Published on 4/06/2007

Merits Review

1.   The Role of Tribunals

-    Federal Gov modified the standing test
-    Under ADJR the fed govt allowed people to request a statement of reasons
-    Freedom of Information Legislation
-    Ombudsman - informal way of getting dispute with agency resolved
-    Also AAT - people can appeal any decision to this body designed to appeal any decision of an agency (this is what we are dealing with here)
-    In most offices, the minister has set up an appeals bureau internally within the department. The weakness of internal review is that there is still the restriction of policy. The person lower down making the decision is governed by policy and the appeal heard by the minister will be restricted by policy
-    Tribunals are external from the government agency and they can re-assess the merits. People given an effective new right to challenge decisions of gov agencies
-    Difficult to define what a tribunal is? Is it a court? No, it is not set up as a court. It doesn’t have to be staffed by judicial officers. People go to the tribunal and the facts are argued again and the tribunal makes the decision.

-    Requirement of the statute that the chairperson of the AAT is to be a Fed Ct judge
-    Tribunal supposed to be more informal and flexible than a court
-    But also require people on tribunal to have at least 5 years of legal experience. Many presidents of tribunals are judges and members are often lawyers. Therefore they are confused
-    They are not courts but there is a heavy involvement of judges and legal professionals.
-    They are not part of judiciary, legislature. They are not vested with primary decision making powers. They are independent of the government agency. But because they are strange creatures, we put them in the Executive. In effect they step into the shoes of the original decision-maker. The tribunal has all of the duties to perform the duties the original decision maker made under the legislation and the decision of the tribunal completely overrides the decision of the tribunal
-    Tribunals must be independent of gov. They are set up under their own legislation. The members may be appointed by gov, yet so are judges
-    What is the relationship of AAT with gov agencies
-    See Act yourself

2.   Commonwealth Administrative Appeals Tribunal
2.1   Powers of the AAT in Relation to Application for Review

Power of AAT in relation to application for review
See ss41, 42, 42A, 42B, 42C, 43 of AAT Act.

s43: AAT can exercise all powers and discretions conferred upon it by the legislation which the decision-maker made the decision under and can
•   affirm their decision [43(1)(a)]
•   vary the decision [43(1)(b)]
•   set aside the decision and either make a fresh decision or send it back to the decision-maker to remake [43(1)(c)]

Re Drake and Minister for Immigration (1980) 2 ALD 634 [AAT]:
Drake (US citizen) was convicted for possession of cannabis, and his deportation was ordered under the Migration Act. The AAT affirmed the Minister’s decision. Drake questioned the role of the AAT and its findings. The matter was then returned to the AAT in Re Drake and Minister for Immigration.

Held:Minister must decide cases on their own merits and is free to apply policy. The Tribunal is likewise free to apply or not apply policy. Tribunal’s duty is to make the ‘correct or preferable decision’ on the material before it.
•   However, consistency with decisions in similar cases is necessary. Policy is a useful guideline in maintaining consistency.
•   Tribunal has the freedom to depart from or give no weight to Ministerial policy. However, particularly if policy has been subject to Parliamentary scrutiny, the suggestion is that the departure should be ‘cautious and sparing’.
•   Tribunal cannot apply an unlawful Ministerial policy (obiter)

Notes: AAT is simply another decision maker, so even the AAT must be held accountable for the way it makes its administrative decisions.
-    This was a deportation case. The AAT has a criminal jurisdiction. Where minister decides to deport someone for criminal activity, AAT has a jurisdiction to review.
-    The tribunals finding of fact can be different from the original decision maker. Tribunal can reassess the facts for itself. Tribunal is independent to the extent that it can find its own facts and call evidence to make its own decision.
-    In all criminal deportation matters, AAT can make its own policy. Courts confirm this as being the independence of the AAT from gov.
-    It wouldn’t be prudent to simply ignore all aspects of the ministerial policy. If it did, it would arguably be overriding democracy, because if parliament scrutinises it, it is effectively the will of the majority. You can have an inconsisitency between what happens in parliament and decisions of the AAT
-    Under ADT legislation, a section says that that the ADT in NSW is required to follow ministerial policy. It does not share the same freedom as the AAT in this respect.

2.2   Jurisdiction

-    AAT has no general jurisdiction None of us have a right of appeal to tribunal. The only way we have a right is if the statute on that subject matter permits the right of appeal. The end of the Act will have a section that tells you whether you have a right of review and also may limit your rights of judicial review.

-    s25 AAT Act: The statute that confers power upon the decision-maker may provide that applications may be made to the Tribunal e.g. in Drake, the statute conferring power was the Migration Act.

