Académique Documents
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CONTENTS
TODAY..................................................................................................................................................................... 4!
NEXT LECTURE ..................................................................................................................................................... 6!
INTRODUCTION .................................................................................................................................................... 6!
OBJECTIVES OF THIS LECTURE ........................................................................................................................ 8!
A. MERITS REVIEW GENERALLY...................................................................................................................... 9!
1. WHAT IS MERITS REVIEW? ............................................................................................................................ 9!
2. HOW MERITS REVIEW IS APPROACHED IN THIS SUBJECT.................................................................. 10!
3. NATURE AND TYPES OF MERITS REVIEW ............................................................................................... 11!
4. CONSTITUTIONAL RESTRICTIONS ON THE CONFERRAL OF MERITS REVIEW IN AUSTRALIA . 16!
5. MERITS REVIEW TRIBUNALS: A SNAPSHOT.......................................................................................... 18!
B. ADMINISTRATIVE APPEALS TRIBUNAL AND VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ............................................................................................................................................................ 23!
1. POLICY JUSTIFICATIONS FOR MERITS REVIEW BY AAT (EST. 1975) AND VCAT (ESTAB 1984;
1998) ....................................................................................................................................................................... 23!
2. ALTHOUGH NOT A CONSTITUTIONAL RIGHT, MERITS REVIEW IS ANCHORED IN THE
GOVERNMENTAL AND PARLIAMENTARY SYSTEM, ENSURING ITS CONTINUANCE AND
ORDERLY EXPANSION IS ENSURED, AT LEAST WHILE THESE ARRANGEMENTS ARE IN PLACE 27!
3. THE SELECTION OF REVIEWABLE DECISIONS ....................................................................................... 30!
2
4. OUTLINE OF STEPS TO ANSWER PROBLEMS CALLING FOR LEGAL ADVICE ABOUT MERITS
REVIEW ................................................................................................................................................................. 32!
5. DETERMINING WHETHER THE MERITS REVIEW BODY HAS JURISDICTION TO REVIEW THE
DECISION CONCERNED: AAT S 25; VCAT SS 42, 48 (STEP 1 OF MODEL) ............................................... 34!
6. DETERMINING WHETHER THE APPLICANT HAS STANDING: AAT S 27; CF VCAT S 5 (STEP 2)... 42!
7. DETERMINING WHETHER PROCEDURAL REQUIREMENTS WHICH APPLICANTS MUST SATISFY
CAN BE SATISFIED: AAT S 29; VCAT S 67 (STEP 3) ..................................................................................... 43!
8. DETERMINING WHETHER THE DECISION UNDER REVIEW IS THE CORRECT OR PREFERABLE
ONE: AAT S 43(1); VCAT S 51(1) (STEP 4) ...................................................................................................... 45!
9. DETERMINING THE APPROPRIATE REMEDY .......................................................................................... 56!
10. EVALUATION, QUERIES AND CRITICISMS............................................................................................. 61!
APPENDIX: SECTION 43 ORDERS DRAFTING PRECEDENTS ................................................................. 62!
PRECEDENT FOR S 43(1)(A) AFFIRMING DECISION UNDER REVIEW ............................................... 63!
PRECEDENT FOR S 43(1)(B) VARYING DECISION UNDER REVIEW ................................................... 64!
PRECEDENTS FOR S 43(1)(C)(I) SET ASIDE AND SUBSTITUTE............................................................ 68!
PRECEDENTS FOR S 43(1)(C)(II) SET ASIDE AND REMIT ...................................................................... 69!
PRECEDENT FOR S 43(1)(C)(I) AND (II) SET ASIDE, SUBSTITUTE AND REMIT................................ 70!
KEY TO ADDITIONAL REFERENCES .............................................................................................................. 71!
TODAY
Week 8: Merits Review: Part 1: Legal Framework
TODAY!
NEXT LECTURE!
INTRODUCTION!
OBJECTIVES OF THIS LECTURE!
A. MERITS REVIEW GENERALLY!
1. WHAT IS MERITS REVIEW?!
2. HOW MERITS REVIEW IS APPROACHED IN THIS SUBJECT!
3. NATURE AND TYPES OF MERITS REVIEW!
4. CONSTITUTIONAL RESTRICTIONS ON THE CONFERRAL OF MERITS REVIEW IN AUSTRALIA!
5. MERITS REVIEW TRIBUNALS: A SNAPSHOT!
B. ADMINISTRATIVE APPEALS TRIBUNAL AND VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL!
1. POLICY JUSTIFICATIONS FOR MERITS REVIEW BY AAT (EST. 1975) AND VCAT (ESTAB 1984;
1998)!
PRECEDENT FOR S 43(1)(C)(I) AND (II) SET ASIDE, SUBSTITUTE AND REMIT!
KEY TO ADDITIONAL REFERENCES!
