matter of substance, the underlying operative decision made under the Social Security Act which affected the applicant's rights to a benefit. That reasoning applies equally to reviews made under s 103 of the NDIS Act. The Tribunal could, theoretically, make an order under s 32(2) of the ART Act suspending the Reviewable Decision made under s 100 of the NDIS Act and restoring any prior decision which was the subject of the internal review under s 99 of that Act.
6. The difficulty in this case is that what the Applicant is trying to achieve in this interlocutory application is more than restoration of the status quo.
7. The scope of the term 'staying or otherwise affecting the operation or implementation of the decision' was considered by the Full Court of the Federal Court in ASIC v AAT. In ASIC v AAT, Justice Moore observed:

1. Generally the repository of a power conferred by Commonwealth statute cannot, in the absence of an express or implied statutory authority to do so, exercise the power so as to modify or limit the operation of another Commonwealth statute: Federated Seamen' s Union of Australasia v Commonwealth Steamship Owners' Association [1922] HCA 7; (1922) 30 CLR 144 and R v Gallagher; ex parte Commonwealth Steamship Owners Association [1968] HCA 87; (1968) 121 CLR 330. In the present case the orders made by the AAT under the AAT Act prevented ASIC from doing what the Corporations Act directed that it do (publish a notice and enter the details on the register). Does s 41(2) authorise this? 2. In my opinion, the answer is yes. The AAT Act concerns the review of decisions made under, amongst other things, legislation of the Commonwealth Parliament: see the definition of "enactment" in ss 3 and 25 of the AAT Act. The operation of a decision (as that expression is used in s 41 of the AAT Act) appears to me to concern the legal consequences of the decision flowing from the operation of the enactment which authorised it or from some other enactment. The authorising enactment (or perhaps some other enactment) may identify consequential or ancillary acts or events which have to be taken or arise after the decision is made. As a matter of ordinary English in the context in which s 41 occurs, the expression "the operation ...... of the decision" seems to me to comprehend those consequential ancillary acts or events. The expression evokes notions of what the decision itself achieves directly. On this construction of the expression, the AAT is clearly authorised to prevent those acts being undertaken or events occurring or modifying how they are undertaken or the way in which they occur. The context, in its broadest sense (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408) is a legislative scheme which permits the AAT to review decisions on their merits made under enactments and make a decision in substitution of that of the primary decision maker, operative (unless the AAT otherwise orders) from the time of the original decision: s 43(6), which may involve setting aside the original decision (see s 43(1)(c)). If the decision of the primary decision maker enlivens statutory provisions creating consequences of the type I have been discussing, it would be an entirely natural and obvious part of the statutory scheme for the AAT to have power to modify or prevent those consequences in circumstances where the decision of the primary decision maker might later be set aside. 3. In the present case, a consequence of making a banning order is enlivening the duty to publish the notice and the duty to make the entry in the register. For the reasons I have just given, the AAT had power to make an order preventing the operation of the decision by preventing, for the time being, the performance of these duties. 4. It is, in relation to the notice and the register, unnecessary to consider whether the power to make the order also flowed from the expression "[the] implementation of the decision" in s 41(2). However, for completeness, I should indicate that I doubt this is so. The meaning of the word "implementation" is not simply to be derived, as Emmett J suggested in Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572 at [11], from the ordinary meaning of the word revealed by dictionaries. That is because, in my opinion, the word is intended to pick up the corresponding expression in the preceding subsection which provides: 1. Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

While the defined meanings referred to by his Honour are probably, in substance, no different from the expression "the taking of action to implement the decision", it is nonetheless that expression which identifies the subject matter of the power conferred by subsection (2). In the present case, as I noted earlier, it is unnecessary for a decision maker who makes a banning order to do anything to implement the decision. No action needs to be taken. It is the Corporations Act which establishes legal consequences of the decision and, in that way, implements it. The decision is, in this sense, self executing.

8. If the view I take is correct about the meaning of the "operation" and the "implementation" of the decision then it does not seem to me that the AAT has power to make the order concerning the media release. While the powers of the AAT to preserve the status quo ante should obviously not be read narrowly, I do not see how an act of a general administrative character (issuing a media release) concerns either the operation or implementation of the decision to make the banning order. Ultimately, the role of the AAT is a limited statutory one and is to review administrative decisions on their merits. It is not a court and the language used to confer the power in s 41(2) is not, in my opinion, language sufficiently flexible to enable any order to be made about the media release.

1. To similar effect, Justices Downes and Jagot said:

1. As to the principles of statutory construction, a legislature is generally presumed not to intend to contradict itself. It follows that each statute emanating from a single legislature, if possible, is construed to have full force and effect according to its terms. It may be accepted that the Corporations Act, a statute later in time than the AAT Act, casts on ASIC a specific set of obligations with respect to banning orders. It may also be accepted that s 41(2) of the AAT Act is a general provision applying to all applications for review before the AAT. The statutory provisions, however, are not inconsistent. They are capable of operating together. The making of the banning order triggers the recipient's right to seek review by the AAT and, consequently, the exercise by the AAT of its own statutory powers including its powers in s 41(2) of the AAT Act. If by that time ASIC has not published notice of the banning order, the recipient may request (as part of an application under s 41(2)) a stay not only of the banning order itself but also of the publication of the notice of its making and the required entry in the register.

