Wk 8 (Merits Frame)-2 Copy

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LAW3ADN

PRINCIPLES OF ADMINISTRATIVE LAW2014

LECTURE WEEK 8

Merits Review: Part 1: Legal Framework

Topic Notes Advanced Reading

By Dr Jeffrey Barnes


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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 ADMINISTRATIVETRIBUNAL ............................................................................................................................................................ 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 THEGOVERNMENTAL AND PARLIAMENTARY SYSTEM, ENSURING ITS CONTINUANCE ANDORDERLY EXPANSION IS ENSURED, AT LEAST WHILE THESE ARRANGEMENTS ARE IN PLACE 27

3. THE SELECTION OF REVIEWABLE DECISIONS ....................................................................................... 30


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4. OUTLINE OF STEPS TO ANSWER PROBLEMS CALLING FOR LEGAL ADVICE ABOUT MERITSREVIEW ................................................................................................................................................................. 32

5. DETERMINING WHETHER THE MERITS REVIEW BODY HAS JURISDICTION TO REVIEW THEDECISION 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 SATISFYCAN BE SATISFIED: AAT S 29; VCAT S 67 (STEP 3) ..................................................................................... 43

8. DETERMINING WHETHER THE DECISION UNDER REVIEW IS THE CORRECT OR PREFERABLEONE: 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


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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 ADMINISTRATIVETRIBUNAL

1. POLICY JUSTIFICATIONS FOR MERITS REVIEW BY AAT (EST. 1975) AND VCAT (ESTAB 1984;1998)


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2. ALTHOUGH NOT A CONSTITUTIONAL RIGHT, MERITS REVIEW IS ANCHORED IN THEGOVERNMENTAL AND PARLIAMENTARY SYSTEM, ENSURING ITS MAINTENANCE ANDEXPANSION FOR THE TIME BEING

3. THE SELECTION OF REVIEWABLE DECISIONS

4. OUTLINE OF STEPS TO GIVE ANSWER PROBLEMS CALLING FOR LEGAL ADVICE ABOUTMERITS REVIEW

5. DETERMINING WHETHER THE MERITS REVIEW BODY HAS JURISDICTION TO REVIEW THEDECISION CONCERNED: AAT S 25; VCAT SS 42, 48 (STEP 1 OF MODEL)

6. DETERMINING WHETHER THE APPLICANT HAS STANDING: AAT S 27; CF VCAT S 5 (STEP 2)

7. DETERMINING WHETHER PROCEDURAL REQUIREMENTS WHICH APPLICANTS MUST SATISFYCAN BE SATISFIED: AAT S 29; VCAT S 67 (STEP 3)

8. DETERMINING WHETHER THE DECISION UNDER REVIEW IS THE CORRECT OR PREFERABLEONE: AAT S 43(1); VCAT S 51(1) (STEP 4)

9. DETERMINING THE APPROPRIATE REMEDY

10. EVALUATION, QUERIES AND CRITICISMS

APPENDIX: SECTION 43 ORDERS DRAFTING PRECEDENTS

PRECEDENT FOR S 43(1)(A) AFFIRMING DECISION UNDER REVIEW

PRECEDENT FOR S 43(1)(B) VARYING DECISION UNDER REVIEW

PRECEDENTS FOR S 43(1)(C)(I) SET ASIDE AND SUBSTITUTE

PRECEDENTS FOR S 43(1)(C)(II) SET ASIDE AND REMIT


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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 pluralisticAdministrative law scholars know that the hallmark of administrative law is pluralism. Not only is it a subject with


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no single set of disciplinary and normative foundations, public administration is constituted, limited and held toaccount by a variety of legal and non-legal forms that are often unique to specific areas of administrative activity.(Fisher 2008: 325)

Merits review is distinctive and important[M]erits review ... is a large part of administrative law in Australia (L&Y 3.05 (222)

By reason of its breadth and depth, it can be argued that merits review is a more significant mechanism than judicialreview for holding government accountable. (Cane and McDonald 246)

And what are these commentators referring to?

a turning point in Australian legal history (McMillan 1998b: 54)

a bold innovation by the Federal Government for which there was no precedent elsewhere in the common law world. (Hallcited in McMillan 1998b: 32)

Of all the elements introduced in the 1970s the ??? was the most innovative and, accordingly, the most controversial(Mason 1989: 126)

The ??? is not simply an administrative institution, nor is it simply a legal institution. It is in fact both, and as such occupiesa unique place in the Australian system of government and law. (???, cited in McMillan 1998b: 55)

What is unique or different about merits review when compared with judicial review?

Who does it - We are in the executive branch of government. But they are still a legal body. Jurisdiction merits review bodies do not have a universal jurisdiction.

Applications are free of technicality.


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Grounds - there are no legal grounds required.

Handling statute law - The ability to handle previously unfamiliar statute law is even more importantwith merits review since the whole of a statutory power (facts, law and discretion) has to be exercised.

Standing standing rules exist but are liberalised for organisations

Remedies - merits review bodies stand in the shoes of the executive rather than simply correct error.There is no free- standing discretion to refuse relief.

Although merits review appears simpler (and in many respects it is) students should bear in mind that handlingthe whole of a statutory power in context is a new challenge.

tribunals and their staff are there to do different things from the courts, and in different ways, but with equalindependence. In many respects, it is a more difficult task. (Sir Andrew Leggatt, Tribunals for Users One System, OneService: Report of the Review of Tribunals (2001) n 120 [1.14], cited in Creyke 2012: 31.

OBJECTIVES OF THIS LECTURE

(1) Students can recall the 5 main conditions for obtaining a favourable decision following merits review by theAAT or VCAT. (Students are NOT to conflate merits review simply with the right to seek such review.)

(2) Students can compare each of these conditions to the comparable conditions applying to the obtaining of a judicial review remedy.


