Administrative Appeals Tribunal [4th edition.] 0409342939, 9780409342932

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ADMINISTRATIVE APPEALS TRIBUNAL FOURTH EDITION

EMERITUS PROFESSOR DENNIS C PEARCE AO, FAAL LLB (Adelaide), LLM (ANU), PhD (ANU) Barrister and Solicitor of the Supreme Courts of South Australia and the Australian Capital Territory and the High Court of Australia Solicitor, Supreme Court of New South Wales Emeritus Professor of Law, Australian National University Consultant, HWL Ebsworth, Lawyers

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Pearce, Dennis Charles. Administrative Appeals Tribunal. 4th edition. 9780409342932 (pbk). 9780409342949 (ebk). Includes index. Australia. Administrative Appeals Tribunal. Administrative remedies — Australia. Government liability — Australia. 342.940664.

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PREFACE The establishment by the Commonwealth of Australia in 1975 of the Administrative Appeals Tribunal was one of the most innovative steps ever taken to provide citizens with a means of review of the merits of a decision taken by a government agency. It has provided the model from which similar bodies have been developed in other jurisdictions in Australia. It has been commended by commentators in many countries. The expression ‘AAT’ has passed into the language as a description of a body to which persons can appeal against government decisions. The AAT was based on the recommendations of the Commonwealth Administrative Review Committee. One of the recommendations of that Committee was that there should be one tribunal that dealt with appeals from all Commonwealth Government administrative decisions. This recommendation was not followed in regard to two significant areas of decision-making — appeals against visa decisions under the Migration Act 1958 (Cth) and appeals against a broad range of social services decisions. Instead, specialised tribunals were established — the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) for visa decisions and the Social Security Appeals Tribunal (SSAT) for social services appeals. These tribunals have functioned as stand-alone bodies for many years. In 2014 the decision was made to amalgamate these separate tribunals with the AAT. This was achieved by the commencement on 1 July 2015 of the Tribunals Amalgamation Act 2015 (Cth). However, in recognition of the law and practice that had developed in relation to the amalgamated tribunals, two discrete Divisions were established within the AAT to handle appeals that were formerly heard by those tribunals. Appeals against visa decisions are to be heard in the Migration and Refugee Division of the Tribunal and the proceedings are to be managed in accordance with the requirements of the Migration Act rather than the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Appeals that were formerly dealt with by the SSAT will be dealt with in the Social Services and Child Support Division in proceedings that are designated ‘first review’. The proceedings in this Division are expected to be managed in very

much the same way as were proceedings in the SSAT. There will still be a right to appeal against first review decisions in the Social Services and Child Support Division to the General Division of the Tribunal as previously existed in relation to decisions of the SSAT. This amalgamation has necessitated this new edition of Administrative Appeals Tribunal even though only a little over two years have elapsed since the last edition was published. In addition to bringing the specialised tribunals within the aegis of the AAT, the Amalgamation Act made many changes to the text of the AAT Act, largely to update and modernise it but also to make some substantive changes with a view to improving the working of the Tribunal. These changes have been recognised in this edition of the book. This and previous editions of the book have dealt with the specialised jurisprudence that has developed relating to the operation of the AAT. This jurisprudence is also relevant to the other tribunals which have followed the AAT model and to all tribunals that consider the merits of a decision, whether made by a government official or another person. While the migration and social services tribunals that are now amalgamated with the AAT purported to operate under different regimes, the AAT jurisprudence had a significant impact on the management of their proceedings. Conversely, judicial decisions on appeal from the migration tribunals in particular have strongly influenced the procedure of the AAT. The establishment within the AAT of the Migration and Refugee Division and the Social Services and Child Support Division was purportedly done to preserve what was perceived to be the discrete procedures that were followed by the amalgamated tribunals. In practice there are marginal differences at best between the procedures followed by the AAT and those that were adopted in the amalgamated tribunals. Decisions of the courts have ensured that basically all tribunals function in the same way. Accordingly, the general format of earlier editions of the book has been retained. Where there is a difference between the established AAT procedure and that to be followed in the specialist Divisions this has been highlighted. However, it is anticipated that the established AAT procedure will be followed in the specialist Divisions unless there is a clear legislative requirement to do otherwise. This book is based on material published in the looseleaf service Australian Administrative Law, LexisNexis, and is cross-referenced to that publication, particularly where reference is being made to other areas of the Commonwealth

Administrative Law system. It can be expected that there will be developments, both legislative and judicial, dealing with the management of proceedings in the Migration and Refugee Division and the Social Services and Child Support Division. These will be noted in the service as they appear. Reference is also made where relevant to the AAT’s website. For ease of use, those sections of the Administrative Appeals Tribunal Act and the Migration Act that are relevant to the procedures of the Tribunal are reproduced in the book. I am indebted to a number of people in the preparation of this edition. The President of the AAT, the Honorable Justice Duncan Kerr, Chev LH, has encouraged me in the writing of this new edition and has most kindly made information available to me to expedite its completion. Deane Jarvis, formerly a Deputy President of the AAT, has provided information and suggestions relating to some of the more difficult areas of the extensive AAT jurisdiction. His guidance and wisdom has been invaluable. Fergus Thomson has shared his experience of the practical operation of the Tribunal and has made valuable suggestions to the content of the book as a frequent user. Mary-Jane Oliver’s editorial comments have once again greatly enhanced the quality of the finished product and I especially thank her for the speed with which she has undertaken her task. The law is stated as available on 1 August 2015. Dennis Pearce ANU College of Law Australian National University

TABLE OF CASES All references are to paragraphs 3D Scaffolding Pty Ltd v Commissioner of Taxation [2008] FCA 1477; (2008) 105 ALD 475 …. 8.19 A A and Department of Transport, Re (1978) 2 ALD 98 …. 13.27 A and Federal Commissioner of Taxation, Re (1987) 13 ALD 422 …. 10.14 A and Federal Commissioner of Taxation, Re (1997) 46 ALD 715 …. 15.5 AA and Commissioner for Superannuation, Re (1985) 9 ALN N99 …. 3.32 AAT Case 4878 (1989) 89 ATC 508; 20 ATR 3251 …. 15.10 AB v Federal Commissioner of Taxation (1998) 157 ALR 510 …. 19.45, 19.48 Abbott and Australian Postal Corporation, Re [2012] AATA 629; (2012) 132 ALD 573 …. 15.22 ABCD and Commissioner of Taxation, Re [2008] AATA 898; (2008) 50 AAR 287 …. 7.1, 7.4, 12.16, 12.17 Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 …. 3.10, 15.15 Achurch and Comcare, Re (2003) 77 ALD 531 …. 13.27 ACT Department of Health and Nikolovski and Comcare, Re (1996) 42 ALD 599 …. 9.38, 13.8 ACT Department of Justice and Community Services and Comcare, Re [2009] AATA 579; (2009) 110 ALD 679 …. 18.3 Actelion Pharmaceuticals Australia Pty Ltd and Minister for Health and Ageing, Re [2008] AATA 227; (2008) 102 ALD 188 …. 11.9 Adamou v Director-General of Social Security (1985) 7 ALN N203 …. 13.52

Adams and Tax Agents Board, Re (1976) 1 ALD 251 …. 3.7, 3.11, 16.4 Advocacy for the Aged Association Inc and Secretary, Department of Social Security, Re (1991) 25 ALD 535 …. 3.10, 3.22, 3.32, 3.34 Agapis v Plumbers Licensing Board [2012] FCA 1375; (2012) 133 ALD 307 …. 19.11 Agar v Australian Postal Corporation (1998) 56 ALD 361 …. 6.23, 6.24 Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing, Re [2009] AATA 840; (2009) 113 ALD 546 …. 16.4, 16.21 Aged Care Standard and Accreditation Agency v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428 …. 16.21 Ahern v Deputy Commissioner of Taxation (1983) 50 ALR 177; 5 ALN N360 …. 16.29 AJKA Pty Ltd and Australian Fisheries Management Authority, Re (1995) 39 ALD 445 …. 11.13 AJKA Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21 …. 17.16 AK and Commissioner for Superannuation, Re (1986) 11 ALN N106 …. 9.36, 13.27 Akuhata-Brown and Chesley and Minister for Immigration and Ethnic Affairs, Re (1981) 3 ALN N55 …. 5.5 Alcoa of Australia Ltd v Swiss Aluminium Australia Ltd (1986) 9 ALD 345 …. 19.11, 19.12 Aldridge and Repatriation Commission, Re [2012] AATA 571; (2012) 130 ALD 698 …. 15.12 Alexander and Migration Agents Registration Board, Re (1995) 40 ALD 99 …. 14.6 Allan and Repatriation Commission, Re [2003] AATA 994; (2003) 77 ALD 140 …. 2.12, 19.51 Allan v Development Allowance Authority (1998) 80 FCR 583; 152 ALR 43 …. 5.6, 5.9

— v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 …. 5.6, 5.9 Allegretto and Telstra Corporation Ltd, Re [2011] AATA 867 …. 6.32 Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250; 32 ALD 71 …. 5.5, 5.7, 7.6 Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 772; (2004) 138 FCR 60; 83 ALD 433 …. 17.6 Alyssa Treasury Services Ltd v Commissioner of Taxation [2010] FCA 967; (2010) 118 ALD 494 …. 19.61 — v — [2011] AATA 578; (2011) 130 ALD 671 …. 10.13 Ananda Marga Pracaraka Samgha Ltd v Tomar [2012] FCA 385; (2012) 202 FCR 564; 291 ALR 292 …. 9.27 An Applicant and Australian Prudential Regulation Authority, Re [2005] AATA 1294; (2005) 89 ALD 643 …. 11.2, 11.15, 11.17 Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 121 ALD 242 …. 2.11, 15.10 Anderson and Civil Aviation Safety Authority, Re [2008] AATA 206; (2008) 101 ALD 360 …. 14.8 Anderson and Department of Immigration and Ethnic Affairs, Re (1986) 11 ALN N233 …. 12.12 Anderson and Secretary, Department of Social Security, Re (1992) 28 ALD 913 …. 3.19, 9.7 Anderson and Secretary, Department of Social Security, Re (1993) 31 ALD 155 …. 9.19 Anderson v Australian Postal Corporation (1993) 32 ALD 138 …. 17.17 Andreatta and Commissioner for Superannuation, Re (1991) 23 ALD 326 …. 7.3, 7.9 Andriopoulos and Secretary, Department of Social Security, Re (1984) 7 ALN N54 …. 9.35, 9.36, 13.48 Angus Fire Armour (Aust) Pty Ltd v Collector of Customs (NSW) (1988) 19

FCR 477; 16 ALD 227 …. 6.13 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513 …. 16.25, 17.18 Anti-Fluoridation Association (Vic) and Secretary, Department of Health, Re (1985) 8 ALD 163 …. 10.12, 13.24 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 …. 1.8 Apache Energy Pty Ltd and Chief Executive Officer of the National Offshore Petroleum Safety and Environmental Management Authority, Re [2012] AATA 298; (2012) 132 ALD 559 …. 7.3 AP Energy Investments Ltd and Commissioner of Taxation, Re [2013] AATA 626; (2013) 138 ALD 339 …. 9.27 Aporo v Minister for Immigration and Citizenship [2009] FCA 79; (2009) 107 ALD 54 …. 13.30 Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 …. 13.41 Appleton and Telstra Corporation Ltd, Re (1993) 32 ALD 357 …. 6.21 Applicant and Deputy Commissioner of Taxation, Re (1995) 41 ALD 683 …. 13.16 Applicant S214 of 2002 v Attorney-General (Cth) [2004] FCA 1635; (2004) 40 AAR 155 …. 20.8 — v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66; (2004) 38 AAR 425 …. 8.10, 11.9 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 …. 8.9 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 87 ALD 512 …. 8.10 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 …. 17.17 Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441; 85 ALD 532 …. 19.17

Apthorpe v Repatriation Commission (1987) 13 ALD 656 …. 19.32, 19.33 Aquatic Airways Pty Ltd and Civil Aviation Authority, Re (1989) 22 ALD 766 …. 14.7 Areffco and Commissioner of Taxation, Re [2011] AATA 687; (2011) 127 ALD 627 …. 17.14, 17.33 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 315 ALR 44 …. 5.5 Arifin v Decision Maker [2013] AATA 502 …. 3.8 Arnold (on behalf of Australians for Animals) v Queensland (1987) 13 ALD 195 …. 7.1, 19.25, 19.52 Arnold Bloch, Leibler & Co and Federal Commissioner of Taxation, Re (1984) 6 ALD 62 …. 12.12 Ashmore v Commissioner for Superannuation [2000] FCA 1816; (2000) 62 ALD 97 …. 13.47 Ashram and Australian Postal Commission, Re (1980) 2 ALN N1017 …. 17.1 Ashton and Linfox Armaguard Pty Ltd, Re [2011] AATA 579; (2011) 128 ALD 593 …. 10.11, 15.14, 15.21, 17.9 Aspen Pharmacare Australia Pty Ltd and Minister for Health and Ageing, Re [2012] AATA 362 …. 15.22 Aspen Pharma Pty Ltd and Commissioner of Patents, Re [2012] AATA 281; (2012) 129 ALD 18 …. 12.9, 15.22 Aston and Secretary, Department of Primary Industries, Re (1985) 8 ALD 366 …. 16.11, 16.28 Atkin v Willee [2011] FCA 568; (2011) 194 FCR 220; 121 ALD 105 …. 8.13 Attorney-General v Wentworth (1988) 14 NSWLR 481 …. 15.15 Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385; 97 ALD 426 …. 3.11 Aunela and Telstra Corporation Ltd, Re [2007] AATA 1392; (2007) 95 ALD 785 …. 13.17 Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; 135

ALR 753 …. 8.13 Austin v Secretary, Department of Family and Community Services [1999] FCA 938; (1999) 92 FCR 138; 57 ALD 330 …. 3.21 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 …. 17.3 Australian and Department of Families, Community Services and Indigenous Affairs, Re [2006] AATA 755; (2006) 92 ALD 179 …. 1.7, 7.2 Australian Broadcasting Tribunal, Re; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; 29 ALR 289 …. 13.6 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1 …. 3.23, 3.26, 19.37, 19.44 — v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; 8 ALN N107 …. 19.44 Australian Community Pharmacy Authority v Eaves (1997) 47 ALD 664 …. 19.21 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 …. 5.5 Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327; 104 ALD 258 …. 17.11 Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314; 39 ALD 481 …. 16.25, 19.43, 19.61 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 …. 19.33 Australian Insurance Employees Union, Re; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466 …. 17.16 Australian Metal Holdings Pty Ltd and Australian Securities Commission, Re (1995) 37 ALD 131 …. 16.29 Australian Mutual Provident Society and Minister for Territories and Local Government, Re (1984) 6 ALN N50 …. 12.14 Australian National Railways Commission and Gerlach, Re (1986) 10 ALN N133 …. 9.1, 14.10

Australian National Railways Commission and Kulu, Re (1989) 18 ALD 47 …. 6.9 Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393; (2008) 216 FCR 405; 107 ALD 323 …. 3.15, 3.24 Australian Petroleum Supplies Pty Ltd and Giuliano, Re [2010] AATA 1050; (2001) 66 ALD 676 …. 9.36, 13.27 Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508 …. 13.17 — v Burgazoff (1989) 10 AAR 296 …. 9.38 — v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; 76 ALD 578 …. 3.29 — v Hayes (1989) 23 FCR 320; 18 ALD 135 …. 13.8, 13.16, 13.42, 19.12, 19.34, 19.60, 19.62 — v Hughes [2009] FCA 1057; (2009) 111 ALD 579 …. 13.5, 17.16 — v Lucas (now Owen) (1991) 33 FCR 101; 25 ALD 266 …. 2.12 — v Mowbray [2003] FCA 1258; (2003) 134 FCR 179; 77 ALD 440 …. 3.22 — v Nguyen (1996) 71 FCR 516; 142 ALR 170 …. 19.11 — v Oudyn [2003] FCA 318; (2003) 73 ALD 659 …. 3.22 — v Sellick [2008] FCA 236; (2008) 101 ALD 245 …. 3.10, 8.11, 17.16, 17.17, 19.38 — v Wallace (1996) 41 ALD 455 …. 17.18, 19.31 Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 …. 11.15, 11.18, 12.6, 12.10, 19.60 — v Tidswell Administration Ltd [2003] FCA 1446; (2003) 134 FCR 265; 77 ALD 17 …. 15.18 Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449 …. 11.3, 11.14, 11.16, 14.2, 14.5, 14.8, 19.34 — v Donald [2002] FCA 1174; (2002) 69 ALD 187 …. 16.6, 16.12

— v — [2003] FCAFC 318; (2003) 136 FCR 7; 77 ALD 449 …. 16.6, 16.12 — v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559 …. 11.3, 11.14, 11.15, 14.2, 14.5, 19.11 Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316; 70 ALD 1 …. 16.21 Australian Telecommunications Commission and Formoso, Re (1985) 8 ALD 191 …. 8.5, 10.2 Australian Telecommunications Commission and Inns, Re (1987) 12 ALD 536 …. 14.10 Australian Telecommunications Commission and Commonwealth and Schmidt, Re (1986) 9 ALD 349 …. 6.17, 6.23 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 …. 19.22 Australian Trade Commission v Deputy President McMahon (1997) 46 ALD 338 …. 17.33, 19.12 — v Richard Shrapnel Consulting Services Pty Ltd (1988) 22 FCR 145; 17 ALD 535 …. 19.48 — v Underwood Exports Pty Ltd (1997) 49 ALD 411 …. 2.12, 13.42, 19.54 — v W A Meat Exports Pty Ltd (No 1) (1987) 14 ALD 128 …. 19.55 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; 111 ALR 385 …. 17.30 Autos America Pty Ltd and Department of Transport and Regional Development, Re (1996) 42 ALD 758 …. 5.7 Avery v Commissioner of Taxation [2010] FCA 615; (2010) 116 ALD 117 …. 10.10 Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 …. 19.22 AX03D and Tax Agents’ Board of NSW, Re (2003) 74 ALD 597 …. 14.8 AZACK v Minister for Immigration and Border Protection [2014] FCA 762;

(2014) 144 ALD 72 …. 8.13 Azsco Overseas Sales Pty Ltd and Collector of Customs (NSW) (No 1), Re (1981) 3 ALN N42 …. 3.10 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; 9 ALN N245 …. 19.39 B B and Medical Board, Re (ACT) (1995) 39 ALD 748 …. 17.9 Babinda Co-operative Sugar Milling Association Ltd and Australian Industrial Research and Development Incentive Board, Re (1980) 2 ALD 851 …. 16.11 Baker and Australian and Overseas Telecommunications Corporation, Re [1992] Admin Review 113 …. 9.10 Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 …. 9.9 — v Minister for Immigration and Citizenship [2012] FCAFC 145 …. 17.19 — v Secretary, Department of Social Security (1991) 23 ALD 305 …. 6.21, 19.21 Baldt and Director-General of Social Security, Re (1984) 6 ALN N53 …. 9.36, 13.8, 13.48 Ball and Commonwealth, Re (1987) 15 ALD 491 …. 9.33, 9.37 Bank of New South Wales v Withers (1981) 35 ALR 21 …. 20.6 Baran and Secretary, Department of Primary Industries and Energy, Re (1988) 18 ALD 379 …. 3.17, 17.2 Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs, Re (1980) 3 ALD 1 …. 9.1, 9.4, 9.15, 16.27 Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs, Re (1982) 4 ALN N219 …. 9.6, 9.15 Barbaro (Vincenzo) v McPhee (1982) 4 ALD 609 …. 3.28 Barker and Australian Telecommunications Commission, Re (1988) 15 ALD 573 …. 9.38 Bartlett and Comcare, Re (1996) 40 ALD 709 …. 16.15

Barton and Australian Broadcasting Commission, Re (1982) 5 ALN N33 …. 18.4 Basonyi and Comcare, Re [2011] AATA 207; (2011) 128 ALD 191 …. 17.30 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; (2011) 280 ALR 91 …. 19.52 Batchelor v Commissioner of Taxation [2014] FCAFC 41; (2014) 219 FCR 453; 142 ALD 1 …. 8.5, 17.1, 19.43 Bateman and Repatriation Commission, Re (1990) 20 ALD 435 …. 6.15, 16.25, 16.26 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 …. 5.5 Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55; (2003) 75 ALD 34 …. 8.9 BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 …. 17.11 Beach and Commonwealth, Re (No 2) (1990) 20 ALD 713 …. 6.15 Beard v Telstra Corporation Ltd [1999] FCA 999; (1999) 57 ALD 376 …. 15.10 Beatson and Military Rehabilitation and Compensation Commission, Re [2010] AATA 190; (2010) 114 ALD 431 …. 3.10 Becek and Department of Immigration and Citizenship, Re [2012] AATA 237; (2012) 132 ALD 545 …. 6.17 Becker and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 158 …. 16.27, 16.29 Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; 23 ALD 556 …. 9.19 Beigman and Secretary, Department of Social Security, Re (1992) 29 ALD 332 …. 3.26, 8.4 Beiruti v Commissioner of Taxation [2013] AATA 634; (2013) 138 ALD 380 …. 6.4 Bendel and Inspector-General in Bankruptcy, Re [2001] AATA 179 …. 15.23

Bennett and Repatriation Commission, Re (1994) 36 ALD 387 …. 6.13, 19.1 — v Repatriation Commission (1997) 45 ALD 491 …. 19.49 Bennetti Enterprise Pty Ltd and Secretary, Department of Agriculture, Fisheries and Forestry, Re [1999] AATA 372; (1999) 57 ALD 223 …. 5.6 Berry v Repatriation Commission (1992) 27 ALD 330 …. 19.20 Bergen and Secretary, Department of Social Security, Re (1994) 36 ALD 717 …. 15.16 Berringer Blass Wine Estates v Geographical Indications Committee Ltd [2002] FCAFC 295; (2002) 125 FCR 155; 70 ALD 27 …. 19.50 Berry and Comcare, Re (2006) 91 ALD 453 …. 3.10 Bessey and Australian Postal Corporation, Re [2000] AATA 404; (2000) 60 ALD 529 …. 9.14, 13.17, 13.27 Betts v Whittingslowe (No 1) [1944] SASR 163 …. 13.45 BHP Co Ltd v Mason (1996) 67 SASR 456 …. 13.16 BHP Petroleum Pty Ltd and Collector of Customs, Re (1987) 11 ALD 413 …. 2.9 BHP Petroleum (Bass Strait) Pty Ltd v Jenkins (1993) 115 ALR 179 …. 17.1 BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155; 32 ALD 17 …. 3.10 Bienstein and Commonwealth Ombudsman, Re [2003] AATA 1197; (2003) 38 AAR 270 …. 3.8 Bienstein v Family Court of Australia [2008] FCA 1138; (2008) 170 FCR 382; 251 ALR 453 …. 15.23, 19.38 Billeci and Secretary, Department of Housing and Construction, Re (1980) 2 ALN N1039 …. 16.16 Bird and Military Rehabilitation and Compensation Commission, Re [2006] AATA 109; (2006) 91 ALD 691 …. 13.19, 13.22 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 76 ALD 321 …. 19.22

Bisley Investment Corporation Ltd and Australian Broadcasting Tribunal, Re (1981) 3 ALN N137 …. 3.26, 17.21 Bitar and Secretary, Department of Family and Community Services, Re [2003] AATA 64; (2003) 73 ALD 58 …. 16.16 Black v Repatriation Commission (1993) 29 ALD 693 …. 19.22 Blackman v Federal Commissioner of Taxation (1993) 30 ALD 346 …. 13.47 Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (No 2) (1980) 3 ALD 38 …. 19.31 BLBS and Minister for Foreign Affairs and Trade, Re [2012] AATA 464; (2012) 129 ALD 380 …. 11.14, 12.18, 13.19, 13.32 Bloomfield and Sub-collector of Customs, ACT, Re (1981) 4 ALD 204 …. 3.33 Blunn v Cleaver (1993) 47 FCR 111; 31 ALD 28 …. 19.58 Blyth and Repatriation Commission, Re (1982) 4 ALN N147 …. 20.6 Boak and Director-General of Social Services, Re (1982) 4 ALN N239 …. 16.16 Board of Control of Michigan Technological University and Deputy Commissioner of Patents, Re (1979) 2 ALD 203; 2 ALD 711 …. 3.17, 3.18 Board of Control of Michigan Technological University v Deputy Commissioner of Patents (1982) 40 ALR 577 …. 19.59 Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255; 62 ALD 535 …. 15.18 Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651; 95 ALD 1 …. 19.57 Boehm v Ombudsman (1986) 11 ALN N232 …. 19.20 Bogaards and Commonwealth, Re (1987) 13 ALD 578 …. 17.24 Bogaards v McMahon (1988) 15 ALD 313 …. 15.21, 17.7, 17.24, 19.12, 19.60 Bojczuk and Secretary, Department of Social Security, Re (1986) 10 ALN N230 …. 14.11 Bonan v Hadgkiss (Deputy Australian Building and Construction

Commissioner), Re [2006] FCA 1334; (2006) 160 FCR 10; 92 ALD 116 …. 11.4 Bonavia and Secretary, Department of Social Security, Re (1985) 9 ALD 97 …. 6.22, 6.26 Bond v Trustee of Alan Bond, a Bankrupt (1994) 32 ALD 770 …. 19.25 Boucher v Australian Securities Commission (1996) 71 FCR 122; 44 ALD 499 …. 13.45 Bowen and Repatriation Commission, Re (1994) 32 ALD 700 …. 3.6, 3.10, 3.19 Bowron and Secretary, Department of Social Security, Re (1990) 21 ALD 333 …. 3.30 Boyd and Comcare, Re (1991) 23 ALD 392 …. 7.3 Boyle and Commissioner of Taxation, Re (2005) 87 ALD 377 …. 13.19 BQL and Commissioner of Taxation, Re [2013] AATA 423; (2013) 134 ALD 419 …. 8.15 Brackenreg and Comcare, Re [2002] AATA 1325; (2002) 74 ALD 137 …. 17.25 Brackenreg v Comcare Australia (1995) 56 FCR 335 …. 17.18 — v — [2010] FCA 724; (2010) 187 FCR 209; 117 ALD 39 …. 17.17 Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364; 65 ALD 95 …. 6.8 Bragg and Minister for Immigration and Ethnic Affairs, Re (1986) 10 ALN N213 …. 11.6, 11.7, 14.3 Bragge and Repatriation Commission, Re (1986) 10 ALN N136 …. 15.10 Bramwell v Repatriation Commission (1998) 51 ALD 56 …. 16.12, 16.14 Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385 …. 15.8, 15.11, 19.21 Brian Lawlor Automotive Pty Ltd and Collector of Customs, Re (NSW) (1978) 1 ALD 167 …. 3.14, 16.5, 16.8, 16.10, 16.23 Brickworks Ltd v Shire of Warringah (1963) 108 CLR 568 …. 17.8 Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647;

(2001) 114 FCR 456; 67 ALD 306 …. 19.44 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 9.42 Brinkworth and Repatriation Commission, Re [2008] AATA 174; (2008) 102 ALD 164 …. 9.42 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1 …. 6.17 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283; 273 ALR 429 …. 8.15 British Oxygen Co Ltd v Minister of Technology [1971] AC 610; [1970] 3 All ER 165 …. 16.25 Broken Hill Television Ltd and Spencer Gulf Telecasters Ltd and Australian Broadcasting Tribunal, Re (1989) 19 ALD 528 …. 19.58 Brooks and Comcare, Re (1995) 38 ALD 612 …. 18.8 Brown and Comcare, Re [2011] AATA 606; (2011) 125 ALD 99 …. 18.5 Brown v Commonwealth of Australia [1986] FCA 285 …. 8.3 — v Federal Commissioner of Taxation (1999) 99 ATC 4516 …. 6.17 — v Minister for Immigration and Multicultural Affairs and Chappell (1998) 52 ALD 550 …. 6.33 — v Repatriation Commission (1985) 7 FCR 302; 60 ALR 289 …. 19.28, 19.31 Browne v Dunn (1893) 6 R 67 …. 8.17, 8.18, 8.19 Bruce and Secretary, Department of Transport, Re (1982) 4 ALN N143 …. 3.27 Bruse and Commissioner of Taxation, Re [2010] AATA 404; (2010) 116 ALD 183 …. 9.11 Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297; [1972] 3 WLR 521; (1972) 56 Cr App Rep 799 …. 19.33 Bryant and Military Rehabilitation and Compensation Commission, Re [2005] AATA 190; (2005) 87 ALD 154 …. 9.8 BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246; 26 ALD 1 …. 19.31, 19.44

Buck v Comcare (1996) 66 FCR 359; 41 ALD 281 …. 3.29 Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 …. 6.17, 19.21 Bui and Commissioner of Taxation, Re [2008] AATA 666 …. 13.54 Burge v Repatriation Commission [2001] FMCA 74; (2001) 66 ALD 152 …. 19.51 Burnet and Repatriation Commission, Re [2005] AATA 290 …. 17.29 Burwood, Council of the Municipality of v Harvey (1995) 86 LGERA 389 …. 8.14 Byrne v Repatriation Commission [2007] FCAFC 126; (2007) 97 ALD 359 …. 19.47 Byrt and Commissioner of Taxation, Re [2013] AATA 862; (2013) 140 ALD 236 …. 15.10 Byrt and Commissioner of Taxation, Re (No 2) [2014] AATA 30; (2014) ALD 440 …. 15.12 C C and Collector of Customs, Re (NSW) (1983) 5 ALN N222 …. 7.3, 7.6, 16.20 Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 …. 8.11 Cachia and Commissioner of Taxation, Re [2008] AATA 363; (2008) 102 ALD 175 …. 6.6 Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126; (2008) 107 ALD 316 …. 13.51 Calderaro v Secretary, Department of Social Security (1991) 24 ALD 556 …. 8.5 Callaghan and Defence Force Retirement and Death Benefits Authority, Re (1978) 1 ALD 227 …. 16.11, 17.1 Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013] FCA 860; (2013) 137 ALD 53 …. 8.19 Cameron and Child Support Registrar, Re [2005] AATA 445; (2005) 87 ALD

244 …. 3.9 Camilleri and Comcare, Re (1996) 43 ALD 167 …. 17.10 Campbell-Maruca and Registrar of Indigenous Corporations, Re [2012] AATA 678; (2012) 131 ALD 162 …. 13.1 Canberra Raiders Sports Club and Commissioner for ACT Revenue, Re (1999) 59 ALD 229 …. 15.16 Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266; 54 ALD 639 …. 5.4 — v Gambling and Racing Commission [2002] ACTSC 130; (2002) 72 ALD 359 …. 19.48 — v Minister for the Environment, Land and Planning (1998) 87 FCR 163; 55 ALD 415 …. 19.11 Caper Pty Ltd (t/as Direct Air Charter) and Civil Aviation Safety Authority, Re [2011] AATA 181; (2011) 120 ALD 495 …. 3.12, 16.25 Cape York Airlines Pty Ltd and Civil Aviation Safety Authority, Re [2004] AATA 727; (2004) 80 ALD 369 …. 14.3, 14.10 Caporale v Deputy Commissioner of Taxation [2013] FCA 427; (2013) 302 ALR 246 …. 8.4, 13.51 Carey and Collector of Customs, Re (Qld) (1978) 1 ALD 455 …. 3.10 Carey and Commissioner of Taxation, Re [2014] AATA 762; (2014) 145 ALD 236 …. 10.10 Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; (2001) 183 ALR 719 …. 8.10 Carmody, Re; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145 …. 19.13 Carpenter and Comcare, Re [2009] AATA 988; (2009) 114 ALD 289 …. 13.22; Carson and Comcare, Re [2011] AATA 103; (2011) 123 ALD 556 …. 3.31 Carson and Employment Services Regulatory Authority, Re (1997) 46 ALD 435 …. 3.8 Carter and Secretary, Department of Housing and Construction, Re (1981) 4 ALD 329 …. 17.4

Casarotto v Australian Postal Commission (1989) 17 ALD 321 …. 9.38, 13.10 Casey v Repatriation Commission (1995) 60 FCR 510; 39 ALD 34 …. 9.2, 9.5, 9.24 Casperz and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 211; (2006) 42 AAR 329 …. 9.11 Catena v Australian Securities and Investments Commission [2011] FCAFC 32; (2011) 276 ALR 25 …. 9.34 Catholic Education Office and Human Rights and Equal Opportunity Commission, Re [2003] AATA 899; (2003) 75 ALD 608 …. 7.5 Cavanagh and Comcare, Re [2005] AATA 297; (2005) 85 ALD 769 …. 9.10 Cavanagh and Comcare, Re [2008] AATA 553; (2008) 106 ALD 143 …. 3.10 Centurion Trust Co Ltd and Australian Securities and Investments Commission, Re [2003] AATA 129; (2003) 77 ALD 470 …. 11.9, 11.10 Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs, Re (1991) 24 ALD 531 …. 9.19 Champion and Reserve Bank of Australia, Re (1988) 14 ALD 580 …. 12.14 Chandra and Minister for Immigration and Citizenship, Re [2010] AATA 992; (2010) 120 ALD 108 …. 9.19 Chang and Comcare, Re (1997) 48 ALD 746 …. 9.10 Chapman and Minister for Aboriginal and Torres Strait Islander Affairs, Re (1995) 40 ALD 87 …. 12.2 Chief Executive Officer, Customs v Biocontrol Ltd [2006] FCA 107; (2006) 150 FCR 64; 89 ALD 551 …. 19.51 — v ICB Medical Distributors Pty Ltd [2007] FCA 1538; (2007) 97 ALD 746 …. 17.16 Children’s Activities Time Society Inc and Collector of Customs, WA, Re (1986) 9 ALN N111 …. 6.20, 6.23, 6.29 Chintalapudi v Minister for Immigration and Border Protection [2015] FCA 129; (2015) 144 ALD 603 …. 13.2 Christ Circle Oriona Community Inc and Deputy Commissioner of Taxation, Re

(1995) 31 ATR 1001; 95 ATC 2040 …. 15.14 Christiansen v Social Security Appeals Tribunal [2010] FCA 1146; (2010) 126 ALD 423 …. 17.29, 19.21 Christie and Commissioner of Taxation, Re [2008] AATA 320; (2008) 101 ALD 662 …. 12.7 Christoffelsz and Commonwealth, Re (1987) 13 ALD 392 …. 9.31 Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1995] FCA 229 …. 17.11 Churchill, Re [2001] FCA 469; (2001) 109 FCR 104; 186 ALR 110 …. 3.12 Cimino and Director-General of Social Services, Re (1982) 4 ALN N106 …. 13.5 City of Doncaster and Templestowe and Minister for Community Services and Health, Re (1987) 12 ALD 13 …. 7.3 City of St Kilda v Evindon Pty Ltd [1990] VR 771 …. 8.8 Civic Tavern Pty Ltd and ACT Liquor Licensing Board, Re (1993) 32 ALD 381 …. 6.24 Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 …. 17.2 — v Alligator Airways Pty Ltd [2012] FCA 601 …. 9.39 — v Caper Pty Ltd [2012] FCA 1213; (2012) 131 ALD 79 …. 3.12, 16.25, 19.34 — v — (No 2) [2012] FCA 1305; (2012) 132 ALD 475 …. 19.48, 19.52, 19.54 — v Central Aviation Pty Ltd [2009] FCA 49; (2009) 108 ALD 329 …. 17.18, 17.21, 17.22, 17.24, 17.25, 19.45, 19.50, 19.52 — v — (No 2) [2009] FCAFC 137; (2009) 179 FCR 554 …. 19.54 — v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551 …. 14.6, 14.8 — v Ovens [2011] FCAFC 75; (2011) 121 ALD 514 …. 8.10, 19.49 — v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111 …. 15.21 Civitareale and Department of Family and Community Services, Re (1999) 57 ALD 451 …. 5.11

CKI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office, Re [2011] AATA 654; (2011) 123 ALD 378 …. 6.3, 6.6 Clark and Australian Community Pharmacy Authority, Re [2011] AATA 246; (2011) 121 ALD 197 …. 6.6 Clark v Wood (1997) 149 ALR 38 …. 19.12 Clearihan and Registrar of Motor Vehicle Dealers, Re (ACT) (1994) 150 FCR 301; 33 ALD 318 …. 9.8; Cleary and Nurses Board, Re (NT) (1996) 41 ALD 395 …. 18.7 Clement v Comcare [2014] FCAFC 164 …. 19.1 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 …. 8.17, 19.1, 19.35, 19.37, 19.41 Cockcroft and Attorney-General’s Department, Re (No 2) (1987) 13 ALD 623 …. 16.13 Cocks and Secretary, Department of Social Security, Re (1989) 18 ALD 160 …. 9.18 Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434; 56 ALD 338 …. 19.64 Coiltech (Aust) Pty Ltd and Collector of Customs, Re (1994) 33 ALD 781 …. 7.5 Cole and Telstra Corporation Ltd, Re [2010] AATA 666; (2010) 126 ALD 542 …. 11.10 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; 43 ALD 193 …. 19.34, 19.37, 19.59 — v Gaylor Pty Ltd (1995) 35 NSWLR 649; 127 ALR 641 …. 17.5 — v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 …. 17.1 — v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 …. 19.31, 19.33, 19.37 — v Savage River Mines (1988) 79 ALR 258 …. 16.28 — v Times Consultants Pty Ltd (1986) 13 FCR 190; 11 ALD 277 …. 19.52

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307 …. 3.11, 3.14, 3.15, 16.23 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205; 8 ALN N102 …. 9.1, 9.33 Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536 …. 19.37 — v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570; 89 ALD 51 …. 17.24, 18.3, 18.5 — v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198 …. 9.1, 9.4, 9.26, 16.14, 19.39 Colosimo and Commonwealth, Re (1984) 6 ALN N65 …. 18.6 Comcare v A’Hearn (1993) 45 FCR 441 …. 6.19, 6.27, 19.21 — v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497; 120 ALD 228 …. 19.47 — v Burton (1998) 50 ALD 846 …. 16.6, 16.10 — v Davies [2008] FCA 393; (2008) 48 AAR 291; 173 IR 294 …. 10.3 — v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 90 ALD 31 …. 19.29, 19.37 — v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 …. 8.6, 19.43 — v Foster [2006] FCA 6; (2006) 150 FCR 301; 89 ALD 508 …. 9.8 — v Grimes (1994) 50 FCR 60; 33 ALD 548 …. 6.33, 17.7 — v Hill [1999] FCA 488; (1999) 56 ALD 487 …. 2.12, 19.54 — v John Holland Rail Pty Ltd (No 3) [2011] FCA 164; (2011) 119 ALD 565 …. 8.16 — v Labathas (1994) 33 ALD 273 …. 18.6 — v Lofts [2013] FCA 1197; (2013) 217 FCR 220; 137 ALD 522 …. 3.10 — v McMahon (1995) 61 FCR 149; 40 ALD 255 …. 18.1, 18.6, 19.13 — v Maganga [2008] FCA 285; (2008) 101 ALD 68 …. 8.18, 13.10, 13.22, 13.42 — v Marinceski [2007] FCA 2088; (2007) 166 FCR 221; 100 ALD 73 …. 19.42

— v Martinez [2013] FCA 160 …. 19.15 — v — (No 2) [2013] FCA 439; (2013) 212 FCR 272 …. 19.37 — v Mathieson [2004] FCA 212; (2004) 79 ALD 518 …. 17.18 — v Moon [2003] FCA 569; (2003) 75 ALD 160 …. 17.24 — v Sassella [2001] FCA 1514; (2001) 34 AAR 142 …. 3.31 — v Singh [2012] FCA 136; (2012) 126 ALD 119 …. 17.21 Comcare Australia v Lees (1997) 151 ALR 647 …. 17.21 Commins and Civil Aviation Safety Authority, Re [2004] AATA 1330; (2004) 86 ALD 637 …. 14.7 Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576; 34 ALD 324 …. 8.9 Commissioner of Patents v Emperor Sports Pty Ltd [2006] FCAFC 26; (2006) 149 FCR 386; 225 ALR 407 …. 9.33 Commissioner of Police v Gray [2009] NSWCA 49; (2009) 74 NSWLR 1 …. 19.62 — v Sleiman [2011] NSWCA 21; (2011) 78 NSWLR 340; 281 ALR 253 …. 9.32 Commissioner for Revenue Collections (ACT) v Nelson Tobacco Co Pty Ltd (1991) 22 ALD 248 …. 16.14 Commissioner for Superannuation v Hastings (1986) 10 ALN N224 …. 19.55 — v Miller (1985) 8 FCR 153; 9 ALN N56 …. 19.50 Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400; 276 ALR 231 …. 3.9 — v A Taxpayer [2006] FCA 888; (2006) 91 ALD 335 …. 19.39 — v Beddoe (1996) 68 FCR 446; 44 ALD 561 …. 19.60, 19.62 — v Cancer and Bowel Research Association Inc [2013] FCAFC 140; (2013) 305 ALR 534 …. 15.23, 16.22, 19.11 — v Brown [1999] FCA 1198; (1999) 99 ATC 4852 …. 6.20 — v Glennan [1999] FCA 297; (1999) 90 FCR 538 …. 19.29, 19.43, 19.49

— v H [2010] FCA 480; (2010) 268 ALR 101 …. 11.18 — v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313; 97 ALD 299 …. 16.6 — v Pham [2013] FCA 579; (2013) 134 ALD 534 …. 9.7, 11.6 — v Seymour [2015] FCA 320; (2015) 65 AAR 443 …. 13.40, 19.12 Commonwealth and Nolis, Re (1983) 5 ALD 315 …. 7.6, 18.6 Commonwealth and Quirke, Re (1986) 9 ALD 92 …. 14.10 Commonwealth v Borg [1991] FCA 710; (1991) 20 AAR 299 …. 9.38 — v Esber (1991) 29 FCR 324; 101 ALR 35 …. 16.18 — v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; 126 ALD 10 …. 9.14 — v Ford (1986) 9 ALD 433 …. 3.17, 16.5 — v Horsfall [2010] FCA 443; (2010) 115 ALD 344 …. 16.22, 17.2 — v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; 152 ALR 182 …. 19.44 — v Muratore (1978) 22 ALR 176; 1 CCD 100 …. 9.38 — v Pharmacy Guild of Australia (1989) 19 ALD 510; 91 ALR 65 …. 17.17 — v Portelli (1982) 39 ALR 161 …. 16.20 — v Smith (1989) 18 ALD 224 …. 17.21 — v Softex Industries Pty Ltd [2001] FCA 397; (2001) 107 FCR 111; 191 ALR 724 …. 19.49 — v Twyman (1985) 8 ALD 554 …. 16.14, 17.1 — v White (No 2) [2010] FCA 942; (2010) 117 ALD 335 …. 19.47 — v Zoffanies Pty Ltd [2003] FCAFC 236; (2003) 132 FCR 523; 77 ALD 518 …. 19.50 Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1979) 2 ALD 561 …. 19.41 Commonwealth Bank of Australia and Swann and Comcare, Re [1995] AATA 307 …. 18.3 Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR

463; 125 ALD 181 …. 19.49 Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Federal Commissioner of Taxation [2003] FCA 794; (2003) 75 ALD 321 …. 3.9, 16.6 — v — [2005] FCAFC 244; (2005) 148 FCR 472; 89 ALD 1 …. 16.6, 19.58 Commonwealth Banking Corporation and Iannello, Re (1988) 15 ALD 418 …. 14.8, 14.10 — v Percival (1988) 20 FCR 176; 82 ALR 54 …. 19.44 Commonwealth Scientific and Industrial Research Organisation and Basinski, Re (1987) 13 ALD 376 …. 17.4 Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) [2004] FCA 614; (2004) 136 FCR 338 …. 13.6 Company and Federal Commissioner of Taxation, Re (1998) 50 Admin Review 37 …. 15.22 Comptroller-General of Customs v Members of AAT (1994) 32 ALD 463 …. 5.3, 5.5, 16.21 Computer Manufacture and Design Pty Ltd and Comptroller-General of Customs, Re (1983) 5 ALD 218 …. 9.30 Confidential A and Commissioner of Taxation, Re [2013] AATA 24; (2013) 135 ALD 703 …. 11.5, 11.6, 11.15 Confidential and Australian Prudential Regulation Authority, Re [2005] AATA 1264; (2005) 91 ALD 435 …. 1.8, 12.3, 12.7, 12.8, 14.7 Confidential and Child Support Registrar, Re [2010] AATA 577; (2010) 116 ALD 623 …. 6.15, 6.20, 15.6, 15.9 Confidential and Commissioner of Taxation, Re [2012] AATA 20; (2012) 127 ALD 353 …. 20.4 Confidential and Commissioner of Taxation, Re [2013] AATA 382; (2013) 135 ALD 609 …. 9.14, 9.38, 12.12, 13.45 Confidential and Executive Director, Social Security Appeals Tribunal, Re [2010] AATA 726; (2010) 118 ALD 229 …. 3.8, 3.19 Confidential and Industry Research and Development Board, Re [2006] AATA

387; (2006) 90 ALD 396 …. 3.8 Confidential and Executive Director, Social Security Appeals Tribunal, Re [2009] AATA 172; (2009) 110 ALD 413 …. 6.24 Confidential and Social Security Appeals Tribunal, Re [2008] AATA 1008; (2008) 106 ALD 613 …. 3.8, 13.6 Connolly and Great Barrier Reef Marine Park Authority, Re [2007] AATA 2098; (2007) 99 ALD 600 …. 5.7, 8.4 Conti and Secretary, Department of Family and Community Services, Re [2005] AATA 199; (2005) 82 ALD 691 …. 6.24 Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1), Re (1981) 3 ALD 74 …. 5.2, 5.5, 5.7, 7.2–7.6 Control Investments Pty Ltd and Australian Broadcasting Tribunal, Re (No 2) (1981) 3 ALD 88 …. 9.34, 16.6 Control Investments Pty Ltd and Australian Broadcasting Tribunal, Re (No 3) (1981) 4 ALD 1 …. 9.34, 16.29 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; 57 ALR 751 …. 9.7 Cook and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1690 …. 5.11 Cook v ASP Ship Management Pty Ltd [2008] FCA 1345; (2008) 105 ALD 453 …. 13.12, 13.51 Coonan and Commissioner of Taxation, Re [2006] AATA 329; (2006) 90 ALD 472 …. 7.2, 7.4 Cooney and Repatriation Commission, Re (1991) 23 ALD 431 …. 15.20 Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 30 ALD 377 …. 17.18 Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 …. 13.20, 13.21, 13.24 Coshott and Commissioner of Taxation, Re [2013] AATA 822; (2013) 140 ALD 436 …. 14.3

Costello and Secretary, Department of Transport, Re (1979) 2 ALD 934 …. 3.12, 16.18 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 …. 19.42 Cowling and Repatriation Commission, Re (1990) 20 ALD 748 …. 12.14 Coyne and Comcare, Re (1995) 37 ALD 553 …. 15.16, 18.6 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; 39 ALD 193 …. 19.33 Cremona v Administrative Appeals Tribunal [2015] FCAFC 72 …. 19.61 Crnkovic and Repatriation Commission, Re (1990) 20 ALD 131 …. 13.5 Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 …. 17.14 Crompton v Repatriation Commission (1993) 45 FCR 330; 30 ALD 45 …. 3.19 Crossan and Minister for Immigration and Multicultural Affairs, Re [2002] AATA 216 …. 14.5 CSIRO and Barbara, Re (1987) 11 ALD 447 …. 6.19, 6.20, 6.22 Culley v Australian Securities and Investments Commission [2010] FCAFC 43; (2010) 183 FCR 279; 268 ALR 206 …. 19.42 Cunningham and Repatriation Commission, Re (1997) 48 ALD 364 …. 3.29 Currey and Australian Community Pharmacy Authority, Re [2007] AATA 1963; (2007) 99 ALD 106 …. 15.14 Custodial Ltd and Australian Securities and Investments Commission, Re [2005] AATA 775; (2005) 88 ALD 510 …. 6.24 CVA and Minister for Immigration and Citizenship, Re [2011] AATA 742; (2011) 124 ALD 98 …. 8.4 Cyno Pty Ltd and Australian Fisheries Management Authority, Re [2002] AATA 896; (2002) 72 ALD 435 …. 11.12 CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 …. 13.36

D Dabbagh and Director-General of Social Security, Re (1983) 5 ALN N235 …. 9.37 D’Alfonso and Telstra Corporation Ltd, Re [2006] AATA 492; (2006) 90 ALD 767 …. 15.21 Danagher v Child Support Registrar [2014] FCA 1408; (2014) 228 FCR 213 …. 8.9 Dandan and Minister for Immigration and Citizenship, Re [2010] AATA 539; (2010) 117 ALD 167 …. 16.21 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2004] FCA 21; (2004) 205 ALR 198 …. 17.11 Daronadis Pty Ltd and Commissioner for ACT Revenue, Re (1994) 33 ALD 725 …. 9.10, 11.9 Dart and Director-General of Social Services, Re (1982) 4 ALD 553 …. 14.11 Davey and Australian Electoral Commission, Re [2013] AATA 794; (2013) 137 ALD 184 …. 7.3, 7.4 David and Federal Court of Australia, Re [2010] AATA 999; (2010) 119 ALD 180 …. 3.2 Davidson and Repatriation Commission, Re (1993) 32 ALD 365 …. 6.13 Davies v Australian Securities Commission (1995) 59 FCR 221; 38 ALD 273 …. 17.18 Davina and Defence Force Retirement and Death Benefits Authority, Re (1996) 43 ALD 761 …. 19.58 Davnar Pty Ltd and Minister for Community Services, Re (1987) 11 ALD 511 …. 3.32, 5.2, 5.3 Davsa Forty-Ninth Pty Ltd atf Krongold Ford Bus Unit Trust and Commissioner of Taxation, Re [2012] AATA 317; (2012) 128 ALD 619 …. 9.6 Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 …. 8.17, 13.10, 13.51, 13.52

De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd, Re (party joined) [2004] AATA 704; (2004) 82 ALD 163 …. 9.14, 16.4 de Courcy Brown and Comcare, Re (1997) 49 ALD 766 …. 3.33 Defiance Milling Co Pty Ltd and Export Development Grants Board, Re (No 2) (1986) 11 ALN N230 …. 13.45 Deighton v Telstra Corporation Ltd (1997) 46 ALD 360 …. 6.23 Dekanic and Tax Agents’ Board, Re (NSW) (1982) 6 ALD 240 …. 14.8 Dell and Repatriation Commission, Re (1986) 9 ALD 596 …. 9.38 Dellar and Repatriation Commission, Re (1994) 33 ALD 255 …. 6.13 Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; (2013) 139 ALD 29 …. 13.10, 13.51 Demosthenous and Comcare, Re [2001] AATA 949; (2001) 66 ALD 323 …. 9.38 Dennis and Secretary, Department of Transport, Re (1979) 2 ALD 255 …. 3.8 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 14 ALD 794; 79 ALR 267 …. 17.17, 19.35 Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711; 28 ALR 551 …. 3.17 De Simone v Federal Commissioner of Taxation [2009] FCAFC 181; (2009) 51 AAR 161 …. 13.10 Devine and Commonwealth, Re (1982) 5 ALN N28 …. 3.28 Dickinson v Comcare (1998) 52 ALD 86 …. 19.21 Dietrich v R (1992) 177 CLR 292; 109 ALR 385 …. 13.1 Dillon and Department of Trade, Re (No 2) (1986) 9 ALD 187 …. 17.24 Dimitrievski and Secretary, Department of Social Security, Re (1993) 31 ALD 140 …. 3.30 Director-General of Social Services v Chaney (1980) 3 ALD 161 …. 3.22, 3.23, 19.10, 19.55

— v Hales (1983) 5 ALN N162 …. 3.22 Distilled Spirits Industry Council of Australia Inc and National Food Authority, Re (1994) 34 ALD 629 …. 3.23 Dix v Crimes Compensation Tribunal [1993] 1 VR 297; (1992) 28 ALD 565 …. 6.19 Dixon and Australian Fisheries Management Authority, Re [1999] AATA 1024; (1999) 57 ALD 481 …. 7.4, 7.6 Dixon and Director-General of Social Security, Re (1984) 5 ALN N536 …. 5.7 D J Moran Managements Pty Ltd and Minister for Community Services, Re (1986) 11 ALN N181 …. 13.31 Dobbie v Department of Social Security [1995] FCA 1191 …. 13.12 Dodds v Comcare Australia (1993) 31 ALD 690 …. 17.16 Doelle v Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 801; (2009) 111 ALD 82 …. 19.8 Dolan and Comcare, Re (1993) 29 ALD 887 …. 6.25 Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 31 ALD 510 …. 8.18, 9.7 Donald and Australian Securities and Investments Commission, Re [2001] AATA 622; (2001) 64 ALD 717 …. 16.6, 16.12, 17.1 Donlon and Pharmacy Restructuring Authority, Re (1992) 28 ALD 791 …. 16.26 Dornan v Riordan (1990) 24 FCR 564; 21 ALD 255 …. 17.21 Dowling and Commonwealth, Re (1979) 1 CCD 225 …. 9.33 Dowling and Director-General of Social Services, Re (1981) 4 ALN N203 …. 7.4 Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634 …. 13.27, 16.25, 16.27, 17.3 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 …. 2.1, 16.4, 16.8, 16.13, 16.20, 16.23, 16.27

Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCAFC 103; (2010) 187 FCR 352; 117 ALD 249 …. 19.34, 19.41 Drs Sullivan, Nicolaides & Partners and Minister for Health, Housing, Local Government and Community Services, Re (1994) 32 ALD 517 …. 16.18 Drummond v Commissioner of Taxation [2005] FCA 1129; (2005) 220 ALR 691 …. 19.43 Duarte v Australian Maritime Safety Authority [2010] FCAFC 127; (2010) 188 FCR 429; 273 ALR 253 …. 3.7 Duarte and Australian Maritime Safety Authority, Re [2011] AATA 530; (2011) 127 ALD 620 …. 3.22, 15.9 Duncan v Companies Auditors and Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572; 93 ALD 401 …. 14.2 — v Defence Force Retirement and Death Benefits Authority (1980) 3 ALD 113; 30 ALR 165 …. 3.22 — v Fayle [2004] FCA 723; (2004) 138 FCR 510 …. 15.18 — v Hotop [2002] FMCA 56; (2002) 68 ALD 758 …. 19.13 Dunn and Commissioner of Taxation, Re [2012] AATA 486; (2012) 129 ALD 638 …. 13.40 Dunn and Department of Defence, Re [2004] AATA 1040; (2004) 84 ALD 419 …. 19.58 Dunning and Repatriation Commission, Re (1987) 12 ALD 235 …. 13.8 Dunstan and Comcare, Re [2009] AATA 843; (2009) 113 ALD 176 …. 12.9, 13.22, 13.23, 13.46, 19.49 Du Pont and Minister for Immigration and Ethnic Affairs, Re (1983) 5 ALN N205 …. 9.19 Dutton v Republic of South Africa [1999] FCA 498; (1999) 162 ALR 625 …. 19.53 Dye v Commonwealth Securities Ltd [2010] FCAFC 115; (2010) 273 ALR 248 …. 19.18 DZAFF v Minister for Immigration and Border Protection [2015] FCA 569 ….

