Last updated 20 May 2022
The Administrative Appeals Tribunal (AAT) proceedings should be as simple as possible. It should be conducted with as little formality and technicality as permitted and as expeditiously 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 aims to be an accessible jurisdiction that promotes public trust and confidence in its decision making.
The procedure for administrative appeal will vary depending on the area of review.
Examples in the child support and national disability insurance scheme areas
Child support reviews
AAT’s first review of child support decisions
Step 1: After receiving the application, the AAT will write a letter to the applicant acknowledging receipt. The AAT will also notify the other parent (or non-parent carer) and the Child Support Registrar of the application.
Step 2: Information must then be provided to the AAT by both the applicant and the department in which the Child Support Registrar is an employee (the department).
The department must:
- provide a copy of the decision to be reviewed within three workings days after receiving notice
- give any written submissions under the Act at least 14 days before the hearing (where no party resides outside Australia) or otherwise within 28 days of the hearing.
The applicant must:
- provide written submissions, evidence and other information as directed by the registry
- where directions are not given, provide any evidence, information or written submissions they intend to rely upon 14 days before the hearing (where no party resides outside Australia) or otherwise within 28 days of the hearing.
Step 3: Documents provided to the AAT will then be supplied to the applicant, the department and any other party. Exceptions apply, and an applicant can redact some information provided to the AAT and ask for particular information not to be disclosed, and the registry will also redact certain information provided to the registry.
Step 4: A directions hearing may be held by telephone and will be recorded by the tribunal.
Step 5: The applicant must lodge a request for representation (at last 21 days before the hearing), to appear by telephone and be assisted by an interpreter (within 14 days of lodging the application). The applicant must notify the tribunal about any person they want to be present at the hearing including witnesses. Children are prohibited from attending.
Step 6: A hearing will be conducted. The tribunal member will decide how to conduct the hearing and may ask questions to the applicant, any other party and any witnesses. The parties are not permitted to question each other, but may ask the presiding member to put a particular question to the other party or witness.
For information on AAT’s second review of child support decisions, available for decisions to refuse to extend the time to apply for a first review and decisions in relation to percentage of care, see Social Security Guide.
National Disability Insurance Scheme reviews
Step 1: The registry will write to confirm receipt of the application.
Step 2: A contact officer will call the applicant within three working days to discuss what will happen with the application, contact details, assistance required to participate in the review process etc.
Step 3: The AAT will tell the National Disability Insurance Agency (NDIA) they have received the application and request all the documents relevant to the application (T documents).
Step 4: In most cases, a case conference will be held two to four weeks from receipt of the T documents. A case conference is an informal meeting to discuss whether the applicant and NDIA can reach agreement.
- Before the conference, a contact officer will explain what will happen and how the applicant can prepare for the case conference.
- At the conference, the registrar or AAT member will try to help the applicant and NDIA to reach an agreement.
- If there is no agreement, next steps will be discussed including a conciliation or a hearing, and a case plan will be prepared setting out information about the progress of the matter, additional information and any supports required to ensure the process is fair and quick.
Step 5: Conciliation, another form of alternative dispute resolution, may be conducted next. At the conciliation, the registrar or AAT member will work with the applicant and NDIA to reach agreement if possible.
Step 6: In some cases, an application will proceed to a hearing, either directly after the T documents are provided or if the case conference and conciliation are not successful. An applicant may also request a fast-track hearing after the case conference in certain circumstances. The hearing will be conducted as informally as possible, and the AAT member will give a decision at the end, if possible. In complex or novel matters, a decision will be given no later than 60 days after the hearing.
The AAT aims to avoid 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 practice directions, guides, guidelines and a flow chart of the application process, is available on the AAT website.
Generally, parties have a right to be represented before the AAT. A party wishing to be represented in a hearing before the Social Services and Child Support Division must obtain permission from the tribunal (s 32 AAT Act). Lawyers frequently appear to present cases in the AAT, however, non-lawyer representatives such as accountants and migration agents may also appear. Parties may also be represented by a friend, family member or other advocate.
AAT hearings are generally held in public, however, the tribunal has powers to order private hearings, non-publication and non-disclosure orders to protect a party or witness before the proceedings (s 35 AAT Act).
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) subject to procedural fairness. This means that the AAT may depart from the rules of evidence, although where it does so (e.g. admitting hearsay evidence) this may be relevant to assessing the weight to be put on the evidence.
Evidence may take the form of documents, oral arguments, written evidence and expert evidence. The tribunal has the power to summon a party to produce documents or give evidence relevant to the proceedings (s 40 AAT Act).
Expert evidence is presented in many AAT proceedings, notably in social security, NDIS, veterans and employee compensation matters. The General Practice Direction, available on the AAT website, sets out the rules for expert evidence, including requiring the early exchange of expert reports. The AAT Persons Giving Expert and Opinion Evidence Guideline sets out expectations in relation to the giving of expert evidence and must be given to expert report writers.