NEXT LECTURE
Merits Review: Part 2: Practice
Fact-finding
Ascertaining the law
Applying the law
o Weighing of permissible factors and judgment-making
o Exercising, if appropriate, any discretion.
INTRODUCTION
Where we have tracked so far
Administrative law is pluralistic
Administrative law scholars know that the hallmark of administrative law is pluralism. Not only is it a subject with
6
no single set of disciplinary and normative foundations, public administration is constituted, limited and held to
account by a variety of legal and non-legal forms that are often unique to specific areas of administrative activity.
(Fisher 2008: 325)
1.2 Merits review is not open slather; its confined by the primary
decision-making Act
Speaking of a provision in a merits review Act, Olney J said:
The section contains no warrant for the decision- maker to re-write the Act to achieve what it may consider to be
a more just result than the Act provides for: Collins v Repatriation Commission (1994) 33 ALD 557 at 566 in C&M
9
160.
the main principles of merits review relevant to the giving of a legal advice
11
Note that the legislation required the applicant to state grounds upon which the application is made: s 60(2)(a):
[18]. But the grounds were not limited in relation to disciplinary matters: [17].
The Court undertook a Glazebrook-type assessment of the meaning of review in s 60.
12
o [The requirement for grounds is not inconsistent with a full merits review: [32]]
o Provision for receiving new material, with leave: [34] (very clear indication)
o Duty of Board under s 60(3) to have regard at all times to the public interest and community
confidence in the Police Service and to the Commissioners responsibilities under s 7 would have
limited operation on narrow construction: [37].
The wider context:
o It generally means a comprehensive administrative review: [25]
o Powers of the AAT: [39]
Held: A review under s 60 of the Act is a full review of the merits: [41].
Note: Preliminary decision of the Board was quashed: [42].
is independent of ODM
is variously a first tier and second tier review body in appeal structures
is broadly and usually adversarial in its procedures, with some inquisitorial powers
[67] Accordingly, the courts cannot be entrusted with the unrestricted review of discretions which are not judicial; nor can
the courts be called upon to review administrative decisions on any basis which requires the ultimate decision to be given by
reference to policy or non-legal considerations.
Summarising the report, Cane and McDonald 2012: 209) state that
as a matter of constitutional law, federal courts could not be invested with jurisdiction to review the merits of decisions
that raised non-justiciable issues because such jurisdiction involved the exercise of non-judicial power.
The conferral of innominate powers (adjudicatory functions that may be conferred on either judicial or nonjudicial bodies) is not affected: Cane and McDonald 2012: 209. Examples are the power to make findings of fact
(Cane and McDonald 2012: 209), and the power to interpret the law in the course of adjudication.
Impact on state regimes: Kable v DPP (NSW) (1996) 189 CLR 51 at 79 per
Dawson J
A looser concept of separation of powers applies at the state level: Kable v DPP (NSW) (1996) 189 CLR 51 at 79
per Dawson J:
the New South Wales Constitution inherited the United Kingdom model under which the extent to which a separation of
powers was observed was conventional rather than compelled by any constitutional mandate
As a result, subject to the Kable doctrine, judicial and non-judicial powers may be conferred on both state
courts and state tribunals: Cane and McDonald 2012: 212.
17
Most popular are social security, taxation, workers compensation and veterans benefits: Cane and
McDonald 2nd ed: 217.
Volume of applications: 2010-2011 (AAT Annual Report)
applications: 5,437
Other federal review tribunals
Social Security Appeals Tribunal (SSAT): Social Security (Administration) Act 1999
18
19
5.2 Victoria
Peak body: Victorian Civil and Administrative Tribunal (VCAT)
Establishment:
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Mode of operation
A mixed tribunal: both original jurisdiction (citizen v citizen) and review jurisdiction (citizen v government).
Also called a super or multi-purpose tribunal: Creyke 2012: 19.
40 Jurisdiction of the Tribunal
The Tribunal has 2 types of jurisdiction
(a) original jurisdiction; and
(b) review jurisdiction.
41 What is original jurisdiction?
Original jurisdiction is the jurisdiction of the Tribunal other than its review jurisdiction.
42 What is review jurisdiction?
(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision
made by a decision-maker.
20
Size
It has over a hundred review jurisdictions including freedom of information and travel agents.
Volume- 201011
Cases lodged 86,890
Cases finalised 86,015
Cases pending 12,348
Hearing venues used 95
(However most applications were in the Civil Division - Residential Tenancies: 57,659.)
