ADMINISTRATIVE APPEALS TRIBUNALS

The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”), and has power to review a decision only where a Commonwealth Act or Regulation has given it power, or where the right is set out in a Schedule of the AAT Act. There are more than 400 separate enactments that give the AAT power to review decisions including Orders, Notices, Determinations and Principles. Queries about whether a decision is reviewable and the enabling enactment may be directed to the Deputy Registrar of the AAT or www.aat.gov.au.

Divisions of the AAT set up for review of particular decisions including the Veterans’ Appeals Division, the Small Taxation Claims Tribunal (STCT) and the Taxation Appeals Division.

When the ATT receives an application, it may review any decision made under an enabling enactment. A decision is defined to include a failure to do an act within the prescribed period.

Decisions of a number of important Commonwealth authorities created by enactments may limit the ability of the AAT to review a decision. For instance:

The VCAT was established by the Victorian Civil and Administrative Tribunal Act 1988 (Vic) (the "VCAT Act") and gives it original and review jurisdiction. Review jurisdiction allows VCAT to review a decision made by an original decision-maker when prescribed under an enabling enactment. In exercising its review jurisdiction, VCAT has all the powers and functions of the original decision-maker, as well as any other functions conferred on the Tribunal by or under the enabling enactment and the VCAT Act. Queries about reviewable decisions and the enabling enactment may be directed to Principal Registrar of VCAT orwww.vcat.vic.gov.au.

In the VCAT, the word decision also includes a failure to do an act within the prescribed time. However, the VCAT Act does provide for an extension of time to do an act.

The Charter of Human Rights and Responsibilities

The Charter of Human Rights and Responsibilities 2006 (Vic) ("the Charter") imposes an obligation on all public authorities to give proper consideration to human rights and act in a way that is compatible with these rights. If you seek review of a decision on the basis that the act or decision is unlawful, you may also seek relief or remedy on the basis of unlawfulness under the Charter. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) may intervene and be joined as a party to the proceeding where there is a question of law or issue of statutory interpretation relating to the Charter.

If your interests are affected by a decision you may apply to the Tribunal for a review of the decision. Where there is doubt about whether your interests are affected, will be decided by the Tribunal. Interest is interpreted widely to refer to interest of any kind, not just proprietary, economic or financial interests. However, legislation may modify the definition of people who may apply for review, so you should check the enabling enactment under which the decision was made.

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, shall be taken to have interests affected by a decision if the decision relates to a matter which was included in the objects or purposes of the organisation or association at the time of the decision.

If the authority that made the decision did not inform you of the facts or reasons upon which the decision was made, you may apply to the authority in writing, requesting a written statement setting out the facts and authority’s reasons. These reasons may assist you in identifying potential grounds for review.

If requested, the decision-maker must make a statement of reasons within 28 days. The 28-day period in which to lodge an application for review runs from the day on which you receive the authority’s reasons, or its refusal to give reasons. In certain cases, a decision-maker is not required to give reasons for a decision where the matter involves the public interest.

Applications to the Tribunals have to be set out in writing and may be made on the official form(s) available from the AAT or VCAT. The grounds of review should be set out in the application and sent to the relevant Tribunal within 28 days of the day on which the decision was made known to you. Time limits in the AAT do vary and can be between seven days and six months from the decision, so the time limit should be checked at www.aat.gov.au.

An application fee of $682 is payable to the AAT in many cases (check with the Tribunal), but may be waived if you provide evidence of financial hardship or refunded if you are successful. There is a basic fee of $291.20 for VCAT but varies for each List. The fee may be waived for financial hardship.

The Tribunal will then notify the authority which made the decision that an application for review has been made. The time for applying may be extended and an application can be made on a official form available from the Tribunal.

The application for review does not automatically stop the implementation of a decision, but if you are affected may apply to the AAT or VCAT to have the implementation of the decision postponed. This should be made on the official form.

After the application is lodged, the Tribunal will ask the authority for a statement of the facts on which its decision was made and its reasons for the decision. The authority must supply the Tribunal with every other document in its possession relevant to its decision. The Tribunal must ensure that you have access to the statements of the Authority and to the documents on which the Tribunal proposes to rely. However, there are some special exceptions.

The 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 the AAT Registry. VCAT practice notes and usual orders provide direction on how to proceed in the different lists or areas of that Tribunal. Generally, all parties are required to exchange and file well in advance of the hearing (at the very latest, 14 days before) 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 the Tribunal to make.

There are often different requirements depending on the enabling enactment. If in doubt, check with the Registrar.

The two main courses of action are generally followed by the AAT or VCAT are a preliminary conference and/or a public hearing.

Both the AAT and VCAT include a mediation program as part of the pre-hearing process. Detailed guidelines and practice notes are available from the respective registrars.

The Administrative Appeals Tribunal Amendment Act 2005 (Cth) expands the scope of alternative dispute resolution (ADR) processes available to the AAT to include conferencing, mediation, neutral evaluation, case appraisal and conciliation (s.3(1)). Information on process models and the AAT Alternate Dispute Resolution (ADR) Guidelines 2006 are available at www.aat.gov.au.

A preliminary conference is a private conference for discussing and narrowing the issues in dispute and possibly reaching a settlement. It is usually held between the parties or, possibly, their representatives and a member of the Tribunal. If there is agreement between parties, the Tribunal may make a decision without holding a hearing. Proceedings at the AAT and VCAT may also be conducted by way of a compulsory conference. If the matter is not resolved at the conference, (or if the Tribunal did not direct a conference be held), the Tribunal will set the matter down for a hearing. 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.

The Tribunal typically directs a public hearing where all parties to the hearing are notified in advance. While Tribunals must observe the requirements of natural justice they are also under a duty to act as quickly and as informally as possible. 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 and re-examined. In VCAT, if the parties agree, the Tribunal may conduct all or part, entirely on the basis of documents without any physical appearance by the parties, their representatives or witnesses.

Both the AAT and VCAT are under an obligation to give reasons for their decisions and findings of fact, subject to specified exceptions in the relevant Act. If requested they must give written reasons. In certain cases VCAT must apply stated government policy. The AAT and VCAT have the power to:

The general rule is that parties to a proceeding before either the AAT or VCAT bear their own costs. In regard to the power to award costs: