Administrative Appeals Tribunal - Commonwealth

Contributed by Margaret Jordan and current to 1 September 2005

Any person who is unhappy with an administrative decision made by an agency of the Commonwealth should first read the Act or Regulations under which the decision was made. The Act or Regulations will usually outline any right to appeal given to people affected by the decision.

This may include a right of appeal to the Administrative Appeals Tribunal (AAT). The AAT is an independent forum to which appeals can be taken against a wide range of Commonwealth government decisions, and the grounds for appeal have been laid down in wide terms.

The AAT maintains a website which provides access to information about the Tribunal and its procedures as well as access to governing legislation and the list of matters over which the AAT has jurisdiction: see www.aat.gov.au .

DECISIONS THE AAT MAY REVIEW

The AAT only has power to review a decision where an Act of the Commonwealth Parliament has given it power, or where the right is set out in a schedule to the AAT Act. The list is constantly hanging. An up to date list is available on the AAT website: www.aat.gov.au.

The reach of the AAT is not complete. The decision of a number of important Commonwealth tribunals may not be appealed to the AAT. These include the Security Appeals Tribunal (established by the ASIO Act 1979 (Cth)) and the Disciplinary Appeals Board under the Public Service Act 1999 (Cth), each of which has been established since the AAT came into existence.

The word decision is given an extended meaning under the Act. A failure to make a decision within the prescribed period will amount to a decision.

Social security or Austudy decisions

A person who wishes to appeal against a decision by Centrelink must first appeal to the Social Security Appeals Tribunal and then if necessary to the AAT. The SSAT maintains a website – www.ssat.gov.au – which provides helpful information to those considering an appeal to that tribunal. See also SOCIAL SECURITY ENTITLEMENTS.

Veterans Affairs’ decisions

A veteran who wishes to appeal against a decision by the Department of Veterans Affairs must first appeal to the Veterans Review Board and then if necessary to the AAT. The VRB maintains a website – www.vrb.gov.au – which provides helpful information to those considering an appeal to that Board including links to legislation and case law.

WHO MAY APPLY

Those persons whose interests are affected by the decision, or their representatives, may apply to the AAT for a review of the decision. A broad approach is taken by the Tribunal to the issue as to whether a person’s interests are affected. Community groups and public interest organisations are given a wide right of access to the AAT. 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.

REASONS FOR THE DECISION

Before making an application to the AAT, the person may apply to the authority which made the decision requesting a written statement setting out the facts upon which the decision was made and the reasons for the decision. The decision-maker must then provide that material within 28 days (see above under ‘ADJR Act’). In most cases it is better simply to make an application to the AAT for review because the decision-maker’s reasons will be supplied automatically to the Tribunal and to the applicant (see below).

INDEPENDENT DECISION-MAKING

The AAT has demonstrated that it will live up to its charter of independent decision-making. It will look at each case afresh and will act without any assumption that the original decision was correct.

PROCEDURE

Applications to the Tribunal have to be in writing and may be on a special form which is available from the AAT or can be downloaded from its website: www.aat.gov.au. The application should be lodged within a prescribed time (which varies according to the legislation relevant to the decision being appealed but is no less than 28 days) from the date on which the decision was made known to the applicant, but the time may be extended by the tribunal. Application fees of $606 apply in some matters, but not in appeals relating to social security, veterans affairs or decisions made by Comcare. Where the applicant is impecunious, or is the holder of a health care card, there is provision to waive the fee.

After the application for review has been lodged, the AAT will contact the respondent authority and ask it for a statement of facts and reasons for the decision. In addition it has to supply the Tribunal with every other document in its possession which is relevant to the decision. This set of papers, including the statement of reasons and index (section 37 or T documents) is also provided to the applicant.

The AAT reviews the decision on the merits, aiming to reach the correct or preferable decision.

NO AUTOMATIC STAY OF THE DECISION

The application for review does not operate as an automatic stay (or hold) on the implementation of the decision being reviewed, but the person affected may apply to the AAT for such a stay. This application should be made on the appropriate form.

PRELIMINARY CONFERENCES

The Tribunal will usually list at least one preliminary conference to afford the parties the opportunity of discussing the decision under review and any further information available which may be taken into account. If there is agreement, the Tribunal may make a decision in the terms of the agreement and will not proceed to a hearing. The usual procedures and timetable are set out in a practice direction which is provided to the applicant when the application is lodged.

When the matter cannot be resolved prior to a hearing, then the parties will be given at least 21 days’ notice 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. The Tribunal is under a duty to act as quickly as possible and with as little formality as possible.

About 75% of all matters are resolved prior to going to a hearing. The Section 37 documents (or T documents) are normally received into evidence, and supplemented by evidence from witnesses called by the parties, including evidence by telephone or video conference where appropriate.

Where required, an interpreter will be provided at the Tribunal’s expense for conferences and hearings.

REMEDIES

The AAT has the power to:

• affirm the decision under review;
• vary the decision under review; or
• set aside the decision under review and make a new decision or compel the agency to make a new decision in accordance with directions given by the Tribunal.

The AAT is under an obligation to give reasons for its decisions and findings of fact. If requested to do so it must reduce those reasons to writing. Each party to the proceedings is entitled to a copy of the reasons.

RIGHT OF APPEAL

There is a right of appeal from the AAT to the Federal Court of Australia which is restricted to:

• a question of law; or
• a decision by the AAT refusing or allowing a person to be a party to a proceeding on the ground that the person’s interests are not affected by the decision under review.