Administrative appeals tribunals

 

The AAT and VCAT are the administrative review tribunals for decisions by Commonwealth and State government bodies. Administrative decisions need to be made subject to review in legislation, either in the Act setting up the tribunal or in the particular legislation giving power to the decision maker. This changes frequently as legislation changes, but lists are available on the web. The AAT has a special tax division. VCAT has original jurisdiction for various civil claims as well as its review jurisdiction. In Victoria the Charter of Human Rights and Responsibilities is an overlay on all decisions and proceedings.

AAT and VCAT: introduction

People affected by certain decisions of the Commonwealth Government or its agencies may appeal to the Commonwealth Administrative Appeals Tribunal (AAT). Similarly, people affected by certain decisions of the Victorian Government or its agencies may appeal to the Administrative Division of the Victorian Civil and Administrative Tribunal (VCAT). Contact details for AAT and VCAT are supplied at the end of this chapter.

The relevant legislation for AAT is the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), as amended (including the Administrative Appeals Tribunal Amendment Act 2005 (Cth)). The relevant legislation for VCAT is the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”).

AAT and VCAT are independent forums for hearing appeals against a wide range of government decisions. Appeals to these tribunals are brought on their merits, so the tribunal can take a fresh look at the relevant facts and the relevant law and make up its own mind about the matter. New evidence or arguments may be taken into account.

The word “decision” is given an extended meaning under the AAT Act. Under section 25(5), failure to act within the prescribed period amounts to a decision. “Decision” is also defined in section 3(3) of the AAT Act. However, see also the section of VCAT Act (s 126) about time extensions.


NOTE

In this chapter, references to “the tribunal” refer to both AAT and VCAT, unless otherwise specified.


Decisions AAT may review

AAT can only review a decision where a Commonwealth Act or Regulation gives it the power to do so, or where the right is in the AAT Act (s 25). More than 400 separate Acts and Regulations give AAT the power to review decisions.

The list of which decisions AAT can review is constantly changing. The list, and relevant legislation, is available on AAT’s website (at www.aat.gov.au). If you are unsure about whether AAT can review a particular decision, contact AAT’s Deputy Registrar.


NOTE

From 1 July 2015, the Migration Review Tribunal, the Refugee Review Tribunal, the Social Security Appeals Tribunal, and the FOI review functions of the Office of the Australian Information Commission and the Classification Review Board were merged with the AAT.


AAT’s jurisdiction is not comprehensive. The decisions of certain important Commonwealth tribunals can not be appealed to AAT. These include the Security Appeals Tribunal (under the Australian Security Intelligence Organisation Act 1979 (Cth)) and the Disciplinary Appeals Board (under the Public Service Act 1999 (Cth)), each of which was established after AAT came into existence.

Decisions under the Social Security Act 1991 (Cth) come within AAT’s jurisdiction (see Dealing with social security).

The Veterans’ Appeals Division of AAT reviews decisions about veterans’ affairs.

For individuals, the most important areas of AAT’s jurisdiction are covered by the following legislation:

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth);

A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Aboriginal and Torres Strait Islander Act 2005 (Cth);

Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth);

Age Discrimination Act 2004 (Cth);

Aged Care Act 1997 (Cth);

Aged or Disabled Persons Care Act 1954 (Cth);

Australian Citizenship Act 2007 (Cth);

Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth);

Australian Passports Act 2005 (Cth);

Australian Sports Anti-doping Authority Regulations 2006 (Cth);

Aviation Transport Security Regulations 2005 (Cth);

Bankruptcy Act 1966 (Cth);

Child Support (Assessment) Act 1989 (Cth);

Child Support (Registration and Collection) Act 1988 (Cth);

Commonwealth Electoral Act 1918 (Cth);

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

Criminal Code Act 1995 (Cth);

Customs Act 1901 (Cth);

Defence Force Retirement and Death Benefits Act 1973 (Cth);

Disability Discrimination Act 1992 (Cth);

Disability Services Act 1986 (Cth);

Energy Efficiency Opportunities Act 2006 (Cth);

