Tax Practitioners Board v LMU25 - Tax Agent Registration Termination Judicial Review

Original Word Document (98.8 KB) Federal Court of Australia

Tax Practitioners Board v LMU25 [2026] FCA 429

| File number: | NSD 1718 of 2025 |
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| Judgment of: | MCDONALD J |
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| Date of judgment: | 15 April 2026 |
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| Catchwords: | ADMINISTRATIVE LAW – application for judicial review of decision of Administrative Review Tribunal – where applicant decided to terminate tax agent registration of first respondent pursuant to s 30-30 of Tax Agent Services Act 2009 (Cth) (TAS Act) – where Tribunal ordered interim stay of decision of applicant including any notification or reference to its decision in any public register maintained pursuant to s 60-135 of TAS Act – where s 60-140 of TAS Act requires applicant to publish notice of decision to terminate registration of a tax agent – whether publication on public register constitutes “operation” or “implementation” of decision to terminate registration of a tax agent – whether Tribunal had jurisdiction to order stay – application for judicial review dismissed |
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| Legislation: | Administrative Appeals Tribunal Act 197 5 (Cth) s 41

Administrative Review Tribunal Act 2024 (Cth) ss 12, 32

Tax Agent Services Act 2009 (Cth) ss 2-5, 30-10, 30-30, 40-20, 40-25, 60-95, 60-125, 60-135, 60-140, 70-10

Tax Agent Services Regulations 2022 (Cth) ss 25E, 25L, 25M |
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| Cases cited: | Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185

Kambourakis v Tax Practitioners Board [2025] ARTA 1

Kender and Australian Securities and Investments Commission [2018] AATA 4445 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 47 |
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| Date of hearing: | 18 November 2025 |
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| Counsel for the Applicant: | Ms E A Bishop SC with Mr J Nixon |
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| Solicitor for the Applicant: | MinterEllison |
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| Counsel for the First Respondent: | Mr T A Game SC with Ms C McNair |
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| Solicitor for the First Respondent: | Johnson Winter Slattery |
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| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS

| | | NSD 1718 of 2025 |
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| BETWEEN: | TAX PRACTITIONERS BOARD

Applicant | |
| AND: | LMU25

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | MCDONALD J |
| DATE OF ORDER: | 15 APRIL 202 6 |
THE COURT ORDERS THAT:

1. The amended originating application dated 8 October 2025 be dismissed.

2. The applicant pay the first respondent’s costs of the proceedings, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

M C DONALD J

Introduction

1 In September 2023, the applicant, the Tax Practitioners Board (Board), commenced an investigation into the conduct of the first respondent (LMU25), who was a registered tax agent. The investigation culminated in the Board making a finding that LMU25 had breached the Code of Professional Conduct: s 30-10 of the Tax Agent Services Act 2 009 (Cth) (TAS Act). On 8 August 2025, a Committee of the Board, acting under the delegated authority of the Board, made a decision to terminate LMU25’s tax agent registration in accordance with s 30-30 of the TAS Act (termination decision) and to prohibit him from applying for registration as a tax agent for a period of 12 months (prohibition decision), pursuant to s 40-25 of the TAS Act.

2 In accordance with s 40-20 of the TAS Act, on 13 August 2025, the Board notified LMU25 of the termination decision and the prohibition decision. The notification stated that the termination of LMU25’s registration as a tax agent would take effect from 11 September 2025.

3 On 1 September 2025, LMU25 lodged an application for review of the termination decision and the prohibition decision in the Administrative Review Tribunal (Tribunal). LMU25 also applied to the Tribunal for orders staying the two decisions pending review by the Tribunal, including an order restraining the Board “from issuing any press release, speaking publicly, or issuing any other form of notification with respect to the [decisions], and from including any reference to the [decisions] in any publications, alerts or in the public register maintained pursuant to s 60-135 of the [TAS Act]”.

4 On 10 September 2025, the Tribunal made interim orders. Relevantly, order 2 of those orders (stay order), made pursuant to s 32(2) of the Administrative R eview Tribunal Act 2024 (Cth) (ART Act), states as follows:

2.    Pursuant to s 32(2) of the [ART Act] the operation and implementation of the decision under review dated 13 August 2025 (Decision), including any notification or reference to the Decision in any public register maintained pursuant to s 60-135 of the [TAS Act] is stayed on an interim basis until determination of [LMU25]’s stay application or further order.