-    Note: the statute may limit the jurisdiction of the AAT e.g. ‘AAT may return the decision to the decision-maker but cannot make a fresh decision’ – this will determine the extent of the AAT’s jurisdiction. I.e. AAT may affirm a decision, vary it, set it aside or remit it (send back to decision-maker)
-    As the statute gives the right to a person to approach the AAT, it may also limit the jurisdiction of the AAT e.g. statute may say that a person has a right of appeal to the AAT, BUT that AAT may not have the right to set aside a decision in certain areas.
-    AAT has all rights of decision maker

e.g. Re Gay Soildarity Group and Minsiter for Immigration
•   Based on the Migration Act, a ‘person’ had to bring the action
•   A corporation is a legal person, but an unincorporated entity is not. So the group did not have standing.

2.3   Membership

2.4   Who may apply For Review of a decision?

Standing of corporations and unincorporated groups
s27(1): any person whose ‘interests are affected by the decision’.

A party can seek to be joined to an action.
•   A person who applies for joinder need not have standing to challenge the decision: Re Control Investments

s27(2): An organisation (whether incorporated or not) shall be taken to have interests that are affected by the decision if the decision relates to a matter included in the objects or purposes of the organisation
(3) does not apply to a decision made before the organization was formed (or before they included the matter in their objects and purposes).

Test: does the decision under review relate to specific matter included in the objects/aim of the association?

•   A ‘relevant’ interest of the person must be affected by the decision: Re Control Investments
•   Determined on SM and context: Re Control Investments
•   Familial, personal or other non-material interests are relevant: Re McHattan and Collector of Customs (NSW) (1977) ALD [AAT]

Note:
-    Common law test for going to court is that you must be a ‘person directly affected’, in order to have the standing to get into the courts
-    The AAT is easier to approach: you need only be a ‘person whose interests are affected’.
-    Unincorporated associations have had difficulty getting in to AAT. They are not corporate persons. But they can come in if their objects are closely related to the subject of the decision.

Re Control Investment and ABT:

Facts: ABT refused an application for approval of share transactions as it would result in a concentration of media interests in NewsCorp (media is supposed to be independent), adverse to the public interest. Newscorp took ABT to the AAT. Various parties asked to be joined to the action. ALP, an unincorporated association called “Justice in Broadcasting”, Australian Journalists Association and Rupert Public interest Movement Inc.

Issue: Could the parties be joined to the action? What does interests affected mean?

Held:
-    A ‘person’ whose ‘interests are affected’ including corporations, have standing
-    AAT decided that it had to be a “genuine affection of interest which attaches to him”
-    “Across the pool of sundry interests the ripples of affection may widely extend”
-    a persons interests may be affected adversely or beneficially

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Application of test - joinder
-    ALP – interests were affected by decisions relating to News Group having control of the media. Party to proceedings.
-    ‘Justice in Broadcasting’ – Their aim of ‘obtaining effective public access to the process of broadcasting’ related specifically to the decision under review. Concerned with Newscorp monopolising viewpoints.
-    Australian Journalists Association – aims were to ‘uphold and defend …professional interests of journalists’ and to enforce ethical standards in journalism etc – held to have a sufficient connection.
-    Public Interest Movement Inc – aims related to improving the accountability of govt and private institutions. Not a party – aims were related more generally to encourage decision-makers to take into account the public interest, rather than the specific decision. Not a specific interest, nor one that belonged to the corporation. AAT has wide discretion in deciding who has standing.

Bringing an action on someone else’s behalf

Re Gay Solidarity and Minister for Immigration and Ethnic Affairs (1983) ALD [AAT]:

Facts: immigrant (not citizen) convicted for homosexual activity, threatened with deportation. S 66E of Migration Act limited access to the AAT to Australian citizens. Gay Solidarity group (unincorporated) brought the action to the AAT on his behalf.

Held:
-    The association is not an Australian citizen and moreover it is unincorporated therefore is not a “person”.
-    Even if the group were considered a ‘person’ [obiter], comment made that the objects – ‘ending all forms of prejudice and discrimination against homosexual people in all fields including immigration’ – was not sufficiently connected to the decision. (because the Minister, in his decision, had not discriminated against immigrant as a homosexual – bit dubious).
-    Whether that was discrimination itself is not for AAT to decide. Therefore AAT did not give GSG standing.
Note: A&D comment that this is somewhat of an exception and that generally the Tribunal is more generous to ‘pressure groups’ when recognizing their interests in comparison to professional associations seeking to stand up for one of their members.

