Administrative Appeals Tribunal

The role of the Administrative Appeals Tribunal (AAT) is to conduct independent merits review of administrative decisions made under Commonwealth and Norfolk Island laws. The AAT reviews decisions made by Federal Government ministers, departments and agencies, and in some situations, decisions made by state government and non-government bodies.

The AAT was established by the Administrative Appeals Tribunal Act 1975 and sits within the portfolio of the Attorney-General. The Administrative Appeals Tribunal Regulation 2015 sets out procedures for the tribunal.

Objective

Under Section 2A of the Act, the objective of the Administrative Appeals Tribunal is to provide a mechanism of review that:

• is accessible;
• is fair, just, economical, informal and quick;
• is proportionate to the importance and complexity of the matter;
• promotes public trust and confidence in its decision-making.

Jurisdiction

The Administrative Appeals Tribunal is divided into nine divisions:

• Freedom of Information
• General
• Migration and Refugee
• National Disability Insurance Scheme
• Security
• Small Business Taxation
• Social Services & Child Support
• Taxation and Commercial
• Veterans Appeals

It can review a decision if the Act under which the decision was made states this. There are more than 400 Commonwealth Acts that allow review of decisions by the AAT, with a list of reviewable decisions maintained by the tribunal. The most common decisions relate to child support, workers’ compensation, social welfare payments, immigration visa decisions, taxation and veterans’ entitlements. Other decisions include those related to Freedom of Information, citizenship, the National Disability Insurance Scheme and security assessments.

Reviews

To conduct merits review, the Administrative Appeals Tribunal will “stand in the shoes” of the original decision-maker, and make a fresh decision using all the evidence available to it. The aim is to ensure the “correct and preferable” decision is made.

The AAT can:

• affirm a decision;
• vary a decision;
• set aside a decision and substitute a new decision;
• set aside a decision and remit the matter to the decision-maker for reconsideration.

It must give written reasons for its decision, and it must advise parties of further review rights available.

In some cases, an internal review of a decision must have been carried out before a matter can be heard by the AAT. For instance, a decision made by Centrelink will need to be reviewed by a Centrelink Authorised Review Officer or Subject Matter Expert before it can be reviewed by the AAT.

An application for review must be made within 28 days of the decision and can be made online. The standard AAT application fee is $952, but the fee can vary according to the matter and an applicant’s circumstances. For instance, the application fee for a review of a refugee decision is $1826 but is payable only if the review is not successful; while there is no application fee for a review of a workers’ compensation decision.

Alternative Dispute Resolution

The Administrative Appeals Tribunal can use Alternative Dispute Resolution if the relevant Act allows it. Using ADR, the review can be finalised without the need for a hearing, saving time and money for all parties involved. ADR is not used in reviews of migration, refugee, and some social service and child support decisions.

AAT membership

The Governor-General appoints Administrative Appeals Tribunal members, whose qualifications for appointment are stated in Section 7(3) of the Act. The president must be a Federal Court judge, and the deputy president must be a judge of the Federal Court or Family Court, a legal practitioner with at least five years’ experience or someone with special knowledge or skills relevant to the position. Other members must be legal practitioners or people with special knowledge or skills relevant to the duties of being a member. Current AAT members have expertise in areas such as accountancy, aviation, migration, medicine, law, social welfare and public administration.

Publishing of decisions

The Administrative Appeals Tribunal publishes decisions on its website to promote transparency and decision-making. All written decisions are generally published except for particular decisions made in the Migration and Refugee Division and the Social Services and Child Support Division. The Act prohibits the publication of certain decisions, and members can make a non-publication direction either independently or on request from a party in a decision. A formal request for access to documents related to a case can be made under the Freedom of Information Act 1982.

Appealing an AAT decision

Under the Act, a party can appeal an Administrative Appeals Tribunal decision to the Federal Court or Federal Circuit Court depending on the type of matter. An appeal can be on a question of law only, not a question of fact. A question of law could include whether the AAT denied procedural fairness to a party or whether it incorrectly interpreted a statute. The judge hearing the appeal does not consider any new evidence or call witnesses but reads all documents filed and listens to legal argument from both parties.

For advice or representation in any legal matter, please contact Armstrong Legal.