The decision referred to in the stay order comprises both the termination decision and the prohibition decision.

5 On 19 September 2025, the Board commenced proceedings in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the stay order. The Board contends that the making of the stay order was affected by jurisdictional error because the Tribunal misconstrued s 32(2) of the ART Act and misunderstood the interaction of that section with the TAS Act and the Tax Agent Services Regulations 2022 (Cth) (TAS Regulations).

6 By its amended originating application dated 8 October 2025, the Board seeks a writ of certiorari quashing the stay order to the extent that it restrains the Board from publishing notice of the termination decision and the prohibition decision on the register, a writ of mandamus requiring the Tribunal to hear and determine the matter according to law, and an order that LMU25 pay the costs of the Board.

7 For the reasons explained below, I do not consider that the Tribunal misconstrued or misunderstood the effect of s 32(2) of the ART Act. The power of the Tribunal to “make an order staying or otherwise affecting the operation or implementation of the decision” extends to ordering that the Board not publish on the register information about a decision which the TAS Act or the TAS Regulations would otherwise require be published. Accordingly, the Board’s application for judicial review should be dismissed.

Relevant legislative provisions

The TAS Act and TAS Regulations

8 The object of the TAS Act, set out at s 2-5, is “to support public trust and confidence in the integrity of the tax profession and of the tax system by ensuring that tax agent services are provided to the community in accordance with appropriate standards of professional and ethical conduct”.

9 Part 6 of the TAS Act establishes the Board, sets out its functions and powers, and provides a framework for the conduct of investigations by it. Section 60-95(1)(b) provides that the Board may investigate any conduct that may breach the TAS Act.

10 Section 60-135(1) of the TAS Act requires the Board to establish and maintain a register of entities in accordance with the TAS Act. Section 60-135(2) relevantly provides that each entity that is a registered tax agent must be entered on the register for the period during which the entity is so registered. Section 60-135(3) provides that regulations made for the purposes of s 60-135(1) may require that an entity be entered on the register for a specified period, and that specified information in respect of the entity be entered on the register.

11 Section 60-125(2) of the TAS Act provides that, where the Board investigates conduct pursuant to s 60-95(1) and finds that the conduct breaches the TAS Act, the Board must either make a decision that no further action will be taken (s 60-125(2)(a)), or do one or more of the following (s 60-125(2)(b)):

(i)    impose one or more sanctions under Subdivision 30‑B;

(ii)    terminate an entity’s registration under Subdivision 40‑A;

(iii)    apply to the Federal Court for an order for payment of a pecuniary penalty under Subdivision 50‑C;

(iv)    apply to the Federal Court for an injunction under section 70‑5;

(v)    decide that the entity (the contravening entity) that engaged in the conduct, and the information in respect of the contravening entity prescribed by the regulations for the purposes of this subparagraph, be entered on the register for the period prescribed by the regulations for the purposes of this subparagraph.

12 Section 40-20 of the TAS Act requires the Board to notify a tax agent, in writing, of the decision to terminate their registration, the reasons for the decision, and any determination by the Board under s 40‑25 of a period during which the tax agent is not eligible to apply for registration. Section 60-140 provides that the Board must, by notifiable instrument, publish notice of, relevantly, a decision to terminate the registration of a registered tax agent made pursuant to Subdiv 30-B or Subdiv 40-A of the TAS Act.

13 Section 70-10 of the TAS Act provides that an application for review of certain decisions, including a decision under Subdiv 30-B or Subdiv 40-A to terminate registration, may be made to the Tribunal.

14 The TAS Regulations are made pursuant to and for the purposes of the TAS Act. Somewhat unusually, the provisions of the TAS Regulations are referred to, within the TAS Regulations themselves, as “sections” rather than “regulations”. Section 25E of the TAS Regulations deals with orders, suspensions and terminations by the Board, and provides as follows:

25E Orders, suspensions and terminations by Board

(1)    If the Board has:

(a)    made an order in relation to an entity under section 30‑20 of the Act; or

(b)    suspended an entity’s registration under section 30‑25 of the Act; or

(c)    terminated an entity’s registration under section 30‑30 or Subdivision 40‑A of the Act;

then:

(d)    the entity must be entered on the register; and

(e)    the information specified under subsection (3) of this section must be entered on the register in respect of the entity;

for the period prescribed under subsection (4) of this section.