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A. MERITS REVIEW GENERALLY

1. WHAT IS MERITS REVIEW?

1.1 Definitions[The Tribunal] could review all aspects of a decision made by government the merits function (Creyke 2012: 20)

At its broadest it would entail review across the whole gamut of facts, law, discretion and policy; permitconsideration of information not available to the original decision-maker; and allow a substitution of a new decision.(L&Y 3.15 (224))

The tribunal [is] required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision:

Esber v Commonwealth D&J7 272; D&J6 275; D&J5 274 (440).[The ability] to choose freely between all the decision-making options available to the original decision-maker andexercise all the discretions conferred on that decision-maker. (Downes 2006: [16])

the administrative law equivalent of a retrial where the matter is fully reconsidered with evidence produced andwitnesses called (L&Y 3.195 (268))

1.2 Merits review is not open slather; its confined by the primarydecision-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 bea more just result than the Act provides for: Collins v Repatriation Commission (1994) 33 ALD 557 at 566 in C&M


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160.

They are legally confined:

[W]hile merits review bodies may be novel and ad hoc in their legal construction, their powers are by no meansnon-legal. These [state] courts and tribunals do not operate outside the law; rather, they are legal constructionsdeploying or adapting conventional legal processes. (Fisher 2008: 347)

2. HOW MERITS REVIEW IS APPROACHED IN THIS SUBJECT

(1) We concentrate on peak, generalist review bodies the AAT and VCAT.

(2) We focus on

a) in Week 8:

i. the main principles of merits review relevant to the giving of a legal adviceii. the drafting of Tribunal decisions

b) in Week 9, we use case studies to examine the practice of merits review in more depth and across these processes:

o Fact-finding

o Ascertaining the law

o

Applying the law! Weighing of permissible factors and judgment-making! Exercising, if appropriate, any discretion.


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3. NATURE AND TYPES OF MERITS REVIEW

3.1 Merits review is a species of appeal

What is an appeal?

an application or proceeding for review by a higher tribunal: Macquarie Dictionary

Appeals are a form of litigious process: Turnbull v NSW Medical Board (1976) 2 NSWLR 281, cited inAldrich [2000] QCA 501.

It is statutory in origin:

An appeal is not a common law remedy. It requires the creation by statute of an appellate jurisdiction and

the powers necessary for its exercise [6] . There was, at common law, no jurisdiction to entertain appeals byconvicted persons or by the Crown against conviction or sentence. Lacey v Attorney-General of Qld [2011]HCA 10 at [8]

3.2 Determining the scope of an appeal often requires statutoryinterpretation: Gadon v Police Review Board [2014] TASSC 23

Each appeal regime is different in some way. Some aspects may be clear, others may require interpretation.

Sometimes even the basic nature of the review needs to be ascertained.


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Example: Gadon v Police Review Board [2014] TASSC 23.

Facts:

Commissioner of Police terminated the appointment of a constable of police. The officer appealed to Police

Review Tribunal. Tribunal made a preliminary ruling that the nature of the review it was to carry out was not anunlimited merits review, but a review which required the applicant to demonstrate error on the part of theCommissioner: [2].

Issue:

What was the scope of the review by the Police Review Board under the Police Service Act 2003 (Tas)?

Legislation: Police Service Act 2003 (Tas)

"60 Application for review relating to disciplinary matters, &c (1) A police officer of or below the rank of inspector, other than a special constable, (in this Division

referred to as 'the applicant') may apply to the Police Review Board for a review if he or she is aggrieved by anydecision, determination, order or recommendation made by the Commissioner in respect of

(a) ; or(b) the termination of the appointment of the police officer; or".

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.


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Rival contentions of s 60(1)

Narrow construction: the construction advocated by the Board: the nature of the review it was to carry out wasnot an unlimited merits review, but a review which required the applicant to demonstrate error on the part of theCommissioner: [2]

Wide construction: the construction advocated by the applicant: review means a full review of the merits: [27] as per practice of the AAT. That is, determine the correct or preferable one on the material before the Board.

Arguments

Factors favouring the narrow construction:

Act:

o Requirement for grounds: [32]

o Act: the considerable discretion reposed in the Commissioner: [38]. But regarded by the Court asnot of any real moment: [39].

Factors favouring the wide construction:

The provision:

o Review is not expressly limited: [29]

The Act:

o Board members do not have to have legal qualifications: [30]

o Act makes no provision for record of what took place in relation to Commissioners decisions. TheCommissioner is under no obligation to give reasons: [31].


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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 communityconfidence 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].

3.3 Types of merits review schemes in practice

They can vary according to:

(1) Where the body is located: eg reconsideration by ODM v appeal to another person or body

(2) Independence: internal review v external review

(3) Number of rungs of merits review within the merits review body: one or two (two includes a level of

internal appeal)(4) Place in overall appeal structure: (whether other merits review bodies deciding the same matter)

(5) Business or jurisdiction: whether specialist or having a number of areas of administration


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(6) Procedures: broadly adversarial or regularly inquisitorial

(7) Scope of review of facts and the law (See Builders Licensing Board v Sperway Constructions (Sydney)Pty Ltd (1976) 135 CLR 616 per Mason J at 621-2)

Appeals in the narrow or strict sense (need error of law or clearly wrong finding of fact)

Appeals by way of rehearing (on the basis of evidence at first instance, with power to admitfurther evidence)

Appeals involving a hearing de novo (the matter is hear afresh and decision is given on theevidence presented at that hearing)

Appeals on a question of law only as in s 44 AAT Act, s 148 VCAT Act [which is akin to judicialreview]

(8) Scope to review discretion: same as primary decision-maker, or a more limited review eg duty to affirm if

satisfied the decision was fair and reasonable in the circumstances(9) Ultimate powers: recommendatory or determinative.

