Commonwealth Administrative Appeals Tribunal (What is the Form of a…
Commonwealth Administrative Appeals Tribunal
S5 of the Administrative Appeals Tribunal Act 1975 established the Cth Admiinistraive Appeals Tribunal (The AAT)
Also State Administrative Tribunals - VCAT
When can someone seek a review by the ATT?
The legislation inder which the decsion has been made must state that the decision can be appealed to the AAT
The applicant must be a person whose interests are affected by the decsion
A reviewable decsion must be made in the first place
The first step and applicant must take is to look at the legislation under which the decison has been made. Legislation may specify that internal review needs to be conducted before external review can be commenced. s25(1) & (4) - must have right of appeal to AAT under enactment
Collector of Cutoms v Brian Lawlor - decision to revoke licence was reviewable as if decisions made under enactment but not authorised by enactment were not reviewable many decisons rrelated to good governemnt would not be revieable.
Step 2: Is the applicant a person whose interests have been affected by the decision?
s27(1) AAT Act must be a person whose interests are affected by the decison
S30(1A) other parties can join if their interests are affected AAT has the exclusive jurisdiction to decide whether it is affected or not s 31(1)
Control Investments v ABC - case against Murdoch buying more media, Labor, Journalists and Justice in Media. All allowed to join - have to analyse objectives of orgaisations and find a strong correlation (can't be too general)
Step 3: Is there a decision to review?
Deinition of decsion is very borad s3(3) of the AAT Act (can nlcude refusing to make a decision_
Director General of Social Services v Hales - overpayment of social security Ms Hales appealed, decision made for her to pay less by AAT, Director General appealed decsion of AA T saying no decision had been made under social secrity act - definition of decison should be broad and flexible
How to apply for review?
s29(1) application must be in writing, prefably use form, statement of reasons as to why the applicant is lodgin the application and must be lodged within the perscribed time (generally 28 days from the date when a decsion is made) s29(2) Must inlcude fee s 29A
Request reasons for the decison
before applying for decsions to be revieewed can write to decison maker to find out reasons for decision s28(1) must be supplied including findings on questions of fact on which the findings were based and must be provided within 28 days of receiving the request
What happens when the application has been lodged with AAT?
AAT notify decsion maker tha there is an application to review s29(11)
Decision maker must provide AAT with all documentation relevant to decsion making, reasons for decison and any relevant evidence s37(1)
may be a preliminary hearing if there are issues that need to be resolved at the early stage i.e. extension of time
parties must attend conference to try and negotiate s34A(1)(a) and mediation if not settled s34A(1)(b)
Can be directions hearing at any time
What is the Form of a Hearing?
can review in absence of parties if have consent s34
little formality and tecnicality as possible s33(1) - user firendly
can hear evidence from witnesses under oath or affirmation s40(1)(a)
Offence for a person to - fail to appear or produc docs after a summons s61 (1) and (3) unless person has reasonable excuse (s61 (2) & (4)
Refuse to answer questions unless reasonable excuse
knowingly give false or misleading evidence
AAT not bound by rules of evidence and can inform itself of any matter it feels is appropriate
generally hearings open to public unless some reason for closed hearing
Pochi and Minister for Immigration and Ethnic Affairs - Mr Pchi to be deported due to conviction and sentence for 2 years imprisonment for supplying marijuana. has to be based upon provable facts and not mere suspicion
Nature of Merits Reviews by AAT
AAT will have powers same as original decision maker s43
Can also take policy into account Drake V Minister for Immigration and Ethnic Affairs AAT can take policy into account if relevant to determine whether correct decision has been made but should not treat as paramount