Commonwealth Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) provides wonderful resources for people who are seeking more information on whether they have a right to review. Please do visit this site for comprehensive information on the procedures and requirements. This section is an overview of the AAT but for more practical information on the process, refer to the AAT website.

Types of Appeals Heard

The jurisdiction of the AAT may be conferred by express provision in any federal Act (s25(1)). This is constantly changing. To find out if the AAT can hear a case, a person can contact the local registry of the AAT or consult the regularly up-dated loose-leaf services ‘The Australian Administrative Law Service’ or ‘Federal Administrative Law’. Information on what can be heard by the AAT (jurisdiction) may also be found on their website.
The principal jurisdictions are Social Security, Veterans’ Entitlements, Taxation Appeals, Freedom of Information, Commonwealth Employees’ Rehabilitation and Compensation, Customs, Superannuation, Defence Force Retirement Benefits, Migration, Commonwealth Fisheries, and Civil Aviation, but there are many more.

Who Can Apply?

An application may be made by “any person or persons whose interests are affected by a decision” (s27). This is a broad approach. The Act clearly contemplates that community groups, public interest organisations and others should have ready access to the Tribunal and be able to seek statements of reasons. The Act says that an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association. However, this does not apply to a decision given before the organisation or association was formed or before the objects or purposes of the organisation or association included the matter concerned (ss27(2) and (3)).

Reasons for a Decision

Decision makers must supply a statement of reasons if asked to do so by an aggrieved person. There are some exceptions (ss28 and 29)). What this means for the person aggrieved is that reasons can be demanded from a decision-maker, whatever course of action – administrative appeal or judicial review – is contemplated. Equally importantly, reasons can be obtained without the need to file an appeal application. This can be done later if it is felt that the reasons justify that step. This duty was first spelt out in the Act. It has been adopted, in basically the same terms, by the Administrative Decisions (Judicial Review) Act.

How to Appeal

Once a person is satisfied that the administrative decision or action which concerns them can be appealed to the AAT and they have considered the statement of reasons, the next step is to apply in writing to the AAT. A special form which may be used is available from any of the registries of the AAT. Fees are payable in some cases. Enquiry should be made as to whether any fee is payable.

If there is any doubt as to whether a person has a right of appeal or they are concerned about any procedural problem, they should telephone the Deputy Registrar.

The time period for an appeal application only begins to run when written reasons for a decision have been given to the applicant. Sometimes a tribunal, Minister or other body will announce a decision and give reasons verbally but defer providing written reasons. This may occur where a good deal of urgency surrounds the matter. The appeal period does not commence at this time but when written reasons are later given. The Act provides means for ensuring written reasons are given (these are discussed below). The appeal period is 28 days. This time may be extended by the Tribunal. It is 60 days in the case of Commonwealth Employees’ Rehabilitation & Compensation Act 1988 and three months under the Veterans Entitlements Act (Cth).

Effect of Application on Disputed Decision

Normally the original administrative decision will continue to operate. If speedy action to implement the decision is required, this will be done by the administrative body. It will not wait to see whether anyone decides to appeal. If a person wants to prevent any action being taken on a decision which they consider wrong, the Act enables them to apply for an order to suspend the operation, or stay action on the decision, or both (s41).
Presenting Cases to the AAT

One of the main aims of those who argued for the setting up of the AAT was that its proceedings should be straightforward, simple and as informal as possible. The trappings of the courts should be avoided. Because AAT hearings are to look into the making of a government decision, they should be seen more as enquiries than adversary contests. The AAT is not bound by the rules of evidence, but may inform itself in whatever way it considers appropriate (s33).

The AAT does not rely solely on oral argument. It will receive agreed statements of facts and written submissions prior to or during the case.
Under the Act, it is possible for other people to join in and support the application of the person or body which has initiated the appeal (s30). All that is necessary is that such people have an interest in the matter sufficient to entitle them to appeal themselves.

Hearings are normally held in public, though the AAT has a discretion to close off part of a hearing (s35).

Representation

Under the AAT Act, parties to a matter before the Tribunal may appear in person. It would, however, often be foolish to go to the AAT without a lawyer or, at the very least, without some legal advice. Lawyers appear in most cases before the Tribunal and it is taking a more legalistic attitude than might have been expected. For those reasons it is safer to seek legal assistance.

Preliminary Conferences

The Act provides for preliminary conferences to be held between the parties which are designed to bring about conciliation between them (s34). Normally, they are held in private. These are an important part of the AAT’s procedures and are always used. They offer an opportunity for a ‘no holds barred’ discussion between the parties. This is one of the more valuable aspects of the AAT’s procedures. They also set a timetable for the hearing, should that be necessary.

Discovery of Documents

Discovery has a technical meaning. It is a general practice direction which provides for the early exchange of copies of all relevant material and documents, the matters which will be dealt with at preliminary conferences and for parties to complete and lodge a certificate of readiness before a hearing date is fixed.

The AAT has wide powers to call for government documents (ss37 and 38). This power applies in cases where the Attorney-General has ruled that a person cannot receive certain information because it affects national security, covers Cabinet deliberations or falls within the sphere of Crown privilege (s36). The AAT has power to release the information to the parties despite the Attorney-General’s certificate if “it is desirable in the interest of securing the effective performance of the functions of the AAT” (s36(4)).

Powers of the AAT

The AAT is able to reconsider on its merits, any decision it is empowered to review (see main definitions at section 3(3) and additional definition at section 25(5)). In other words the Tribunal has authority over the matter equal to that of the original decision-maker (s43). It is required to make its decision in writing and give its reasons for that decision. Its authority is all-embracing. It may take any of the following options:

• affirm the decision under review;
• vary the decision under review; or
• set aside the decision under review, and either make a decision in substitution, or return the matter for reconsideration, in accordance with any directions or recommendations of the Tribunal (s43).

Appeal From the AAT

An appeal on a question of law from the AAT to the Federal Court is permitted. The AAT itself may refer a question of law to the Federal Court (ss44 and 45). An appeal to the Federal Court from the Tribunal does not affect the operation of a decision or prevent the taking of action to implement it (s44A(1)) unless the Court or a Judge of the Court otherwise orders (s44A(2)).

Unlike the normal rule in litigation that the loser must pay their own and the winner’s costs, the AAT is not usually given any power to order costs. Each side must usually bear their own costs (though special provisions relating to costs are to be found in the Safety, Rehabilitation and Compensation Act 1988). So if a citizen is successful in an appeal, the Commonwealth is not usually obliged to meet their costs.

However, the law does permit a party, or intending party, to apply to the Attorney-General for legal aid (s69). The Attorney-General must have regard to whether refusal to grant aid would involve ‘hardship’ to the applicant and that ‘in all the circumstances it is reasonable’ to grant the aid. The Attorney-General may impose conditions on any grant of aid.

What  decisions can the AAT review?

The AAT website provides a comprehensive list of the various Commonwealth Acts that provide the AAT with jurisdiction to hear appeals. This is updated annually. Please see the website for more details, and see above at Decisions Under Commonwealth Acts.

Who hears my case?

A judge on the tribunal will hear your case.

What outcomes are there?

A substitution of the decision is a possible outcome. It is also possible that the AAT will confirm the decision of the original decision maker.