(2)    However, paragraph (1)(c) does not apply in relation to the termination of an individual’s registration under Subdivision 40‑A of the Act if the registration was terminated because the individual died.

Specified information

(3)    For the purposes of paragraph (1)(e), the following information is specified:

(a)    a statement to the effect that an order has been made in relation to the entity, the entity’s registration has been suspended or the entity’s registration has been terminated (whichever applies);

(b)    the date on which the order, suspension or termination takes effect;

(c)    if an order has been made in relation to the entity—a summary of the content of the order;

(d)    if an order has been made in relation to the entity and the order is in force for a period (see paragraph (6)(a))—the period for which order is in force;

(e)    if the entity’s registration has been suspended—the period for which the suspension is in force;

(f)    if the entity’s registration has been terminated and the Board determines, under section 40‑25 of the Act, a period during which the entity must not apply for registration—a statement to the effect that the entity must not apply for registration during that period;

(g)    the reasons for the order, suspension or termination;

(h)    without limiting paragraph (g) of this subsection, if the reasons for the order, suspension or termination relate to particular conduct of the entity—details of that conduct.

15 Where an application for review of the Board’s decision has been made to the Tribunal, s 25L of the TAS Regulations requires that a statement to the effect that a review application has been made be entered on the register. Notably, s 25L(6) provides:

Exception—where ART makes order for non‑publication or non‑disclosure

(6)    Despite anything else in this section if, in connection with the review proceedings, the ART makes an order under section 70 of the ART Act prohibiting or restricting the publication or other disclosure of particular information, then the Board must not enter that information on the register.

16 Section 25M of the TAS Regulations also imposes certain obligations on the Board to enter information on the register where decisions are the subject of an appeal to a court, and to make updates to the register that are needed in the light of the decision of an appeal court.

The ART Act

17 The ART Act establishes the Tribunal with the objective of providing an independent mechanism for review of reviewable decisions made pursuant to a large number of other Acts and legislative instruments. Section 12 of the ART Act provides that a 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. A decision by the Board to terminate the registration of a registered tax agent under s 30-30 of the TAS Act is, therefore, a “reviewable decision”, by virtue of s 70-10, to which reference has been made at [13 ] above.

18 Section 32(1) of the ART Act sets out the general principle that “[t]he 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”. Section 32(2) then provides as follows:

(2)    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.

19 The question of whether the Tribunal should grant a stay is discretionary. The applicant before the Tribunal bears the onus of satisfying the Tribunal that a stay pursuant to s 32(2) is necessary for the purpose of securing the effectiveness of the hearing and determination of the application for review: see Kambourakis v Tax Practitioners Board [2025] ARTA 1 at [27]; Kender and Australian Securities and Investments Commission [2018] AATA 4445 at [5].

20 Rather than quashing or vitiating the legal efficacy of a decision, a stay prevents steps being taken to give effect to the decision. Whether an administrative decision can be stayed under s 32(2) of the ART Act requires consideration of whether it is a step that implements or gives effect to the operation of the reviewable decision.

The issue for determination

21 The Board describes the issue for determination by this Court as: “Whether publication on the [register] is properly understood as part of the implementation or operation of the decision to terminate a tax agent’s registration under s 30-30 of the [TAS Act], so as to enliven the Tribunal’s jurisdiction to stay those steps”. The Board contends that the entry of information on the register does not amount to the implementation or operation of such a decision, and that s 32(2) of the ART Act does not confer on the Tribunal power to stay the step of entering such a decision on the register. In the event that the Tribunal did have power to stay the step of entering information about the decision on the register, the Board does not contend that the Tribunal’s exercise of discretion to make the stay order miscarried for any other reason.

A previous decision of the Full Court

22 Section 32(2) of the ART Act is in similar terms to, and is evidently intended to have the same effect as, s 41(2) of the now-repealed Administrative Appeals Tribunal Act 197 5 (Cth) (AAT Act). Section 41(2) empowered the Administrative Appeals Tribunal (AAT) to make an order “staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates … for the purpose of securing the effectiveness of the hearing and determination of the application for review” by the AAT.

23 The operation of s 41(2) of the AAT Act, in the context of statutory obligations to publish notice of a decision which was the subject of an application for review by the AAT, was considered by the Full Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185 (ASIC v AAT). The precise issue that arose in that case was whether the AAT had power to make orders preventing ASIC from:

(a) publishing a notice of its decision to impose a banning order, as it would otherwise have been required to do “as soon as practicable” under s 920E(2) of the Corporations Act 2001 (Cth); and

(b) including on the register relating to financial services information about the banning order, as it would otherwise have been required to do under s 922A of the Corporations Act and reg 7.7.06(1) of the Corporations Regulations 2001 (Cth).