Note: Under the ADJR Act, a person ‘aggrieved’ by a decision could have standing. It was felt that this would be interpreted liberally. In fact, the Fed Ct has interpreted this very narrowly. Bodies like AAT are cautious about just anyone appealing before it. “Interests affected” is the most liberal test for standing available.

2.5   Right to reasons

-    See Part J: Access to information (1. Reasons for decisions)
-    S28 gives right to statement of written reasons

2.6   Access to info

-    S36, 36A of AAT Act
-    S37 of AAT Act  Tribunal can request all the documentation relied upon by the Agency from the Agency
-    S38, if tribunal not satisfied with the material, it can request more particulars
-    The tribunal may have a different interpretation of the information
-    As a matter of practice, the AAT will make the info available to the parties before it. But there is no obligation on the AAT to do this.

2.7   Pre-hearing Procedure

-    AAT has a mediation/conference practice  it can recommend the parties go to mediation to try and resolve their dispute.
-    S27A (notice of reviewable decision)
-    S29 (lodging application for review)
-    S33(1A) (directions hearing)
-    Ss37, 38 (T documents see 2.6 above)
-    S34 (Preliminary conferences)
-    S34A (mediation)
-    S35A (telephone hearings)

2.8   Hearing before AAT

Legal Representation
AAT Act s32 – party may appear in person, or be represented (not necessarily by a lawyer). Legal representation is permissible, but is it desirable? (don’t want to over-legalise tribunals).
-    Individual has to go before AAT and face the might of government who is more resourced. There is an imbalance of power
-    They are not adversarial proceedings. They are inquisitorial, everyone is there to assist the tribunal make a decision. But this is quite theoretical when serious issues are being battled. Very difficult to go without legal representation. These legal advocates are so used to adversarial system that it will be hard to avoid this environment. But the tribunal, because it is inquisitorial, is supposed to lend the unrepresented individual a helping hand.

Costs
-    AAT has no power to award costs. But there is a filing fee. There will be more costs if person decides to challenge AAT decisions in Fed Ct.
-    If a question of law arises it must be referred to the Fed Ct
-    Courts award costs following the event. If you lose, you pay your own costs and the costs of the other side. AAT doesn’t award costs, therefore you only pay your filing fee and pay for your legal representation.

Financial Assistance:
-    AAT Act s69 – may apply to A-G for legal or financial assistance. It will be granted if the A-G is satisfied that in all circumstances, it is reasonable to grant, and that the person would suffer hardship if the application were to be refused
-    Legal Aid, Public Interest Groups, AG if intervening on behalf of the Cth Government

Public hearings and restrictions on disclosure of evidence

s33(1)(c) – Tribunal is not bound by rules of evidence
s 35: Hearings to be in public except in special circumstances
s 36: Disclosure not required: Attorney-General's public interest certificate
Where disclosure of information would be adverse to the public interest, it does not have to be disclosed. (Again similar to the ADJR Act provision)
s 36A: Answering questions where Attorney-General intervenes on public interest grounds
Where a person is asked a question in a proceeding before a Tribunal, the AG can deem an answer not to be given because it would be against the public interest. The question will not be answered unless the Tribunal determines that it is not against the public interest.
•   Tribunal is satisfied that it is desirable for a private hearing because of the confidentiality of evidence (why must the evidence be confidential?) [33(2)]
•   BUT the Tribunal must have regard to the fact that it is desirable that hearings are public and that evidence should be made available. [33(3)]

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) ALD [AAT]

Facts: Pochi was an Italian citizen who had lived as a permanent resident in Australia for 20 years. His application for Australian citizenship was approved but not processed, due to an oversight. Wife and 3 kids were citizens. P arrested and convicted in relation to marijuana cultivation. It was alleged that he had contributed profits form this towards a winery. A deportation order was issued against him. P sought AAT review. A hearing was held from which the applicant and the public were excluded. There was also no evidence to prove that the contribution to the winery was marijuana profits.

Issue: Is the AAT in hearing an appeal against deportation, bound by formal rules of evidence?

Held:
•   tribunal is not bound by the rules of evidence [s33(1)(c) AAT Act]
•   This does not mean that orders that cannot be justified by ‘rationally probative’ evidence can be made. AAT must base its decisions on evidence that is logically supported and connected to the case, not mere speculation.
•   It is desirable that the Tribunal’s hearings be public: s35(3)
o   But it may be justifiable if there was a real possibility of doing injustice to a party/witness/person giving information
o   Or if publication of the proceedings were contrary to the public interest [in this case to protect the sources of the information used to combat crime]
o   Or if information is of a kind described by s36 [see Part K]
•   The denial of the party to his/her own hearing constitutes an indefeasible denial of fair treatment.
o   IF Any of the above justifications may apply
o   AND the evidence must be of such importance and cogency that justice is more likely to be done by receiving the information in confidence, the decision may be justified.
o   [in this case, part of the evidence was hearsay, and did not suggest positively that the Pochi was involved in commerce in marijuana].

