The Executive 1

Accountability: Judicial Review of Administration Action

Integrity Institutions
Reading: Saunders
Innovation in public institutional design has gathered pace, supplementing the traditional
institutions of government in order to deal more effectively with individual grievances, investigate
claims of maladministration, enhance transparency, combat corruption, protect electoral democracy
and regulate key services in the public interestpg. !"
#he concept of integrity has been defined for this purpose as including but going beyond, legality
to re$uire %fidelity to public purpose &and' the application of public values. (g. !"
#hree dimensions of )ustralian arrangements deserve particular mention because of their
implications for the operation of the e*ecutive branch.
. System for Review: (articularly as it operates at the +ommonwealth level.
, Integrated review system comprising -udicial review, tribunal review, an ombudsman and
ultimately freedom of information under the supervision of the advisory )dministrative Review
+ouncil.
.. Freedom of Information (FOI): Freedom of Information Act in //. 0+th1 which is broadly
comparable in all )ustralian -urisdictions.
, #he legislation re$uires agencies to make certain categories of information publicly available2
and also creates right of access to public information, sub-ect to a range of e*emptions, which include
cabinet documents. (g. !3
, #he ob-ects of the legislation have been linked to representative democracy2 many previously
e*empt categories of documents have been reclassified %conditionally4 e*empt, re$uiring release
unless access would be contrary to public interest. (g. !3
". Range of Anti-Corruption Bodies esta!is"ed at State #eve!:
, 5stablishment of bodies of this kind initially was a response to concern about corruption in
several states in the /67s, which in 8ueensland and 9estern )ustralia was e*posed by ma-or public
in$uiries. (g. !:

)ccording to the three way categorisation of public functions that is dominant in )ustralia, all of
the new institutions are located within the e*ecutive branch in the sense that they are not part of either
the legislation or the -udiciary2
#he Independent +ommission )gainst +orruption 0I+)+1 depends on the e*ecutive branch for its
budget allocation. #he difficulty of creating an effective separation of powers within the e*ecutive
branch is an old problem for constitutional law that has not yet been resolved, despite signs of minor
progress. (g. !:
Merits Review
Austra!ian Administrative Appea!s $riuna!
Reading: ;ownes <at/=
%urpose
> ;ue to the government,decision making on citi?ens in the early /@7s, being so e*tensive and
pervasive it appeared that some mechanism wider than -udicial review was re$uired. (g. .
> Administrative &ecisions ('udicia! Review) Act /!! codified the grounds of -udicial review,
and more importantly that )ct imposed a statutory obligation upon decision makers to give written
reasons for their decisions &as' without reasons it was difficult to challenge decisions because there
was usually nothing upon which to base a challenge. (g. "
> If the 5*ecutive is not to e*ercise -udicial power, perhaps courts should not e*ercise
administrative power. Aowever that line of demarcation&' is not so clear.

Significance
> &#ribunal' has a broad -urisdiction to review government decisions generally, including
decisions of +abinet <inisters, anywhere outside )ustralia 0including civil law countries as well as
common law countries1. #he #ribunal4s -urisdiction does not e*tend to decisions with substantial
government policy content but it does include operational policy the #ribunal was not bound by
government policy. (g. :
> #he essence of the success of the general tribunal in )ustralia as $uoted by )ttorney Beneral
Aon. (hillip Ruddock <( is that it has improved the $uality of Bovernment decision,making
generally being the backbencher4s friend, saving them time from consuming interceding with
government agencies. (g. !
> #he reason for the large -urisdiction of the #ribunal, the reason for its success is largely because
it is a general tribunal. (g. 6

Content
> #he )dministrative )ppeals #ribunal receives 6, 777 applications each year, and has a
-urisdiction conferred by more than 377 acts of the +ommonwealth (arliament or legislative
instruments made under those act, and as such the #ribunal covers a huge range of e*ecutive decision,
making. (g. @
> #he bulk -urisdictions in the #ribunal are ta*ation, workers4 compensation, social security and
veterans4 entitlements. (g. !

