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PRINCIPLES OF ADMINISTRATIVE LAW


2014
LECTURE WEEK 8

Merits Review: Part 1: Legal Framework


Topic Notes Advanced Reading
By Dr Jeffrey Barnes

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!
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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)!

2. ALTHOUGH NOT A CONSTITUTIONAL RIGHT, MERITS REVIEW IS ANCHORED IN THE


GOVERNMENTAL AND PARLIAMENTARY SYSTEM, ENSURING ITS MAINTENANCE AND
EXPANSION FOR THE TIME BEING!
3. THE SELECTION OF REVIEWABLE DECISIONS!
4. OUTLINE OF STEPS TO GIVE ANSWER PROBLEMS CALLING FOR LEGAL ADVICE ABOUT
MERITS REVIEW!
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)!
6. DETERMINING WHETHER THE APPLICANT HAS STANDING: AAT S 27; CF VCAT S 5 (STEP 2)!
7. DETERMINING WHETHER PROCEDURAL REQUIREMENTS WHICH APPLICANTS MUST SATISFY
CAN BE SATISFIED: AAT S 29; VCAT S 67 (STEP 3)!
8. DETERMINING WHETHER THE DECISION UNDER REVIEW IS THE CORRECT OR PREFERABLE
ONE: 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 pluralistic
Administrative 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 to
account 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 judicial
review 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. (Hall
cited 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 occupies
a 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 important
with 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 handling
the 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 equal
independence. In many respects, it is a more difficult task. (Sir Andrew Leggatt, Tribunals for Users One System, One
Service: 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 the
AAT 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.

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; permit
consideration 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 and
exercise 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 and
witnesses called (L&Y 3.195 (268))

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
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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 means
non-legal. These [state] courts and tribunals do not operate outside the law; rather, they are legal constructions
deploying 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 advice

ii. 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 in
Aldrich [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 by
convicted 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 statutory


interpretation: 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 an
unlimited merits review, but a review which required the applicant to demonstrate error on the part of the
Commissioner: [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 any
decision, 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 was
not an unlimited merits review, but a review which required the applicant to demonstrate error on the part of the
Commissioner: [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 as
not 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. The
Commissioner 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 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].

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 admit
further evidence)
Appeals involving a hearing de novo (the matter is hear afresh and decision is given on the
evidence 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 judicial
review]
(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) and


Victorian 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 OF


MERITS REVIEW IN AUSTRALIA
4.1 Impact on federal regime: R v Kirby; Ex parte Boilermakers Society of
Australia (1956) 94 CLR 254
In the Boilermakers case, R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 the High
held 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 function
which is not incidental to the exercise of judicial power According to this interpretation, courts may be entrusted only
with those functions in the field of administrative review which are strictly judicial (in the sense that they involve the
exercise 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 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.

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 the
exercise of administrative power (Groves and Boughey 2014: 16)

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.
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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 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
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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 Australias
external merits review system.
From 1 July 2015, key Commonwealth external merits review agencies will be amalgamated. This includes the
Administrative 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 Information
Commissioner, 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 tribunals
have 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 key
stakeholders 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 decision
made 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 and
Administrative Tribunal Act 2008 (ACT) (incorporating the Administrative Appeals Tribunal of the
ACT
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 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)

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 CIVIL


AND 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 on
Administrative Tribunals and Inquiries (1957) argued that tribunals were
part of the legal system:
tribunals should be regarded as machinery for adjudication rather than as part of the machinery of administration. (cited in
Cane 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 activities
regulated, and in the volume and range of services provided, by government and statutory authorities for the benefit of
the public. This expansion has been accompanied by, as it must be, by a substantial increase in the powers and
discretions conferred by statute 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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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
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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 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])

1.3 1975 Administrative Appeals Tribunal Bill second reading speech of


the Attorney- General
The AAT would enable better coordination of tribunal procedure as it would occur under the
one roof
While there has been established a considerable number of review tribunal of one kind or another under the
legislation 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 from
view
[The AAT is an] opportunity to build up a significant body of administrative law and practice of general
application (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 an
understandable phenomenon. His isolation from legal advice may cause him to stumble from the path of statutory
duty 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 Appeals
Tribunal 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 orthodox
court 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 to
the 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 give
reasons when making most administrative decisions
Fairness
The AAT is bound by the rules of natural justice, but the administrator does not always observe the
standards of natural justice or procedural fairness.
(Mason 1989: 130)