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Opportunity to Present a case
•   Inquisitorial proceeding, supposed to be inflexible, informal.
AAT Act 1975
s 33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
s 35: Hearings to be in public except in special circumstances
s 39: Opportunity to make submissions concerning evidence
(1) Subject to ss 35, 36, 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
s 40: Powers of Tribunal etc.
(1) For the purpose of reviewing a decision, the Tribunal may: (a) take evidence on oath or affirmation; (b) proceed in the absence of a party who has had reasonable notice of the proceeding; and
(c) adjourn the proceeding from time to time.

Sullivan v Department of Transport (1978) 20 ALR 323 Full Fed Crt
Facts: Major in the Aust Air Force sought AAT review of a decision refusing to renew his commercial pilot’s licence on medical grounds (he suffered a bout of psychosis). The applicant was unrepresented at the hearing and sought to call Dr Evans as a witness. Dr Evans, who was to testify that pilot was free of psychosis was not present. Without his evidence the applicant was unable to proceed with his submission regarding the medical standard which had been applied to him. The applicant did not request an adjournment and the AAT did not offer one. AAT affirmed the decision.

Issues: Had the P been denied procedural fairness? Is there obligation on tribunal to ask if applicant wants proceedings adjourned? Should the AAT have adjourned proceedings anyway?

Held: The rules of procedural fairness did not require an adjournment until the applicant found representation or to find representation for the applicant. However, the tribunal did not look at all the issues eg restricted licence so it went back to the AAT but not on the primary issue of the appeal.
Deane J: s 39 of the AAT Act requires the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present his case. This requirement is also at the heart of natural justice.
A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case. It is not fatal to the applicant’s claim that no adjournment was requested. However, it is important to remember that the Tribunal’s duty is to ensure a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. Here, the duty of the Tribunal was not violated.

Australian Postal Commission v Hayes (1989) 87 ALR 283
Facts: H alleged that she injured her hand while packing. She applied for workers comp and she got paid for two years. Then Aust Post stopped payment contributions. H appealed before AAT to decide whether Aust Post should still be paying. She knew nothing about a video Australia Post had taken until after Aust Post asked for it to be brought into the hearing room for purpose of cross-examination. Aust Post wanted to show the video (as evidence that H could use her right hand) after H gave her evidence in chief.

Held: There is a requirement on tribunals to comply with the rules of procedural fairness. AAT is simply a decision maker. (see Kioa v West).
AAT said Aust Post must be allowed to introduce its evidence at any point. Issue was wether there was breach of procedural fairness here. But materials which have come into existence since the original decision-maker made the decision do not have to be disclosed to the affected individuals.
The right of AP to show the video at any stage is upheld. The opportunity to present one’s case includes the opportunity to properly cross-examine. If there was a requirement that the video be shown upfront would have affected the proceedings. The right to openness competes with the reasonable opportunity of AP to present its case.
No statutory duty on the T to make T documents available at any point in time, although as a matter of practice they are usually made available at the beginning of proceedings

2.9   Review By The Federal Court

•   AAT is a specialist body separate from government. It exercises statutory powers. All legal errors made by the tribunal are reviewable

AAT Act 1975 s44
•   All legal errors committed by the AAT are reviewable by the FCA. [44(1)]
•   Also can appeal to FCA if AAT determines that the ‘interests are not affected’ and that the party cannot be a party or joined to the action. [44(2)]

Director-General of Social Services v Chaney (1980) 31 ALR 571 Full Fed Crt
Facts: Widow’s pension suspended on the ground that she was in a de facto relationship which disentitled her pursuant to the Social Security Act 1947. Affirmed by Director General. Applied for review to the AAT which gave an interim ruling that it had jurisdiction and an order suspending the order until the AAT had made a determination.

Issue: When can you refer matters from Tribunal to Fed Ct?

Held per Deane J: The issue is whether an appeal lies from a ruling or adjudication upon the road to ultimate decision, regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision.
•   An Appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily this will be the final decision.
•   Neither the AAT’s ruling that it had jurisdiction nor its interim order were ‘decisions’ from which an appeal lay under s 44 of the AAT Act.

