2. AAT & Merits review

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Merits Review &AAT Merits review by Administrative Tribunals ↔ Judicial review by courts = having decisions of the executive reviewed on their merits = reconsideration of all aspects of the original decision—law, fact, discretion and policy Overview • Bodies o Queensland—QCAT established 1 Dec 2009 (powers & functions mainly as per AAT) o Federal—The Administrative Appeals Tribunal (AAT) established under the AAT Act 1975 (Cth).  holistic tribunal  Expected to increase the standard of government decision-making • Determination o what is the ‘correct or preferable’ decision: Re Becker and Minister for Immigration and Ethnic Affairs; adopted by FFC in Drake v Minister for Immigration and Ethnic Affairs o what is ‘fair and reasonable’  shows some deference to the decision-maker o ‘stand in the shoes’ of the primary administrator • Method o generally inquisitorial (=that they can inform themselves of anything that they want) o As requiring little formality and expediency as the circumstances may permit: AAT Act s33(1)(b) • Effect o Decisions substituted for the original decision-makers decision o ↔ Judicial review—only considers the legality of a decision does not reconsider  Although it does allow consideration as to whether a decision is ‘unreasonable’ Benefits and negatives of merits review • Benefits o Addressing the substance of individual claims, in order to seek the ‘correct or preferable’ decision o Improve government decision-making o Provide an accessible and responsible mechanism for the review of a range of grievances o Enhance the accountability of government o Reduce demand for judicial intervention, therefore reducing costs • Negatives: o May be supplanting the role of parliament in keeping executive accountable; o May hurt fiscal responsibility – AAT is free from fiscal constraints o May mean that individuals are favoured over the interests of the wider community Bodies conducting MR • External boards—tribunals, councils, commissions, agencies and authorities o also deciding decisions at first instance  eg town planning, broadcast licensing and indigenous land claims o have executive and judicial functions • Internal review—government agency making the decision reviews decision itself o Would allow for an expedient, cost-effective, administrative body conscious way of reviewing a decision Andrew Trotter LWB335 Administrative Law o However, may also inflame tensions between applicant and department, discourage good primary decision-making, or impede formal review Development th • Establishment of tribunals and boards to determine public policy issues began in the early 20 century o eg tax review boards and war pensions entitlement tribunals o created in an ad hoc way • Also, reaction to the cost and rigidity of JR also led the charge • During the 1960s and 1970s, the government was becoming more interventionalist – lot more decisions and regulations being made, affecting citizens • Failure of parliament and court to keep up with executive action o Courts were unable to control the trend, as it operated primarily for private law remedies  Also, court action was prohibitively expensive o Parliament unwilling to supervise all admin bodies Kerr committee, 1968 – report in 1971 • Review of judicial and merits review • Recommended an intricate system of merits review, based on one major Tribunal (AAT) Bland report, 1973 • Surveyed mass of Commonwealth legislation, which ought to be amenable to review Ellicot Committee, 1973 • Supported the Kerr committee’s recommendations on JR Administrative Appeals Tribunal Act 1975 (Cth) • Passed in 1975 • Set-up under the Fraser government o Later introduced Commonwealth Ombudsman and statutory JR • It introduced a broad, power, quasi-judicial, quasi Specific review boards • Such as the Veterans’ Review Board, and the Social Security Appeals Tribunal – which are subordinate to the AAT • Some are almost completely independent – such as the Immigration Review Tribunal and the Refugee Review Tribunal Merits review and the separation of powers • Merits review said to be quasi-judicial and quasi-executive • Bodies which exercise judicial power must be constituted as a Ch III court • Constitutional questions—attempts to give decision of executive tribunals a judicial effect: Attorney-General (Cth) v Breckler (1979) (Tribunal says it is to take effect as an order of the court) • What is in issue is the general character of the responsibilities of the Tribunal o The AAT is not a court – its functions are clearly administrative, so the fact that it has similarities to a court is irrelevant Reform of the merits review system: • Review of the system by the Administrative Review Council (ARC) in 1995 brought out some major criterion: Andrew Trotter LWB335 Administrative Law o Need to increase community awareness of services; o Tribunals should create an environment where parties represent themselves; o Independence of tribunals establishes credibility of decisions; o Variety of skills in AAT should be maintained; o Agencies should take AAT decisions into account when forming policy; o Tribunal should move towards an ‘umbrella tribunal’, that handles all forms of Administrative Appeals (done in Vic) Structure Made up of President | other presidential members | senior members | other members: s5 Administrative Appeals Tribunal Act 1975 (Cth) (provision establishing the AAT) Appointment • By GG: s6(1) • Post o Judge → President | presidential member: s6(2)  Does not affect tenure as a judge: s7A  Not a breach of the separation of powers for a judge to sit on the AAT: Drake v Attorney-General o Other person → deputy president | senior member | member: s6(3)  Can be full-time or part-time: s6(4) • Qualifications required o President ← FCA judge: s7(1) o Deputy President ← legal practitioner of HCA | SC for > 5yrs: s7(1AA) o Senior Member:  legal practitioner of HCA | SC for > 5yrs: s7(1B)(a)  in GG’s opinion has relevant special knowledge or skill s7(1B)(b) o Non-presidential (normal) member  legal practitioner of HCA or SC: s7(2)(a)  > 5yrs experience at high level of industry | commerce | public admin | IR | profession | government: s7(2)(b)  University degree in law | economics | public admin or other field: s7(2)(c)  In GG’s opinion has relevant special knowledge or skill : s7(2)(d) Term • < 7 years: s8(3) • Can be reappointed: s8(3) • Judge ceasing to be a judge → loses office on administrative tribunal too: s8(4) • On terms & conditions as prescribed: s8(7) Organisation • Divisions— (s19(2)) (a) General Administrative Division; (b) Medical Appeals Division; (baa) Security Appeals Division; (ba) Taxation Appeals Division; (c) Valuation and Compensation Division; and (d) such other Divisions as are prescribed. • < 3 members: s21(1)(a) • President responsible for efficient discharge of business: s20(1) Andrew Trotter LWB335 Administrative Law Jurisdiction • The AAT has jurisdiction where— (s25 AAT Act) o Enactment provides for applications to the AAT o For the review of decisions made under that or another enactment • Tribunal has power to review any decision in respect of which an application is made to it under any enactment: s25(4) 1. Enactment: s3 AAT Act • Means— o Act o Ordinance of Territory other than NT or ACT o Instrument (eg rules, regulations, by-laws) made under Act or Ordinance • Includes amended enactment 2. Decision • Includes— (s3(3)) (i) making, suspending, revoking or refusing to make an order or determination; (ii) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (iii) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (iv) imposing a condition or restriction; (v) making a declaration, demand or requirement; (vi) retaining, or refusing to deliver up, an article; or (vii) doing or refusing to do any other act or thing. • Must be determined in accordance with the legislation: DG of Social Security v Hales (1983) (decision to try and recover overpayment under social security legislation = ‘decision’) • Must be open/operative determination: DG of Social Security v Chaney (1980) o Guidance to be taken from JR principles—Final or operative & substantive decision: ABT v Bond (1990) per Mason CJ (not AAT case but still gives some guidance) • intermediate decision—reviewed only where provided for under the statute, so that it can be characterised as a decision ‘under an enactment’: ABT v Bond (1990) per Mason CJ (not AAT case but still gives some guidance || must be a mandatory step under statute) • Must be primary decision: AAT is not a primary decision maker – there must be a primary decision maker to make the decision: Re Tradigrain (Board making export development grant— recipient appealed against amount—board said up your arse we’re taking all the money back, asked AAT  AAT could not review as no primary decision to seek repayment yet) • Constitutes a decision, therefore reviewable— o Exercising of powers given under an Act: DG of Social Security v Hales (1983) (decision to try and recover overpayment under social security legislation = ‘decision’) o Improper belief that they have no power: Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) (failure to grant an extension of time for patent application—cited lack of jurisdiction to grant extension  decision → could be reviewed) o Failure to make a decision where— s25 AATA  duty to make