%rocess
> #he need for the )dministrative )ppeals #ribunal to be ready for anything re$uires it to be
fle*ible. In addition, to the (resident who must be a -udge of the Cederal +ourt of )ustralia, there are
other members who are -udges. (g. 6
> 8uality and consistency in &its' decisions enhance the prospects of compromise. (g /
> )ccordingly, while the #ribunal is informal in its procedures it goes about its task in a court,like
manner. (g. /
> Sometimes public servants whose decisions have been overruled might be sceptical, but
e*perience demonstrates that value of having something pointed out in person with the opportunity to
$uery and analyse. It seems that the process of combining informality with a careful process giving
both sides every opportunity to elucidate&.' its point of view is another aspect of the )dministrative
)ppeals #ribunal, which adds to its reputation. (g. /

Dmbudsman&"'
(rimarily from reading:
Dmbudsman4s at the +ommonwealth level, the Inspector Beneral of Intelligence and Security
overseas and can receive complaints about the agencies that constitute the )ustralian intelligence
+ommunity comparable state e*amples are the role of the ES9 Dmbudsman in overseeing
policing, supplemented by the work of the Independent +ommission )gainst +orruption and the
(olice Integrity +ommission. (g. .7

Structure
Fegislations establishing and concerning the rules of Dmbudsman4s in )ustralia was
the Omudsman Act ()*+ 0+th1 and Omudsman Act ()*, 0ES91. 9ith one mark of their stability
being that all officers established in the /!7s still e*ist in the same form and with the same core
function &today'. (g, .7"
#he consolidation of the Dmbudsman has also been accompanied by some diversification. #he
+ommonwealth Dmbudsman for e*ample discharges the separately titled roles of the ;efence Corce,
Immigration, Faw 5nforcement, #a*ation, (ostal Industry, Dverseas students, and Eorfolk Island
Dmbudsman. (g. .7"
Dver three decades, the office of the Dmbudsman has been developed and refined in )ustralia
becoming a distinctive institution no settled model, with the framework and concept being
relatively stable, however still evolving. (g. .7"
Breater attention needs to be paid to the accountability mechanisms in place to scrutinise the
performance by ombudsmen of these functions 0listed below1. Dtherwise there is a real risk that the
very e*istence of the ombudsman will legitimise public,decision making without providing
accountability or administrative -ustice for the individual. (g. .7:
;efined in the legislatures as Gan independent officer of (arliamentH Omudsman Act ()*- 0Iic1
+omplaints can be made orally or in writing 0s!1 although most state statutes re$uire the complaint
to be in writing. Importantly there is no fee to make a complaint. (g. .762

Ro!e
In Sweden, the word Dmbudsman means %representative4 or %agent4 one has also suggested that
the office combines the -udicial functions of -udge or magistrate and the administrative functions of
in$uisitor. (g. .73
)lthough traditionally, ombudsmen were confined to investigating matters of administrative
in-ustice, recent development have seen ombudsman,ac$uiring -urisdiction over matters unrelated to
administration 0such as ES9 Dmbudsman4s power to investigate allegations of child abuse. (g. .7:
#he common focus of all Dmbudsman offices is on maladministration in government. Some, in
addition, have a more e*plicit function to protect human rights, and others to investigate corruption in
government. (g. .7@
#he core function of the Dmbudsman is to investigate, either on receipt of a complaint or on the
Dmbudsman4s own motion pg. .7!
#he Dmbudsman also has discretion not to investigate where for e*ample the complainant became
aware of the issue more than . months previously, making investigation unnecessary or un-ustifiable
having regard to all circumstances in ss@, @). (g. .7!2
#he Dmbudsman is not compellable to provide information or documents in other proceedings 0s
": 0611 a person who complains to the Dmbudsman in good faith is protected against civil
proceedings s "!2 pg. .76
#wo core functions: investigate complaints from members of the public and to undertake own
motion investigations as per s : of the +ommonwealth )ct.

%owers
Dmbudsmen are increasingly also being given -urisdiction to monitor or scrutini?e the performance
of public functions by other agencies, sometimes without having power to investigate complaints in
those areas. (g. .7:
%u!ic Sector: Dmbudman e*tends to the departments of the public service and to most e*ecutive
and statutory authorities that have been constituted for a public purpose 0s.:12 in ES9, #as and E#
complaints against police and in other states as an independent agency to investigate police
complaints: 8EF;: +rime and <isconduct +ommission pg. .7!
%rivate Sector: e*tends to the actions of non,government bodies that provide goods and services to
the public under a contract with a government agency ss. "03=12
#he Dmbudsman cannot investigate action taken by a minister, by a court or tribunal, or concerning
the employment of a person in a public service s:. #here are however some e*ceptions such as
+ommonwealth Dmbudsmans4 ability to investigate complaints concerning the current or previous
service of a member of the ;efence Corce 0s /+12 and there is a specific e*clusion in each state
statute for action taken by a person acting as a legal adviser pg. .7!2
Dmbudsman4s in$uiries are conducted informally and by way of preliminary in$uiries 0s !)1 the
guiding principle is that investigations are conducted in private 0s61 and that information is not
released publicly unless the Dmbudsman determines that it is in the public interest to do so 0":)1.
#he Dmbudsman does not have determinative powers to alter an administrative decision if the
Dmbudsman is however of the opinion that an agency has not taken appropriate action with respect to
a report or recommendation, the Dmbudsman can report to the (< and thereafter to parliament. (g.
.76
> #he +ommonwealth Dmbudsman )ct spells out the criteria on which an Dmbudsman can base
a report or recommendation to an agency in summary: contrary to law2 unreasonable, un-ust,
oppressive or improperly discriminatory2 in accordance with law or administrative practice that itself
was unreasonable un-ust, oppressive or improperly discriminatory. (g. .76

Significance
#he more recent proliferation of ombudsman in the private sphere is also testimony to the success
of public ombudsmen, and to the attractiveness of the ombudsman style of review to both
complainants and the organisations under review. (g. .7:

Statutory Framewor.
Dmbudsman appointed by the BB for a term of up to ! years and can only be removed by a
resolution of both Aouses of (arliament pg. .7!2

)ccountability: Eon Judicial methods , Responsible Bovernment

&icey has developed a Gset of rulesH for which in the strictest sense are laws. In addition to these
laws, he has effectively made a distinction between Glaw of constitutionH or Gconstitutional lawH and
Gconventions of the constitutionH or Gconstitutional moralityH2

#aw of Constitution: enacted by statute or derived from the mass of custom, tradition or -udge made
ma*ims known as the common law and are enforced by the courts. (g. 7:

Conventions of t"e Constitution: Knderstandings, habits or practices which, though they may
regulate the conduct of the several members of the sovereign power, are not in reality laws at all since
they are not enforced by the courts. (g. 7:
> Eature
, =eing based on custom and precedent, conventions are usually unwritten rules pg. 7@
, Curthermore to enforce them &conventions' would mean to administer some formal sanction
when they are breached. =ut the legal system from which they are distinct does not contemplate
formal sanctions for their breach. (g. 7!2
, #he foregoing may perhaps be summari?ed in an e$uation: constitutional conventions plus
con,stitutional law e$ual the constitution of the country. (g. 7!
, +onventions also underpin the day,to,day operation of the )ustralian +onstitution, especially
as it relates to the e*ecutive arm of government. 5.g. +onstitution does not mention the office or
powers of the (rime <inister, these being left to convention. (g. 7!
, #hey Gfill in the gapsH which are not written in the +onstitution2

> (urpose
, #he main purpose of constitutional conventions is to ensure that the legal framework of the
constitution will be operated in accordance with the prevailing constitutional values or principles of
the period. (g 7@2
, 5nforces the element of responsible government

> Significance
, )lthough they are not directly enforceable, they can be -udicially noticed and may influence
the interpretation of statutes for e*ample through a presumption that parliament would not intend a
breach of convention pg. 7:2
, #he main reason perhaps why the courts cannot enforce conventional rules is that they
generally conflict with the legal rules which they postulate and the courts are bound to enforce the
legal rules and it should be borne in mind that while they are not laws, some conventions may be
more important than some laws (g. 7!
, #hey can change, as long as they stick to the principles and concepts that are noted in the
+onstitution.