3.   New South Wales Administrative Decisions Tribunal (ADT)

-    We don’t focus much
-    Cannot approach ADT unless you have exhausted all of the internal mechanisms of appeal.
-    Have to sign a form attesting that you have appealed within the department first before you go to ADT. It is a policy decision to save resources of ADT.

Objects of the ADT Act 1997 (NSW)
*    Section 3: The Statute’s aims are primarily to create an independent body that is “efficient and effective”, and that determines matters in “an informal and expeditious manner”. It also aims to ensure accountability of administrative bodies in NSW.

Jurisdiction
*    Section 38: Like the AAT, a decision will come under the jurisdiction of the ADT when it is directly referable to an enactment that gives the ADT jurisdiction to review that decision.
*    Therefore, the scope of its jurisdiction is rather limited.

Determination of Review by the ADT
*    Section 63(1): The tribunal is to decide what is the “correct and preferable decision”. In doing so, it must consider any relevant factual material or applicable law
*    S63(2): If the decision is reviewable under s38, then the Tribunal may exercise all of the functions conferred in the enabling legislation on the administrator who made the decision.
*    S63(3): The tribunal may affirm or vary the decision. It may also set aside the decision altogether and make its own substituting decision. In some cases thee ADT may set aside the decision and remit the matter for reconsideration by the administrator.

Policy Application
*    Section 64: The tribunal must apply any relevant government policy, except where the policy is contrary to law or if it produces an unjust outcome. (Government policy can be determined by facts, or if the Premier or Minister certify that a policy was in fact Government Policy at the time of the decision)
*    Tribunal must also regard other non-government policies that are applied in a decision, as long as they are not contrary to government policy or law and not unjust in the circumstances.

Supreme Court Right of Appeal
*    Section 119: A party to the proceedings may appeal to the Supreme Court against any decision made by the ADT, as long as the appeal is based on a “question of law”.
*    Section 123: The Supreme court may decline to deal with an application for review if it believes there is adequate provision for alternative sources of review. (Usually occurs if the alternative reviewer can provide the same remedies but more efficiently than the SC – Section 123(2))

JUDICIAL REVIEW (preliminary issues)
-    How should courts deal with tribunals
-    Should courts and Tribunals be treated differently
-    Grounds of Review include 1. Ultra Vires 2. Procedural Fairness

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	Ultra Vires	Procedural Fairness
1	Jurisdiction –Dos the person have the power to make the decision? If so, have I interpreted the legislation incorrectly so that I’ve made a mistake about the extent of the power?	Any Breach?
2	Any Abuse of Power?
3	Any Failure to Consider

-    Courts, tribunals and primary decision makers must have jurisdiction (before making the decision) If no, then person should not have made the decision at all. This would be a jurisdictional error of law.
-    In the course of making a decision, a decision-maker may have abused their power, failed to consider or breached procedural fairness. These are called non-jurisdiction errors of law.
-    Now Tribunals and Courts reviewed differently from Primary decision-makers. A court differs in that it is made up of highly trained people who are in the habit of making decisions every day. Courts assume they will not make any errors of law because they are skilled and legally trained. This is one policy considerations. Tribunals likewise are bodies of experts therefore should be treated the same way as courts. Simply give them power and let them make the decisions. With Primary-Decision Makers, they are given the power and their decisions are constantly reviewed

Anismanic Case
The HOL considered the jurisdiction of a tribunal to make decisions about compensation. Why have we always put tribunals in a special category where they are assumed not to make errors of law. HOL abolished the distinction. There is nothing special about tribunals, they can make errors of law like an individual. The also abolished the distinction for courts

In Australia, the leading case Craig v SA
Person unrep before dist Ct. HCA had to decide 30 yrs after Anisminic, whether it wanted to maintain the distinction. In the UK the courts felt the distinction was arbitrary. HCA agreed to change their minds, but only go so far. Tribunals were held to be ordinary decision makers, we will review their decision making process also to decide whether they made errors. But Courts are different from T’s. Because they are so fundamentally different from Tribunals, the original doctrine will be maintained for courts. There is still a protection for courts.

Issue is whether terminology of jurisdictional and non-jurisdictional is relevant because of privitive clauses which are input into legislation preventing review of decisions, unless it is a jurisdictional error. Parliament will never get rid of Courts right to review jurisdictional errors. But Courts are not allowed to review non-jurisdictional errors. To subvert this, HCA changed the definition of jurisdictional/non-jurisdictional. HCA has now decided that all errors are jurisdictional. HCA is deciding what is jurisdictional and now HCA has the capacity to review all jurisdictional errors.