decision  unreasonable delay • Ombudsman may investigate and direct to the relevant Tribunal: Ombudsman Act 1976 (Cth), s10 (so long as the Act allows for review by the Tribunal) Andrew Trotter LWB335 Administrative Law o Invalid exercise of power: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1988) (exercise of power it didn’t have—technically a nullity  open to merits review so long as made in ‘purported exercise of the power’) o Decision made in excess of power: Collector of Customs (NSW) v Brian Lawlor Automotive P/L (1979) (decision that not a fit & proper person to hold customs license— only had power to revoke for non-payment—therefore beyond own power  still a decision capable of review); reinforced in Alvaro’s Case von Doussa J • AAT will assume constitutional validity of Act under which the decision is made: Re Adams and the Tax Agents’ Board (1979), per Brennan J (as President) (cannot question constitutional validity as not a Ch III court—therefore affirmed decision of Taxation authority) o Must nonetheless consider the substantive merits of a case: Re Reserve Bank of Australia and Comcare (1989) 3. Internal reviews exhausted Where the Act provides for an internal review procedure, that procedure must be followed first • → decision reviewed is the decision of the internal review: Re Gee and Director-General of Social Services (1981) (←operative decision || NOT the original decision but the decision made in the internal review) • Time limits for internal review have expired → AAT has no jurisdiction: Re City of Yarra and Development Allowance Authority (1996) (where there had been no reconsideration because of the lapsing time limit, that would mean the AAT had no jurisdiction) Andrew Trotter LWB335 Administrative Law Standing Individuals: s27(1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision • A person ‘whose interests are affected by the decision’: s27(1) AAT Act o Including Commonwealth or Commonwealth authority: s27(1) AAT Act • A person who has standing for judicial review has standing for the AAT: Re Control Investments (1980) • Not sufficient— (Re Control Investments and ABT (1980)) o Generally interested o Thinks that conduct should be observed • Decision can be adverse or beneficial: Re Control Investments P/L and Australian Broadcasting Tribunal (No 1) (1980) (ABT decision on TV licensing  ALP  as media affects political parties | individual members of ALP  | Rupert Public Interest Movement  ← link to objects too tenuous) • Process of statutory construction whether someone is considered to be interested in decisions made under a certain act: Allan v Transurban City Link Pty Ltd (2001) o Narrow approach adopted—Confined to those within contemplation of the legislation: Allan v Transurban City Link Pty Ltd (2001) (building Melbourne Link project—resident whose land getting resumed challenged  review in legislation contemplated failure of companies who tried and failed to get certificates—no review of decision to grant a certificate || Cf. powerful dissent by Kirby J); confirmed by Brisbane Airport Corporation Ltd v Wright o Obligation to give notice to residents doesn’t give them standing: Brisbane Airport Corporation Ltd v Wright (2002) (decision to build runway—rep of community group & landowner 9km from airport  ‘interest’ defined by Act—nature of Airports Act implied that only person affected is lessee—requirement to give notice to occupiers not sufficient to give them all standing → no standing) Organisations & Associations: s27(2) & (3) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association • Organisation or association has standing if decision relates to matter included in their objects or purposes: s27(2) AAT Act (broader than JR standing) o Regardless of whether incorporated or not o Can’t just add to give themselves standing—does not apply if organisation formed or object added after the decision: s27(3) (Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned); Re Watson (must exist at the time the decision was made) o An organisation whose objects were too tenuous to the would not be under the Act: Re Control Investments (1980) Effect—Can apply to be added to proceeding • Parties to proceeding include people added on application (s30(1)(d)); persons whose interests are affected can apply in writing: s30(1A) o Unless that party fails to appear at a proceeding, in which case the Tribunal can make an order the makes them unable to be a party to the proceeding: s42A(2)(b) AAT Act. Andrew Trotter LWB335 Administrative Law • Tribunal determines whether interests are affected by a decision (=whether has standing) → decision is conclusive: s31 o Appeals—can appeal decision as to whether has