Introduction
The Administrative Appeals Tribunal was established under the Administrative Appeals Tribunal Act.The AAT derives its mandate from both the Administrative Appeals Tribunal Act and the Administrative Appeals Tribunal Regulations of 1976. The following discourse will focus on the mandate of the AAT in the light of the power to review the merits of administrative decisions of institutions. The paper indulges in a discussion on the institutional framework of the Administrative Appeals Tribunal, which characteristically distinguishes it from the ordinary court system. Moreover, it examines whether or not the AAT has been removed from the bureaucratic system and concludes by appraising the extent to which Administrative Appeals Tribunal has executed its mandate in the realms of administrative law.
Administrative Mandate donated by the Act
We can glean from the provisions of section 2A of the AAT Act that the AAT has the mandate to provide a review mechanism. The foregoing provision does not vest total discretion on the AAT over the provision of the envisaged review mechanism. The review mechanism must be fair, just, economical, informal and quick.The aforementioned characteristics of the review mechanism embody the crux of the operation of administrative law. The jurisdiction of the AAT can also be gleaned from the definition given to the term ‘proceeding’ under section 3 of the AAT Act. Drawing from the definition of the term ‘proceeding’ we can conclude that the AAT has power to review any decision. This includes a decision on the taxation of costs ordered by the AAT to be paid.Thus, the AAT may also review the decisions made by some bodies established by the AAT Act. Section 3(3) of the Act has endeavored to conclusively define the scope of the term ‘decisions’. The definition entrenched therein is indicative of the wide jurisdiction conferred upon the AAT.
Departure of the AAT from the Court System
There are considerable characteristics that distinguish the AAT from the court system. To begin with, Article 71 of the Constitution demarcates the boundary for the conferment of judicial power. Judicial power can only be exercised by the federal courts. This provision precludes federal tribunals such as the Administrative Appeals Tribunal from the exercise of judicial functions. The exercise of judicial powers falls within the province of the courts hence tribunals such as the AAT would be far removed from the court system.It was emphasized in the watershed case of Shell Co. of Australia Ltd v FCT (1930) that establishment of an administrative tribunal is justified if the Tribunal does not exercise judicial power.
Secondly, the mandate of AAT is widely in conducting merits review. Merits review encompasses an evaluation of a decision of a public body or official and a substitution of that decision with a preferable one. This power is over and above judicial power. A merit review may result into a substitution of the primary decision. The power to carry out such review demarcates the court system from the AAT.
Thirdly, the provision of section 30 of the AAT Act widens the scope of parties to a review before the AAT. They include an applicant who is entitled to make an application for review; the decision-maker; the Attorney General when he exercises the power to intervene; and any other person admitted by an order of the AAT to be part of the proceeding.The latter provision introduces the distinguishing feature. The admission of a party to the proceedings before the AAT is a departure from the practice in the court system. In court proceedings, an interested party cannot be easily admitted as a party to proceedings commenced by another person. This enhances individual access to the AAT for review of decisions affecting their interests, a concept advocated for by administrative law.
Fourthly, a departure from the court system can be gleaned from the procedure followed during the conduct of proceedings before the AAT. Whereas court procedures entail a lot of formalities, this has been substantially minimized in the proceedings before the AAT. Section 33 of the AAT Act stipulates that formalities and technicalities should as far as possible be little in the conduct of proceedings. It is also noteworthy that the AAT does not operate by the rules of evidence that bind the courts. Instead, AAT has been given discretion to consider matters before it in any manner.
Nexus of AAT with the Court System
On the other hand, the AAT has not been completely severed from the court system. Under section 7 of the AAT Act, the President of the Administrative Appeals Tribunal can only be appointed from among Judges of the Federal Court of Australia. Even when a Judge has been appointed to the Tribunal, his tenure of office remains unaffected.Thus, officers of the court can still work in the AAT. In the light of the immiscibility of administrative and judicial powers portrayed in the Constitution, it is questionable whether the envisaged requirements for Judges to lead the AAT would have any significant adverse effect on the administration of justice. Besides, section 60(1) of the Act envisages the protection of members of the AAT to the extent that is commensurate to the protection and immunity afforded to Judges of the High Court. The same applies to practitioners of alternative dispute resolution and Registrars under the Act. It is also envisaged that barristers and solicitors would be afforded the protection and immunity commensurate to similar parties in High Court Proceedings. Moreover, the same liabilities to which witnesses in High Court proceedings are subject also apply to witnesses before the AAT. In the light of the foregoing, we can deduce that standards in the court system are being employed determine the level of protection for court users and court officers.