8.11 E E Pty Ltd and Federal Commissioner of Taxation, Re (1987) 12 ALD 102 …. 10.14 East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 19 ALD 85; 90 ALR 457 …. 17.17 Eastman and Department of Treasury, Re (Smart DP, AAT No A73/1983, 1 June 1984, unreported) …. 11.6 Easton and Repatriation Commission, Re (1987) 12 ALD 777 …. 16.21 Eckersley and Minister for Capital Territory, Re (1979) 2 ALD 303 …. 9.35 Eckinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 …. 19.35 Edward Souery & Co Pty Ltd and Export Development Grants Board, Re (1985) 9 ALN N18 …. 6.22, 6.23, 6.29 Edwards and Civil Aviation Safety Authority, Re [2002] AATA 412; (2002) 68 ALD 598 …. 11.9 Edwards and Civil Aviation Safety Authority, Re [2003] AATA 594; (2003) 74 ALD 572 …. 14.8 Edwards v Australian Securities Commission (1997) 72 FCR 350; 142 ALR 455 …. 5.3, 5.7 Eggu and Minister for Immigration and Citizenship, Re [2010] AATA 1003; (2010) 54 AAR 31 …. 6.8 Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing, Re [2010] AATA 935; (2010) 120 ALD 105 …. 15.23 Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing, Re [2012] AATA 113; (2012) 125 ALD 588 …. 8.13 Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 558; (2013) 138 ALD 180 …. 6.9 Einfeld and Human Rights and Equal Opportunity Commission, Re [2007]

AATA 1507; (2007) 96 ALD 441 …. 7.4 Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 …. 8.9, 17.21, 19.50 El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474; (2014) 141 ALD 611 …. 19.53 Eldridge v Federal Commissioner of Taxation (1990) 90 ATC 4907; 21 ATR 897 …. 16.9 Ellenbogen and Secretary, Department of Social Security, Re (1991) 22 ALD 796 …. 4.2 Elliott and Swire Pacific Ship Management (Australia) Pty Ltd, Re [2011] AATA 942; (2011) 125 ALD 132 …. 6.23, 6.27, 8.4 Elsdon and Secretary, Department of Social Security, Re (1985) 8 ALD 201 …. 16.21 Elston and Australian Community Pharmacy Authority, Re (1996) 44 ALD 126 …. 16.22 Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725 …. 6.15 Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764; (2012) 128 ALD 571 …. 19.32 Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 60 ALD 342 …. 3.7, 19.34 England and Australian Postal Commission, Re (1977) 1 ALN N198 …. 13.8 Environmental Images Pty Ltd and Australian Trade Commission, Re (1996) 45 ALD 674 …. 17.31, 17.32, 17.33 Ermolaeff and Commonwealth, Re (1989) 17 ALD 686 …. 13.8 Ernst and Repatriation Commission, Re (1988) 15 ALD 93 …. 9.33 Errington v Minister of Health [1935] 1 KB 249 …. 11.9; Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577 …. 6.34, 16.18 Esso Australia Resources Pty Ltd v Commissioner of Taxation (No 1) [2011] FCAFC 134; (2011) 196 FCR 560; 284 ALR 66 …. 13.52

Ettridge and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 2670 …. 16.23 Evans and Secretary, Department of Primary Industry, Re (1985) 8 ALD 627 …. 16.28 Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 28; (2011) 126 ALD 444 …. 19.21 Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority, Re (1999) 54 ALD 433; [1999] AATA 677; (1999) 58 ALD 581 …. 7.5, 11.7, 11.12 Excel Finance Corporation Ltd, Re; Worthley v Australian Securities Commission (1993) 41 FCR 346; 29 ALD 844 …. 3.23 F Fahey and Psychologists Board of ACT, Re (1996) 44 ALD 394 …. 9.10, 11.9 Falk and Repatriation Commission, Re (1992) 27 ALD 355 …. 8.13 Falle and Comcare, Re [2009] AATA 227; (2009) 108 ALD 231 …. 18.6 Fanning and Secretary, Department of Social Services, Re [2014] AATA 447; (2014) 144 ALD 133 …. 16.21 FantaSea Cruises Pty Ltd and Great Barrier Reef Marine Park Authority, Re (1999) 55 ALD 767 …. 16.18 Farah v Australian Postal Corporation (1994) 35 ALD 349 …. 8.9 Farley-Smith and Repatriation Commission, Re [2010] AATA 637; (2010) 125 ALD 249 …. 13.47 Farnaby and Military Rehabilitation and Compensation Commission, Re [2007] AATA 1792; (2007) 97 ALD 788 …. 9.9 Farnan and Inspector-General in Bankruptcy, Re (2007) 95 ALD 186 …. 15.16, 17.5 Faulkner and Repatriation Commission, Re (1990) 19 ALD 194 …. 7.5 Faulkner and Repatriation Commission, Re (1990) 21 ALD 633 …. 15.11 Fearnley and Australian Fisheries Management Authority, Re [2005] AATA 147;

(2005) 87 ALD 159 …. 5.9 Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3; (2006) 94 ALD 519 …. 5.9 Feben and Repatriation Commission, Re (1998) 50 ALD 600 …. 9.11 Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368 …. 17.21 — v Emmakell Pty Ltd (1990) 22 FCR 157; 19 ALD 760 …. 19.48 — v Grbich (1993) 31 ALD 97 …. 13.12, 13.40, 19.12 — v La Rosa [2002] FCA 1036; (2002) 196 ALR 139 …. 8.8, 13.1, 19.39 — v McCabe (1990) 26 FCR 431; 21 ALD 740 …. 19.35, 19.37, 19.39 — v Markey (1989) 87 ALR 454 …. 19.34 — v Perkins (1993) 26 ATR 8 …. 8.6 — v Raptis (1989) 20 ATR 1262 …. 8.6, 19.42 — v Salenger (1988) 19 FCR 378; 81 ALR 25 …. 17.3 — v Swift (1989) 18 ALD 679 …. 16.28, 19.40 Fenby and Repatriation Commission, Re (1996) 42 ALD 629 …. 6.13 Fenby and Repatriation Commission, Re (1997) 47 ALD 735 …. 6.13 Fenner v Repatriation Commission [2005] FCA 27; (2005) 218 ALR 122 …. 8.19 Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407; 58 ALD 91 …. 6.14 Ferriday v Repatriation Commission (1996) 69 FCR 521 …. 8.6, 19.29, 19.42, 19.43 Filsell and Comcare, Re [2009] AATA 90; (2009) 109 ALD 198 …. 15.15, 17.8, 17.9, 17.29 Finch and Secretary, Department of Education, Employment and Workplace Relations, Re [2009] AATA 745; (2009) 112 ALD 171 …. 16.25 Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 …. 13.51 Firth and Minister for Capital Territory, Re (1979) 2 ALD 183 …. 9.27

Fischer and Australian Fisheries Management Authority, Re [2002] AATA 857; (2002) 71 ALD 665 …. 16.29 Fishing Party and Australian Electoral Commission, Re [2008] AATA 377; (2008) 110 ALD 167 …. 11.9 Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200; (2008) 253 ALR 52 …. 19.52 Fitz-Gibbon v Inspector General in Bankruptcy [2001] FCA 1677; (2001) 180 ALR 475 …. 19.31 Fitzmaurice and Repatriation Commission, Re (1987) 13 ALD 723 …. 16.6, 16.14 Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 …. 3.25, 3.26 Fitzpatrick v Keelty [2008] FCA 35; (2008) 99 ALD 696 …. 5.11 F J Rose and Sons Pty Ltd and Collector of Customs, Re (1982) 5 ALN N346 …. 7.5 Flanagan and Comcare, Re [2011] AATA 446; (2011) 129 ALD 269 …. 10.12, 13.23 Fleet Management Ltd and Australian Maritime Safety Authority, Re [2006] AATA 390 …. 15.15 Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 16 ALD 280 …. 8.8, 8.9, 13.10, 16.6, 16.12, 19.25 Flood and Secretary, Department of Social Security, Re (1994) 33 ALD 182 …. 11.7 Forever Living Products Australia Pty Ltd and Collector of Customs, Re (1986) 9 ALD 271 …. 9.33 Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 15 ALD 657 …. 17.10 Forsyth and Federal Privacy Commissioner; ACT Government Solicitor, Re (party joined) [2003] AATA 916; (2003) 76 ALD 185 …. 6.26, 7.4 Forsyth and Federal Privacy Commissioner and ACT Government Solicitor, Re [2004] AATA 175; (2004) 80 ALD 489 …. 9.10, 11.9

Foster and Civil Aviation Safety Authority, Re (1997) 46 ALD 699 …. 3.27 Foulger and Repatriation Commission, Re (1980) 2 ALD 789 …. 3.26, 9.27, 16.8 Francis and Commissioner of Taxation, Re [2007] AATA 1927; (2007) 98 ALD 489 …. 6.17 Francis and Secretary, Department of Health, Re (1985) 8 ALN N193 …. 16.16; Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541; [1964] 1 All ER 457 …. 6.35 Freeman v Defence Force Retirement and Death Benefits Authority (1985) 8 ALN N97 …. 19.32 — v Secretary, Department of Social Security (1988) 19 FCR 342; 15 ALD 671 …. 16.7 Freney and Minister for the Environment, Land and Planning, Re (1998) 51 ALD 782 …. 3.13 Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority, Re [2008] AATA 1055; (2008) 106 ALD 635 …. 16.22 Frith and Minister for Immigration and Ethnic Affairs, Re (1978) 1 ALD 590 …. 12.14 Frohlich and Minister for Capital Territory, Re (1979) 2 ALD 434 …. 12.5, 12.14 Frugtniet and Migration Agents Registration Authority, Re [2015] AATA 554 …. 10.3 Frugtniet v Tax Practitioners Board [2013] FCA 752; (2013) 136 ALD 324 …. 19.11 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 …. 9.40 Fund for Animals Ltd and Minister for Arts, Heritage and Environment, Re (No 2) (1986) 9 ALD 622 …. 17.5 Fund for Animals Ltd and Minister for Arts, Heritage and Environment, Re (No 3) (1986) 16 ALD 278 …. 5.3, 6.16 G

Galanos and Department of Immigration and Citizenship, Re [2010] AATA 1004; (2010) 128 ALD 382 …. 11.9 Galea v Federal Commissioner of Taxation (1990) 21 ALD 722 …. 6.1 Gallagher and Minister for Immigration and Citizenship, Re [2011] AATA 10; (2011) 119 ALD 668 …. 6.8 Gallifuoco and Secretary, Department of Social Security, Re (1988) 15 ALD 160 …. 9.38 Gallivan Investments Ltd and Australian Securities Commission, Re (1991) 24 ALD 611 …. 3.23 Gammadell Pty Ltd (t/as Midstate Airlines) v Civil Aviation Safety Authority, Re [2004] AATA 489; (2004) 81 ALD 441 …. 14.10 Ganchov and Comcare, Re (1990) 19 ALD 541 …. 17.4 Gani and Comcare, Re (1991) 24 ALD 415 …. 20.3 Gardener and Australian Prudential Regulation Authority, Re [2007] AATA 2041; (2007) 99 ALD 141 …. 3.17 — v — [2009] AATA 990; (2009) 113 ALD 564 …. 3.17 Gay Solidarity Group and Minister for Immigration and Ethnic Affairs, Re (1983) 5 ALD 289 …. 5.8 Gee and Director-General of Social Services, Re (1981) 3 ALD 132 …. 3.26 General Merchandise and Apparel Group Pty Ltd and CEO, Customs, Re [2009] AATA 988; (2009) 114 ALD 289 …. 7.1, 7.7, 8.4, 9.2, 10.3, 12.9, 13.19, 13.20, 13.23, 13.31, 15.10 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 …. 15.15 Geoffrey Thompson & Growers Co-op Pty Ltd and Export Development Grants Board, Re (1985) 7 ALN N242 …. 16.14 Geographical Indications Committee v O’Connor [2000] FCA 1877; (2000) 64 ALD 325 …. 13.6, 19.11, 19.60, 19.62 Gersbach v Australian Telecommunications Commission (1986) 10 ALN N137 …. 17.23

Gibbs and Minister for Immigration and Ethnic Affairs, Re (1986) 10 ALN N1 …. 3.17 Gibson and Repatriation Commission, Re [2006] AATA 1090; (2006) 94 ALD 187 …. 17.27, 17.29 Gilbert and Secretary, Department of Social Security, Re (1987) 13 ALD 518 …. 9.31 Gillett and Minister for Immigration and Ethnic Affairs, Re (1985) 7 ALD 354 …. 6.16 Gilmore and Dairy Adjustment Authority, Re [2005] AATA 259; (2005) 85 ALD 422 …. 6.20, 6.23 Gissing and Collector of Customs, Re (1977) 1 ALD 144 …. 9.29 Gleeson and Minister for Capital Territory, Re (1979) 2 ALN 546 …. 5.7 Gleeson v Repatriation Commission (1994) 33 ALD 95 …. 9.2 Godwin v Repatriation Commission [2008] FCA 576; (2008) 168 FCR 471; 102 ALD 286 Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321 …. 8.9, 15.8, 15.11 Gomez and Commonwealth, Re (1988) 15 ALD 784 …. 13.45 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288 …. 19.41 Goodfellow v Commonwealth (1982) 5 ALN N57 …. 19.35 Goodricke v Comcare [2011] FCA 694; (2011) 122 ALD 546 …. 13.12, 19.22 Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs, Re (1996) 42 ALD 651 …. 16.25 Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission, Re [2000] AATA 1144; (2000) 62 ALD 472 …. 16.14 Goonewaradana and Secretary, Department of Social Services, Re [2013] AATA 795; (2013) 137 ALD 188 …. 9.19 Goreng Goreng v Jennaway [2007] FCA 2083; (2007) 164 FCR 567; 100 ALD

508 …. 3.20, 10.14 Gould and Companies Auditors and Liquidators Disciplinary Board, Re [2008] AATA 814; (2008) 106 ALD 53 …. 16.14 Government Employees’ Health Fund Ltd v Private Health Insurance Administration Council [2001] FCA 322; (2001) 65 ALD 377 …. 16.25 Grace and Commonwealth, Re (1987) 13 ALD 433 …. 9.31 Grafton and Commonwealth, Re (1988) 16 ALD 533 …. 6.24 Grant and Commissioner of Police, Re (1988) 15 ALD 477 …. 4.2 Grant and Secretary, Department of Transport, Re (1978) 1 ALN N202 …. 17.1 Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 …. 16.13 Grass and Minister for Immigration and Citizenship, Re [2011] AATA 495; (2011) 126 ALD 580 …. 15.12 Gray and Australian Securities and Investments Commission, Re [2004] AATA 1235; (2004) 86 ALD 230 …. 16.25 Green and Australian Fisheries Management Authority, Re [2004] AATA 426; (2004) 81 ALD 194 …. 16.28 Green v Daniels (1977) 13 ALR 1 …. 16.25 — v Minister for Immigration and Citizenship [2008] FCA 125; (2008) 100 ALD 346 …. 8.9 Greenbank and Secretary, Department of Social Security, Re (1986) 9 ALD 338 …. 9.8 Greenham and Minister for Capital Territory, Re (1979) 2 ALD 137 …. 6.4, 8.2, 9.34, 16.13, 16.14, 16.20 Greening and Repatriation Commission, Re (1998) 52 ALD 110 …. 15.10 Grieci and Commonwealth, Re (1983) 5 ALN N385 …. 10.2 Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority, Re (1993) 31 ALD 380 …. 14.5, 14.7 Griffiths v Australian Postal Corporation [2008] FCA 19; (2008) 47 AAR 190 …. 18.3

— v Rose [2010] FCA 964; (2010) 190 FCR 173; 117 ALD 473 …. 9.9, 12.10 Grimley and Department of Transport, Re (1978) 2 ALD 689 …. 16.29 Grimsley and Telstra Corporation Ltd, Re [2010] AATA 106; (2010) 51 AAR 401 …. 10.11 Grolier Enterprises and Australian Postal Commission, Re (1977) 1 ALD 10 …. 16.14 Gruzman and Secretary, Department of Aviation, Re (1986) 9 ALN N111 …. 10.14 Gulf Meat Exporters Pty Ltd and Export Development Grants Board, Re (1982) 4 ALN N207 …. 15.6 Gungor and Minister for Immigration and Ethnic Affairs, Re (1980) 3 ALD 225 …. 9.20 Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380; 134 ALD 82 …. 18.3 Gurkavak and Commonwealth, Re (No 2) (1985) 8 ALD 511 …. 18.6 Guse v Comcare (1997) 49 ALD 288 …. 15.10 Guy v Repatriation Commission [2002] FCA 525; (2002) 74 ALD 617 …. 17.17 GWVR and Director-General of Security, Re [2010] AATA 1062; (2010) 120 ALD 127 …. 12.18 H Ha and Australian Community Pharmacy Authority, Re [2009] AATA 305; (2009) 49 AAR 549 …. 6.7 Habeeb v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411; 108 ALD 478 …. 8.9, 8.10 Haberfield v Department of Veterans’ Affairs [2002] FCA 1579; (2002) 121 FCR 233; 72 ALD 333 …. 8.18 Hafza v Director-General of Social Security (1985) 6 FCR 444 …. 9.1 Hall and Minister for Capital Territory, Re (1979) 2 ALD 958 …. 9.27

Hamilton and Australian Postal Commission, Re (1984) 6 ALD 53 …. 9.38 Hanahoe and Director-General of Social Security, Re (1983) 5 ALN N85 …. 3.17 Hanlon and Commissioner for Superannuation, Re (1979) 2 ALN N657 …. 9.35 Hanrahan and Repatriation Commission, Re [2008] AATA 369; (2008) 102 ALD 399 …. 9.38, 13.27 Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 287 …. 16.21 Hare and Commissioner for Superannuation, Re (1979) 2 ALN N662 …. 16.10 Haritos v Commissioner of Taxation [2015] FCAFC 92 …. 19.22, 19.30, 19.35, 19.37, 19.42 Harkins and Minister for Capital Territory, Re (1978) 1 ALD 537 …. 12.3, 12.14 Harradine v Secretary, Department of Social Security (1989) 25 FCR 35; 17 ALD 336; …. 19.48 Harrigan v Department of Health (1986) 11 ALD 268 …. 19.52 Harrington and Military Rehabilitation and Compensation Commission, Re [2005] AATA 384; (2005) 85 ALD 624 …. 17.30 Harris and Secretary, Department of Social Security, Re (1993) 29 ALD 599 …. 16.16 Harris v Director-General of Social Security (1985) 7 ALD 277; 57 ALR 729 …. 19.46, 19.59 — v Repatriation Commission [2000] FCA 1687; (2000) 62 ALD 161 …. 19.49 Hasani and Minister for Immigration and Multicultural Affairs, Re [2006] AATA 282; (2006) 91 ALD 166 …. 10.14 Hassam Khadem v BA Barbour (1995) 38 ALD 299 …. 8.13 Hatzipashalis and Secretary, Department of Social Security, Re (1986) 10 ALD 135 …. 16.18 Hawat and Secretary, Department of Social Security, Re (1992) 28 ALD 805 …. 3.27

Hawkins and Collector of Customs, Re (1986) 10 ALN N10 …. 16.16 Hawkins and Minister for the Arts, Re [2013] AATA 835; (2013) 61 AAR 523 …. 15.16 Hazim v Secretary, Department of Family and Community Services [2002] FCA 242; (2002) 116 FCR 533; 68 ALD 39 …. 17.25 Head and Australian Telecommunications Corporation, Re [1992] Admin Review 112 …. 6.34, 15.19 Health Insurance Commission and Hobbes and Comcare, Re (1990) 21 ALD 229 …. 10.12, 13.12, 16.7, 16.14 Heaney and Commissioner of Taxation, Re [2013] AATA 331; (2013) 138 ALD 144 …. 9.27 Heffernan and Defence Force Retirement and Death Benefits Authority, Re (1978) 1 ALD 220 …. 9.36 Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1; 141 ALD 506 …. 8.6, 13.10 Helkban Pty Ltd and Commissioner for Land and Planning, Re [2002] ACTAAT 12; (2002) 66 ALD 707 …. 5.7 Hempel and Civil Aviation Safety Authority, Re [2006] AATA 188; (2006) 90 ALD 118 …. 3.7, 6.15 Hennessy and Secretary, Department of Social Security, Re (1985) 7 ALN N113 …. 9.37, 13.1 Henry and Department of Social Security, Re (1986) 11 ALN N10 …. 16.28 Hepples v Federal Commissioner of Taxation (No 2) (1992) 173 CLR 492; 104 ALR 616 …. 19.58, 19.59 Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435; 76 ALD 72 …. 11.18, 19.18 Hessing and Telstra Corporation Ltd, Re (1995) 38 ALD 449 …. 13.40 Heyward v Minister for Immigration and Citizenship [2009] FCA 1313; (2009) 112 ALD 226 …. 9.3 Hicks and Secretary, Department of Education, Employment and Workplace

Relations, Re [2008] AATA 1049; (2008) 105 ALD 664 …. 15.19 Higginbotham (GM) and Repatriation Commission, Re (1994) 35 ALD 179 …. 15.20, 15.21 Higgins v Hancock [2011] FCA 1119; (2011) 123 ALD 335 …. 13.51 Higgs v Federal Commissioner of Taxation (1984) 6 ALN N181 …. 3.32 Hill and Wilson and Minister for Capital Territory, Re (1979) 2 ALD 457 …. 9.27 Hill v Howe (1991) 24 ALD 159 …. 9.10 — v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1 …. 19.49 Hinds and Australian National University, Re [2012] AATA 495; (2012) 129 ALD 476 …. 13.7, 15.14 Hinton v Minister for Immigration and Border Protection [2015] FCA 408 …. 10.3 Hitchcock and Environment Protection Authority, Re [2011] AATA 117; (2011) 121 ALD 156 …. 3.8 Hitek Holdings Pty Ltd and Export Development Grants Board, Re (1985) 8 ALN N156 …. 12.14 Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115; 114 ALD 26 …. 16.28 Hobart Central Child Care Pty Ltd and Commissioner of Taxation, Re [2004] AATA 1222; (2004) 84 ALD 86 …. 9.10, 9.12, 12.10, 12.15 Hogan v Australian Crime Commission [2005] FCA 913; (2005) 154 A Crim R 336 …. 13.1 — v — [2010] HCA 21; (2010) 240 CLR 651; 267 ALR 12 …. 19.18 Holbrook and Australian Postal Commission, Re (1983) 5 ALN N46 …. 9.35 Holstar Agencies and Collector of Customs, Re (1981) 4 ALD 308 …. 6.15 Hongkong Bank of Australia Ltd and Australian Securities Commission, Re (1992) 26 ALD 307 …. 3.23 Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40

FCR 402; 27 ALD 257 …. 3.23, 3.34 Hood and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALN N203 …. 17.1 Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 57 …. 19.33 Hopkins and Repatriation Commission, Re [2013] AATA 270 …. 15.15 Hoskins v Repatriation Commission (1991) 32 FCR 443 …. 8.18 Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 28 ALD 50 …. 3.15, 16.21 Hospital Benefit Fund (WA) Inc and Department of Health, Housing and Community Services, Re (No 1) (1992) 28 ALD 25 …. 17.7, 19.29 Hospitals Contribution Fund of Australia and Minister for Health, Re (1977) 1 ALD 209 …. 16.14, 16.27 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438; 70 ALD 314 …. 8.13 House v Department of Defence (1996) 65 FCR 94; 41 ALD 793 …. 17.9 Houvardas and Tax Agents Board, Re (NSW) (1991) 23 ALD 505 …. 9.35 H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 …. 19.34, 19.37, 19.40 Hughes and Secretary, Department of Transport, Re (1980) 3 ALN N4 …. 3.27 Hughes v Hill [1937] SASR 285 …. 13.45 Hume and Repatriation Commission, Re (1993) 29 ALD 891 …. 17.27 Hunt and Secretary, Department of Education, Employment and Workplace Relations, Re [2009] AATA 505; (2009) 111 ALD 175 …. 11.6 Hunter and Secretary, Department of Families, Community Services and Indigenous Affairs, Re [2006] AATA 1062; (2006) 100 ALD 140 …. 6.34, 15.19 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 7 ALD 315 …. 6.17, 6.19, 19.21 Hussain v Minister for Foreign Affairs and Trade [2008] FCAFC 128; (2008) 169

FCR 241; 103 ALD 66 …. 2.1, 8.3, 12.18, 19.52 Hutchinson v Comcare [2014] FCA 1300; (2014) 143 ALD 686 …. 13.10, 19.22 Hutton v Repatriation Commission (1998) 49 ALD 8 …. 8.8 Hyundai Automotive Distributors v Australian Customs Service (1998) 34 FCR 246 …. 19.31, 19.44 I Iacono v Tax Agents’ Board of Victoria [2006] FCA 8096; (2006) 91 ALD 350 …. 17.24 IDD Societe Anonyme and Collector of Customs, Re (No 2) (1985) 8 ALD 251 …. 5.7 Ileris and Comcare, Re [1999] AATA 647; (1999) 56 ALD 301 …. 9.6 Ilgun and Department of Veterans’ Affairs, Re (1989) 18 ALD 260 …. 9.35 Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461; 85 ALD 24 …. 19.16, 19.22 Immonen and Commonwealth, Re (Ballard SM, AAT, N82/552, 23 December 1983, unreported) …. 18.5 Inco Ships Pty Ltd v Hardman [2007] FCA 1138; (2007) 167 FCR 294; 96 ALD 604 …. 19.43 Industrial Lighting Pty Ltd and Australian Industrial Research and Development Incentives Board, Re (1987) 13 ALD 407 …. 6.20, 6.30 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530; (2006) 91 ALD 118; 67 NSWLR 91 …. 9.9 iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing, Re [2011] AATA 196; (2011) 121 ALD 304 …. 2.12, 8.13 International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage, Re (No 2) (2006) 93 ALD 625 …. 8.2 Investment Planners (Australia) Pty Ltd v Australian Securities and Investments Commission [2003] AATA 1112; (2003) 77 ALD 765 …. 3.23 Irving and Repatriation Commission, Re (1997) 46 ALD 20 …. 15.15, 15.16

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 …. 3.10, 16.10, 19.1, 19.51, 19.62 Isaacs v Commissioner of Taxation [2006] FCAFC 105; (2006) 151 FCR 427; 95 ALD 530 …. 3.9, 16.6 Isbester v Knox City Council [2015] HCA 20; (2015) 320 ALR 432 …. 8.13 Ishak and Australian Telecommunications Commission, Re (1983) 5 ALN N121 …. 10.2 Island Voice and Great Barrier Reef Marine Park Authority, Re (1989) 20 ALD 684 …. 14.1 Issa and Australian Community Pharmacy Authority, Re [2012] AATA 374; (2012) 128 ALD 631 …. 13.6, 16.11 Ivanovic and Australian Postal Commission, Re (No 2) (1988) 14 ALD 710 …. 18.3, 18.6 Ivy Education Group Pty Ltd and Australian Skills Quality Authority, Re [2013] AATA 138; (2013) 134 ALD 446 …. 16.21 J Jackson and Minister for Immigration and Citizenship, Re [2011] AATA 60; (2011) 128 ALD 355 …. 6.7, 6.8 Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 …. 3.12 Jadwan Pty Ltd v Secretary, Department of Health and Ageing [2003] FCAFC 288; (2003) 145 FCR 1; 204 ALR 55 …. 17.28 Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505; 143 ALD 596 …. 12.18 Jagelman v Commissioner of Taxation (1995) 31 ATR 467 …. 8.19 Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287; (2013) 139 ALD 536 …. 13.12 James v Comcare [2011] FCA 1030; (2011) 125 ALD 418 …. !9.39 Jeans and Secretary, Department of Housing and Construction, Re (1979) 2

ALD 337 …. 16.14 Jebb and Repatriation Commission, Re [2005] AATA 470; (2005) 86 ALD 182 …. 17.11 Jebb v Repatriation Commission (1988) 80 ALR 329 …. 16.7, 16.20, 17.9, 17.10 Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491 …. 19.33 Jenkins v Gleeson (1983) 46 ALR 207 …. 19.54 Jetopay Pty Ltd and Australian Fisheries Management Authority, Re (1993) 32 ALD 209 …. 16.28 Johansson and Civil Aviation Safety Authority, Re [2012] AATA 239; (2012) 127 ALD 195 …. 3.25 John Fairfax Group Pty Ltd (recs and mgrs apptd) v Local Court of New South Wales (1991) 26 ALD 471 …. 11.18 Johns and Repatriation Commission, Re (1994) 20 AAR 548 …. 3.29 Johnson and Veterans’ Review Board, Re [2004] AATA 242; (2004) 80 ALD 659 …. 15.16 Johnson v Veterans’ Review Board [2005] FCA 1136; (2005) 88 ALD 652 …. 17.29 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 …. 9.14, 9.35 Jonsson and Marine Council, Re (No 2) (1990) 12 AAR 323 …. 3.12, 3.33 Jorgensen and Australian Securities and Investments Commission, Re [2001] AATA 424; (2001) 64 ALD 537 …. 6.23, 6.28, 17.10 Joseph and Repatriation Commission, Re (1989) 18 ALD 766 …. 3.35, 6.9 Jovanovski v Telstra Corporation Ltd [2008] FCA 465; (2008) 101 ALD 526 …. 19.40 JTMJ and Australian Securities and Investments Commission, Re [2010] AATA 471; (2010) 115 ALD 682 …. 11.17 Jurischka and Minister for Immigration and Ethnic Affairs, Re (1983) 5 ALN N215 …. 13.10

K Kalafatis and Commissioner of Taxation, Re [2012] AATA 150; (2012) 126 ALD 396 …. 1.8, 6.3, 10.14, 13.52, 15.5 Kalinovska and Commonwealth Banking Corporation, Re (1988) 16 ALD 342 …. 10.12 Kalis v Kingsborough Council [2014] TASFC 2; (2014) 200 LGERA 455 …. 13.23 Kalman and Comcare, Re (1998) 50 ALD 990 …. 14.9 Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448; 280 ALR 621 …. 13.47 Kamil Export Co Pty Ltd and Australian Trade Commission, Re (1986) 10 ALD 293 …. 16.16 Kandasamy and Secretary, Department of Social Security, Re (1987) 11 ALD 440 …. 16.28 Kanina Banner Pty Ltd and Minister for Health and Ageing, Re [2002] AATA 169; (2002) 66 ALD 663 …. 11.1, 11.7, 11.15, 11.17 Karhani and Linfox Australia Pty Ltd, Re [2011] AATA 506; (2011) 129 ALD 275 …. 8.4, 13.17 Katterns v Comcare [2002] FCA 1366 …. 15.11 Kaur and Australian Postal Commission, Re (1991) 23 ALD 159 …. 10.1, 13.12 Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619 …. 8.12, 13.2, 15.7 Kavanagh and Department of Employment, Education and Training, Re (Blow DP, AAT No 9359, T93/12, 9 March 1994, unreported) …. 3.11 Kavvadias v Ombudsman (No 1) (1984) 1 FCR 80; 6 ALD 47 …. 16.19 — v — (No 2) (1984) 2 FCR 64; 6 ALD 198 …. 16.19 K B and Minister for Immigration and Ethnic Affairs, Re (1982) 4 ALN N273 …. 11.15 Keane and Australian Postal Commission, Re (1977) 1 ALD 53 …. 9.35, 9.36, 13.48

Keen and Deputy Registrar of the Administrative Appeals Tribunal and Telstra Corporation Ltd, Re [2005] AATA 1171; (2005) 89 ALD 595 …. 18.6 Keen v Telstra Corporation Ltd [2006] FCA 834; (2006) 91 ALD 324 …. 18.6, 18.8 Kelly and Australian Postal Commission, Re (1983) 5 ALN N63 …. 16.6 Kelly and Comcare, Re [2006] AATA 700; (2006) 93 ALD 658 …. 13.42 Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 103 ALD 238 …. 3.15, 12.12, 17.18 — v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 …. 17.21, 19.22 Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 …. 13.10 Kent and Repatriation Commission, Re [2009] AATA 104; (2009) 107 ALD 157 …. 6.13 Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2009] AATA 148; (2009) 107 ALD 638 …. 3.19, 3.23 Kermode and Military Rehabilitation and Compensation Committee, Re [2012] AATA 188; (2012) 135 ALD 158 …. 3.10 Kerrison and Repatriation Commission, Re (1993) 35 ALD 797 …. 6.15 Kevin and Minister for Capital Territory, Re (1979) 2 ALD 238 …. 9.4 Keys and Comcare, Re [2007] AATA 1667; (2007) 99 ALD 330 …. 7.4 Khan and Minister for Immigration and Ethnic Affairs, Re (1981) 3 ALN N142 …. 7.4 Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241 …. 12.11, 13.28 Khourey and Military Rehabilitation and Compensation Commission, Re [2010] AATA 434; (2010) 116 ALD 218 …. 18.6 Kiazim and Commonwealth, Re (1986) 9 ALN N218 …. 13.52 Kimberly-Clark Ltd v Commissioner of Patents (No 2) (1988) 13 IPR 551 ….

18.1 Kim Yee Chan and Department of Immigration and Ethnic Affairs, Re (1985) 8 ALN N48 …. 10.12 King and Military Rehabilitation and Compensation Commission, Re (2005) 83 ALD 322 …. 13.38 King v Minister for Immigration and Border Protection [2014] FCA 766; (2014) 142 ALD 305 …. 17.16 Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289; 76 ALD 389 …. 13.16 Kingston Manuka Holdings Pty Ltd and Commissioner for Land and Planning, Re (1998) 53 ALD 696 …. 5.1 Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321 …. 8.9 Kirby and Collector of Customs, Re (1989) 20 ALD 369 …. 9.38, 9.39 Kirk and Repatriation Commission, Re [2007] AATA 1364; (2007) 95 ALD 506 …. 15.15, 15.16 Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533 …. 9.22 Kiss and Repatriation Commission, Re (1995) 38 ALD 443 …. 6.13 KLGL and Australian Prudential Regulation Authority, Re [2008] AATA 452; (2008) 104 ALD 433 …. 12.6, 12.7, 12.14, 16.14 Klusman and Australian Securities and Investments Commission, Re [2010] AATA 709; (2010) 117 ALD 617 …. 11.16 Knight and Comcare, Re (1994) 36 ALD 417 …. 15.16 Knight and Comcare, Re (1995) 36 ALD 417 …. 6.4 Knoll Australia Pty Ltd and Minister for Health and Aged Care, Re [2000] AATA 926; (2000) 62 ALD 495 …. 3.34 Kolya v Tax Practitioners Board [2012] FCA 215 …. 19.22 — v — [2012] FCA 492; (2012) 128 ALD 86 …. 19.55 Kong and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2005] AATA 552; (2005) 40 AAR 455 …. 6.7 Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199

FCR 375; 124 ALD 181 …. 17.11 Kouieder v Federal Commissioner of Taxation [2000] AATA 342; (2000) 60 ALD 320 …. 15.8 Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323; 59 ALD 71 …. 15.20, 19.51 Kowalski and Repatriation Commission, Re [2009] AATA 807 …. 2.11, 6.1, Kowalski and Repatriation Commission, Re [2008] AATA 903; (2008) 107 ALD 447 …. 8.4, 9.35, 13.31, 15.15 Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44; (2011) 191 FCR 345; 120 ALD 423 …. 13.30 — v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 …. 19.53 Kretchmer and Repatriation Commission, Re (1988) 16 ALD 206 …. 15.3, 17.28 Kroushev v Secretary, Department of Family and Community Services [2004] FMCA 299; (2004) 83 ALD 282 …. 19.13 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1 …. 17.9 Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 …. 6.20, 19.21 Kumar and Minister for Immigration and Citizenship, Re [2009] AATA 124; (2009) 107 ALD 178 …. 9.14, 16.28, 16.30 Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533 …. 2.12, 8.9, 9.5 — v — (No 2) (1996) 62 FCR 345; 42 ALD 5 …. 19.54 Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2004] AATA 146; (2004) 38 AAR 482 …. 14.5 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 3 ALN N66 …. 3.6, 8.5, 8.6, 12.3, 19.29, 19.42 L Labrador Liquor Wholesale Pty Ltd and CEO of Customs, Re [2006] AATA

485; (2006) 90 ALD 761 …. 14.6 Ladic v Capital Territory Health Commission (1982) 5 ALN N60 …. 9.38; Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs, Re (1976) 1 ALD 1 …. 9.29, 9.34 Laffer and Secretary, Attorney-General’s Department, Re [2013] AATA 585; (2013) 61 AAR 177 …. 6.9 Lamb v Moss (1983) 5 ALD 446 …. 19.60 Lambe and Australian Postal Corporation, Re (1999) 58 ALD 755 …. 15.16 Lampitsi and Commonwealth, Re (1983) 5 ALN N314 …. 13.27 Lander and Commissioner for Superannuation, Re (1993) 29 ALD 870 …. 9.38 Lane and Conservator of Wildlife, Re (1984) 5 ALN N429 …. 3.20, 10.14 Lane and Department of Transport, Re (1978) 1 ALN N634 …. 16.12 Lang v Comcare [2007] FCA 47; (2007) 94 ALD 141 …. 17.16, 17.17 La Porta and Secretary, Department of Employment, Education and Training, Re (1991) 24 ALD 366 …. 16.11 Lavery and Registrar, Supreme Court of Queensland, Re [1996] AATA 84 …. 15.22 Lawrance v Centrelink [2005] FCA 1318; (2005) 88 ALD 664 …. 8.18 — v Chief Executive Officer, CRS Australia [2006] FCA 341; (2006) 42 AAR 539 …. 13.42 Laycock and Australian Securities Commission, Re (1997) 44 ALD 713 …. 3.23 Lazarevic and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALN N532 …. 9.21, 17.1 Le and Secretary, Department of Education, Science and Training, Re [2006] AATA 208; (2006) 90 ALD 83 …. 11.3, 11.6, 11.13, 17.14 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; 67 ALR 195 …. 9.14 Legal and General Life of Australia Ltd and Minister for Territories and Local Government, Re (1983) 5 ALD 476 …. 20.6

Le Geng Jia and Minister for Immigration and Multicultural Affairs, Re (1996) 42 ALD 700 …. 9.19 Lee and Department of Immigration and Ethnic Affairs, Re (1988) 10 AAR 270 …. 16.25 Lee v Maskell-Knight [2004] FCAFC 2; (2004) 137 FCR 59; 207 ALR 362 …. 8.13 — v R [2014] HCA 20; (2014) 308 ALR 252 …. 9.7 — v Secretary, Department of Social Security (1996) 68 FCR 491; 139 ALR 57 …. 16.18 — v Transpacific Industries Pty Ltd [2013] FCA 1322; (2013) 136 ALD 652 …. 19.48 Lee McKeand & Son Pty Ltd and Collector of Customs, Re (1983) 5 ALD 613 …. 17.4 Lees and Repatriation Commission, Re [2004] AATA 583; (2004) 82 ALD 150 …. 13.47, 17.9 Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 …. 3.10, 16.11 Lennell v Repatriation Commission (1982) 4 ALN N54 …. 19.32 Leonhard Kurz (Aust) Pty Ltd and Collector of Customs, Re (Vic) (1982) 5 ALN N104 …. 3.8 Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148; 20 ALD 607 …. 16.26, 19.58 Lesi v Minister for Immigration and Multicultural Affairs [2003] FCAFC 285; (2003) 134 FCR 27 …. 17.5, 17.6 Levana Pty Ltd and Minister for Capital Territory, Re (1982) 4 ALN N124 …. 6.15, 6.17 Li and Minister for Immigration and Citizenship, Re [2009] AATA 501; (2009) 110 ALD 419 …. 16.22 Li and Tax Practitioners Board, Re [2013] AATA 669; (2013) 137 ALD 402 …. 14.8 Liang and Minister for Immigration and Citizenship, Re [2013] AATA 392; 135

ALD 638 …. 3.12 Life Insurance Co of Australia Ltd v Phillips [1925] VLR 311; (1925) 36 CLR 60; 31 ALR 206 …. 19.33 Lidono Pty Ltd v Federal Commissioner of Taxation [2002] FCA 174; (2002) 67 ALD 656 …. 8.9 Liedig v Federal Commissioner of Taxation (1994) 50 FCR 461; 121 ALR 561 …. 19.45 Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation (1991) 32 FCR 148; 25 ALD 257 …. 6.4 Lilienthal v Migration Agents Registration Authority [2001] FCA 2; (2001) 65 ALD 437 …. 17.7 Lindsey and Australian Postal Commission, Re (1989) 18 ALD 340 …. 9.8, 9.10, 12.3 Lip-Air Pty Ltd v Civil Aviation Safety Authority [2008] FCA 866; (2008) 104 ALD 17 …. 14.3 Littlejohn and Secretary, Department of Social Security, Re (1989) 17 ALD 482 …. 17.4 Liu and Comcare, Re [2004] AATA 617; (2004) 79 ALD 119 …. 15.20 Liu and Minister for Immigration and Citizenship, Re [2009] AATA 101; (2009) 106 ALD 691 …. 16.22 Livesey, Re (1983) 151 CLR 288 …. 8.15 LLSY and Minister for Immigration and Citizenship, Re [2011] AATA 334; (2011) 121 ALD 630 …. 3.20, 9.7, 9.36, 9.39 Lodkowski v Comcare (1998) 53 ALD 371 …. 8.8, 9.37, 16.13 Lofthouse and Australian Securities and Investments Commission, Re [2004] AATA 327; (2004) 82 ALD 481 …. 16.28 Loknar and Secretary, Department of Social Security, Re (1992) 29 ALD 591 …. 9.8, 12.8 Lomax and Commonwealth, Re (1986) 10 ALN N105 …. 12.14 Lombardo and Commonwealth, Re (1985) 8 ALD 334 …. 15.21

Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574; 10 ATR 310 …. 19.33 Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128; 117 ALR 361 …. 13.45 Loschiavo and Secretary, Department of Housing and Construction, Re (1980) 2 ALD 757 …. 3.17, 5.7 Lower and Comcare, Re [2001] AATA 703; (2001) 64 ALD 521 …. 6.16 Lower and Comcare, Re [2003] AATA 540; (2003) 74 ALD 547 …. 19.58 Lucic v Nolan (1982) 45 ALR 411; 4 ALN N289 …. 6.17 Luck v Chief Executive Officer of Centrelink [2008] FCA 1506; (2008) 107 ALD 538 …. 19.11 — v Secretary, Department of Human Services (No 2) [2014] FCA 798; (2014) 64 AAR 177 …. 3.10 — v University of Southern Queensland [2008] FCA 1582; (2008) 107 ALD 543 …. 15.9 Lukeman and Repatriation Commission, Re (1989) 18 ALD 300 …. 13.5 Lumsden and Secretary, Department of Social Security, Re (1986) 10 ALN N225 …. 16.28 Lusink, Re; Ex parte Shaw (1980) 32 ALR 47 …. 8.15 LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166; 128 ALD 489 …. 17.18, 17.20 Lynch and Minister for Health, Housing, Local Government and Community Services, Re (1995) 38 ALD 401 …. 3.6 Lynch v Minister for Human Services and Health (1995) 61 FCR 515; 39 ALD 501 …. 2.12 M Ma v Federal Commissioner of Taxation (1991) 37 FCR 225; 27 ALD 601 …. 17.14 McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 …. 19.49

— v — (1992) 28 ALD 609 …. 17.21 McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6 …. 8.4, 9.37, 9.38, 11.4, 13.5 McDonnell and Repatriation Commission, Re [2013] AATA 74; (2013) 133 ALD 660 …. 15.1 McDowall and Secretary, Department of Social Security, Re (1994) 37 ALD 117 …. 9.4 MacFarlane and Comcare, Re (1998) 58 ALD 304 …. 13.42 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504; 251 ALR 558 …. 8.13 McGrath and Defence Force Retirement and Death Benefits Authority, Re (1986) 9 ALD 562 …. 17.4 McGrath and Inspector-General in Bankruptcy, Re [2011] AATA 27; (2011) 119 ALD 439 …. 5.9, 15.10 McHattan and Collector of Customs, Re (NSW) (1977) 1 ALD 67 …. 5.5 McIntyre and Comcare, Re (1997) 48 ALD 437 …. 15.16 Mackay Permanent Building Society Ltd and Australian Securities and Investments Commission, Re [2005] AATA 574; (2005) 87 ALD 769 …. 3.23, 7.6 McKenzie and Civil Aviation Safety Authority, Re [2008] AATA 651; (2008) 106 ALD 180 …. 14.8 McKenzie and Secretary, Department of Social Security, Re (1998) 54 ALD 281 …. 6.23, 14.3, 15.12 McKenzie v Repatriation Commission [2014] FCA 777; (2014) 142 ALD 332 …. 19.48 — v — (No 2) [2014] FCA 1007 …. 19.47 McKie and Minister for Immigration, Local Government and Ethnic Affairs, Re (1988) 8 AAR 90 …. 3.11 McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; 88 ALD 12 …. 11.9, 12.6

McLaren and Repatriation Commission, Re (1987) 13 ALD 479 …. 16.6 McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government, Re [2009] FCA 562; (2009) 111 ALD 678 …. 5.6 McLean and Repatriation Commission, Re [2000] AATA 504; (2000) 59 ALD 319 …. 13.47 McLeod v Repatriation Commission [1993] Admin Review 16 …. 19.11 McLindin and Acting Commissioner for Superannuation, Re (1979) 2 ALD 261 …. 3.2, 3.8 McMaugh and Australian Telecommunications Commission, Re (1991) 22 ALD 393 …. 9.8, 9.10 McMillan v Repatriation Commission (1997) 47 ALD 774 …. 19.11 McMullen v Commissioner for Superannuation (1985) 61 ALR 189 …. 9.22 MacPherson and Secretary, Department of Social Security, Re (1985) 7 ALN N139 …. 9.37 McPherson v Civil Aviation Authority (1991) 22 ALD 754 …. 14.7 McWilliam and Civil Aviation Safety Authority, Re [2008] AATA 687; (2008) 105 ALD 407 …. 16.22, 17.9 Madaferri v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326; 70 ALD 644 …. 16.5 Mahaffy and Tax Practitioners Board, Re [2014] AATA 17; (2014) 142 ALD 383 …. 14.10 Maher and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd, Re (1985) 7 ALN N411 …. 11.7 Malincevski and Minister for Immigration, Local Government and Ethnic Affairs, Re (1991) 24 ALD 331 …. 16.26 Malouf and Australian Community Pharmacy Authority, Re (1996) 42 ALD 390 …. 7.4 Mann and Capital Territory Health Commission, Re (No 2) (1983) 5 ALN N368 …. 12.2 Manoli and Secretary, Department of Social Security, Re (1994) 35 ALD 133 ….