24 ASIC had made a banning order against the second respondent. Before ASIC had published notice of the making of the banning order and had made the required entries in the register, the second respondent applied to the AAT for review of ASIC’s decision, as well as for interlocutory orders under s 41(2) of the AAT Act. The AAT made an interlocutory order staying the operation and implementation of the banning order, including, relevantly, “entry of the decision in the register maintained by the respondent [and] publication of the decision in the Gazette”. ASIC sought judicial review of the AAT’s interlocutory order.

25 ASIC argued that its duties to publish a notice of the making of a banning order and to make relevant entries in the register were enlivened by the mere fact that a banning order had been made, and that the AAT’s general stay power could not be used to limit or qualify those duties. ASIC submitted that the object of ss 920E(2) and 922A of the Corporations Act was to inform the public of ASIC’s performance of its regulatory functions at the earliest practicable opportunity, and not after the exercise of rights of review to the AAT. ASIC submitted that the obligations to publish notice of its decision and make entries in the register were unaffected by the AAT’s review powers. Finally, ASIC argued that the power of the AAT, to make a stay or other order affecting the “operation” or “implementation” of the decision, was not engaged because the publication of the fact that a banning order had been made was neither the “operation” nor the “implementation” of the banning order.

26 The Full Court rejected these submissions. Justices Downes and Jagot held that the duties to publish a banning order and enter it on the register could be reconciled with the power of the AAT to stay the operation or implementation of the decision, as follows (at 145 [62]):

… The statutory provisions … 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.

27 As to the argument that the publication of a banning order and the maintenance of the register were not part of the “operation” or “implementation” of the decision to make a banning order, their Honours said (at 147 [68]-[70]):

… 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.

The ordinary meaning of the terms operation or implementation … do not support the narrow interpretation underpinning ASIC’s argument. …

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. …

28 Justices Downes and Jagot thus held that the publication and entry on the register were properly characterised as both the “implementation” and the “operation” of the decision to make a banning order. Justice Moore agreed that s 41(2) of the AAT Act authorised the AAT to prevent ASIC from performing its duties to publish notice of a banning order and to enter it in the register, on the basis that the performance of that duty was an aspect of the “operation” of the decision to make a banning order. His Honour said (at 133 [5]-[6]):

… 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. … 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.

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.

29 Justice Moore doubted whether the publication of a notice and entry on the register were also covered by the expression “implementation of the decision” (at 133-4 [7]).

30 The same interpretation that was given to s 41(2) of the AAT Act should also be applied to s 32(2) of the ART Act. The differences in language between the two provisions are minor and according to the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at [362], were made to “reflect modern drafting practices”, and “do not affect the operation or effect of the provision”.

The decision in ASIC v AAT is not distinguishable

31 The Board seeks to distinguish the decision in ASIC v AAT from the present case on two bases.

32 The first, as I understand the submission, is that, under s 920A of the Corporations Act, ASIC made a single decision which had the dual effects of prohibiting a person from acting as a director and requiring the publication of that fact. Therefore, staying the implementation or operation of ASIC’s decision meant suspending both of those legal effects. In contrast, the requirement to publish a decision to terminate the registration of a tax agent under the TAS Act is said to be a distinct statutory requirement that arises because of the fact of the making of the termination decision, but which is not itself properly characterised as either the operation of the decision or the implementation of the decision.

33 The first submission must be rejected. The relationship between the making of the decision and the duty to publish notice of the decision is not materially different as between the Corporations Act and the TAS Act. In both cases, the statute itself imposes a duty to publish, and that duty arises as a statutory consequence of the making of the primary decision.

34 The second basis on which the Board seeks to distinguish ASIC v AAT is by reference to the purpose of the provisions of the TAS Act and TAS Regulations which create the obligation to publish the fact of the making of the decision (and any subsequent revocation or variation of the decision) on the register. That purpose is said to be inconsistent with the Tribunal’s power to stay a decision extending to an order preventing publication on the register pending the Tribunal’s determination of the review.

