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). See Contacts for AAT and VCAT details.
The relevant legislation for AAT is the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). 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 tribunal can affirm, vary or set aside the decision under review.
The word “decision” is given an extended meaning under the AAT Act (s 3(3)). Under the AAT Act (s 25(5)) and the VCAT Act (s 4(2)(d)), a failure by a decision-maker to act within the prescribed period amounts to a decision. The VCAT Act (s 126) permits time extensions in certain circumstances.
In this chapter, references to “the tribunal” refer to both AAT and VCAT, unless otherwise specified.
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 (www.aat.gov.au). Make sure you look at the most up-to-date list of reviewable decisions. If you are unsure about whether AAT can review a particular decision, contact AAT’s deputy registrar (see “Contacts”).
On 1 July 2015, the Migration Review Tribunal, the Refugee Review Tribunal, and the Social Security Appeals Tribunal were merged with the AAT.
The most common types of decisions that are reviewable by the AAT relate to:
• child support;
• Commonwealth workers’ compensation;
• family assistance, paid parental leave, social security, and student assistance;
• migration and refugee visas and visa-related decisions;
• taxation; and
• veterans’ entitlements.
The AAT also reviews decisions relating to:
• Australian citizenship;
• civil aviation;
• corporations and finance services regulations;
• freedom of information;
• the National Disability Insurance Scheme;
• passports; and
• security assessments made by the Australian Security Intelligence Organisation.
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);
• Aged Care Act 1997 (Cth);
• Australian Citizenship Act 2007 (Cth);
• Australian Passports Act 2005 (Cth);
• Child Support (Assessment) Act 1989 (Cth);
• Civil Aviation Regulations 1988 (Cth);
• Civil Aviation Safety Regulations 1998 (Cth);
• Corporations Act 2001 (Cth);
• Customs Act 1901 (Cth);
• Education Services for Overseas Students Act 2000 (Cth);
• Freedom of Information Act 1982 (Cth);
• Fringe Benefits Tax Assessment Act 1986 (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);
• Industry Research and Development Act 1986 (Cth);
• Migration Act 1958 (Cth);
• Military Rehabilitation and Compensation Act 2004 (Cth);
• Mutual Recognition Act 1992 (Cth);
• National Disability Insurance Scheme Act 2013 (Cth);
• National Vocational Education and Training Regulator Act 2011 (Cth);
• Paid Parental Leave Act 2010 (Cth);
• Safety, Rehabilitation & Compensation Act 1988 (Cth);
• Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth);
• Seafarers Rehabilitation and Compensation Act 1992 (Cth);
• Social Security Act 1991 (Cth);
• Social Security (Administration) Act 1999 (Cth);
• Taxation Administration Act 1953 (Cth); and
• Veterans’ Entitlements Act 1986 (Cth).
AAT’s Taxation and Commercial Division considers a wide range of taxation issues. It informally and inexpensively (the application fee is $91) reviews:
• small taxation disputes (under $5000);
• Tax Office decisions refusing an individual’s request to be released from paying a tax debt (regardless of the amount involved); and
• Tax Office decisions refusing an individual’s request for an extension of time within which to make a taxation objection.
Note that since 1 July 2015 the Small Taxation Claims Tribunal (STCT) no longer exists. Applications that were in the STCT are now dealt with in the AAT’s Taxation and Commercial Division.
VCAT exercises original jurisdiction in some matters (where it acts as the first decision-maker) and review jurisdiction in other matters (where it conducts merits review).
VCAT can review specific decisions made by the Victorian Government and its agencies, statutory authorities and other administrative decision-makers.
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(1)) 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)). These decisions are first reviewed by the Victorian Information Commissioner, see Freedom of information law); and
• WorkSafe assessments.
See also Pizer’s Annotated VCAT Act (see “More information”, for publication details).
In VCAT’s Administrative Division, important areas of reviewable decisions (from the viewpoint of an individual complainant) include decisions made under the following legislation:
• Births, Deaths and Marriages Registration Act 1996 (Vic);
• Building Act 1993 (Vic);
• Children, Youth and Families Act 2005 (Vic);
• Domestic Animals Act 1994 (Vic);
• Estate Agents Act 1980 (Vic);
• Freedom of Information Act 1982 (Vic);
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 Victorian Information Commissioner.
• Health Practitioner Regulation National Law (Vic) Act 2009 (Vic);
• Legal Profession Uniform Law Application Act 2014 (Vic);
• Local Government Act 1989 (Vic);
• Occupational Health and Safety Act 2004 (Vic);
• Planning and Environment Act 1987 (Vic);
• Privacy and Data Protection Act 2014 (Vic);
• Private Security Act 2004 (Vic);
• Racing Act 1958 (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); and
• Working with Children Act 2005 (Vic).
