Administrative Appeals Tribunal

Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Abbreviations
Table of Contents
	CHAPTER 1 ESTABLISHMENT OF TRIBUNAL
		Establishment
			Introduction
			Origin of Tribunal
			Establishment of Tribunal
		Amalgamation
			Amalgamated tribunals
		Objective of Tribunal
			Statement of objective
			Effect of objective on Tribunal’s proceedings
			Transitional arrangements
	CHAPTER 2 MEMBERSHIP AND ORGANISATION
		Membership and Appointment: ss 5–10
		Organisation
			Divisions: s 17A
			Assignment of members to Divisions: ss 17C–17L
			Arrangement of business of Tribunal: ss 18A–18C
			Authorised members: s 59A
		Constitution of Tribunal
			Constitution for hearings
			Reconstitution of Tribunal: s 19D
			Constitution after appeal
			Reconstituted Tribunal may have regard to previous record: s 19D(4)
		Presiding on Tribunal
			Member presiding at hearing and powers: s 22
	CHAPTER 3 JURISDICTION OF ADMINISTRATIVE APPEALS TRIBUNAL
		Decisions Subject to Review
		Conferral of Jurisdiction
			Conferral of jurisdiction by enactment: s 25
			Migration Act decisions
			Social security decisions
			Modification of AAT Act in application to some jurisdictions
			Jurisdiction cannot be agreed by parties
			AAT empowered to determine jurisdictional issues
			Jurisdictional provisions strictly construed
			Compliance with formal conditions precedent to jurisdiction
			Jurisdiction to review validity of legislation under which decision made
			Jurisdiction to review validity of legislation conferring jurisdiction
			Jurisdiction to review invalid decisions
			Practical advantage of Lawlor principle
			Application of Lawlor principle
			Jurisdiction to review refusal to act
			Jurisdiction where intermediate tribunal refuses jurisdiction
			Jurisdiction where matter also before court
		‘Decisions’ Subject to Review by AAT
			Definition of ‘decision’ subject to review: s 3(3)
			Interpretation of ‘decision’
			‘Decision’ under AAT Act and AD(JR) Act compared
			Identification of decision
			Operative decision to be reviewed
			Review of components of decision
			Decision on reconsideration reviewable
			Automatic or self-executing decisions not reviewable
			Computer-made decisions
			Failure to take a decision: s 25(5) and Ombudsman Act 1976 (Cth) s 10
			Rulings on ‘decisions’
			No alteration to decision after appeal lodged: s 26
		Decision Under Enactment Conferring Jurisdiction
			Act must confer power to review particular decision
			Jurisdictional rulings to be made at hearing
	CHAPTER 4 NOTIFICATION OF REVIEW RIGHTS AND REASONS FOR DECISION
		Notice of Decision and Review Rights to be Given: ss 27A, 27B
		Person Affected by Decision May Obtain Reasons for Decision: s 28
		Reasons not to be Furnished if Contrary to Public Interest: s 28(2) and (3)
	CHAPTER 5 APPLICANTS FOR REVIEW
		Who May Apply for Review
			Persons who may apply for review: ss 27, 27AA
			Applications by organisations: s 27(2)
			Determination of standing: ss 31 and 44(2)
			Change in legal qualification for standing
		When Interests Affected
			Meaning of ‘interests affected’
			Persons held to be affected
			Applicant has to be affected
		Loss of Standing
			Applicant no longer affected by decision
			Death of applicant
		Effect of Administration, etc, Orders on Standing
	CHAPTER 6 INITIATION OF REVIEW
		Manner of Applying for Review: s 29
			Special provisions relating to applications
			Applications where more than one decision
			Statement of reasons in support of application
			Notice of application
			Application fees: s 69C, Reg Pt 6
			Effect of failure to pay fee
			Time within which application to be made: s 29(2)–(6)
			Giving or lodging application for review: s 68
			Extension of time to apply: s 29(7)–(10)
			Applications for extension of time
			Extension of time: persons affected by decision
			Approach to applications for extension of time
			Factors referred to in extension of time cases
			Further applications for extension of time
			Extension of time where previous review application withdrawn
			Effect of lodging application for review