Environment Protection and Biodiversity Conservation Act 1999 (Cth);

First Home Saver Accounts Act 2008 (Cth);

Freedom of Information Act 1982 (Cth);

Health Insurance Act 1973 (Cth);

Higher Education Funding Act 1988 (Cth);

Higher Education Support Act 2003 (Cth);

Income Tax Assessment Act 1936 (Cth);

Income Tax Assessment Act 1997 (Cth);

Insurance Act 1973 (Cth);

Migration Act 1958 (Cth)

Privacy Act 1988 (Cth);

Private Health Insurance Act 2007 (Cth);

Safety, Rehabilitation and Compensation Act 1988 (Cth);

Sex Discrimination Act 1984 (Cth);

Social Security Act 1991 (Cth);

Student Assistance Act 1973 (Cth);

Superannuation Act 1976 (Cth);

Veterans’ Entitlements Act 1986 (Cth).

AAT’s Taxation and Commercial Division

AAT’s Taxation and Commercial Division considers a wide range of taxation issues. It informally and inexpensively (the fee is $81) reviews:

small taxation disputes (under $5,000);

Tax Office decisions refusing an individual’s request to be released from paying a tax debt (regardless of the amount involved);

Tax Office decisions refusing an individual’s request for an extension of time within which to make a taxation objection.

Note that the Small Taxation Claims Tribunal (STCT) no longer exists from 1 July 2015. Applications that were in the STCT are now dealt with in the AAT’s Taxation and Commercial Division.

Decisions VCAT may review

VCAT exercises two jurisdictions:

review jurisdiction;

original jurisdiction (ss 40–57 VCAT Act).

VCAT’s review jurisdiction

VCAT’s Administrative Division can review specific decisions made by the Victorian Government and its agencies.

In reviewing decisions, VCAT has all the powers and functions of the original decision-maker in question, as well as any other functions conferred on VCAT by the VCAT Act (s 51(2) or by the enabling enactment.

The decisions VCAT can review relate to:

local council land valuations and planning permits (e.g. under the Planning and Environment Act 1987 (Vic));

Transport Accident Commission findings (under the Transport Accident Act 1986 (Vic);

state taxation (e.g. under the Land Tax Act 2005 (Vic));

business licences and professional registrations (e.g. a decision that affects a person’s ability to hold an occupational licence as a doctor, architect, dentist or lawyer);

disciplinary proceedings across a range of professions and industries;

freedom of information applications (under the Freedom of Information Act 1982 (Vic). Since 2012 these decision are first reviewed by the Freedom of Information Commissioner, see Freedom of information law); and

WorkSafe assessments.

A complete list of reviewable decisions is published in Victorian Administrative Law (Lawbook Co., looseleaf service). See also Annotated VCAT Act by Pizer (published by JNL Nominees).

Important areas of reviewable decisions (from the viewpoint of an individual complainant) include decisions made under the following legislation:

Accident Compensation Act 1985 (Vic);

Adoption Act 1984 (Vic);

Births, Deaths and Marriages Registration Act 1996 (Vic);

Country Fire Authority Act 1958 (Vic);

Dangerous Goods Act 1985 (Vic);

Disability Act 2006 (Vic);

Domestic Animals Act 1994 (Vic);

Environment Protection Act 1970 (Vic);

Equal Opportunity Act 2010 (Vic);

Freedom of Information Act 1982 (Vic);


NOTE

Since the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012 (Vic) commenced, VCAT has jurisdiction to review a decision of the principal officer of an agency or a minister directly, but decisions made by other officers of the agency must be first reviewed by the Freedom of Information Commissioner.


Gambling Regulation Act 2003 (Vic);

Guardianship and Administration Act 1986 (Vic);

Health Professions Registration Act 2005 (Vic);

Information Privacy Act 2000 (Vic);

Legal Profession Act 2004 (Vic);

Local Government Act 1989 (Vic);

Medical Treatment Act 1988 (Vic);

Mental Health Act 1986 (Vic);

Occupational Health and Safety Act 2004 (Vic);

Planning and Environment Act 1987 (Vic);

Planning and Environment Regulations 2005 (Vic);

Racial and Religious Tolerance Act 2001 (Vic);

State Superannuation Act 1988 (Vic);

Superannuation (Portability) Act 1989 (Vic);

Transport Accident Act 1986 (Vic);

Valuation of Land Act 1960 (Vic);

Victims of Crime Assistance Act 1996 (Vic);

Water Act 1989 (Vic);

Working with Children Act 2005 (Vic).