(Source: VCAT Annual Report 2010-11)
Queensland the Queensland Civil and Administrative Tribunal: Queensland Civil and Administrative
Tribunal Act 2009 (Qld)
South Australia: South Australian Civil and Administrative Tribunal: South Australian Civil and
Administrative Tribunal Act 2013 (SA)
The exception is:
Tasmania administrative appeals division of the Magistrates Court: Magistrates Court (Administrative
Appeals Division) Act 2001 (Tas)
22
which affect the individual citizen in many aspects of his daily life. (Kerr Report 1971: [15])
(2) The Parliamentary system is not appropriate for, and cannot cope with, reviewing decisions
challenged as erroneous: [19]
The individual has no right to bring his complaint before Parliament
It is beyond the capacity of the Parliament . to debate and review all administrative decisions challenged as
erroneous
(3) The existing judicial review system was overly complex.
The Kerr Committee found the existing judicial review system complex.
The grounds for review were limited (to certain errors of law) and the remedies were complicated.
(paras 20, 21) And if the aggrieved person succeeds in his or her action, he is, in effect, in many cases
back where he started with the administrative process to be faced again before the same administrative
officer or body ([20]).
(4) Justice from an ordinary persons point of view requires merits review
The Kerr Committee elaborated why a Rule of Law system was not an adequate basis for realising justice from an
aggrieved persons point of view.
Furthermore, even when all this is done and the role of the courts in the correction of administrative error is put on a
better basis, the more important problem will still remain to be dealt with, namely the question whether there should
be provision in proper cases for an appeal on the merits ([21])
A person aggrieved by a decision of a Commonwealth official or tribunal will generally feel that the decision was
wrong on the facts or merits of the matter. Sometimes there is an appeal on the merits to an administrative tribunal or
24
to the courts, but generally such a person has no way of appealing against a decision on the facts or merits. ([20])
The basic fault of the entire [existing Rule of Law-based] structure is, however, that review cannot as a general rule,
in the absence of special statutory provisions, be obtained on the merits and this is usually what the aggrieved
citizen is seeking. ([58])
How did the Kerr Committee think a merits review system would help achieve a form of justice which would
later be called administrative justice?
it would permit the correction of error or impropriety in the making of administrative decisions
affecting a citizens rights ([354])
it would, in a way that was not possible with a Rule of Law-based system, reconcile basic ideas of
justice, acceptance of the wide and growing power of the administration and efficient and fair exercise
of that power in a democratic society. ([364])
The AAT would build up areas of law which had hitherto lain dormant or had been hidden from
view
[The AAT is an] opportunity to build up a significant body of administrative law and practice of general
application (Enderby 1975: 1188)
25
30
3.3 Decisions which are inherently unsuitable for merits review are:
legislation-like decisions of broad application which are subject to the accountability safeguards that
apply to legislative decisions
decisions that automatically follow from the happening of a set of circumstances.
3.4 The factors that may justify not providing for merits review are in
summary
factors that lie in the nature of the decision, eg
preliminary or procedural decisions
decisions to institute proceedings
decisions allocating a finite resource between competing applicants
policy decisions of a high political content
decisions of a law enforcement nature
factors that lie in the nature of the limited effect of the decision, eg
decisions to delegate a power
recommendations to ultimate decision-makers
factors that lie in the costs of review of the decision, eg
decisions involving extensive inquiry processes
31
decisions which have such limited impact that the costs of review cannot be justified.
33
[Aside for Week 11: If a decision is subject to review, it is one in respect of which a statement of reasons may be
requested by a person who is entitled to make an application for review: s 28 AAT; s 45 VCAT.]
34
5.2 The reviewable decisions are usually singled out in the relevant
primary decision-making legislation by reference to the relevant statutory
power, which means that interpretation of decision is not usually
required
The way in which the availability of merits review must be conferred (by specific statutory conferral), and the
way in which the relevant decisions are normally identified (by reference to the decision and the specific
statutory power) usually results in the determination of whether a merits review body such as the AAT has
jurisdiction being straightforward and non-problematic.
If however an Act departs from the above practice, eg by referring to the relevant decisions globally, such as
decisions under Part IV of the Act, then decision needs to be interpreted. The Bond case may be applied by
tribunal: Re Gallivan Investments Ltd and ASC (1991) 24 ALD 611 (AAT), although the law is not entirely
settled: Pearce (ed) Australian Administrative Law [214A].
(1) Where:
(a) under an enactment, a person has a power to do an act or thing in the exercise of a discretion or otherwise;
(b) there is no enactment that prescribes a period within which the person is required to do or refuse to do the act or
thing;
(c) an enactment provides that application may be made to a prescribed tribunal for the review of decisions made in
the exercise of that power; and
(d) a complaint has been made to the Ombudsman concerning a failure to do the act or thing in the exercise of that
power;
the Ombudsman, after having investigated the complaint, may, if he or she is of the opinion that there has been unreasonable
delay in deciding whether to do the act or thing, grant to the complainant a certificate certifying, that, in the opinion of the
Ombudsman, there has been unreasonable delay in deciding whether to do the act or thing and, if the Ombudsman does so,
the person required or permitted to exercise the power, shall, for the purpose of enabling application to be made under the
enactment referred to in paragraph (c) to the prescribed tribunal concerned, be deemed to have made, on the date on which
the certificate is granted, a decision, in the exercise of that power, not to do the act or thing.
