PRACTICE AND PROCEDURE - extension of time application - jurisdiction -no internal review of Regulator's decision - whether original decision of Regulator is a reviewable decision - application dismissed

Administrative Review Tribunal Act 2024 (Cth), ss 12, 17, 19, 97

Superannuation Industry (Supervision) Act 1993, ss 10, 126A, 344

1. The Commissioner of Taxation (Commissioner or Respondent) made a decision to disqualify Mr Leslie (Applicant) under s 126A(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) and to amend his income tax assessment for the 2023 income year.
2. The Respondent's decision was made following a review of the Trustee for the Westrock Superannuation Fund. The Commissioner advised Mr Leslie of his decision on 9 May 2025. In the same communication, the Applicant was also advised:
   • he could ask for a review of the disqualification decision by using the enclosed Request for ATO Review -Cover sheet within 21 days, with details as to why the decision is wrong;
   • if he was dissatisfied with the outcome of the internal review, he may then apply to the Tribunal for a review of the internal review decision; and
   • if he wishes to apply for a review of the disqualification decision and continue acting in the role of trustee while disqualified, then he will need to apply to the Tribunal seeking a stay of the disqualification while a review of the decision is being determined.
3. On 5 November 2025, Mr Leslie lodged an application with the Tribunal seeking an extension in time in which to lodge a review of the Commissioner's decision of 9 May 2025.
4. Initially, the Commissioner did not oppose the extension of time application. However, upon further review of the matter, the Commissioner identified that Mr Leslie had not requested a review (Internal Review) of the disqualification decision, and therefore the Tribunal's jurisdiction to determine the extension of time application was not enlivened. The Commissioner advised both the Tribunal and Mr Leslie of his position in respect of this issue in a letter dated 2 February 2026 (February Letter).
5. The Tribunal declined to grant the extension of time, and instead, listed the matter for an interlocutory hearing to address the issue of jurisdiction. Mr Leslie represented himself at the interlocutory hearing and Ms Raval and Mr Mossman appeared on behalf of the Commissioner.
6. Mr Leslie confirmed with the Tribunal that he is only disputing the disqualification decision and, at this stage, does not intend to pursue a stay of the implementation of the Commissioner's disqualification decision. He also confirmed that he had not lodged an Internal Review of the disqualification decision at the time he lodged his application with the Tribunal. Following the Commissioner's February Letter, he had taken steps to lodge an out of time Internal Review with the Respondent.
7. The Commissioner confirmed an out of time request for an Internal Review has now been received by him but is yet to be determined.
8. The Tribunal does not have a general review jurisdiction. It is only empowered to consider 'reviewable decisions' as defined in s12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 12(1) provides the decision is a 'reviewable decision' if an act or legislative instrument provides for an application to be made to the Tribunal for review of the decision.
9. The disqualification decision was made under the SISA. Section 344 of the SISA deals with review of decisions and provides as follows:

Review of certain decisions > > Request for review > > (1) A person who is affected by a reviewable decision of the Regulator or the Registrar may, if dissatisfied with the decision, request the decision maker to reconsider the decision. > > How request must be made > > (2) The request must be made by written notice given to the decision maker within the period of 21 days after the day on which the person first receives notice of the decision, or within such further period as the decision maker allows. > > (2A) If the Registrar is the decision maker, the request must meet any requirements of the data standards. > > Request must set out reasons > > (3) The request must set out the reasons for making the request. > > Decision maker to reconsider decision > > (4) Upon receipt of the request, the decision maker must reconsider the decision and may, subject to subsection (5), confirm or revoke the decision or vary the decision in such manner as the decision maker thinks fit. > > Deemed confirmation of decision if delay > > (5) If the decision maker does not confirm, revoke or vary a decision before the end of the period of 60 days after the day on which the decision maker received the request under subsection (1) to reconsider the decision, the decision maker is taken, at the end of that period, to have confirmed the decision under subsection (4). > > Notice of Decision maker's action > > (6) If the decision maker confirms, revokes or varies a decision before the end of the period referred to in subsection (5), the decision maker must give written notice to the person telling the person: > > (a) the result of the reconsideration of the decision; and > > (b) the reasons for confirming, varying or revoking the decision, as the case may be. > > Notice to Commissioner of Taxation if Regulator is decision maker > > (7) If the Regulator is the decision maker and the Regulator gives a notice to a person under subsection (6) telling the person that a decision under section 40 has been revoked or varied, the Regulator must give to the Commissioner of Taxation particulars of the notice. > > ART review > > (8) Applications may be made to the Administrative Review Tribunal for review of decisions that have been confirmed or varied under subsection (4). > > (10) If a request is made under subsection (1) in respect of a reviewable decision, section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the Administrative Review Tribunal Act 2024 applies as if the making of the request were the making of an application to the Administrative Review Tribunal for a review of that decision. > > (11) An order must not be made under subsection 32(2) of the Administrative Review Tribunal Act 2024 in respect of a reviewable decision except by the Administrative Review Tribunal. > > ...

10. A decision to disqualify a person pursuant to s 126A(2) of the SISA is a reviewable decision for the purposes of s 344(1) of the SISA.[1]
11. Taking s 12 of the ART Act and s 344(8) of the SISA together, an application can only be made to the Tribunal for review of a decision that has been confirmed or varied under s 344(1) of the SISA. In other words, the Tribunal can only review an Internal Review decision that confirms or varies the original decision of the Commissioner.
12. Section 97 of the ART Act states that the Tribunal must dismiss an application if the application is made for review of a decision and the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
13. Section 17 of the ART Act confers a right to apply for review only on a person whose interests are affected by a reviewable decision. The power to extend time, under s 19 of the ART Act is directed to extending the period within which such an application can be made.
14. The Tribunal is satisfied that the decision the Applicant seeks an extension of time in which to apply for a review, is not a reviewable decision for the purposes of s 12 of the ART Act. This is because it is the original disqualification decision of the Commissioner and not an Internal Review decision as required by s 344(8) of the SISA.
15. It may be accepted that the notification of review rights in circumstances where a person wishes to continue acting in the role of a trustee while disqualified, was not as clear as it might have been, and may explain why Mr Leslie sought to proceed directly to the Tribunal rather than requesting an Internal Review at first instance.
16. However, a misunderstanding as to the rights of review cannot confer jurisdiction on the tribunal where none exists. The Tribunal's jurisdiction is limited to a review of an Internal Review decision. It is not in dispute that there is no Internal Review decision. The statutory precondition for review by the Tribunal, namely the existence of a reviewable decision, is therefore not satisfied in this case.
17. In the absence of a reviewable decision, there is no right to apply for review capable of being exercised. It follows there is no period during which the Applicant may apply that can be extended. The extension power has no work to do.
18. Accordingly, the Tribunal does not have jurisdiction and must therefore dismiss the application.
19. Should Mr Leslie receive an adverse Internal Review decision, he may apply to the Tribunal for a review of that decision.

[1] Superannuation Industry (Supervision) Act 1993 (SISA), s10