#he ma-or constitutional conventions are discussed in /ug"es0 which also presents some interesting
facts about conventions, in his article Conventions: &icey Revisited1 Starting (g. 7!
G) constitution does not work itself2 it has to be worked by men the constitutional conventions
are the rules elaborated for affecting that co,operation men have to work the old law in order to
satisfy the new needs.H (g. 7!
Ae then goes on to note three characteristics of conventions:
. Conventions e2pand and render wor.a!e t"e !etter of t"e !aw
, #hey appear, change and disappear, reflecting new circumstances: the are often uncertain in
content. Dne of the issues with discussing conventions within the )ustralian conte*t is that a lot of the
commentary derives from =ritain where the absence of a written constitution has given them a more
prominent role2
, Dn the other hand, a richer constitutional history makes =ritish e*perience and writing hereon
an essential source of ideas for any work on the place of constitutional conventions in )ustralia.

.. $"e f!ow of aut"ority esta!is"ed y conventions reverses t"e forma! a!!ocation 3of power4 y t"e
roya! prerogative and t"e !etter of t"e written constitution5
, #hose conventions, which concern the key points of linkage, are the ones, which warrant the
label of %fundamental4 to distinguish them from others, which for e*ample concern intercameral
relations within the parliament without having implications for the flow of their authority.

". 6Fundamenta!7 Conventions are more certain to !ead to an u!timate reac" of t"e !aw
, #hey themselves are vague, and no one can say to what e*tent the will of (arliament or the
nation re$uires their rigid observance2 they themselves obtain only a varying and indefinite amount of
obedience. (g. 7/
<any mechanisms for keeping the e*ecutive in check, including: controls imposed upon the e*ecutive
itself such as the Codes of Conduct1 Dther forms include laws such as Freedom of Information Act
()89 0+th1 as well as scrutiny provided by officers appointed under statute such as through the
Dmbudsman 0Omudsman Act ()*+ 0+th11. In addition, decision,making by ministers and their
departments is also sub-ect to review whether it be by tribunal, or by a court.

#he 9hitlam +ase was a very interesting case, as it ties all these political conventions together, and
focuses largely on the power of the Senate. Showcases the difficulty to ascertain an accurate reality
due to the written and unwritten conventions.