(1A) Where:
(a) under an enactment, a person has a power to do an act or thing in the exercise of a discretion or otherwise;
(b) there is no enactment that prescribes a period within which the person is required to do or refuse to do the act or
thing;
(c) an enactment provides that application may be made to a person other than a prescribed tribunal for the review of
decisions made in the exercise of that power and an enactment also provides that application may be made to a
prescribed tribunal for the review of decisions made by the last-mentioned person upon an application first referred
to in this paragraph; and
(d) a complaint has been made to the Ombudsman concerning a failure to do the act or thing in the exercise of that
power;
36
the Ombudsman, after having investigated the complaint, may, if he or she is of the opinion that there has been unreasonable
delay in deciding whether to do the act or thing, grant to the complainant a certificate certifying that, in the opinion of the
Ombudsman, there has been unreasonable delay in deciding whether to do the act or thing and, if the Ombudsman does so,
the person required or permitted to exercise the power, shall, for the purpose of enabling application to be made to the
person other than a prescribed tribunal referred to in paragraph (c) under the enactment first referred to in that paragraph, be
deemed to have made, on the date on which the certificate is granted, a decision, in the exercise of that power, not to do the
act or thing.
(2) Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment
to make decisions, subsections (1) and (1A) apply as if the board, committee or other body were a person empowered to
make those decisions.
(3) In this section, prescribed tribunal means:
(a) the Administrative Appeals Tribunal; or
(b) any other tribunal that is declared by the regulations to be a prescribed tribunal for the purposes of this section.
37
Issue
Could the AAT review a decision which was invalid?
Rival contentions of s 25 re decision
Narrow (Collector) construction: it meant a decision which was within the powers conferred by the enactment.
Wide (respondent) construction: decision meant a decision in fact a decision in purported exercise of powers
conferred by enactment.
Argument of Collector
Provision: Under s 25 AAT Act the AAT has the power to review a decision made in the exercise of powers
conferred by an enactment. Literally, that meant a decision which was within the powers conferred by the
enactment.
Wider context: Further, if the decision was void, there was no decision to review (See further lecture Week 3
on consequences of legal error).
Held by Federal Court:
decision meant a decision in fact a decision in purported exercise of powers conferred by enactment.
The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to
entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under
an enactment. p 344 per Bowen CJ
the necessary conclusion is that those decisions are reviewable which are made by an administrator in
purported or assumed pursuance of the relevant statutory provision per Smithers J at 373.
38
5.5 But the AAT has no independent discretion in the sense that it does
not have any more powers than the repository. If the primary decisionmaker lacks the power to act, the AAT is restricted to setting aside the
decision: Re SLE D&J7 270; D&J6 272-3
Legislation:
Industry Research and Development Incentives Act 1976 (Cth) 7(1)
If the Technical Standing Committee is satisfied that an employee of a company (not being a research organisation) who does
39
not have a professional qualification has skills, ability and experience that fit him to carry out work by way of industrial
research and development for the company, the Committee may recommend to the Board that the employee be approved as
an approved employee of the company for the purpose of the definition of professional or technical research and
development work in sub-section 4(1), and the Board may then approve the employee as such an approved employee.
Facts
In Re SLE the Board failed to approve an employee as an approved employee. No recommendation had been
made by the Committee.
Issue:
Could the AAT approve the employee when the original decision-maker (the Board) could only act upon
receiving a positive recommendation from a committee?
The AAT held no.
[27] The power of the board under s 7(1) to approve an employee is, as we have said, a power exercisable only after
a positive recommendation has been made to the board by the TSC or a committee as the case may be. That is an
essential prerequisite to the exercise of the power. The same limitation must apply to the power exercisable by the
tribunal under s 41 of the Act, by virtue of ss 25(4) and 43(1) of the AAT Act, in respect of the present application
for review of a decision of the Board made under s 7(1).
[28] Thus, while the tribunal has power to review the original decision, despite its invalidity, it cannot, in the
absence of an appropriate positive recommendation, affirm, vary, or make a decision in substitution for, that original
decision.
Reasons:
Few reasons were given. Re Baran was followed in Re Ibarra and Secretary, Dept of Social Security
(1991) 22 ALD 313 at 318 presided over by the President of the Tribunal, OConnor J.
Comment:
41
At face value, following Re SLE, the decision-maker (the delegate) had no power to act at all. How
then did the AAT have review power?
The above cases may be explained this way: in these cases the AAT has all the powers of the
repository. The case book suggests this explanation: D&J7 270; D&J6 272.