3.4 Application of criteria to Administrative Appeals Tribunal (AAT) andVictorian Civil and Administrative Tribunal (VCAT) (review jurisdiction)

These entail appeals to a body which-

is independent of ODM

is independent of the primary decision-makers organisation (external body)

has one internal rung


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is variously a first tier and second tier review body in appeal structures

has a wide (but not universal) jurisdiction

is broadly and usually adversarial in its procedures, with some inquisitorial powers

determines appeals on a de novo basis

has the same powers as the primary decision-maker

and has determinative powers in the main.

VCAT has some judicial-type powers in addition.

4. CONSTITUTIONAL RESTRICTIONS ON THE CONFERRAL OFMERITS REVIEW IN AUSTRALIA

4.1 Impact on federal regime: R v Kirby; Ex parte Boilermakers Society ofAustralia (1956) 94 CLR 254

In the Boilermakers case, R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 the Highheld that non-judicial power could not be conferred on federal courts.

See the landmark Kerr Committee Report, which after referring to Boilermakers said:

[61] the effect of which is to preclude the High Court or any Federal court from exercising any administrative functionwhich is not incidental to the exercise of judicial power According to this interpretation, courts may be entrusted onlywith those functions in the field of administrative review which are strictly judicial (in the sense that they involve theexercise of the judicial power of the Commonwealth) or are incidental to those functions.


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[67] Accordingly, the courts cannot be entrusted with the unrestricted review of discretions which are not judicial; nor canthe courts be called upon to review administrative decisions on any basis which requires the ultimate decision to be given byreference 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 decisionsthat raised non-justiciable issues because such jurisdiction involved the exercise of non-judicial power.

More recently Groves and Boughey repeat the orthodoxy:

the AAT was created to perform a task placed beyond the reach of the courts by the Boilermakers doctrine theexercise of administrative power (Groves and Boughey 2014: 16)

The conferral of innominate powers (adjudicatory functions that may be conferred on either judicial or non- judicial 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 perDawson 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 mandateAs a result, subject to the Kable doctrine, judicial and non-judicial powers may be conferred on both statecourts and state tribunals: Cane and McDonald 2012: 212.


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5. MERITS REVIEW TRIBUNALS: A SNAPSHOT

5.1 Federal

Peak body: Administrative Appeals Tribunal (AAT)

Establishment: AAT Act 1975 (Cth)

Size: over 400 jurisdictions

Its wide jurisdiction includes decisions relating to aviation, bankruptcy, Commonwealth employees compensation,corporations, customs and excise, environmental protection, freedom of information, health and aged care, heritage

protection, higher education, immigration and citizenship, income support, industry, insurance and superannuation,national security, primary industries, professional qualifications, social security (pensions), taxation, War Veterans pensions and many other areas. (Downes 2006: [31])

Most popular are social security, taxation, workers compensation and veterans benefits: Cane andMcDonald 2 nd 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


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Veterans Review Board (VRB): Veterans Entitlements Act 1986

Migration Review Tribunal (MRB): Migration Act 1958

Refugee Review Tribunal (RRT): Migration Act 1958

Proposed merger of Commonwealth Tribunals - A Mega AAT?

Attorney-Generals Department:

http://www.ag.gov.au/LegalSystem/AdministrativeLaw/Pages/Commonwealthtribunalreform.aspx

On 13 May 2014, the Attorney-General announced the governments intention to streamline and simplify Australiasexternal merits review system.

From 1 July 2015, key Commonwealth external merits review agencies will be amalgamated. This includes theAdministrative Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal, Social Security Appeals

Tribunal and the Classification Review Board.

Merits review of Freedom of Information (FOI) matters, currently undertaken by the Office of the Australian InformationCommissioner, will be transferred to the Administrative Appeals Tribunal from 1 January 2015.

The merger will provide an accessible one stop shop for external merits review and will ensure that users of the tribunalshave a review option that is fair, just, economical, informal and quick.

It is anticipated that legislation will be introduced to implement the reform before the end of 2014. Consultation with keystakeholders is underway.


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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 decisionmade by a decision-maker.


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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)

5.3 Other States and Territories

Most now have civil and administrative tribunals like VCAT:

Australian Capital Territory the ACT Civil and Administrative Tribunal: the ACT Civil andAdministrative Tribunal Act 2008 (ACT) (incorporating the Administrative Appeals Tribunal of theACT

New South Wales the Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013

Western Australia the State Administrative Tribunal: the State Administrative Tribunal Act 2004 (WA)


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Queensland the Queensland Civil and Administrative Tribunal: Queensland Civil and AdministrativeTribunal Act 2009 (Qld)

South Australia: South Australian Civil and Administrative Tribunal: South Australian Civil andAdministrative Tribunal Act 2013 (SA)

The exception is:Tasmania administrative appeals division of the Magistrates Court: Magistrates Court (Administrative

Appeals Division) Act 2001 (Tas)

5.4 Significance of merits review in context of decision making as a whole

Australian Law Reform Commission, Managing Justice Report 1997-98 analysis of social security decisions

36 million reviewable decisions

less than 0.2% disputed by way of merits review:

43,074 internal reviews

9,214 applications to SSAT [first tier]

1735 applications concerning social welfare to AAT [second tier].