VCAT’s original jurisdiction

VCAT’s Civil Division hears and determines a range of civil disputes or claims between people (i.e. disputes or claims that do not relate to a government decision). The civil disputes that VCAT hears include:

disputes between landlords and tenants – under a residential lease (Residential Tenancies Act 1997 (Vic) and Retirement Villages Act 1986 (Vic)) or a retail lease (Retail Leases Act 2003 (Vic));

disputes between members of owners corporations (under the Owners Corporations Act 2006 (Vic));

disputes involving domestic building work (under the Domestic Building Contracts Act 1995 (Vic);

complaints about discrimination (under the Equal Opportunity Act 2010 (Vic));

claims of unfair trade practices such as misleading or deceptive conduct or consumer goods failing to meet the consumer’s requirements (under the Australian Consumer Law and Fair Trading Act 2012 (Vic);

claims for damage caused by the use or flow of water between properties (under the Water Act 1989 (Vic));

disputes relating to legal services;

Note that complaints about legal services can only be made to VCAT when review by the Legal Services Commissioner is exhausted (s 4.3.15 Legal Profession Act 2004 (Vic)). For information about the regulation of the legal profession, see Legal representation.

disputes relating to the sale and ownership of real property;

disputes relating to guardianship (s 42(2) VCAT Act).

Charter of Human Rights and Responsibilities Act

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) imposes an obligation on all public authorities (e.g. governments, local councils) to act in a way that is compatible with human rights, and to give proper consideration to relevant human rights when making decisions (s 38).

A person may be able to seek a review of a public authority’s decision on the grounds that the decision is unlawful under the Charter Act (s 39). If you think your human rights have been breached by a public authority, you should try to raise it with the authority first. If the matter cannot be resolved, you may be able to make a complaint to the Victorian Ombudsman (seeContacts”).

The Charter Act gives the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission a statutory right to intervene in legal proceedings (in any court or tribunal) where a question of law arises about the application of the Charter Act or the interpretation of another law in light of the Charter Act (s 40).

For further information, see Discrimination and human rights.

Making an application to AAT or VCAT

Who can apply?

AAT

Only those (or their representatives) whose interests are affected by a decision may apply to AAT to review that decision (s 27 AAT Act). A person who thinks a decision is wrong, but whose interests are not affected by the decision, cannot apply to AAT. Where there is doubt about whether a person’s interests are affected, AAT will decide if the person can apply for a review (s 31 AAT Act).

Community groups are given a wide right of access to the tribunals. The AAT Act states that an organisation or association (whether incorporated or not) is considered to have interests that are affected by a decision if the decision relates to the organisation’s purposes (s 27(2), (3) AAT Act).

VCAT

A person may apply to VCAT if they are entitled to do so under the enabling legislation (s 48 VCAT Act). This means that each Act has a different definition of who can apply to VCAT to review a decision made under that Act. So, you should check the relevant Act, or contact VCAT.

When an Act states that any person whose interests are affected by a decision made under that Act may apply to VCAT to review the decision, the term “interests” refers to interests of any kind (i.e. not just proprietary, economic or financial interests) (s 5 VCAT Act).

Under section 61 of the VCAT Act, an unincorporated association cannot be a party to a proceeding–although an authorised person is permitted to make submissions to VCAT on behalf of the unincorporated association. However, an unincorporated association can be a party to a proceeding that is brought under the Equal Opportunity Act 2010 (Vic).

How do you apply?

Applications to the tribunals must be in writing. If, after submitting an application, you decide not to proceed with your application, the tribunal must also be notified of this in writing.

AAT applications

Application forms are available from AAT’s website at www.aat.gov.au.