Therefore, a defective delegation is no obstacle to the AAT having full powers of review. See also
Fletcher, below.
42
6.2 Section 27(1) is essentially the special interest test: see authorities in
Week 7 topic.
6.3 Section 27(2) is novel and does not apply in the courts
[But has been recommended for the AD(JR) Act by the Administrative Review Council in Report No 50, Federal
Judicial Review in Australia (2012).]
written: s 29(1)(a)
Exceptions:
small taxation matters (low fee)
reasons review
FOI
needy
AAT certifies successful
Decision-maker must supply Tribunal with reasons for the decision: s 37(1)
A directions hearing might be held at any time regarding procedural issues: s 33(1A). It can be used to
exchange information, and clarify grounds on which application will be resisted, issues and contentions
The parties may be directed to attend a conference to attempt to negotiate an agreement between the
parties to settle the matter: s 34A(1)(a). The Tribunal has power to give effect to agreements without
hearing or completing hearings: s 42C.
The parties may be directed to attend mediation if agreement at the conference is not reached: s
34A(1)(b)
44
If agreement hasnt been reached, the matter will be listed for a hearing. Hearings are generally in
public: s 35.
A preliminary hearing might be held if threshold issues in dispute need to be resolved, eg jurisdiction or
an extension of time to make the application.
requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the
Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks
appropriate.
Decision-maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her
best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
The AAT can act inquisitorially under s 33(1)(c) provided it still observes the rules of natural
justice: Re Mourtizikoglou and Secretary and Dept of Social Security (1991) 23 ALD 249
Issue of invalid pension entitlement where payment of compensation to husband Whether special
circumstances
Social worker report that family home poorly maintained
In the course of writing reasons the presiding member decided that she required further evidence to
enable her to decide on which side of the line the applicants house fell.
She caused a letter to be sent by the Registrar of the AAT to the social worker
The further report led to a change of decision by the Department which the AAT agreed to.
(15) In writing these reasons I considered whether it could be said that it is special circumstances for a family
in receipt of social security payments to live in a house with a leaking roof and broken windows. I was
satisfied that there are some standards of housing which are so poor that to live in such housing would be
special circumstances, such as to justify the exercise of the discretion under s 156 of the Act. On the other
hand the system of social security does not guarantee, to recipients of benefits, accommodation up to a certain
standard. I considered that a line must be drawn between accommodation so poor that it is exceptional, and
would render it unjust to apply the preclusion period as provided for in s 153 of the Act, and accommodation
46
which requires improvement, but is unfortunately not exceptional or unusual amongst those who are in receipt
of benefits under the Act.
(16) I decided that I required further evidence to enable me to decide on which side of this line Mr and Mrs
Mourtitzikoglou's house fell. I would have been assisted by evidence as to the cost of repairing the roof and
windows. Mrs Mourtitzikoglou said that she had no idea what it would cost to repair the broken tiles on the
roof or the broken glass or flywire screens, and that she had not obtained quotations for repair of the roof or
windows as she does not have any money to pay for repairs.
(17) I considered that, standing in the shoes of the decision-maker I could not decide whether or not special
circumstances existed and if so what part, if any, of the compensation payment should be excluded without
further evidence. Using my powers under s 33(1) of the Administrative Appeals Tribunal Act 1975 (the Act), I
therefore caused a letter to be sent by the acting district registrar to the parties in the following terms
VCAT: s 51(1)
In exercising its review jurisdiction in respect of a decision, the Tribunal has all the functions of the decision maker
The Tribunal reviews the decision under review, not just simply the reasons for that decision or
the case made by a party
It is the actual conclusion (decision) which the tribunal is authorised and required to review: L&Y 3.205 (271)
47
It is not just the reasons for the decision which are under review, however important to the Tribunals deliberations those
reasons may be.: Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141 in C&M 137
Full merits review is not simply a review of the case made by a party: W396/01 v Minister for Immigration
[2002] FCA 455 at para 35 (Full Ct):
The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case
which it might reasonably raise, notwithstanding that such a case might not have been contended for by the
applicant (Full Ct said of RRT)
The Tribunal stands in the shoes of the primary decision-maker in terms of the power that is to
be exercised
The tribunal was required to stand in the shoes of the decision- maker (the delegate) and arrive at its own decision
[citing Drake]: Esber v Commonwealth (1992) 174 CLR 430 at 440; D&J7 272; D&J6 275; D&J5 274
The limitations and conditions imposed on the original decision-maker apply equally to the
review body:
the AAT does not have larger powers or discretions than the original decision-maker. Accordingly, it will in the
ordinary course be constrained by the limitations and conditions imposed upon that decision-maker. (L&Y 3.200
(270))
48
The Tribunal is to determine the correct or preferable decision on the material before the
Tribunal
The leading statement in Re Drake 1: D&J7 280; D&J6 282; D&J5 276 (589)
The question for the determination of the Tribunal is not whether the decision which the decision maker made was
the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether
the decision was the correct or preferable one on the material before the Tribunal.
