Administrative Law

Administrative Appeals Tribunal

Review by the AAT

The Commonwealth Administrative Appeals Tribunal (AAT) is established under the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act")

It is important to note at the outset that the AAT reviews matters de novo, that is, it conducts a fresh merits review of the decision. This means that the Tribunal 'stands in the shoes' of the original decision-maker. The Tribunal can therefore exercise all of the relevant powers afforded to the original decision-maker under the relevant legislation to:

• affirm the decision under review;
• substitute a new decision; or
• send the original decision back to the decision-maker to reconsider.

This also means that the Tribunal often can consider any new evidence that has come to light since the original decision was made, depending on the words of the legislation giving it the power to review.

What Kind of Decisions can the AAT Review?

The AAT has jurisdiction to review any decision made under a Commonwealth enactment that provides for an appeal to the AAT (see s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act')). This is the only way an appeal can find its way to the AAT.

A list of the current Acts that allow for an AAT review can be found on the AAT website at www.aat.gov.au/LegislationAndJurisdiction/JurisdictionList.htm.

The kinds of decision which can be reviewed include decisions about

• a social security pension or a benefit
• a veteran's pension
• Commonwealth workers' compensation
• an environmental issue
• taxation
• visas refused or cancelled on character grounds
• many other Commonwealth issues

The AAT has a number of divisions, that each have responsibility for certain kinds of decisions, for example, the Veterans' Appeals Division is a division of the Tribunal for the purposes of review of decisions regarding veterans' affairs.

The Taxation Appeals Division considers a wide range of taxation issues.

The Small Taxation Claims Tribunal (STCT) is a tribunal set up within the Taxation Division of the AAT. The STCT provides informal and inexpensive review of small taxation disputes (under $5,000). It can also review decisions of the Tax Office refusing a request for an extension of time within which to make a taxation objection.

You should note that decisions made under the social security law (for example, the Social Security Act 1991 (Cth)and the A New Tax System (Family Assistance) Act 1999 (Cth)), that is, the majority of decisions made in connection with welfare benefits by Centrelink, must be first appealed to the Social Security Appeals Tribunal, before an appeal can be brought to the AAT.

The word 'decision' is given an extended meaning under the AAT Act. For the purposes of s 25, a failure to do an act within the prescribed period will amount to a decision (s 25(5)). What constitutes a 'decision' is also defined in s 3(3) of the AAT Act.

Who can Apply to have a Decision Reviewed?

Only those whose interests are affected by the decision or their representatives may apply to the Tribunal for a review of the decision. So, a person who considers a decision is wrong, but whose interests are not affected by the decision, cannot apply to the Tribunal.

Where there is doubt about whether a person's interests are affected, that will be decided by the Tribunal (see ss 27 and 31 of the AAT Act). You should also note that a particular Act may modify the definition of people who may apply, so you should check the Act that the decision was made under, or check with the Tribunal.

Community groups are given a wide right of access to the Tribunal. The AAT Act states that an organisation or association, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter which was included in the objects or purposes of the organisation or association at the time of the decision.

How to Apply

Applications to the Tribunals have to be set out in writing and may be made on the forms that are available from the Registry of the AAT or can be downloaded from the Tribunal's website.

Applications must be made to the Tribunal within 28 days of the day on which the decision was made known to you.

There is a standard application fee of $682 (as at September 2009), however you do not have to pay the fee if you are the holder of a health care card, health benefit card, pensioner concession card, Commonwealth Seniors health care card, or any other card issued by the Department of Families, Housing, Community Services and Indigenous Affairs or the Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions.

You also do not have to pay the fee if

• you have been granted legal aid for your application;
• you are in prison, in immigration detention or otherwise detained in a public institution;
• you are under 18 years of age; or
• you are receiving youth allowance, Austudy payment or ABSTUDY.

You can also apply to have the fee waived if you believe you cannot afford to pay it.

The Tribunal will then notify the authority which made the decision that an application for review has been made.

The time for applying may be extended (see s 29 of the AAT Act). Application for an extension of time should be made on a special form that is available from the Tribunal or can be downloaded from the Tribunal's website.

The Tribunal gives each application a separate reference number, which must be used in all further contact with the Tribunal about the matter. If an applicant decides not to proceed with an application they must notify the Tribunal in writing that they wish to withdraw their request for review.

Does the Application Stop the Decision Taking Effect?

The application for review does not automatically stop the decision being implemented, but the person affected may apply to the AAT to postpone or stay the implementation of the decision. This application should be made on the official form available from the Tribunal (see s 41 of the AAT Act).

Obtaining the Authority's Reasons

If the authority that made the decision did not tell you the facts upon which its decision was based and the reasons for its decision, you may apply to the authority requesting a written statement setting out the facts and reasons, as these may help you identify the grounds for review. The decision-maker must then give you that written material within 28 days.

In certain cases the decision-maker will be entitled not to give reasons for a decision where it is not in the public interest to do so.

Applications for reasons must be in writing.

The 28 day period in which to lodge an application for review then runs from the day on which you receive the authority's reasons, or its refusal to give reasons. Alternatively, you may apply to the Tribunal for review, and you will be given a copy of the reasons.

What Happens Next?

Set out below is a brief overview of the steps that usually occur after an application is lodged.