(A further 33 social security related applications in the Fed Ct: appeals on a question of law)


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B. ADMINISTRATIVE APPEALS TRIBUNAL AND VICTORIAN CIVILAND ADMINISTRATIVE TRIBUNAL

1. POLICY JUSTIFICATIONS FOR MERITS REVIEW BY AAT (EST.1975) AND VCAT (ESTAB 1984; 1998)

1.1 The landmark report of the English Franks Committee onAdministrative Tribunals and Inquiries (1957) argued that tribunals werepart of the legal system:

tribunals should be regarded as machinery for adjudication rather than as part of the machinery of administration. (cited inCane and McDonald 2012: 210)

1.2 The Report of the Commonwealth Administrative Review Committee(1971) (the Kerr Report)

(1) Expansion of government had raised issues about the protection of individual rights

In recent times in Australia, as in other countries, there has been a considerable expansion in the range of activitiesregulated, and in the volume and range of services provided, by government and statutory authorities for the benefit ofthe public. This expansion has been accompanied by, as it must be, by a substantial increase in the powers anddiscretions conferred by s tatute on Ministers of the Crown, officers of the administration and statutory authorities.The exercise of these powers and discretions involves the making of a vast range of decisions and recommendations


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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 aggrievedcitizen 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 exerciseof that power in a democratic society. ([364])

1.3 1975 Administrative Appeals Tribunal Bill second reading speech ofthe Attorney- General

The AAT would enable better coordination of tribunal procedure as it would occur under theone roof

While there has been established a considerable number of review tribunal of one kind or another under thelegislation of this Parliament, these have not developed in any co-ordinated fashion. (Enderby 1975: 1186)

The AAT would build up areas of law which had hitherto lain dormant or had been hidden fromview

[The AAT is an] opportunity to build up a significant body of administrative law and practice of generalapplication (Enderby 1975: 1188)


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1.4 Further justifications

(a) To correct errors

Under the pressure of administrative business or the growth of statutory material, the administrator is at risk of

misconceiving the nature or extent of the powers confided to him. Error in defining his own function is anunderstandable phenomenon. His isolation from legal advice may cause him to stumble from the path of statutoryduty and the pursuit of a policy objective may tend to divert his steps entirely from that path. (Brennan 1980: 7)

(b) To further the rule of law

If departmental culture or practice or the departmental manual were to assume a paramountcy over the law enacted by the Parliament or prescribed under legislative authority, one of the main purposes of the Administrative AppealsTribunal Act would be frustrated. (Brennan 1998, p 13).

(c) Improve primary decision making

The objective of administrative review on the merits is to improve the quality of decision-making, both in the particular case and, by precept, generally. (Brennan 1979, p 291)

(d) Provide administrative justice

Mason 1989: 130:

[T]here is the paramount consideration that review is essential to ensure that the individual obtains administrative

justice. Administrative justice is now as important to the citizen as traditional justice at the hands of the orthodoxcourt system.

Experience indicates that administrative decision-making falls short of the judicial model on which the AAT is based in five significant respects.


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I have placed Masons notion of administrative justice under 3 heads:

Independence from the Executive:

The Tribunal was less susceptible to political, ministerial and bureaucratic influence

The AAT is independent, whereas the administrator is inclined to subordinate the claims of justice tothe more general demands of public policy and sometimes to adventitious political and bureaucratic

pressures.

Transparency:

It made decisions in the open, whereas most administrative decisions are not made in the open

It is required to give reasons for all decisions, whereas there is an absence of a duty to givereasons when making most administrative decisions

Fairness

The AAT is bound by the rules of natural justice, but the administrator does not always observe thestandards of natural justice or procedural fairness.

(Mason 1989: 130)

2. ALTHOUGH NOT A CONSTITUTIONAL RIGHT, MERITS REVIEWIS ANCHORED IN THE GOVERNMENTAL AND PARLIAMENTARYSYSTEM, ENSURING ITS CONTINUANCE AND ORDERLY


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EXPANSION IS ENSURED, AT LEAST WHILE THESEARRANGEMENTS ARE IN PLACE

Merits review is well-established in Australia.

Provision for it in legislation is routine: see for example,

2.1 Legislation Handbook (Cth)(1) The procedures which are set out for Commonwealth legislation in the Legislation Handbook (1999) by theDepartment of Prime Minister and Cabinet [6.30]-[6.33], under which it is provided that if legislation confersdiscretionary powers, the exercise of the powers should normally be subject to some form of external review on themerits ([6.30]), and that in most cases the appropriate body will be the Administrative Appeals Tribunal: [6.31].

http://www.dpmc.gov.au/guidelines/docs/legislation_handbook.pdf

2.2 Legislative Scrutiny by Parliamentary Committees

Senate Standing Committee for the Scrutiny of Bills

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Role_of_the_Committee

Role of the Committee

The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus onthe effect of proposed legislation on individual rights, liberties and obligations, and on parliamentary propriety.

The committee examines all bills which come before the Parliament and reports to the Senate whether such bills:


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(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.[see standing order 24 ]

Senate Standing Committee on Regulations and Ordinances

The terms of reference of the Standing Committee on Regulations and Ordinances, which ensures parliamentary scrutinyof draft legislation as to the appropriate provision of merits review:

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances

Role of Committee

The Senate Standing Committee on Regulations and Ordinances assesses delegated legislation against a set ofscrutiny principles that focus on individual rights and liberties and standards of parliamentary propriety.

The committee examines each disallowable instrument of delegated legislation that is tabled in the Parliament toensure:

1. that it is in accordance with the statute;

2. that it does not trespass unduly on personal rights and liberties;

3. that it does not make the rights and liberties of citizens unduly dependent on administrative decisionswhich are not subject to review of their merits by a judicial or other independent tribunal; and

4. that it does not contain matter more appropriate for parliamentary enactment. [see Senate Standing Order 23 ]


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3. THE SELECTION OF REVIEWABLE DECISIONS

3.1 Overview

The question of selection is vital: with no common law right of appeal, an Act of Parliament isneeded to select the decisions which are reviewable for there to be the right and opportunity toappeal.

Administrative Review Council (estab AAT Act s 51) is the intellectual leader in this area.

The Administrative Review Councils current view is set out in D&J7 247; D&J6 251; D&J5252.

The ARCs original design principles are set out in its Eighth Annual Report 1983-84 ch 3 General GuidelinesConcerning Administrative Review. Trivia question: Which former officer of the ARC with whom you areclosely acquainted compiled them?

