Any person who wishes to appeal against a Commonwealth Government administrative action or decision should first read the Act or Regulations under which the decision was made or action was taken. This will usually outline any rights of appeal given to the citizen and the grounds of any rights of appeal. There is no general rule; some Acts give wide rights of appeal, others have only narrow grounds of appeal and some Acts give no right of appeal at all.
A large number of appeals are heard (either at first instance or as part of a graduated appeal process) by the Administrative Appeals Tribunal (AAT).
Objectives of the Administrative Appeals Tribunal
The objective of the AAT is to provide a mechanism of review that:
- is fair, just, economical, informal and quick
- is accessible
- is proportionate to the importance and complexity of the matter, and
- promotes public trust and confidence in the decision-making of the Tribunal.
Divisions of the Administrative Appeals Tribunal
- Freedom of Information Division
- General Division
- Migration and Refugee Division
- National Disability Insurance Scheme Division
- Security Division
- Social Services and Child Support Division
- Taxation and Commercial Division, and
- Veteran’s Appeals Division
Activities subject to the Tribunal
The jurisdiction of the AAT may either be conferred by express provision in any Commonwealth Act or by a provision in the schedule to the Administrative Appeals Tribunal Act 1975 (Cth). This is a broad test. The interests of community groups and public interest organisations are examined to determine whether their interests are affected.
Decision makers must supply a statement of reasons if asked to do so by a person affected by the decision. This can be obtained without having to file an appeal application.
How to lodge an application
Once a person is satisfied that a matter can be appealed to the AAT they must apply in writing to the AAT Registry. The application may either be on a special form, obtainable from the Registry, or by letter, giving name, address, type of decision being appealed and the date the decision was received. For some kinds of applications there is no application fee (e.g. for most appeals involving allowances or pensions). If a fee is payable the full application fee is $861 (as of 1 July 2014). Under certain circumstances a reduced fee of $100 can be paid (e.g. if a person is receiving legal aid for their application; if they hold a pension or concession card; if they are in prison). The application fee must be paid in full before the application can be accepted as valid.
For further information about application fees and the related forms see the AAT’s information page Information about application fees.
Generally, an appeal must be lodged within twenty eight days of receiving notification of the decision if reasons are provided with it, or twenty eight days after receiving a formal statement of reasons if requested under the Administrative Appeals Tribunal Act (Cth). This time may be extended by the tribunal but there are instances where an extension cannot be granted. Whilst twenty eight days is the most common time limit there are applications where a much shorter period applies e.g. decisions under section 501 of the Migration Act. There are also instances where a longer time limit applies e.g. most decisions made by the Australian Tax Office have a time limit of sixty days. For further information see http://www.aat.gov.au/applying-for-a-review/time-limits .
After an appeal is made, the original decision will continue to operate. An administrative body, making and acting on a decision, will not wait to see whether anyone decides to appeal. Obviously, cases will arise where those wishing to appeal want to prevent any action being taken on a decision which they consider wrong. The Act enables a person to apply for an order to suspend the operation of a decision until a final decision is made [Administrative Appeals Tribunal Act 1975 (Cth) s 34H for engagement of persons to conduct alternative dispute resolution processes].
Presenting a case
An applicant can be represented before the AAT by a lawyer or any other person. Proceedings of the AAT are meant to be straightforward and informal but legal representation is often strongly advisable given the demands of complex legislation and the fact that the government department is itself represented by a lawyer or skilled advocate.
The AAT does not rely solely on oral argument. Parties must provide statements of facts and contentions. It is not bound by the rules of evidence but may inform itself in whatever way it considers appropriate.
Under the Act it is possible for other people to join in and support the application of the person or body which has initiated the appeal [see Administrative Tppeals Tribunal Act 1975 (Cth) s 30]. All that is necessary is that such people have an interest in the matter sufficient to entitle them to appeal themselves.
The Act allows for conciliation conferences and other alternative dispute resolution processes to be held between the parties [s 34], designed to bring about a resolution between them without the need to proceed to a hearing. Conferences also ensure that where a matter is to proceed to a hearing, the parties identify and if possible, narrow the issues in dispute to allow an efficient hearing. Normally, they are held in private. These are an important part of the AAT's procedures and offer an opportunity for a 'no holds barred' discussion between parties.
The AAT has wide powers to call for government documents [ss 37, 38]. This power applies in cases where the Attorney-General has ruled that a person seeking a statement of reasons cannot receive certain information because it affects national security, covers Cabinet deliberations or falls within the sphere of Crown privilege [s 36]. The AAT has power to release the information to the parties despite the Attorney-General's certificate, if it is desirable in the interest of securing the effective performance of the functions of the AAT [s 36(4)].The AAT also has power to examine a governmental decision not to release documents which it considers should remain confidential or secretly classified [s 39].
Hearings are normally held in public, although the AAT has a discretion to close off part, or all, of a hearing [s 35]. In some appeals under the Freedom of Information Act 1982 (Cth) the AAT is required to conduct at least part of the hearing in private.
Powers of the Tribunal
In reviewing a decision, the AAT has authority over the matter equal to that of the original decision maker [s 43]. It is required to make its decision in writing and give reasons. Unless the legislation says otherwise the AAT may:
- affirm the decision under review
- vary the decision under review
- set aside the decision under review and either make a decision in substitution or return the matter for reconsideration in accordance with any directions or recommendations of the tribunal [s 43].
The AAT does not have the power to order costs except in some specific types of matters and circumstances, such as where there is a successful review of an adverse secuirty assessment under the Australian Security Intelligence Organisation Act 1979 (Cth) [see s 69B] or in commonwealth workers compensation matters [see Safety, Rehabilitation and Compensation Act 1988 (Cth) s 67]. In other matters the tribunal may recommend that the Commonwealth pay the cost of the application, but there is no obligation on the Commonwealth to do so. Generally each side must pay their own costs.
The law permits a party, or intending party, to apply for legal or financial asistance [s 69]. The Attorney-General must have regard to whether refusal to grant the assistance would involve hardship to the applicant and whether in all the circumstances it is reasonable to grant it and may impose conditions on any assistance granted. This provision does not apply to matters being determined in the Migration and Refugee Division or the Social Services and Child Support Division.
An appeal about a person's standing to appear before the AAT or on a question of law from the AAT to the Federal Court is permitted [see Administrative Appeals Tribunal Act 1975 (Cth) s 44]. The AAT itself may refer a difficult point of law to the Federal Court [s 45]. Some matters may be transferred to the Federal Circuit Court on the AAT's own initiative or on the application of a party [s 44AA].
An appeal does not affect the operation or implementation of a decision unless the court or a judge of the court orders otherwise [s 44A]. If an appeal is taken to the Federal Court, a party may be liable to pay costs.
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