The time limit for submitting an application depends on the type of decision you are asking AAT to review (time limits vary between seven days and six months from the date of the decision). The varying time limits are listed on AAT’s website. The time limit for applying may be extended (s 29 AAT Act); time limit extension forms are available on AAT’s website.

In some cases, you will have to pay an application fee of $816 (this figure is correct as of 30 June 2014). However, this may be reduced to $100 if you provide evidence of financial hardship. If you have paid a full application fee and your application is resolved in your favour, most of the fee will be refunded. There is no refund if you paid the reduced application fee.

VCAT applications

Application forms are available from VCAT’s website (at www.vcat.vic.gov.au).

Applications should be sent to VCAT within 28 days of the day on which you were informed of the relevant decision. The time limit for applying may be extended (s 126 VCAT Act); time limit extension forms are available on VCAT’s website.

Application fees vary according to the type of dispute and the Act under which the application is made (the various application fees are listed on VCAT’s website). Fees may be waived for financial hardship.

Will an application stop a decision taking effect?

An application for review does not automatically stop the decision from being implemented. However, the person affected may apply to the tribunal to have the implementation of the decision postponed. This postponement application should be made using the official forms (s 41 AAT Act; s 50 VCAT Act); which are available on the AAT and VCAT websites.

Before you appeal: asking for the reasons for a decision

If the authority that made the decision did not inform you of the reasons for its decision, you may ask that authority to send you a written statement that outlines the facts and reasons for the decision (this statement will help you identify the grounds on which you’re asking the tribunal to review the decision). Requests for these statements must be made in writing. This statement must be sent to you within 28 days of the authority receiving your request (s 28 AAT Act; ss 45–47 VCAT Act).

In certain cases, an authority is not required to give reasons for a decision where the matter involves the public interest.

The time frame in which you need to lodge an application for review with the tribunal starts from the day on which you receive the authority’s reasons, or its refusal to give reasons.

See alsoObtaining reasons for government decisions”.

After lodging an application to AAT or VCAT

Notifying the authority

After the application for review has been lodged, the tribunal will ask the authority for a statement of the facts and reasons on which its decision was made. The authority also has to supply the tribunal with every document in its possession that is relevant to its decision (s 37 AAT Act; s 49 VCAT Act).

The tribunal must ensure that you have access to the authority’s statements and to the documents on which the tribunal proposes to rely (s 39 AAT Act). There are some special exceptions to this (ss 34, 35).

AAT requires the parties to exchange and file a statement of facts and contention (including legal arguments) on which they intend to rely. A copy of the practice directions can be obtained from AAT’s website (at www.aat.gov.au).

VCAT practice notes and usual orders provide direction on how to proceed in the Tribunal’s different lists (or sections, e.g. Transport Accident Commission matters or residential tenancies). Generally, all parties are required to exchange and file well in advance of the hearing (at the latest, 14 days prior) all written material (including medical reports) on which they intend to rely at the hearing, together with written statements of the evidence of each proposed witness, including the applicant. VCAT requires the applicant to lodge a statement setting out the decision that the applicant desires VCAT to make. There are different requirements depending on the various enactments. If in doubt, check with the tribunal’s registrar.

Procedure

Generally, two main courses of action are followed by the tribunals:

1 a preliminary conference; and/or

2 a public hearing.

Preliminary conference

A preliminary conference is a private, pre-hearing conference for discussing and narrowing the issues in a dispute and possibly reaching a settlement. The tribunals may direct there be a preliminary conference between the parties or between their legal representatives and a member of the tribunal. If the applicant fails to attend a preliminary conference, their application may be dismissed.

These preliminary conferences are part of a program called alternative dispute resolution (ADR). There are three types of ADR offered at the tribunals:

conferences;

mediation;

short mediation and hearing.

If, through ADR, the parties reach an agreement, the tribunal may make a decision without holding a hearing (s 34A(4), (5) AAT Act; s 93 VCAT Act).

More information about ADR is available on the AAT and VCAT websites.