	CHAPTER 7 PARTIES TO REVIEW APPLICATIONS: AAT
		Parties to Proceeding Before AAT: ss 30 and 30A
		Discretion to Allow Person to Become Party
		Persons Joined as Parties
		When Interests ‘Affected’
		Rights of Parties Joined
		Failure of Party to Proceeding to Appear: s 42A(2)
		Death of Party to Proceedings
	CHAPTER 8 PROCEDURE AT HEARING: GENERAL PROCEDURAL ISSUES
		Procedure of Tribunal: Pt 4
		Basic Provision: s 33
		Provisions Requiring Special Procedures
		Obligations of Parties: s 33(1AA), (1AB)
		Arrangements Between and Concessions by Parties
		Procedural Fairness
			General
			Hearing
			Migration and Refugee decisions
			Bias
			General
		Rule in Browne v Dunn
	CHAPTER 9 PROCEDURE AT HEARING: EVIDENTIARY MATTERS
		AAT Not Bound by Rules of Evidence: s 33(1)(c)
		Effect of Rules of Evidence
		Evidence and Natural Justice
		Rulings on Evidentiary and Procedural Matters
			Hearsay evidence
			Incriminating evidence
			Legal professional privilege
			Without prejudice privilege
			Public interest privilege
			Parole evidence rule
			Rule in Jones v Dunkel
			Royal Commission reports
			Findings of other bodies
			Effect of findings by court in other proceedings
			Going behind order
			Evidence challenging criminal conviction
			Criminal statistics
			Textbooks on criminal behaviour
			Medical dictionaries
			Hospital records
			Medical statements of principle
			Trade survey
			Policy statements, etc
			Expert evidence
			Opinion rule
			Trade usage
			Technical words
			Statutory interpretation generally
		Tribunal may Inform Itself on any Matter: s 33(1)(c)
		Reliance by Members on Own Expertise
		Onus of Proof
			No formal onus on applicant
			Onus arising from facts
			Failure to appear or give evidence
			Use of term ‘onus’
			Legislation affecting onus
		Standard of Proof
		Application of Briginshaw Test
	CHAPTER 10 PROCEDURE AT HEARING: PRE-HEARING AND SPECIAL PROCEDURES
		Access to Evidence Prior to Hearing
		Procedure in Lieu of Pleadings
		Statements of Facts and Contentions
		Alternative Dispute Resolution (ADR): ss 34–34H
			Powers of AAT
			Preliminary conferences
			Mediation
			Other forms of dispute resolution
			Provisions applying to all forms of ADR
		Directions Hearings (s 33(1A), (2), (2A))
		Directions as to Evidence
		Preliminary Hearings
		Setting Down for Hearing
		Expedited Hearing
		Review Without Hearing
		Special Review Procedures
	CHAPTER 11 PROCEDURE AT HEARING: FORM OF HEARINGS
		Hearings to be in Public: s 35
		Limitation of Public Hearings
			Circumstances where private hearing permitted
			Position of legal advisers
			Legislative provisions requiring private hearing
		Restrictions on Publication of Evidence, Documents, etc: s 35 (3) and (4)
			Basis for non-disclosure order
			Public interest
		Emergency Orders for Non-Disclosure
		Prohibition on Disclosure of Documents, Evidence to Parties
			Exercise of power generally
			Restrictions on disclosure in Migration and Refugee Division proceedings
			Access by legal representatives and advisers
			Content of reasons
		Prohibiting Publication of Names
			Power to prohibit publication of name
			Application of power to prohibit publication of name
			Prohibition of publication of name on appeal
	CHAPTER 12 PROCEDURE AT HEARING: INFORMATION BEFORE AAT
		Lodging of Documents with AAT: ss 37, 38
		Section 37 or ‘T’ Documents
		Supplementary s 37 Documents
		Ongoing Requirement to Lodge Documents
		Description of Documents to be Lodged
		Direction to Lodge other Documents
		Lodging of Documents to which Privilege Applies
		Access by Applicant to Documents Lodged with AAT
		Migration and Refugee Division
		Modification of Operation of s 37
		Subsidiary Matters Relating to s 37
		Statement of Reasons
		Non-Disclosure of Certain Information: ss 36–36D, 39A–39B
			General
			Disclosure of information or documents: ss 36, 36B
			Answering questions: ss 36A, 36C
			Security Division: ss 39A, 39B
			Migration and Refugee Division
	CHAPTER 13 PROCEDURE AT HEARING: HEARING BEFORE TRIBUNAL
		Appearance and Representation: s 32
			General