The AAT has an outreach program for applicants who are not legally represented. 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 also has a legal advice scheme, established with legal aid bodies. A legal aid representative attends the tribunal and self-represented parties can make an appointment for advice. Specialist community legal centers and the Aboriginal legal service in each state and territory may also provide assistance in the AAT. The Assistance webpage on the AAT website contains referral information.
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) processes to be held between the parties with a view to resolving the matter without a formal hearing (s 34A AAT Act). Alternative dispute resolution processes include conferencing, mediation, conciliation and case appraisal (s 3 AAT Act).
A conference is an informal, private meeting conducted by the tribunal member or officer with the parties.
Conferences are conducted to discuss and define the dispute, identify further evidence and explore the conduct of the application and whether the matter can be settled. The aim of case conferencing is to either resolve the application by agreement or, if it cannot be resolved, create a written case plan setting out how the application will proceed.
A second conference may be held to discuss the evidence that has been lodged, and the strengths and weaknesses of the cases. The conference may result in an agreement, or narrowing of the issues in dispute.
The AAT registry will generally refer all applications to a conference shortly after receiving an application.
See the AAT’s Conference Process Model.
Mediation is a process where the tribunal member, officer or appointed mediator helps the parties to identify the issues in dispute, consider alternatives to proceeding to hearing and reach an agreement.
The mediator cannot offer advice or decide the dispute, but may determine the mediation process.
Mediation may be appropriate where the matter is complex, likely to be lengthy, involves more than two parties and/or there will be an ongoing relationship between the parties
See the AAT’s Mediation Process Model.
Conciliation is another informal meeting held between the parties, in person or by phone. The aim of the conference it to try and resolve the application by agreement.
A conciliation differs from a mediation in that the conciliator may make suggestions for the terms of settlement and encourage participants to reach an agreement that is in accordance with relevant law.
A conciliation may be favored where commercial considerations are important, the parties want to keep the agreement confidential or would benefit from advice on settlement options.
See the AAT’s Conciliation Process Model.
Case appraisal is an advisory process where a tribunal member, officer or another appointed person assists the parties to resolve the dispute by providing an opinion on the facts and likely outcome. The person conducting the case appraisal will be selected based on their knowledge of the subject matter in dispute.
Case appraisal may be conducted at any stage in the proceedings, and may be appropriate where there is a dispute in relation to an evidentiary or factual dispute, an expert opinion may further negotiations and parties are willing to give proper consideration to the appraisal.
See the AAT’s Case Appraisal Process Model.
Alternative dispute resolution processes are conducted without charge to the parties. Anything said at an ADR process 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, after a seven-day cooling-off period, make a decision in accordance with those terms without a hearing if satisfied that those terms are within its powers (ss 34D AAT Act). Similar powers exist for agreements reached outside an ADR (s 42C AAT Act).
Alternative Dispute Resolution guidelines setting out the objects of an ADR and principles the AAT will consider when referring a matter to ADR can be found on the AAT website. The process models, also available on the AAT website, define the different ADR processes.
The AAT has a General Practice Direction, which applies in all applications made to the AAT throughout Australia. The practice direction sets out procedures for AAT matters, including in relation to interpreters, expert evidence and how to address members. 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 AAT
The AAT exercises all of the powers and discretions conferred upon the original decision maker by the enabling Act or Regulation (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 correct or preferable 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.
Although the AAT is not bound to follow ministerial or departmental policy, it is routinely relied upon by the AAT when determining administrative appeals.
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). In that case, the court found that decision makers undertaking merits review should generally apply ministerial policy unless it was unlawful or there were convincing reasons to depart from it.
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 AAT
The AAT decision may be given orally or in writing (s 43(1) AAT Act). Written reasons may be given on request by a party made within 28 days after the decision is given, and provided within 28 days of the request (s 43(2A) AAT Act). This duty is subject to the confidentiality provisions in the AAT Act (ss 35, 36D).
Where written reasons are given, they should state findings on all material questions of fact taken into account in making the decision and refer to any evidence or other material the findings are based on (s 43(2B) AAT Act). The parties must also be notified of further review rights, including second review or review by a court (s 43(5AA) AAT Act).
The decision of the tribunal is taken to be the decision of the decision maker and will have effect on the day ordered by the AAT (s 43(6) AAT Act).
Appeal from the AAT
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 the requirement to give reasons 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 by the tribunal member 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 for the cost of their own lawyer if they chose to have one, whether they are successful or not. The AAT does have power to award costs in some matters including security applications under the Australian Security Intelligence Organisation Act 1979 (Cth), veterans entitlements under the Military Rehabilitation and Compensation Act 2004 (Cth) and Commonwealth employees compensation actions under the Safety, Rehabilitation and Compensation Act 1988 (Cth). It is necessary to check the enabling Act or Regulation that gives review rights in the AAT for details about costs that can be awarded.
Where costs can be ordered, and the parties cannot reach agreement, the AAT’s taxing officer will determine the costs amount. The Taxation of Costs Practice Direction, available on the AAT website, sets out the procedures to be followed when applying to the Taxing Officer.
In extremely rare cases, funding may be obtained from the Commonwealth Attorney-General’s office for cases of public importance.