15.8 Marelic v Comcare (1993) 47 FCR 437; 32 ALD 155 …. 8.9, 8.18 Maretech CMDL Pty Ltd v Federal Commissioner of Taxation (1996) 43 ALD 775 …. 19.42 Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment, Re (1986) 10 ALD 262 …. 7.1, 7.3, 7.6 Marks and Secretary, Department of Defence, Re (1987) 11 ALD 456 …. 8.5 Marnotta Pty Ltd and Secretary, Department of Health and Ageing, Re [2004] AATA 800 …. 13.20, 15.14, 17.5, 17.6 Martin and Commonwealth, Re (1983) 5 ALD 277 …. 8.5, 9.35, 18.4 Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 …. 3.15, 8.10, 9.33, 17.16, 17.17 Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598 …. 3.27, 19.21, 19.52 Mathieson v Burton (1971) 124 CLR 1 …. 6.35 Matteo and Director-General of Social Services, Re (1981) 4 ALD 398 …. 3.22 Matthews and Australian Securities and Investments Commission, Re [2010] AATA 649; (2010) 118 ALD 23 …. 14.3, 15.1, 15.4, 15.5, 17.5, 17.33 Maunsell & Partners Pty Ltd and Maunsell Consultants and Export Development Grants Board, Re (1980) 2 ALD 813 …. 7.5 Mautner v Minister for Immigration and Citizenship [2009] FCA 1475; (2009) 112 ALD 518 …. 8.19 May and Military Rehabilitation and Compensation Commission, Re [2011] AATA 697; (2011) 126 ALD 600 …. 1.8, 8.16 May v Secretary, Department of Transport (1981) 4 ALD 169 …. 19.34; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; 54 ALD 654 …. 8.18 Medtest Pty Ltd and Minister for Health and Ageing, Re [2002] AATA 566; (2002) 70 ALD 580 …. 14.6

Medtest Pty Ltd and Medicare Participation Review Committee, Re [2003] AATA 983; (2003) 76 ALD 788 …. 13.24 Meilak v Commissioner for Superannuation (1992) 28 FCR 492; 22 ALD 32 …. 19.58 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 …. 8.4, 8.5 Mellor and Australian Postal Corporation, Re [2010] AATA 288; (2010) 51 AAR 498 …. 2.11 Melsom v Deputy President Forrest (1996) 42 ALD 261 …. 7.3 Menz and Border Express Pty Ltd, Re [2012] AATA 203; (2012) 126 ALD 165 …. 3.27 Mercurio and Secretary, Department of Social Security, Re (1986) 10 ALN N158 …. 9.36 Meschino v Secretary, Department of Family and Community Services [2001] FCA 39; (2001) 65 ALD 220 …. 3.32 Metera v Administrative Appeals Tribunal [2008] FCA 1627; (2008) 105 ALD 18 …. 19.21 Metherall and Minister for Capital Territory, Re (1979) 2 ALD 246 …. 6.4 Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 …. 17.30 Meyza v Repatriation Commission (1997) 73 FCR 18; 44 ALD 540 …. 3.19 Michael (dec’d) and Repatriation Commission, Re [2005] AATA 1261; (2005) 89 ALD 251 …. 16.16 Michael and Secretary, Department of Employment, Science and Training, Re [2006] AATA 227; (2006) 90 ALD 457 …. 15.21, 17.28 Michell Sheepskins Pty Ltd and Australian Trade Commission, Re (1986) 9 ALN N244 …. 10.12, 13.21 Michell Sheepskins Pty Ltd and Australian Trade Commission, Re (No 2) (1986) 10 ALN N211 …. 10.12 Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424 …. 17.7

Mika Engineering Holdings Pty Ltd and Commissioner of Taxation, Re [2006] AATA 634; (2006) 92 ALD 688 …. 13.21 Milanovic and Director-General of Social Security, Re (1983) 5 ALN N241 …. 9.37 Milbourn v Repatriation Commission [2009] FCA 176; (2009) 174 FCR 486; 108 ALD 71 …. 17.16 Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal [2005] FCA 442; (2005) 216 ALR 181 …. 19.61 Military Superannuation and Benefits Board No 1 v Stanger [2002] FCA 671; (2002) 68 ALD 12 …. 19.39 Miller and Australian Telecommunications Commission, Re (1984) 6 ALD 328 …. 18.4 Miller v Australian Telecommunications Commission (1985) 5 FCR 480; 7 ALN N280 …. 18.4 — v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147; 200 ALR 565 …. 17.7 Milne v Minister for Immigration and Citizenship [2010] FCA 987; (2010) 119 ALD 504 …. 19.20 Minh Dung Luu v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304; 157 ALR 213 …. 13.42 Mining Holding Co and Commissioner of Taxation, Re [2006] AATA 491; (2006) 63 ATR 1027 …. 9.11 Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40; 43 ALD 203 …. 9.14 Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279; 142 ALD 567 …. 16.27 Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124 …. 17.16 — v Thomson (1985) 8 FCR 213; 60 ALR 701 …. 9.37 Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd [2001] FCA 75; (2001) 65 ALD 76 …. 6.20

Minister for Human Services and Health v Haddad (1995) 39 ALD 557 …. 19.54 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 …. 13.14, 13.51, 15.7 — v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 …. 17.17 Minister for Immigration and Citizenship v Brar (No 2) [2012] FCAFC 66; (2012) 127 ALD 450 …. 19.54 — v Chan [2008] FCAFC 155; (2008) 172 FCR 193; 104 ALD 361 …. 6.1 — v Hassani [2007] FCA 436; (2007) 94 ALD 378 …. 19.11, 19.62 — v Le [2007] FCA 1318; (2007) 97 ALD 112 …. 13.14, 13.29 — v Li [2013] HCA 18; (2013) 249 CLR 332; 297 ALR 225 …. 1.8, 8.12, 13.14, 13.28, 15.7, 19.37 — v SZGUR [2011] HCA 1; (2011) 241 CLR 594; 119 ALD 1 …. 13.29 — v SZIAI [2009] HCA 39; (2009) 111 ALD 15 …. 13.28 — v SZQHI [2012] FCAFC 160; (2012) 134 ALD 1 …. 17.20 — v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25; 132 ALD 1 …. 17.27 — v SZRKT [2013] FCA 317; (2013) 212 FCR 99 …. 10.3 — v Yucesan [2010] FCAFC 110; (2008) 102 ALD 242 …. 19.34 Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 …. 9.19 — v Gungor (1982) 4 ALD 575; 42 ALR 209 …. 9.19 — v Kurtovic (1990) 21 FCR 193; 92 ALR 93 …. 17.8; — v Liang [1996] HCA 6; (1996) 185 CLR 259; 41 ALD 1 …. 17.20 — v Pochi (1980) 4 ALD 139 …. 9.4, 9.39 — v — (1981) 149 CLR 139; 4 ALD 163 …. 19.59 — v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 41 ALD 1 …. 17.23, 19.32 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; 33 ALD 13 …. 16.27

Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 73 ALD 1 …. 19.39, 19.61 Minister for Immigration and Multicultural Affairs, Re [2003] HCA 30; (2003) 73 ALD 1 …. 17.19 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; 76 ALD 1 …. 17.21 Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 …. 9.19 — v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 67 ALD 615 …. 17.28 — v Epeabaka [1999] FCA 1; (1999) 84 FCR 411; 53 ALD 1 …. 19.37 — v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 …. 1.7, 1.8, 9.1 — v George [2004] FCAFC 276; (2004) 139 FCR 127; 85 ALD 513 …. 8.11 — v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 …. 13.36 — v Perera [2001] FCA 1212; (2001) 65 ALD 389 …. 19.37 — v Perth City Mission [1999] FCA 670; (1999) 59 ALD 481 …. 19.14 — v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 …. 19.61 — v SGLB [2004] HCA 32; (2004) 207 ALR 12 …. 13.29 — v SRT [1997] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 …. 9.19 — v Wang [2003] HCA 11; (2003) 215 CLR 518; 72 ALD 577 …. 2.12, 13.46 — v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 62 ALD 225 …. 17.15, 19.57 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438; 57 ALD 23 …. 8.14, 13.4 Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs, Re [2007] AATA 1309 …. 3.2 Mitchell and Comcare, Re [2003] AATA 750; (2003) 78 ALD 626 …. 18.1 Mitchell and Federal Commissioner of Taxation, Re [2001] AATA 689; (2001) 65 ALD 273 …. 6.16

Mitchell v Minister for Immigration and Ethnic Affairs [1983] FCA 239 …. 19.20 Mitsubishi Motors Australia Ltd and Department of Transport, Re (1986) 11 ALN N253 …. 7.4 M J & N L Quinlivan and Minister for Capital Territory, Re (No 2) (1979) 2 ALN N529 …. 9.27 MLC Investments Ltd v Federal Commissioner of Taxation [2003] FCA 1487; (2003) 137 FCR 288; 205 ALR 207 …. 16.25 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 …. 11.9 Modini and Tax Agents’ Board of Queensland, Re [2005] AATA 1200; (2005) 89 ALD 496 …. 11.17, 17.9 Moline and Comcare, Re [2003] AATA 827; (2003) 77 ALD 224 …. 13.5, 13.17 Montgomery Wools Pty Ltd (as trustee for Montgomery Wools Pty Ltd Super Fund) and Commissioner of Taxation, Re [2012] AATA 61; (2012) 128 ALD 406 …. 15.22 Moodie v Department of Defence (1993) 30 ALD 813 …. 6.20 Moore and Military Rehabilitation and Compensation Commission, Re [2006] AATA 425; (2006) 90 ALD 417 …. 9.12, 11.12, 12.15, 13.20 Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550; 41 ALD 71 …. 19.49 — v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; 51 ALD 519 …. 13.46, 13.47, 17.9 Morgan and Secretary, Department of Social Security, Re (1986) 10 ALN N187 …. 11.11 Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 …. 19.20 Morton and Australian Securities Commission, Re (1997) 45 ALD 447 …. 3.23 Mrs B and Director-General of Social Security, Re (1984) 6 ALD 609 …. 7.3 MT and Secretary, Department of Social Security, Re (1986) 9 ALD 146 …. 16.28

Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation (1997) 81 FCR 335; 162 ALR 237 …. 9.2 Mulheron and Australian Telecommunications Corporation, Re (1991) 23 ALD 309 …. 6.32 (2011) 125 ALD 536 …. 6.32, 6.34, 15.8, 15.19 Mulholland and Australian Electoral Commission, Re [2011] AATA 717 …. 7.3, 7.4 Mulholland and Australian Electoral Commission, Re [2012] FCAFC 136 …. 7.3, 7.4, 19.41 Mullin and Minister for Immigration and Ethnic Affairs, Re (1983) 5 ALN N550 …. 20.6 Munswamy v Australian Postal Corporation [2015] FCA 678 …. 19.37 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; 41 ALD 361 …. 17.15, 19.32 Murdaca and Australian Securities and Investments Commission, Re [2010] AATA 792; (2010) 118 ALD 202 …. 15.1, 15.22 Murphy and Repatriation Commission, Re (1996) 40 ALD 782 …. 6.13 Murray and Commissioner of Taxation, Re [2011] AATA 837; (2011) 129 ALD 6 …. 13.40, 17.24 Murray and Commissioner of Taxation, Re (No 2) [2012] AATA 450; (2012) 133 ALD 423 …. 13.40 Murray and Repatriation Commission, Re (1998) 52 ALD 117 …. 16.15 Murray v Figge (1974) 4 ALR 612 …. 13.45 Myers and Commissioner of Taxation, Re [2004] AATA 1337; (2004) 85 ALD 453 …. 15.8, 15.11 MYVC and Director-General of Security, Re [2014] AATA 511; (2014) 144 ALD 149 …. 11.10, 12.18 MZXTZ v Minister for Immigration and Citizenship [2009] FCA 888; (2009) 110 ALD 577 …. 13.29 MZYRX v Minister for Immigration and Citizenship [2012] FMCA 723; (2012) 131 ALD 101 …. 13.8

MZYZE v Minister for Immigration and Citizenship [2013] FCCA 569; (2013) 136 ALD 395 …. 8.11, 9.6 MZZFM v Minister for Immigration and Border Protection [2014] FCA 1379; (2014) 144 ALD 316 …. 8.10 MZZUQ v Minister for Immigration and Border Protection [2015] FCA 157 …. 19.41 MZZXF v Minister for Immigration and Border Protection [2015] FCCA 158 …. 17.20 N N1112/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 1597 …. 15.22 NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292; (2002) 117 FCR 401; 66 ALD 545 …. 19.48 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 88 ALD 257 …. 8.11, 19.38 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 …. 19.42 NAOX v Minister for Immigration and Citizenship (No 2) [2009] FCA 1264; (2009) 111 ALD 602 …. 19.53 Narbey v Commissioner of Taxation [2008] FCA 1699; (2008) 111 ALD 312 …. 17.18 Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215 …. 16.25 Nathanielsz and Director-General of Social Security, Re (1983) 5 ALN N335 …. 3.24, 3.32, 5.7 Nation v Repatriation Commission (No 2) (1994) 37 ALD 63 …. 13.47 National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436; 129 ALD 500 …. 11.18, 17.16 National Registration Authority v Barnett (1998) 83 FCR 222; 50 ALD 854 …. 5.2, 19.62

Naval, Military and Air Force Club of SA (Inc) v Federal Commissioner of Taxation (1994) 51 FCR 154; 32 ALD 385 …. 19.58 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; (2006) 156 FCR 205; 93 ALD 313 …. 8.10 NDMB v Minister for Immigration and Citizenship [2008] FCA 149; (2008) 100 ALD 118 …. 19.42 Neal v Secretary, Department of Transport (1980) 3 ALD 97 …. 9.30, 19.31, 19.33 Neenan and Australian Postal Corporation, Re [2011] AATA 372; (2011) 121 ALD 459 …. 9.9 Neeson v Chief Executive Officer of Centrelink [2006] FCA 1107; (2006) 154 FCR 489; 92 ALD 77 …. 19.53 Nelson and Repatriation Commission, Re [2007] AATA 1069; (2007) 94 ALD 418 …. 3.29 Nelson and Tax Agents’ Board, Re (Qld) (1993) 30 ALD 317 …. 14.6, 14.8 Nevistic and Minister for Immigration and Ethnic Affairs, Re (1980) 3 ALN N9 …. 16.27 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639; 3 ALN N62 …. 16.27 New Broadcasting Ltd and Australian Broadcasting Tribunal, Re (1987) 12 ALD 1 …. 13.6 Newell v R (1936) 55 CLR 707 …. 6.35 Newgreen and Secretary, Department of Family and Community Services, Re [2004] AATA 1244; (2004) 86 ALD 406 …. 6.13 News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88; 57 ALR 550 …. 11.4, 11.9, 11.12, 19.12 New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] ALR 286 …. 19.33 Newton and Secretary, Department of Family and Community Services, Re [2000] AATA 349; (2000) 60 ALD 317 …. 3.24

Nguyen and Australian Community Pharmacy Authority, Re [2015] AATA 555 …. 5.5 Nguyen and Australian Securities and Investments Commission, Re [2011] AATA 398; (2011) 127 ALD 105 …. 11.16, 14.8 Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 …. 19.40 Nicholls and Secretary, Department of Primary Industry, Re (1988) 22 ALD 596 …. 3.6, 8.5 Nicholson and Secretary, Department of Social Security, Re (1989) 18 ALD 115 …. 15.11 Nicholson and Secretary, Department of Social Security, Re (1990) 21 ALD 537 …. 15.19 Niola Nominees Pty Ltd and Minister for Health, Re (1986) 9 ALN N200 …. 17.4 Nipperess and Australian Community Pharmacy Authority, Re (1995) 39 ALD 685 …. 3.9 Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362 …. 13.4 Nisha and Secretary, Department of Family and Community Services, Re [2003] AATA 378; (2003) 74 ALD 172 …. 3.19 Nolan and Comcare, Re (1991) 24 ALD 513 …. 18.8 Nolan and Minister for Immigration and Ethnic Affairs, Re (1986) 9 ALD 407 …. 11.7, 11.9 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 …. 2.12 Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307; 129 ALR 1 …. 3.12 Norville Nominees Pty Ltd v Strathbogie Shire Council [2008] VSC 339; (2008) 29 VAR 309 …. 13.39 No Ship Action Group Inc and Minister for Sustainability, Environment, Water,

Population and Communities, Re [2010] AATA 789; (2010) 127 ALD 332 …. 17.24 Novosel and Comcare, Re [2011] AATA 182; (2011) 121 ALD 172 …. 6.19, 15.12 N S Komatsu Pty Ltd v CEO of Customs (1997) 46 ALD 367 …. 3.32 NT98/41–48 and Commissioner of Taxation, Re (1998) 39 ATR 1032; [1998] AATA 311 …. 15.22 Nugent and Minister for Urban Services, Re (2000) 61 ALD 570 …. 15.16 Nweke v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79; (2013) 136 ALD 235 …. 17.19 O Oates and Secretary, Department of Social Security, Re (1994) 37 ALD 241 …. 15.8 Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923; (2008) 174 FCR 157; 106 ALD 36 …. 17.18 O’Brien v Repatriation Commission (1984) 1 FCR 472; 6 ALD 457 …. 17.17, 20.6 O’Connell and Insolvency and Trustee Service (Australia), Re (1993) 30 ALD 145 …. 17.1 O’Connor and Australian Postal Commission, Re [2010] AATA 504; (2010) 116 ALD 417 …. 10.5, 10.7 O’Donnell and Commonwealth, Re (1985) 8 ALN N212 …. 12.14 Official Trustee on behalf of Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 5; (2011) 54 AAR 188 …. 5.11 Oldfield v Secretary, Department of Primary Industry (1988) 14 ALD 760 …. 9.1, 13.53 Oliveri v Administrative Appeals Tribunal (1997) 79 FCR 394; 50 ALD 190 …. 11.10, 13.16

Omran v Australian Postal Commission (1991) 14 AAR 51 …. 13.40, 13.42 Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 769; (2012) 132 ALD 584 …. 14.9 Opitz v Repatriation Commission (1991) 29 FCR 50; 23 ALD 40 …. 13.12, 13.40 Optimise Group Pty Ltd and Commissioner of Taxation, Re [2010] AATA 782; (2010) 119 ALD 585 …. 9.3, 9.14, 9.38 Opus Capital Ltd and Australian Securities and Investments Commission, Re [2010] AATA 694; (2010) 117 ALD 608 …. 11.15, 11.16, 14.2, 14.4 O’Rafferty and Director-General of Social Security, Re (1983) 5 ALN N160 …. 9.33 O’Sullivan and Australian Securities and Investments Commission, Re [2015] AATA 265 …. 14.4 Otter Gold Mines Ltd v Administrative Appeals Tribunal (1997) 47 ALD 89 …. 14.1, 14.6 — v Deputy President GL McDonald of Administrative Appeals Tribunal (1997) 76 FCR 467; 48 ALD 222 …. 17.32, 17.33 Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 …. 6.17, 6.21 Ovens v Civil Aviation Safety Authority [2010] FCA 1354; (2010) 119 ALD 519 …. 19.35 — v — [2011] FCAFC 75; (2011) 121 ALD 514 …. 19.35 Overseas Applicants and Commissioner of Taxation, Re [2014] AATA 788 …. 13.40 Owen v Repatriation Commission (1995) 38 ALD 241 …. 16.10 Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249; 159 ALR 322 …. 19.41 P P v Child Support Registrar [2013] FCA 1312; (2013) 138 ALD 563 …. 13.4, 16.26, 16.30, 19.22, 19.39

— v — [2015] FCA 116; (2015) 65 AAR 190 …. 19.35 Pacific Film Laboratories Pty Ltd and Collector of Customs, Re (1979) 2 ALD 144 …. 9.4, 9.29 Pacific Hydro Ltd and Office of the Renewable Energy Regulator, Re [2005] AATA 752; (2005) 87 ALD 580 …. 6.35, 16.13 Page and Minister for the Environment, Land and Planning, Re (1998) 50 ALD 999 …. 3.16 Palassis v Commissioner of Taxation (No 2) [2012] FCA 955; (2012) 136 ALD 91 …. 17.18 Palmer and Minister for the Australian Capital Territory, Re (1978) 1 ALD 183 …. 12.14 Panaga Pty Ltd and Secretary, Department of Workplace Relations, Re [2009] AATA 753; (2009) 112 ALD 164 …. 3.10 Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) …. 8.14 Pancontinental Mining Ltd v Burns (1994) 52 FCR 454; 34 ALD 239 …. 13.22, 13.24, 19.14, 19.60 Pantazopoulos and Military Rehabilitation and Compensation Commission, Re [2011] AATA 101; (2011) 121 ALD 148 …. 13.19 Paper to Paper International Pty Ltd and Commissioner of Taxation, Re [2008] AATA 837; (2008) 106 ALD 203 …. 15.1 Parisi and Australian Federal Police, Re (1987) 14 ALD 11 …. 7.7, 16.14 Parker and Tax Agents’ Board of New South Wales, Re (1995) 31 ATR 1248; 95 ATC 2174 …. 17.5 Parr and Commonwealth, Re (1984) 6 ALN N279 …. 18.8 Parremore and Australian Postal Corporation, Re (1991) 150 FCR 301; 23 ALD 115 …. 9.8, 10.1 Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464 …. 19.54 Pasla and Australian Postal Corporation, Re (1990) 20 ALD 407 …. 12.13

Patel v Minister for Immigration and Border Protection [2015] FCAFC 22; (2015) 145 ALD 566 …. 8.4, 12.11, 13.30 Paterson and Department of Employment, Education and Training, Re (1993) 30 ALD 755 …. 3.12 Paul and Minister for Immigration and Citizenship, Re [2011] AATA 831; (2011) 128 ALD 604 …. 11.5, 11.15, 11.16 Pavlovic and Telstra Corporation Ltd, Re (1994) 34 ALD 800 …. 15.12 Payne and Comcare, Re (1997) 48 ALD 733 …. 10.2 Peacock v Repatriation Commission, Re [2007] FCAFC 156; (2007) 161 FCR 256 …. 8.6, 13.47 Peck and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2008] AATA 863 …. 5.11 Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 …. 19.21, 19.61 Peers and Commonwealth, Re (No 2) (1987) 15 ALD 193 …. 18.6 Pek and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 598; (2011) 126 ALD 585 …. 3.6 Pelgrave and Comcare, Re [2005] AATA 214; (2005) 86 ALD 343 …. 9.33 Pelling and Secretary, Department of Aviation, Re (1984) 5 ALD 638 …. 14.7 Pendlebury and Australian Trade Commission, Re (1993) 29 ALD 759 …. 3.23 Penola High School and Geographical Indications Committee, Re [2000] AATA 922; (2000) 63 ALD 305 …. 13.6 Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1068; (1998) 86 FCR 483 …. 11.9, 19.61 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; 56 ALD 231 …. 13.41 Peric and Commonwealth Banking Corporation, Re (1984) 7 ALN N2 …. 9.8 Perks and Australian National Railways Commission, Re (1987) 13 ALD 133 …. 9.33, 17.4 Perpetual Trustee Co (Canberra) Ltd and Commissioner for ACT Revenue, Re

(1993) 29 ALD 817 …. 13.19, 13.22, 13.47 Perpetual Trustee Company (Canberra) Ltd v Commissioner for Revenue (ACT) (1994) 50 FCR 405 …. 8.6 Perrett v Commissioner for Superannuation (1991) 29 FCR 581; 23 ALD 257 …. 19.52 Perring and Australian Postal Corporation, Re (1993) 31 ALD 693 …. 8.8, 9.14 Perry and Comcare, Re [2005] AATA 365; (2005) 86 ALD 220 …. 18.5 Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319; 89 ALD 526 …. 18.3, 18.5 Pescott and Inspector-General in Bankruptcy, Re [2013] AATA 680; (2013) 137 ALD 128 …. 1.8, 9.32, 17.8 Peters and Department of Health and Aged Care, Re (1999) 56 ALD 561 …. 7.3, 7.4 Peters v Administrative Appeals Tribunal [2005] FCAFC 159; (2005) 144 FCR 417 …. 12.20 Petkovska and Telstra Corporation Ltd, Re (1993) 31 ALD 767 …. 6.24, 6.28 Pettifer and Director-General of Health, Re (1982) 4 ALD 517 …. 9.6 Petuna Management Pty Ltd and Australian Fisheries Management Authority, Re (1999) 54 ALD 130 …. 6.23 Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care, Re [2000] AATA 72; (2000) 58 ALD 285 …. 6.20 Phelps and Commissioner of Taxation, Re [2009] AATA 678; (2010) 115 ALD 20 …. 3.9 Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458; (2011) 194 FCR 1; 122 ALD 97 …. 19.55 Phillips and Inspector-General in Bankruptcy, Re [2012] AATA 788; (2012) 131 ALD 564 …. 6.9, 13.20, 13.21, 13.22, 17.8 Phillips and Secretary, Department of Social Security, Re (1987) 13 ALD 357 …. 16.18 Phillips and Secretary, Department of Transport, Re (1978) 1 ALD 341 …. 5.2,

7.2, 7.4, 7.6 Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109 …. 6.17, 19.21 — v Commissioner for Superannuation [2005] FCAFC 2 …. 19.41 — v Inspector-General in Bankruptcy [2011] FCA 612; (2011) 121 ALD 562 …. 19.11 Phung and Minister for Immigration and Citizenship, Re [2007] AATA 1319; (2007) 96 ALD 151 …. 12.20 Piscioneri and Minister for Immigration and Ethnic Affairs, Re (1980) 3 ALN N8 …. 9.15 Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 …. 15.15 P J Beaconsfield Gold NL and Australian Securities Commission, Re (1998) 54 ALD 109 …. 17.33 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 72 ALD 1 …. 19.57 Plumb v Comcare (1992) 39 FCR 236 …. 15.15 PMCC/WJPL and Australian Prudential Regulation Authority, Re [2009] AATA 801; (2009) 112 ALD 210 …. 2.9, 8.15 Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 33 …. 9.1, 9.4, 9.6, 11.2, 11.3, 11.4, 11.6, 11.9 Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 …. 19.31 Polito and Australian Postal Commission, Re (1981) 11 ALN N60 …. 18.6, 18.8, 19.20 Polla-Mounter v Federal Commissioner of Taxation (1996) 71 FCR 570; 43 ALD 773 …. 19.43 Pontin and Repatriation Commission, Re (1991) 22 ALD 191 …. 15.11 Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 140 FCR 375; 81 ALD 549 …. 16.30 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 Potoroo Press and Minister for Primary Industry, Re (1983) 5 ALN N106 ….

9.27 Pouki and Australian Telecommunications Commission, Re (1984) 6 ALD 324 …. 9.1 Powell v Department of Immigration and Multicultural Affairs (1998) 89 FCR 1; 53 ALD 228 …. 16.5 Power and Australian Securities and Investments Commission, Re [2005] AATA 338; (2005) 86 ALD 758 …. 16.28 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 7 ALN N79 …. 13.27 Premoso Pty Ltd (t/as Holden Special Vehicles) and Secretary, Department of Innovation, Industry, Science and Research, Re [2010] AATA 271; (2010) 115 ALD 127 …. 17.6 Prica and Comcare, Re (1996) 44 ALD 46 …. 13.17 Price and Official Trustee in Bankruptcy, Re (1998) 49 ALD 785 …. 7.5 Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 97 ALD 593 …. 19.29, 19.43 Proctor and Commissioner of Taxation, Re [2005] AATA 389; (2005) 87 ALD 247 …. 9.17, 9.28, 17.10 Prodan and Secretary, Department of Family and Community Services, Re [2002] AATA 1134; (2002) 71 ALD 401 …. 3.10, 7.3 Proh and Tax Agents Board, Re (Vic) [2010] AATA 149; (2010) 115 ALD 68 …. 14.3 PTLZ and Australian Securities and Investments Commission, Re [2008] AATA 106; (2008) 100 ALD 648 …. 11.15, 11.16, 11.18, 14.2, 14.8 Public Service Board of New South Wales v Osmond [1987] HCA 7; (1986) 159 CLR 656; 63 ALR 559 …. 4.2 Purnell and Repatriation Commission, Re (1991) 24 ALD 242 …. 6.13 Purvis and Dairy Adjustment Authority, Re [2005] AATA 233; (2005) 86 ALD 713 …. 3.11 P W Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60

FCR 387; 39 ALD 339 …. 19.49 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609 …. 9.7 PYVM and Australian Securities and Investments Commission, Re [2008] AATA 788; (2008) 106 ALD 578 …. 11.17 Q Qantas Airways Ltd and Deputy Commissioner of Taxation (WA), Re (1979) 2 ALD 291 …. 3.34 Queensland and Australian National Parks and Wildlife Service, Re (1986) 13 ALD 158 …. 6.17, 6.23, 6.29 Queensland Investment Corporation and Minister for Transport and Regional Services, Re [2004] AATA 1025; (2004) 84 ALD 717 …. 5.7 Queensland Mines Ltd and Export Development Grants Board, Re (1985) 7 ALD 357 …. 11.13, 16.10 Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority, Re (1991) 25 ALD 160 …. 12.16, Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority, Re (No 3) (1992) 28 ALD 368 …. 15.5 Quick and Comcare, Re [2010] AATA 209; (2010) 115 ALD 451 …. 13.24 Quinlivan and Australian Securities and Investments Commission, Re [2008] AATA 1094; (2008) 106 ALD 438 …. 14.2 Quinn and Australian Postal Corporation, Re [1992] AATA 668; (1992) 15 AAR 519 …. 10.11, 15.14, 17.7 QX07/1 and Military Rehabilitation and Compensation Commission, Re [2007] AATA 1172; (2007) 94 ALD 750 …. 16.16 R R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289 …. 13.42

— v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 …. 8.15 — v Industrial Appeals Court; Ex parte Maher [1978] VR 126 …. 9.33 — v Kelly; Ex parte Victorian Chamber of Manufactures (1953) 88 CLR 285 …. 2.9 — v Milk Board; Ex parte Tomkins [1944] VLR 187 …. 9.33 — v Moodie; Ex parte Mithen (1977) 17 ALR 219 …. 3.6 — v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 …. 16.25 — v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 …. 9.4 R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1; [2011] 2 All ER 1; [2011] 2 WLR 103 …. 17.8 Radar Investments Pty Ltd and Health Insurance Commission, Re [2004] AATA 166; (2004) 80 ALD 733 …. 3.33, 16.22 Radge and Commissioner of Taxation, Re [2007] AATA 1317; (2007) 95 ALD 711 …. 3.25, 13.20–13.22, 16.9, 16.10 Radzi v Minister for Immigration and Border Protection [2014] FCA 626; (2014) 143 ALD 124 …. 6.8 Raffles College Pty Ltd v Tertiary Education Quality Standards Agency [2015] FCA 734 …. 11.18 Rahimovski and Commonwealth Bank of Australia, Re [2013] AATA 755; (2013) 136 ALD 445 …. 16.22 Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 …. 6.13 Rajski v Scitec Corporation Pty Ltd (Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986, unreported) …. 13.4 Ralph v Repatriation Commission [2015] FCA 165; (2015) 145 ALD 357 …. 6.13 Ramsay and Department of Transport, Re (1977) 2 ALD 97 …. 14.7 Rana and Defence Force Retirement and Death Benefits Authority, Re [2009]

AATA 404; (2009) 109 ALD 650 …. 3.8, 9.3, 11.10 Rana and Military Rehabilitation and Compensation Commission, Re [2005] AATA 1069; (2005) 89 ALD 180 …. 15.15, 17.30 Rana and Military Rehabilitation and Compensation Commission, Re [2008] AATA 558; (2008) 104 ALD 595 …. 15.2, 15.14, 15.15, 17.8 Rana and Military Rehabilitation and Compensation Commission, Re [2009] AATA 361; (2009) 109 ALD 217 …. 17.32, 17.33 Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300 …. 13.11 — v Repatriation Commission [2011] FCAFC 124; (2011) 126 ALD 1 …. 19.22, 19.41 Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666 …. 10.2, 10.3, 17.17 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 133 ALD 39 …. 9.38, 13.42, 19.39 Rayson and Repatriation Commission, Re [2008] AATA 1063; (2008) 109 ALD 137 …. 13.23, 16.7 Rayson and Repatriation Commission, Re [2009] AATA 231; (2009) 109 ALD 168 …. 10.12, 12.8, 13.23 RC and Director-General of Social Services, Re (1981) 3 ALD 334 …. 9.1 Read v Commonwealth (1988) 167 CLR 57; 15 ALD 261 …. 19.59 Rebeiro and Comcare, Re (1996) 44 ALD 632 …. 3.33, 18.6 Redmond and Secretary, Department of Social Security, Re (1992) 26 ALD 362 …. 8.5 Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254; 276 ALR 196 …. 8.13, 19.41 Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion, Re; Ex parte Director-General of Social Services (1979) 2 ALD 86 …. 20.1 Refugee Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 …. 8.14 Reilly and Secretary, Department of Social Security, Re (1987) 12 ALD 407 …. 16.18

Reith and Minister for Aboriginal Affairs, Re (1988) 14 ALD 430 …. 3.17 Remely v Minister for Immigration and Border Protection [2014] FCA 619; (2014) 142 ALD 539 …. 13.4 Rendevski & Sons and Australian Apple and Pear Corporation, Re (1987) 12 ALD 280 …. 16.29 Rennie and Defence Force Retirement and Death Benefits Authority, Re (1979) 2 ALD 424 …. 3.27 Repatriation Commission and Bramston, Re (1985) 8 ALD 468 …. 14.9 Repatriation Commission and Delkou, Re (1985) 8 ALD 454 …. 14.10 Repatriation Commission and Delkou, Re (1986) 9 ALD 358 …. 9.38, 14.9 Repatriation Commission and Greenaway, Re (1989) 16 ALD 677 …. 6.13 Repatriation Commission and Groat, Re (1985) 8 ALN N321 …. 14.10 Repatriation Commission and Kowalski, Re [2009] AATA 6; (2009) 108 ALD 464 …. 17.11 Repatriation Commission and McCartney, Re (1986) 9 ALD 441 …. 16.20 Repatriation Commission and Strang, Re (1988) 15 ALD 12 …. 14.1, 14.9 Repatriation Commission v Boyle (1997) 47 ALD 637 …. 17.15 — v Butcher [2007] FCAFC 36; (2007) 94 ALD 364 …. 19.47 — v Cornelius [2002] FCA 930; (2002) 69 ALD 250 …. 19.54 — v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348 …. 8.10, 13.10 — v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609 …. 16.18 — v Hill [2009] FCA 270; (2009) 108 ALD 131 …. 19.54 — v Holden [2014] FCA 605; (2014) 142 ALD 267 …. 17.17, 17.19, 19.50 — v Keeley [2000] FCA 532; (2000) 98 FCR 108; 60 ALD 401 …. 16.19 — v Malady [2010] FCA 798; (2010) 116 ALD 170 …. 19.49 — v Maley (1991) 24 ALD 43 …. 9.2 — v Milenz [2007] FCA 50 …. 19.54

— v Morris (1997) 79 FCR 455; 50 ALD 156 …. 16.7 — v Nation (1995) 57 FCR 25 …. 13.47 — v O’Brien [1985] HCA 10; (1985) 155 CLR 422; 58 ALR 119 …. 3.26 — v Parr [2003] FCA 970 …. 13.47 — v Richardson [2001] FCA 1626; (2001) 115 FCR 220; 66 ALD 80 …. 8.10 — v Sergeant [2007] FCA 1408; (2007) 97 ALD 391 …. 19.54 — v Smith (1987) FCR 327 …. 9.39 — v — (1997) 75 FCR 298; 45 ALD 523 …. 19.12 — v Thompson (1988) 44 FCR 20; 15 ALD 501 …. 19.40 — v Tuite (1992) 37 FCR 571 …. 19.19 — v — (1993) 39 FCR 540; 29 ALD 609 …. 19.19 — v Warren [2007] FCA 866; (2007) 95 ALD 606 …. 8.6 — v — [2008] FCAFC 64; (2008) 167 FCR 511; 101 ALD 222 …. 8.6, 19.42, 19.43 — v Yates (1997) 46 ALD 487 …. 13.47 Reserve Bank of Australia and Comcare and Munivrana, Re (1989) 18 ALD 281 …. 6.21 Reserve Bank of Australia and Comcare and Varvakis, Re [1993] Admin Review 12 …. 12.3 Reynolds and Defence Force Retirement and Death Benefits Authority, Re [2000] AATA 142; (2000) 58 ALD 539 …. 3.10, 3.27 Reynolds and Secretary, Department of Social Security, Re (1987) 14 ALD 223 …. 10.9 Ricci and Director-General of Social Services, Re (1982) 4 ALN N73 …. 20.6 Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385; 26 ALD 704 …. 8.13 Ridley v Secretary, Department of Social Security (1993) 42 FCR 276; 29 ALD 726 …. 9.19

Rigoli v Commissioner of Taxation [2014] FCAFC 29; (2014) 141 ALD 529 …. 9.38, 13.47 Riley and Repatriation Commission, Re (1995) 37 ALD 717 …. 3.32, 18.2 Riordan v Parole Board (ACT) (1981) 3 ALD 144 …. 3.22 Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 …. 19.21 Rix and Secretary, Department of Industry, Innovation and Science, Research and Tertiary Education, Re [2012] AATA 742; (2012) 132 ALD 578 …. 16.28 R M and Commissioner for Superannuation, Re (1984) 6 ALD 272 …. 3.11 Roberge and Secretary, Department of Social Security, Re (1988) 16 ALD 37 …. 3.32 Roberts and Repatriation Commission, Re (1992) 26 ALD 611 …. 16.15 Roberts and Repatriation Commission, Re (1992) 27 ALD 408 …. 6.12, 6.13 Roberts v Repatriation Commission (1992) 39 FCR 420; 29 ALD 442 …. 6.13, 17.10 — v — [2004] FMCA 926; (2004) 83 ALD 343 …. 19.21 Robertson v City of Nunawading [1973] VR 819 …. 6.35 Robinson and Repatriation Commission, Re (1991) 25 ALD 130 …. 15.4, 15.21 Roche and Commonwealth, Re (1988) 16 ALD 787 …. 13.31 Rodgers and Secretary, Department of Social Security, Re (1991) 24 ALD 720 …. 9.14 Rodriguez and Telstra Corporation Ltd, Re [2001] AATA 1053; (2001) 67 ALD 109 …. 18.4, 18.6 Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 …. 9.1, 9.33, 18.8 Rodsted and Repatriation Commission, Re [2009] AATA 658; (2009) 113 ALD 125 …. 9.8 Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA

1238; (1999) 90 FCR 583; 57 ALD 257 …. 16.26 Romanov-Hughes and Comcare, Re [2001] AATA 1030; (2001) 66 ALD 471 …. 15.15 Romeo and Secretary, Department of Social Security, Re (1992) 26 ALD 248 …. 6.23, 6.24 Roncevich and Repatriation Commission, Re [2006] AATA 660; (2006) 91 ALD 662 …. 13.47 Rooney and Comcare, Re (1993) 31 ALD 616 …. 18.6 Roper v Repatriation Commission [2008] FCA 1610; (2008) 108 ALD 16 …. 19.11 Rose and Comcare, Re [2013] AATA 735; (2013) 137 ALD 635 …. 14.9 Rosenzweig and Military Rehabilitation and Compensation Commission, Re [2012] AATA 228; (2012) 130 ALD 284 …. 6.17, 6.23 Rothsay and Secretary, Department of Education, Employment and Workplace Relations, Re [2011] AATA 280; (2011) 121 ALD 184 …. 6.19 Rovere and Minister for Capital Territory, Re (1979) 2 ALN N350 …. 9.4, 9.6 Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448; 268 ALR 232 …. 19.29 Rudd and Minister for Transport and Regional Services, Re [2001] AATA 719; (2001) 65 ALD 296 …. 5.8 Ruddock, Re; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 75 ALD 1 …. 8.18, 8.19 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229; 188 ALR 143 …. 19.52 Ruggeri and Secretary, Department of Social Security, Re (1985) 8 ALD 338 …. 16.28 Rundle and Civil Aviation Safety Authority, Re [2002] AATA 349; (2002) 68 ALD 234 …. 15.16 Russell and Conservator of Flora and Fauna, Re (1996) 42 ALD 441 …. 16.18 Rutter and Commonwealth, Re (1989) 18 ALD 635 …. 9.34, 18.5

Ryan v Davies Brothers Ltd (1921) 29 CLR 527 …. 7.3 Rytir and Discrimination Commissioner, Re (1996) 44 ALD 427 …. 9.10 S S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 …. 8.11 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; 115 ALD 493 …. 8.12 Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 102 ALR 19 …. 9.19 Saint-James and Defence Force Retirement and Death Benefits Authority, Re (1981) 3 ALN N92 …. 5.7, 7.4 Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 …. 3.12 Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 140 ALD 1 Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 98 …. 12.14 Salomonn v Migration Agents Registration Authority [2014] FCA 380; (2014) 141 ALD 459 …. 13.10 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 …. 13.40, 19.38, 19.41 Samir Pty Ltd and Aged Care Standards and Accreditation Agency Ltd, Re [2013] AATA 194; (2013) 135 ALD 567 …. 5.7, 15.11 Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation, Re (1987) 12 ALD 520 …. 6.20, 6.23, 6.29 ‘SAN’ and Military Rehabilitation and Compensation Commission, Re [2008] AATA 237; (2008) 103 ALD 387 …. 8.13, 11.10, 17.33 Sanchez and Comcare, Re (1997) 48 ALD 785 …. 15.12, 17.25, 17.81 Sanctuary Australasia Pty Ltd and Commissioner of Taxation, Re [2013] AATA 371; (2013) 135 ALD 206 …. 5.9

Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 …. 9.12 Sanyo Australia Pty Ltd and Comptroller-General of Customs, Re (1994) 33 ALD 787 …. 7.5 Sanyo Australia Pty Ltd and Comptroller-General of Customs, Re (1995) 21 AAR 524 …. 15.5 Sarina and Secretary, Department of Social Security, Re (1988) 14 ALD 437 …. 3.11, 3.33 Saunders v Federal Commissioner of Taxation (1988) 15 ALD 353 …. 12.13, 20.4 Savvas and Commissioner for Land and Planning, Re [2001] ACTAAT 37; (2001) 66 ALD 529 …. 16.25 Sawley and Secretary, Department of Housing and Construction, Re (1987) 14 ALD 479 …. 6.20 Sawmillers Exports Pty Ltd and Minister for Resources, Re (1996) 41 ALD 657 …. 3.11, 3.12 SB and Director-General of Social Services, Re (1981) 3 ALN N153 …. 13.40 SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281 …. 9.12 SBLF v Minister for Immigration and Citizenship [2008] FCA 1219; (2008) 103 ALD 566 …. 1.7, 13.51, 19.40 Schlatter and Defence Force Retirement and Death Benefits Authority, Re (1985) 8 ALD 133 …. 17.4 Schramm and Repatriation Commission, Re (1998) 54 ALD 501 …. 15.12 Scognamillo v Secretary, Department of Social Security (1985) 8 ALN N138 …. 9.37 Scott and Australian Securities and Investments Commission, Re [2009] AATA 798 …. 14.4 Scott and Commissioner for Superannuation, Re (1986) 9 ALD 491 …. 17.3 Scott and Secretary, Department of Social Security, Re (1996) 42 ALD 738 …. 7.3

Scott v Handley [1999] FCA 404; (1999) 58 ALD 373 …. 13.5 Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282; 125 ALD 167 …. 19.31, 19.34, 19.44 Sea King Fisheries Pty Ltd and Australian Trade Commission, Re (1986) 9 ALN N247 …. 9.35 Seale and Repatriation Commission, Re [2004] AATA 700; (2004) 83 ALD 735 …. 13.52, 16.19 Secker and Secretary, Department of Family and Community Services, Re [2000] AATA 290; (2000) 60 ALD 292 …. 3.24 Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438; (2010) 119 ALD 155 …. 19.22 — v Holmes [2008] FCA 105; (2008) 100 ALD 101 …. 19.49 Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; (2006) 91 ALD 103 …. 17.18 — v Richards [2008] FCAFC 97; (2008) 168 FCR 438; 102 ALD 74 …. 19.34 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29; (2012) 200 FCR 464 …. 19.54 Secretary, Department of Family and Community Services and AX03C, Re [2003] AATA 46; (2003) 73 ALD 81 …. 11.15 Secretary, Department of Family and Community Services and Roberts, Re [2003] AATA 269; (2003) 73 ALD 412 …. 6.25, 6.31 Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41 …. 19.52 — v Verney [2000] FCA 570; 60 ALD 737 …. 13.10 Secretary, Department of Family and Community Services and Brunner, Re [2003] AATA 749; (2003) 77 ALD 130 …. 16.16 Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340; 26 ALD 265 …. 16.26 Secretary, Department of Social Security and Bosworth, Re (1989) 18 ALD 373

…. 16.25, 16.28 Secretary, Department of Social Security and Collins, Re (1991) 26 ALD 344 …. 14.10 Secretary, Department of Social Security and Edwards, Re (1992) 28 ALD 742 …. 16.18 Secretary, Department of Social Security and Frankos, Re (1993) 32 ALD 271 …. 3.19 Secretary, Department of Social Security and Glanville, Re (1994) 35 ALD 151 …. 14.11 Secretary, Department of Social Security and Guner, Re (1990) 21 ALD 399 …. 14.10 Secretary, Department of Social Security and Hall, Re (1992) 28 ALD 282 …. 6.9 Secretary, Department of Social Security and Mariot, Re (1992) 25 ALD 581 …. 3.22 Secretary, Department of Social Security and Mellidis, Re (1990) 21 ALD 549 …. 6.9, 6.15 Secretary, Department of Social Security and Pesu, Re (1989) 18 ALD 469 …. 14.10 Secretary, Department of Social Security and Pluta, Re (1991) 23 ALD 317 …. 3.20, 9.7, 13.52 Secretary, Department of Social Security and Pomersbach, Re (1991) 25 ALD 73 …. 3.22 Secretary, Department of Social Security and Sinclair, Re (1992) 25 ALD 17 …. 3.22 Secretary, Department of Social Security and Smith, Re (1992) 29 ALD 385 …. 9.18 Secretary, Department of Social Services and Twentyman, Re [2014] AATA 582 …. 10.12, 16.7 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213; 34 ALD 72 …. 3.15, 3.26

— v Greenwood (1992) 26 ALD 554 …. 19.37 — v Hodgson (1992) 37 FCR 32; 27 ALD 309 …. 16.6, 16.12, 17.21 — v Jordan (1998) 83 FCR 34; 49 ALD 496 …. 9.2, 13.8, 13.35 — v Littlejohn (1989) 19 ALD 361 …. 9.18 — v Mackay (1998) 58 ALD 130 …. 16.14 — v Mariot (1993) 29 ALD 677 …. 9.19 — v Riley (1987) 17 FCR 99; 13 ALD 608 …. 3.25, 16.10 — v Rogers [2000] FCA 1447; (2000) 104 FCR 272; 65 ALD 185 …. 4.1 — v Van den Boogaart (1995) 37 ALD 619 …. 19.19, 19.21 Seghini and Telstra Corporation Ltd, Re (1997) 44 ALD 711 …. 10.12 Selimovic and Secretary, Department of Family and Community Services, Re [2003] AATA 199; (2003) 77 ALD 738 …. 16.16 Seller v Commissioner of Taxation [2013] FCA 1373; (2013) 308 ALR 376 …. 10.12, 10.14 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 …. 9.42 Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43; (2011) 120 ALD 40 …. 19.47 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 …. 3.22 — v — [2000] FCA 240; (2000) 96 FCR 533; 60 ALD 383 …. 3.22, 17.27 Sent v Commissioner of Taxation [2012] FCA 382; (2012) 128 ALD 34 …. 17.22 Seoud and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 640; (2011) 126 ALD 593 …. 16.7 Serong and Civil Aviation Safety Authority, Re [2006] AATA 1123; (2006) 93 ALD 673 …. 16.25 Servos v Repatriation Commission (1995) 56 FCR 377; 37 ALD 489 …. 19.41 Seventy-Ninth Vibration Pty Ltd v CEO of Customs (1998) 50 ALD 865 ….