The AAT has power to limit the scope of review to an extent: s 25(4)
Source: Pearce (ed), Australian Administrative Law at [259A]
Tribunal may determine scope of review
(4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and
the issues that it considers.
This provision does not give the Tribunal carte blanche to diminish effective review or the rights of natural
justice:
Those powers could not be used to justify orders precluding effective review of decisions falling within the Tribunals
proper review jurisdiction. But the amplitude of the language is certainly apt to permit the Tribunal to limit the scope of its
review function to a consideration of matters that are truly material to the determination of the review proceedings (Re
Sleiman and CALDB (2007) 98 ALD 170 at 174)
(1) A ruling that an allegation of breach of natural justice by the decision-maker are not be considered: Re
Murdaca and ASIC (2010) 118 ALD 2012 at 210. (the current hearing before the Tribunal would provide an
adequate opportunity for all matters to be raised)
(2) The Tribunal suggested that an FOI appeal involving a large number of documents be dealt with by reviewing
a representative sample of documents (but applicant objected and Tribunal did not use its power): Re Matthews
and ASIC (2010) 118 ALD 23 at 70-1
What the Tribunal cannot do: it cannot act as a primary administrator where that amounts to
undertaking a task different in kind from that presented to the primary decision-maker: Re
Tradigrain Australia Pty Ltd and Export Development Grants Board (1984) 6 ALD 442 at 445, 447.
Facts: [from headnote]:
The applicant applied for and was paid a grant under the Export Expansion Grants Act 1978 (Cth) in respect of
the years 1980-81 and 1981-82. It subsequently sought reconsideration of this grant by the respondent Board,
claiming that certain export earnings of G Ltd should be taken into account under s 9 of the Act.
The Board reconsidered its decision but refused the applicants claim.
The applicant then appealed to the Tribunal.
At the preliminary stage of the hearing the Board asked the Tribunal to re-examine the issue of the original grants
as it was now of the opinion that no grant should have been paid to the applicant as it did not qualify under the
Act. It requested the Tribunal to set aside the decisions made by the Board to make the grants and decide that the
Board should recover from the applicant an amount equal to the grants.
50
Issue
Was the Tribunal empowered to conduct the review requested?
Held
No, it was not: [21].
The Tribunal was being requested to act as a primary administrator: [17], which it was not: [17].
The request was for a task different in kind to that undertaken by the primary administrator: [11].
1 December 1988: 1971 Act repealed; replaced by 1988 Act (no lump sum available)
28 June 1989: AAT review: AAT extends time for application and decides the merits on 1971 Act:
[1989] AATA 467
Issue before the High Court on appeal
Was relevant law for AAT the law at date of review (28 June 1989), or the earlier law at date of
application to the AAT (15 September 1988)?
Held by High Court on appeal (by majority), it was the earlier law:
the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the tribunal determined
pursuant to Pt V of the 1971 Act. Once the appellant lodged an application to the tribunal to review the
delegates decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal.:
440; D&J7 272, 273; D&J6 275
Reasoning
Applicant had more than a mere hope or expectation; the case involved more than a mere power to take
advantage of an enactment.
The applicant had take a step by which a specific and substantive right had accrued to him.
he has a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his
52
8.4 Relevant evidential material: Shi v MARA [2008] HCA 31; D&J7 274;
D&J6 277; Re Issa and Australian Community Pharmacy Authority [2012]
AATA 631; 128 ALD 631
In Shi the High Court confirmed long-held understandings that the Tribunal is not ordinarily
confined to material that was before the primary decision-maker, while pointing out that
exceptionally a statute may confine the Tribunals attention to the state of evidence at a
particular time
Per Kirby J:
the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of
events that had occurred up to the time of its decision per Kirby J at [43].
Nevertheless, the particular nature of the decision in question may sometimes, exceptionally, confine the
Tribunals attention to the state of the evidence as at a particular time. Per Kirby J at [46]
Question: Could the AAT, when conducting a review, receive from the applicant material which was not lodged
with the approval application when made to the Authority, or later requested by the Authority?
Answer. It could, but only if the Tribunal so requests.
There was no express statutory provision either requiring or authorizing the Tribunal to determine the
matter in accordance with government or ministerial policy: 590.
Therefore, in the absence of such an express limitation, there was none.
However the Court left open the question of the weight to be accorded government policy. That was a matter for
the Tribunal itself to determine: 590-1.