As Cane and McDonald note (2 nd ed: 222-3)

These principles are in no sense binding, and ultimately the scope of merits review is a political issue.

3.2 Basic principleIf an administrative decision is likely to have an effect on the interests of any person, in the absence of good reason,that decision should ordinarily be open to be reviewed on the merits (ARC 2.4)

Good reason falls into 2 categories:


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3.3 Decisions which are inherently unsuitable for merits review are:

legislation-like decisions of broad application which are subject to the accountability safeguards thatapply 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 insummary

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


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decisions which have such limited impact that the costs of review cannot be justified.

4. OUTLINE OF STEPS TO ANSWER PROBLEMS CALLING FORLEGAL ADVICE ABOUT MERITS REVIEW

4.1 Preliminary steps

a. Listen carefully to the grievance of the client.

b. Ascertain any further material facts which relate to the problem and its context.

c. Determine decision(s) about which the client is aggrieved

d. Identify statutory power used or purportedly used to make those decisions.

e. Ascertain from the client what are the clients goals.

4.2 Outline of 5 basic steps to approach merits review problems (Themerits review advice model)

1. Having regard to the power used, determine whether a merits review body has jurisdiction to review thedecision the client is aggrieved about (if a valid application is made)

2. If so, determine whether client has standing to make the application to that body.3. If so, determine whether client can satisfy application requirements.

4. If so, discuss and conclude on the merits of the case, ie, if the matter proceeds to a final determination by the


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body, what is likely to be held to be the correct or preferable decision.

(a) Anticipate the finding of facts, having regard to the material placed or to be placed before the Tribunal(ordinarily includes the possibility of new material).

(b) Ascertain the relevant law after any necessary legal research and interpretation.

(c) Apply the law as determined to the facts as found,exercising value judgments as required; or

exercising any appropriate discretion in a sound manner, giving appropriate weight to any lawfulgovernment policy.

5. Determine the remedy or outcome the Tribunal is likely to give or lead to, and match this with the clientsgoals.

[Step 4 is elaborated in the Week 9 lecture.]


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5. DETERMINING WHETHER THE MERITS REVIEW BODY HASJURISDICTION TO REVIEW THE DECISION CONCERNED: AAT S25; VCAT SS 42, 48 (STEP 1 OF MODEL)

5.1 Jurisdiction to review the decision must be specifically vested by alaw outside the AAT Act or VCAT Act.

AAT Act:

25 Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by anotherenactment having effect under that enactment.

Tribunal's power to review decisions

(4) The Tribunal has power to review any decision in respect of which application is made to it under anyenactment.

[ Aside for Week 11: If a decision is subject to review, it is one in respect of which a statement of reasons may berequested by a person who is entitled to make an application for review: s 28 AAT; s 45 VCAT.]


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(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 orthing;

(c) an enactment provides that application may be made to a prescribed tribunal for the review of decisions made inthe 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 unreasonabledelay in deciding whether to do the act or thing, grant to the complainant a certificate certifying, that, in the opinion of theOmbudsman , 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 theenactment referred to in paragraph (c) to the prescribed tribunal concerned, be deemed to have made, on the date on whichthe 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 orthing;

(c) an enactment provides that application may be made to a person other than a prescribed tribunal for the review ofdecisions 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 referredto 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;


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the Ombudsman , after having investigated the complaint, may, if he or she is of the opinion that there has been unreasonabledelay in deciding whether to do the act or thing, grant to the complainant a certificate certifying that, in the opinion of theOmbudsman , 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, bedeemed to have made, on the date on which the certificate is granted, a decision, in the exercise of that power, not to do theact 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 tomake 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.

5.4 A reviewable decision need not be a legally valid decision: Collector ofCustoms v Lawlor D&J7 249; D&J6 253

Facts

Collector of Customs purported to revoke a warehouse licence.

Applicant appealed to AAT said it had no power to do so.

Collector argued: if so, AAT has no jurisdiction as the purported decision would be a nullity.


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Reasons of Bowen CJ:

The AAT Act other provisions of the AAT Act suggested the Act was intended to give an effectiveappeal free of technicalities, on questions of fact and of law: 342

Legislative history: the mischief of the AAT Act the existing law had been considered to be unduly

technical and unsatisfactory: 342 Wider context the consequences of reading the AAT Act narrowly as the Collector of Customs

urged would render the appeal in many cases useless: 343

Upshot of Lawlor

(1) The fact that a decision is in theory void does not preclude review: Lawlor at 344

(2) A decision that was ultra vires the primary decision-maker can still possibly be upheld (for other reasons):

D&J7 253; D&J6 257; D&J5 257.

5.5 But the AAT has no independent discretion in the sense that it doesnot have any more powers than the repository. I f the primary decision-maker lacks the power to act, the AAT is restricted to setting aside thedecision: 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


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not have a professional qualification has skills, ability and experience that fit him to carry out work by way of industrialresearch and development for the company, the Committee may recommend to the Board that the employee be approved asan approved employee of the company for the purpose of the definition of professional or technical research anddevelopment 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 beenmade by the Committee.

Issue:

Could the AAT approve the employee when the original decision-maker (the Board) could only act uponreceiving 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 aftera positive recommendation has been made to the board by the TSC or a committee as the case may be. That is anessential prerequisite to the exercise of the power. The same limitation must apply to the power exercisable by thetribunal under s 41 of the Act, by virtue of ss 25(4) and 43(1) of the AAT Act, in respect of the present applicationfor 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 theabsence of an appropriate positive recommendation, affirm, vary, or make a decision in substitution for, that originaldecision.

Further similar cases in D&J7 270-1; D&J6 272-4 (not in D&J5)


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5.6 Reconciling Lawlor and Re SLE

Lawlor states that the AAT is not precluded from reviewing a decision on the ground it is a nullity.

But, since the AAT has no more power than the original repository, and if essential preliminaries by someoneother than the repository have not been followed, the AAT will have no more power than the repository and may

be hamstrung to a similar extent as the primary decision-maker. See D&J7 270; D&J6 272.

5.7 Application of Lawlor to case of defective delegation In Re Baran and Secretary to the Department of Primary Industries and Energy D&J7 253, 270; D&J6 272, thedecision the subject of application for review to the Tribunal was purportedly made by a delegate of theMinister, the repository of the power. But neither the person signing the letter or the person referred to in theletter as the decision-maker was a delegate.

Issue: Did the AAT have jurisdiction to review the decision when the actual decision-maker lacked power to act?And if so, did it have merely the power to set aside the decision and remit it?

Held, the AAT:

had jurisdiction to review the decision

AND had power to substitute it.

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:


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At face value, following Re SLE, the decision-maker (the delegate) had no power to act at all. Howthen did the AAT have review power?

The above cases may be explained this way: in these cases the AAT has all the powers of therepository . 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.

6. DETERMINING WHETHER THE APPLICANT HAS STANDING:AAT S 27; CF VCAT S 5 (STEP 2)

6.1 There are two standing rules: s 27(1) and s 27(2)27 Persons who may apply to Tribunal

(1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979 ) provides that an application may be made to the Tribunal for a review of a decision, the application may be made byor on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whoseinterests are affected by the decision.

(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that areaffected by a decision if the decision relates to a matter included in the objects or purposes of the organization orassociation.

(3) Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.


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6.2 Section 27(1) is essentially the special interest test: see authorities inWeek 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).]

7. DETERMINING WHETHER PROCEDURAL REQUIREMENTSWHICH APPLICANTS MUST SATISFY CAN BE SATISFIED: AAT S29; VCAT S 67 (STEP 3)

7.1 Mode of application: s 29 D&J7 255; D&J6 259; D&J5 259

written: s 29(1)(a)

no particular ground but reasons are to be identified: s 29(1)(c), (1B).

must identify decision and decision-maker (otherwise jurisdiction is not invoked)

7.2 Time limits for lodging: s 29 AAT Act 28 days after a written decision is given, or 28 days after a statement of reasons is given: s 29(2).

Provision for extension of time: s 29(7).


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7.3 Application fee: s 29A AAT Act

Regs: $777 (Reg 19)

Exceptions:

small taxation matters (low fee)

reasons review

FOI

needy

AAT certifies successful

7.4 The pre-hearing procedural steps by which a matter proceeds include(drawing on Withnall and Evans 2010: 44-5)

AAT notifies decision-maker that an application to review the decision has been received: s 29(11)

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 toexchange 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 withouthearing or completing hearings: s 42C.

The parties may be directed to attend mediation if agreement at the conference is not reached: s34A(1)(b)


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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 oran extension of time to make the application.

8. DETERMINING WHETHER THE DECISION UNDER REVIEW ISTHE CORRECT OR PREFERABLE ONE: AAT S 43(1); VCAT S51(1) (STEP 4)

[This step applies unless applicant withdraws, or parties otherwise reach agreement through use of tribunal procedures which often occurs.]

8.1 Procedure in a hearing; Re Mourtizikoglou and Secretary and Dept ofSocial Security (1991) 23 ALD 249

Proceedings generally are flexible

33 Procedure of Tribunal

(1) In a proceeding before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within thediscretion of the Tribunal;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the


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requirements of this Act and of every other relevant enactment and a proper consideration of the matters before theTribunal 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 thinksappropriate.

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 specialcircumstances

Social worker report that family home poorly maintained

In the course of writing reasons the presiding member decided that she required further evidence toenable 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 familyin receipt of social security payments to live in a house with a leaking roof and broken windows. I wassatisfied 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 otherhand the system of social security does not guarantee, to recipients of benefits, accommodation up to a certainstandard. I considered that a line must be drawn between accommodation so poor that it is exceptional, andwould render it unjust to apply the preclusion period as provided for in s 153 of the Act, and accommodation


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which requires improvement, but is unfortunately not exceptional or unusual amongst those who are in receiptof 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 MrsMourtitzikoglou's house fell. I would have been assisted by evidence as to the cost of repairing the roof andwindows. Mrs Mourtitzikoglou said that she had no idea what it would cost to repair the broken tiles on theroof 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 withoutfurther evidence. Using my powers under s 33(1) of the Administrative Appeals Tribunal Act 1975 (the Act), Itherefore caused a letter to be sent by the acting district registrar to the parties in the following terms

8.2 Determining the correct or preferable decision general principles

The key provision in each Act:AAT Act s 43(1)

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

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 orthe 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)


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It is not just the reasons for the decision which are under review, however important to the Tribunals deliberations thosereasons may be.: Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141 in C&M 137

Sometimes it is put that the tribunal reviews

the subject of the original decision. Its task would be to do over again what the [primary decision-maker] did

(Gadon v Police Review Board [2014] TASSC 23 at [27])

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 casewhich it might reasonably raise, notwithstanding that such a case might not have been contended for by theapplicant (Full Ct said of RRT)

The Tribunal stands in the shoes of the primary decision-maker in terms of the power that is tobe 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 thereview body:

the AAT does not have larger powers or discretions than the original decision-maker. Accordingly, it will in theordinary course be constrained by the limitations and conditions imposed upon that decision-maker. (L&Y 3.200(270))


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The Tribunal is to determine the correct or preferable decision on the material before theTribunal

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 wasthe correct or preferable one on the material before him. The question for the determination of the Tribunal is whetherthe decision was the correct or preferable one on the material before the Tribunal.