The right to legal representation runs through functioning of the court system. State-funded legal representation is regarded as a method for justice delivery especially for those who cannot afford the costs for legal counsel. In the AAT Act, it has been envisaged that a party to the proceedings may make an application to the Attorney General seeking legal or financial assistance. Although the Attorney General has been given the discretion either to grant or decline the application for assistance, the provision of section 69 of the AAT Act embodies the need for legal assistance hence legal representation in proceedings before the AAT. It has been argued that legal representation before tribunals is desirable. Nevertheless, there are reservations expressed regarding legal representation before the tribunals.Legal representation before the AAT portrays some similarity in the operation of the court system and that of the AAT.
In the execution of its mandate, the Appeals Tribunal is guided by the precepts of administrative law. Administrative law concerns itself with public decision-making by the public bodies or persons exercising public power. Judicial review is a core concept of administrative law. It is noteworthy that decisions of the AAT can be subjected to judicial review.Judicial review ensures that public bodies and persons exercising public power do so within the confines of their mandate. Where a decision has been found to be beyond the stipulated jurisdiction, it may be set aside under judicial review. The AAT has no powers for judicial review. However, it has been given the mandate to carry out a merit review of a wide range of decisions. In the same vein, the AAT has powers to affirm, vary, set aside or make a decision in substitution for the decision in question. For instance, in Ohl and Another and The Commissioner of Taxation [2012]the applicant had failed to remit income tax returns which attracted penalties imposed by the Commissioner of Taxation. The AAT affirmed the decision of the Commissioner on grounds inter alia that there was a failure on the part of the applicant to discharge the burden of proof that obligates the applicant to show that the decision-maker should not have made the taxation decision in question or that the decision ought to have been made differently. In Lees and Repatriation Commission [2006] the decision in question regarded the rejection of the applicant’s claim for compensation under the Veterans Entitlements Act of 1986 attributed to post traumatic stress disorder. The AAT remitted the matter to the Commission for reconsideration whereupon the Commission decided that the applicant’s alcoholic abuse was not related to his service. The AAT set aside the decision of the Commission and substituted it with the decision that applicant’s alcoholic dependence was indeed related to his service. The foregoing case illustrates that the AAT can also remit a matter to the decision-maker to be reconsidered pursuant to any orders made by the AAT.
Additionally, administrative law asserts that reasons must be given for decisions made. In this regard, the AAT has been enjoined to give reasons for its decisions.Reasons can be given orally or writing. In the case of Wirihana and Minister for Immigration and Citizenship(2013)the applicant’s (Mr Nekewhenua Wirihana) visa had been cancelled by a delegate of the Minister for Immigration and Citizenship on grounds that the applicant did not pass the character test. This failure was attributed to the fact that the applicant had a criminal record in which he had been convicted of up to 15 charges that included armed robbery and drug dealing. The decision by the delegate of the Minister was set aside by the AAT. Miss Shanahan, a member of the AAT, gave an oral determination of the matter in which she outlined a number of reasons inter alia that the applicant would have strong family ties if allowed to remain in the country. In Park and Minister for Immigration and Citizenship (2011), the AAT also set aside a decision by the Minister to reject an application by Soobeom Park for a partner visa on grounds that he did not pass the character test under the Migration Act. The AAT in setting aside the Minister’s decision outlined that the family ties and hardship outweighed the likelihood of the applicant reoffending.
Administrative law also roots for procedural fairness in decision-making. Procedural fairness entails certain requirements relating to the procedure followed in decision-making. In a nutshell, the process should be free from bias and fair hearing should be afforded to any person whose interests are affected by the decision.The AAT has mandate to review such decisions on the basis of their merit. The rationale for merit review is that it enables an independent body or individual to detect errors of facts and policy choices through reexamination.Merits review requires that the body or individuals involved in the review should not be part of the previous decision-making. The AAT fits the bill for merit review because its members are not positioned along paths that may cause collision with their duties. Therefore, AAT has a role to execute in ensuring that merits review has been entrenched as an entitlement is specific statutes. These statutes confer upon the AAT the jurisdiction over such review. The provisions of section 10A of the Federal Proceedings (Costs) Act of 1981 and section 62(2) of the Freedom of Information Act of 1982 are illustrative.