2. ALTHOUGH NOT A CONSTITUTIONAL RIGHT, MERITS REVIEW


IS ANCHORED IN THE GOVERNMENTAL AND PARLIAMENTARY
SYSTEM, ENSURING ITS CONTINUANCE AND ORDERLY
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EXPANSION IS ENSURED, AT LEAST WHILE THESE


ARRANGEMENTS 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 the
Department of Prime Minister and Cabinet [6.30]-[6.33], under which it is provided that if legislation confers
discretionary powers, the exercise of the powers should normally be subject to some form of external review on the
merits ([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 on
the 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:
28

(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 scrutiny
of 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 of
scrutiny 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 to
ensure:
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 decisions
which 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]
29

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 is
needed to select the decisions which are reviewable for there to be the right and opportunity to
appeal.
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&J5
252.
The ARCs original design principles are set out in its Eighth Annual Report 1983-84 ch 3 General Guidelines
Concerning Administrative Review. Trivia question: Which former officer of the ARC with whom you are
closely acquainted compiled them?
As Cane and McDonald note (2nd ed: 222-3)
These principles are in no sense binding, and ultimately the scope of merits review is a political issue.

3.2 Basic principle


If 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:

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.

4. OUTLINE OF STEPS TO ANSWER PROBLEMS CALLING FOR


LEGAL 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 (The


merits review advice model)
1. Having regard to the power used, determine whether a merits review body has jurisdiction to review the
decision 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
32

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 lawful
government policy.
5. Determine the remedy or outcome the Tribunal is likely to give or lead to, and match this with the clients
goals.
[Step 4 is elaborated in the Week 9 lecture.]

33

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)
5.1 Jurisdiction to review the decision must be specifically vested by a
law 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 another
enactment 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 any
enactment.

[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].

5.3 A reviewable decision in some cases can include a failure to make a


reviewable decision: s 25(5) AAT Act
Failure of decision-maker to meet deadline
(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to
the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that
enactment, or by another enactment having effect under that enactment, as the period within which that person is required or
permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of
that period not to do that act or thing.

See also Ombudsman Act 1976, s 10:


Unreasonable delay in exercising power
35

(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.

5.4 A reviewable decision need not be a legally valid decision: Collector of


Customs 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.

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

Reasons of Bowen CJ:


The AAT Act other provisions of the AAT Act suggested the Act was intended to give an effective
appeal 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 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.

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


40

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 someone
other 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, the
decision the subject of application for review to the Tribunal was purportedly made by a delegate of the
Minister, the repository of the power. But neither the person signing the letter or the person referred to in the
letter 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:
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.

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 by
or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose
interests are affected by the decision.
(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are
affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or
association.
(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.

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).]

7. DETERMINING WHETHER PROCEDURAL REQUIREMENTS


WHICH APPLICANTS MUST SATISFY CAN BE SATISFIED: AAT S
29; 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).
43

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 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.

8. DETERMINING WHETHER THE DECISION UNDER REVIEW IS


THE CORRECT OR PREFERABLE ONE: AAT S 43(1); VCAT S
51(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 of


Social 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 the
discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the
45

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

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 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

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 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.

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 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)

Examples of how the provision has been used:


49

(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].

8.3 Relevant law: Kavvadias v Commonwealth Ombudsman (1984) 1 FCR


80 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 and
McMillan 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


51

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 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

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 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]

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 as
they existed at the time of the initial decision, the material before the Tribunal will include information about conduct
and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in
the 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]
53

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 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.

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 for
review of that decision ... On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled
to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct
or preferable one in favour of a function of merely determining whether the decision made conformed with whatever
54

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 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))

Why ordinarily apply?


Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is
incompatible 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 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])

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 - AAT


Tribunals decision on review
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:
(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
56

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the
Tribunal.

9.2 VCAT is similarly empowered under VCAT Act, s 51


The Tribunal has all the functions of the decision- maker: s 51(1)

functions is defined in s 3 as including jurisdiction, power, duty and authority.


The specific powers in s 51(2) are very similar to s 43 of the AAT Act:
affirm the decision
vary the decision
set aside the decision and substitute another decision
set aside the decision and remit for reconsideration in accordance with any directions or
recommendations

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.