What does the test mean?

correct, when there was only one proper decision; preferable, when alternatives were available or a discretion was to be exercised (Downes 2006: [24])

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 andthe 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 (ReSleiman and CALDB (2007) 98 ALD 170 at 174)

Examples of how the provision has been used:


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(1) A ruling that an allegation of breach of natural justice by the decision-maker are not be considered: ReMurdaca and ASIC (2010) 118 ALD 2012 at 210. (the current hearing before the Tribunal would provide anadequate 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 reviewinga 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 toundertaking a task different in kind from that presented to the primary decision-maker: ReTradigrain 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 ofthe 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 grantsas it was now of the opinion that no grant should have been paid to the applicant as it did not qualify under theAct. 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.


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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].

8.3 Relevant law: Kavvadias v Commonwealth Ombudsman (1984) 1 FCR80 at 81; Esber D&J7 272; D&J6 274

Date for relevant law:

Generally law at date of review: Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 at 81; Creyke andMcMillan 3rd ed [3.3.29].

But exception for accrued rights, which are protected in the manner of court proceedings: Esber D&J7 272;D&J6 274; D&J5 274.

Chronology of events

1971: compensation Act for Commonwealth govt employees passed

1982: applicant injured


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1987: applicant requested a lump sum under 1971 Act

October 1987: delegate refused lump sum request

15 September 1988: applicant appealed to AAT

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 ofapplication 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 thedelegates 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


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claim (at 440)

See Donnellan [2005] TASSC 98 at [17], [21].

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 ordinarilyconfined to material that was before the primary decision-maker, while pointing out thatexceptionally 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 ofevents 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 theTribunals attention to the state of the evidence as at a particular time. Per Kirby J at [46]

Per Hayne and Heydon JJ:

Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that,

unless there is some statutory basis for confining that further material to such as would bear upon circumstances asthey existed at the time of the initial decision, the material before the Tribunal will include information about conductand events that occurred after the decision under review. If there is any such statutory limitation, it would be found inthe legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would

provide such a limitation. Per Hayne and Heydon JJ at [99]


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Illustration of intention to confine the Tribunal, generally speaking, to the evidence at a particular earlier point in time

Re Issa and Australian Community Pharmacy Authority [2012] AATA 631; 128 ALD 631.

National Health (Australian Community Pharmacy Authority Rules) Determination 2011, s 9:

Information to be considered by Authority

The Authority may consider information provided by an applicant only if:

(a) the information as given at the time the application was made; or

(b) the Authority requested the information.

Question: Could the AAT, when conducting a review, receive from the applicant material which was not lodgedwith the approval application when made to the Authority, or later requested by the Authority?

Answer. It could, but only if the Tribunal so requests.

8.5 Law and practice regarding use of government policy

The status of government policy in the review by an executive tribunal?: Drake 1 D&J7 280;D&J6 282

Drake 1 held government policy is not binding on the AAT:

the Tribunal is entitled to treat [government] policy as a relevant factor in the determination of an application forreview of that decision ... On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitledto abdicate its function of determining whether the decision made was, on the material before the Tribunal, the corrector preferable one in favour of a function of merely determining whether the decision made conformed with whatever


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the relevant government policy might be. (p 590 orign).

The reasons relied on the provisions of the AAT Act:

The Tribunal had a statutory duty to conduct a review: 589.

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 forthe 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&J6283

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 orunless its application tends to produce an unjust decision in the circumstances of the particular case. (Re Drake inD&J7 287; D&J6 289; D&J5 283 (645))

Why ordinarily apply?

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which isincompatible with commonly accepted notions of justice. 639

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 tosupervise policy: 644

Tribunal has no supporting bureaucracy: 644.


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8.6 The tribunals own decisions are de facto precedents: Downes 2006although 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 aresatisfied 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 aswell as issue estoppel. Effectively there is a doctrine of precedent. (Downes 2006: [48])

9. DETERMINING THE APPROPRIATE REMEDY

(Step 5 of the model)

The Tribunal is empowered [to] take one or more of the remedial steps provided for in s 43(1): Shi v MARA[2007] FCAFC 59 per Tracey J at [60].

9.1 The remedial options - AATTribunals decision on review

43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred byany relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or


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As a matter of principle, it must be correct that the powers and discretions referred to by s 43(1) are the powersand 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 inrelation 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 andexercise 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 onrepresentative of dealer or investment adviser. Held: AAT was acting within its powers when itsubstituted a lesser banning order and an undertaking.

Wharton and ASIC [2002] AATA 443: AAT held it was not restricted to the same banning sanction asASIC, 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.

9.4 Power to remit: s 43(1)(c)(ii) AAT Act

It is a mistake to think that the AAT will ordinarily remit a matter to the primary decision-maker for furtherconsideration if it comes to a different result. The AAT is not a court and it does not conduct judicial review. It

would be rare for it to remit for reconsideration: Cane and McDonald 2012: 232.Remittal is appropriate if it is likely to bring about the correct or preferable decision: Cane and McDonald 2012:226.


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Remittal can occur for a variety of reasons including:

Where substantial amounts of new documentation would be required to enable the enable the tribunalto decide the matter on the facts as they stood at the time of the hearing: Re SRRRRR v Commissionerof Taxation (2008) 100 ALD 690, cited in Cane and McDonald 2012: 226.

Having settled the main issue in dispute, say a matter of compensation, the Tribunal might remit thematter for settling uncontentious details such as calculating the amount of compensation which is

payable, eg Re Campbell and Comcare [2010] AATA 692; Re Pascoe and Australian PostalCorporation [2002] AATA 745 : see precedents in Appendix below.

Exceptionally, in a difficult and contested area where there is room for a compromise solution, to allowthe parties to explore whether they can find an agreed solution rather than having one imposed on them:Re Aspen Pharmacare Australia Pty Ltd and Minister for Health and Ageing [2012] AATA 362 at[103].