standing: s44(2) AAT Act. Decision-maker must give notice Notification of appeal rights (always) • Where a person makes a reviewable decision, they must take steps as are reasonable in the circumstances to give notice that: o A decision has been made: s27A(1)(a) AAT Act; and o The right of the person to have the decision reviewed: s27A(1)(b) AAT Act. Exceptions • Where decision made by default by missing the deadline to make a decision (under s25(5)): s27A(2)(a) AAT Act; • Where notification right to review made by another enactment: s27A(2)(b); • a decision not to impose a liability, penalty or any kind of limitation on a person: s27A(2)(c)(i); • Make an adjustment on periodic payments to a member of a class, where those adjustments are for the entire class: s27A(2)(c)(ii) • Decision placing a person in the most favourable category for monetary benefits: s27A(2)(c)(iii) Statement of Reasons (on application) … statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement • Decision subject to review & person with standing → may apply in writing for & must receive within 28 days (and as soon as practicable) a statement of— (s28(1)) o Material findings of fact o Evidence relied upon o Reasons for decision • Can refuse to give reasons if— o not requested in good time  Decision recorded in writing & given to applicant → w/in 28 days: s28(1A)(a)  Otherwise → within a reasonable time: s28(1A)(b) o Already given to them: s28(4) • Decision-maker can contest entitlement o DM must give the person give notice within 28 days of opinion that not entitled: s28(1AA) o Tribunal to decide on entitlement—not left to final hearing: s28(1AC) • If inadequate can order another statement within 28 days (and as soon as practicable): s28(5) • If fail to give statement of reasons → can appeal to FCA as a question of law (breach of NJ—no prior adequate notice): s44 Public Interest • Reasons not available where the decision is to be made in accordance with the Security Appeal Division under s19(6) AAT Act: s28(1AAA) AAT Act. o decision under s54 of the ASIO Act: s19(6)(a) AAT Act; and o A decision under the Archives Act relating to ASIO: s19(6)(b) AAT Act. • When a public interest certificate is issued by the Attorney-General, which prevents disclosure: s36(1) AAT Act. ← can be issued where— o Would prejudice the security, defence or international relations of Australia: s36(1)(a); o Cabinet | Cabinet committee deliberations: s36(1)(b); Andrew Trotter LWB335 Administrative Law o Any other basis that would allow the Crown to establish in court that the information should not be disclosed: s36(1)(c) Andrew Trotter LWB335 Administrative Law Application Procedure Applications • In writing in prescribed form: s29(1)(a)&(b) AATA. • Containing statement of reasons: s29(1)(c) AATA unless— o Decision is a security assessment under the ASIO Act → must include assessment (i) & statement saying which parts the applicant does not agree with (ii): s29(1)(ca) AAT Act; o A decision under the ASIO Act (s54(2)) → must include a statement setting out the grounds for appeal must be made: s29(1)(cb) AAT Act. • Must pay filing fee: s29A(1) AAT Act; o Can ask to have the fee waived under the regulations: s29(2) AAT Act. Time Limit for Lodging • Must be lodged with tribunal within prescribed time if— o the statement of reasons were recorded in writing and given to the applicant, or o the decision made by default by missing the deadline under s25(5): s29(1)(d) AAT Act. • Time limit—28 days after— o Statement of reasons given with decision given to applicant: s29(2)(a) o Some statement of readings (through application under s28 or otherwise) issued to applicant: s29(2)(a)(i)&(ii) o Terms of decision given to applicant: s29(2)(b) • Prima facie rule—applications should be within the time limit: Re Australian Telecommunications Commission and Commonwealth of Australia v Schmidt (1986) Extension of time: • The tribunal may extend the time in writing, where there are reasonable circumstances to so: s29(7) AAT Act: o Can be made even where the time limit has expired: s29(8) AAT Act. o May have to give notice to affected person or tribunal: s29(9) o Where that person opposes the motion, the AAT must hear that person before they make that decision: s29(10) AAT Act. • Where there is an acceptable explanation for delay, that will be a relevant factor, but is not a precondition to an extension of time: Comcare v A’Hearn (1993) Rights and responsibilities of decision-maker • Person who made the decision to be notified of application for review: s29(11) AAT Act. • Must lodge within 28 days of receiving notice of the application— (s37(1)) o The stat
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