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).
The AAT and VCAT are independent forums for hearing appeals against a wide range of Federal Government decisions (in the AAT) and State Government decisions (in the VCAT). 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 as to the exercise of any discretion. Any new evidence or arguments may be taken into account.
The relevant legislation for the AAT is the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), as amended (including the Administrative Appeal Tribunal Amendment Act 2005 (Cth)). The Principal Registries of the AAT are located in Sydney and Brisbane. District Registry offices are located in each state. Contact and location details for the Principal and District Registries are provided on the AAT website (see below). In Victoria the location of the AAT is:
The relevant legislation for the VCAT is the Victorian Civil and Administrative Tribunal Act 1988 (Vic) ("VCAT Act"). A list of organisations that may provide free or low cost legal advice and assistance is provided on the VCAT website (see below). The address of VCAT is:
In this chapter reference is made to the Tribunal, meaning the AAT and VCAT, unless otherwise referred to specifically.
The AAT has power to review a decision only where an Act of the Commonwealth Parliament or a Commonwealth Regulation has given it power, or where the right is set out in a Schedule to the AAT Act (s.25). More than 400 separate Acts or Regulations give the AAT power to review decisions, which may include Orders, Notices, Determinations and Principles.
The list is constantly changing. The list, and relevant legislation, is accessible via the AAT website by going to www.aat.gov.au and clicking on "Legislation and jurisdiction". Lawbook Co. publishes a useful looseleaf service on federal administrative law (by Flick). An online service is provided by LexisNexis AU (www.lexisnexis.com.au). Any queries should be directed to the Deputy Registrar of the AAT.
The jurisdiction of the AAT is not comprehensive. Many decisions of a number of important Commonwealth tribunals may not be appealed to the 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 the AAT came into existence.
Decisions under the Social Security Act 1991 (Cth) come within the jurisdiction of the AAT (see: Chapter 7*2 Social Security Appeals Tribunal). However, an appeal cannot be brought to the AAT unless the decision in question has been reviewed by the Social Security Appeals Tribunal.
The Veterans' Appeals Division is a Division of the AAT for the purposes of review of decisions regarding veterans' affairs.
The Small Taxation Claims Tribunal (STCT) is a tribunal set up within the Taxation Division of the AAT. The STCT provides informal and inexpensive review ($77 fee from 1 July 2010) of small taxation disputes (under $5,000) and decisions refusing an individual's request to be released from paying a tax debt (regardless of the amount involved). It can also review decisions of the Tax Office refusing a request for an extension of time within which to make a taxation objection.
The Taxation Appeals Division of the AAT considers a wide range of taxation issues. Specific provisions of the Income Tax Assessment Act 1936 (Cth) cover the relevant procedure.
For individuals, the most important areas of the AAT's jurisdiction are covered by these Commonwealth Acts, related Acts and Regulations:
A New Tax System (Family Assistance) (Administration) Act 1999
A New Tax System (Goods and Services Tax) Act 1999
Aboriginal and Torres Strait Islander Act 2005
Aboriginal and Torres Strait Islander Commission Amendment Act 2005
Aged or Disabled Persons Care Act 1954
Australian Citizenship Act 2007
Australian Participants in British Nuclear Tests (Treatment) Act 2006
Australian Sports Anti-Doping Authority Regulations 2006
Aviation Transport Security Regulations 2005
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Commonwealth Electoral Act 1918
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Defence Force Retirement and Death Benefits Act 1973
Disability Discrimination Act 1992
Energy Efficiency Opportunities Act 2006
Environment Protection and Biodiversity Conservation Act 1999
First Home Saver Accounts Act 2008
Freedom Of Information Act 1982
Higher Education Funding Act 1988
Higher Education Support Act 2003
Income Tax Assessment Act 1936
Income Tax Assessment Act 1997
Migration Act 1958 (Note: The AAT only does deportations of non-citizens on conviction of serious offences. Most disputes under the Act are heard by the Migration Review Tribunal or the Refugee Review Tribunal. See: Chapter 22 Immigration for information about these tribunals.)
Private Health Insurance Act 2007
Safety, Rehabilitation and Compensation Act 1988
Veterans' Entitlements Act 1986
Where it receives an application, the AAT may review any decision made under the specified section(s) of the specified Acts (s.25(4) AAT Act).
The word decision is given an extended meaning under the Act. For the purposes of section 25, a failure to do an act within the prescribed period will amount to a decision (s.25(5)). Decision is also defined in section 3(3) of the Act.
VCAT exercises original and review jurisdiction (ss.40–57 VCAT Act). Review jurisdiction is conferred on VCAT by or under an enabling enactment to review a decision made by an original decision-maker (s.42(1)). Guardianship matters are part of VCAT's original jurisdiction and not the review jurisdiction (s.42(2)). In exercising its review jurisdiction in respect of a decision, VCAT has all the powers and functions of the original decision-maker in question, as well as any other functions conferred on the VCAT by or under the enabling enactment, together with any further functions as may be conferred by or under the VCAT Act (s.51(2)).
A full list of legislation allowing application and referral to VCAT is provided on the VCAT website at www.vcat.vic.gov.au (follow link to "Legislation–Practice Notes"). Important areas of the reviewable decisions (from the viewpoint of an individual complainant) include decisions made under the following Acts:
Accident Compensation Act 1985
Births, Deaths and Marriages Registration Act 1996
Consumer Credit (Victoria) Act 1995
Country Fire Authority Act 1958
Domestic Animals Act 1994 (re "dangerous dogs")
Environment Protection Act 1970
Freedom of Information Act 1982
Guardianship and Administration Act 1986
Health Professions Registration Act 2005
Occupational Health and Safety Act 2004
Planning and Environment Act 1987
Planning and Environment Regulations 2005
Racial and Religious Tolerance Act 2001
Superannuation (Portability) Act 1989
Victims of Crime Assistance Act 1996
Working with Children Act 2005
Complaints about legal services can only be made to the VCAT when review by the Legal Services Commissioner is exhausted (Legal Profession Act 2004 (Vic), s.4.3.15). (See: Chapter 2*2 Legal Representation for information about the regulation of the legal profession.)
As in the Commonwealth legislation, the word "decision" is given an extended meaning under the VCAT Act and a failure to do an act within the prescribed time will amount to a decision (s.4(1)). See, however, section 126 of the VCAT Act in respect of extension of time.
The complete list of reviewable decisions is published in Victorian Administrative Law (Lawbook Co., looseleaf service). See also Pizer, Annotated VCAT Act (2007), published by JNL Nominees. To obtain the latest information, check with the Principal Registrar of VCAT or go to www.vcat.vic.gov.au.
VCAT also has a Civil Claims List for disputes relating to the Fair Trading Act 1999 (Vic).
The Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter") imposes an obligation on all public authorities to act in a way that is compatible with human rights, and to give proper consideration to relevant human rights when making a decision (s.38).
Where a person seeks review or relief from the decision of a public authority on the ground that the act or decision is unlawful, that person may seek relief or remedy on a ground of unlawfulness arising under the Charter (s.39). The Victorian Equal Opportunity and Human Rights Commission may intervene in, and be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of the Charter, or when a question arises with respect to the interpretation of a statutory provision in accordance with the Charter (s.40). See also: Chapter 17 Discrimination, for the further information.
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REVIEWABLE DECISIONS :: Last updated: Thu Jul 1st 2010