35 It may be accepted that the purposes of the TAS Act and the TAS Regulations extend to notifying the public that the Board has made a decision to terminate a tax agent’s registration, notifying the public if such a decision is under review, and notifying the public that such a decision is set aside or varied. It may further be accepted that the publication of the fact that the Board has made such a decision, via the entry of information on the register, serves the protective purpose of informing the public of the decision, and that it may do so even though there is a prospect that the decision may be set aside or varied in the future. However, this does not distinguish the relevant provisions of the TAS Act and the TAS Regulations from the provisions of the Corporations Act that were under consideration in ASIC v AAT. In both instances, the duty to enter information about the decision in the register or publish a notice of the decision in the gazette, while the decision remains subject to review, itself serves a public purpose.

36 Although s 25L of the TAS Regulations expressly contemplates the publication of a decision pending review by the Tribunal, and differs from the Corporations Act in that limited respect, that merely serves to demonstrate that there is a public interest in the publication of notice of the decision, even where the decision is subject to review (and that there is, likewise, in a case where notice of the original decision has been published and a review by the Tribunal results in the setting aside or variation of the original decision, a public interest in the publication of that fact). It does not mean that the duty to publish is incapable of being characterised as part of the operation or implementation of the decision to terminate the registration of a registered tax agent, or that the conferral on the Tribunal of a power to order a stay of the step of entering information about the decision on the register is inconsistent with the scheme of the TAS Act. The TAS Act itself provides that decisions made under it are to be reviewable by the Tribunal, and thus contemplates that the provisions of the ART Act, including s 32(2), will apply.

37 As Downes and Jagot JJ explained in ASIC v AAT, in relation to the interaction between ss 922A(1) and 920E(1) of the Corporations Act and s 41(2) of the AAT Act, the TAS Act and the TAS Regulations operate together with s 32(2) of the ART Act by recognising that the duty to publish is a usual statutory consequence of the making of a decision to terminate the registration of a tax agent, but is subject to the exercise of the AAT’s power to order a stay of the operation or implementation of the decision.

38 The conferral of a power on the Tribunal to stay the operation or implementation of a decision to terminate the registration of a registered tax agent is not inconsistent with the purposes of the TAS Act and the TAS Regulations. The public interest served by the recording of decisions of the Board (even if they are under review by the Tribunal) is a relevant aspect of the scheme of the TAS Act which may inform the exercise of the Tribunal’s discretion to grant a stay. A similar point was recognised by Downes and Jagot JJ in ASIC v AAT, where their Honours said (at 142-3 [50]-[52]):

The power in s 41(2) of the AAT Act is to make an order staying or otherwise affecting the operation or implementation of a decision under review. The power is conditional on the making of a request and the holding of an opinion by the AAT. The required opinion is that it is desirable to make the order. The AAT may only form this opinion after taking into account “the interests of any persons who may be affected by the review”. Accordingly, the AAT must identify for itself and consider the relevant interests. Unless it does so, the AAT cannot form the required opinion. …

The nature of the decision under review will affect the identification of the “interests of any persons who may be affected by the review”. Accordingly, those interests are to be identified by reference to the statutory scheme under which the decision under review was made. …

Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. …

39 These observations apply equally to the exercise of the power in s 32(2) of the ART Act. As in the case of a banning order made under s 920A of the Corporations Act, a tax agent whose registration is terminated by the Board under s 60-125(2) of the TAS Act is not the only person whose interests may be affected by a review of such a decision; the persons affected by the review include at least the tax agent’s existing and potential clients (if any), as well as the public at large (cf ASIC v AAT at 143 [51]). The public interest in the protection of the community remains an important consideration in the exercise of the Tribunal’s discretion to grant a stay. The circumstances of a particular case may affect the weight to be given to the policy reflected in the provisions of the TAS Act and the TAS Regulations. For example, if the person whose registration is terminated has not been practising as a tax agent, or undertakes not to so practise while the review is on foot, the weight to be given to the public interest in the protection of the community by way of entry of information on the register might be diminished.

The Tribunal has power to order a stay of the obligation to enter information on the register pending review of a decision to terminate the registration of a registered tax agent

40 It is significant that the ART Act provides a general framework for review of decisions by the Tribunal, and is intended to have application in respect of a wide variety of administrative decisions made by different government agencies under a large number of Acts and legislative instruments. Given the broad and indeterminate range of decisions and circumstances to which the ART Act may apply, it would be inappropriate to give the concepts of “operation” and “implementation” of a decision, as referred to in s 32(2) of the ART Act, a narrow or technical meaning.

41 The concept of the “operation” of a decision naturally includes the legal effects that flow from the making of the decision, particularly where those effects are provided for in the same statute under which the decision is made (or in regulations made for the purpose of that statute). In the case of a decision to terminate the registration of a tax agent, one of the legal effects of the decision is the creation of the duty to enter on the register the fact that the decision has been made. That is properly described as an aspect of the “operation” of the decision. This is consistent with the conclusion reached in ASIC v AAT.

42 Further, where the TAS Act and the TAS Regulations require that the Board take action to give effect to a legislatively-prescribed consequence of a decision to terminate the registration of a registered tax agent which contributes to the efficacy of that decision – including entering information about the decision on the register – the taking of that action is appropriately characterised as part of the “implementation” of the decision. That is consistent with the reasoning and conclusion of Downes and Jagot JJ in ASIC v AAT at 147 [70].

43 The Board submits that “[t]he terms ‘implementation’ and ‘operation’ as used in s 32(2) of the ART Act must be construed in a way that ensures that the scope of the power to stay a ‘reviewable decision’ within the meaning of s 70-10 of the [TAS Act] is consistent with Parliament’s objectives in enacting the amendments to the [TAS Act] and [the TAS Regulations]”. The Board submits that this narrow construction of “implementation” and “operation” is supported by the extrinsic material relevant to the TAS Act and the TAS Regulations.

44 The Board further submits that, “[a]lthough publication is a consequence flowing from the operation of the [TAS Act] and the [TAS Regulations] once a termination decision has been made, Parliament has deliberately crafted review rights that distinguish between the termination decision and the publication decision, with a view to ensuring public visibility over the decisions and functions of the Board irrespective of the subsequent review of those decisions”. This context is said to require a narrower approach to the identification of the administrative steps that form part of the implementation and operation of a reviewable decision than might be adopted in other statutory contexts.

45 These submissions overlook the fact that the ART Act is, by design, required to be applied in respect of a wide range of administrative decisions across different statutory contexts. It is difficult to see how the meaning to be given to the words “operation” and “implementation” in s 32(2) of the ART Act could change depending on what kind of decision is the subject of the review in a particular case. The issue must remain whether, taking into account the operation of the legislative scheme under which the decision under review was made, the aspect of the scheme in respect of which a stay is sought is part of the “operation” or “implementation” of the decision, in the sense in which those words are (consistently) used in s 32(2) the ART Act. This point is, if anything, stronger when the requirements concerning the publication of information about termination decisions under the TAS Act are largely provided for by the TAS Regulations, for it is difficult to see how the meaning of expressions used in s 32(2) of the ART Act could be affected by particular requirements imposed by subordinate legislation.

46 A further submission advanced by the Board is that the Parliament clearly intended to draw a distinction between a decision to terminate a tax agent’s registration (made, in this case, under s 30-30 and referred to in s 70-10(e) of the TAS Act) and a decision to include information on the register in respect of an entity whose conduct has breached the TAS Act (made under s 60-125(2)(b)(v) and referred to in s 70-10(ha) of the TAS Act). It is true that these two decisions are listed separately in the list of decisions of the Board that are “reviewable decisions” in s 70-10. However, I do not accept that this feature of the TAS Act supports the conclusion that the entry of information on the register is not part of the “operation” or “implementation” of a decision to terminate the registration of a tax agent, where (by reason of s 60-140 of the TAS Act) that is a legal consequence that follows automatically from the making of the decision to terminate the registration of a registered tax agent. Indeed, if anything, it would seem anomalous that the Tribunal should have power to stay the operation of a decision of the Board to include information on the register pending a review of a decision made under s 60-125(2)(b)(v) of the TAS Act, but should have no power to stay the obligation to enter information on the register pending review of a decision to terminate a registered tax agent’s registration under s 30-30, simply because the entry of information on the register is imposed as an automatic legal consequence following termination of registration, rather than a separate discretionary decision to be made by the Board.

Conclusion

47 For the reasons explained above, the Tribunal did not err by proceeding on the basis that it had power under s 32(2) of the ART Act to make an interim order that the Board not include any notification of or reference to the decisions in the register maintained pursuant to s 60-135 of the TAS Act. The Board’s application for judicial review of the stay order must be dismissed with costs.

| I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. |
Associate:

Dated: 15 April 2026

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