			Migration and Refugee Division
			Social Services and Child Support Division: ss 32, 39AA
			Unrepresented applicants
			Role of representatives of parties
			Representation of decision-maker tribunal: Hardiman principle
		Directions at Hearing: s 33
		Presentation of Case
		Opportunity to Make Submissions: s 39
			Operation of s 39
			Re-agitating facts dealt with in previous decision
			Examples of the operation of s 39
			Social Services and Child Support Division
			Migration and Refugee Division
			Security Division
		Examination on Matter not Disclosed Before Hearing
		Summoning of Witnesses: s 40A, Regs 11 and 12
			General power to issue summons
			Discretion to issue
			‘Fishing’ summons
			Test for issuing
			Effect of other legislation
			Other issues
			Social Services and Child Support Division
			Migration and Refugee Division
		Investigation by Tribunal
			General approach
			Effect of decisions relating to migration tribunals procedure
			The AAT’s role: adversarial system
		Inspection Orders: s 40B
			General right of inspection
			Social Services and Child Support Division
			Migration and Refugee Division
		Administration of Oath: s 40(2), (3)
		Taking of Evidence: s 40
		Expert Evidence
		Concurrent Evidence
		Taking of ‘View’
		Telephone and Video Hearings: s 33A
		Interpreters and People with Disabilities
		Cross-Examination
			General position
			Security Division
			Migration and Refugee Division
		Reopening Hearing
		Remitted Matter: Procedure
		Review in Absence of Party: ss 40 and 42A
			General
			Migration and Refugee Division
		Manner in Which Questions to be Decided Where Disagreement: s 42
		Adjournment of Proceedings: s 40
		Record of Proceedings
		Hearing on Papers: s 34J
			General
			Migration and Refugee Division
	CHAPTER 14 STAY OF DECISION
		Stay of Decision: s 41, Regs 7 and 8
			General power to make stay order
			Power applicable only to reviewable decisions
			Modification of stay power
		Making and Effect of Stay Orders
			Approach to making of stay orders
			Stay orders where payments involved
			Form of stay order
			Effect of stay order
	CHAPTER 15 POWERS OF AAT ON REVIEW: ACTIONS PRIOR TO HEARING
		Determination of Scope of Review: ss 25(4A), 33
		Power of AAT to Dismiss Application: ss 42A, 69BA
		Dismissal by Consent: s 42A(1)
		Dismissal Following Withdrawal of Application, etc: s 42A(1A), (1AA), (1B)
		Failure to Appear: s 42A(2), (7)
			General
			Migration and Refugee Division
		Reinstatement of Application Dismissed for Failure to Appear: s 42A(8), (8A), (9)
		Dismissal because Decision not Reviewable: s 42A(4)
		Dismissal for Failure to Proceed: s 42A(5)
		Reinstatement of Application: s 42A(10)
		Extension of Operation of s 42A: s 69BA
		Dismissal of Frivolous or Vexatious Applications: s 42B
			Jurisdiction
			Principles on which order may be made
			Futility of continuing application
			Supplementary orders
			Appeals
		New Application
		Consent Decisions: s 42C
		Remittal of Matter for Further Consideration: s 42D
	CHAPTER 16 POWERS AFTER HEARING
		Review by AAT: General Powers: s 43
			Introduction
			Migration and Refugee Division
			Social Services and Child Support Division
			General operation of s 43
		Tribunal May Exercise all Powers of Decision-Maker
		No Grounds for Review Specified
		Review of Taxation Objection Decisions
		AAT Limited to Review Functions Only
		AAT No Greater Power or Discretion than Decision-Maker
		AAT Not Bound by Applicant’s Grounds for Review or Submissions at Hearing
		Effect of Decision-Maker’s Decision and Procedures on AAT
		Referral of Matter to Ombudsman
		Act of Grace and Compensation Payments
		Waiver of Debts Due to Commonwealth
		AAT to Apply Law as at Date of Review
		Date as at Which AAT to Consider Facts
			The law: Shi’s case
			Decisions applying this approach
			Examples of application of law
		Intervention on Common Law Grounds for Review
		Effect of Government Policy
		Legality Issues and Policy
		Legislative-Approved Policy: Directions, Guidelines, etc
		Review of Content and Application of General Policy and Ministerial Statements