It is a requirement under administrative law that a person who applies for review must have the legal standing to do so. It follows that the decision in question should have an effect on the interests of the applicant so as to prevent meddlesome interlopers from instituting applications for review. The AAT Act recognizes this need. Under section 27(1) of the Act only persons whose interests are affected by the decisions in question may apply for review to the AAT. Furthermore, legal standing has been recognized for both natural persons and juridical persons. Notably, Australia, the Norfolk Island or their respective authorities may also have the locus standi to institute proceedings for review by the AAT.Under section 27(2) of the AAT Act objects of an association or organization of persons are used as a benchmark for determining whether they have legal standing. Thus, organization or association would be deemed to have legal standing if the decision in question touches on its objects. There is, however, a provision that the objects must have been in place before the decision was made.The AAT is also empowered to make a decision on legal standing of an applicant, determining whether or not the applicant’s interests are affected by the decision. Under section 31(1), the determination on legal standing of an applicant by the AAT is deemed to be conclusive. It is noteworthy that the decision of the AAT on legal standing of an applicant can be appealed against in the Federal Court of Australia.
Administrative law further posits that review can also be carried out in circumstances where a body fails to act. The AAT Act confers upon the Appeals Tribunal the mandate to review decisions in which there is inaction or a failure to make a decision under section 3.
The AAT has ably performed its role in carrying out external review of primary decisions of public bodies and officers. It executes this role within the confines of mandates conferred upon it by specific legislation.
The nexus between the AAT and the bureaucratic system is also a concern of this discourse. Whereas there is contention that the AAT is far removed from the bureaucratic system this paper argues that the bureaucratic system has a close contact with the functioning of the AAT. First, it has been pointed out in this discourse that the President of the AAT can only be appointed from among persons who are Judges of the Federal Court of Australia. This takes us to the next step of finding out the procedure of appointment of Judges of the Federal Courts. Article 72 of the Constitution would be instructive. The Judges are appointed by the Governor-General in Council. The Governor–General is at the heart of the bureaucratic system hence we can deduce that his appointees play a leading role in the administration of the AAT as well as the performance of its functions. Therefore, we can infer from the foregoing observation that there exists a direct link between the AAT and the bureaucratic system.
Conclusion
In conclusion, the AAT is a robust institution for merits review, a mandate that has been widely conferred upon it by the AAT Act and other enactments. It has been clothed with the necessary institutional framework for the performance of its functions. We have seen the extent to which the AAT has endeavored to fulfill some of the aspirations entrenched in administrative law such as the duty to give reasons for decisions made, procedural fairness, legal standing and individual access to persons whose interests are affected by the decisions of public officers exercising public power. Nevertheless, the AAT has not been completely severed from both the court systems and the bureaucracy.
References
Administrative Appeals Tribunal Act No 91 of 1975.
Administrative Review Council, ‘The Scope of Judicial Review’ Report No. 47 (2006).
Cane P. and McDonald L., Principles of Administrative Law: Legal Regulation of Governance (Melbourne: Oxford University Press, 2008).Administrative Review Council, ‘Australian Administrative Law Policy Guide’ (2012) Available at: <http://www.ag.gov.au/LegalSystem/AdministrativeLaw/Documents/Australian%20Administrative%20Law%20Policy%20Guide.pdf> [Accessed: 18 May 2014].
Cane P., ‘Administrative Tribunals and Adjudication’ (Oxford: Hart Publishing, 2009).
Kerr D., Keeping the AAT from Becoming a Court’ (2013) Sydney. Available at: <http://www.aat.gov.au/Publications/SpeechesAndPapers/Kerr/AIALNSWSeminar27August2013.htm> [Accessed: 18 May 2014].
French RS., ‘Administrative Justice in Australian Administrative Law’ in R Creyke & J McMillan (eds) (1999) Administrative Justice – The Core and the Fringe.
Pearce DC., ‘The Australian Government Administrative Appeals Tribunal’ 1 U.N.S.W Law Journal (1976) at 203.