2. ASIC's third proposition is that the operation and implementation of a decision to make a banning order under s 920A(1) of the Corporations Act does not extend to ASIC's duties to publish notice of the banning order and maintain the register under ss 920E(2) and 922A(1) of that Act. Accordingly, the AAT cannot make an order affecting those duties under s 41(2) of the AAT Act because the AAT's powers are limited to the making of a stay or other order affecting the operation or implementation of the decision.
3. These arguments are not persuasive. It is one thing to accept that a banning order takes effect and thus has operative force by reason of the provisions of the statute (ss 920A(1) and 920E(1)) and that the publication of the notice of the making of the banning order and updating of the register do not, in terms, complete some aspect of the banning order. It is another to accept that the concepts of the operation or implementation of the making of the banning order do not extend to the banning order's publication both by notice and by entry in the register.
4. The ordinary meaning of the terms operation or implementation explored by Emmett J in Duncan, and which ASIC accepted, do not support the narrow interpretation underpinning ASIC's argument. Allied Asia Holdings, the case on which ASIC relied, is an extempore judgment about whether an interlocutory injunction should be granted. Heerey J, in [16] of the reasons for judgment, made a passing reference only to a distinction between a stay affecting the operation or implementation of the decision and the fact that the decision has been made. Moreover, the decision in question in Allied Asia Holdings was not the making of a banning order. The decision was a refusal to renew a person's registration. The capacity for an order in the nature of a stay to affect such a decision is not straightforward (see, for example, Yolbir v Administrative Appeals Tribunal [1994] FCA 910; (1994) 48 FCR 246 at 249F and Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326; [2003] FCA 1304 at [26]- [30]). Allied Asia Holdings cannot support the weight which ASIC placed on it; in any event, it is distinguishable.
5. Accordingly, we consider that the act of publication is part and parcel of both the operation and the implementation of the banning order. The work a banning order does is made effective, at least in part, by its publication. The steps required to complete the statutory process involved in the making of a banning order include its publication. This is sufficient to enliven the AAT's powers under s 41(2) of the AAT Act. Earlier versions of s 41(2) to which we were taken, and related extrinsic material, do not indicate to the contrary.
6. For these reasons we do not accept that the AAT has no power to make an order under s 41(2) of the AAT Act staying or otherwise affecting ASIC's actions under ss 920E(2) and 922A(1) of the Corporations Act. We consider that the matters exposed by ASIC's arguments do not indicate a lack of power to make such orders. Rather, they indicate the careful consideration which must be given by the AAT in any exercise of power under s 41(2) of the AAT Act to the balance of competing rights and interests struck by Parliament as embodied in the terms of the Corporations Act, particularly the balance between the rights and interests of the recipient of the banning order and of the public including existing and potential future clients of the recipient of the banning order. As we have said the scheme which the provisions of the Corporations Act embody - with the potential making of a banning order to remain private unless and until ASIC decides to make such an order after having given the recipient an opportunity to be heard - is not mere statutory background or a neutral factor in the process of the formation of the required opinion about what is desirable under s 41(2) of the AAT Act. The scheme which Parliament has established in the Corporations Act, and the public interest in the right of the market to know relevant information as soon as practicable, must be treated as a fundamental element in the decision-making process required under s 41(2) of the AAT Act.
7. It follows from that analysis that the Tribunal's powers under s 32(2) of the ART Act to make an order 'otherwise affecting the operation or implementation' of the Reviewable Decision extend to the legal consequences of the Reviewable Decision and to action taken to implement it. Those limits are not straightforward and depend upon statutory context. However, the Tribunal cannot, under that provision, change the substance of the Reviewable Decision pending the outcome of the review. The merits of that decision are dealt with when the Tribunal makes its decision on the review.
8. Accordingly, the Tribunal accepts the Respondent's submission that granting the order sought by the Applicant would be beyond the scope the Tribunal's powers under s 32(2) of the ART Act.
9. Noting the crisis faced by the Applicant (and the other applicants) in the absence of the capacity of their usual caregiver, the parties agreed that the matter required expedition. At the hearing of the interlocutory application, I listed the matter for a case management direction hearing on 9 June 2025. After further reflection, it seems to the Tribunal that this may be a matter where remittal under s 85 of the ART Act would be appropriate, including for any investigations to be undertaken by the parties, especially the Respondent, regarding the Applicants' present needs, evidence of which is not currently before the Tribunal. The parties are to consider that course and provide a joint minute setting out their position and any proposed orders.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

...................[SGD].....................................................

[1] Paragraph [1] was altered on 29 May 2025 under s 114(1) of the Administrative Review Tribunal Act 2024 (Cth) to correct an obvious error.

[10] Respondent's submissions, [20]-[45].

[12] See Re Caratti and Australian Securities and Investments Commission [2024] ARTA 103, [11].

[13] Cf Re SNS Diwakar Pty Ltd and Tax Practitioners Board [2024] ARTA 82, [48].

[14] See _Re PAG (WA) Pty Ltd and Commissioner for Consumer Protect_ion [2018] WASAT 57, [20]; Re Soutorine and The Medical Board of Australia [2020] WASAT 5, [23]-[28]; Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 (ASIC v AAT), [50].

[15] See Re GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1, [12].

[16] See, e.g., Re Dart and Director-General of Social Services (1982) 4 ALD 553 (Dart); Re Artemis and Australian Postal Corporation (1998) 27 AAR 60.