Responsi!e :overnment3,4
, S. @3 of the +onstitution states that Gno <inister of the State shall hold the office for longer
than " months unless they become a senator or a member of the Aouse of Representatives2
, In this way it can be said that the ministers are therefore kept accountable to the people, and
are limited by their power due to their short time frame.
&' &emarcation: #he action of fi*ing the boundary or limit of something.
&.' ;!ucidate: make something clearLe*plain.
&"' Omudsman: =eing a creation of parliaments and government, the role of the ombudsman is to
investigate complaints from members of the public about government administrative action, and to
conduct Dmbudsman initiated en$uiries into administrative problems.
&3' Responsi!e :overnment: refers to a series of institutions and the political relations between them
which interlock to provide both a system of government and a distinctive mode of organising and
e*ercising political power at the disposal of the state as per 5my M Aughes pg. :.
ee!": The Executive # $ %
Institutions Cunctions 5*ecutive (owers
<onarchy
+abinet M <inisters
Bovernment departments
)gencies M tribunals
<aking policies
)dministering laws
Statutory
(rerogative
Eationhood
&onstitution
s , legislative power is vested in parliament which consists of the 8ueen, a Senate, and
Aouse of Reps
s. , the BB is appointed by 8ueen as her representative who shall have such powers and
functions as her ma-esty may assign sub-ect to the +onstitution
s@ , 5*ecutive (ower is vested in 8ueen e*ercisable by BB e*tending to
e*ecutionLmaintenance of +onstitution and laws of +ommonwealth 0source of prerogative
and nationhood powers1.
s@. , 5*ecutive +ouncil advises BB and members are chosen by BB and hold office at BBs
pleasure
s@" , BB in +ouncil means BB acting with advice of +ouncil 0acts only advice of the
e*ecutive1
s@3 , BB may appoint <inisters to administer departments of State 0must be members of
either house of (arliament1
s@! , provides for public servants
&onventions
#he 9estminster system of responsible government
(< is the leader of the party that holds the ma-ority in the Fower Aouse 0FA1
Bovernment chosen from among the elected members of the party which had the ma-ority in
the FA.
#he government remained in power as long as they have the confidence of the FA
Individual ministers are accountable to parliament for the conduct of their departments
0individual ministerial responsibility1
Senate would not use its powers to challenge ma-or legislation or to re-ect supply 0budget1
and destroy the Bovernment of the day.
Senators will be replace by someone from the same party upon death or retirement 0this
convention was included in the constitution following the constitutional amendment in /!! N
ensured that casual vacancies in the senate must be filled by a person from the same party1
B,B is to act only on the advice of the (<
Res'onsible (overnment
5lements of parliament holding e*ecutive to account:
<inisterial responsibility 0in practice it4s about gaining the confidence of the (<1
8uestions to <inisters e.g. during $uestion time.
(roduction of documents 0by lobbying the upper house to demand for production of docs1
5*amination of witnesses
Senate committee in$uiries 0generally dominated by the upper house1
=oth houses of parliament have role in scrutinising the e*ecutive.
#hey can demand production of documents from the e*ecutive e*cept for those documents that reveal
+abinet deliberations.
Egan v Willis )1**"+ 1*, &-R .#.
/0 u''er house has 'ower to call for non1exem't docs and sus'end a minister for refusing to
com'ly
#reasurer <ichael 5gan was called upon by the Kpper Aouse 0KA1 to produce certain
documents
Ae refused to produce the documents.
Ae was charged and found guilty of contempt of parliament.
Ae was subse$uently suspended from the council and forcefully removed into the street
5gan claims he wasn4t in contempt and that his removal was a trespass
2eld:
#respass had been committed.
#he Kpper Aouse has the power to call for documents and suspend <inister for limited time
if heLshe refuses to produce a document that was not sub-ect to +abinet privilege.
#his power is necessary for the performance of legislative M scrutiny functions 0constitutional
functions1.
Egan v Chadwick )1***+
All documents3 even 'rivileged3 must be 'roduced to the 4''er 2ouse u'on re5uest exce't
those documents revealing &abinet deliberations
5gan suspended and removed again for failing to produce further documents ordered by the
Kpper Aouse.
Ae claimed the documents were protected by legal professional privilege and public interest
immunity.
+laims his removal on the streets constituted assault.
2eld:
#hat it is reasonably necessary for the upper house to have access to documents even if they
are sub-ect to privilege 0legal professional, commercial confidentiality M public interest1 to
