Last updated 22 August 2016
The Administrative Appeals Tribunal (AAT) proceedings should be as simple as possible (s 33 Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)). In carrying out its functions, the AAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 2A AAT Act). The AAT avoids to some extent the formal trappings of the courts and the adversarial character of court proceedings. Hearings are inquiries into the merits of government decisions rather than legal contests between two opposing parties. A full description of the AAT procedures and processes, including a flow chart of the application process, is available on the AAT website.
The AAT is not bound by the rules of evidence and may inform itself in whatever way it considers appropriate (s 33(1)(c) AAT Act). Written evidence and arguments are sometimes received instead of oral arguments. Lawyers frequently appear to present cases to the AAT, and its hearings are generally held in public. However, the AAT will not readily depart from the rules of evidence, and where it does so (e.g. in admitting hearsay evidence), it will generally consider what weight to put on the evidence in the light of its status.
The AAT has an outreach program for unrepresented parties (i.e. people who are presenting their own case without the assistance of lawyers). The AAT provides information and assistance about AAT practices and procedures. Outreach usually occurs about the same time the parties are provided with copies of the T documents. Outreach is conducted over the phone. Where necessary, the AAT will arrange for assistance from an interpreter.
The AAT website contains comprehensive information about practices and procedures, including specific publications dealing with workers compensation and social security jurisdictions.
Alternative dispute resolution
The AAT Act allows for alternative dispute resolution (ADR) to be held between the parties with a view to bringing about a settlement of their differences (s 34A AAT Act) without a formal hearing by the tribunal. Alternative dispute resolutions include conferencing, mediation, neutral evaluation, case appraisal and conciliation (s 3 AAT Act). Anything said at an alternative dispute resolution (ADR) cannot be given in evidence before the AAT, unless the parties otherwise agree (s 34E AAT Act).
If the parties at an ADR agree to resolve a matter and sign a written agreement containing the terms of that resolution, the AAT can make a decision in accordance with those terms without a hearing (after a seven-day cooling off period), if it is satisfied that those terms are within its powers (ss 34D, 42C AAT Act).
Guidelines for ADRs can be found on the AAT website.
The AAT has a General Practice Direction, which applies in all applications made to the AAT throughout Australia. This procedure can be varied by specific direction of the AAT. The practice direction is designed to assist the AAT to achieve the dual purpose of attempting to obtain an agreed resolution where possible and ensuring that appropriate steps are taken to prepare for the hearing of those matters that do not settle.
Powers of the tribunal
The AAT exercises all of the powers and discretions conferred upon the original decision maker (s 43 AAT Act). The AAT can affirm, vary, set aside or remake the decision under review, or refer the decision back for reconsideration according to any directions or recommendations it may make (s 43(1) AAT Act). It decides for itself what the decision should be and is not limited to determining whether the original decision maker made some legal error that would give rise to judicial review.
An applicant can withdraw their application at any stage. The AAT will exercise its powers under s 43 of the AAT Act when determining a matter that has not been settled, dismissed or withdrawn.
A policy can facilitate the integrity and consistency of administrative decision making and may be a relevant consideration for decision making by the AAT in clearly defined circumstances. However, the policy must be consistent with the purpose of the statute (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640–641 ). The reasons for the decision should identify the relevant policy and how it was taken into consideration in making the disputed decision.
Decision of the tribunal
The AAT must give a decision and, on request, its reasons for that decision in writing (ss 43(2), 43(2A) AAT Act). This duty is subject to the confidentiality provisions in the AAT Act (ss 35, 36D). However, there is no universal form for a statement of reasons. The characteristics of an individual decision will essentially determine the material to be set out in a statement of reasons. The findings on all material questions of fact taken into account in making the decision must be stated in the AAT’s reasons for decision (s 43(2B) AAT Act). This means that on any point it decides upon, the AAT should state the evidence relating to the point, state which evidence it accepts and make a finding of fact that conforms with its view of the evidence.
Appeal from the tribunal
An appeal from the AAT to the Federal Court of Australia on a question of law is permitted within 28 days of receiving the AAT’s decision (s 44 AAT Act). The AAT may err in law in a number of ways. For example, a failure to adhere to relevant legal principles arising from cases decided by the Federal Court of Australia, a failure to comply with s 43(2) of the AAT Act and a failure to adhere to the statutory obligation to give reasons for a decision constitute an error of law. Disputes about facts or the way discretion was exercised are generally not errors of law.
The AAT itself may refer a question of law to the Federal Court of Australia for determination (s 45 AAT Act).
The AAT has no general power to make orders for costs so, in most matters, the parties will pay their own costs. The AAT does have power to award costs in some matters including Freedom of Information matters, lands acquisition appeals and Commonwealth employees compensation actions. Again, it is necessary to check the relevant legislation for details. In extremely rare cases, funding may be obtained from the Attorney-General for public interest cases.
Because of the very wide jurisdiction of the AAT, applicants should approach the various legal aid agencies and community legal centres for information about the kind of assistance these centres may be able to provide.