17.15, 17.18 Sew Eurodrive Pty Ltd and Collector of Customs, Re (1994) 35 ALD 790 …. 7.3, 7.6 Seymour and Migration Agents Registration Authority, Re [2012] AATA 86; (2012) 125 ALD 145 …. 12.3, 14.3 Seymour v Migration Agents Registration Authority [2006] FCA 965; (2006) 95 ALD 301 …. 3.16, 14.6 — v — [2007] FCAFC 5; (2007) 156 FCR 544; 93 ALD 253 …. 14.3, 14.6 Shaheed and Tax Practitioners Board, Re [2011] AATA 938; (2011) 128 ALD 401 …. 13.11 Sharkey and Commissioner of Taxation, Re [2007] AATA 1435; (2007) 95 ALD 509 …. 9.38 Sharma and Commissioner of Superannuation, Re [2007] AATA 1129; (2007) 94 ALD 717 …. 3.32 Sharpe and Secretary, Department of Social Security, Re (1988) 14 ALD 681 …. 16.29 Shearing and Director-General of Social Security, Re (1983) 6 ALN N12 …. 9.37 Sheehy v Repatriation Commission (1996) 66 FCR 569; 41 ALD 205 …. 19.48 Sheepskin and Opal Exporters and Export Development Grants Board, Re (1984) 6 ALD 594 …. 11.6 Sheikh v Australian Postal Corporation [2006] FCA 646; (2006) 90 ALD 331 …. 19.52 Shelton and Defence Force Retirement and Death Benefits Authority, Re (1979) 2 ALD 574 …. 16.18 Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587; 58 ALD 256 …. 19.52 Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525; 95 ALD 260 …. 16.20 — v — [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467 …. 16.20 — v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326;

78 ALD 281 …. 14.6 Shingles and Director-General of Social Security, Re (1984) 6 ALD 568 …. 9.31 Shiraz Nominees Pty Ltd and Federal Commissioner of Taxation, Re [2003] AATA 778; (2003) 77 ALD 183 …. 13.22 Short and Repatriation Commission, Re (1988) 14 ALD 587 …. 10.6 Shortis and Secretary, Department of Community Services, Re (1991) 23 ALD 396 …. 16.11 Shulver v Sherry (1992) 28 ALD 570 …. 9.6 Sibrava and Acting Commissioner for Superannuation, Re (1978) 1 ALD 233 …. 3.14, 16.23, 17.1 Simcock and Telstra Corporation Ltd, Re (1994) 33 ALD 247 …. 15.11 Simpson and Australian Maritime Safety Authority, Re [2006] AATA 315; (2006) 90 ALD 471 …. 3.23 Sims E-Recycling Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities, Re [2012] AATA 269; (2012) 132 ALD 553 …. 3.32, 3.33 Singh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2009] AATA 850; (2009) 114 ALD 178 …. 5.6 Singh v Minister for Immigration and Border Protection [2011] FCA 833; (2011) 122 ALD 114 …. 19.24 — v — [2015] FCA 220 …. 6.10 — v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18; 183 ALR 531 …. 17.27 — v Secretary, Department of Employment and Workplace Relations [2006] AATA 1381; (2006) 95 ALD 569 …. 15.14, 15.17, 17.11 Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126 …. 16.18 S & J Ferguson Pty Ltd and Minister for Arts, Heritage and Environment, Re (1986) 12 ALD 145 …. 6.16 S J and Minister for Immigration and Ethnic Affairs, Re (1983) 5 ALN N99 ….

11.15 Slater and Repatriation Commission, Re [1999] AATA 336 …. 15.23 Slater and Telstra Corporation, Re [2005] AATA 527 …. 15.15 Sleiman and Companies Auditors and Liquidators Disciplinary Board, Re [2007] AATA 1892; (2007) 98 ALD 170 …. 1.8, 10.13, 15.1, 16.5 SLE Medical Pty Ltd and Industry Research and Development Board, Re (1988) 19 ALD 215 …. 3.17, 16.11 Smedley and Director-General of Social Security, Re (1983) 5 ALD 387 …. 17.27, 20.6 Smedley and Repatriation Commission, Re (1988) 16 ALD 574 …. 3.25, 3.26 Smith and Commissioner of Taxation, Re [2009] AATA 747; (2009) 115 ALD 13 …. 12.6, 13.22 Smith and Defence Force Retirement and Death Benefits Authority, Re (1978) 1 ALD 374 …. 16.18 Smith & Nephew (Aust) and Department of Health, Housing and Community Services, Re (1992) 29 ALD 280 …. 6.16, 6.23 Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335; 134 ALD 480 …. 17.19 Snook and Civil Aviation Safety Authority, Re [2008] AATA 1139; (2009) 109 ALD 131 …. 14.3, 14.8 Sobcuk and Commissioner of Taxation, Re [2004] AATA 655; (2004) 81 ALD 650 …. 15.8 Sogo Duty Free Pty Ltd and Commissioner of Taxation, Re [2005] AATA 1298; (2005) 89 ALD 236 …. 3.20, 10.14 Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277; 296 ALR 32 …. 17.17 Son and Australian Trade Commission, Re [2005] AATA 227; (2005) 86 ALD 469 …. 5.7, 9.13 Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237 …. 9.7; South Australian Commissioner for Prices and Consumer Affairs v Charles

Moore (Aust) Ltd (1977) 139 CLR 449; 14 ALR 485 …. 9.31 Southern Equities Corporation Ltd (in liq) v Bond (2000) 78 SASR 339; 211 LSJS 487 …. 8.13 Spagnolo and Minister for Immigration and Ethnic Affairs, Re (1980) 2 ALN 1038 …. 20.3 Spaul v Comcare [2012] FCA 741; (2012) 134 ALD 239 …. 19.47 Spencer and Commissioner of Taxation, Re [2007] AATA 1194; (2007) 100 ALD 389 …. 6.17, 6.20 Spencer-White and Secretary, Department of Social Security, Re (1992) 28 ALD 719 …. 16.16 Spicer Axles Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources, Re [2005] AATA 77; (2005) 83 ALD 104 …. 9.10, 12.7, 12.10 Spoolder and Secretary, Department of Social Security, Re (1991) 24 ALD 786 …. 13.8 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685 …. 17.33, 17.34 SRD v Australian Securities Commission (1994) 52 FCR 187; 123 ALR 730 …. 11.18, 19.18 SRH and Secretary, Department of Social Security, Re (1996) 42 ALD 463 …. 3.20 SRRRRR and Commissioner of Taxation, Re [2008] AATA 181; (2008) 100 ALD 690 …. 15.23 Stack v Commissioner of Patents [1999] FCA 148; (1999) 55 ALD 654 …. 18.1 Staffieri and Commonwealth, Re (1986) 10 ALN N36 …. 16.6 Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 …. 17.17, 19.48 Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126 …. 17.16, 17.21, 19.32 Stemcor Pty Ltd and Chief Executive Officer of Customs, Re [2007] AATA

1347; (2007) 95 ALD 462 …. 7.4 Sterns Playland Pty Ltd and Collector of Customs, Re (1981) 3 ALN N156 …. 3.10 Stevenson and Commonwealth, Re (1987) 13 ALD 524 …. 6.23, 6.34, 15.5 Stewart and Department of Employment, Education and Training, Re (1990) 20 ALD 471 …. 16.18 Stoddart and Commissioner for Superannuation, Re (1982) 5 ALN N6 …. 13.48 Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366 …. 16.18 Stoiche and Telstra Corporation Ltd, Re (1995) 40 ALD 369 …. 13.16 Stoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 …. 16.28 Storrie and Repatriation Commission, Re (1988) 16 ALD 31 …. 6.15 Strang and Siddha Yoga Foundation v Department of Immigration and Ethnic Affairs (AAT, Dwyer SM, AAT No 10622, V95/1367, 19 December 1995, unreported) …. 2.12 Street Nation Pty Ltd and Australian Communication Authority, Re [2004] AATA 1251; (2004) 86 ALD 413 …. 3.20, 10.14 St Regis–ACI Pty Ltd, Re (1977) 1 ALN N198 …. 6.14 Stuart v Federal Commissioner of Taxation (1996) 45 ALD 474 …. 10.6, 10.12 — v Sanderson [2000] FCA 270; (2000) 100 FCR 150; 175 ALR 681 …. 17.11 Suardana and Minister for Immigration and Ethnic Affairs, Re (1980) 2 ALD 830 …. 12.16 Sullivan and Secretary, Department of Transport, Re (No 3) (1979) 2 ALD 502 …. 20.6 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; 141 ALD 540 …. 8.19, 9.42, 13.10 — v Department of Transport (1978) 1 ALD 383; 20 ALR 323 …. 8.8, 8.18, 13.10, 17.16, 19.35

Sumabe Pty Ltd and Minister for Health and Ageing, Re [2011] AATA 799; (2011) 125 ALD 327 …. 9.10, 11.9 Summers v Repatriation Commission [2015] FCAFC 36; (2015) 145 ALD 30 …. 19.42 Sunol v Collier [2012] NSWCA 14; (2012) 258 FLR 282 …. 3.11 Sun Zhan Qui v Minister for Immigration and Multicultural and Indigenous Affairs [1997] FCA 324 …. 1.8 Surf Air and Civil Aviation Authority, Re (1991) 22 ALD 118 …. 3.8 Sussan (Wholesalers) Pty Ltd and Bureau of Customs, Re (1977) 1 ALD 89 …. 9.29 Suters v Australian Postal Corporation (1992) 28 ALD 320 …. 17.18 Sutton v Federal Commissioner of Taxation (1959) 100 CLR 518 …. 11.9 Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291; 61 ALR 319 …. 11.4 Swinburne and Australian Securities and Investments Commission, Re [2014] AATA 602; (2014) 144 ALD 397 …. 17.4 Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421; 14 ALD 133 …. 19.59 Syme and Australian Broadcasting Corporation, Re (1991) 23 ALD 441 …. 3.34 Szajna v Australian Postal Corporation [2014] FCA 1136; (2014) 143 ALD 192 …. 19.29 Szajntop v Gerber (1992) 28 ALD 187 …. 16.5, 19.61 SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 230 CLR 486; 91 ALD 565 …. 11.5 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; 93 ALD 300 …. 8.9, 8.10, 8.18 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 96 ALD 510 …. 17.11, 19.63 SZFNX v Minister for Immigration and Citizenship [2010] FCA 562; (2010) 116 ALD 85 …. 19.38

SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22 …. 13.29, 13.30 SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14; 98 ALD 270 …. 13.29 SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109; 111 ALD 59 …. 8.14 SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 …. 19.41 SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613; (2007) 98 ALD 575 …. 9.33 SZJZS v Minister for Immigration and Citizenship [2008] FCA 789; (2008) 102 ALD 318 …. 17.16 SZLIO v Administrative Appeals Tribunal [2008] FCA 124 …. 15.11 SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321; (2008) 103 ALD 580 …. 8.11, 9.35 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 …. 13.14 SZMCE v Minister for Immigration and Citizenship [2008] FCAFC 1803; (2008) 105 ALD 508 …. 13.29 SZMJA v Minister for Immigration and Citizenship [2008] FCA 1773 …. 8.14 SZMRQ v Minister for Immigration and Citizenship [2013] FCAFC 142; (2013) 219 FCR 212; 139 ALD 436 …. 13.41 SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; (2009) 109 ALD 242 …. 13.14 SZNTE v Minister for Immigration and Citizenship [2009] FMCA 1256; (2009) 113 ALD 522 …. 9.33 SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123; 120 ALD 208 …. 8.4 SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 …. 13.10, 13.14, 19.42, 19.43 SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012)

200 FCR 223; 125 ALD 481 …. 8.16, 17.20 SZQNC v Minister for Immigration and Citizenship [2012] FCA 857; (2012) 131 ALD 257 …. 13.41 SZQVM v Minister for Immigration and Citizenship [2013] FCA 5; (2013) 139 ALD 81 …. 9.6, 13.30 SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (2012) 130 ALD 472 …. 6.14, 6.27 SZQZR v Minister for Immigration and Citizenship [2013] FCA 69; (2013) 133 ALD 355 …. 19.21, 20.8 SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 142 ALD 211 …. 17.2 SZRCD v Minister for Immigration and Citizenship [2013] FCA 290 …. 19.42 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 305 ALR 557 …. 13.4 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 …. 13.41 SZSOB v Minister for Immigration and Border Protection [2014] FCA 685; (2014) 143 ALD 302 …. 19.35 SZSQS v Minister for Immigration and Border Protection [2014] FCA 219; (2014) 142 ALD 509 …. 8.14 SZSRV v Minister for Immigration and Border Protection [2014] FCA 220; (2014) 142 ALD 219 …. 17.18 SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; 138 ALD 437 …. 19.63 SZTGS v Minister for Immigration and Border Protection [2014] FCA 908; (2014) 142 ALD 558 …. 17.14 SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 144 ALD 525 …. 13.14, 13.29 SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 …. 13.14

SZTXE v Minister for Immigration and Border Protection [2015] FCA 493 …. 15.7 SZYBR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 …. 13.14 T Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 …. 19.31, 19.40 Tait and Secretary, Department of Family and Community Services, Re [2003] AATA 413; (2003) 74 ALD 247 …. 3.21, 15.17 Tam Anh Le and Secretary, Department of Education, Science and Training, Re [2006] AATA 208; (2006) 90 ALD 83 …. 17.23 Tang and Minister for Immigration and Citizenship, Re [2012] AATA 330; (2012) 132 ALD 105 …. 9.12, 13.4, 13.24 Tarrant and Australian Securities and Investments Commission, Re [2011] AATA 945; (2011) 128 ALD 376 …. 11.16 Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) 317 ALR 328 …. 19.33 Tascone and Australian Community Pharmacy Authority, Re [2011] AATA 724; (2011) 59 AAR 376 …. 13.6, 13.39 Tax Agents’ Board of New South Wales v Aquabani [2005] FCA 383; (2005) 144 FCR 446; 85 ALD 358 …. 16.28 — v Martin (1997) 45 ALD 192 …. 19.31 Taxpayer and Commissioner of Taxation, Re [2006] AATA 598; (2006) 91 ALD 242 …. 12.14, 19.58 Taxpayer and Federal Commissioner of Taxation, Re [2004] AATA 398; (2004) 81 ALD 473 …. 9.7, 11.6, 11.7, 12.8 Taxpayers and Commissioner of Taxation, Re [2010] AATA 899; (2010) 118 ALD 627 …. 15.11 Taylor v Secretary, Department of Social Security (1988) 18 FCR 322; 14 ALD 655 …. 3.25

TCXG and Director-General of Security, Re [2013] AATA 377; (2013) 135 ALD 600 …. 8.3, 17.15 Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361; 30 ALD 455 …. 8.6, 19.42 Telepacific Pty Ltd v Commissioner of Taxation [2005] FCA 158; (2005) 218 ALR 85 …. 17.17 Telstra Corporation Ltd and Department of Broadband, Communications and the Digital Economy, Re [2007] AATA 2100; (2007) 47 AAR 76 …. 11.5 Telstra Corporation Ltd, Re (No 2) [2006] ACompT 10; (2006) 93 ALD 407 …. 9.12 Telstra Corporation Ltd v Arden (1994) 20 AAR 285 …. 9.38 — v Flynn [2002] NSWCA 315; (2002) 55 NSWLR 303 …. 15.5 — v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253; 90 ALD 263 …. 3.27 — v Kotevski [2013] FCA 27; (2013) 209 FCR 558; 103 ALD 339 …. 3.22 — v Mahon [2004] FCA 1404; (2004) 85 ALD 772 …. 17.10 — v Roycroft (1997) 77 FCR 358; 47 ALD 671 …. 17.18 Teng and Minister for Immigration and Citizenship, Re [2012] AATA 388; (2012) 129 ALD 120 …. 16.21 Tennant and Secretary, Department of Social Services, Re [2014] AATA 92; (2014) 140 ALD 677 …. 11.14 Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 …. 13.10 Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; (2003) 132 FCR 222; 78 ALD 50 …. 17.11 Theo v Secretary, Department of Family and Community Services [2006] FCA 279 …. 15.14 — v — [2007] FCA 171 …. 19.52 Thiagarajan and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 2065; (2007) 99 ALD 351 …. 17.5 Thomas v Repatriation Commission (1994) 50 FCR 112 …. 8.6

Thomas Cook Australia Pty Ltd and Collector of Customs, Re (1994) 34 ALD 301 …. 12.8 Thomson and Tax Agents’ Board, Re (Qld) (1993) 30 ALD 747 …. 14.8 Thorpe and Commissioner of Taxation, Re [2011] AATA 638; (2011) 123 ALD 355 …. 8.10, 9.16, 9.38 Tiknaz and Director-General of Social Services, Re (1981) 4 ALN N44 …. 16.12 Times Consultants Pty Ltd and Collector of Customs, Re (1986) 9 ALD 526 …. 17.4 Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449; 76 ALR 313 …. 19.35 Tisdall v Health Insurance Commission [2002] FCA 97 …. 9.33 TNT Skypac International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 …. 19.1 Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; (2009) 177 FCR 125; 257 ALR 237 …. 19.42 Toll and Australian Securities Commission, Re (1993) 29 ALD 412 …. 3.23 Tolo and Commonwealth, Re (1985) 9 ALD 225 …. 12.14 Tomago Aluminium Co Pty Ltd and Collector of Customs, Re (1988) 17 ALD 583 …. 3.12 Tomkins and Civil Aviation Safety Authority, Re [2006] AATA 591; (2006) 91 ALD 492 …. 14.6 Tony Wain Agencies and Comptroller of Customs, Re (1994) 35 ALD 649 …. 9.34 Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796; (2008) 106 ALD 506 …. 19.47 Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 …. 17.18 Towers and Optus Administration Pty Ltd, Re [2011] AATA 832; (2011) 128 ALD 612 …. 13.17 Trade Practices Tribunal; Ex parte Tooheys Ltd, Re (1977) 16 ALR 609 …. 11.9;

Tradesmen’s Union Club v Minister for the Environment, Land and Planning (1997) 131 ACTR 1; 49 ALD 304 …. 3.27 Tradex Transport Pty Ltd and Collector of Customs (Vic), Re (1986) 11 ALD 376 …. 3.32 Tradigrain Australia Pty Ltd and Export Development Grants Board, Re (1984) 6 ALD 442 …. 16.10 Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459; 153 ALR 248 …. 3.7, 3.29 Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199; 89 ALD 569 …. 12.16 Tran and Comcare, Re [2010] AATA 719; (2010) 52 AAR 449 …. 16.22 Trans Air Ltd and Civil Aviation Safety Authority, Re [2010] AATA 42; (2010) 113 ALD 426 …. 17.25 Transglobal Airways Corporation and Civil Aviation Safety Authority, Re [2010] AATA 68; (2010) 113 ALD 218 …. 14.6 Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553; 57 ALD 583 …. 5.9 Trawl Industries of Australia Pty Ltd and Secretary, Department of Primary Industries and Energy, Re (1988) 16 ALD 794 …. 3.17 Treneski and Comcare, Re [2004] AATA 98; (2004) 80 ALD 760 …. 18.6, 18.8 Trimboli and Secretary, Department of Social Security, Re (1990) 21 ALD 554 …. 2.12 Truchlik v Repatriation Commission (1989) 25 FCR 414; 87 ALR 263 …. 19.48 Trustee for the Confidential Trust and Commissioner of Taxation, Re [2013] AATA 682; (2013) 138 ALD 409 …. 14.3 Trustee for the Grewal Property Trust and Commissioner of Taxation, Re [2013] AATA 788; (2013) 137 ALD 176 …. 9.38 Trustees of the C & M Baldwin Pension Fund and Insurance and Superannuation Commissioner, Re [1992] Admin Review 85 …. 16.15 Tsartas and CSL Ltd, Re [2012] AATA 485; (2012) 129 ALD 664 …. 10.12,

13.21 Tudor and Repatriation Commission, Re (1988) 14 ALD 29 …. 9.37 Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24; (2012) 126 ALD 48 …. 19.29 Tuite v Allen (1993) 40 FCR 483; 29 ALD 647 …. 8.5, 8.8 Turner and Repatriation Commission, Re [2002] AATA 799; (2002) 71 ALD 148 …. 13.38 Tuysuz and Secretary, Department of Education, Employment and Workplace Relations, Re [2008] AATA 1176; (2008) 106 ALD 661 …. 6.34 U Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 319 ALR 181 …. 16.13 Ugur and Australian Human Rights Commission, Re [2010] AATA 144; (2010) 114 ALD 192 …. 13.51 UK Family Reunion and Australian Postal Commission, Re (1978) 2 ALD 383 …. 12.14, 16.14 Uniden Australia Pty Ltd v Collector of Customs (1997) 74 FCR 1990; 46 ALD 326 …. 15.5 Uphill and Comcare, Re [1999] AATA 451; (1999) 58 ALD 317 …. 10.12 Upton and Department of Transport, Re (1977) 1 ALD 150 …. 3.14, 16.23 Utilux and Comptroller-General of Customs, Re (1995) 39 ALD 679 …. 16.12 Uyar v Administrative Appeals Tribunal [2011] FCA 623; (2011) 121 ALD 288 …. 19.7 V VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 …. 13.14 VAI v Forgie [2003] FCA 87; (2003) 72 ALD 800 …. 12.7, 19.60

Vallas and Comcare, Re [2014] AATA 669; (2014) 143 ALD 419 …. 17.34 Van Cong Huynh v Secretary, Department of Social Security (1987) 14 ALD 501 …. 19.32 — v — (1988) 18 FCR 402; 15 ALD 338; 79 ALR 61 …. 19.35 Vandenberg and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALN N557 …. 17.5 Van de Vreede and Commonwealth, Re (1983) 5 ALN N232 …. 18.3, 18.4 Vasta and Civil Aviation Safety Authority, Re [2011] AATA 84; (2011) 120 ALD 182 …. 18.7 VBJ and Australian Prudential Regulation Authority, Re [2005] AATA 642; (2005) 87 ALD 747 …. 11.15 VBN and Australian Prudential Regulation Authority, Re (No 1) [2005] AATA 861; (2005) 92 ALD 437 …. 7.4, 9.37 VBN and Australian Prudential Regulation Authority, Re (No 2) [2005] AATA 1060; (2005) 92 ALD 455 …. 9.10, 12.10 VBN and Australian Prudential Regulation Authority, Re (No 4) [2006] AATA 718; (2006) 92 ALD 475 …. 11.17 VBS and Commissioner of Taxation, Re [2005] AATA 1303; (2005) 91 ALD 682 …. 6.15 V C and Australian Federal Police, Re (1985) 8 ALD 587 …. 11.15, 11.16 VCA and Australian Prudential Regulation Authority, Re [2006] AATA 873; (2006) 92 ALD 724 …. 9.7, 9.9, 9.35, 10.3, 12.7, 12.9, 16.18 VCA and Australian Prudential Regulation Authority, Re [2008] AATA 580; (2008) 105 ALD 236 …. 12.7, 13.8, 13.20, 13.22 Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570; 204 ALR 80 …. 6.14 Vella v Minister for Immigration and Border Protection [2015] FCAFC 53 …. 8.12 Verus Capital Ltd and Australian Securities and Investments Commission, Re [2001] AATA 864; (2001) 66 ALD 349 …. 18.1

Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 41 ALR 71 …. 3.20 Viliamu and Commissioner of Taxation, Re [2010] AATA 884; (2010) 119 ALD 400 …. 18.7 Vilips and Migration Agents Registration Authority, Re [2007] AATA 1613; (2007) 96 ALD 249 …. 15.10, 15.15 Vincenzo Barbaro and Minister for Immigration and Ethnic Affairs, Re (1980) 3 ALN N31 …. 9.15 Virgo Manufacturing Co Pty Ltd and Collector of Customs (Vic), Re (1981) 3 ALN N19 …. 9.25 VLKG and Commissioner of Taxation, Re [2011] AATA 915; (2011) 129 ALD 13 …. 12.12 Von Reisner v Commonwealth (No 2) [2009] FCAFC 172; (2009) 262 ALR 430 …. 19.53 Von Stieglitz and Comcare, Re [2012] AATA 217; (2012) 127 ALD 633 …. 12.3, 17.33 Vranic v Federal Commissioner of Taxation [2002] FCA 146; (2002) 67 ALD 798 …. 19.21 Vuax v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 …. 19.43 Vulic v Capital Territory Health Commission (1982) 5 ALD 35 …. 9.38 VZG and Secretary, Department of Family and Community Services, Re [1999] AATA 298; (1999) 56 ALD 249 …. 3.19 VZZ v Australian Sports Drug Agency [2001] FCA 816 …. 11.18 W W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455; (2002) 68 ALD 69 …. 16.13, 19.37 Waaf v Minister for Immigration and Multicultural Affairs [2002] FCA 135; (2002) 67 ALD 90 …. 19.7

WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 80 ALD 69 …. 4.1 WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; 77 ALD 1 …. 8.10 Wagh and Australian Postal Corporation, Re [2007] AATA 1948; (2007) 98 ALD 671 …. 9.8, 10.9 WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 …. 13.29 WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398 …. 10.12, 19.11 Waldron v Comcare (1995) 37 ALD 471 …. 8.9 Walker and Secretary, Department of Social Security, Re (No 2) (1995) 43 ALD 685 …. 17.9 Walker v Secretary, Department of Social Security (1997) 75 FCR 493; 48 ALD 512 …. 16.11 Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 45; (2011) 119 ALD 675 …. 6.20 Walsh and Commissioner of Taxation, Re [2012] AATA 451; (2012) 130 ALD 200 …. 3.11, 19.58 Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 …. 19.35 Walters and Commissioner of Taxation, Re [2013] AATA 151; (2013) 134 ALD 393 …. 3.17 Walterschied Australia Pty Ltd v Collector of Customs (1988) 14 ALD 785 …. 19.44 Wang and Australian Federal Police, Re [2005] AATA 908; (2005) 88 ALD 765 …. 8.11, 13.10 Wanrooy and Minister for Infrastructure, Transport, Regional Development and Local Government, Re [2010] AATA 815; (2010) 118 ALD 436 …. 16.21 Ward and Secretary, Department of Industry and Commerce, Re (1983) 8 ALD 324 …. 5.1, 13.1

Ward v Nicholls (1988) 20 FCR 18; 16 ALD 353 …. 3.17, 3.19, 16.21 Waterford and Attorney-General’s Department, Re (No 2) (1986) 9 ALD 482 …. 16.18, 16.19 Waterford and Director-General of Social Services, Re (1980) 3 ALD 63 …. 9.6 Waterford v Commonwealth (1987) 163 CLR 54; 12 ALD 741 …. 9.7, 9.9 Watson, Re (1976) 136 CLR 248 …. 8.15, 19.28 Watson v Federal Commissioner of Taxation [1999] FCA 1796; (1999) 169 ALR 213 …. 20.4 — v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 …. 13.45 Watson Community Association and Pollution Control Authority, Re (1996) 40 ALD 67 …. 5.2 Watt and Delegate of the Secretary, Department of Transport, Re (1978) 1 ALD 242 …. 16.4, 16.14 Wearne and New South Wales Police Service, Re (1994) 34 ALD 315 …. 18.7 Webber and Secretary, Department of Social Security, Re (1989) 18 ALD 422 …. 14.10 Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272; 249 ALR 762 …. 8.13, 13.27 Wedgwood and Australian Postal Commission, Re (1978) 1 ALD 204 …. 9.36 Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 …. 9.32 Welborn and Department of Health, Housing and Community Services, Re (1993) 30 ALD 759 …. 5.7 Welsford and Commonwealth Banking Corporation, Re (1984) 5 ALN N570 …. 9.27 Wertheim and Department of Health, Re (1984) 7 ALD 121 …. 12.2 Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 247 …. 15.14, 15.15 Western Australian International Education Marketing Group (Inc) and

Australian Trade Commission, Re [2003] AATA 1267; (2003) 77 ALD 192 …. 16.5, 16.12, 16.26 Western Australian Lamb Marketing Board and Export Development Grants Board, Re (1982) 4 ALN N192 …. 7.4 Weti v Minister for Immigration and Citizenship [2007] FCA 1531 …. 13.51 White and Repatriation Commission, Re [2003] AATA 1323 …. 15.5 White and Secretary, Department of Families, Community Services and Indigenous Affairs, Re [2007] AATA 1712; (2007) 97 ALD 204 …. 15.8, 15.11, 15.12 White v Repatriation Commission (1995) 39 ALD 42 …. 2.12 Whiteford and Commissioner for Superannuation, Re (1987) 14 ALD 321 …. 20.8 Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510; 43 ALD 225 …. 17.2 Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations, Re [2008] AATA 811; (2008) 104 ALD 662 …. 15.11, 15.12, 15.19 Wigley and Secretary, Department of Social Security, Re (1987) 14 ALD 492 …. 3.32 Willcocks v Comcare [2001] FCA 1315; (2001) 66 ALD 119 …. 19.31 Williams and Australian Electoral Commission, Re (1995) 38 ALD 366 …. 5.7, 5.9, 15.14, 15.15 Williams and Defence Force Retirement and Death Benefits Authority, Re [2004] AATA 921; (2004) 83 ALD 671 …. 6.17, 6.23 Williams and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 556 …. 9.35 Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 142 ALD 76 …. 8.9, 16.5, 16.26 Williamson and Secretary, Department of Social Security, Re (1988) 16 ALD 797 …. 14.11

Wilson and Commissioner of Taxation, Re [2007] AATA 1721; (2007) 98 ALD 99 …. 15.12 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1; 138 ALR 220 …. 2.1 Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351 …. 8.10, 9.22 Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235 …. 6.23 Windsor and Australian Postal Corporation, Re (1991) 22 ALD 401 …. 12.13 Winpar Holdings Ltd and Australian Securities and Investments Commission, Re [2000] AATA 980 …. 15.23 Winthrop and Smith and Minister for Immigration and Ethnic Affairs, Re (1980) 2 ALD 873 …. 16.4 Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority, Re [2014] AATA 496; (2014) 145 ALD 416 …. 9.14, 10.12 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 163; (2006) 155 FCR 268; 93 ALD 61 …. 12.17 Woodall and Repatriation Commission, Re [2015] AATA 163 …. 13.46 Woodhouse and Comcare, Re [2007] AATA 1920; (2007) 98 ALD 462 …. 10.12 Woolmer and Military Rehabilitation and Compensation Commission, Re [2007] AATA 1506; (2007) 96 ALD 204 …. 18.2 Woolworths Ltd and Collector of Customs (NSW), Re (1978) 1 ALD 116 …. 16.14 WorldAudio Ltd and Australian Communications and Media Authority, Re [2006] AATA 177; (2006) 90 ALD 101 …. 14.6 World Wide Fund for Nature Australia and Australian Pesticides and Veterinary Medicines Authority, Re [2013] AATA 329; (2013) 135 ALD 590 …. 3.9 Worthley v Australian Securities Commission (1993) 42 FCR 578; 30 ALD 39 …. 3.23 Wright and Commonwealth, Re (1985) 8 ALD 436 …. 18.8 Wright and Nurses Board (ACT), Re (1996) 41 ALD 411 …. 18.7

Wright Patton Shakespeare Capital Ltd and Australian Securities and Investments Commission, Re [2007] AATA 2102; (2007) 99 ALD 335 …. 10.13 WZAQU v Minister for Immigration and Citizenship (No 2) [2013] FCA 403 …. 17.22 WZAOL v Minister for Immigration and Citizenship [2013] FCA 425; (2013) 14 ALD 285 …. 17.14 WZARB v Minister for Immigration and Citizenship [2013] FCA 523; (2013) 136 ALD 77 …. 8.9 X X and Defence Force Retirement and Death Benefits Authority, Re (1980) 3 ALN N58 …. 11.15, 16.20 X and Insurance and Superannuation Commissioner, Re (1992) 27 ALD 343 …. 11.5, 11.15 X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319; 67 ALD 355 …. 8.11, 16.20, 16.21, 17.27 Xia v Wang and Bian [2009] ACAT 21 …. 13.4 Xiao v Minister for Immigration and Multicultural Affairs [2001] FCA 459; (2001) 109 FCR 129; (2001) 65 ALD 479 …. 19.51 XTWK and Australian Securities and Investments Commission, Re (2007) 98 ALD 131 …. 14.4 Xu v Director of Housing [2008] VSC 82 …. 9.14 Y Y and Commissioner for Superannuation, Re (1982) 4 ALD 499 …. 11.13 Yao v Administrative Appeals Tribunal [2011] FCA 11; (2011) 122 ALD 310 …. 5.9, 19.49 Ye v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468; 55 ALD 358 …. 6.13

Yildiz v Minister for Immigration and Ethnic Affairs (1982) 46 ALR 112 …. 19.40 Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; 62 ALD 513 …. 3.16 Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246; 33 ALD 8 …. 14.1 Young and Secretary, Department of Agriculture, Fisheries and Forestry, Re [2002] AATA 1231; (2002) 71 ALD 390 …. 14.7 Young and Telstra Corporation Ltd, Re (1993) 32 ALD 307 …. 3.17, 3.23 Younger v Repatriation Commission (1992) 28 ALD 211 …. 19.20 Yu and Civil Aviation Safety Authority, Re [2005] AATA 274; (2005) 85 ALD 57 …. 8.9, 13.39 YWXJ and Commissioner of Taxation, Re [2010] AATA 326; (2010) 115 ALD 457 …. 3.10 Z Z and Commissioner for Superannuation, Re (1983) 5 ALN N251 …. 9.23 Zammani and Minister for Immigration and Citizenship, Re [2011] AATA 713; (2011) 123 ALD 613 …. 3.12 Zarfati and Australian Securities and Investments Commission, Re [2008] AATA 989; (2008) 106 ALD 225 …. 14.4 ZDDD and Commissioner of Taxation, Re [2011] AATA 3; (2011) 122 ALD 164 …. 16.28 Zhang and Minister for Immigration and Citizenship, Re [2012] AATA 475; (2012) 129 ALD 646 …. 16.22 Zimmax Trading Co Pty Ltd and Collector of Customs (NSW), Re (1979) 2 ALD 120 …. 3.12 Zito and Telstra Corporation Ltd, Re (1995) 38 ALD 668 …. 13.16 Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451 …. 6.18, 6.23, 19.12

Znotins and Registrar of Weapons, Re (1994) 33 ALD 384 …. 14.8 Zografakis and Telstra Corporation Ltd, Re (1996) 44 ALD 182 …. 15.17 Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 99 ALD 229 …. 15.3 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; 80 ALD 534 …. 3.15

TABLE OF STATUTES AND REGULATIONS References are to paragraphs

COMMONWEALTH Acts Interpretation Act 1901 …. 2.3, 15.14 s 2 …. 15.5 s 7 …. 16.18 s 8 …. 6.35, 16.18 s 15AB …. 9.31 s 20 …. 3.2 s 29 …. 6.13 ss 33–34A …. 3.2 s 33 …. 17.25 s 33AB …. 2.3 s 36 …. 6.9 s 46B(11) …. 16.18 s 50 …. 16.18 Administrative Appeals Tribunal Act 1975 …. 1.3, 1.10, 2.2, 2.9, 3.20, 3.21, 3.23, 5.6, 6.12, 9.19, 10.5, 12.1 Pt 4 …. 8.1 Pt 19 …. 19.25 s 2A …. 1.7, 1.8, 1.9, 2.4, 2.13, 7.2, 7.6, 8.2, 8.4, 10.10, 10.13, 10.15, 10.17,

12.3, 12.8, 13.5, 13.7, 13.17, 13.45, 13.51, 13.52, 15.1, 15.10, 15.15, 19.38, 19.58 s 3 …. 3.2, 10.5 s 3(2) …. 3.2 s 3(3) …. 3.21 s 3(4) …. 4.2 s 5A …. 2.1 s 6 …. 2.1 s 6(1) …. 2.1 s 6(2) …. 2.1 s 7 …. 2.1 s 7(1) …. 2.1 s 8 …. 2.1 s 9 …. 2.1 s 10 …. 2.1 s 17A …. 2.1 s 17CA …. 9.33 ss 17D–17H …. 2.3 s 17E …. 9.33 s 17J …. 2.3 s 17K …. 2.3 s 17K(6) …. 2.3 s 17L …. 2.3 s 17L(6) …. 2.3 s 18A …. 2.4 s 18B …. 2.4, 2.5

s 19A …. 2.7 s 19B …. 2.7 s 19B(1) …. 2.7 s 19C …. 2.7 s 19D …. 2.8 s 19D(1) …. 2.8 s 19D(2)(a) …. 2.8, 2.9 s 19D(2)(b) …. 2.8, 2.10 s 19D(3) …. 2.8 s 19D(4) …. 2.14 s 19D(5) …. 2.9 s 19D(6) …. 2.8 s 19E …. 2.7, 2.8 s 19E(4) …. 2.15 s 19F …. 2.7, 2.8 s 19F(4) …. 2.15 s 21(1A) …. 15.3 s 21A …. 2.11 s 22 …. 2.15 s 23D(3) …. 13.47 s 24Z …. 8.1 s 24Z(2) …. 13.50 s 25 …. 3.1, 15.1 s 25(1) …. 16.8 s 25(3)(a) …. 3.2 s 25(3)(b) …. 3.2

s 25(3)(c) …. 3.2 s 25(3A) …. 3.2, 3.8 s 25(4) …. 16.8 s 25(4A) …. 8.2, 9.2, 15.1, 15.2 s 25(5) …. 3.31 s 25(6) …. 3.5 s 25(7) …. 3.2 s 26 …. 3.33 s 26(1) …. 14.11 s 26(1A) …. 3.33 s 27 …. 3.5, 5.1, 5.3, 7.1, 7.6, 14.5, 18.6 s 27(1) …. 5.2, 5.5 s 27(2) …. 5.2, 5.8, 7.1, 7.6 s 27(3) …. 5.2 s 27A …. 4.1, 6.9 s 27A(2) …. 4.1 s 27A(2)(b) …. 4.1 s 27A(3) …. 4.1 s 27AA …. 5.1 s 27B …. 4.1 s 28 …. 3.21, 4.2, 4.3 s 28(1) …. 12.17, 17.14 s 28(2) …. 4.3, 19.9 s 28(2)(c) …. 19.9 s 28(3) …. 4.3 s 28(1A) …. 4.2

s 28(1B) …. 4.2 s 28(1AAA) …. 4.2 s 28(1AB) …. 4.2 s 28(1AC) …. 4.2 s 28(2) …. 4.2, 4.3, 19.9 s 28(2)(c) …. 19.9 s 28(3A) …. 4.3 s 28(5) …. 4.2 s 28(6) …. 4.2 s 29 …. 3.5, 6.1, 6.2, 6.4, 6.9, 6.11, 6.16, 6.17, 16.13 s 29(1)(a)–(1)(c) …. 6.1 s 29(1)(a)(ii) …. 6.2 s 29(1)(b) …. 6.8 s 29(1)(ca) …. 6.2 s 29(1)(cb) …. 6.2 s 29(2)–(6) …. 6.9 s 29(4) …. 6.9, 6.16 s 29(5) …. 6.9, 6.16 s 29(6) …. 6.9, 6.16 ss 29(7)–(10) …. 6.14 s 29(7) …. 6.14, 6.16 s 29(9) …. 6.15 s 29(10) …. 6.15 s 29A …. 6.8 s 29AA …. 6.2 s 29AA(2) …. 6.2

s 29AB …. 3.5, 6.4 s 29AC …. 3.5 s 29AC(1) …. 6.5 s 29AC(2) …. 6.5 s 30 …. 7.1, 7.2, 12.2 s 30(1)(c) …. 7.1, 7.2 s 30(1)(d) …. 5.3, 7.1, 7.2 s 30(1A) …. 7.1, 7.3, 7.5, 7.6, 14.5 s 30A …. 7.1 s 31 …. 5.3, 19.62 s 31(3) …. 16.26 s 32 …. 3.5, 13.1, 13.3 s 32(1)(b) …. 13.2 s 32(2) …. 13.2 s 32(3) …. 13.2 s 32(4) …. 13.1, 13.19 s 33 …. 3.5, 6.9, 7.1, 8.2, 8.4, 8.8, 9.2, 9.3, 9.4, 10.2, 10.10, 13.40, 15.1, 15.2, 16.7, 17.19, 19.60 s 33(1)(a) …. 8.2, 10.12, 10.13 s 33(1)(b) …. 13.8 s 33(1)(c) …. 9.1, 9.3, 9.4, 9.32, 13.27, 13.28, 17.8 s 33(1A) …. 10.10 s 33(1AA) …. 8.4, 13.5 s 33(1AB) …. 8.4, 13.5 s 33(2) …. 2.15, 9.10, 10.13, 12.10, 13.7, 16.7 s 33(3) …. 13.7

s 33(2A) …. 10.10, 10.12, 13.7, 13.23 s 33(2A)(a) …. 12.8 s 33A …. 13.40, 15.6 s 33A(2) …. 13.40 s 34 …. 10.4 s 34A …. 9.8, 10.5 s 34A(3) …. 10.5 s 34D …. 10.9 s 34D(1) …. 10.9 s 34D(1)(c) …. 10.9 s 34D(2) …. 10.9 s 34D(3) …. 10.9 s 34D(4) …. 10.9 s 34E …. 10.9 s 34E(2) …. 10.9 s 34E(3) …. 10.9 s 34F …. 2.7, 10.9 s 34H …. 10.8 s 34J …. 10.16, 13.54 s 35 …. 3.5, 9.10, 11.1, 11.2, 11.3, 11.4, 11.5, 11.7 11.8, 11.13, 11.18, 12.10, 13.9, 17.23, 17.33, 17.34 s 35(1) …. 11.2 s 35(2) …. 11.2, 11.7, 11.13, 11.14, 19.11, 19.12 s 35(2)(b) …. 11.14 s 35(2)(c) …. 11.9 s 35(3) …. 11.1, 11.3, 11.6, 11.14, 17.14

s 35(4) …. 11.6, 11.9 s 35(5) …. 11.1, 11.2, 11.3, 11.6, 11.8, 11.14, 17.14 s 35A …. 13.40 s 35AA …. 11.10, 11.14 s 35AA(2) …. 11.14 ss 36–36D …. 9.12, 11.9, 12.15, 12.20 s 36 …. 4.3, 9.5, 11.2, 12.15, 12.16, 12.17, 13.9 s 36(1) …. 12.16, 19.9 s 36(1)(a) …. 12.16, 12.17 s 36(1)(b) …. 12.16, 12.17 s 36(1)(c) …. 12.17, 19.9 s 36(3) …. 4.3, 12.16 s 36(3A) …. 12.16 s 36(4) …. 12.16 s 36A …. 12.15, 12.17 s 36A(1) …. 12.17 s 36A(2A) …. 12.17 s 36B …. 12.15, 12.16, 13.9 s 36C …. 12.15, 12.17 s 36D(3) …. 12.16, 12.17 s 36D(4) …. 12.16, 12.17 s 36D(6) …. 12.15 s 37 …. 2.5, 3.25, 9.7, 9.10, 10.2, 10.6, 12.1–12.5, 12.10, 12.12–12.14, 12.20, 13.10 s 37(1) …. 9.10, 9.11, 12.2, 12.3, 12.8, 12.9, 12.10, 12.12 s 37(1)(a) …. 12.3, 12.7, 12.14

s 37(1)(b) …. 12.6, 20.4 s 37(1A) …. 12.2 s 37(1AA)–(1AG) …. 12.2 s 37(1AAB) …. 12.2 s 37(1AE) …. 9.10, 12.2, 12.9, 12.10 s 37(1AF) …. 12.10 s 37(2) …. 12.6, 12.8, 12.10, 12.12 s 37(3) …. 9.10, 9.11, 12.9, 12.10 s 38 …. 12.1, 12.2, 12.7 s 38(1) …. 12.7 s 38(2) …. 12.7 s 38A …. 9.5 s 38AA …. 2.5, 12.5, 12.14 s 39 …. 8.8, 8.17, 13.9, 13.10, 13.12, 13.14, 13.52 ss 39A–39B …. 12.15 s 39A …. 8.3, 11.10, 12.15, 12.18, 13.15, 13.43 s 39A(2) …. 7.1 s 39A(3) …. 12.13 s 39A(5) …. 11.14 s 39A(17) …. 13.43 s 39AA …. 13.3 s 39AA(2)–(4) …. 13.3, 13.13 s 39B …. 8.3, 9.5, 12.15, 12.18, 13.15 s 39(1) …. 10.3 s 40 …. 9.32, 12.3, 13.51, 16.7 s 40(1)(b) …. 13.48

s 40(1A) …. 9.36, 13.20 s 40(1D) …. 13.32 s 40(2) …. 2.15, 13.35 s 40(3) …. 2.15, 13.35 s 40(4) …. 2.15, 13.1, 13.36 s 40(7) …. 10.9 s 40A …. 9.36, 13.19, 13.25, 20.3 s 40A(2) …. 13.19 s 40A(3) …. 13.19 s 40B …. 13.19, 13.32 s 40B(3) …. 13.32 s 41 …. 14.1, 14.3, 17.6, 19.10 s 41(1) …. 3.5, 14.3 s 41(2)–(5) …. 14.3 s 41(2) …. 14.1, 14.3, 14.5, 14.6 s 41(3) …. 14.1 s 41(4) …. 14.1 s 41(5) …. 14.1 s 42 …. 13.50 s 42(2) …. 2.15, 10.15 s 42(5) …. 15.10 s 42A …. 3.33, 15.3, 15.5, 15.11, 15.13 s 42A(1) …. 15.3 s 42A(1A) …. 15.3, 15.5 s 42A(1B) …. 15.5 s 42A(1AA) …. 15.5

s 42A(1AAA) …. 15.4 s 42A(2) …. 6.16, 6.32, 13.48, 15.3, 15.5, 15.6, 15.8, 15.11 s 42A(2)(b) …. 7.1 s 42A(4) …. 15.3, 15.9, 15.13, 15.17 s 42A(5) …. 7.1, 15.3, 15.10 s 42A(7) …. 15.6 s 42A(8) …. 15.8, 15.11 s 42A(8A) …. 15.8 s 42A(9) …. 15.8, 15.11 s 42A(10) …. 15.4, 15.5, 15.8, 15.11, 15.12 s 42B …. 10.11, 15.3, 15.11, 15.14, 15.15, 15.16, 15.18, 15.19, 17.8, 17.29 s 42B(1)(b) …. 15.14 s 42B(2) …. 15.17 s 42C …. 3.33, 10.9, 15.4, 15.20, 15.21 s 42C(1) …. 15.20 s 42C(4) …. 15.20 s 42C(5) …. 15.20, 15.21 s 42D …. 3.10, 15.22, 15.23, 18.2, 19.11 s 42D(5)–(8) …. 15.22 s 43 …. 3.26, 3.28, 10.12, 11.13, 15.18, 15.23, 16.1–16.5, 16.7, 16.9, 16.12, 17.1, 17.13, 17.16, 17.17, 19.46 s 43(1) …. 3.5, 16.1, 16.5, 16.6, 16.10, 16.12, 17.14 s 43(1)(a) …. 16.5 s 43(1)(c) …. 17.1 s 43(1)(c)(ii) …. 15.23, 16.5, 17.2 s 43(1)(c)(iii) …. 17.1

s 43(2) …. 3.5, 17.14, 17.21, 17.25 s 43(2)(b) …. 17.14 s 43(2A) …. 17.14 s 43(2B) …. 17.14, 17.16, 17.19, 17.21, 17.23 s 43(4) …. 17.14 s 43(5A) …. 17.5 s 43(5AA) …. 17.14 s 43(5AB) …. 17.14 s 43(5B) …. 14.3, 17.5, 17.6 s 43(5C) …. 14.3, 14.11, 17.5, 17.6 s 43(6) …. 16.4, 17.5, 17.6 s 43A …. 17.31 s 43AA …. 17.24, 17.25, 18.1, 19.21 s 43AA(1) …. 17.25 s 43AAA …. 17.13, 17.14 s 43B …. 19.1 s 43C …. 19.2, 19.56, 19.58 s 44 …. 8.17, 10.13, 12.16, 12.17, 14.1, 15.18, 17.21, 17.22, 18.1, 18.3, 19.1, 19.2, 19.3, 19.12, 19.13, 19.21, 19.26, 19.28, 19.37–19.40, 19.44, 19.58, 19.60, 19.61 s 44(1) …. 19.19, 19.22, 19.30 s 44(2) …. 5.3, 7.3, 19.3, 19.12 s 44(2A) …. 19.19, 19.20 s 44(2B) …. 19.19, 19.21 s 44(3) …. 19.6 s 44(4) …. 13.47, 19.45 s 44(5) …. 2.12, 13.46, 13.47, 19.45, 19.49

s 44(6) …. 2.12 s 44(7)–(10) …. 19.46 s 44(7) …. 19.46, 19.47 s 44(7)(a) …. 19.46, 19.47 s 44(8) …. 19.46, 19.49 s 44(9) …. 19.46 s 44A …. 14.3, 14.7, 19.55 s 44A(2) …. 19.20 s 44AA …. 19.7 s 44AA(10) …. 19.7 s 44AA(11) …. 19.47 s 44AAA …. 19.3 s 45 …. 3.11, 12.17, 19.30, 19.52, 19.58, 19.60 s 46(3) …. 19.9 s 59 …. 20.1 s 59A …. 2.6 s 60 …. 9.7, 20.2 s 61 …. 13.19, 13.52, 20.3 s 62 …. 13.36, 20.3 s 62A …. 13.36, 20.3 s 62B …. 20.3 s 63 …. 20.2, 20.4 s 63(1) …. 20.4 s 63(2) …. 20.4 s 66 …. 20.5 s 66(2) …. 20.5

s 66A …. 20.5 s 67 …. 13.19, 20.6 s 67A …. 20.7 s 67(3) …. 20.6 s 68 …. 6.12, 20.7 s 68A …. 6.12 s 69 …. 20.8 s 69A …. 18.8 s 69A(2) …. 18.8 s 69BA …. 15.13 s 69B …. 18.1 s 69C …. 6.6, 6.8 s 247A(4) …. 13.23 Administrative Appeals Tribunal Regulation 2015 Pt 5 …. 6.12 Pt 6 …. 6.6 Pt 7 …. 6.12 reg 7 …. 14.1 reg 8 …. 2.2, 14.1 reg 9 …. 3.2 reg 10 …. 6.15 reg 11 …. 13.19 reg 12 …. 13.19 regs 13–15 …. 20.6 reg 13 …. 13.19 reg 14 …. 20.6

regs 16–18 …. 20.7 reg 19(4) …. 6.8 reg 20(2) …. 6.6 reg 21 …. 6.6 reg 21(h) …. 6.6 reg 22 …. 6.6 reg 23 …. 6.6 reg 24(1) …. 6.8 reg 24(2) …. 6.8 reg 25 …. 6.6 reg 28 …. 6.6 Administrative Decisions (Judicial Review) Act 1977 …. 3.8, 3.9, 3.23, 3.24, 3.28, 3.32, 6.17, 6.28, 7.3, 8.17, 12.14, 12.16, 13.24, 14.1, 15.18, 16.8, 16.19, 17.10, 18.1, 19.2, 19.11, 19.12, 19.13, 19.21, 19.57, 19.60 s 3(2) …. 3.21 s 3(4) …. 5.2 s 5 …. 16.23 s 5(1)(f) …. 19.61 s 5(1)(h) …. 19.61 s 6 …. 16.23 s 10 …. 3.20, 19.64 s 10(2)(b)(ii) …. 19.61 s 11 …. 6.17 s 13 …. 4.2, 17.15, 17.18 s 13(11) …. 4.2 s 15 …. 14.3 s 16 …. 19.60

s 16(1) …. 17.6 Airports Act 1996 …. 5.6 Archives Act 1983 …. 12.12 Australian Participants in British Nuclear Tests (Treatment) Act 2006 …. 9.42 s 31(c) …. 9.42 Australian Security Intelligence Organisation Act 1979 …. 12.18, 18.1 Bankruptcy Act 1966 s 60(2) …. 5.11 s 149N(2) …. 17.5 Broadcasting and Television Act 1942 …. 11.4 Civil Aviation Act 1988 …. 14.3, 15.21 s 30DC …. 9.39 s 30DE(2) …. 9.39 Civil Dispute Resolution Act 2011 s 15 …. 19.1 Compensation (Commonwealth Government Employees) Act 1971 …. 18.3 s 64 …. 18.2 s 64(4) …. 18.6 Constitution of Australia Act 1901 …. 19.57 s 75(v) …. 19.2 Corporations Act 2001 …. 18.1 Crimes Act 1914 …. 3.20 Customs Act 1901 …. 3.32, 5.7, 6.15 s 167 …. 9.34 s 167(3) …. 3.10 Customs Tariff Act 1987 …. 5.5