Filing and serving of relevant documents

After the application for review has been lodged, the Tribunal will ask the authority for a statement of the facts upon which its decision was made and its reasons for the decision.

Also, the authority has to supply you and the Tribunal with every other document in its possession relevant to its decision (see s 37 of the AAT Act). These are commonly called the 'T' documents and must be given to you, and lodged with the Tribunal within 28 days of the authority receiving notice of your application from the Tribunal.

Preliminary conference

After it receives the relevant documents the Tribunal will usually set the matter down for a preliminary conference. The conference is generally scheduled to take place about six weeks after the T documents are served and filed.

The purpose of the conference is to discuss and clarify the issues in dispute (especially any particular disputed facts) and the evidence likely to be presented at hearing. The conference registrar also will explore the possibility of a pre-hearing settlement of the application with the parties.

At the end of the preliminary conference the registrar, if it appears obvious that no resolution to the appeal is possible, will usually set out a timetable by listing a date that the parties need to present a Statement of Facts and Contentions and discuss a likely date for hearing.

Alternative Dispute Resolution

The Administrative Appeals Tribunal Amendment Act 2005 (Cth), which commenced on 16 May 2005, significantly expanded the scope of alternative dispute resolution (ADR) processes available to the Tribunal.

Section 3(1) defines "alternative dispute resolution processes" as including:

• Conferencing
• Mediation
• Neutral evaluation
• Case appraisal
• Conciliation

If, during the preliminary conference, the registrar considers that the matter may be resolved without the need for a hearing, the parties may be directed to engage in ADR, for example, a mediation or a conciliation conference may be arranged. During a mediation or conciliation conference the registrar will explore with both parties whether any common ground exists and whether a settlement can be reached that both parties agree on.

The Tribunal considers that all disputes are potentially suitable for referral to ADR and prefers to resolve matters by this method if at all possible.

The Tribunal may also direct that a 'neutral evaluation' of the matter be conducted. A neutral evaluation involves a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, provides a non binding opinion on the likely outcomes of the matter if it were to go to a hearing. Neutral Evaluation is used when the resolution of the conflict requires an evaluation of both the facts and the law. The opinion is usually issued in the form of a written report which is given to both parties. Reviewing a neutral evaluation allows both parties to become more aware of the pertinent issues in the matter and the strengths or deficiencies in their positions.

Statement of Facts and Contentions

Before hearing (usually at least 14 days before the hearing date) the AAT also requires the parties to lodge a Statement of Facts and Contentions (if the applicant is unrepresented they may not be required to lodge this document unless they wish to). This document, as the name suggests, sets out the relevant facts of the matter and the 'contentions', that is, the arguments (including legal arguments) that are being put forward.

Hearing

Hearings are conducted in public unless the Tribunal directs otherwise; for example, that a directions hearing be held by telephone.

All parties to the hearing are notified well in advance of the hearing date.

The Tribunal has the power to proceed in the absence of a party who has had reasonable notice of the hearing date.

Hearings can be conducted by phone, video conference, or in person and the Tribunal may be made up of a single member or of multiple members.

At the start of a hearing the Tribunal will take the 'T' documents into evidence along with any other additional documents or other evidence that the parties may wish to produce.

Each side then calls witnesses (if there are witnesses involved - often there are not) and takes evidence via examination in chief, followed by cross-examination of the witness by the other side. Where an applicant is unrepresented and there are no other witnesses the Tribunal will often take evidence in chief from them and then invite the Respondent to cross examine.

The proceedings generally conclude, again like court proceedings, with each side making closing submissions to the Tribunal.

The Tribunal may then issue an ex-tempore (on-the-spot verbal) decision immediately or, more commonly, will reserve judgment and deliver a written decision at a later date.

The Tribunal is not strictly bound by the rules of evidence, however evidence will be given more or less weight depending on its source, for example, answers to leading questions or hearsay evidence (whilst allowed) may be given less credibility/weight than evidence that is adduced in line with accepted principles.

What Remedy can the Tribunal Grant?

The AAT has the power to

(1) affirm a decision under review;

(2) vary the decision under review;

(3) set aside the decision under review and make a new decision or compel the authority to make a new decision in accordance with directions given by the Tribunal; or

(4) dismiss the application for review.

For example, the AAT has power to waive a social security debt (in certain limited circumstances).

The AAT is under an obligation to give reasons for its decisions and findings of fact, subject to specified exceptions in the relevant Act. If requested it must give written reasons (see s 43 of the AAT Act).

Costs

The general rule is that parties to a proceeding before the AAT bear their own costs. The AAT has no power under the AAT Act to award costs (apart from witness costs), but does have power to make an order for costs in respect of appeals brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the SRC Act') (see s 67). Also, under the Freedom of Information Act 1982 (Cth) ('the FOI Act'), the AAT may in certain circumstances recommend to the Attorney-General that the Commonwealth pay the costs of the applicant (see s 66 of the FOI Act).

Right of Appeal

There is a right of appeal from the AAT to the Federal Court of Australia.

However the right of appeal is restricted to:

(1) questions of law; and

(2) refusals to grant standing.

AAT contact details - Canberra Registry

Links to the website, contact details and opening hours of the AAT in the ACT are provided at Contacts, Links and Resources.