In VCAT’s Human Rights Division, important areas of reviewable decisions include decisions made under the following legislation:
• Assisted Reproductive Treatment Act 2008 (Vic);
• Disability Act 2006 (Vic);
• Medical Treatment Act 1988 (Vic);
• Mental Health Act 2014 (Vic); and
• Public Health and Wellbeing Act 2008 (Vic).
Who can apply to AAT?
Only those 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).
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 objects or purposes (s 27(2), (3) AAT Act).
A person may apply to VCAT if they are entitled to do so under the enabling legislation (s 48 VCAT Act). Each Act has a different definition of who can apply to VCAT to review a decision made under that Act. You should check the relevant Act, or contact VCAT. VCAT’s website has an information about enabling enactment (www.vcat.vic.gov.au/case-types). 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).
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.
Application forms are available from AAT’s website (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(7)-(10) AAT Act); time limit extension forms are available on AAT’s website.
There is no application fee for the review of some types of decisions, including decisions related to Centrelink, freedom of information, the National Disability Insurance Scheme, and Commonwealth workers’ compensation. There is a $91 fee to apply for the review of tax matters. The application fee for the review of migration and refugee decisions is the highest, at $1764 (with the possibility of a 50 per cent reduction). For most other matters, the application fee is $920. This fee 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. For more information about AAT’s fees, see www.aat.gov.au.
Application forms are available from VCAT’s website (www.vcat.vic.gov.au). VCAT must give you reasonable help with your application, if you request it (s 67(4)).
The time limit for submitting an application to VCAT depends on the type of decision you are asking VCAT to review. The different time limits are listed on VCAT’s website (www.vcat.vic.gov.au/steps-to-resolve-your-case/time-limits).
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: www.vcat.vic.gov.au/resources/fees). In some cases, daily hearing fees may apply. Fees may be waived for financial hardship.
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 is known as a stay application (s 41 AAT Act; s 50 VCAT Act).
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 are asking the tribunal to review the decision). Requests for these statements must be made in writing, generally within 28 days of the decision being made.
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 usually starts from the day on which you receive the authority’s reasons, or its refusal to give reasons.
See “Obtaining reasons for government decisions”, for more information.
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).
AAT generally ensures 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.
AAT generally requires the parties to exchange and file statements of issues and 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 (www.aat.gov.au).
VCAT will provide you with information about its procedures (you can also read this information on VCAT’s website at www.vcat.vic.gov.au/steps-to-resolve-your-case). You may be required to attend a directions hearing (or a practice day hearing in the Planning and Environment List) at which you will be told how to prepare for your case.
Generally, tribunals follow three courses of action:
1 directions hearing;
2 a preliminary conference; and/or
3 a public hearing.
There may be a preliminary hearing called a directions hearing if the tribunal wishes to give directions about how the matter is to proceed.
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 the Alternative Dispute Resolution (ADR) Program. There are various types of ADR offered at the tribunals, including mediation and conferences.
If, through ADR, the parties reach an agreement, the tribunal may make a decision without holding a hearing (s 34D(2)-(3) AAT Act; s 93 VCAT Act).
More information about ADR is available on the AAT and VCAT websites.
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.
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 tribunal must provide and pay for an inter-preter if you or another person (e.g. a witness who gives evidence at the hearing) needs an interpreter. You should tell the tribunal that you or another person require an interpreter as early as possible and specify the language or dialect (including Auslan).
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 (see “Natural 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.
Usually, evidence of all witnesses is given on oath or affirmation. Each witness may be questioned by your legal representative or by you if you are self-represented, and will also be cross-examined by the other party. Each party is entitled to make submissions to the tribunal.
Powers and reasoning
AAT and VCAT 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 (either orally or in writing) 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 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.
The general rule is that parties to a proceeding before AAT or VCAT shall bear their own costs.
Under the AAT Act, AAT has no power to award costs (apart from witness costs). However, AAT can award costs in certain matters, including those brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (s 67). Also, under the Freedom of Information Act 1982 (Cth), AAT may, in certain circumstances, recommend to the Attorney-General that the Commonwealth pay the applicant’s costs (s 66).
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.
AAT decisions can be appealed to the Federal Court. 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 (s 44 AAT Act).
VCAT decisions can be appealed to the Supreme Court of Victoria. However, appeals are restricted to questions of law. An appeal must be lodged within 28 days of VCAT’s decision (s 148 VCAT Act).