Disability Discrimination Act 1992 …. 3.8 Electoral Act 1962 …. 5.7 Evidence Act 1995 s 76 …. 9.28 s 119 …. 9.9 Export Market Development Grants Act 1997 …. 16.26 Family Law Act 1975 s 121 …. 9.1 Federal Circuit Court Act 1999 s 88F …. 11.18 Federal Circuit Court Regulations 2012 …. 19.5 Federal Court of Australia Act 1976 s 19 …. 19.1 s 24 …. 19.1, 19.30 s 24(1A) …. 19.21 s 27 …. 19.41 s 33 …. 19.59 s 37AF …. 11.18 s 37M …. 19.61 s 43 …. 19.53 Federal Court Rules 1979 O 21 r 1 …. 19.24 O 53 r 8 …. 19.25 Federal Court Rules 2011 Div 33.2 …. 19.4 r 1.04 …. 19.4

r 1.33 …. 19.27 r 4.12 …. 20.8 r 9.12 …. 19.14 r 6 …. 19.24 r 6.02 …. 19.24 r 6.03 …. 19.24 r 19.01 …. 19.25 r 19.02 …. 19.25 r 27.11 …. 19.7 r 27.12 …. 19.7 r 33.12(2) …. 19.5 r 33.12(2)(e) …. 19.22 r 33.12(4) …. 19.5 r 33.13 …. 19.19 r 33.15 …. 19.22 r 33.17 …. 19.55 r 33.17(b) …. 19.55 r 33.20 …. 19.22 r 33.29 …. 19.41, 19.46 r 33.30 …. 19.23 r 33.30(1) …. 19.23, 19.53 r 33.30(2) …. 19.23 r 33.30(4) …. 19.23, 19.53 r 33.30(5) …. 19.23 r 33.31 …. 19.25 r 33.32 …. 19.27

r 33.33 …. 19.27 r 36.09 …. 19.25 r 36.10 …. 19.25 r 39.11 …. 19.51 Form 9 …. 20.8 Form 75 …. 19.5 Form 78 …. 19.26 Federal Proceedings (Costs) Act 1981 …. 19.54 Fisheries Act 1952 …. 16.26 Freedom of Information Act 1982 …. 3.8, 7.4, 11.15, 12.1, 12.12, 13.9, 16.19, 16.22, 17.24, 18.1, 18.7, 19.11, 19.52 s 35(2) …. 7.4 s 56 …. 3.33 s 58B …. 11.5 s 58C …. 11.5 s 61 …. 9.38 s 63 …. 11.9 s 64 …. 11.9 Health Insurance Act 1973 …. 13.23 Income Tax Assessment Act 1936 s 16 …. 12.7 Judiciary Act 1903 …. 7.3, 12.16, 19.57 s 39B …. 8.17, 14.1, 15.18, 19.2, 19.11, 19.60, 19.62 Lands Acquisition Act 1989 …. 16.26, 18.1 s 22(5) …. 16.26 Migration Act 1958 …. 1.4, 1.7, 3.3, 3.20, 3.28, 4.1, 6.14, 7.9, 8.7, 8.11, 8.16, 9.1, 12.14, 12.20, 14.1, 15.3, 16.2, 16.26, 17.6, 17.14, 19.57, 20.3

Pt 5 …. 3.3, 8.12, 11.5, 11.7, 11.11, 13.14, 13.34 Pt 5, Div 5 …. 10.1 Pt 7 …. 3.3, 8.12, 11.5, 11.11, 13.2, 13.11, 13.14, 13.34 Pt 7, Div 4 …. 10.1, 11.7 s 5 …. 12.20 s 5E …. 19.56 s 51A …. 8.12 s 66 …. 4.1, 4.2 s 137S …. 4.1, 4.2 s 295 …. 4.1 s 338 …. 1.4, 3.3, 3.21 s 339 …. 3.3 s 347 …. 5.1, 6.2, 6.4, 6.8, 6.10, 6.12 s 348 …. 13.55 s 349 …. 3.28, 16.2 s 349(2) …. 16.2 s 349(3) …. 16.2 s 352 …. 6.5, 12.11 s 352(4) …. 12.11 s 353 …. 8.2, 9.1 s 357A …. 8.12, 12.19, 13.34 s 358 …. 10.1, 10.3 s 358(2) …. 12.11 s 359 …. 9.32, 12.11, 13.26, 13.28, 13.29 s 359(1) …. 13.28 s 359(2) …. 13.28

s 359A …. 10.1, 13.14, 13.55 s 359AA …. 13.55 s 359B …. 10.1 s 359C …. 13.14, 13.26 s 360 …. 9.36, 10.16, 13.2, 13.14, 13.55, 15.7 s 361 …. 13.26, 13.36 s 361(3) …. 13.36 s 362A …. 10.1, 13.34 s 362B …. 7.8, 9.36, 10.16, 13.49, 15.7, 15.8 s 363 …. 13.35 s 363(1)(d) …. 13.29 s 363(3) …. 13.26 s 363A(4) …. 13.26 s 364 …. 13.35 s 365 …. 11.5 s 366 …. 13.2, 13.40 s 366A(1) …. 13.2 s 366A(2) …. 13.2 s 366A(3) …. 13.2 s 366C …. 13.41 s 366D …. 13.44 s 368 …. 17.14, 17.15 s 368(2) …. 17.6 s 368(2A) …. 17.25 s 368D(1) …. 17.6 s 368D(2) …. 17.25

s 370 …. 20.3 s 371 …. 20.3 ss 375–376 …. 9.12 s 375 …. 12.19 s 375A …. 9.5, 11.11 s 376 …. 11.11, 12.19, 13.34 s 378 …. 11.11, 11.14 s 378(1) …. 11.7 s 379A …. 13.2 s 379AA …. 13.2 s 411 …. 1.4, 3.3, 3.21 s 411(3) …. 3.3 s 412 …. 5.1, 6.2, 6.4, 6.8, 6.10, 6.12 s 414 …. 13.55 s 415 …. 3.28, 13.29, 16.2 s 415(2) …. 16.2 s 415(3) …. 16.2 s 416 …. 13.11 s 418 …. 6.5, 12.11 s 420 …. 8.2, 9.1 s 422B …. 8.12 s 423 …. 10.1, 10.3 s 423(2) …. 10.1, 10.3 s 424 …. 9.32, 12.11, 13.26, 13.29 s 424(1) …. 13.28 s 424(2) …. 13.28

s 424A …. 10.1, 13.14, 13.28, 13.55 s 424A(1) …. 13.14 s 424A(1)(a) …. 13.14 s 424A(1)(b) …. 13.14 s 424AA …. 13.55 s 424B …. 10.1 s 424C …. 13.14, 13.26 s 425 …. 9.36, 10.16, 13.1, 13.14, 13.55, 15.7 s 426 …. 13.26, 13.36 s 426(3) …. 13.36 s 426A …. 10.16, 13.49, 15.7, 15.8 s 426B …. 9.36 s 427 …. 13.29, 13.35 s 427(1)(d) …. 13.29 s 427(3) …. 13.26 s 427(4) …. 13.26 s 427(6)(b) …. 13.44 s 427(7) …. 13.41 s 428 …. 13.36 s 429 …. 11.5 s 429A …. 13.2, 13.40 s 430 …. 17.14, 17.15 s 430(2) …. 17.6 s 430(2A) …. 17.25 s 430D(1) …. 17.6 s 430D(2) …. 17.25

s 432 …. 20.3 s 433 …. 20.3 ss 437–438 …. 9.12 s 437 …. 12.19 s 438 …. 9.5, 12.19 s 440 …. 11.7, 11.11 s 441A …. 13.2 s 441AA …. 13.2 s 462A …. 7.8 s 474 …. 19.56 s 474A …. 19.2, 19.56 s 476A …. 19.2 s 486I …. 19.22 s 499 …. 16.26 s 500 …. 12.19, 12.20 s 501 …. 16.26 s 503A …. 8.12, 12.20 Migration Regulations 1994 …. 1.4, 6.6 reg 4.02 …. 3.3 reg 4.02(5) …. 5.1 reg 4.10 …. 6.10 reg 4.11 …. 6.12 reg 4.12 …. 6.3 reg 4.13 …. 6.7 reg 4.14 …. 6.7 regs 4.23–4.25 …. 8.2, 10.15

reg 4.31A …. 6.3 reg 4.31AA …. 6.12 reg 4.31B …. 6.7 reg 4.31C …. 6.7 reg 4.32 …. 6.5 reg 4.33 …. 16.2 Military Rehabilitation and Compensation Act 2004 …. 18.2 Mutual Recognition Act 1992 …. 18.1 s 35 …. 18.7 National Health Act 1953 …. 16.26 Native Title Act 1993 …. 7.4 Ombudsman Act 1976 …. 16.19 s 10 …. 3.31 s 11 …. 20.1 s 25(5) …. 3.31 Paid Parental Leave Act 2010 …. 6.12, 19.3 Privacy Act 1988 …. 13.23, 13.34 Public Governance, Performance and Accountability Act 2013 …. 16.16 s 63 …. 16.17 Repatriation Act 1920 …. 3.26, 16.8 Research Involving Human Embryos Act 2002 …. 19.1 Safety, Rehabilitation and Compensation Act 1988 …. 3.17, 15.15, 15.20, 15.23, 16.7, 16.22, 18.2 s 62(1) …. 3.33 s 66 …. 8.3 s 66(1) …. 12.8

s 67 …. 19.13 Seafarers’ Rehabilitation and Compensation Act 1992 …. 18.2 s 67 …. 18.2, 18.3, 18.6 s 67(1) …. 18.2 s 67(2) …. 18.6 s 67(8) …. 18.2, 18.3, 18.6 s 67(8A) …. 18.2 s 67(9) …. 18.2, 18.3 s 70 …. 9.9 s 78(1) …. 3.33 Social Security Act 1947 …. 1.5, 3.32, 4.2, 5.7 Social Security Act 1991 …. 1.5, 3.8, 3.26, 16.17, 16.26 s 1223AB …. 14.11 Social Security (Administration) Act 1999 …. 1.5, 2.2, 4.1, 17.5 s 6A …. 3.30 s 126 …. 3.33 s 136 …. 4.1 s 138 …. 4.1 s 142 …. 5.1, 7.1 s 142A …. 7.1 s 145 …. 14.1 s 145(1) …. 10.15 s 145(5) …. 10.15 s 147 …. 3.4, 8.3, 13.25, 14.1, 16.3, 17.6 s 147, item 8 …. 6.11 s 148 …. 12.2

s 165A …. 13.25 s 166 …. 13.25 s 178 …. 4.2, 17.14 s 180 …. 3.4, 8.3 s 180, item 1 …. 6.5 s 181 …. 15.21 s 182 …. 3.33 s 192 …. 13.25 Superannuation Act 1922 …. 16.21 Superannuation Act 1947 …. 3.11, 3.14 Taxation Administration Act 1953 …. 6.3 s 14ZU(c) …. 16.9 s 14ZZA …. 14.3 s 14ZZB …. 14.3 s 14ZZB(1)(a) …. 14.3 s 14ZZC …. 6.2 s 14ZZE …. 11.5 s 14ZZF …. 12.12, 12.14 s 14ZZJ …. 17.14 s 14ZZK …. 6.4, 9.38, 16.9 s 14ZZM …. 14.3 Trans-Tasman Mutual Recognition Act 1997 …. 18.1 s 34 …. 18.7 Tribunals Amalgamation Act 2015 …. 1.3, 1.9, 15.13, 17.6 Sch 9 …. 1.10, 2.3 Veterans’ Entitlements Act 1986 …. 6.13, 6.15, 9.24, 9.35, 15.15, 16.26

s 119(1)(h) …. 9.39, 9.42 s 120(1) …. 9.39 s 120(2) …. 9.39 s 120(4) …. 9.39 s 120(7) …. 9.39 s 120A(2) …. 16.18 s 177(2)(a) …. 6.12

AUSTRALIAN CAPITAL TERRITORY Taxation (Administration) Act 1987 …. 6.15

VICTORIA Evidence Act 1958 …. 9.32

ABBREVIATIONS AAT: Administrative Appeals Tribunal AAT Act: Administrative Appeals Tribunal Act 1975 (Cth) AAT Regulation: Administrative Appeals Tribunal Regulation 2015 (Cth) AAT website: AD(JR) Act: Administrative Decisions (Judicial Review) Act 1977 (Cth) ADR: Alternative Dispute Resolution Amalgamation Act: Tribunals Amalgamation Act 2015 (Cth) Amalgamation Bill: Tribunals Amalgamation Bill 2014 (Cth) ASIC: Australian Securities and Investments Commission Federal Court Act: Federal Court of Australia Act 1976 (Cth) Judiciary Act: Judiciary Act 1903 (Cth) Migration Act: Migration Act 1958 (Cth) Migration Regulations: Migration Regulations 1994 (Cth) MRT: Migration Review Tribunal RRT: Refugee Review Tribunal Social Security Administration Act: Social Security (Administration) Act 1999 (Cth) SSAT: Social Security Appeals Tribunal

TABLE OF CONTENTS Preface Tables of Cases Table of Statutes Abbreviations

CHAPTER 1 ESTABLISHMENT OF TRIBUNAL Establishment Introduction Origin of Tribunal Establishment of Tribunal Amalgamation Amalgamated tribunals Objective of Tribunal Statement of objective Effect of objective on Tribunal’s proceedings Transitional arrangements

CHAPTER 2 MEMBERSHIP AND ORGANISATION Membership and Appointment: ss 5–10 Organisation Divisions: s 17A Assignment of members to Divisions: ss 17C–17L Arrangement of business of Tribunal: ss 18A–18C

Authorised members: s 59A Constitution of Tribunal Constitution for hearings Reconstitution of Tribunal: s 19D Constitution after appeal Reconstituted Tribunal may have regard to previous record: s 19D(4) Presiding on Tribunal Member presiding at hearing and powers: s 22

CHAPTER 3 JURISDICTION OF ADMINISTRATIVE APPEALS TRIBUNAL Decisions Subject to Review Conferral of Jurisdiction Conferral of jurisdiction by enactment: s 25 Migration Act decisions Social security decisions Modification of AAT Act in application to some jurisdictions Jurisdiction cannot be agreed by parties AAT empowered to determine jurisdictional issues Jurisdictional provisions strictly construed Compliance with formal conditions precedent to jurisdiction Jurisdiction to review validity of legislation under which decision made Jurisdiction to review validity of legislation conferring jurisdiction Jurisdiction to review invalid decisions Practical advantage of Lawlor principle Application of Lawlor principle

Jurisdiction to review refusal to act Jurisdiction where intermediate tribunal refuses jurisdiction Jurisdiction where matter also before court ‘Decisions’ Subject to Review by AAT Definition of ‘decision’ subject to review: s 3(3) Interpretation of ‘decision’ ‘Decision’ under AAT Act and AD(JR) Act compared Identification of decision Operative decision to be reviewed Review of components of decision Decision on reconsideration reviewable Automatic or self-executing decisions not reviewable Computer-made decisions Failure to take a decision: s 25(5) and Ombudsman Act 1976 (Cth) s 10 Rulings on ‘decisions’ No alteration to decision after appeal lodged: s 26 Decision Under Enactment Conferring Jurisdiction Act must confer power to review particular decision Jurisdictional rulings to be made at hearing

CHAPTER 4 NOTIFICATION OF REVIEW RIGHTS AND REASONS FOR DECISION Notice of Decision and Review Rights to be Given: ss 27A, 27B Person Affected by Decision May Obtain Reasons for Decision: s 28 Reasons not to be Furnished if Contrary to Public Interest: s 28(2) and (3)

CHAPTER 5 APPLICANTS FOR REVIEW Who May Apply for Review Persons who may apply for review: ss 27, 27AA Applications by organisations: s 27(2) Determination of standing: ss 31 and 44(2) Change in legal qualification for standing When Interests Affected Meaning of ‘interests affected’ Persons held to be affected Applicant has to be affected Loss of Standing Applicant no longer affected by decision Death of applicant Effect of Administration, etc, Orders on Standing

CHAPTER 6 INITIATION OF REVIEW Manner of Applying for Review: s 29 Special provisions relating to applications Applications where more than one decision Statement of reasons in support of application Notice of application Application fees: s 69C, Reg Pt 6 Effect of failure to pay fee Time within which application to be made: s 29(2)–(6) Giving or lodging application for review: s 68 Extension of time to apply: s 29(7)–(10)

Applications for extension of time Extension of time: persons affected by decision Approach to applications for extension of time Factors referred to in extension of time cases Further applications for extension of time Extension of time where previous review application withdrawn Effect of lodging application for review

CHAPTER 7 PARTIES TO REVIEW APPLICATIONS: AAT Parties to Proceeding Before AAT: ss 30 and 30A Discretion to Allow Person to Become Party Persons Joined as Parties When Interests ‘Affected’ Rights of Parties Joined Failure of Party to Proceeding to Appear: s 42A(2) Death of Party to Proceedings

CHAPTER 8 PROCEDURE AT HEARING: GENERAL PROCEDURAL ISSUES Procedure of Tribunal: Pt 4 Basic Provision: s 33 Provisions Requiring Special Procedures Obligations of Parties: s 33(1AA), (1AB) Arrangements Between and Concessions by Parties Procedural Fairness General

Hearing Migration and Refugee decisions Bias General Rule in Browne v Dunn

CHAPTER 9 PROCEDURE AT HEARING: EVIDENTIARY MATTERS AAT Not Bound by Rules of Evidence: s 33(1)(c) Effect of Rules of Evidence Evidence and Natural Justice Rulings on Evidentiary and Procedural Matters Hearsay evidence Incriminating evidence Legal professional privilege Without prejudice privilege Public interest privilege Parole evidence rule Rule in Jones v Dunkel Royal Commission reports Findings of other bodies Effect of findings by court in other proceedings Going behind order Evidence challenging criminal conviction Criminal statistics Textbooks on criminal behaviour

Medical dictionaries Hospital records Medical statements of principle Trade survey Policy statements, etc Expert evidence Opinion rule Trade usage Technical words Statutory interpretation generally Tribunal may Inform Itself on any Matter: s 33(1)(c) Reliance by Members on Own Expertise Onus of Proof No formal onus on applicant Onus arising from facts Failure to appear or give evidence Use of term ‘onus’ Legislation affecting onus Standard of Proof Application of Briginshaw Test

CHAPTER 10 PROCEDURE AT HEARING: PREHEARING AND SPECIAL PROCEDURES Access to Evidence Prior to Hearing Procedure in Lieu of Pleadings Statements of Facts and Contentions

Alternative Dispute Resolution (ADR): ss 34–34H Powers of AAT Preliminary conferences Mediation Other forms of dispute resolution Provisions applying to all forms of ADR Directions Hearings (s 33(1A), (2), (2A)) Directions as to Evidence Preliminary Hearings Setting Down for Hearing Expedited Hearing Review Without Hearing Special Review Procedures

CHAPTER 11 PROCEDURE AT HEARING: FORM OF HEARINGS Hearings to be in Public: s 35 Limitation of Public Hearings Circumstances where private hearing permitted Position of legal advisers Legislative provisions requiring private hearing Restrictions on Publication of Evidence, Documents, etc: s 35 (3) and (4) Basis for non-disclosure order Public interest Emergency Orders for Non-Disclosure Prohibition on Disclosure of Documents, Evidence to Parties

Exercise of power generally Restrictions on disclosure in Migration and Refugee Division proceedings Access by legal representatives and advisers Content of reasons Prohibiting Publication of Names Power to prohibit publication of name Application of power to prohibit publication of name Prohibition of publication of name on appeal

CHAPTER 12 PROCEDURE AT HEARING: INFORMATION BEFORE AAT Lodging of Documents with AAT: ss 37, 38 Section 37 or ‘T’ Documents Supplementary s 37 Documents Ongoing Requirement to Lodge Documents Description of Documents to be Lodged Direction to Lodge other Documents Lodging of Documents to which Privilege Applies Access by Applicant to Documents Lodged with AAT Migration and Refugee Division Modification of Operation of s 37 Subsidiary Matters Relating to s 37 Statement of Reasons Non-Disclosure of Certain Information: ss 36–36D, 39A–39B General Disclosure of information or documents: ss 36, 36B

Answering questions: ss 36A, 36C Security Division: ss 39A, 39B Migration and Refugee Division

CHAPTER 13 PROCEDURE AT HEARING: HEARING BEFORE TRIBUNAL Appearance and Representation: s 32 General Migration and Refugee Division Social Services and Child Support Division: ss 32, 39AA Unrepresented applicants Role of representatives of parties Representation of decision-maker tribunal: Hardiman principle Directions at Hearing: s 33 Presentation of Case Opportunity to Make Submissions: s 39 Operation of s 39 Re-agitating facts dealt with in previous decision Examples of the operation of s 39 Social Services and Child Support Division Migration and Refugee Division Security Division Examination on Matter not Disclosed Before Hearing Summoning of Witnesses: s 40A, Regs 11 and 12 General power to issue summons Discretion to issue

‘Fishing’ summons Test for issuing Effect of other legislation Other issues Social Services and Child Support Division Migration and Refugee Division Investigation by Tribunal General approach Effect of decisions relating to migration tribunals procedure The AAT’s role: adversarial system Inspection Orders: s 40B General right of inspection Social Services and Child Support Division Migration and Refugee Division Administration of Oath: s 40(2), (3) Taking of Evidence: s 40 Expert Evidence Concurrent Evidence Taking of ‘View’ Telephone and Video Hearings: s 33A Interpreters and People with Disabilities Cross-Examination General position Security Division Migration and Refugee Division Reopening Hearing

Remitted Matter: Procedure Review in Absence of Party: ss 40 and 42A General Migration and Refugee Division Manner in Which Questions to be Decided Where Disagreement: s 42 Adjournment of Proceedings: s 40 Record of Proceedings Hearing on Papers: s 34J General Migration and Refugee Division

CHAPTER 14 STAY OF DECISION Stay of Decision: s 41, Regs 7 and 8 General power to make stay order Power applicable only to reviewable decisions Modification of stay power Making and Effect of Stay Orders Approach to making of stay orders Stay orders where payments involved Form of stay order Effect of stay order

CHAPTER 15 P2 AAT ON REVIEW: ACTIONS PRIOR TO HEARING Determination of Scope of Review: ss 25(4A), 33 Power of AAT to Dismiss Application: ss 42A, 69BA Dismissal by Consent: s 42A(1)

Dismissal Following Withdrawal of Application, etc: s 42A(1A), (1AA), (1B) Failure to Appear: s 42A(2), (7) General Migration and Refugee Division Reinstatement of Application Dismissed for Failure to Appear: s 42A(8), (8A), (9) Dismissal because Decision not Reviewable: s 42A(4) Dismissal for Failure to Proceed: s 42A(5) Reinstatement of Application: s 42A(10) Extension of Operation of s 42A: s 69BA Dismissal of Frivolous or Vexatious Applications: s 42B Jurisdiction Principles on which order may be made Futility of continuing application Supplementary orders Appeals New Application Consent Decisions: s 42C Remittal of Matter for Further Consideration: s 42D

CHAPTER 16 POWERS AFTER HEARING Review by AAT: General Powers: s 43 Introduction Migration and Refugee Division Social Services and Child Support Division General operation of s 43

Tribunal May Exercise all Powers of Decision-Maker No Grounds for Review Specified Review of Taxation Objection Decisions AAT Limited to Review Functions Only AAT No Greater Power or Discretion than Decision-Maker AAT Not Bound by Applicant’s Grounds for Review or Submissions at Hearing Effect of Decision-Maker’s Decision and Procedures on AAT Referral of Matter to Ombudsman Act of Grace and Compensation Payments Waiver of Debts Due to Commonwealth AAT to Apply Law as at Date of Review Date as at Which AAT to Consider Facts The law: Shi’s case Decisions applying this approach Examples of application of law Intervention on Common Law Grounds for Review Effect of Government Policy Legality Issues and Policy Legislative-Approved Policy: Directions, Guidelines, etc Review of Content and Application of General Policy and Ministerial Statements The AAT and policy: general approach Difference between political and departmental policy Other considerations Effect of Government Statement of Meaning of Legislation

CHAPTER 17 DECISIONS OF AAT Nature of Exercise of Power of Review Precedent and AAT Decisions Date of Effect of AAT’s Decision: s 43(5A), (5B), (5C) and (6) Estoppel, Res Judicata and AAT Decisions Problems with application of doctrines Inapplicability of concept of estoppel Effect of previous decisions Raising New Matters: Anshun Estoppel Fraud on Tribunal Security Appeals Decisions: s 43AAA AAT to give Reasons for Decision: s 43(2), (2A), (2B) Form and Content of Reasons for Decision AAT’s obligation Matters to be included in reasons Use of standard paragraphs Inadequacy of Reasons is Error of Law Guidance on Form of Reasons Alteration of Reasons — Slip Rule: s 43AA Functus Officio When has a decision been made Jurisdictional error Reopening Case Return of Documents Release of Documents Lodged in Tribunal Proceedings

‘Harman’ rule Special circumstances justifying release Practice Direction

CHAPTER 18 COSTS Costs: General Costs in Compensation Decisions Power to award Refusal to award costs Test for award of costs Costs Under Other Acts Amount of Costs and Taxation of Costs: s 69A

CHAPTER 19 APPEALS FROM AAT DECISIONS Appeals to Federal Court: s 44 General Migration and Refugee Division Social Services and Child Support Division Procedure for Appeals Method of Commencement of Appeal Constitution of Court on Appeal: s 44(3) Transfer of Appeals to Federal Circuit Court: s 44AA Appeals from Federal Circuit Court Documents to be Sent to Court: s 46 ‘Decision’ Appealable Identification of appealable decision

Application of Chaney’s case test Exceptions to Chaney’s case test Other means of appeal Party Only May Appeal Intervention on Appeal No Appeal Against Favourable Decision Anshun Estoppel and Tribunal Appeals Continuing Suppression of Name Time to Institute Appeal: s 44(1), (2A), (2B) Time limit for appeal Extension of time to appeal Court’s approach to extension of time applications Appeal to State Question of Law Objection to Competency of Appeal: r 33.30 Vexatious Litigant: r 6 Security for Costs Discontinuance of Appeal: r 33.31 Dismissal or Adjournment of Appeal: rr 33.32, 33.33 Appeal Must be on Question of Law Jurisdiction for appeal Question of law cannot be agreed by parties Question of law contrasted with error of law Appeal right to be confined Nature of AAT confines appeal Cases Holding Question of Law Identification of question of law

Statutory construction Administrative law principles Inadequacy of statement of reasons Fact–law interplay Tribunal procedure and delay Appeal based on lack of evidence or weight of evidence Admission of New Evidence on Appeal Raising New Matters on Appeal Court Must Set Aside Erroneous Decision Order of Court on Successful Appeal Power of court Findings of fact Limits on fact finding Order Where Only One Result Open Remitting Case to AAT Consent Orders Award of Costs on Appeal General principles Federal Proceedings (Costs) Act Effect of Institution of Appeal: s 44A Migration Appeals Decisions excluded from appeal Appeals against Migration and Refugee Division decisions Reference of Question of Law to Court: s 45 Appeal to High Court

Review Under AD(JR) Act, Judiciary Act AD(JR) Act Judiciary Act Fraud on Tribunal Collateral Attack

CHAPTER 20 MISCELLANEOUS MATTERS: AAT Advisory Opinions by AAT: s 59 Protection of AAT Members, Officers, etc: s 60 Failure to Comply with Summons; Refusal to be Sworn or Answer Questions: ss 61, 62, 62A, 62B Contempt of AAT: s 63 Confidential Information not to be Disclosed: ss 66, 66A Fees for Witnesses: s 67, regs 13–15 Manner of Service: ss 67A, 68, regs 16–18 Legal or Financial Assistance: s 69 Appendices Index

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CHAPTER 1 ESTABLISHMENT OF TRIBUNAL ESTABLISHMENT Introduction 1.1 The Administrative Appeals Tribunal (AAT) was established in 1975. Its function is to review on their merits certain decisions taken by the Commonwealth Government and make what the Tribunal considers to be the correct and preferable decision. A general right of appeal does not lie to the AAT from all governmental decisions, but only from those where the right of appeal is specifically given. On a review, the Tribunal has all the powers of the original decision-maker. It can affirm the decision under review, substitute a new decision, vary the decision or remit it to the decision-maker for reconsideration. This broad power is different from that of other review bodies. Courts can only consider the legality of a decision. The Ombudsman can only recommend a change in a decision.

Origin of Tribunal 1.2 The establishment of the AAT was recommended initially in the Commonwealth Administrative Review Committee Report 1971 (Kerr Committee Report) Parliamentary Paper No 14 of 1971. The need for its appointment was affirmed by the Final Report of the Committee on Administrative Discretions (Bland Committee Final Report) Parliamentary Paper

No 316 of 1973. The basis for these recommendations was a concern that review of government decisions through the parliament and the courts was inadequate as to its content and inaccessible to most persons affected. What was needed, it was said, was an accessible, informal and relatively cheap means of obtaining a review of the merits of a decision, not just its legality. [page 2] There was a further concern that where tribunal review of Commonwealth decisions was available, this was through a number of separate bodies whose availability was not widely known in the community. There was also a considerable difference in the procedures and standard of performance between these bodies. The Committees saw the appointment of a single, high level tribunal that could review decisions on their merits as the means to overcome these concerns and provide an appropriate avenue for review of the broad range of Commonwealth Government decisions that affect members of the community. The tribunal would follow procedures that would make it accessible in terms of the way in which a person affected by a decision could present their case and also in terms of the costs involved. The members of the tribunal would be selected on the basis of their expertise in the areas that would come before them for review but there would be an emphasis on the appointment of lawyers to the senior positions in the tribunal. In recognition of the constitutional constraints on Commonwealth review bodies, it was necessary to provide for a right of appeal on questions of law to a court. For a collection of the relevant reports and other documents see Robin Creyke and John McMillan, The Making of Commonwealth Administrative Law: The Kerr, Bland and Ellicott Reports, Centre for International and Public Law, Faculty of Law, Australian National University, Canberra, 1996.

Establishment of Tribunal 1.3 The government’s response to these recommendations was to establish the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT commenced operation on 1 July 1976. The original legislation establishing the AAT was based on the recommendations of

the Kerr and Bland Committees and largely followed the form of tribunal recommended. The main exception was to the one tribunal model that had been recommended. This was not followed in regard to review of decisions made in the areas of migration, welfare support and veterans’ benefits. In these areas specialist tribunals were established. This separate structure continued until 2015 when the migration and welfare support tribunals were brought within the ambit of the AAT by the operation of the Tribunals Amalgamation Act 2015 (Cth) (Amalgamation Act). The effect of this amalgamation is to be reviewed after the end of three years from the commencement of the amalgamation — 1 July 2015. Appeals relating to veterans’ benefits decisions continue to be dealt with by a separate tribunal, the Veterans’ Review Board, subject to a right of appeal in certain circumstances to the AAT. [page 3]

AMALGAMATION Amalgamated tribunals Migration Tribunals 1.4 The Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) were statutory bodies established by the Migration Act 1958 (Cth) (Migration Act) providing a final, independent merits review of visa and visarelated decisions made by the Minister for Immigration and Border Protection or by officers of the Department of Immigration and Border Protection, acting as delegates of the Minister. The MRT reviewed a wide range of decisions in relation to visas other than protection visas: Migration Act s 338. The RRT reviewed decisions in relation to protection visas: Migration Act s 411. The migration tribunals’ jurisdictions, powers and procedures were set out in the Migration Act and the Migration Regulations 1994 and these are continued with modifications following amalgamation with the AAT. Unless amended, they will determine the manner in which proceedings in the Migration and Refugee Division of the AAT are to be conducted. However, the distinction between the

procedures that were prescribed for the MRT and RRT and that for the AAT are not great. In the absence of an express legislative negation, the common law requirements relating to procedures and decision-making by tribunals generally were applicable to the AAT and the migration tribunals. As a result, many of the comments in this book relating to the procedure to be followed by the AAT are based on Federal Court decisions relating to the migration tribunals. Unless there is legislation expressly relating to it, AAT procedure based on pre-amalgamation jurisprudence will, in most cases, be that which will also be followed in the proceedings to be conducted in the Migration and Refugee Division. In 2014 the government established a fast-track mechanism for the processing of protection claims of people who arrived in Australia by boat without a visa between 13 August 2012 and 1 January 2014. These people cannot apply to the Refugee Review Tribunal for review. Instead, the decision on their status may be referred to the Immigration Assessment Authority (IAA) for a limited form of review. The IAA will continue to function within the Migration and Refugee Division of the Tribunal.

Social Security Appeals Tribunal 1.5 The Social Security Appeals Tribunal (SSAT) was established by Ministerial Instruction in 1975 and given legislative status by the Social Security Act 1947 (Cth) in 1988. The SSAT’s existence was continued by the Social Security Act 1991 (Cth) and then by the Social Security (Administration) Act 1999 (Cth) which is the Act which sets out most of the provisions relating to its operation which have not been superseded by the AAT Act. [page 4] The SSAT reviewed on their merits decisions made by the Department of Human Services about: social security payments; family assistance payments; child support; payments under the paid parental leave scheme; and student assistance payments.

The majority of decisions reviewable by the SSAT had first to be reconsidered internally by an authorised review officer before they could be appealed to the SSAT. This requirement is continued following amalgamation with the AAT.

OBJECTIVE OF TRIBUNAL Statement of objective 1.6 The relevant legislation establishing the AAT and each of the tribunals now amalgamated with it included a statement that, in carrying out their functions, the tribunals were to provide a mechanism of review that is ‘fair, just, economical, informal and quick’. This statement of the objective of the respective tribunals had drawn some comments as is set out in 1.7–1.9. The objective in so far as it applies to the amalgamated Tribunal has been amended to provide: 2A In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal. This restatement of the objective will apply to proceedings of all the Divisions of the AAT, thus encompassing migration and social welfare decisions.

Effect of objective on Tribunal’s proceedings 1.7 The previous requirement to provide a mechanism of review that is fair, just, economical, informal and quick was inserted into the AAT Act in 2005 by the inclusion of s 2A. It was also the formula used in stating the objectives of the migration tribunals and the SSAT. The provision has been the subject of some judicial and tribunal commentary.

The High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 at [49] said of such a provision in its application to the RRT that the words used were ‘intended to be facultative, not [page 5] restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals’. The AAT considered that it always carried out its functions having regard to the precepts inserted in the Act by the inclusion of s 2A. It also asserted that the five exhortations were not necessarily able to be met individually in all cases. Quickness does not necessarily result in fairness or justice. Deputy President Forgie said in Re The Australian and Department of Families, Community Services and Indigenous Affairs [2006] AATA 755; (2006) 92 ALD 179 at [58]: In some instances, the five qualities that the Tribunal is exhorted to aspire to may appear difficult to achieve simultaneously. On their face, for example, it may appear difficult to be fair and just while being quick. It may appear difficult to be quick when, regardless of what is said in s 2A, the Tribunal must adhere to the rules of procedural fairness. Despite appearances, it may be that all lead to the same result for: … adherence to the requirements of natural justice [or procedural fairness] will ultimately promote administrative efficiency because of the greater public satisfaction and the fewer grievances that will result from the higher quality of decisionmaking thereby produced. [SD Hotop, Principles of Australian Administrative Law, 6th ed, Law Book Co, Sydney,1985 at 171] Furthermore, notions of efficiency incorporate fairness, justice and economy for it is not possible to produce satisfactory results with an economy of effort and a minimum of waste without achieving fairness, justice and economy. Looking at it another way, producing a decision or an outcome with less effort than is required to achieve it fairly and to achieve a

reasoned decision addressing the appropriate issues is to waste the resources of the Tribunal, both at first instance and on any remittal, the resources of the appellate courts and those of the parties. Gray J, speaking of the like provision applicable to the Refugee Review Tribunal said: ‘The requirement of [the Migration Act] that the tribunal pursue the objective of providing a mechanism of review that is quick cannot be relied on in disregard of the requirements (of at least equal weight) that the tribunal pursue the objective of providing a mechanism that is fair and just’: SBLF v Minister for Immigration and Citizenship [2008] FCA 1219; (2008) 103 ALD 566 at [28]. See also the comments of President Downes J in Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264; (2005) 91 ALD 435 at [12]. 1.8 The general issues relating to case management and their impact on particular proceedings were discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14. The comments of members of the court at [30] and [98] are pertinent to the management of AAT applications and were applied in Re May and Military Rehabilitation and Compensation Commission [2011] AATA 697; (2011) 126 ALD 600. The High Court emphasised that speed and efficiency, in the sense of minimum delay and expense, are essential to the just resolution of proceedings. Proper opportunity should be given to the parties to put their case but limits have to be [page 6] placed on the steps that parties may wish to pursue as part of the presentation of their case. Delay and cost are to be taken into account. Justice Lindgren in Sun Zhan Qui v Minister for Immigration and Multicultural and Indigenous Affairs [1997] FCA 324 said in a passage which was subsequently quoted in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 at [109] and in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 297 ALR 225 at [12]: A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in [the section],

would not necessarily establish that the [Tribunal] had not been pursuing the specified objective. In Li’s case, French CJ said at [12] that the objectives ‘are not expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them’. However, Gageler J in that case at [98] cautioned: The MRT does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The MRT does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the MRT in fact did; and (ii) that unreasonableness, or neglect, on the part of the MRT is shown to be material to the outcome of the review that the MRT has undertaken in fact. The exhortation in s 2A in its previous form was said to be applicable to procedural issues only. It did not apply to the substantive issue that the Tribunal was required to resolve: Re Pescott and Inspector-General in Bankruptcy [2013] AATA 680; (2013) 137 ALD 128 at [70]. The application of the objective has arisen in relation to applications for an adjournment of proceedings before the Tribunal. For a general discussion of s 2A in that context with reference to the High Court discussion above, see Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 126 ALD 396 at [33]ff. See also 13.51–13.52 in relation to adjournments. In Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170 at [9] the Tribunal observed that the requirement to provide a ‘mechanism of review’ to achieve the objective stated in s 2A meant that the obligation extended beyond giving mere procedural directions. 1.9 The AAT has taken into account the exhortation in the section. However, it also sees its role as being to provide a means for citizens to challenge government decisions. As the discussion in this book of the procedures followed

by the Tribunal indicates, the Tribunal has leaned towards protecting the individual when applying the direction in the section. However, the procedures set out in the Tribunal’s General [page 7] Practice Direction providing a mechanism for the expedited review of certain decisions which was adopted in its original form prior to amalgamation as a measure to further the requirement of s 2A should be noted: see 10.15. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill) on which the Amalgamation Act is based observed that the inclusion of the expanded objective in the revised s 2A ‘reflects the diversity of the amalgamated Tribunal’s jurisdiction, which would range from simple to highly complex matters, and reiterates the importance of the Tribunal continuing to be, and to be seen to be, an independent forum for review of the merits of Government decisions’. Perhaps the most significant change is the inclusion in s 2A of para (c) declaring that the Tribunal must provide a mechanism for review that is proportionate to the importance and complexity of the matter. This is clearly a direction to the Tribunal to temper its procedural practices to the subject matter before it. It has probably been included as a result of some views that the AAT has acted too formally in its hearings and it is not wanted to import this approach into other areas of jurisdiction, particularly not social welfare appeals. However, the Tribunal would deny the accuracy of the assumption, which has been made ever since its establishment. The Tribunal strongly asserts that it adapts its procedures to fit the case. It seems doubtful whether the altered statement of the Tribunal’s objective will have any greater practical effect than the formula used to date. All the separate tribunals as they existed before amalgamation would have said that they carried out their work in accordance with the precepts set out in the expanded statement of the objective. In its future exercise of jurisdiction, the AAT is likely to point to the problems relating to the application of the previous statement of the objective that are set out above. There are inherent contradictions in the statements. The Tribunal will continue to see its primary duty as being to make

the correct and preferable decision and to achieve that outcome by means that are fair and just to the parties.

Transitional arrangements 1.10 Detailed arrangements are included in Sch 9 to the Amalgamation Act to manage the transition of the amalgamated tribunals into the AAT structure. They are complex and should be read carefully if an issue arises. The general intention is to interfere as little as possible with the work of the amalgamated tribunals by bringing the members into the AAT and continuing proceedings there to the extent practicable within the structure of the AAT. In broad and simplified terms the transitional provisions provide: members of the amalgamated tribunals become members of the AAT at a generally comparable level; members so translated have the same powers and obligations that they previously had; [page 8] applications made to the amalgamated tribunals are taken to be applications made to the AAT and will be transferred to and heard in the relevant Division of the AAT; where possible, applications that are part heard will continue to be heard in the AAT by the member previously hearing the application; anything done for a proceeding in an amalgamated tribunal will be taken to have been done under the AAT Act; summonses, etc, issued by an amalgamated tribunal are taken to have been issued by the AAT and should be complied with accordingly; where a person had a right to apply to an amalgamated tribunal, that right became a right to apply to the AAT but not so as to permit duplicate applications; time limits applicable to making applications to an amalgamated tribunal are

applicable to applications to the AAT and run from the date that was relevant to the amalgamated tribunal; and notification of a right to apply for review of a decision to an amalgamated tribunal are to be taken to be notification of a right of appeal to the AAT. While it is expected that the AAT will be generous in its management of these transitional arrangements in accordance with the requirements of its objective, they nonetheless represent the law on the rights of the parties and will have to be applied accordingly. The parties before the Tribunal will have to ensure that they bring themselves within the terms of the provisions.

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CHAPTER 2 MEMBERSHIP AND ORGANISATION MEMBERSHIP AND APPOINTMENT: SS 5–10 2.1 The categories of membership of the AAT are set out in ss 5A and 6 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal consists of a President, Deputy Presidents, Senior Members and other Members. There are two levels of Senior Members and three of Members. All categories of members are appointed by the Governor-General: s 6(1). The President must be a Federal Court judge: s 7(1). In addition to the President, a judge may be appointed as a Deputy President of the AAT: s 6(2). It is competent for a person who is a judge of a court created by the Commonwealth Parliament to be appointed to such an office: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 at [24]; (1996) 189 CLR 1 at 17; 138 ALR 220 at 231. The fact that there may be constraints placed upon the exercise by the Tribunal of its functions is not in itself sufficient to make the function incompatible with its being performed by a judge: Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241; 103 ALD 66. A judge is able to decline appointment to the Tribunal if he or she considers that it would be incompatible with his or her position. The qualifications for appointment for all categories of membership of the AAT are set out in s 7 of the AAT Act. Section 8 specifies that the term of appointment of all members is for such period of at most seven years as is

specified in the instrument of appointment. Section 9 specifies the remuneration and allowances to be paid to members. Section 10 permits the Minister to make acting appointments to the AAT. [page 10]

ORGANISATION Divisions: s 17A 2.2

The AAT exercises its powers and functions in the following Divisions: Freedom of Information Division; General Division; Migration and Refugee Division; National Disability Insurance Scheme Division; Security Division; Social Services and Child Support Division; Taxation and Commercial Division; and any other prescribed Division.