The weight to be given to government policy as a matter of practice: Re Drake D&J7 281; D&J6
283
In Re Drake (Brennan J) the AAT decided the weight it would be accorded:
the Tribunal will ordinarily apply [a Ministerial policy] in reviewing the decision, unless the policy is unlawful or
unless its application tends to produce an unjust decision in the circumstances of the particular case. (Re Drake in
D&J7 287; D&J6 289; D&J5 283 (645))
Tribunal has no political legitimacy: not linked into the chain of responsibility as the Minister is in the
Westminster system of govt; furthermore expected to be apolitical; and cannot deny Parliament its ability to
supervise policy: 644
Tribunal has no supporting bureaucracy: 644.
55
8.6 The tribunals own decisions are de facto precedents: Downes 2006
although no res judicata or other estoppel and no formal doctrine of precedent exists in administrative law,
members of the Administrative Appeals Tribunal will follow earlier decisions of the Tribunal unless they are
satisfied that the earlier decision is manifestly wrong. This is particularly so when the same issue arises in
proceedings between the same parties. Effectively there is a res judicata in the Administrative Appeals Tribunal as
well as issue estoppel. Effectively there is a doctrine of precedent. (Downes 2006: [48])
(b)
(c)
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the
Tribunal.
9.3 Power to substitute: the AAT can exercise a power or decision option
available to the original decision maker even though it was not actually
exercised by that decision maker; Fletcher v FCT (1988) 19 FCR 442 at 452
Recall the standing in the shoes metaphor.
The [administrative appeals] tribunal was required to stand in the shoes of the decision-maker (the delegate) and
arrive at its own decision: Esber v Commonwealth (1992) 174 CLR 430 at 440; D&J7 272; D&J6 275; D&J5 274.
This has led to the realisation that powers not exercised but available to the primary decision-maker are available
also to the review body:
57
As a matter of principle, it must be correct that the powers and discretions referred to by s 43(1) are the powers
and discretions vested in the original decision maker for the purposes of making the decision under review.
(Fletcher v FCT (1988) 19 FCR 442 at 452 in AS 89 p 32)
the AATs powers are not confined to those that were in fact exercised by the primary decision maker but rather ,
the AAT is entitled to exercise any power and discretion which the decision maker was entitled to exercise in
relation to the decision under review, ASIC v Donald [2002] FCA 1174 at [20], drawing on Fletcher.
[The ability] to choose freely between all the decision-making options available to the original decision-maker and
exercise all the discretions conferred on that decision-maker. (Downes 2006: [16])
Illustrations:
Australian Securities and Investments v Donald [2002] FCA 1174 : ASIC imposed a banning order on
representative of dealer or investment adviser. Held: AAT was acting within its powers when it
substituted a lesser banning order and an undertaking.
Wharton and ASIC [2002] AATA 443: AAT held it was not restricted to the same banning sanction as
ASIC, notwithstanding that ASIC had described its decision as pursuant to s 829(a) and 830 the ASIC
prohibits you from doing an act as a representative of a securities dealer. or an investment adviser.
Why? How can the AATs decision have legal effect even though it is not a decision of a court
and enforceable in the manner of court decisions? See AAT Act
43 (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the
decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of
59
appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation
of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect,
on and from the day on which the decision under review has or had effect.
60
61
Do they provide a normative effect? The justification for providing a normative effect is weakened by
the large proportion of applications (79% in 2010-11) that are resolved without the delivery of a
decision by the AAT following a hearing: Cane and McDonald 2012: 218.
Is the position of the AAT in the constitutional structure clear? The AAT occupies an uncomfortable
constitutional position:
although the AAT is thought of as an external review body it is also said (freely paraphrasing the AAT Act) to
stand in the shoes of the decision-maker. The AAT appears to be in the acutely uncomfortable position of being at
one and the same time part, but not part, of the executive. Cane and McDonald 2012: 215.
62
63
Taleb and Secretary, Department of Social Services [2014] AATA 657 (10
September 2014)
DECISION
The decision under review is varied so as to determine that the payments Mr Taleb received in July 2009,
October 2010 and October 2011 should be treated, for the purposes of Part 3.14 of the SSA 1991, as not having
been made.