effectively perform its functions.
#he house can claim any docs
It is up to house to decide public interest.
#he only e*ception is when the re$uested documents directly or indirectly reveal +abinet
deliberations.
Accountability
CDI legislation imposes duty to disclose policies which impact on public
Judicial review of the legality of administrative decisions
Scrutiny by appellate tribunals 0))#1
Dmbudsman may criticise government policies as unreasonable, un-ust or discriminatory
67I -egislation: Access to government documents
. ty'es of rights under 67I Act:
Right to know information regarding govt functions, operations, contracts, internal rules and
policies that affect members of public
5very person has legally enforceable right to access government docs 0capable of visual form1
unless they are e*empted documents
Right of access to personal records to bring about amendment if incomplete, incorrect, out of
date, misleading
Rights to merits review of decisions denying access to information
8rocess for gaining access to information under the 67I Act:
Faw reforms have long encourage the disclosure of government information without need for
formal re$uest
)gencies must assist applicant I; relevant documents
Cees M charges no longer a hurdle to gaining access 0+th abolished application fees for
personal info and reduce fees for media and EBDs while ES9 has not increased the
prescribed fees1
;ecision on whether access is granted or not must be made within a set time limit.
If decision is not communicated within the set time limit, then access is deemed to have been
refused and the applicant4s fees should be refunded. #he applicant also has an option to
appeal the decision not toLdeemed decision not to grant access
If access is granted, the info is to be made publicly available 0e*cept personal M business
info1
Reverse 67I:
If an applicant is re$uesting information pertaining to a "rd person 0personal, commercial,
research info1, the Bov. has a duty to consult that person before they grant access. #he govt
cannot veto a refusal by a person for their information to be shared with "
rd
party but they can
appeal that decision.
Refusal of access:
(ov9 Agencies may refuse access if
It4s too great a diversion of resources 0courts have limited this to narrow circumstances, not
easy to claim1
#hey can refuse to confirm or deny the e*istence of info relating to security or intelligence
0due to public interest1
Info sought from wholly e*empt agencies such as )SID
Info are in e*empt documents
Exem't documents
:ivided into # categories:
5*empt N Fegislation presumes to be contrary to public interest to disclose, including secrecy
laws, cabinet info, legal professional privilege, law enforcement M public safety
+onditionally e*empt N all other types of docs are sub-ect to single public interest test, access
re$uired unless contrary to public interest, prescribed considerations
Exam'les of exem't categories:
&abinet documents:
)re e*empted if they are defined as such 0+lassification as +abinet doc can be challenged1
#here is no public interest test applied when considering whether to grant access or not
+onclusive presumption against disclosure.
:efinitions:
;&abinet info< includes:
)n official record of +abinet 0a notice of a meeting may be e*empt1
) doc prepared for dominant purpose of submission to +abinet
) doc prepared later that would reveal +abinet deliberations.
:ocuments are not &abinet info if:
#hey are 7 years old
Solely consists of factual info.
7mbudsman = Maladministration
Independent body authorised to investigate maladministration. Ceatures include:
)ccessible, ine*pensive, speedy
5*tensive investigative powers 0Royal +ommission1
+an initiate own investigation or respond to complaints
Eo standing re$uirement for complainant
+an only make recommendations, no hard sanctions, not adversarial
7mbudsman )7mbudsman Act 1*>? )&th++
6unction $ Jurisdiction:
#o investigate actions pertaining to matters of administration by a ;epartment or prescribed
authority due to a complaint or by own motion 0s:1
%(rescribed authority4 can e*tend to private sector bodies performing public function 0s"1
Scope of maladministration include:
o =reach of laws
o )buse of discretion
o mistake of law or fact
o unreasonable, un-ust or discriminatory decision
o failing to provide reasons
Dmbudsman does not have -urisdiction and therefore cannot investigate:
o <inisterial action 0;ept action beforeLafter <inisterial decision is not e*cluded from
-urisdiction1
o 0b1 -udicial or coronial action
o 0c1 (arliamentary proceedings
o 0d1 action involving employment in public service or prescribed authority 0s:0.11
Aave discretion not to investigate complaints if not warranted 0s@1, if e$ually effective
alternative remedy e*ists
&onduct of investigation:
+omplaints may be oral or in writing: s!01
Dmbudsman must advise authority that it is being investigated: s601
Investigation may be conducted in private: s60.1
5*tensive investigative powers 0Royal +ommission1, can compel people to provide info M
answer $uestions 0s/1, only e*ception if )B issues certificate in matters that can pre-udice
security or +abinet info: s/0"1
7utcome $ re'orting:
#he Dmbudsman cannot substitute decisions or enforce findings.
It can only make recommendations 0e.g. reasons for decision to be provided2 decision to be
reconsider, cancel or vary decisions2 amend law or practice2 or other appropriate action 0s:1.
Dmbudsman report findings to ;ept or authority 0s:1
If appropriate action not taken, then may write to (< 0s@1 or report to (arliament 0s!1
<ust provide complainant with particulars of result, but no obligation to provide copy of
recommendations unless authority fails to take action in response to recommendations 0s.1
Judicial Review of Administrative actions
0e'aration of 'owers doctrine rigidly u'held by 2igh &ourt:
+ourts must not decide merits, can only focus on legality
+ourts cannot substitute its decision for that of primary decision maker
Aaving found administrator acted unlawfully, court must hand matter back to the government
to handle properly
-egality of administrative action may be challenged in:
StateL#erritory Supreme +ourts for stateLterritory admin action
Aigh +ourt, Cederal +ourt or Cederal <agistrates +ourt for commonwealth admin action
0tate 0u'reme &ourts:
Aave inherent -urisdiction to review legality of admin action.
Some other states have -udicial review acts 0not ES91. In ES9 inherent -urisdiction is
codified in /0 0u'reme &ourt Act s#% N all -urisdiction necessary for admin of -ustice in
ES9.
8rerogative remedies )focus on @urisdictional error+:
<andamus 0compel govt or courtLtribunal to perform duty correctly1
(rohibition 0order to lower courtLtribunal to cease proceedings1
+ertiorari 0order setting aside a decision of courtLtribunal1
2igh &ourt:
Aas appellate -urisdiction 0from +th, StateL#erritory +ourts1 and original -urisdiction if
%+onstitutional writ4 sought against +th officers, incl mandamus, prohibition or in-unction:
&onstitution ss >,)iii3 v+ +ertiorari not mentioned in s!:0v1 but still available.
+onstitutional -urisdiction cannot be abrogated by ordinary statute
+ommonwealth officers includes -udicial M non,-udicial, but not private service providers
Administrative A''eals Tribunal Act 1*>,
))# must affirm, vary or set aside decision under review and make a decision in substitution
or remit reconsideration with recommendations: s3"01.
))# determines correctLpreferable decision on material before it
))# is not bound by findings of original decision,maker
(eneral 'oints regarding AAT:
5*ercises powers M discretions of original decision,maker, not greater
;ecision is deemed to be that of the primary decision,maker
+annot enforce own decisions, must be taken to a court of law
Fimited discretion to refuse to review even if frivolous or ve*atious and if agreement is
reached bLw parties
<ay stay a decision pending outcome of ))# proceedings
Eo general onus of proof 0unless per legislation such as CDI )ct1
Fegislation conferring -urisdiction may vary ))#4s powers
AAT membershi':
Aeaded by (resident 0Cederal +ourt -udge1
(residential members include -udges from Cederal courts and legal practitioners 0:yrsO1
Senior members and members include legal practitioners and persons with special knowledge
or skill relevant to duties
Tribunal hearings:
Eon,adversarial representation allowed
Bovernment as the respondent has positive duty to assist #ribunal
<ust pursue review that is fair, cheap and $uick 0s .)1 including );R options 0but no
statutory re$uirement forcing participation in );R1
Eot bound by rules of evidence, may inform self in any appropriate manner 0s""1
Dpen hearings should be held, but in special circumstances can have closed hearings, restrict
publication of evidence and limit parties access to evidence 0s":1
<ust ensure procedural fairness as far as possible, including access to documents 0s"/1
A''eals:
Right of appeal to Ced +ourt on a $uestion of law
/0 Administrative :ecisions Tribunal
Administrative :ecisions Tribunal Act 1**> )/0+:
);# to make correct M preferable decision on material before it
Aas powers of primary decision,maker and not more
+an affirm, vary or set aside decision and make decision in substitution or remit for
reconsideration with recommendations
Role of government 'olicy:
);# must give effect to valid policy that has been certified by a minister as government
policy, unless the policy produces un-ust decision in the circumstances of the case
Jurisdiction:
CDI, privacy, community services, revenue, legal services, e$ual opportunity, retail leases
Membershi':
(resident is ;istrict +ourt -udge