The Veterans’ Appeals Division is the only additional Division that has been prescribed: Administrative Appeals Tribunal Regulation 2015 (Cth), reg 8. (The previous provisions whereby the Tribunal was constituted as the Small Taxation Claims Tribunal in relation to certain applications to review taxation decisions were repealed in 2015.) In general, the procedure to be followed on an appeal in each of the Divisions of the Tribunal is as set out in the AAT Act. However, the procedure for review of decisions being conducted in the Migration and Refugee Division is set out in the migration legislation. It does not differ greatly from the procedure for determining applications in the other Divisions but that legislation must be looked to for the legal basis for the procedure. The Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) and associated social and child welfare legislation also qualify the general procedure

set out in the AAT Act to a limited extent. The procedure for review of decisions heard in the Security Division is set out in the AAT Act. There are a small number of other variants in some of the legislation that provides for the review of particular decisions. See further 8.3.

Assignment of members to Divisions: ss 17C–17L 2.3 The Attorney-General must assign non-presidential members to a particular Division or Divisions of the AAT. A member so assigned can participate in the exercise of the powers of the AAT only in the Division to which he or she is assigned. Consultation and expertise qualifications apply to the assignment of members to some Divisions (ss 17D–17H). However, s 17J preserves the validity of an exercise of the powers of the AAT if these provisions are not complied with. (It should be noted that the validation provision does not apply to other failures to comply with formal requirements, only those referred to in ss 17D–17H. [page 11] However, see Acts Interpretation Act 1901 (Cth) s 33AB in relation to other defects in appointments.) The Attorney-General may also assign a Deputy President to be the head of one or more Divisions (s 17K) and a Deputy President or Senior Member to be the deputy head of one or more Divisions (s 17L). Again qualifications apply to these assignments. The intention underlying these provisions is that review will be undertaken by members who are familiar with the decisions reviewable within the Divisions to which they are assigned. Under the transitional provisions in Sch 9 of the Tribunals Amalgamation Act 2015 (Cth) (Amalgamation Act), the existing assignment of members of the AAT to Divisions is to continue. Members of the tribunals being amalgamated into the AAT will be transferred to the relevant Division of the AAT that is taking over the work of their tribunal and will thereby bring to it their existing expertise. The creation of the positions of Division heads and deputy heads will enable

high-level members to assist the President to manage the extended jurisdiction of the Tribunal (ss 17K(6), 17L(6)). It is expected that the President will delegate a number of functions to the head of a Division.

Arrangement of business of Tribunal: ss 18A–18C 2.4 Under s 18A the President is responsible for ensuring the expeditious and efficient discharge of the business of the AAT. He or she is also responsible for ensuring that the Tribunal pursues the objective set out in s 2A (see 1.6). This latter responsibility is an addition to the requirements previously included in the AAT Act. It serves to emphasise the importance placed on the restated objective. However, see 1.7–1.8. The President is given power under s 18B to give written directions as to: (a) (b) (c) (d) (e)

the operations of the Tribunal; the procedure of the Tribunal; the conduct of reviews by the Tribunal; the arrangement of the business of the Tribunal; the places at which the Tribunal may sit.

While this is a broader range of matters than were spelled out previously, it does not give greater powers than were exercised in practice by the President in the past. The directions may still only relate to operational matters and do not include policy. Pursuant to the section, the President has issued various practice directions, guides and guidelines. These are reproduced on the Tribunal website. Reference is made where appropriate in the text that follows to the matters contained in the directions. [page 12] The Tribunal has produced jurisdiction-specific guides, notably a Guide to the Workers’ Compensation Jurisdiction and a Guide to the Social Security System. These guides are also available on the Tribunal website.

It can be expected that the President will continue to issue directions and other aids to the practice of the Tribunal pursuant to the powers in s 18B. The President’s Direction Allocation of Business to Divisions of the AAT which is reproduced on the AAT website specifies the Division in which certain proceedings are to be exercised. Apart from those specific allocations, proceedings will be exercised in the General Division. The allocation is by obvious subject area except for proceedings in the Taxation and Commercial Division. Reference should be made to the Direction in regard to the proceedings that are to be heard in this Division. 2.5 There are some significant provisions relating to Presidential Directions additional to those previously included in the Act. Section 18B now provides: (2) A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal. (3) If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding. The explanatory memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill) said that subs (2) ‘is intended to prevent Tribunal decisions being overturned due to minor non-compliance with directions given under the section. However, the Tribunal would nevertheless be required to comply with the provisions of the Act and the requirements of administrative law’. No comment is provided in regard to subs (3). Presumably it has been included to make it clear that the Tribunal does not have to provide formal directions if it is applying a Presidential Direction. Also new is subs (4) which empowers the making of directions relating to the provision of documents under ss 37 and 38AA of the AAT Act. This power has been exercised to make a Practice Direction Lodgement of Documents under Sections 37 and 38AA of the AAT Act. See further Chapter 12.

Authorised members: s 59A 2.6 Many functions vested in the President under the Act may also be performed by ‘authorised members’. Section 59A of the AAT Act empowers the President to authorise a member to perform functions specified in particular provisions of the Act. It is necessary to look at the relevant provisions of the Act

to ascertain whether it permits action to be taken by an authorised member. It is then necessary to ascertain whether the member purporting to exercise the power is authorised to act under that particular section. [page 13]

CONSTITUTION OF TRIBUNAL Constitution for hearings 2.7 Section 19A of the AAT Act empowers the President to give written directions in relation to the members who are to constitute the Tribunal for the purposes of a proceedings and, if there is more than one member, the member who is to preside. Section 19B(1) limits a Tribunal to not having more than three members, not more than one of whom may be a judge. The President has exercised the power in s 19B to make the Direction Constituting the Tribunal which is reproduced on the AAT website. Clause 4.1 of the Direction provides: The President or his or her delegate may have regard to a range of matters in deciding who is to constitute a Tribunal for the purposes of a proceeding, including the following: (a) any legislative requirements relating to constituting the Tribunal; (b) the degree of public importance of the matters to which that proceeding relates; (c) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; (d) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; (e) the degree of financial importance of the matters to which the proceeding relates; (f) the degree of complexity of the matters to which that proceeding relates, including whether the proceeding raises novel legal issues or

(g) (h)

(i)

(j) (k)

(l)

(m)

issues in relation to which conflicting views have been expressed in previous decisions of the Tribunal; the nature and likely complexity of the hearing; the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have particular knowledge, expertise or experience in relation to the matters to which that proceeding relates; whether there are any factors in relation to the proceeding that would make it appropriate for a member of a particular gender to conduct the review; the availability of particular members for the purposes of the proceeding; whether any particular member has an interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to the proceeding; whether a member has conducted an ADR [alternative dispute resolution] process in relation to the proceeding and whether the applicant or the decision-maker has notified the Tribunal under section 34F of the AAT Act that he or she objects to that member participating in the hearing; and such other matters as the President or his or her delegate considers relevant. [page 14]

Clause 3.9 of the Direction permits a party to a proceeding to write to the Tribunal within the time specified in the clause to suggest that a Tribunal with particular knowledge, expertise or experience be constituted for the purposes of a proceeding. Reasons must be provided in support of the proposal. As noted above, such a request should be taken into account when the Tribunal is being constituted but it does not bind the President’s discretion. Clause 3.10 makes special provision for proceedings in the Migration and Refugee Division relating to the gender of the members who should constitute the Tribunal. Notwithstanding the general power of the President to constitute the Tribunal

in each case, a number of the Acts which vest jurisdiction in the AAT make provision for the Tribunal to be constituted in a particular way. These requirements are noted in the Table of Jurisdiction on the AAT website and in the Presidential Direction, Attachment A, ‘Special Requirements for Constituting Tribunals’. Section 19C makes special provision for constitution of the Tribunal for reviewing taxing of costs: see 18.8. Sections 19E and 19F specify the constitution of the Security Division of the AAT for the purpose of dealing with security appeals. If a Tribunal member has conducted an alternative dispute resolution process in relation to a proceeding and a party notifies the Tribunal before the hearing that he or she objects to that member participating in the hearing, that member cannot be a member of the Tribunal as constituted for the purposes of the proceeding: s 34F.

Reconstitution of Tribunal: s 19D General 2.8 Section 19D and the Presidential Direction Constituting the Tribunal which is reproduced on the AAT website deal with the circumstances in which a Tribunal may be reconstituted. Under s 19D(1) at any time after a direction is given as to the persons who are to constitute the Tribunal for the purposes of a proceeding but before the hearing commences, the President or his or her delegate may revoke the direction and give a further direction as to who will constitute the Tribunal. After a hearing has commenced or has been completed but before a decision has been given, the Tribunal may be reconstituted in two situations: where a member of the Tribunal is unavailable (s 19D(2)(a)); and where the Tribunal is reconstituted to achieve the expeditious and efficient conduct of the proceedings (s 19D(2)(b)). Clause 5.1 of the Presidential Direction states that the matters relating to the constitution of the Tribunal referred to in 2.7 should be taken into account in determining the members of the reconstituted Tribunal.

[page 15] The power to reconstitute a Tribunal after a proceeding has commenced does not apply to a proceeding in the Security Division: s 19D(3). See ss 19E and 19F for reconstitution in that Division. A direction to reconstitute a Tribunal after the proceeding has commenced can only be given if the President is satisfied that it is in the interests of justice to do so and has consulted each member who would cease to be a member as a result of the direction: s 19D(6).

Member unavailable 2.9 A member may become unavailable and thereby attract the operation of s 19D(2)(a) in three circumstances: if he or she stops being a member (presumably on the expiry of their term of appointment or death); if he or she is unavailable for the purposes of the proceedings; or if the President directs the member not to continue to take part in the proceeding. For an example under the former provisions of the AAT Act of a member ceasing to be available see Re BHP Petroleum Pty Ltd and Collector of Customs (1987) 11 ALD 413 where proceedings were completed by the remaining two members after the third died after the hearing. The President reconstituted the Tribunal to enable this to occur. Some guidance on the meaning of not being available to continue as a member for the purposes of the proceedings can be obtained from R v Kelly; Ex parte Victorian Chamber of Manufactures (1953) 88 CLR 285. The High Court considered that reasons beyond the control of the member, such as illness, were obvious cases. More difficulty was seen to arise where the member, albeit acting in good faith, formed the view that he or she was unable to sit for some reason. No final conclusion was expressed by the High Court in relation to such a case. Much turns, as it did in that case, on the provisions of the relevant Act determining the composition of the body concerned. However, if a member declares himself or herself unavailable and declines to sit, it is difficult to conclude other than that he or she ‘is not available’. Section 19D(5) provides that the President is not to give a direction to a

member not to take part in the proceeding unless he or she is satisfied that it is in the interests of justice to do so and the member concerned has been consulted by the President. The explanatory memorandum to the Administrative Appeals Tribunal Amendment Bill 2005 (Cth) which first introduced a like provision into the Act gave as examples of when such a direction might be given that the member has a conflict of interest or has made statements that could prejudice the impartiality of the proceedings. An AAT member may be disqualified from sitting on a particular application, and presumably thereby become unavailable, because of actual or perceived bias: see 8.13. Prior to 2005 it had been left to the member to make a judgment of possible bias if this were raised as an issue. If the member declined to recuse himself or [page 16] herself, a court could so direct. The matter could now, it seems, be determined by the President in advance of any ruling by a court. An application for reconstitution of a Tribunal on the ground of bias was made in Re PMCC/WJPL and Australian Prudential Regulation Authority [2009] AATA 801; (2009) 112 ALD 210. However, the President was of the view that the member’s previous involvement in the proceedings before the Tribunal could not lead to a perception of bias and declined to make the order sought. He also took into account the matter referred to below, the expeditious and efficient conduct of the proceedings. The member’s familiarity with the issues before the Tribunal in the matter was a reason for his continuing to be involved in the application.

Expeditious and efficient conduct of proceeding 2.10 Under s 19D(2)(b) the President may add, remove or substitute a member or members if he or she thinks that it is in the interests of achieving the expeditious and efficient conduct of the proceeding. The explanatory memorandum to the Administrative Appeals Tribunal Amendment Bill 2005 (Cth) referred to the need to bring knowledge and expertise to the resolution of the proceeding as an example where a direction might be made by the President under this power. Another example given is of the removal of a member where

the matter is not as complex as first thought and can be resolved without expert assistance.

Reconstitution at request of party 2.11 The provision that was formerly in the AAT Act, s 21A, that permitted a party to request the reconstitution of a Tribunal was omitted in 2015. The explanatory memorandum to the Amalgamation Bill says that this was to simplify the Act and that ‘in practice, the President would carefully consider any such requests and this does not need to be provided in legislation’. See Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 121 ALD 242 approving the decisions in Re Kowalski and Repatriation Commission [2009] AATA 807 and Re Mellor and Australian Postal Corporation [2010] AATA 288; (2010) 51 AAR 498 as examples of the application of the former provision.

Constitution after appeal 2.12 It is common, following a successful appeal from a decision of the AAT to the Federal Court on a question of law, for the matter to be referred back to the AAT for reconsideration. The President must determine the composition of the Tribunal for the rehearing. A problem relating to the composition of the AAT on a rehearing alluded to in some earlier decisions has been overcome by the inclusion in the AAT Act of s 44(6) which provides that, on a remitter, the AAT need not be constituted for the hearing by the members who made the decision to which the appeal related. In fact, the AAT as originally constituted is probably functus officio and a new direction [page 17] as to who constitutes the Tribunal should be given by the President: Re Trimboli and Secretary, Department of Social Security (1990) 21 ALD 554. Section 44(6) does not preclude the court exercising the power in s 44(5) to direct that the Tribunal be differently constituted: White v Repatriation Commission (1995) 39 ALD 42 at 45. The Federal Court has given a strong indication that, in the absence of a direction in the court’s order that a matter be reheard by the AAT as previously

constituted, a different membership should be convened for the rehearing: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39. While that case was concerned with the Broadcasting Tribunal, the AAT was referred to in the judgment as an exemplar of this practice. Its appropriateness to the AAT has been endorsed in a number of cases: see, for example, Australian Postal Corporation v Lucas (now Owen) (1991) 33 FCR 101 at 110; 25 ALD 266 at 274; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426. The basis for so acting is that of appearance and the perception of the parties, not the capacity of the Tribunal to deal fairly with the claims after an appeal. Where the AAT has made comments on the evidence, the case for a hearing by a differently constituted Tribunal is the stronger: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal, above; Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533. However, it must be clear that any statements of the Tribunal at the previous hearing do constitute a comment on the evidence as distinct from reciting the submissions of the parties: Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing [2011] AATA 196; (2011) 121 ALD 304. In Strang and Siddha Yoga Foundation v Department of Immigration and Ethnic Affairs (AAT, Dwyer SM, AAT No 10622, V95/1367, 19 December 1995, unreported (noted [1996] Admin Review 26)) the AAT, as previously constituted, on reference back of an application held that it should deal with the matter as it concerned an issue not originally dealt with and there was advantage in the Tribunal that was familiar with the case also considering the new issue. A like view was expressed in Comcare v Hill (1999) 56 ALD 487. Lynch v Minister for Human Services and Health (1995) 61 FCR 515; 39 ALD 501 is a useful example of the court indicating that the Tribunal from whose decision the appeal was brought should continue to deal with the application as previously constituted. The Tribunal had indicated that it did not have jurisdiction to deal with the matter before it. The court disagreed and, as the Tribunal had heard the evidence, it was appropriate that it continue to hear the appeal. See further Re Allan and Repatriation Commission [2003] AATA 994; (2003) 77 ALD 140, particularly the cases mentioned at [15]. The High Court in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518; 72 ALD 577 upheld an appeal from a decision of a Full Federal Court that had referred a matter back to the Refugee Review Tribunal as originally constituted. The Federal Court had said that it was doing so to avoid jeopardising findings favourable to the applicant made by the

tribunal. The High Court said that such a direction misunderstood the basis on which a decision had to [page 18] be reached following the upholding of an appeal and reference back. The whole issue had to be reconsidered and the tribunal was entitled to come to a different view on the factual issues. In Re Allan, above, the President of the AAT made the valid point that it is essential that the Federal Court clearly state the ground on which an AAT decision is being set aside so that the President will be able to make an informed decision whether or not to reconstitute the Tribunal with new membership. This is particularly pertinent where a decision is set aside and referred back for rehearing by consent. The consent order must disclose the defect on which the parties rely for the setting aside of the original decision. 2.13 It can be seen that the weight of judicial authority probably leans towards reconstitution with new members because of the emphasis given to the likely perception of the successful appellant that the original members of the Tribunal will not be able to deal with the issues fairly if the matter is remitted to them. However, the Presidential Direction Constituting the Tribunal which is reproduced on the AAT website takes a different approach. It notes at clauses 6.2–6.3: 6.2 In general, the President or the Division Head will direct that a case be remitted to the Tribunal as previously constituted unless the circumstances indicate that it would be preferable for the Tribunal to be differently constituted. Remitting a case to the Tribunal as previously constituted will usually cause it to be finalised more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal. 6.3 In deciding whether a case should be remitted to the Tribunal as previously constituted or to a differently constituted Tribunal, matters to which the President or the Division Head will generally have regard include: (a) whether the member or members who previously constituted the

Tribunal is or are available to hear and decide the case again within a reasonable period of time; (b) whether a real question of actual or apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal; (c) whether the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal; (d) any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again. The content of the Direction will now need to be taken into account by a court in determining the wording of its order referring a case back to the Tribunal. It will also be necessary for the court to have regard to the Tribunal’s objective in s 2A (see 1.6) as this has clearly influenced the Presidential Direction. See further generally on the question of reconstitution of the Tribunal, Mick Batskos, ‘Natural Justice and the Constitution of Tribunal Membership’ (1998) 16 AIAL Forum 22. [page 19] See 13.46–13.47 for the procedure of the Tribunal following referral back of an application after an appeal.

Reconstituted Tribunal may have regard to previous record: s 19D(4) 2.14 Section 19D(4) of the AAT Act provides that a Tribunal that has been reconstituted may have regard to any record of the proceeding before the Tribunal as previously constituted (including the evidence taken in the proceeding). This applies to a Tribunal reconstituted on the initiative of the President and following the direction of a court.

PRESIDING ON TRIBUNAL Member presiding at hearing and powers: s 22 2.15 The Presidential Direction Constituting the Tribunal has the effect that, at a hearing, the Tribunal is to be presided over by, in order of precedence, the President, a judge, a Deputy President or a Senior Member. If no person with those qualifications is a member of the particular Tribunal, a non-presidential member who is directed by the President is to preside. A number of sections of the Act make special provision for the member presiding at the hearing of a proceeding before the AAT to exercise certain powers. These provisions are as follows: section 33(2): the member presiding may give directions as to the procedure to be followed at or in connection with the hearing of a proceeding; section 40(2), (3), (4): the member presiding may require a person appearing before the Tribunal to give evidence on oath or to make an affirmation and may administer any such oath or affirmation; and section 42(2): if a two-member Tribunal cannot agree on the outcome, the view of the member presiding prevails. See ss 19E(4) and 19F(4) in relation to presiding in proceedings in the Security Division.

[page 20]

CHAPTER 3 JURISDICTION OF ADMINISTRATIVE APPEALS TRIBUNAL DECISIONS SUBJECT TO REVIEW 3.1 The Administrative Appeals Tribunal (AAT) has no general review powers; it may only review those decisions in relation to which it has been given jurisdiction. Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) enables an enactment to provide for the review of decisions made under that or another enactment: see further 3.2. A full list of the jurisdiction of the AAT is set out on the AAT website. To determine whether the AAT can review a decision there are three matters that must be considered: does an enactment confer jurisdiction; has a ‘decision’ been taken; and has that decision been taken under the enactment conferring jurisdiction?

CONFERRAL OF JURISDICTION Conferral of jurisdiction by enactment: s 25 3.2 It is a fundamental of the AAT’s jurisdiction that it must be conferred by an enactment. It has no general jurisdiction. The AAT cannot hear common law

claims for damages even though they may be based on government action that the Tribunal is authorised to review. Accordingly, it has been held that the AAT had no jurisdiction to determine a claim for damages against Centrelink for alleged inaccurate and negligent advice, because the AAT has no inherent jurisdiction, and can only exercise the jurisdiction conferred on it by an enactment: Re Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309. [page 21] The enactments that may confer jurisdiction on the AAT are defined by s 3 of the AAT Act to mean Acts, Ordinances of Territories (other than the ACT and the Northern Territory) and instruments (including rules, regulations and bylaws) made under an Act or such an Ordinance. The enactment may provide for the review of a ‘decision’ made in the exercise of powers conferred by the enactment or by another enactment having effect under the enactment that confers the jurisdiction. Special provision is also included to permit appeals from certain decisions under Norfolk Island legislation. The decisions that are reviewable are specified in reg 9 of the Administrative Appeals Tribunal Regulation 2015 (Cth) (AAT Regulation). Where an enactment makes provision for the review of decisions, the enactment is required to specify the person or persons to whose decision the provision applies: s 25(3)(a). The reference to ‘person’ is to be read in the light of s 3(2) of the AAT Act which brings decisions made by boards, committees and other unincorporated bodies constituted by two or more persons within the scope of the expression. The conferral of jurisdiction to review decisions of a person may be expressed to apply to all decisions of that person or only to a class of decisions and may be made subject to conditions: s 25(3)(b) and (c). Where provision is made for the review of decisions of a person, the power of review extends to decisions made by a delegate of the person or by another person authorised to exercise the powers of that person. But it does not extend to a decision made by a delegate of a person where the delegate is acting in his or her own right and not as a delegate: Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261. Where the provisions specifying the person

whose decisions are subject to review refer to the person by reference to being the holder of a particular office, the review power extends to reviewing decisions taken by a person for the time being acting in or performing the duties of that office: s 25(3A); see also Acts Interpretation Act 1901 (Cth) ss 20, 33–34A. The definition of ‘proceeding’ in s 3 of the Act is not itself a source of jurisdiction: Re David and Federal Court of Australia [2010] AATA 999; (2010) 119 ALD 180. Where a person who holds a particular office has made a decision that is subject to review but is no longer holding or performing the duties of that office, the decision is taken to have been made by the person for the time being holding or performing the duties of the office or, if there is no such person, the decision is taken to have been made by such person as the President or an authorised member specifies: s 25(7).

Migration Act decisions 3.3 The decisions under the Migration Act 1958 (Cth) (Migration Act) that are reviewable by the Tribunal following the amalgamation with it of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) are specified in ss 338 and 411 of that Act and reg 4.02 of the Migration Regulations 1994 (Cth). They are referred to respectively as Part 5-reviewable decisions and Part 7-reviewable [page 22] decisions. Under ss 339 and 411(3) the Minister may issue a conclusive certificate preventing review of a decision that would otherwise be reviewable if the Minister believes that it would be contrary to the national interest to change the decision or for the decision to be reviewed. As noted above, the Migration Act prescribes the procedure to be followed on reviews of migration decisions. This procedure where different from that applicable in the General Division of the AAT is noted where relevant in this book. Reference should also be made to the Practice Directions: Migration and Refugee Matters; Conducting Migration and Refugee Reviews; and Prioritising Cases in the Migration and Refugee Division which are published on the AAT website.

Social security decisions 3.4 Decisions which were formerly reviewable by the Social Security Appeals Tribunal (SSAT) are now reviewable in the Social Services and Child Support Division of the AAT. Such reviews are referred to as AAT first reviews. The former proceedings that could be brought as an appeal from the SSAT to the AAT will continue to be available. They are referred to as AAT second reviews. The procedure to be followed in relation to each form of review is, in general, that applicable to applications dealt with in the General Division of the AAT. However, the general procedure set out in the AAT Act is modified in respect of first review proceedings by s 147 of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) and second review procedures are modified by s 180 of that Act. These modifications are noted in the relevant context of this book. Reference should also be made to the Practice Direction: Child Support Review Directions and to the Guide to Social Services and Related Jurisdiction which are published on the AAT website.

Modification of AAT Act in application to some jurisdictions 3.5 Where an enactment invests the AAT with jurisdiction to review decisions taken under the enactment, the enactment may also make special provision regarding the qualifications of a non-presidential member who can hear a review application and may modify the operation of certain sections of the Act: s 25(6). The sections of the Act which may be modified are: section 27: specification of the person who may apply to the AAT for review of a decision; section 29: manner of applying for review of decisions and time within which to apply for review; section 29AB: power of AAT to require decision-maker to amend statement of reasons; section 29AC: AAT to give notice of application; section 32: right of representation before the AAT;

[page 23] section 33: procedure of AAT; section 35: whether hearings are to be held in public; section 41(1): application is not to stay implementation of decision; section 43(1): powers of the AAT upon review of a decision; and section 43(2): AAT to give reasons in writing for its decision. Where an enactment conferring jurisdiction on the AAT has modified the Act, reference is made to that fact in the Table of Jurisdiction on the AAT website.

Jurisdiction cannot be agreed by parties 3.6 In R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225 the High Court held that it was not possible for the parties to agree, and the Student Assistance Review Tribunal to accept, that it had jurisdiction to hear an application. It had to reach its own independent conclusion on the issue. This approach was followed, insofar as the AAT was concerned, by the Federal Court in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195; 3 ALN N66. The Tribunal had to be satisfied that a statutory precondition to its jurisdiction existed regardless of what was put to it by the parties. One party cannot waive a prerequisite to the seeking of a review of a decision and the party purporting so to act will not be stopped from raising the jurisdictional point later in the proceedings: Re Bowen and Repatriation Commission (1994) 32 ALD 700; Re Lynch and Minister for Health, Housing, Local Government and Community Services (1995) 38 ALD 401. For examples of rulings on the inability of the parties to agree on jurisdictional issues see Re Nicholls and Secretary, Department of Primary Industry (1988) 22 ALD 596 at 602; Re Pek and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 598; (2011) 126 ALD 585 at [6]. Jurisdictional provisions are strictly construed: see 3.8–3.9. This approach applies to all Divisions of the AAT.

AAT empowered to determine jurisdictional

issues 3.7 The AAT has the competence, authority and responsibility to determine whether it has jurisdiction to review a decision. The Tribunal therefore has power to inquire into the existence of the facts necessary to found its jurisdiction: Re Adams and Tax Agents Board (1976) 1 ALD 251; Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 at 468; 153 ALR 248 at 256–7. As to the validity of the legislation conferring jurisdiction, see 3.13. However, the AAT, like any administrative body, cannot determine its jurisdiction conclusively. Only a court can do that: Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 60 ALD 342 at [48]. Accordingly, a ruling by a tribunal that it has jurisdiction to determine an appeal can be revisited by a later tribunal and a different conclusion can be reached: Duarte v Australian Maritime Safety Authority [2010] FCAFC 127; (2010) 188 FCR 429; 273 ALR 253 at [37]–[38]. [page 24] It is appropriate when considering an application for an extension of time to lodge an application with the Tribunal (see 6.15) for the Tribunal to assure itself that it has jurisdiction to deal with the application. To act otherwise could result in a waste of resource in undertaking a hearing: Re Hempel and Civil Aviation Safety Authority [2006] AATA 188; (2006) 90 ALD 118 at [14].

Jurisdictional provisions strictly construed 3.8 The fact that the AAT has no general review power has resulted in its taking a careful approach to the interpretation of provisions conferring jurisdiction upon it. In Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261 the AAT declined to review a decision taken by an officer of the Commissioner despite the fact that it was empowered to review decisions of the Commissioner. The officer was a delegate of the Commissioner and the AAT is empowered by virtue of s 25(3A) of the AAT Act to review decisions of delegates of a person whose decisions are reviewable. However, the evidence revealed that the officer had taken the challenged decision in his own right and not in his capacity as delegate. In these circumstances, the Tribunal ruled that it

had no power to review the decision. A like approach was taken in Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255. There the Tribunal declined jurisdiction on the basis that a refusal to delete a condition of a licence was not a ‘variation’ of the licence — the terminology used to confer jurisdiction on the AAT. See also Re Leonhard Kurz (Aust) Pty Ltd and Collector of Customs (Vic) (1982) 5 ALN N104; Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 at 122. In Re Rana and Defence Force Retirement and Death Benefits Authority [2009] AATA 404; (2009) 109 ALD 650 a requirement that the Authority could only act after receiving notification of a decision could not be satisfied on the basis that the failure to notify it constituted a ‘constructive’ negative decision. Accordingly, no appeal could be brought to the Tribunal as there was no basis for a decision being taken by the Authority. Where an Act has been amended to vest jurisdiction in the AAT to review decisions, it will not apply to decisions that have been made before the date of the amendment unless it is clear that the amendment is intended to operate retrospectively: Re Confidential and Social Security Appeals Tribunal [2008] AATA 1008; (2008) 106 ALD 613 at [40]–[41]. Where, as is common in legislation vesting jurisdiction in the Tribunal, there is an enumeration of the decisions that can be reviewed, the failure to include a decision will be read on an expressio unius basis: the decisions not listed are not reviewable. For an example, see Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197; (2003) 38 AAR 270: a large number of the decisions that could be taken under the Freedom of Information Act 1982 (Cth) were specified as being reviewable by the AAT but a decision to transfer a request for access to documents was not one of these. Accordingly, the Tribunal held that it had no jurisdiction to review such a decision. [page 25] Where the Tribunal’s jurisdiction is based on the existence of certain facts the Tribunal has to be satisfied of the existence of those facts if it is to enter upon a review. However, where there has been an intermediate review of an original decision, the facts established at that review may be sufficient to provide the jurisdictional base: Re Confidential and Industry Research and Development Board [2006]

AATA 387; (2006) 90 ALD 396; Re Confidential and Executive Director, Social Security Appeals Tribunal [2010] AATA 726; (2010) 118 ALD 229. The decision must have been taken under the legislation conferring jurisdiction and not under a contract that the legislation might permit to be made: Re Carson and Employment Services Regulatory Authority (1997) 46 ALD 435 following the decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) that are discussed in Australian Administrative Law (LexisNexis) at [317A]–[317D]. The position is similar if the decision is taken under state legislation, even though that legislation may complement a Commonwealth Act: Re Hitchcock and Environment Protection Authority [2011] AATA 117; (2011) 121 ALD 156. The decision sought to be reviewed must have been made explicitly under the legislation permitting review and not some legislation relating to decision-making generally. So a decision made under the Social Security Act 1991 (Cth) that it was claimed breached the Disability Discrimination Act 1992 (Cth) was not reviewable as review was not available of decisions under the latter Act: Arifin v Decision Maker [2013] AATA 502. 3.9 The Tribunal may only have power to review one aspect of a decision, for example: Re Nipperess and Australian Community Pharmacy Authority (1995) 39 ALD 685: power to review a refusal to grant an approval did not give the AAT power to review the grant of such an approval on the application of a person affected by the grant; Re Cameron and Child Support Registrar [2005] AATA 445; (2005) 87 ALD 244: power to review refusal of extension of time does not permit review of grant of such an extension; Re VAC and Australian Prudential Regulation Authority [2001] AATA 820; (2001) 66 ALD 656: power to review a decision confirmed or varied on internal review did not extend to the review of the revocation of the decision; and Re World Wide Fund for Nature Australia and Australian Pesticides and Veterinary Medicines Authority [2013] AATA 329; (2013) 135 ALD 590: the power to vary the conditions of an approval was different from the power to vary the approval itself.

A decision determining the method whereby tax is calculated does not form part of the assessment to tax and cannot be reviewed under the power of the AAT to review an assessment (Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Federal Commissioner of Taxation [2003] FCA 794; (2003) 75 ALD 321); likewise, a refusal to grant an extension of time to make an election as to the manner in [page 26] which certain share options should be taxed (Isaacs v Commissioner of Taxation [2006] FCAFC 105; (2006) 151 FCR 427; 95 ALD 530) or a roll-over option exercised: Re Phelps and Commissioner of Taxation [2009] AATA 678; (2010) 115 ALD 20. These decisions were part of the administrative process that preceded the assessment function. (However, the decisions might be reviewable under the AD(JR) Act: see Isaacs, above, at [44].) See generally Commissioner of Taxation v Administrative Appeals Tribunal [2011] FCAFC 37; (2011) 191 FCR 400; 276 ALR 231 in relation to the taxation decisions that are and are not reviewable. This strict approach to the interpretation of provisions conferring jurisdiction is confined to the interpretation of the jurisdictional provision itself. Whether or not the action taken under the provision constitutes a ‘decision’ within the meaning of the Act has seen a generous attitude on the part of the AAT: see 3.22–3.24.

Compliance with formal conditions precedent to jurisdiction 3.10 Where an Act conferring jurisdiction on the AAT to review decisions requires certain formalities to be complied with before an application for review can be made, the AAT cannot normally waive compliance with those formalities. So in Re Carey and Collector of Customs (Qld) (1978) 1 ALD 455 it was held that the failure of an applicant to observe the requirements of s 167(3) of the Customs Act 1901 (Cth) that a person protesting at an obligation to pay duty must write ‘Paid under protest’ on the entry document, deprived the AAT of its jurisdiction to review the decision of the Collector. See also Re Azsco Overseas Sales Pty Ltd and

Collector of Customs (NSW) (No 1) (1981) 3 ALN N42. In that case it was also observed that a purported acceptance of a defective endorsement by a customs officer could not remedy the defect or waive the jurisdictional requirement. See further Re Sterns Playland Pty Ltd and Collector of Customs (1981) 3 ALN N156. On the other hand, the Federal Court in BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155; 32 ALD 17 was more generous than the AAT in determining whether a letter to the Minister was sufficiently formal to constitute an ‘application or request’. A requirement that a decision must be reviewed by a first-tier tribunal before coming to the AAT has been strictly applied: Re Advocacy for the Aged Association Inc and Secretary, Department of Social Security (1991) 25 ALD 535; Re Bowen and Repatriation Commission (1994) 32 ALD 700; Re Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134; (2002) 71 ALD 401). Likewise, where the legislation conferring jurisdiction requires an applicant first to seek reconsideration or internal review of the decision: Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84; Re Reynolds and Defence Force Retirement and Death Benefits Authority [2000] AATA 142; (2000) 58 ALD 539; Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798; (2014) 64 AAR 177. These decisions are particularly relevant to social security appeals which require internal consideration before a first review by the AAT can be sought. [page 27] A requirement for reconsideration before an appeal can be lodged cannot be put to one side because the applicant has been misinformed of his or her review rights by the decision-maker: Re Panaga Pty Ltd and Secretary, Department of Workplace Relations [2009] AATA 753; (2009) 112 ALD 164. Where decisions involve separate issues, each must be reconsidered before an appeal can be brought. It is not possible to add an appeal in respect of a decision that has not been reconsidered to an appeal relating to a decision that has been reconsidered even though the decisions may involve similar issues: Re YWXJ and Commissioner of Taxation [2010] AATA 326; (2010) 115 ALD 457 (taxation objection decisions); Re Beatson and Military Rehabilitation and Compensation Commission [2010] AATA 190; (2010) 114 ALD 431 (claim for compensation for different injury than that which had been reconsidered).

This can be of particular significance in cases where there are multiple decisions, such as in compensation cases where there are claims for different injuries arising from the one event. The Lees case, above, makes clear that if reconsideration is a prerequisite to jurisdiction, the claim under review must have been reconsidered separately from any other claims. See, for example, Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220; 137 ALD 522. However, it has been held that the AAT has jurisdiction over a claim that has not been the subject of reconsideration where the claim for compensation extended to that claim, but the intermediate decision-maker refused or omitted to reconsider it. In Re Berry and Comcare (2006) 91 ALD 453, the claim for compensation was in terms wide enough to include a claim that employment was a contributing factor to the contraction, rather than the aggravation, of the asserted medical conditions, and the Tribunal decided that it could deal with the claim, notwithstanding that there had been no decision on the former issue. The Tribunal said at [57] that ‘it would be procedurally inefficient and inappropriate’ for it to be unable to deal with this further aspect of the claim. Similar issues of jurisdiction arise in compensation cases where primary and secondary decision-makers reject liability for compensation, and so do not consider issues relating to the compensation that might have been payable if liability were established. In Re Cavanagh and Comcare [2008] AATA 553; (2008) 106 ALD 143 the Tribunal held that it had jurisdiction to determine compensation for permanent impairment notwithstanding that Comcare had rejected liability for the claimed condition and therefore had not made a decision on liability for its aftermath. The Tribunal found that sufficient notice and information had been given to Comcare of the nature of the claimed conditions, including in particular the psychological component of the claim, and that a failure by the primary or secondary Comcare decision-makers to determine liability for the claimed permanent disability did not deprive the AAT of jurisdiction. Similarly in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 a Full Federal Court decided that [page 28] the AAT could determine compensation notwithstanding that there had been no

decision on reconsideration on compensation because liability had been rejected. The court distinguished Lees, above (at [27]), on the grounds that in that case, the employee had made a claim for liability, but had not made a ‘compensation’ claim, or at least had not supported such a claim with essential information, and so the rejection by Comcare of liability did not constitute an implied rejection of the compensation claim. The court said that under the military scheme, claims for acceptance of liability and compensation could be made together, and such a joint application required a decision on both liability and compensation. The applicant had lodged such a joint application, and it was held that an adverse finding on liability implied also an adverse finding on compensation, and so an appeal to the AAT could therefore consider both elements of the original claim. See also Re Kermode and Military Rehabilitation and Compensation Committee [2012] AATA 188; (2012) 135 ALD 158 at [6]. Although the AAT has jurisdiction in situations such as those referred to in the above cases, it remains necessary for the Tribunal to decide in each case whether to proceed to determine all issues before it (as occurred in Cavanagh, above, where adequate notice had been given of the claim that had not been the subject of reconsideration, and all relevant information was before the Tribunal). If it is proposing to consider aspects of a claim beyond the primary claim it is necessary for it to spell out clearly the connection between the injuries being considered: Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245 but contrast Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147. It may be in cases of this kind that it is more appropriate to remit the issue not determined on reconsideration to the authority for further consideration under s 42D: see 15.22.

Jurisdiction to review validity of legislation under which decision made Act 3.11 In Re Adams and Tax Agents Board (1976) 1 ALD 251 it was suggested to the AAT that the enactment that conferred the power to make a decision from which an appeal could be brought to the Tribunal was unconstitutional. The then President of the AAT, Brennan J, held that, having regard to its powers on review of a decision as set out in s 43 of the Act, the AAT should accept the

constitutional validity of the enactments conferring review powers on it. Accordingly, if an administrative decision was to be attacked on the ground of constitutional invalidity, it would be necessary to bring the challenge before a court. The Tribunal in Re Zimmax Trading Co Pty Ltd and Collector of Customs (NSW) (1979) 2 ALD 120 referred to this view but, perhaps significantly, did not immediately endorse it. It was a view that the Tribunal would ‘have needed to consider carefully’ but was not necessary to pursue in the particular case. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) [page 29] 2 ALD 1 at 7, Bowen CJ did not appear to see the issue in quite so definitive terms as Brennan J had stated them. His Honour said: It may be that the nature of the legal question raised will be such that the Tribunal, although it has jurisdiction, may consider it proper that the applicant should first approach a court for decision of the question. It may, in its discretion, decide to defer hearing the application until this is done. An appeal involving a constitutional question might well be such a case. However, this would not be because the Tribunal lacked jurisdiction. There would seem to be a considerable difference between this and Brennan J’s observations in Adams, above. The latter does seem to contemplate that the AAT has no jurisdiction to hear the argument. Bowen CJ contemplated that it might be wise for the issue to be dealt with by a court — and s 45 of the AAT Act (see 19.58) permits the Tribunal to refer a question of law to the Federal Court — but he did not deny the AAT the right to consider the argument. The position of the Tribunal was summarised by DP Thompson in Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90 at 96: The AAT undoubtedly has power to consider and form an opinion as to the validity or invalidity of an Act of Parliament, just as any other person responsible for the administration of that Act may; but that is the full extent of its power. If it comes to the conclusion that the Parliament did not have power to enact the Act or any part of it, it has no power, in my view, to make its decision on the basis that the Act or that part of it is invalid.

This view was endorsed by the Tribunal in Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437 and Re Sawmillers Exports Pty Ltd and Minister for Resources (1996) 41 ALD 657. See also Re Kavanagh and Department of Employment, Education and Training (Blow DP, AAT No 9359, T93/12, 9 March 1994, unreported); Administrative Law Bulletin, No 106, August 1994 at [3634]. The Tribunal in Re Purvis and Dairy Adjustment Authority [2005] AATA 233; (2005) 86 ALD 713 at [138] was prepared to consider the constitutionality of the legislation on which the decision that it was reviewing was based while acknowledging that it could not determine that question. It found that there was no merit in the constitutional argument. If it had determined otherwise, presumably it would have felt constrained not to reach a final conclusion on the matter until a court had had an opportunity to pronounce upon the question. See also Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385; 97 ALD 426 and Sunol v Collier [2012] NSWCA 14; (2012) 258 FLR 282 where the position of the New South Wales Administrative Decisions Tribunal in relation to the issue is discussed by the Court of Appeal. It will not be every constitutional question that places the AAT in the dilemma referred to above. In Re R M and Commissioner for Superannuation (1984) 6 ALD 272 the Tribunal was confronted with an argument that a change in the Superannuation Act 1947 (Cth) depriving the applicant of certain rights was an acquisition of property from her and therefore had to be on just terms. The Tribunal rejected the [page 30] argument but in relation to its jurisdiction to deal with the point it said that a distinction was to be drawn between determining the constitutional applicability of legislation to particular facts and the constitutionality of legislation. There was no problem where the AAT was only being asked to consider whether a statutory power was being exercised within constitutional limits. The position was usefully summarised by DP Jarvis in Re Walsh and Commissioner of Taxation [2012] AATA 451; (2012) 130 ALD 200 at [19] as follows (citations omitted): (a)

the tribunal should approach matters on the assumption that the relevant legislation is constitutionally valid;

(b) the tribunal is empowered to consider the constitutional validity of legislation in order to determine whether or not it has jurisdiction to review the reviewable decision, and if it considers that the legislation is unconstitutional, it should decline to exercise the jurisdiction purportedly conferred on it by that legislation; (c) the tribunal can form an opinion on whether legislation can apply within constitutional limits to particular persons or in particular circumstances, and can act on that opinion in determining applications for review of administrative decisions; (d) however, the tribunal does not have jurisdiction to reach a conclusion having legal effect that legislation is unconstitutional, and such a decision can only be made by a court exercising judicial power; and (e) the tribunal should nevertheless proceed with caution where such issues arise; and (f) the tribunal should give consideration to referring a question of law to the Federal Court.

Delegated legislation 3.12 The question of the AAT’s role when the validity of legislation is in question arises also in relation to the validity of delegated legislation under which the decision appealed against has been made. The earliest authority is Re Costello and Secretary, Department of Transport (1979) 2 ALD 934. The AAT there said that before it ‘as an administrative body, could determine to mould its conduct by treating delegated legislation as invalid, there would … need to be the most compelling grounds to justify it in so doing’ (at 939). The AAT also indicated, as it had previously done in Re Zimmax Trading Co Pty Ltd and Collector of Customs (NSW) (1979) 2 ALD 120, that if it became necessary to resolve the validity question, it would have to give consideration to the referral of the question to the Federal Court pursuant to s 45 of the AAT Act. This issue has come back to the AAT since the Costello case but it has usually not been pursued. For example in Re Tomago Aluminium Co Pty Ltd and Collector of Customs (1988) 17 ALD 583 the AAT indicated that it considered that the relevant regulation was invalid but ‘[a]s this tribunal cannot conclusively determine the limits of its own power… I will proceed to consider the

application on the basis that [the regulation] is valid’. In Re Paterson and Department of Employment, Education and Training (1993) [page 31] 30 ALD 755 the AAT said categorically, without referring to Costello, that it cannot review the validity of legislation, original or subordinate, on which a decision is based (at 758). In contrast with these cases is Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323. There the AAT picked up the reference in Costello to ‘compelling grounds’ and ruled that the circumstances were so adverse to the interests of the applicant that he should not be required to await the pursuit of the question of validity in the Federal Court. The regulation under which the decision adverse to the applicant was made was clearly invalid and the decision itself should therefore be set aside. Similarly in Re Zammani and Minister for Immigration and Citizenship [2011] AATA 713; (2011) 123 ALD 613 at [22] the Tribunal noted that it was immediately apparent that there was a conflict between the regulation under which the decision before the Tribunal was taken and the Act and the regulation was accordingly invalid. Weinberg J in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 at [103] endorsed this approach. See also Re Liang and Minister for Immigration and Citizenship [2013] AATA 392; 135 ALD 638 at [61]. These may be thought to be bold decisions. Nonetheless, an administrator does have to decide whether there is power to make a decision and, if satisfied of the invalidity of the empowering legislation, would act improperly in going ahead and making the decision knowing it to be beyond power. Indeed so to act might render the decision-maker liable in damages: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307; 129 ALR 1. It would therefore seem that there must inevitably be occasions where the Tribunal will be obliged to find that legislation is invalid. However, such a conclusion should be reached in only the clearest cases. See also Re Sawmillers Exports Pty Ltd and Minister for Resources (1996) 41 ALD 657 and Re Caper Pty Ltd (t/as Direct Air Charter) and Civil Aviation Safety Authority [2011] AATA 181; (2011) 120 ALD 495 where the Tribunal considered and upheld the validity of the regulation under which the decision being reviewed

had been made. (The decision in Caper was reversed on appeal: Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213; (2012) 131 ALD 79; but the power of the Tribunal to consider the validity of the regulations was not discussed.) For a commentary on the Sawmillers case see Pat Brazil, ‘Ambit of AAT Review Revisited — Sawmillers Exports Decision’ (1996) 10 AIAL Forum 33. In this context regard may also be paid to the decisions in Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 and Re Churchill [2001] FCA 469; (2001) 109 FCR 104; 186 ALR 110 at [17] which suggest that a tribunal might consider the validity of delegated legislation. On the general question of the role of the AAT in relation to invalid legislation see Enid Campbell, ‘The Choice Between Judicial and Administrative Tribunals and the Separation of Powers’ (1981) 12(1) Federal Law Review 24. The attitude of the AAT in these decisions relating to the validity of legislation should be compared with its approach to pronouncing upon the validity of [page 32] administrative action it is called upon to review. The constraints felt in regard to legislation are not followed there: see 3.14.

Jurisdiction to review validity of legislation conferring jurisdiction 3.13 The cases referred to in 3.11–3.12 have been concerned with claims of invalidity of the legislation under which the decision the subject of the review has been made. The position may be different where it is the legislation that gives the AAT jurisdiction that is challenged. Any decision-maker is obliged to consider its jurisdiction to make a decision. In Re Freney and Minister for the Environment, Land and Planning (1998) 51 ALD 782 the ACT AAT ruled that it had to be satisfied of the validity of a regulation that qualified an Act that gave the AAT jurisdiction.

Jurisdiction to review invalid decisions

3.14 From its establishment, the AAT has been called upon to review decisions that, if the challenge had been brought before a court, could have resulted in the court declaring the decision to be invalid. In Re Upton and Department of Transport (1977) 1 ALD 150 the applicant’s pilot’s licence was suspended without the mandatory procedure under the regulations being complied with. This would have rendered the decision invalid at common law, but the AAT held that its jurisdiction to review the suspension was not lost. The AAT said that its jurisdiction arose when an application was brought to review the decision of the regional director and, while that decision was outside the power vested in him, that fact was relevant only to the AAT’s decision on the appeal, not to its jurisdiction. The failure to comply with the prescribed procedure required the AAT to set the decision aside; it did not require the AAT to refuse to review the decision. A similar approach was adopted in Re Sibrava and Acting Commissioner for Superannuation (1978) 1 ALD 233. There a decision under the Superannuation Act 1976 (Cth) which could only be made after an employee had retired was in fact made four days before he had retired. The AAT ruled that the result of this was to render the decision a nullity but, significantly, the AAT stated that it would set aside the decision under review and remit the matter for reconsideration. The issue was fully considered in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, affirmed on appeal Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307. The Collector of Customs had, without authority, purported to revoke the applicant’s warehouse licence. It was argued for the Collector that, if in fact the decision taken was without authority, it should be treated as if it were a nullity and was not therefore a ‘decision’ that could be reviewed by the AAT. President Brennan J at 180 rejected this approach. A decision was a fact and it had to be distinguished from the legal consequences that flowed from it: Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be [page 33] reviewed, quashed, or otherwise affected by order of a court or of an appeal

tribunal. … Where ‘decision’ is used in the provisions of the AAT Act relating to a right to apply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made. On the appeal, Bowen CJ and Smithers J preferred a slightly different formulation than that of Brennan J. While citing and agreeing generally with the preceding passage, they cavilled at the notion of ‘intended exercise’ of a power. Rather they thought that jurisdiction arose where a decision was made in ‘purported exercise’ of powers conferred by an enactment. Bowen CJ acknowledged that a different result would rarely flow in practice from the differing formulations. However, he said that it was undesirable to make proof of intention the test. There could be cases in which the objective facts might demonstrate a purported exercise of power but where the same facts might make a conclusion as to intention difficult to reach. It seems doubtful whether Brennan J would have been concerned by this reformulation of his general principle. 3.15 Lawlor’s case, above, was reaffirmed by Full Federal Courts in Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 28 ALD 50 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213; 34 ALD 72 and the approach taken further. The courts in these cases said that the AAT had jurisdiction to hear an appeal not only where the decision was defective but also where the decision-maker was not empowered to make the decision. The position was clearly summarised by von Doussa J in Alvaro’s case, above, at 219–20; 78: In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it was wrong on the merits, or that in law it was not an effective

decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice. The purpose of a review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected. This power of a tribunal to review a defective decision is not limited to decisions infected by error that can be regarded as jurisdictional: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; 80 ALD 534 at [28]. Rares J in Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 characterised this power of the Tribunal as being based [page 34] on the notion that a party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Following previous commentary, he said that such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal. In Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393; (2008) 216 FCR 405; 107 ALD 323 an argument that the Tribunal could not make a stay order in respect of a decision that was a nullity did not have to be resolved as the court found that no decision had been made. However, the discussion in the case pointed towards the Tribunal having the power to make such an order. The Tribunal noted that it will only be in exceptional circumstances that a decision can be treated as void and of no effect in the absence of a court order. This being so, the issue of the effect of a decision being a nullity will seldom arise. It might be observed that, even in such an exceptional case, it seems arguable that the AAT could consider the matter as there has been a purported exercise of the power to make the decision in

question. See also Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 103 ALD 238.