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 further
consideration 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.
58

Remittal can occur for a variety of reasons including:


Where substantial amounts of new documentation would be required to enable the enable the tribunal
to decide the matter on the facts as they stood at the time of the hearing: Re SRRRRR v Commissioner
of 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 the
matter 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 Postal
Corporation [2002] AATA 745 : see precedents in Appendix below.
Exceptionally, in a difficult and contested area where there is room for a compromise solution, to allow
the 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 then
act 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 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.

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 how
the matter is to be disposed of
The same drafting guidelines which were set out for court orders in Week 7 lecture apply to the
drafting 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 not
used 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 matters
that could be tested empirically, but little rigorous research has been done: Cane and McDonald 2012:
214.

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.

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.]

62

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


REVIEW
Spragg and Chief Executive Officer of Customs [2014] AATA 667 (12
September 2014)
DECISION
The decision under review is affirmed.

McKinley and Repatriation Commission [2014] AATA 670 (12 September


2014)
DECISION
The Tribunal affirms the decision under review.

63

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


REVIEW
Accord Australasia Limited and Director, Chemicals Notification and
Assessment 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 using
an IMAP-like process, consulting other relevant regulatory bodies such as the TGA and taking into account Dr
Drews analysis.

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

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 is
to 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 by
amending the description of the compensable mental injury suffered by the applicant to major depressive
disorder, but is otherwise affirmed.

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


August 2014)
DECISION
1.
This matter is remitted to the respondent with a direction that the decision under review be varied as
follows:
(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;
65

(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

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 should
not be cancelled.

Whitfield and Commonwealth Superannuation Corporation [2012] AATA


613 (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 (5


September 2012)
The decision under review is set aside and there is substituted the Tribunals decision that the Applicant is a fit
68

and proper person to give migration advice.

Morley and Repatriation Commission [2012] AATA 584


Decision
The decision under review is set aside and the decision substituted that Mrs Morley is entitled to a
widows pension with effect from 28 February 2011.

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


Re Campbell and Comcare [2010] AATA 692
Decision
The Tribunal sets aside the reviewable decision of 12 March 2008 and remits the matter to the respondent
to assess any compensation and funeral benefits payable to Mrs Elizabeth Campbell and any applicable
medical expenses that may be payable in accordance with these reasons.

69

PRECEDENT FOR S 43(1)(C)(I) AND (II) SET ASIDE,


SUBSTITUTE AND REMIT
Al-Algam and Minister for Immigration and Citizenship [2012] AATA 593 (5
September 2012)
Decision
The decision under review is set aside and the Tribunal decides that the Applicant is of good character.
The matter should be remitted for the making of a decision in accordance with these reasons.

Re Pascoe and Australian Postal Corporation [2002] AATA 745


Decision
The decision in application N1997/1457 is set aside and the tribunal substitutes its own decision that the
applicant qualifies for an amount of compensation in respect of a permanent impairment affecting his
lower limbs and thoraco-lumbar spine to the extent of 24% whole person impairment. The matter is
remitted to the respondent for it to assess the amount payable.

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

Australian Citizenship Act 2007 (Cth).

KEY TO ADDITIONAL REFERENCES


Brennan 1979 = the Hon Mr Justice Brennan, The Future of Public Law the Administrative Appeals
Tribunal (1979) 4 Otago Law Review 286
Brennan 1980 = The Hon Mr Justice F G Brennan, The Anatomy of an Administrative Decision (1980)
9(1) Sydney Law Review 1
Brennan 1998 = Sir Gerard Brennan, Twentieth Anniversary of the AAT: Opening Address in J
McMillan (ed), The AAT Twenty Years Forward: Passing a Milestone in Commonwealth Administrative
Review (AIAL, 1998) 4
Cane and McDonald 2012 = Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal
Regulation of Governance (Oxford, 2nd ed, 2012)
Creyke 2012 = Robin Creyke, Tribunals Carving Out the Philosophy of their Existence: The
Challenge for the 21st Century (2012) 71 AIAL Forum 19
Downes 2006 = The Hon Justice Garry Downes AM, Structure, Power and Duties of the Administrative
Appeals Tribunal of Australia, Bangkok, 21 February 2006, at
http://www.aat.gov.au/Publications/SpeechesAndPapers/Downes.htm
Enderby 1975 = Australia, Parliamentary Debates, House of Representatives, 6 March 1975, Mr Enderby
Fisher 2008 = Elizabeth Fisher, Administrative Law, Pluralism and the Legal Construction of Merits
Review in Australian Environmental Courts and Tribunals in Linda Pearson et al (eds), Administrative
71

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