			The AAT and policy: general approach
			Difference between political and departmental policy
			Other considerations
		Effect of Government Statement of Meaning of Legislation
	CHAPTER 17 DECISIONS OF AAT
		Nature of Exercise of Power of Review
		Precedent and AAT Decisions
		Date of Effect of AAT’s Decision: s 43(5A), (5B), (5C) and (6)
		Estoppel, Res Judicata and AAT Decisions
			Problems with application of doctrines
			Inapplicability of concept of estoppel
			Effect of previous decisions
		Raising New Matters: Anshun Estoppel
		Fraud on Tribunal
		Security Appeals Decisions: s 43AAA
		AAT to give Reasons for Decision: s 43(2), (2A), (2B)
		Form and Content of Reasons for Decision
			AAT’s obligation
			Matters to be included in reasons
			Use of standard paragraphs
		Inadequacy of Reasons is Error of Law
		Guidance on Form of Reasons
		Alteration of Reasons — Slip Rule: s 43AA
			Functus Officio
			When has a decision been made
			Jurisdictional error
		Reopening Case
		Return of Documents
		Release of Documents Lodged in Tribunal Proceedings
			‘Harman’ rule
			Special circumstances justifying release
			Practice Direction
	CHAPTER 18 COSTS
		Costs: General
		Costs in Compensation Decisions
			Power to award
			Refusal to award costs
			Test for award of costs
		Costs Under Other Acts
		Amount of Costs and Taxation of Costs: s 69A
	CHAPTER 19 APPEALS FROM AAT DECISIONS
		Appeals to Federal Court: s 44
			General
			Migration and Refugee Division
			Social Services and Child Support Division
		Procedure for Appeals
		Method of Commencement of Appeal
		Constitution of Court on Appeal: s 44(3)
		Transfer of Appeals to Federal Circuit Court: s 44AA
		Appeals from Federal Circuit Court
		Documents to be Sent to Court: s 46
		‘Decision’ Appealable
			Identification of appealable decision
			Application of Chaney’s case test
			Exceptions to Chaney’s case test
			Other means of appeal
		Party Only May Appeal
		Intervention on Appeal
		No Appeal Against Favourable Decision
		Anshun Estoppel and Tribunal Appeals
		Continuing Suppression of Name
		Time to Institute Appeal: s 44(1), (2A), (2B)
			Time limit for appeal
			Extension of time to appeal
			Court’s approach to extension of time applications
		Appeal to State Question of Law
		Objection to Competency of Appeal: r 33.30
		Vexatious Litigant: r 6
		Security for Costs
		Discontinuance of Appeal: r 33.31
		Dismissal or Adjournment of Appeal: rr 33.32, 33.33
		Appeal Must be on Question of Law
			Jurisdiction for appeal
			Question of law cannot be agreed by parties
			Question of law contrasted with error of law
			Appeal right to be confined
			Nature of AAT confines appeal
		Cases Holding Question of Law
			Identification of question of law
			Statutory construction
			Administrative law principles
			Inadequacy of statement of reasons
			Fact–law interplay
			Tribunal procedure and delay
			Appeal based on lack of evidence or weight of evidence
		Admission of New Evidence on Appeal
		Raising New Matters on Appeal
		Court Must Set Aside Erroneous Decision
		Order of Court on Successful Appeal
			Power of court
			Findings of fact
			Limits on fact finding
		Order Where Only One Result Open
		Remitting Case to AAT
		Consent Orders
		Award of Costs on Appeal
			General principles
			Federal Proceedings (Costs) Act
		Effect of Institution of Appeal: s 44A
		Migration Appeals
			Decisions excluded from appeal
			Appeals against Migration and Refugee Division decisions
		Reference of Question of Law to Court: s 45
		Appeal to High Court
		Review Under AD(JR) Act, Judiciary Act
			AD(JR) Act
			Judiciary Act
		Fraud on Tribunal
		Collateral Attack
	CHAPTER 20 MISCELLANEOUS MATTERS: AAT
		Advisory Opinions by AAT: s 59
		Protection of AAT Members, Officers, etc: s 60
		Failure to Comply with Summons; Refusal to be Sworn or Answer Questions: ss 61, 62, 62A, 62B
		Contempt of AAT: s 63
		Confidential Information not to be Disclosed: ss 66, 66A
		Fees for Witnesses: s 67, regs 13–15
		Manner of Service: ss 67A, 68, regs 16–18
		Legal or Financial Assistance: s 69
Appendices
Index