Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) is an Australian tribunal which provides for quasi-judicial review of administrative decisions by the Australian federal government. It is not a court and not part of the Australian court hierarchy, however its decisions are subject to review by the Federal Court of Australia. The AAT was established by the Administrative Appeals Tribunal Act 1975 and started operation in 1976.
The Tribunal was established by an Act of Parliament in 1975 (the Administrative Appeals Tribunal Act 1975), and started to operate on 1 July 1976.
The AAT does not have a general jurisdiction to review administrative decisions. Rather the individual statutes that empower agencies or Ministers to make decisions also grant jurisdiction to the AAT to review the decisions. For example, certain decisions made by a delegate of the Minister for Immigration and Citizenship under the Migration Act 1958 may be subject to merits review in the AAT. The right of review is provided for in the Migration Act itself.
The Tribunal is not a court. The Australian Constitution mandates a separation of powers between the executive, legislative and judicial branches of government. Judicial review of administrative decisions takes place in courts, such as the Federal Court and the Federal Magistrates Court. Merits review of administrative decisions takes place in the AAT and other tribunals such as the Migration Review Tribunal and the Refugee Review Tribunal. These tribunals remain part of the executive branch of government.
The AAT has jurisdiction to review a number of decisions made under Commonwealth legislation, including in the areas of taxation, immigration, social security, industrial law, corporations and bankruptcy. These decisions may have been made by officials including government ministers, departments, public servants with delegated authority and statutory government bodies. The authority to review administrative decisions is limited to specific areas of government administration where an Act, regulation or other legislative instrument provides for a review by the AAT. The Tribunal has no power to enquire into government decisions generally. More than 400 federal Acts provide for review by the AAT. The Tribunal also has powers to review the decisions of some other Australian tribunals, such as the Social Security Appeals Tribunal and the Veterans' Review Board. The Tribunal has no power to consider the constitutional validity of particular laws or the legality of government decision-making, but only whether decisions taken by government officials under that law have been taken in accordance with the relevant statutory requirements.
The AAT's review of government decisions is merit based: it considers whether, on the facts presented to the Tribunal, the correct decision was made in respect of the applicable law(s) and government procedures. Hearings are conducted de novo. It can 'stand in the shoes of the original decision maker' and reconsider the decision using whatever information is brought before it or available to it. The Tribunal is not bound by the rules of evidence and can use whatever information it chooses to inform its decisions (as can the administrators whose decisions are under review).
As at 30 June 2009 there were 83 members of the Tribunal, of whom 19 were women. There are 14 Judges, 18 full-time members and 51 part-time members.
A President, who must be a judge of the Federal Court of Australia, is appointed by the Attorney-General to head the Tribunal. The current President is Justice Duncan Kerr. Other judges of the Federal Court and the Family Court may be appointed as 'Presidential Members', with the balance of the Tribunal's membership (Deputy Presidents, Senior Members and Members) being drawn from the legal profession or other professional groups. Members of the Tribunal come from a range of backgrounds and include persons with expertise in accountancy, aviation, engineering, environmental science, law, medicine, pharmacology, military affairs, public administration and taxation. Appointments to the Tribunal may be full or part-time. Members are appointed for terms of up to 7 years.
Members of the Tribunal who are legally qualified and have 5 years standing, where authorised to do so, may exercise powers under a number of other Acts. This includes the power to issue telecommunications interception warrants and stored communications warrants under the Telecommunications(Interception and Access) Act 1979, issue warrants and exercise related powers under the Survelliance devices Act 2004 and review certificates that authorise controlled operations under the Crimes Act 1914. Presidential Members and Senior Members who are legally qualified and have 5 years standing, may be appointed as an approved examiners under the Proceeds of Crime Act 2002 The President and Deputy Presidents may be appointed as issuing authorities in relation to the making of continued preventative detention orders under the Criminal Code.
A Registrar and Assistant Registrar assists the President in the management of the Tribunal, as well as overseeing the organisation's 150-plus staff.
Scale of usage
For the year ending 30 June 2009, 6,266 applications were lodged with the Tribunal, 7,231 finalised with 6,179 matters current as at 30 June 2009. Taxation and Social Security appeals made up over half the applications lodged during the period.
The Tribunal makes extensive use of alternate dispute resolution processes. All matters lodged with the tribunal are the subject of a conferencing process. Conferences are conducted by Conference Registrars who are legally qualified and trained in alternative dispute resolution. Conferences perform a dual function, being to try to resolve the matter through negotiation between the parties, or at least clarify the issues in dispute. If the matter cannot be resolved in the conference, the conference registrar may issue binding directions for the preparation of the matter or hearing. Further, there is the option of the conference registrar sending the matter to a more formal ADR process, such as concilliation, mediation, case appraisal or neutral evaluation. In this way the Tribunal adopts a multi-door approach to case resolution with only those matters that cannot be resolved in any other manner going to a formal hearing.
- Pearce 2007, p. 1
- Pearce, Dennis (2007). Administrative Appeals Tribunal (2nd ed.). Australia: LexisNexis Butterworths. ISBN 978-0-409-32405-1.