Public hearing

If the matter is not resolved through ADR (or if the tribunal does not refer the matter to ADR), it will be referred to a hearing on a particular date and time.

There may be a preliminary hearing called a directions hearing if the tribunal wishes to give directions as to how the matter is to proceed.

Hearings are conducted in public unless the tribunal directs otherwise (e.g. that a hearing be held by telephone or video link). All parties to the hearing are notified well in advance of the hearing date.

The tribunals can proceed with a hearing even if one of the parties is absent (if the party has had reasonable notice of the hearing date). The tribunals must observe the requirements of natural justice (seeNatural justice” in “Judicial review”) but are also under a duty to act as quickly and with as little formality as possible.

If one of the parties has a very good reason for wishing to change the hearing date, they should contact the opposing party and ask for their consent to adjourn the hearing. They should then apply to the tribunal for an adjournment. If the opposing party does not agree to an adjournment, then the party wanting the adjournment should still apply to the tribunal. The opposing parties may then need to attend a hearing of the application for an adjournment.

At the hearing of the application for review, the applicant usually presents their case first. Evidence of all witnesses is given on oath or affirmation, and each witness may be questioned by the tribunal and cross-examined by the parties to the hearing and re-examined.

Each party is entitled to make submissions to the tribunal. However, in VCAT, if the parties to a proceeding agree, the tribunal may conduct all or part of the proceeding entirely on the basis of documents without any physical appearance by the parties, their representatives or witnesses (s 100(2) VCAT Act).

Possible outcomes of AAT and VCAT applications

Powers and reasoning

AAT and VCAT (under its review jurisdiction) have the power to:

1 affirm the decision under review;

2 vary the decision under review;

3 set aside the decision under review and make a new decision, or compel the relevant authority to make a new decision that is in accordance with the tribunal’s directions; or

4 dismiss the application for review.

Note that in certain cases VCAT must apply stated government policy (s 57 VCAT Act).

Both tribunals must give reasons for their decisions (subject to specified exceptions in the relevant Act). If requested, they must outline their reasons in writing (s 43 AAT Act; s 117 VCAT Act).

The AAT only has a review jurisdiction. It cannot determine disputes between citizens (such as residential landlord and tenant or retail tenant and landlord).

VCAT has an original jurisdiction as well as the review jurisdiction. VCAT in the original jurisdiction can order parties may amounts of money by way of damages to other parties. These orders are registered in the state court that has jurisdiction over the amount involved and enforced as an order of that court (s 121 VCAT Act).

Special provisions

The powers and procedures of the tribunals are modified by special provisions in certain Acts and Regulations. For example, there are special provisions relating to VCAT hearing state taxation cases and planning cases. The particular legislation under which the tribunal is operating must be checked in each case.

Costs

The general rule is that parties to a proceeding before AAT or VCAT shall bear their own costs.

AAT

Under the AAT Act, AAT has no power to award costs (apart from witness costs). However, AAT can award costs in matters brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (s 67). Also, under the Freedom of Information Act 1982 (Cth) (s 66), AAT may, in certain circumstances, recommend to the Attorney-General that the Commonwealth pay the applicant’s costs.

VCAT

VCAT has the power to award costs (s 109 VCAT Act). However, in the VCAT Act, there is a significant departure from the rule that the successful party will be awarded costs. Instead, awarding costs is discretionary and each case is assessed on its own merits. For example, costs may be awarded when a party has acted in a vexatious manner during proceedings, or where a party has caused undue delay.

VCAT cannot award costs in proceedings concerning “small claims” (claims of less than $10,000). This power was removed by section 183 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

Right of appeal

AAT

AAT decisions can be appealed in the Federal Court (www.fedcourt.gov.au). However, appeals are restricted to questions of law and “refusals to grant standing” (where the AAT has not allowed you to be a party to a particular matter). An appeal must be lodged within 28 days of AAT’s decision.

VCAT

VCAT decisions can be appealed in the Supreme Court of Victoria (www.supremecourt.vic.gov.au). However, appeals are restricted to questions of law. An appeal must be lodged within 28 days of VCAT’s decision.