64
(iii) For the period ended 31 March 2001 the applicants GST net amount be reduced to $37,906.00;
(iv) For the period ended 30 June 2001 the applicants GST net amount be reduced to $35,141.00;
(v) For the period ended 30 September 2001 the applicants GST net amount be reduced to $13,529.00;
(vi) For the period ended 31 December 2001 the applicants GST net amount be reduced to $31,328.00;
(vii) For the period ended 31 March 2002 the applicants GST net amount be reduced to $17,737.00;
(viii) For the period ended 30 June 2002 the applicants GST net amount be reduced to $31,328.00;
(ix) For the period ended 30 September 2002 the applicants GST net amount be reduced to $562.00;
(x) For the period ended 31 December 2002 the applicants GST net amount be reduced to $19,854.00;
(xi) For the period ended 31 March 2003 the applicants GST net amount be reduced to ($562.00);
(xii) For the period ended 30 June 2003 the applicants GST net amount be reduced to $19,854.00;
(xiii) For the period ended 31 July 2003 the applicants GST net amount be reduced to ($4,857);
(xiv) For the period ended 31 August 2003 the applicants GST net amount be reduced to $10,493;
(xv) For the period ended 30 September 2003 the applicants GST net amount be reduced to $10,493.00;
(xvi) For the period ended 31 October 2003 the applicants GST net amount be reduced to $10,493;
(xvii) For the period ended 30 November 2003 the applicants GST net amount be reduced to $10,493;
(xviii) For the period ended 31 December 2003 the applicants GST net amount be reduced to $10,493.00;
(xix) For the period ended 31 January 2004 the applicants GST net amount be reduced to ($2,893.00);
(xx) For the period ended 29 February 2004 the applicants GST net amount be reduced to $10,493.00;
(xxi) For the period ended 31 March 2004 the applicants GST net amount be reduced to $10,493.00;
(xxii) For the period ended 30 April 2004 the applicants GST net amount be reduced to $10,493.00;
(xxiii) For the period ended 31 May 2004 the applicants GST net amount be reduced to $10,493.00;
(xxiv) For the period ended 30 June 2004 the applicants GST net amount be reduced to $10,493.00.
(b) With respect to the penalty imposed by the respondent pursuant to section 284-75 of Schedule 1 to the
Taxation Administration Act 1953 (TAA) for a GST shortfall:
(i) For the period ended 30 September 2000 the penalty is nil;
(ii) For the period ended 31 December 2000 the penalty is nil;
66
(iii) For the period ended 31 March 2001 the penalty is nil;
(iv) For the period ended 30 June 2001 the penalty is nil;
(v) For the period ended 30 September 2001 the penalty is nil;
(vi) For the period ended 31 December 2001 the penalty is nil;
(vii) For the period ended 31 March 2002 the penalty is nil;
(viii) For the period ended 30 June 2002 the penalty is reduced to nil;
(ix) For the period ended 30 September 2002 the penalty is reduced to nil;
(x) For the period ended 31 December 2002 the penalty is reduced to nil;
(xi) For the period ended 31 March 2003 the penalty is reduced to nil;
(xii) For the period ended 30 June 2003 the penalty is reduced to nil;
(xiii) For the period ended 31 July 2003 the penalty is reduced to nil;
(xiv) For the period ended 31 August 2003 the penalty is reduced to nil;
(xv) For the period ended 30 September 2003 the penalty is reduced to nil;
(xvi) For the period ended 31 October 2003 the penalty is reduced to nil;
(xvii) For the period ended 30 November 2003 the penalty is reduced to nil;
(xviii) For the period ended 31 December 2003 the penalty is reduced to nil;
(xix) For the period ended 31 January 2004 the penalty is reduced to nil;
(xx) For the period ended 29 February 2004 the penalty is reduced to nil;
(xxi) For the period ended 31 March 2004 the penalty is reduced to nil;
(xxii) For the period ended 30 April 2004 the penalty is reduced to nil;
(xxiii) For the period ended 31 May 2004 the penalty is reduced to nil;
(xxiv) For the period ended 30 June 2004 the penalty is reduced to nil.
(c) The penalty imposed by the respondent pursuant to s.284-220 of Schedule 1 to the TAA be reduced to nil.
67
69
Re Chandra and Minister for Immigration and Citizenship [2010] AATA 992
Decision
The decision under review is set aside, and the matter remitted to the Minster for reconsideration with the
direction that Mr Chandra is not ineligible to become an Australian citizen by reason of s 21(2)(h) of the
70
Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing, Oxford, 2008) 325
Groves and Boughey 2014 = Matthew Groves and Janina Boughey, Administrative Law in the Australian
Environment in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context
(Cambridge, 2014) 3
Kerr Report 1971 = Commonwealth Administrative Review Committee, Report (1971) [reprinted in Robin
Creyke and John McMillan (eds), The Making of Commonwealth Administrative Law: the Kerr, Bland and
Ellicott Committee Reports (ANU, 1996)
Mason 1989 = Sir Anthony Mason, Administrative Review: The Experience of the First Twelve Years
(1989) 18 Federal Law Review 122
McMillan 1998a = J McMillan (ed), The AAT Twenty Years Forward: Passing a Milestone in
Commonwealth Administrative Review (AIAL, 1998)
McMillan 1998b = John McMillan, Merits Review and the AAT: A Concept Develops in J McMillan
(ed), The AAT Twenty Years Forward: Passing a Milestone in Commonwealth Administrative Review
(AIAL, 1998) 32 (online version available via library catalogue)
Withnall and Evans 2010 = Sarah Withnall and Michelle Evans, Administrative Law (LexisNexis Study
Guide Series, 2010)
72