Practical advantage of Lawlor principle 3.16 The approach to the issue adopted in the Lawlor decisions seems to be correct in law and achieves the best result in practice. It is important to bear in mind that a ruling of the AAT on a legal point is not binding. If an applicant or a department is not content with the AAT’s ruling on matters such as the meaning of an Act, the jurisdiction of an administrator, or the matters that must be taken into account in reaching a decision, an appeal can be brought against that ruling to the Federal Court. An answer will then be given that must be followed. But to have reached this degree of certainty in the absence of a tribunal decision, it would have been necessary to obtain a judicial ruling anyway. The presence of the AAT merely introduces one more step in the process. Further, because of the quality of its presiding members, the AAT in the majority of cases provides sufficient guidance on the legality issues to satisfy the parties. A second factor supporting the Lawlor ruling is that to have held that the AAT could not consider legal issues would have placed greater constraints upon it than apply to original decision-makers. Any person who is making a decision under an enactment must come to a conclusion on issues of jurisdiction and law. Such a conclusion is, of course, not definitive but it must be made. In reaching its decision on the merits of a matter before it, the AAT is placed in the shoes of the original decision-maker: see 16.4–16.5. It too must reach conclusions on jurisdiction and [page 35] law. If these are different from those of the original decision-maker, the AAT must say so and it will set aside the decision-maker’s finding. If the AAT were not permitted to reach conclusions on these legal issues, it would be placed in the position of only being able to consider the decision-maker’s findings of fact — even though those findings were based on what the AAT would see as a false premise. See the discussion in Re Page and Minister for the Environment, Land and Planning (1998) 50 ALD 999.

The third factor, and in some ways the most definitive, is that, in practical terms, the AAT would cease to be able to function effectively if it could not rule on legal questions arising in the course of an appeal. If every time such an issue arose, the AAT had to adjourn to allow the issue to be tested in a court, hearings would become hopelessly bogged down and the reason for establishing the AAT as an informal and relatively cheap means of obtaining review of administrative decisions would be defeated: cf the discussion of this point by Brennan J in Lawlor at 178. See further the observations of Rares J in Seymour v Migration Agents Registration Authority [2006] FCA 965; (2006) 95 ALD 301 at [130]. The Lawlor principle was applied to the jurisdiction of tribunals that have now been amalgamated with the AAT: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495; 62 ALD 513 at [89]–[90].

Application of Lawlor principle 3.17 The Lawlor principle has been followed by the AAT on numerous occasions with decisions being set aside for breach of natural justice, want of jurisdiction, taking account of irrelevant considerations, and so on. Some early examples are Re Hanahoe and Director-General of Social Security (1983) 5 ALN N85; Commonwealth v Ford (1986) 9 ALD 433; Re Reith and Minister for Aboriginal Affairs (1988) 14 ALD 430 at 434; Re Trawl Industries of Australia Pty Ltd and Secretary, Department of Primary Industries and Energy (1988) 16 ALD 794. However, there have been some specific applications of the principle that should be noted. In Re Gibbs and Minister for Immigration and Ethnic Affairs (1986) 10 ALN N1 the AAT held that it had power to review a decision on illegality grounds even though it was a recommendatory decision only. As the AAT stands in the shoes of the decision-maker when reviewing a decision (see 16.4–16.5), it can make a new decision in those cases where it has set a decision aside on illegality grounds just as it can do where it is substituting a decision on the merits of the case only: Re Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379. However, this is subject to there not being a jurisdictional constraint. For example, in Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 19 ALD 215 the AAT followed Lawlor in setting aside a decision because the decision-maker could only act after receiving the recommendation of a designated committee. However, the fact that

no such recommendation had been made precluded not only the decision-maker but also the AAT from making a [page 36] decision. See also the decisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) referred to in 3.10. The inability of the Tribunal to make a decision in circumstances such as this does not mean that it has no jurisdiction to hear an application for review. In Re Gardener and Australian Prudential Regulation Authority [2007] AATA 2041; (2007) 99 ALD 141 the respondent sought an interlocutory order dismissing an application for review to the AAT on the basis that the Tribunal had no jurisdiction to consider the application because the applicant had failed to seek internal review of the decision. The Tribunal refused to make the order sought. If, after hearing the parties on the review, the Tribunal decided that the preliminary steps to seeking review had not been taken it could so determine. However, to do so on an interlocutory application would prejudge the outcome of the review. On the substantive application it was again decided that the Tribunal had jurisdiction: Re Gardener and Australian Prudential Regulation Authority [2009] AATA 990; (2009) 113 ALD 564. The Lawlor principle has been applied on a number of occasions in regard to taxation appeals. The issue there will usually turn on whether the correct procedure for challenging taxation liability has been complied with. Applying Lawlor, the issue will be whether there has been an objection made, not whether that objection is valid or indeed whether the original decision is valid: see the discussion of the authorities in Re Walters and Commissioner of Taxation [2013] AATA 151; (2013) 134 ALD 393 at [71].

Jurisdiction to review refusal to act 3.18 The converse of the position referred to in 3.14 of a decision-maker acting without jurisdiction is where a decision-maker declines to act on the basis that there is no jurisdiction to do so. The AAT held in Re Board of Control of Michigan Technological University and Deputy Commissioner of Patents (1979) 2 ALD 203 that action of this kind could be challenged before it. The decision of the

AAT was upheld by the Federal Court in Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711; 28 ALR 551. See also Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757; Ward v Nicholls (1988) 20 FCR 18; 16 ALD 353; Re Young and Telstra Corporation Ltd (1993) 32 ALD 307. The conduct of the decision-maker involves a consideration of the facts surrounding the applicant’s claim and the refusal to act is accordingly a ‘decision’ resolving the claim. If a contrary view had been taken, it would have prevented review of action by a decision-maker even if it were obvious that the decisionmaker had power to deal with the applicant’s claim. It is to be noted, however, that Keely J in the Michigan University case, above, observed that the AAT might not have jurisdiction to review a decision refusing to act where it was plain that the applicant’s claim was ‘totally misconceived’ and the decision-maker ‘plainly and indisputably was correct in deciding that he was not authorised’ to act: 2 ALD 711 at 728. With respect, it is doubtful whether the AAT should be denied jurisdiction in such a case. [page 37] The resolution of the merits of the appeal would probably be rapid, but the action of the decision-maker must surely still be a ‘decision’ for the purposes of the relevant legislation.

Jurisdiction where intermediate tribunal refuses jurisdiction 3.19 Problems were seen to arise at one time where the AAT’s jurisdiction depended upon an intermediate tribunal first hearing an appeal from the decision challenged. What is the position if that tribunal either hears a matter that it does not have jurisdiction to deal with or declines to hear a matter on the basis of want of jurisdiction? Wilcox J in Ward v Nicholls (1988) 20 FCR 18 at 27; 16 ALD 353 at 361 said of this question: It would be a very odd situation … if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction,

and the Administrative Appeals Tribunal — which is set up by statute to review on their merits decisions of that Board — was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made. There would be a lacuna in the system of administrative review disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute. I cannot think that this is right. I think that the true position is that the Veterans’ Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the Commission, and that, whatever decision it makes, that decision is subject to review by the Administrative Appeals Tribunal. This approach was confirmed by the decision of a Full Federal Court in Crompton v Repatriation Commission (1993) 45 FCR 330; 30 ALD 45. The court there held that the effect of Lawlor was that the AAT’s jurisdiction extended to all elements of the decision on appeal to it, including all findings on legal issues made by either the original decision-maker or the review tribunal. So a refusal by an intermediate tribunal to deal with an appeal did not deprive the AAT of jurisdiction in the matter. It was obliged to consider whether the tribunal was correct in its conclusion. If it found that the intermediate tribunal had no jurisdiction to review the particular matter, the AAT should confirm that conclusion and hold that it too had no jurisdiction in the matter. If, on the other hand, the intermediate tribunal had wrongly declined jurisdiction, the AAT could so find and then proceed to exercise its review power. If the intermediate tribunal had wrongly assumed jurisdiction, its decision would be set aside by the AAT (but of course the AAT could not then interfere with the original decision because its jurisdiction depended upon the intermediate tribunal first dealing with the substantive issues). See also Re Bowen and Repatriation Commission (1994) 32 ALD 700 and Meyza v Repatriation Commission (1997) 73 FCR 18; 44 ALD 540 which were concerned with the Veterans’ Review Board; and Re Anderson and Secretary, Department of Social Security (1992) 28 ALD 913; Re Secretary, Department of Social Security and Frankos (1993) 32 ALD 271; Re VZG and Secretary, Department of Family and Community Services [1999] [page 38]

AATA 298; (1999) 56 ALD 249; Re Nisha and Secretary, Department of Family and Community Services [2003] AATA 378; (2003) 74 ALD 172; Re Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148; (2009) 107 ALD 638; Re Confidential and Executive Director, Social Security Appeals Tribunal [2010] AATA 726; (2010) 118 ALD 229 which discuss the position of the SSAT prior to its amalgamation with the AAT.

Jurisdiction where matter also before court 3.20 There is nothing in the AAT Act that indicates that the AAT should not deal with a matter if it is also the subject of proceedings in a court: cf AD(JR) Act s 10, discussed in Australian Administrative Law (LexisNexis) at [351]–[353]. The jurisdiction of the Tribunal is not affected. However, there may be some practical constraints arising from impending court proceedings that impinge on whether the Tribunal should continue to hear an application. The AAT must always be aware that action on its part that could be thought to prejudice proceedings in a court may constitute contempt: Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 41 ALR 71. This issue was alluded to in Re Lane and Conservator of Wildlife (1984) 5 ALN N429. President Davies J indicated that, had he thought the application in that case would have impinged on proceedings for forfeiture of goods before the ACT Court of Petty Sessions, he would have adjourned the proceedings before the AAT. President O’Connor J in Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317 at 319 indicated that an adjournment was also appropriate ‘if a criminal prosecution was actively contemplated’. Her Honour also made the point that the prospect of criminal proceedings can also impinge on the effectiveness of the AAT’s review. While an applicant cannot be required to answer a question that might be incriminating, the fact of having to take this privilege could mean that evidence that is important to the AAT’s reaching the correct and preferable decision is not available. For an application of these principles where the applicant was anxious for the hearing to proceed see Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463; Re Street Nation Pty Ltd and Australian Communication Authority [2004] AATA 1251; (2004) 86 ALD 413. In the latter case, the Tribunal could not see how a hearing before the Tribunal could impinge on a possible prosecution of the applicant. While the issues before the court and the AAT overlapped, they

were not identical; the witnesses before the respective bodies would not be affected in having to repeat their evidence; and it did not seem that either body could be prejudiced or embarrassed if the hearing were to proceed. However, there were circumstances relating to the matter that the Tribunal considered needed to be resolved before it set the matter down for hearing. These and other issues are discussed at 10.14 in the context of the AAT setting down a matter for hearing and at 13.51–13.52 on the question whether to grant an adjournment. [page 39] The issue arose again in Re Sogo Duty Free Pty Ltd and Commissioner of Taxation [2005] AATA 1298; (2005) 89 ALD 236. The Tribunal agreed to a stay of proceedings. It took the view that there was a prospect of a director of the applicant, who had been charged under the Crimes Act 1914 (Cth), being required to give evidence in the Tribunal proceedings, and being subject to cross-examination, in relation to the same transactions which would be the subject of committal proceedings relating to the criminal charges. This was sufficient to create a plausible apprehension of injustice and therefore possibly contempt of the committal proceedings. However, the stay was only until the end of the committal proceedings when it was said that the issue should be revisited to see what had emerged at that hearing. The Tribunal refused a stay notwithstanding pending criminal charges in Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630, an appeal against a decision to cancel the applicant’s visa on character grounds. The Tribunal said at [51] that it must weigh the potential prejudice to the applicant and the need to maintain the integrity of the criminal justice system against the obligation of the AAT to determine the application before it and the public interest in the AAT determining the application in the light of all relevant facts (even though this would include examining some aspects of the facts relating to the pending criminal charges), in order to make a decision and give effect to the policy and objectives of the Migration Act and the relevant ministerial direction. The approach adopted in these cases indicates the need for the Tribunal to balance its obligations to provide a mechanism that is both ‘fair’ and ‘quick’: see

1.7–1.8. However, in doing so, the Tribunal needs to be aware that ‘the socalled “right to silence” does not confer a right to have civil proceedings or an administrative process stayed pending the resolution of threatened criminal proceedings’: per Flick J in Goreng Goreng v Jennaway [2007] FCA 2083; (2007) 164 FCR 567; 100 ALD 508 at [24]. It is a case of reaching a compromise between maintaining the integrity of the AAT review and not jeopardising the position of the party involved in the other proceedings.

‘DECISIONS’ SUBJECT TO REVIEW BY AAT Definition of ‘decision’ subject to review: s 3(3) 3.21 The legislation which identifies the decisions which are reviewable by the AAT specifies the particular decisions which may be reviewed. As noted at 3.8, the Tribunal has interpreted these provisions carefully to avoid any claim that it is exceeding its jurisdiction in undertaking a review. However, s 3(3) expands upon this identification process by defining what is meant by the expression ‘decision’. It is defined as including a reference to: (a)

making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; [page 40] (c)

issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing. This definition is applicable to all decisions that are reviewable by the Tribunal even though limitations may be imposed on the way in which an identified decision may be reviewed. So, for example, while ss 338 and 411 of the Migration Act define with great particularity the decisions that may be reviewed in the Migration and Refugee Division of the Tribunal and condition the nature of that review, the definition set out above describes the range of activities relating to the identified decisions for which review may be sought. The AAT Act definition is similar to the definition of ‘decision’ in s 3(2) of the AD(JR) Act. The AD(JR) Act definition adds a reference to an ‘award’ in the equivalent provision to para (a) above. Little seems to turn on this as far as the AAT is concerned as it has only invested jurisdiction. If it were to be given power to review a decision in the form of an award, this would clearly appear from the Act conferring the jurisdiction. A more significant difference between the two definitions is that, under the AD(JR) Act, after listing the matters set out above, the definition continues ‘and a reference to a failure to make a decision shall be construed accordingly’. This statement is somewhat Delphic but presumably it is intended to permit the Federal Court to review a failure to make an order, etc, and require action on the part of the decision-maker: see Australian Administrative Law (LexisNexis) at [346]. Except in the limited circumstances discussed in 3.18 and 3.31, the AAT has no power to review a failure to make a decision. This is not surprising as the AAT is not a primary decision-maker: see 16.10. Its task is to review decisions. If no decision has been made, the AAT has nothing to review and it does not have the power, such as is vested in the Federal Court, to order action to be taken. When considering parallels between the AAT jurisdiction and that of the Federal Court under the AD(JR) Act it must not be forgotten that the AD(JR) Act applies only to decisions ‘of an administrative character’. This problem of classification of the nature of the decision in question does not arise under the AAT Act as it is the legislation specifying the decisions that are to be reviewed that determines the jurisdiction. In theory it would be possible for the AAT to be given the power to review non-administrative decisions. The issue is what decisions have been specified as reviewable, not what is the nature of the decision.

It must also be borne in mind that there is a difference between a decision and the reasons for it: Austin v Secretary, Department of Family and Community Services [1999] FCA 938; (1999) 92 FCR 138; 57 ALD 330 at [25] pointing to the differentiation in s 28 of the AAT Act between a decision and the reasons for it. A person can only [page 41] seek review of a decision. The reasons support the decision but cannot be reviewed independently of the decision: Re Tait and Secretary, Department of Family and Community Services [2003] AATA 413; (2003) 74 ALD 247.

Interpretation of ‘decision’ 3.22 The definition of ‘decision’ has been interpreted to mean that the range of reviewable activity is unlimited — ‘aoristic’ is how Lockhart J described it in Riordan v Parole Board (ACT) (1981) 3 ALD 144 at 148. Prima facie it is intended to cover ultimate or operative determinations rather than determinations of issues arising in the course of making an ultimate or operative determination: Director-General of Social Services v Chaney (1980) 3 ALD 161 and see 19.10. However, Director-General of Social Services v Hales (1983) 5 ALN N162 makes the point that the expression is not necessarily to be so confined. Its operation is ambulatory. The items listed are only said to be ‘included’ within the word and therefore it is permissible to look beyond the definition to determine the meaning of ‘decision’. Lockhart J in Hales’ case, above, at N164 said that: [The meaning of ‘decision’] must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the tribunal, and the manifold and diverse circumstances which attract the power of the decision-maker, all call for a liberal approach to the definition of the word ‘decision’ … It is necessary to examine the Act which confers jurisdiction on the AAT and the administrative framework in which it operates to determine whether there is a ‘decision’ susceptible of review under the AAT Act. A

pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority (1980) 3 ALD 113 at 117; 30 ALR 165 at 169. Finn J in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19–[20] indicated, in passages approved on appeal (see Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; 60 ALD 383), that: … the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion — as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final. … What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc. [page 42] The Federal Court in Hales’ case, above, held that a decision whether or not to sue for the recovery of overpaid pension was a reviewable decision notwithstanding that a court would ultimately determine whether recovery would in fact occur. The decision taken by the Director-General would not be binding on the court but it was a necessary prerequisite to the proceedings being commenced: see also Re Matteo and Director-General of Social Services (1981) 4 ALD 398; Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73 and the cases cited; Re Secretary, Department of Social Security and Mariot (1992) 25 ALD 581; but cf Re Secretary, Department of Social Security and Sinclair (1992) 25 ALD 17 where the decision to raise an overpayment and seek recovery was held not reviewable because no step had been taken to effect recovery.

A decision adverse to an applicant, thereby providing a right to seek review, may be implied from the decision-maker’s conduct, particularly the wording of any communication to the applicant, even though the matter has not been expressly dealt with in that communication: Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558; 103 ALD 339 at [57]. Where the making of an original decision requires a preliminary step to have been taken, for example, the lodging by an applicant of a specified form, the failure to take that step will mean no ‘decision’ can be taken and therefore no application can be made to review it: Re Duarte and Australian Maritime Safety Authority [2011] AATA 530; (2011) 127 ALD 620. The same case held that, where there was no time specified for making a decision, it could not be deemed that a decision had been made such as to enable an appeal to be brought. A refusal to act (as distinct from a failure to act: see 3.31) falls within the definition of ‘decision’. This extends to a decision-maker taking action that will preclude the consideration of an application: Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659; Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 134 FCR 179; 77 ALD 440. While an enactment might provide to the contrary, it would seem that the AAT’s jurisdiction is limited to reviewing specific decisions. The general policy that determined how a decision was arrived at can be challenged in terms of its specific application to a particular decision but an attempt to review policy only will not be possible: Re Advocacy for the Aged Association Inc and Secretary, Department of Social Security (1991) 25 ALD 535. See further 16.27.

‘Decision’ under AAT Act and AD(JR) Act compared 3.23 Because of the similarity between the definitions, rulings on what is a ‘decision’ for the purposes of the AD(JR) Act are relevant to the interpretation of the AAT Act definition: Director-General of Social Services v Chaney (1980) 3 ALD 161; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; Re Kerferd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148; (2009) 107 ALD 638 at [305]–[311]. [page 43]

See Australian Administrative Law (LexisNexis) at [305]–[314]. However, the impact of Bond’s case, which has been so significant in AD(JR) Act proceedings, is still unclear as far as AAT applications are concerned. In a number of applications under the Corporations Law and associated legislation (Re Gallivan Investments Ltd and Australian Securities Commission (1991) 24 ALD 611; Re Hongkong Bank of Australia Ltd and Australian Securities Commission (1992) 26 ALD 307 (affd on appeal on other grounds Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; 27 ALD 257); Re Toll and Australian Securities Commission (1993) 29 ALD 412; Re Laycock and Australian Securities Commission (1997) 44 ALD 713; Re Morton and Australian Securities Commission (1997) 45 ALD 447; Investment Planners (Australia) Pty Ltd v Australian Securities and Investments Commission [2003] AATA 1112; (2003) 77 ALD 765) the AAT followed Bond’s case, above, in holding the decisions unreviewable. The action challenged was described as a step along the way to a decision and therefore not reviewable. The influence of the AD(JR) Act on the outcome of these decisions is manifest and is probably heavily influenced by the fact that the decisions were of a similar kind to a number that had been the subject of judicial rather than tribunal review. However, compare Re Excel Finance Corporation Ltd; Worthley v Australian Securities Commission (1993) 41 FCR 346; 29 ALD 844, affd on appeal Worthley v Australian Securities Commission (1993) 42 FCR 578; 30 ALD 39, where the Federal Court ruled to the contrary on different but related provisions of the same legislation. The ‘step along the way’ argument was also rejected in Re Mackay Permanent Building Society Ltd and Australian Securities and Investments Commission [2005] AATA 574; (2005) 87 ALD 769. See also Brian McMahon: ‘Administrative Appeals under the Corporations Law’ [1993] Admin Review 62. Apart from this group of decisions, Bond’s case, above, seems not to have produced a result in the AAT that would not have been reached on the interpretation of ‘decision’ as postulated in the earlier cases referred to above: see, for example, Re Pendlebury and Australian Trade Commission (1993) 29 ALD 759 (a step along the way to a decision was reviewable because it was required by the Act and was essential to the final decision); Re Distilled Spirits Industry Council of Australia Inc and National Food Authority (1994) 34 ALD 629 (a rejection of an essential element of an application prior to a final decision was reviewable because it concluded the issue against the applicant); Re Simpson and Australian Maritime Safety Authority [2006] AATA 315; (2006) 90 ALD 471 (a requirement

that a person undertake an approved course prior to the issue of a professional certificate was tantamount to a refusal of the certificate and therefore a decision). In Re Young and Telstra Corporation Ltd (1993) 32 ALD 307 President O’Connor J referred to the fact that the AAT Act is beneficial legislation and that the definition of ‘decision’ should be interpreted with this in mind. 3.24 It is no bad thing for a more generous attitude to be taken to what is reviewable by the AAT as compared with the Federal Court. The AAT should [page 44] not become bogged down in technical arguments but should exercise its powers wherever there is a worthwhile controversy to be settled: cf Re Nathanielsz and Director-General of Social Security (1983) 5 ALN N335. This approach was influential in the AAT reaching a conclusion that it should assume that a decision had been taken even though no formal record of the decision could be located in Re Secker and Secretary, Department of Family and Community Services [2000] AATA 290; (2000) 60 ALD 292 and Re Newton and Secretary, Department of Family and Community Services [2000] AATA 349; (2000) 60 ALD 317. In both cases the Department, the SSAT and the applicants had proceeded on the basis of there being a decision. It is of relevance in determining the scope to be given to the interpretation of what is a decision to take into account that the AAT does not have the power vested in the Federal Court by the AD(JR) Act to review conduct engaged in for the purpose of making a reviewable decision (except insofar as it might impact on the final decision, for example, a breach of procedural fairness). Matters can be challenged before the court as reviewable conduct that cannot reach the AAT until a decision has been taken. In addition, the problem of fragmentation of the decision-making process that was influential in the Bond ruling is not as significant in the case of the AAT. The AAT is part of the administrative process and is capable of reaching a decision on a matter more expeditiously than the court. It should also not be overlooked that the purpose of the AAT is to provide speedy non-technical means for review of decisions for persons who do not have to seek legal representation. All these factors point to a need for a flexible approach to be adopted to the definition of ‘decision’.

The views set out above should be contrasted with the attitude taken to jurisdictional limitations where a much less generous approach is adopted: see 3.8. In like vein it must be clear that the decision is taken under the legislation that confers jurisdiction on the Tribunal and not pursuant to another power: Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393; (2008) 107 ALD 323 at [85].

Identification of decision 3.25 The Federal Court has indicated the importance of the parties identifying precisely the decision of which review is sought: Taylor v Secretary, Department of Social Security (1988) 18 FCR 322 at 329; 14 ALD 655 at 662. In Re Johansson and Civil Aviation Safety Authority [2012] AATA 239; (2012) 127 ALD 195 the Tribunal decided that the applicant had correctly sought review of a decision to cancel his flight crew licences, a decision which had been communicated to him, rather than seeking review of an earlier adoption by the Civil Aviation Safety Authority of a recommendation to suspend his licences for a period of 18 months, where he only become aware of the adoption of this inconsistent recommendation when his advisers later received a copy of the s 37 documents following his application to the AAT. [page 45] The Federal Court has also indicated that the appeal to the AAT may delimit the scope of the decision to be reviewed, particularly where a party is legally represented: Secretary, Department of Social Security v Riley (1987) 17 FCR 99; 13 ALD 608. But where a decision is able to be reviewed, it is the whole decision that must be considered, not just those parts which the applicant wants reviewed: Re Smedley and Repatriation Commission (1988) 16 ALD 574; Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 and see 3.26, 3.27. The AAT will not review other decisions that are not the subject of the appeal. It is thus not open to an applicant to try to persuade the Tribunal to look at other decisions for comparative purposes. The Tribunal’s task is to make the correct and preferable decision in regard to the facts that are before it: Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711.

Operative decision to be reviewed 3.26 Where a right of appeal is given to the AAT in respect of a decision that has first had to be affirmed or reconsidered by another person or body, in the absence of any legislative direction it is the operative decision not the confirmatory decision that the AAT reviews: Re Gee and Director-General of Social Services (1981) 3 ALD 132. As is pointed out in that decision at 141, to hold otherwise would markedly limit the power that could be exercised by the AAT pursuant to s 43 of the AAT Act, particularly the power to set aside a decision and remit it for reconsideration in accordance with directions. The same approach applies where an original decision is varied by a confirmatory person or body. It is then the original decision as so varied that the AAT will consider. Where an appeal is brought against a decision that has already been confirmed by another tribunal, the AAT reviews the original decision, albeit paying regard to the other tribunal’s decision and reasons: Re Foulger and Repatriation Commission (1980) 2 ALD 789; Re Bisley Investment Corporation Ltd and Australian Broadcasting Tribunal (1981) 3 ALN N137. But where the other tribunal has overturned the original decision, it is the other tribunal’s decision which is reviewed. Where the AAT considers that an original decision reviewed by a first-tier appeal body is legally wrong and therefore unable to be confirmed by that body, the Tribunal still has jurisdiction to review the ‘decision’ following the approach adopted in the Brian Lawlor case (see 3.14, 3.15): Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213; 34 ALD 72. Where a decision presupposes or follows on from an earlier decision, the AAT cannot review the earlier if no appeal has been lodged against it: Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422; 58 ALR 119. The High Court there held that the AAT had acted without jurisdiction in setting aside a decision of the Commission that had preceded the decision that had been appealed to the AAT. While the later decision was based on the earlier, this did not entitle the AAT to consider its merits — it had to be assumed to be correct. This situation is [page 46] likely to arise in repatriation and compensation cases where benefits can be

cumulative, and decisions can be made on separate issues some time apart. If, however, an appeal involves a number of findings and all of them go to make up the appealed decision, the AAT will be able to review each of them; see also Re Smedley and Repatriation Commission (1988) 16 ALD 574; Fitzmaurice v Repatriation Commission (1989) 19 ALD 297; Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [32]; (1990) 170 CLR 321 at 335; 21 ALD 1 at 11. Legislation may, of course, make it clear which is the decision that the AAT must consider: see Re Hawat and Secretary, Department of Social Security (1992) 28 ALD 805 and Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332 in relation to the Social Security Act 1991 (Cth); Fitzmaurice, above, in relation to the Repatriation Act 1920 (Cth).

Review of components of decision 3.27 To be reviewable, the action in question must be identifiable as part of a decision that is able to be reviewed. By way of example, the AAT held that no review was possible of the failing of a person in an examination where the reviewable decision was the refusal to grant a licence and the examination was only part of the qualification that an applicant had to hold: Re Foster and Civil Aviation Safety Authority (1997) 46 ALD 699. However, if, having passed the exam, the applicant had been refused a licence, an appeal would presumably have been available. See also Re Hughes and Secretary, Department of Transport (1980) 3 ALN N4; Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598. For like reasons, a ‘provisional decision’ was held unreviewable in Tradesmen’s Union Club v Minister for the Environment, Land and Planning (1997) 131 ACTR 1; 49 ALD 304. If the power is to review a designated decision, review is not available of an antecedent decision unless that earlier decision becomes a part of the designated decision. However, where a later decision builds on or is dependent upon an earlier decision, it seems that the earlier decision may be able to be revisited: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253; 90 ALD 263. The court there held that the Tribunal could revisit a Comcare decision accepting liability where the later decision under review by the Tribunal was dependent upon that acceptance of liability. See the application of this approach in Re Menz and Border Express Pty Ltd [2012] AATA 203; (2012) 126

ALD 165; similarly, if one of a number of issues can be isolated and dealt with conclusively: Re Bruce and Secretary, Department of Transport (1982) 4 ALN N143. Advice to a person even though it is subsequently followed by further consideration of the issues concerned is not itself a decision: Re Reynolds and Defence Force Retirement and Death Benefits Authority [2000] AATA 142; (2000) 58 ALD 539. The AAT will not give what is, in effect, an advisory opinion: Re Rennie and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 424. [page 47]

Decision on reconsideration reviewable 3.28 One of the powers of the AAT on review of a decision is to direct that the decision be reconsidered by the original decision-maker: s 43 and see 17.2. An issue that arises is whether the decision taken on such a reconsideration can itself be appealed to the AAT. In Re Devine and Commonwealth (1982) 5 ALN N28 the Tribunal held that it had jurisdiction to hear such an appeal. The decisionmaker was constrained to act in accordance with the directions of the AAT on the first hearing, but its decision made in the light of those directions was itself a decision and reviewable by the Tribunal accordingly. It is worth noting in this context that in Barbaro (Vincenzo) v McPhee (1982) 4 ALD 609 Davies J held that a decision of the Minister on a recommendation from the AAT that a deportation order be revoked was a decision under an enactment and thus reviewable under the AD(JR) Act. Even though s 43 of the AAT Act is not applicable to the review of decisions under the Migration Act undertaken in the Migration and Refugee Division, ss 349 and 415 empower the Tribunal to remit a matter for reconsideration and it would seem that the discussion in this paragraph would be applicable to the reconsidered decision.

Automatic or self-executing decisions not reviewable

3.29 Sometimes a result is expressed to follow upon the occurrence of a specified event, for example, that if a person fails to attend a medical examination their pension ceases to be payable. The issue that arises in such a case is whether the cancellation in these circumstances is reviewable or whether its taking effect as a matter of course on the occurrence of the designated event means that there is no ‘decision’ that can be reviewed. A view emerged through the cases that divided the issue into two inquiries. First, it is open to the Tribunal to determine whether the designated event has occurred because that is a jurisdictional issue the existence of which is essential to the relevant decision. So, in the example above, it is open to a person affected to challenge a finding that he or she did not attend the medical examination. This approach has not been questioned. However, it was then postulated that, once those preliminary facts were found to have occurred, the result that flowed was dependent upon the Act and not the intervention of a decision-maker. It was therefore not reviewable by the AAT: Re Cunningham and Repatriation Commission (1997) 48 ALD 364 (which followed the AD(JR) Act decision of Buck v Comcare (1996) 66 FCR 359; 41 ALD 281 and overruled the earlier decision of the AAT to the contrary in Re Johns and Repatriation Commission (1994) 20 AAR 548); Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459; 153 ALR 248. However, this approach has now been called into question, at least insofar as it applies to the Comcare compensation cases which had provided the basis for the [page 48] approach, by the decision of the Full Federal Court in Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; 76 ALD 578. The court ruled that the decision to cease payments because of a failure to undertake rehabilitation was reviewable. This did not finally resolve the issue that arose in Buck’s case because there are differences in the Act relating to the relevant provisions, but it did indicate that that decision should be approached with caution. The preliminary issues that must be resolved before the suspension takes effect are so interlinked with the outcome that it seems artificial to differentiate them from the result that flows from their establishment. A decision must be made to enliven the suspension provision of the section. The

Federal Court cases relating to the issue are discussed more fully in Australian Administrative Law (LexisNexis) at [307D]. The AAT itself had recognised that, before it could be said that there was no decision involved in the matter, it had to be clear that it was intended that the provision be self-executing. The factors to which regard should be paid in reaching this conclusion are set out by DP Forgie in Re Nelson and Repatriation Commission [2007] AATA 1069; (2007) 94 ALD 418 at [52]. The significance of examining closely the relevant legislation is emphasised. In that case, different sections of the legislation produced different results notwithstanding that they dealt with similar subject matter.

Computer-made decisions 3.30 A different type of automatic decision is illustrated by Re Bowron and Secretary, Department of Social Security (1990) 21 ALD 333 and Re Dimitrievski and Secretary, Department of Social Security (1993) 31 ALD 140. In those cases it was held that the automatic cancellation of a pension for failure to supply required information, which cancellation was notified to the person concerned by means of a computer-generated letter, did not constitute a reviewable decision. For a ‘decision’ to be made there had to be some action taken by a person. Section 6A of the Social Security Administration Act now provides that such action is to be deemed to be a decision taken by the secretary thus making it reviewable. As government moves towards more decisions being taken by computer this issue may become of relevance to review processes in the absence of legislation dealing with the decisions specifically. However, it is likely that the AAT will be reluctant to accept too readily that a ‘decision’ has been made without some human intervention.

Failure to take a decision: s 25(5) and Ombudsman Act 1976 (Cth) s 10 3.31 Section 25(5) of the AAT Act provides that a failure by a person to do an act or thing within the period prescribed by an enactment as the period within which that person is required or permitted to do that act or thing, is to be deemed to constitute the making of a decision by that person at the expiration of that period

[page 49] not to do that act or thing. Where no time for the making of a decision is prescribed, a person may, under s 10 of the Ombudsman Act 1976 (Cth), seek from the Ombudsman a certificate that there has been unreasonable delay in the making of the decision. If the Ombudsman grants such a certificate, a decision is deemed to have been made not to do the particular act or thing on the date on which the certificate is granted. It is thought that this provision has never been invoked. The threat of the issue of a certificate by the Ombudsman is sufficient to secure the making of the decision sought. If neither of these circumstances apply, the AAT has no jurisdiction to review the failure to act: Comcare v Sassella [2001] FCA 1514; (2001) 34 AAR 142; Re Carson and Comcare [2011] AATA 103; (2011) 123 ALD 556 at [31].

Rulings on ‘decisions’ 3.32 The following are some miscellaneous specific rulings on whether or not particular action constituted a decision within the definition: advice to a person of the amount of superannuation benefit where there was no dispute over the calculation, and the eligibility for benefit had already been the subject of an AAT ruling was not reviewable: Re AA and Commissioner for Superannuation (1985) 9 ALN N99 (cf Higgs v Federal Commissioner of Taxation (1984) 6 ALN N181 for a similar ruling under the AD(JR) Act). However, it must be clear that what is being given is properly to be described as ‘advice’ for this approach to apply. The labelling of a communication as ‘advice’ will not prevent it from being reviewable as a decision if that is its effect: Re Sharma and Commissioner of Superannuation [2007] AATA 1129; (2007) 94 ALD 717; advice given in the abstract without reference to the circumstances of a specific person is not a reviewable decision: Re Wigley and Secretary, Department of Social Security (1987) 14 ALD 492; Re Advocacy for the Aged Association Inc and Secretary, Department of Social Security (1991) 25 ALD 535 (but cf Re Nathanielsz and Director-General of Social Security (1983) 5 ALN N335 where it was considered that the advice was sufficiently specific); a notice under the Customs Act 1901 (Cth) while not itself immediately

affecting a person but which was the first step in a formal investigation which would affect the person was reviewable: Re Tradex Transport Pty Ltd and Collector of Customs (Vic) (1986) 11 ALD 376; a decision interpreting a transitional provision in a by-law was reviewable because it related to the calculation of customs duty which was reviewable and not to the continuation of the by-law which was not reviewable: Re N S Komatsu Pty Ltd v CEO of Customs (1997) 46 ALD 367; an application seeking review of a decision could not be continued where the applicant had amended its original application significantly after commencing the review proceedings and was wishing to continue only to try to overcome any [page 50] delays that might occur should the amended application be refused: Re Sims E-Recycling Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities [2012] AATA 269; (2012) 132 ALD 553; a refusal to accept a late application did not constitute a decision to refuse the approval sought in the application and as it was only the latter that was reviewable, the refusal could not be challenged: Re Davnar Pty Ltd and Minister for Community Services (1987) 11 ALD 511; refusal of a common law claim was not a decision taken under the Social Security Act 1947 (Cth) and was therefore not reviewable: Re Roberge and Secretary, Department of Social Security (1988) 16 ALD 37; the separation for administrative convenience of two aspects of a statutory requirement does not mean that two decisions have been taken. It is the legislation that identifies what constitutes a ‘decision’: Re Riley and Repatriation Commission (1995) 37 ALD 717 at 723; and referral of a matter by one departmental officer to another in accordance with procedures providing for an internal review is not a reviewable decision: Meschino v Secretary, Department of Family and Community Services [2001] FCA 39; (2001) 65 ALD 220. See also the rulings of the courts in relation to ‘decisions’ reviewable under the

AD(JR) Act that are set out in Australian Administrative Law (LexisNexis) at [310].

No alteration to decision after appeal lodged: s 26 3.33 Once an application to review a decision has been lodged with the AAT, the Tribunal becomes seized of the issue and it is not possible for the decisionmaker to substitute a new decision except in the limited circumstances permitted by s 26. Prior to the enactment of s 26 in 1995, the AAT had ruled that no change was possible to a decision: Re Bloomfield and Sub-collector of Customs, ACT (1981) 4 ALD 204; Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437; Re Jonsson and Marine Council (1990) 11 AAR 439. Under s 26 a decision may be altered if the enactment vesting review power in the AAT so permits or where the parties and the Tribunal consent to the change. The alteration by consent of the parties exception does not apply to a proceeding that is a child support first review (s 26(1A)). Section 126 of the Social Security Administration Act is an example of the vesting of a power to vary a decision after an appeal has been lodged. Section 182 provides that, where this occurs, the application for review of a decision is taken to be of the decision as varied and this is applicable to both a first and second review of the decision. The decision-maker can also reconsider a determination on its own motion after an application has been made to the AAT for review of a decision relating to a workers’ compensation decision: see Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(1); Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 78(1). [page 51] If the decision-maker advises the Tribunal that it has reconsidered a determination, the Tribunal will examine the effect of the reconsideration on any application before it. It will seek the views of the applicant in relation to what should occur in relation to that application either by sending a letter or by holding a conference or directions hearing: see the Guide to the Workers’ Compensation Jurisdiction on the AAT website, cl 6.7.

It seems that a provision of an Act permitting a decision to be revisited after an appeal to the AAT has been lodged will be strictly construed: Re Rebeiro and Comcare (1996) 44 ALD 632 at 646 and Re de Courcy Brown and Comcare (1997) 49 ALD 766 where the power to review an original determination was held not to permit the reconsideration of a reviewable decision based on that determination. For an example of the interrelationship between s 26 and a specific power to alter a decision see Re Radar Investments Pty Ltd and Health Insurance Commission [2004] AATA 166; (2004) 80 ALD 733 at [27] (s 56 of the Freedom of Information Act 1982 (Cth)). See also ss 42A and 42C of the AAT Act discussed at 15.3 and 15.21, respectively, which relate to agreed outcomes to an application. The converse situation arose in Re Sims E-Recycling Pty Ltd and Minister for Sustainability, Environment, Water, Population and Communities [2012] AATA 269; (2012) 132 ALD 553 where it was the applicant who had sought to change its original application after commencing proceedings to review the respondent’s decision on that application. The Tribunal declined to allow the appeal to continue. The respondent was entitled to consider the amended application and make a new decision on it.

DECISION UNDER ENACTMENT CONFERRING JURISDICTION Act must confer power to review particular decision 3.34 Having identified the Act that confers jurisdiction on the AAT to review decisions made under it and having ascertained that a ‘decision’ has been made it is still necessary to take the final step and resolve whether the Act permits review of the particular decision under consideration. This issue comes before the AAT with some regularity as applicants try to find an avenue for merits review of a decision adversely affecting them. The AAT has steadfastly resisted this pressure to become a general avenue for review of government decisions: see, for example, Re Qantas Airways Ltd and Deputy Commissioner of Taxation (WA) (1979) 2 ALD 291; Re Syme and Australian Broadcasting Corporation (1991) 23 ALD 441; Re

Advocacy for the Aged Association Inc and Secretary, Department of Social Security (1991) 25 ALD 535. An Act may nominate some but not all decisions made under it as being reviewable: Re Knoll Australia Pty Ltd and Minister for Health and Aged Care [2000] AATA 926; (2000) 62 ALD 495. It is therefore necessary to identify carefully the power under which a decision is made: Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; 27 ALD 257. [page 52]

Jurisdictional rulings to be made at hearing 3.35 The AAT has the duty to determine issues relating to its jurisdiction: see 3.7, 3.13. While it might be more convenient for the parties to have jurisdictional issues, including whether a ‘decision’ has been taken, resolved as early as possible in the review process, it is inappropriate for such rulings to be made at a preliminary hearing. It is questionable whether a ruling at a preliminary hearing is a decision that can be appealed to the Federal Court. The best way to deal with jurisdictional issues is to stage the hearing so that preliminary issues might be dealt with expeditiously and resolved before evidence needs to be called: Re Joseph and Repatriation Commission (1989) 18 ALD 766. But cf 6.9 relating to preliminary rulings on whether applications have been filed on time.

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CHAPTER 4 NOTIFICATION OF REVIEW RIGHTS AND REASONS FOR DECISION NOTICE OF DECISION AND REVIEW RIGHTS TO BE GIVEN: SS 27A, 27B 4.1 Section 27A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) requires a person who makes a decision that is reviewable by the AAT to give a person whose interests are affected by that decision notice of the making of the decision and of the right of the person to have the decision reviewed. However, there are a number of exclusions from this requirement that are set out in s 27A(2) to which reference should be made. Important among these exclusions is s 27A(2)(b): ‘a decision in respect of which provision relating to the notification of a right of review is made by another enactment’. This has significance for the decisions that are now reviewable in the Migration and Refugee Division and the Social Services and Child Support Division of the Tribunal. The legislation governing decisions that may be brought for review in those Divisions makes provision for notification of decisions hence excluding the operation of s 27A: see, for example, Migration Act 1958 (Cth) (Migration Act) s 66 (visa applications), s 137S (cancellation of visa), s 295 (refusal to register as migration agent); Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) ss 136, 138.

The manner of carrying out the requirements of s 27A of the AAT Act is provided by a Code of Practice made by the Attorney-General pursuant to s 27B. This code, which is a disallowable instrument, is reproduced in Australian Administrative Law (LexisNexis) from [1160] behind guidecard ‘AAT Legislation’. A failure to comply with s 27A or the Code of Practice does not affect the validity of a decision: s 27A(3). A like provision is to be found in some, but not all, of the legislation relating to particular decisions. It is likely that, despite the use of the word [page 54] ‘must’, a court would not hold that a failure to comply with the notification requirement rendered the decision invalid: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014, ch 11. See also Secretary, Department of Family and Community Services v Rogers [2000] FCA 1447; (2000) 104 FCR 272; 65 ALD 185 at [30]–[33] and see WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 80 ALD 69 for a discussion of the required content of a ‘notice’ under the Migration Act where the provisions are similar to that in the AAT Act.

PERSON AFFECTED BY DECISION MAY OBTAIN REASONS FOR DECISION: S 28 4.2 A fundamental principle included as part of the system of review adopted by the establishment of the AAT is that a person who is entitled to apply to the AAT for a review of a decision (see 5.1) may request the decision-maker to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. Such a request may be made whether or not an application has been made to review the decision. This provision was included to overcome the common law rule that a person has no

entitlement to obtain reasons for a decision of a government agency: Public Service Board of New South Wales v Osmond [1987] HCA 7; (1986) 159 CLR 656; 63 ALR 559. It also adopts the principle that a person should be able to discover the basis for a decision in order to determine whether or not to seek review. Hence the right to seek reasons is not conditioned on first applying to review the decision. (The same principle was adopted in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) s 13.) Section 28(1AAA) sets out exceptions to the general right to obtain reasons: decisions reviewable in the Security Division of the Tribunal; and a decision that is a decision on first review within the meaning of a number of the social welfare Acts that provide for AAT review. This approach is justified, in the case of the security appeals, on the basis of the sensitive nature of information that forms the basis for such decisions. In regard to the social welfare decisions, the relevant Acts provide an entitlement to obtain a written statement of reasons: see, for example, Social Security Administration Act s 178. To determine whether a person affected by a decision under the Migration Act may obtain reasons for that decision it is necessary to look at the provision of the legislation empowering the making of the decision: see ss 66, 137S for examples of where such a requirement applies to the decision. Subject to the exceptions mentioned below, the person who made the decision is to furnish such a statement to the applicant as soon as is practicable but in any case within 28 days after receiving the request. The manner in which a document is to be ‘furnished’ is set out in s 3(4) of the AAT Act. As to the form such a statement [page 55] of reasons must take, see 12.14 relating to the statement of reasons that the decision-maker must lodge with the Tribunal following an application for review. The statement that is to be furnished following a request under s 28 should take the same form. Where a decision-maker considers an applicant is not entitled to reasons for a decision, he or she must notify the applicant accordingly: s 28(1AA). The applicant is entitled to enlist the aid of the AAT to obtain reasons: s 28(1AB),

(1AC). If the statement of reasons is inadequate, the AAT can require the furnishing of an additional statement: s 28(5), (6). The decision-maker may also refuse to furnish the statement if: the request for it was not made within 28 days after the day on which the terms of the decision were furnished in writing to the applicant; or where the decision was not so communicated to the applicant, the request was not made within a reasonable time after the decision was made. Where a decision-maker determines not to furnish a statement of reasons for either of these reasons, he or she is to give the applicant, within 28 days, a notice in writing stating that the statement will not be furnished, and stating the reason why: s 28(1A). The Act makes no provision for reviewing a refusal under this subsection where 28 days have elapsed since the decision was furnished to the applicant. In contrast, s 28(1B) provides that, in the case of a request that is made where no written decision was supplied to the party, the request is to be deemed to have been made within a reasonable time after the decision if the AAT, on application by the person who made the request, declares that the request was made within a reasonable time. Such a declaration was made by the AAT in Re Grant and Commissioner of Police (1988) 15 ALD 477, it being noted that the AAT had to balance the interest in maintaining adherence to time limits against the actions of the decision-maker in bringing (or failing to bring) the decision to the attention of the applicant. See also Re Ellenbogen and Secretary, Department of Social Security (1991) 22 ALD 796 relating to the obtaining of reasons for an original decision where it has been reviewed by an intermediate tribunal whose decision may be appealed to the AAT (but note the comments thereon in Australian Administrative Law Bulletin at [2403] which suggest that the Tribunal did not refer to certain sections of the Social Security Act 1947 (Cth) which provided that the reasons for decision given by the Social Security Appeals Tribunal were sufficient to satisfy the requirements of the AAT Act). An applicant is not entitled to reasons for a decision if they have already been supplied to him or her: s 28(4). The notice to be given of many of the decisions reviewable in the Migration and Refugee Division requires the provision of reasons for the decision with the notice. Where it is possible to obtain reasons for a decision under s 28 of the AAT Act, an applicant cannot seek to obtain reasons for the decision pursuant to s 13 of the AD(JR) Act: see s 13(11) of that Act.