9.5 Legal effect of AAT decision: s 43(6)

As a matter of law the original decision-maker must give effect to the decision of the AAT:

The fresh decision made by the Administrative Appeals Tribunal, when substituted for the original decision, becomes the decision of the original decision-maker. The person or agency who made the original decision must thenact on the new decision as if that decision had been made by the original decision-maker. (Downes 2006: [41])

Why? How can the AATs decision have legal effect even though it is not a decision of a courtand 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 thedecision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of


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appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operationof 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.

9.6 Other remedial powers

Stay powers

AAT: s 41.

VCAT : s 50

9.7 Drafting precedents for AAT decisions

Formal AAT decisions are formulated by the Tribunal and published with its reasons.

As for courts, the decisions put into command form what conclusion the Tribunal has reached as to howthe matter is to be disposed of

The same drafting guidelines which were set out for court orders in Week 7 lecture apply to thedrafting of Tribunal decisions.

Precedents are given in the Appendix below for each of the remedies which may be given under s 43.


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10. EVALUATION, QUERIES AND CRITICISMS

There is a large literature on tribunals and merits review. For example, McMillan 1998a; Creyke 2012.

Merits review is well-established. See section 2, above. But it is not unchanging: Creyke 2012.

Creyke 2012 examines some of the evidence for the success of the general-jurisdiction tribunal model ( 2012:23) including

Satisfaction rate: 27

Accessibility: 28

Cost-effectiveness: 29.

However, queries continue to be raised and criticisms continue to be made.

Examples, from Cane and McDonald 2012:

Is an independent external reviewer always appropriate? Cf Cane and McDonald 2012: 233 (AAT notused in migration area for first instance review.)

Has the conferral of merits review been consistent? (Cane and McDonald 2012)

Are tribunals actually quicker, less costly and more informal modes of adjudication? These are mattersthat could be tested empirically, but little rigorous research has been done: Cane and McDonald 2012:214.


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Do they provide a normative effect? The justification for providing a normative effect is weakened bythe large proportion of applications (79% in 2010-11) that are resolved without the delivery of adecision 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 uncomfortableconstitutional position:

although the AAT is thought of as an external review body it is also said (freely paraphrasing the AAT Act) tostand in the shoes of the decision-maker. The AAT appears to be in the acutely uncomfortable position of being atone and the same time part, but not part, of the executive. Cane and McDonald 2012: 215.

Examples from Creyke 2012:

Is the AAT too legalistic [a very well-worn theme]: 24-5.

Do pre-hearing settlement processes have adverse effects? (25-6, 28).

APPENDIX: SECTION 43 ORDERS DRAFTING PRECEDENTS

[Students are expected to be able to draft Administrative Appeal Tribunal decisions.]


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PRECEDENT FOR S 43(1)(A) AFFIRMING DECISION UNDERREVIEW

Spragg and Chief Executive Officer of Customs [2014] AATA 667 (12September 2014)DECISION

The decision under review is affirmed.

McKinley and Repatriation Commission [2014] AATA 670 (12 September2014)

DECISION

The Tribunal affirms the decision under review.


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PRECEDENT FOR S 43(1)(B) VARYING DECISION UNDERREVIEW

Accord Australasia Limited and Director, Chemicals Notification andAssessment Scheme [2014] AATA 504 (24 July 2014)DECISION

(1) The Tribunal varies the decision under review by removing the additional conditions as to amount per annum per introducer imposed by the Respondent in respect of chemicals 1 to 4, but otherwise affirms the decision.

(2) The Tribunal recommends that NICNAS carries out further analysis and assessment of all the chemicals usingan IMAP-like process, consulting other relevant regulatory bodies such as the TGA and taking into account DrDrews analysis.

Taleb and Secretary, Department of Social Services [2014] AATA 657 (10September 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.


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Ergarac and Comcare [2014] AATA 592 (22 August 2014)

DECISION

The decision under review is affirmed in so far as the hours of domestic and gardening assistance the applicant isto receive. However, the decision is varied in relation to the period that the decision applies to, extending the

application of the reviewable decision until 31 December 2014, rather than 30 June 2014.

Hutchinson and Comcare [2014] AATA 588 (22 August 2014)

DECISION

The decision under review, being the reviewable decision of the respondent made on 21 July 2011, is varied byamending the description of the compensable mental injury suffered by the applicant to major depressivedisorder, but is otherwise affirmed.

The Taxpayers and Commissioner of Taxation [2014] AATA 572 (14August 2014)

DECISION

1. This matter is remitted to the respondent with a direction that the decision under review be varied asfollows:

(a) With respect to the assessment of the applicants Goods and Service Tax (GST) liability:

(i) For the period ended 30 September 2000 the applicants GST net amount be reduced to $8,851.00;(ii) For the period ended 31 December 2000 the applicants GST net amount be reduced to $37,906.00;


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(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 theTaxation 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;


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(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.


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PRECEDENTS FOR S 43(1)(C)(I) SET ASIDE AND SUBSTITUTE

Re Kenzie and Minister for Immigration and Citizenship [2010] AATA 630(23 August 2010)

Decision

The Tribunal sets aside the decision under review and substitutes a decision that Mr Kenzie's visa shouldnot be cancelled.

Whitfield and Commonwealth Superannuation Corporation [2012] AATA613 (13 September 2012)

Decision

The decision under review is set aside and in substitution thereof the Tribunal decides that:

The Applicant did not make a valid and effective election under s 61B(3) of the Defence Force Retirement and Death Benefits Act 1973 ; and

The Applicant was overpaid an amount of $3,861.17 but that overpayment is to be written off pursuant to s126(4).

Syed and Migration Agents Registration Authority [2012] AATA 596 (5September 2012)

The decision under review is set aside and there is substituted the Tribunals decision that the Applicant is a fit


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and proper person to give migration advice.

Morley and Repatriation

Documents

Wk 8 (Merits Frame)-2 Copy