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REASONS NOT TO BE FURNISHED IF CONTRARY TO PUBLIC INTEREST: S 28(2) AND (3) 4.3 The decision-maker may exclude material from a statement of reasons or refuse to furnish a statement of reasons if the Attorney-General certifies that the disclosure of the material would be contrary to the public interest: (a)

by reason that it would prejudice the security, defence or international relations of Australia; or (b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in a judicial proceeding that the contents of a statement should not be disclosed. Where the Attorney-General gives such a certificate, the decision-maker is to notify the applicant forthwith that material will be excluded from the statement or that the statement will not be furnished, and give reasons for the action taken: s 28(3A). The operation of these provisions of s 28 should be read in the light of s 36: see 12.15–12.17. The operation of s 36(3) in particular should be taken into account when considering the refusal to supply reasons for a decision following on the issue of an Attorney-General’s certificate. If the basis on which the Attorney-General endeavours to prevent the disclosure of information is the general ground referred to in para (c), the AAT President is to consider whether the information should be disclosed to all or any of the parties to the proceeding. If the President considers that the information should be so disclosed, the AAT is to make the information available. While this provision does not avail an applicant at the stage before an application is lodged, it does have the effect that access may be subsequently gained to the information. In addition, the decision of the Attorney-General to

issue a certificate on any of the grounds set out in s 28(2) is a decision of an administrative character. It is therefore reviewable under the AD(JR) Act. See also 9.12 on the effect of public interest privilege generally in relation to evidence before the Tribunal.

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CHAPTER 5 APPLICANTS FOR REVIEW WHO MAY APPLY FOR REVIEW Persons who may apply for review: ss 27, 27AA 5.1 Section 27 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the persons who have standing to apply for review of a decision by the Administrative Appeals Tribunal (AAT) and thereby also have the right to receive notice of the decision and review rights. An application may be made by or on behalf of any person or persons whose interests are affected by the decision. However, the persons who may seek review of a decision in particular jurisdictions may be limited. Section 27AA of the AAT Act specifies the persons who may seek review of security decisions. An application may only be brought by a person who is the subject of a security assessment. In relation to the decisions reviewable in the Migration and Refugee Division, in general, only the person the subject of the decision in question may apply for review: see Migration Act 1958 (Cth) (Migration Act) ss 347 and 412; Migration Regulations 1994 (Cth) reg 4.02(5). In contrast, s 142 of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) uses the ‘person affected’ formula to determine who may seek a first review of a decision. Section 27 provides that the Commonwealth or an authority of the Commonwealth is a person for the purposes of the operation of the section and therefore able to seek review of a decision by the Tribunal. Limitations that may exist at common law in relation to the rights of convicted felons to pursue a claim do not apply to the AAT and such a person

may seek review of a decision: Re Ward and Secretary, Department of Industry and Commerce (1983) 8 ALD 324. The AAT cannot substitute another person as an applicant if the applicant is no longer able to continue the application. However, a person affected by the decision may apply to be joined as a party to the proceedings and can thus continue it in that role: Re Kingston Manuka Holdings Pty Ltd and Commissioner for Land [page 58] and Planning (1998) 53 ALD 696 and see 7.2 in relation to joinder of parties and 7.9 in relation to the death of a party.

Applications by organisations: s 27(2) 5.2 An organisation or association of persons, whether incorporated or not, is also to be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association: s 27(2). (This provision does not apply to decisions reviewable in the Security Division or Migration and Refugee Division of the Tribunal.) For examples of applicants falling within this category see: Re Phillips and Secretary, Department of Transport (1978) 1 ALD 341; Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74 (but see further 5.5); National Registration Authority v Barnett (1998) 83 FCR 222; 50 ALD 854. The scope of this provision is, however, limited by s 27(3) which provides that a body referred to in s 27(2) is not to have standing for the purposes of challenging a decision if the decision was given before the organisation or association was formed or before the objects or purposes of the organisation or association included the matter concerned: see Re Watson Community Association and Pollution Control Authority (1996) 40 ALD 67 for an example of a refusal of standing by virtue of s 27(3). The significance of s 27(2) is that it gives standing to interest groups to challenge decisions that are reviewable by the AAT. To this extent the provision may, in a particular case, have a wider effect than the common law rules relating to standing to obtain remedies. It is also wider than the standing provision included in s 3(4) of the Administrative Decisions (Judicial Review) Act 1977

(Cth) (AD(JR) Act) which uses the formula of a person aggrieved: see Australian Administrative Law (LexisNexis) at [325]. (However, the operation of s 27(3) removes the ability to found an organisation for the purpose of challenging a decision before the AAT after that decision has been made.) This view of the intended scope of s 27(2) appears to have been accepted without any real consideration in a number of the interest group cases referred to in 5.5–5.7. However, in Re Davnar Pty Ltd and Minister for Community Services (1987) 11 ALD 511 at 518 DP Todd said that: … s 27(2) is facultative in nature and does not permit the elevation to a relevant affection of a mere broadly expressed corporate object … The provision appears to me to be in aid of s 27(1), assuring to a corporation the right to refer to its objects in support of its position under s 27(1), but not conceding to any corporation a right of making application for review merely because it has within its objects an object referring to subject matter akin to the subject matter of an administrative decision. Section 27(2) does not … extend the class of persons whose interests are affected within s 27(1) but rather qualifies in respect of corporate bodies those which may be taken to fall within s 27(1). [page 59] This statement does not appear to fit well with the approach in the cases referred to above. It also pays scant heed to the words ‘shall be taken to have interests that are affected’ in s 27(2). If followed, it would make it difficult for an interest group that had not participated in the original decision in question to be able to seek review of that decision — but this is surely one of the purposes that s 27(2) was intended to achieve. The Davnar case was concerned with an attempt to seek review of a decision by a person who had not been a participant in the original decision-making process because it had failed to apply to the respondent in time. There was no doubt that the decision affected its business interests and that its objects related to the subject matter of the decision. However, it had no ground for asserting that the decision was wrong on the merits and it would have been better if the decision had been based on this rather than on the standing question. See further the examples of rulings on standing set out in 5.7.

Determination of standing: ss 31 and 44(2) 5.3 The AAT is empowered by s 31 of the Act to determine whether the interests of a person are affected by a decision. This relates both to s 27 and the entitlement of a person to apply for review of the decision (see 5.1), and to s 30(1)(d) and the right to be made a party to a proceeding: see 7.1. If the AAT decides that the interests of a person are affected by a decision, s 31 purports to make that decision conclusive. However, like all privative clauses, it cannot take away the power of the court to review the ruling on the basis that it is erroneous in law: Comptroller-General of Customs v Members of AAT (1994) 32 ALD 463 at 475. Where the AAT finds that a person’s interests are not affected by a decision, s 44(2) of the Act allows an appeal to be brought against that decision: see 19.10. As noted in 5.1, the qualification for standing to seek review of decisions to be heard in the Security and the Migration and Refugee Divisions is limited to the persons to whom the decision applies, not to the wider group of persons who are affected by the decision. If the issue arose, it would still be necessary for the Tribunal to determine whether the applicant was the person to whom the decision related. In a number of decisions it has been said that the issue of standing should be determined at the outset of the proceedings: Re Davnar Pty Ltd and Minister for Community Services (1987) 11 ALD 511; Re Fund for Animals Ltd and Minister for Arts, Heritage and Environment (No 3) (1986) 16 ALD 278; Edwards v Australian Securities Commission (1997) 72 FCR 350 at 369; 142 ALR 455 at 473. The fact that the respondent has indicated to an applicant that it has a right to seek review of a decision does not stop a subsequent denial of that right: Re Davnar, above. The Tribunal cannot be vested with jurisdiction by agreement of the parties where there is no such jurisdiction: see 3.6. [page 60]

Change in legal qualification for standing 5.4 It appears that the issue of whether a person has interests that are affected such as to enable review of a decision to be sought is to be resolved having regard to the law and facts as existing at the date of the application. A change in

the law to widen the range of persons who are taken to be affected by a decision does not extend to an existing applicant unless the change is made retrospective: Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266; 54 ALD 639 at [56]. An applicant can cease to have standing if, through a change in the facts, his or her interests cease to be affected: see 5.9.

WHEN INTERESTS AFFECTED Meaning of ‘interests affected’ 5.5 The AAT in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74 noted that a person who had standing to seek judicial review of a decision would be able to seek review before the AAT. The criterion for standing enunciated by the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 seemed to be the basis of judicial review standing contemplated by the AAT. (For more recent discussions of standing in judicial proceedings see Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 315 ALR 44.) However, the right to bring a matter before the AAT was seen as extending also to persons who might not be able to seek judicial review. The interest affected did not have to be a legal interest, nor did the applicant have to show legal ownership of the interest affected. A person’s interests might be ‘affected’ by a decision notwithstanding that the effect was not adverse: Re Phillips and Secretary, Department of Transport (1978) 1 ALD 341; Re Nguyen and Australian Community Pharmacy Authority [2015] AATA 555. A person need not be an Australian citizen to seek review, and even the absence of such a person from Australia is no bar provided the absence is temporary: Re Akuhata-Brown and Chesley and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N55. The earlier decision of Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 had also discussed the general question of standing. The AAT there had held that a customs agent had no personal right to challenge the classification of

a client’s goods for duty under the Customs Tariff Act 1987 (Cth), notwithstanding the fact that the client had entered the goods for duty on the agent’s advice. It did not appear that the agent could be found liable in negligence and any impact of the [page 61] decision on his reputation was too tenuous to constitute an affecting of interests. In relation to the general question of standing, the AAT said (at 69–70): [The] relevant ‘interests’ do not have to be pecuniary interests or even specific legal rights … Restrictions of that kind are incompatible with the variety of decisions which are subject to review — some decisions affecting legal rights, others unlikely to do so … [A] decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected. The judgment of affection must take account of the particular circumstances of the case and the decision in question. Gummow J in Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 at 272; 32 ALD 71 at 91 said: The day is long gone when there was any general presumption that in such statutes [ie those identifying persons having standing to seek administrative or judicial review of government action] the ‘interests’ concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.

See also Comptroller-General of Customs v Members of AAT (1994) 32 ALD 463 where the conclusion in the Alphapharm case was distinguished by applying Gummow J’s dictum. 5.6 If a person can gain nothing from a review of a decision because of other factors, he or she will not have interests that are affected: Re Bennetti Enterprise Pty Ltd and Secretary, Department of Agriculture, Fisheries and Forestry [1999] AATA 372; (1999) 57 ALD 223. There a person seeking review of a refusal to grant an export licence who might otherwise have been considered to have standing was held not to have interests affected because the abattoir from which the goods would be exported was unable to obtain a licence. A bankrupt did not have standing to challenge a refusal to allow recovery of welfare benefits as the right to any such moneys was vested in the trustee in bankruptcy on behalf of the person’s creditors: Re Singh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 850; (2009) 114 ALD 178. A Full Federal Court considered the standing of an applicant in Allan v Development Allowance Authority (1998) 80 FCR 583; 152 ALR 43. A number of issues arose. The court said that a person may be affected by a decision even though they took no part [page 62] in the original decision and indeed may not have been able to take part in that decision. The fact that a person is one of thousands affected by a decision does not of itself prevent the person from bringing an action. The concept of special interest is wider than special damage but the existence of special damage may indicate a special interest. In the particular case, the applicant was held to have standing to challenge a decision of the Authority to make a grant to a developer relating to a major city project. The project to which the applicant took objection would not have proceeded without the grant and he was affected by the project as it impinged on the use of his land. The case also deals with what is termed the ‘zone of interest’ test as a way of identifying whether a person’s interests are sufficiently affected to justify their bringing an action. The case went on appeal to the High Court: Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380. By this time the applicant’s

circumstances had changed: see 5.9. But the court stressed that the issue was to be decided by having regard primarily to the legislation under which the decision had been made. In the particular case, the court held that the Act in question did not give a person in the applicant’s position a right to seek reconsideration of the decision. A similar conclusion was reached in Brisbane Airport Corporation Ltd v Wright [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411 where it was held that a homeowner was not intended by the relevant legislation to have standing to seek review by the AAT of an airport management plan even though he might have been affected by the use of the airport in accordance with the plan because of increased noise. Wright’s case was distinguished in Re McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government [2009] FCA 562; (2009) 111 ALD 678 on the basis that the applicant there had a genuine interest in the airport management plan as he had a right of access to his property over the airport land. The Tribunal observed that the question of standing had to be based upon the relevant legislation and in this case that was the AAT Act and not the Airports Act 1996 (Cth). The issue whether a person’s interests have been affected also arises in relation to the right to be made a party to an application. For decisions of the AAT on that issue see 7.1–7.4.

Persons held to be affected 5.7 The following selection of rulings indicates the range of persons who have been held to have the right to seek review of a decision: the personal representative of a deceased applicant for a home savings grant was held to be a person affected by a decision refusing to make a grant: Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757. See also Re Saint-James and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N92; a person who was not the lessee of the subject land when a decision was made re-determining its unimproved capital value but who subsequently became the [page 63]

lessee was held to be entitled to challenge the decision: Re Gleeson and Minister for Capital Territory (1979) 2 ALN 546; a person who was told that she was ineligible for a pension for some years was held to be affected by the decision even though she lived overseas and could not be affected by the ruling immediately: Re Nathanielsz and DirectorGeneral of Social Security (1983) 5 ALN N335; the mother of a person in receipt of a pension under the Social Security Act 1947 (Cth) to whom the pensioner had assigned his pension was held to have interests affected by the cancellation of the pension: Re Dixon and Director-General of Social Security (1984) 5 ALN N536; although expressing some doubts, the AAT held that an importer of goods could challenge a tariff decision even though it had not paid the duty demanded under protest as required by the Customs Act 1901 (Cth): Re IDD Societe Anonyme and Collector of Customs (No 2) (1985) 8 ALD 251; the Australian Labor Party was affected by a decision relating to the issue of a television licence because media interests affect political parties and because its objects included issues relating to media control: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74. In the same case it was held that the Australian Journalists’ Association’s interests were affected because its members would be directly affected by the application under review; a medical practitioner had sufficient interest to challenge a refusal to register a drug because of his financial and professional interest in being able to prescribe the drug for his patients: Re Welborn and Department of Health, Housing and Community Services (1993) 30 ALD 759; a commercial interest in a decision affecting a business competitor will not be sufficient in itself to permit the bringing of an action to challenge the decision: Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250; 32 ALD 71; Re Autos America Pty Ltd and Department of Transport and Regional Development (1996) 42 ALD 758; Edwards v Australian Securities Commission (1997) 72 FCR 350; 142 ALR 455; Re Helkban Pty Ltd and Commissioner for Land and Planning [2002] ACTAAT 12; (2002) 66 ALD 707; a member of a political party had standing to challenge the entering on the

Electoral Act register of the name of a person as the registered officer of the party: Re Williams and Australian Electoral Commission (1995) 38 ALD 366; the owner of a shopping centre recognised in the strategic plan for Melbourne was affected by proposals for the redevelopment of an airport to include retail premises although the centre was some 10 kilometres away from the airport: Re Queensland Investment Corporation and Minister for Transport and Regional Services [2004] AATA 1025; (2004) 84 ALD 717; the sole director and shareholder of a company seeking an export grant had standing to challenge the refusal of the grant: Re Son and Australian Trade Commission [2005] AATA 227; (2005) 86 ALD 469 (but cf Re Samir Pty Ltd and [page 64] Aged Care Standards and Accreditation Agency Ltd [2013] AATA 194; (2013) 135 ALD 567 where the sole director of a company under administration had no standing to challenge a decision to which the administrator had agreed); and residents on an island who could see and hear a float plane landing in a national park were affected by the licence to land the plane: Re Connolly and Great Barrier Reef Marine Park Authority [2007] AATA 2098; (2007) 99 ALD 600.

Applicant has to be affected 5.8 A mere general interest in the subject matter of a decision is insufficient to give a person standing to seek review of that decision by the AAT. The person’s interests must be affected in some way. So an organisation purporting to represent homosexuals was not permitted to challenge a deportation order made against a homosexual. The deportation order was based on the conviction of the deportee for a number of offences, not on the fact of the deportee’s homosexuality: Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289. For similar reasons, a Member of Parliament has no standing to make an application to review a decision affecting persons in his electorate where he is not personally affected: Re Rudd and Minister for Transport and Regional Services

[2001] AATA 719; (2001) 65 ALD 296. While an organisation might have standing because of the operation of s 27(2) of the AAT Act (see 5.2), a member of that organisation cannot make an application in his or her own name unless personally affected: Rudd’s case.

LOSS OF STANDING Applicant no longer affected by decision 5.9 Because of the wide scope given to the notion of interests being affected in such a way as to give a person standing to make an application to the AAT, it is possible for events to change so that the basis for the person’s standing is lost. This occurred in Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 where the passage of time and changes in circumstances had negated the applicant’s original interest in challenging the decision in question. The AAT in that case used its power under s 42B of the AAT Act to dismiss the application as vexatious or frivolous: see 15.14. In Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553; 57 ALD 583 a Full Federal Court overturned the decision in Allan v Development Allowance Authority [1999] FCA 426; (1999) 93 FCR 264; 56 ALD 418 and held that where the interests that had permitted a person to seek review of a decision no longer existed, the person’s right to pursue the application came to an end. In that case it was the applicant’s physical location that initially gave him standing. Once he had moved his place of living his interest was lost and his application should have been dismissed. (An appeal to the High Court was dismissed [page 65] but on a different interpretation of the Act that did not require the issue referred to here to be considered: Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380.) This line of authority was followed in Re Fearnley and Australian Fisheries Management Authority [2005] AATA 147; (2005) 87 ALD 159; affd on appeal Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3; (2006)

94 ALD 519 where the applicant had sold his fishing permits after commencing the proceedings before the Tribunal. He no longer had an interest in the matter and the application was dismissed under s 42B of the AAT Act: see 15.14. The fact that the contractual arrangements relating to the sale might result in the future in his being able to buy back the permits was considered too speculative to be able to justify standing. For other examples of a change in circumstances resulting in a loss of interest and therefore the right to continue an application for review see Re McGrath and Inspector-General in Bankruptcy [2011] AATA 27; (2011) 119 ALD 439; Yao v Administrative Appeals Tribunal [2011] FCA 11; (2011) 122 ALD 310. In both those cases the application was dismissed as being frivolous or vexatious: see further 15.14. Particular issues can arise on a challenge to an ‘objection decision’ made by the Commissioner of Taxation under taxation legislation. A change in the determination of the amount to be paid or refunded following the original objection can result in the original objection decision being no longer relevant and an applicant losing standing in regard to that decision: Re Sanctuary Australasia Pty Ltd and Commissioner of Taxation [2013] AATA 371; (2013) 135 ALD 206 at [37]. Standing to seek review is thus a continuing issue for an applicant. Interests must be affected at the time of bringing the application and must continue throughout the currency of the case, presumably until the Tribunal rules on the matter.

Death of applicant 5.10 For the position if an applicant dies after the lodging of an application, see 7.9.

EFFECT OF ADMINISTRATION, ETC, ORDERS ON STANDING 5.11 A person’s capacity to commence or continue an application for review of a decision may be affected by the making of an order under various forms of legislation that impose limitations on a person’s ability to manage his or her own affairs. Guardianship, Mental Health, Bankruptcy, etc, legislation often controls a

person’s freedom of action and this can impact on the right to lodge an application with the AAT. For an example of the Tribunal holding that it had no jurisdiction to deal with an application to review a decision affecting a person where an order had been made appointing the public trustee as the person’s administrator, see Re Peck and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 863. [page 66] The issue has also arisen in cases where the applicant has been declared bankrupt either before or after making an application for review of a decision. The Tribunal has considered in a number of decisions whether it is possible for the applicant to continue with the application. In Re Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 DP Hack reviewed the authorities and concluded that, while not all came to the same conclusion, the majority had ruled that s 60(2) of the Bankruptcy Act 1966 (Cth) prevented any appeal being brought or continued by the bankrupt without the consent of the trustee. This decision was followed in Re Official Trustee on behalf of Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5; (2011) 54 AAR 188. A like decision was reached in Fitzpatrick v Keelty [2008] FCA 35; (2008) 99 ALD 696 in regard to an application under the AD(JR) Act in respect of a bankrupt. The matter cannot perhaps be regarded as finally determined. (Regard should particularly be had to the view contrary to Cook in Re Civitareale and Department of Family and Community Services (1999) 57 ALD 451.) However, the weight of authority indicates that the approach should probably be taken that a bankrupt person can neither bring nor continue an appeal to the Tribunal. It behoves counsel or an applicant to advise the Tribunal if a relevant order has been made, particularly if it is made after proceedings have been commenced before the Tribunal. If the administrator, trustee, etc, wishes to proceed with the application, it will be necessary for an order to be made substituting that person as the applicant as was done in the Martyniak case above.

[page 67]

CHAPTER 6 INITIATION OF REVIEW MANNER OF APPLYING FOR REVIEW: S 29 6.1 Information can be found on the Administrative Appeals Tribunal (AAT) website about: how to apply for review; time limits that may apply to making an application; and when an application fee is payable and, if it is, the amount. These requirements vary considerably in relation to the various decisions that may be reviewed by the Tribunal. The following outlines the principal requirements for initiating a review. The website should always be checked for details. The standard requirement for an application to the AAT for review of a decision is set out in s 29(1)(a)–(c): the application must be in writing and must be accompanied by the required fee (see 6.6) and a statement of the reasons in support of the application (see 6.4). Exceptions to this requirement are set out in 6.2. The time within which an application must be lodged is set out in 6.9–6.11. See 6.12 in regard to ‘lodging’ an application. There is no prescribed form which must be used for an application but the application may be in the form determined by the President. The relevant forms are set out on the AAT website and while use of an appropriate form may not be compulsory, the better course is to do so. The decision which it is sought to review must be identified. However, if it is apparent what that decision is, misidentification may not be fatal to the

application: Re Kowalski and Repatriation Commission [2008] AATA 903; (2008) 107 ALD 447 at [133]. In that case the application to the AAT referred to the decision sought to be reviewed as having been made by the Veterans’ Review Board. In fact the decision had been made by the Repatriation Commission. In order to avoid doubts as to jurisdiction, the applicant, at the Tribunal’s suggestion, lodged a new application referring to the decision of the Commission, and the Tribunal made orders to extend [page 68] the time for lodging the new application and to consolidate the original and new proceedings. However, the Tribunal also expressed the view that in any event it would have had jurisdiction under the original proceedings, because the error in the application was an obvious error, and the applicant had clearly intended to invoke the jurisdiction of the AAT. An application that does not comply with the statutory requirements may be completed subsequently but it will not be taken to have been lodged until all requirements have been complied with: Minister for Immigration and Citizenship v Chan [2008] FCAFC 155; (2008) 172 FCR 193; 104 ALD 361. As that case shows, this can mean that an application can be out of time if it has not been perfected within a statutory time for lodgement. Some of the enactments that confer jurisdiction on the AAT require an applicant to approach the decision-maker seeking a reconsideration of the decision before an application may be made to the AAT for review of the decision. These requirements have been noted in the Table of Jurisdiction on the AAT website. A failure on the part of a decision-maker to undertake the reconsideration could attract intervention by a court by means of mandamus: cf in analogous circumstances Galea v Federal Commissioner of Taxation (1990) 21 ALD 722. However, a better way for most applicants to proceed would be to bring the matter to the attention of the Commonwealth Ombudsman.

Special provisions relating to applications 6.2 The foregoing relates to a standard application. Special provisions are made in respect of some decisions.

Sections 29(1)(a)(ii) and 29AA permit an oral application to be made to review a decision that is reviewable in the Social Services and Child Support Division. This maintains the position that applied to applications to the Social Security Appeals Tribunal (SSAT). The person in the AAT receiving the oral application is required to make a written record and the date of the oral application. This record then becomes the written application for review to the Tribunal (s 29AA(2)). See also Guide to Social Services and Related Jurisdictions on the AAT website. Special provisions are included in s 29(1)(ca) and (cb) in relation to the documents that should accompany certain security appeals. Section 14ZZC of the Taxation Administration Act 1953 (Cth) modifies s 29 in respect of taxation appeals: for a discussion of the modified version of the section see Re Beiruti v Commissioner of Taxation [2013] AATA 634; (2013) 138 ALD 380 at [11]–[14]. Appeals that are to be heard in the Migration and Refugee Division of the Tribunal must be made in an approved form which includes an on-line application: Migration Act 1958 (Cth) (Migration Act) ss 347, 412. See the AAT website for the appropriate forms. See also the Practice Direction Migration and Refugee Matters on the AAT website. [page 69]

Applications where more than one decision 6.3 Except in relation to applications to be heard in the Migration and Refugee Division, where a decision is made that affects different people, a separate application must be made to review each decision, even though the decisions are the same and raise the same issues: Re CKI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office [2011] AATA 654; (2011) 123 ALD 378; Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 126 ALD 396. In the latter case it was pointed out that a specific provision of the Taxation Administration Act 1953 (Cth) permits one application to be made in respect of more than one taxation decision provided that the decisions have been the subject of a single objection decision. At [72] it was noted that this is an

unusual situation and that the normal procedure would be for a separate application to have to be brought in respect of each decision. The fact that one decision may run together a number of original applications does not change the position. The example was given of a social security decision which affected each member of a couple. One ruling might impinge on both persons but separate review applications would have to be made by each of the persons affected. It was also pointed out that it is only if separate applications are made that an application to review one of a series of decisions may be withdrawn. A part of an application cannot be withdrawn even though it may relate to separate original applications to the decision-maker: see further 15.5. A different approach applies to applications to review certain migration decisions. Regulations 4.12 and 4.31A of the Migration Regulations 1994 (Cth) (Migration Regulations) permit combined applications for review of decisions where the decision to be reviewed was itself based on combined primary applications.

Statement of reasons in support of application 6.4 Section 29(1)(c) says that an application must contain a statement of reasons for the application. (This requirement is not applicable to applications for review of Migration Act decisions (see below).) In Re Beiruti v Commissioner of Taxation [2013] AATA 634; (2013) 138 ALD 380 DP Forgie analysed the development of the wording of the provision at [51]– [69] and concluded that, despite the use of the word ‘must’, the requirement of the section was not mandatory. An application could be lodged without a statement of reasons in support but, presumably, such a statement would be required before the application could advance to consideration. Section 29AB empowers the Tribunal to request the applicant to amend a statement of reasons to enable the issues raised by the application to be identified. An application to amend a statement of reasons was refused in Re Knight and Comcare (1995) 36 ALD 417 on the basis that the Tribunal is not a court; undue legality in managing the documents relevant to a proceeding should be avoided; and

[page 70] the Tribunal is, in any case, obliged to consider all relevant issues in reaching a decision, not just those raised by the parties. At the hearing the applicant is not restricted in advancing submissions to the reasons set out in the application for review: Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Re Metherall and Minister for Capital Territory (1979) 2 ALD 246. However, unless the AAT otherwise orders, an applicant seeking review of a taxation decision is, under s 14ZZK of the Taxation Administration Act 1953 (Cth), limited to the grounds stated in the original objection to the Commissioner the rejection of which forms the basis for the AAT’s review. However, in Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation (1991) 32 FCR 148; 25 ALD 257 the Federal Court said that an application to amend the grounds originally stated should not be considered with reluctance but on its merits. The requirement to include a statement of reasons in an application is not applicable to applications for review of Migration Act decisions (Migration Act ss 347, 412), but the application form invites the provision of ‘Any evidence that will support your application or any comments you wish to make on why you disagree with the decision’.

Notice of application 6.5 The obligation to serve notice of an application for review of a decision on the decision-maker is laid upon the AAT, not upon the person making the application: s 29AC(1). This applies also to applications to review migration decisions Migration Act ss 352, 418), but note the requirement of Migration Regulations reg 4.32 to give notice to a detention officer if the application is a Part 7-reviewable decision and is lodged by a person in immigration detention. The Tribunal is also obliged, if it is satisfied that another person’s interests may be affected by the decision, to give notice of the application to that person and of the person’s right to apply to be made a party to the proceedings. Alternatively, the Tribunal can require the applicant to give such a notice (s 29AC(2)). There is no matching provision in the Migration Act. For a second review of a decision reviewable in the Social Services and Child Support Division, the persons to be notified are the parties to the first review

except the applicant for the second review: Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) s 180, item 1.

Application fees: s 69C, Reg Pt 6 Fees payable 6.6 Until 1993, no fees were payable for an application to the AAT. This was a part of the general philosophy that no impediment should be placed in the way of a person seeking review of a government decision. That attitude changed and [page 71] application fees relating to applications generally are now prescribed by Pt 6 of the Administrative Appeals Tribunal Regulation 2015 (Cth) (AAT Regulation). The fees for applications in the Migration and Refugee Division are set out in the Migration Regulations. They are higher than those applicable to the Tribunal generally. There are a number of exceptions to the requirement to pay fees for applications to the AAT. These decisions are specifically identified in reg 22. No fee is payable in respect of most of the decisions that are reviewed in the Social Services and Child Support Division. Where a number of appeals are lodged by the one applicant and may, in the view of the Registrar, be conveniently heard at the same time, for example, customs tariff appeals that raise the same issue in relation to a number of assessments, only one fee is payable (reg 23). However, this situation can only arise where the related applications are lodged by the one applicant. Where applications are lodged by different people, a separate fee is payable even though the applications raise the same issue: cf Re CKI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office [2011] AATA 654; (2011) 123 ALD 378. An issue can arise where an application is withdrawn and a fresh application made. If the application is withdrawn before the lodging of the new application, two fees will be payable. Where the new application is lodged before the withdrawal of the earlier, the payment of the second fee may be avoided because, if the first were maintained, the two applications could be heard together: Re

Clark and Australian Community Pharmacy Authority [2011] AATA 246; (2011) 121 ALD 197. The standard fee is waived and a fee of $100 is payable in certain circumstances (reg 21). In broad terms these are: where legal aid has been granted to the applicant for the AAT proceeding; and where the application is made by certain pensioners, prisoners, students and children. The Registrar may also waive the fee on the ground that payment would impose financial hardship on the applicant (reg 21(h)). A lower fee is payable in respect of certain applications being heard in the Taxation and Commercial Division (reg 20(2)). One of these cases is where the dispute relates to an amount of taxation that is less than $5,000. However, an applicant cannot take advantage of the lower fee by purporting to waive the claim for a refund of taxation paid that exceeds $5,000: Re Cachia and Commissioner of Taxation [2008] AATA 363; (2008) 102 ALD 175. It is the amount in dispute that determines eligibility for the reduced fee. A taxpayer may be entitled to a refund if the full fee has been paid and the Tribunal certifies that amount of tax in dispute is less than $5,000: reg 25. An appeal lies to the AAT against a refusal by the Registrar to reduce the fees payable in any of the foregoing circumstances (reg 28). [page 72]

Refund if successful 6.7 An application fee, less $100, is refundable in certain circumstances, including if the Registrar certifies that a proceeding ‘has terminated in a manner favourable to the applicant’: reg 26. What is to be regarded as a favourable determination has been considered in Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 552; (2005) 40 AAR 455 at [14] and Re Ha and Australian Community Pharmacy Authority [2009] AATA 305; (2009) 49 AAR 549 at [31]–[32]. It was said there that the outcome of the appeal does not necessarily have to be a decision in favour of the applicant. It is necessary to consider the outcome of the case. If this can be said to be advantageous or

helpful to the applicant, it can be concluded that the proceedings have terminated in a manner favourable to the applicant such as to attract the right to a refund of part of the fees. In the Ha case, the Tribunal noted that it would be difficult to reach such a conclusion if an application were withdrawn, even though it might follow an agreement between the parties that could be regarded as favourable to the applicant. The Tribunal will not be aware of, or have had any part in, such an outcome. In contrast, in Re Jackson and Minister for Immigration and Citizenship [2011] AATA 60; (2011) 128 ALD 355 the withdrawal of the application followed an agreement between the applicant and the respondent that the Tribunal should remit the matter to the respondent for further consideration. On that reconsideration, the applicant was granted Australian citizenship which was the subject of his appeal. The Tribunal concluded that the proceedings had terminated in a manner favourable to him and he was entitled to a refund of the fees paid on lodging his application. These decisions should be borne in mind when parties are negotiating an outcome which involves discontinuing an application. The Migration Regulations contain provisions relating to fee waivers and refunds: see regs 4.13, 4.14, 4.31B, 4.31C.

Effect of failure to pay fee 6.8 Section 29(1)(b) provides that an application must be accompanied by the prescribed fee. This apparently mandatory directive is qualified by reg 24(1) which says that the Tribunal is not required to deal with the application unless and until the fee is paid, and reg 24(2) which says that, if the fee is not paid within six weeks of lodging, the Tribunal may dismiss the application — a power that is given by s 69C of the AAT Act. The previous version of these provisions came into effect on 11 June 2013. Prior to that date, s 29A of the AAT Act had provided that an application was not taken to be lodged until the fee was paid. It would seem now that an application will not be refused by the AAT if the fee is not paid on lodging but no action will be taken in relation to it until the fee is paid. (See 6.12 in relation to the ‘lodging’ of an application.) The Tribunal in Re Eggu and Minister for Immigration and Citizenship [2010] AATA 1003; (2010) 54 AAR 31at [52] observed ‘that there is no power to waive the $100 fee. That is to say, the Tribunal has not been given any power to decide that no fee at all

[page 73] is payable with the lodgement of the application’. This statement was qualified in Re Gallagher and Minister for Immigration and Citizenship [2011] AATA 10; (2011) 119 ALD 668. The Tribunal noted there that the remarks in Eggu were not necessary to the decision of the case as the application for review had itself been lodged out of time and there was no power to extend the time. In Gallagher the application had been lodged within the required time but it had not been accompanied by the required $100, the applicant being at the time a prisoner. The $100 was paid some four weeks later. The Tribunal decided that the then applicable s 29A and reg 19(4) required substantial compliance only. The application having been lodged within time, the application could proceed when the required fee was paid. This approach has now been qualified by the six weeks time limit referred to in reg 24(2). The Tribunal in Re Jackson and Minister for Immigration and Citizenship [2011] AATA 60; (2011) 128 ALD 355 reaffirmed the position stated in Eggu that after 31 October 2010 there was no power to waive the payment of a lodgement fee altogether. This does seem to be the effect of the legislation. Sections 347 and 412 of the Migration Act appear to make payment of the fee a condition of making an application for review. This is reinforced by the fact that s 69C of the AAT Act is expressed not to apply to applications for review of a decision in the Migration and Refugee Division of the Tribunal (s 69C(2)). In Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; (2001) 109 FCR 364; 65 ALD 95 a question arose as to whether an application had been validly lodged with the Migration Review Tribunal when an application for a fee waiver had been made. The court said that an application had been lodged if the waiver application had been made within the required period and, if the waiver application were rejected, the fee was later paid within a reasonable time. It also observed at [58] that the requirements of the section would be satisfied in any case if the fee were to be paid within the time permitted for making an application. It would seem, therefore, that the fee does not have to accompany the required application form. See Radzi v Minister for Immigration and Border Protection [2014] FCA 626; (2014) 143 ALD 124 for an example of a case where the applicant was found not to have acted within a reasonable time after his application for a fee waiver was refused. This approach seems to be applicable to applications for review of decisions

to be considered in the Migration and Refugee Division. However, it is not clear that the same approach would be followed should the issue arise in relation to proceedings in other Divisions of the AAT. However, s 69C is discretionary and it could be expected that the Tribunal might not act immediately on the six weeks time limit if there were an application for waiver of the full fee awaiting resolution.

Time within which application to be made: s 29(2)–(6) General 6.9 The standard requirement is that an application for review must be lodged within 28 days of the day on which notice in writing of the decision was furnished [page 74] to the applicant. (See s 27A and see 4.1 for the form of notice.) There are a number of variants on this standard requirement as to time for applying and s 29 should be consulted for the detail of these. In a number of instances, the Act conferring jurisdiction on the AAT overrides the time limits in the AAT Act. Examples of this are customs tariff classification decisions, appeals relating to workers’ compensation for Commonwealth employees, superannuation industry appeals and veterans’ pension decisions. Regard should be paid in particular cases to the Act providing for an appeal to the AAT to ensure that special time limits do not apply. These are referred to in the Table of Jurisdiction on the AAT website. As with jurisdictional requirements, time limits cannot be waived by the parties: Re Australian National Railways Commission and Kulu (1989) 18 ALD 47 at 52. The measurement of the 28-day period was discussed in Re Secretary, Department of Social Security and Mellidis (1990) 21 ALD 549; Re Secretary, Department of Social Security and Hall (1992) 28 ALD 282; Re Laffer and Secretary, AttorneyGeneral’s Department [2013] AATA 585; (2013) 61 AAR 177 (the 28th day ends at

midnight). Regard should be had in this calculation to s 36 of the Acts Interpretation Act 1901 (Cth): see also D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014, at [6.46]. In the Mellidis case, above, the AAT ruled that the issue whether an application had been lodged within time could be resolved at a directions hearing. The power given to the AAT by s 33 of the AAT Act to determine its own procedures permitted it so to act even though the issue was one going to jurisdiction. But cf Re Joseph and Repatriation Commission (1989) 18 ALD 766 which involved what might be termed a substantive jurisdictional issue and where it was suggested that such issues should not, as a matter of practice, be determined at a directions hearing. Where no time is prescribed for making an application, the Tribunal must reject the application if it does not consider that the application was lodged within a reasonable time: s 29(4). The reasonableness of the time is to be determined having regard to s 29(5) and (6). For an example of the application of those provisions see Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564 at [413]. See Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558; (2013) 138 ALD 180 in regard to the final date of a period of time when it ends on a Sunday or public holiday. See 6.14–6.15 in regard to extensions of time to apply.

Migration and Refugee Division 6.10 For the time within which applications reviewable in the Migration and Refugee Division must be made, see Migration Act ss 347 and 412; Migration Regulations reg 4.10. It should be noted that the sections set the maximum times that may be prescribed in the regulations. The prescribed periods vary according to [page 75] the decision in question and need to be examined carefully. They also turn on when a decision has been deemed to have been received. There are detailed provisions relating to this in the Act which should be consulted. See the discussion in Singh v Minister for Immigration and Border Protection [2015] FCA 220.

The advice on the AAT website states: ‘You must lodge your application for review within the time limit referred to in the letter from the Department notifying you of the decision. If you do not apply within the time limit we [ie the Tribunal] will not be able to consider your application for review. We do not have any power to extend the time limit.’

Social Services and Child Support Division 6.11 No time limit is prescribed for applications for first review of a social security decision reviewable in the Social Services and Child Support Division. However, if more than 13 weeks have elapsed between the original decision and the application for review by the Tribunal, the date of effect of the Tribunal’s decision may not be earlier than the date of application to it: Social Security Administration Act s 147, item 8. An application for a second review must be made within the time specified in s 29 of the AAT Act. Various time limits apply in relation to an application to review other social welfare payment decisions. See the Guide to Social Services and Related Jurisdiction on the AAT website.

Giving or lodging application for review: s 68 6.12 An application for review must be given to or lodged with the AAT within the time specified in the AAT Act or the Act providing for a right of appeal to the AAT. This provision is applicable to applications for review in the Social Services and Child Support Division. Applications to be heard in the Migration and Refugee Division are to be ‘made in the approved form’: Migration Act ss 347, 412. However, President O’Connor J in Re Roberts and Repatriation Commission (1992) 27 ALD 408 at 413 said in regard to the use of the word ‘made’ in s 177(2)(a) of the Veterans’ Entitlements Act 1986 (Cth) that it was to be equated with the word ‘lodged’ in the AAT Act and it meant ‘deposited and accepted’. Migration Regulations reg 4.11 sets out the way in which a Part 5-reviewable decision application is to be ‘given’ to the Tribunal. Regulation 4.31AA sets out the way in which a Part 7reviewable decision application is to be ‘given’. Section 68 of the AAT Act provides that to be lodged with or given to the AAT, a document must be lodged or given in accordance with the regulations or a Presidential Direction. No provision is made by the AAT Regulation. The

Practice Direction Giving Documents or Things to the AAT reproduced on the AAT website accordingly specifies the required form of delivery. It provides that a document or thing may be lodged with, or given to, the AAT by: delivering it to a registry of the AAT; sending it by pre-paid post to a registry of the AAT; [page 76] faxing it to a registry of the AAT; or emailing it to a registry of the AAT. The Direction spells out in more detail how an application to be heard in the Migration and Refugee Division may be given. The Direction further provides that an application that is or would be an application in the Social Services and Child Support Division (other than an application for AAT first review of an AAT reviewable employer decision within the meaning of the Paid Parental Leave Act 2010 (Cth)) may also be given to the AAT orally or by submitting it electronically using the online application system accessible from the AAT website. Contact details for the registries of the AAT and guidelines that should be followed when sending an email to the AAT can also be found on the AAT website. Where a document is to be lodged within a specified period, regard should be had to s 68A of the AAT Act which deals with periods of less than seven days. Days when the AAT registry is not open to the public are excluded from the calculation of the period. The section does not apply to proceedings in the Migration and Refugee Division. 6.13 What constitutes the ‘lodging’ of an application has been considered on a number of occasions. The principal authority is Angus Fire Armour (Aust) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477; 16 ALD 227. There the Federal Court said that lodging required the handing or delivering of the document to the registry and its physical acceptance by an appropriate officer. In that case the failure to include a prescribed fee with the application did not mean that the application had not been ‘lodged’ because it had been delivered to and

accepted by the registry. (See 6.6 in relation to the need for an application to be accompanied by the required fee before it can be said to be ‘lodged’.) The mere posting of an application does not constitute its ‘lodging’: Angus Fire Armour, above; Re Kent and Repatriation Commission [2009] AATA 104; (2009) 107 ALD 157 at [19]; Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 at [61]; Ralph v Repatriation Commission [2015] FCA 165; (2015) 145 ALD 357 at [53]–[64] where the court said that it was not possible to rely on the presumption of delivery referred to in s 29 of the Acts Interpretation Act 1901 (Cth). However, Kent’s case indicates that it may be possible to prove that a posted application was received by the Tribunal. The approach posited in the Angus Fire Armour case has been followed in other decisions. See also Re Purnell and Repatriation Commission (1991) 24 ALD 242 (letter constituted application); Re Murphy and Repatriation Commission (1996) 40 ALD 782; Ye v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471; 55 ALD 358 at 361 (application sent by fax has been lodged on the conclusion of the transmission). [page 77] The New South Wales Court of Appeal in the Rail Corporation case, above, took the hard line that delivery to the wrong address meant that an application had not been lodged within the prescribed time. This could lead to considerable hardship to an applicant where the delivery was not within the applicant’s control. It may be that proof of the time of delivery to the wrong address as being within the statutory limit might lead to a different conclusion. Delivery to the decision-making agency is not lodgement with the AAT: Re Roberts and Repatriation Commission (1992) 26 ALD 611; affd on appeal Roberts v Repatriation Commission (1992) 39 FCR 420; 29 ALD 442; Re Repatriation Commission and Greenaway (1989) 16 ALD 677; Re Bennett and Repatriation Commission (1994) 36 ALD 387. Nor is delivery to a DX box: Re Kiss and Repatriation Commission (1995) 38 ALD 443 (but note the comments of President Matthews J in that case questioning the physical acceptance test that is required by the Angus Fire Armour case and suggesting that a ‘control’ test may be more appropriate). The issue whether an application has been made on time has also arisen in the

context of whether the applicant has applied within the time allowed for applications under legislation allowing for an appeal but specifying the time within which such an appeal must be brought. Causing particular problems has been the requirement in the Veterans’ Entitlement Act 1986 (Cth) that an application be lodged within three months after a decision of the Veterans’ Review Board has been ‘furnished’ to an applicant. Proof of furnishing in these cases has turned on the presumption of delivery in the ordinary course of post: Re Dellar and Repatriation Commission (1994) 33 ALD 255 but see the qualifications about the conclusion reached there expressed in Re Newgreen and Secretary, Department of Family and Community Services [2004] AATA 1244; (2004) 86 ALD 406; Re Fenby and Repatriation Commission (1996) 42 ALD 629; Re Fenby and Repatriation Commission (1997) 47 ALD 735 (but cf Re Davidson and Repatriation Commission (1993) 32 ALD 365 where the presumption was held to have been rebutted on the facts of the case). See also the discussion above of when an application has been ‘lodged’, particularly in Ralph v Repatriation Commission.

Extension of time to apply: s 29(7)–(10) 6.14 When the AAT Act was first passed, no provision was included that enabled the AAT to extend the time within which an application for review was to be lodged: Re St Regis – ACI Pty Ltd (1977) 1 ALN N198. The amending Act of 1977 inserted detailed provisions specifying the time within which an application is to be made. It also empowered the AAT, in its discretion, to extend this period if circumstances require: s 29(7). These provisions of the AAT Act apply to an application for an extension of time to apply for a second review in the Social Security and Child Support Division. They will also be relevant to an application for an extension of time for a first review in those cases where there are time limits for seeking such a review: see 6.11. [page 78] No extension of time is permitted in respect of applications to be heard in the Migration and Refugee Division. The time limits specified in the Migration Act are mandatory: Fernando v Minister for Immigration and Multicultural Affairs [2000]

FCA 324; (2000) 97 FCR 407; 58 ALD 91; Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570; 204 ALR 80. However, there may be an exception to this strict rule if it be shown that the failure to commence proceedings within the required time is due to third party material dishonesty such as to constitute a fraud on the tribunal: SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (2012) 130 ALD 472.

Applications for extension of time 6.15 An extension of time can be sought even though the time for making an application has expired: s 29(8). In Re Levana Pty Ltd and Minister for Capital Territory (1982) 4 ALN N124, the AAT observed that an application is within jurisdiction though late. It is not a nullity but an application which, on the facts becoming known to the AAT, should be stayed unless an order for an extension of time is made. The extension should normally be granted to the date of lodgement of the application, not to the date on which the AAT grants the extension because that would necessitate the lodging of a fresh application. See also Re Bateman and Repatriation Commission (1990) 20 ALD 435 for an adoption of the same principles to an application made under the time limit provisions in the Veterans’ Entitlements Act 1986 (Cth). It is appropriate when considering an application for an extension of time for the Tribunal to assure itself that it has jurisdiction to deal with the application. To act otherwise could result in a waste of resource in undertaking a hearing: Re Hempel and Civil Aviation Safety Authority [2006] AATA 188; (2006) 90 ALD 118. An application for an extension of time must be in writing and an applicant may use the form provided on the AAT website. A failure to use the form will not invalidate the application if it is clear from what the applicant lodges that an extension of time is being sought: Re Beach and Commonwealth (No 2) (1990) 20 ALD 713. In practice, the application for an extension of time is frequently lodged together with the application for review. The AAT may give notice itself to, or require the applicant to serve notice on, other persons (s 29(9)) who the Tribunal considers to be affected by the application. This would include the decision-maker. A person given such a notice may then, within 14 days, give notice to the AAT of opposition to the extension application: s 29(10), reg 10. Notice of opposition may be given in accordance with the form provided on the AAT website. In cases where

opposition to an application for an extension is lodged, the AAT is obliged to hear the applicant and any person who gave notice of opposition before determining whether the application for an extension of time should be granted: s 29(10). [page 79] An application for an extension of time should be dealt with early in the proceedings and may be determined at a directions hearing: Re Secretary, Department of Social Security and Mellidis (1990) 21 ALD 549; see further 6.9. The power to extend time may be overridden by specific provision in the Act granting a right of appeal to a person. This has been done in the Customs Act 1901 (Cth) where the AAT is denied the power to extend the six-month time limit within which an appeal has to be lodged: Re Holstar Agencies and Collector of Customs (1981) 4 ALD 308. See also Re Storrie and Repatriation Commission (1988) 16 ALD 31 and Re Kerrison and Repatriation Commission (1993) 35 ALD 797 (Veterans’ Entitlements Act 1986 (Cth)) but cf Re Emeco Australia (NSW) Pty Ltd and Commissioner for ACT Revenue (1993) 30 ALD 725 (Taxation (Administration) Act 1987 (ACT)). The foregoing relates to extensions of time under the AAT Act. It should always be considered whether the Act providing for the review of a decision by the AAT makes special provision on time limits: see 6.9. Such a provision might also place limits on the extension of such time: see, for example, Re VBS and Commissioner of Taxation [2005] AATA 1303; (2005) 91 ALD 682 where an extension was only possible in ‘exceptional circumstances’ and such circumstances were not made out. Where a person fails to attend the hearing of an application for an extension of time, the Tribunal cannot dismiss the application (see 15.6, 15.9) but may proceed to hear the matter in the absence of the person: Re Confidential and Child Support Registrar [2010] AATA 577; (2010) 116 ALD 623 at [16].

Extension of time: persons affected by decision

6.16 Section 29 fixes the time for application for review by reference to the date on which notice of the decision was served on the applicant. However, an applicant who is entitled to seek review of a decision as a person affected by it (see 5.5) but who is not the person in relation to whom the decision had been made will not have notice of the decision served upon him or her. The AAT in Re Gillett and Minister for Immigration and Ethnic Affairs (1985) 7 ALD 354 said that such a person did not have to seek an extension of time to lodge an application. Such an application must be lodged within a reasonable time (s 29(4), (5)) and if not so lodged the AAT must consider whether special circumstances exist justifying entertaining the application: s 29(6). That decision is a decision arising in the substantive proceedings and must be decided by the AAT as constituted for the hearing of the application. It may, however, be dealt with as a preliminary issue. In Re S & J Ferguson Pty Ltd and Minister for Arts, Heritage and Environment (1986) 12 ALD 145 the AAT rejected an application under s 29(4). The applicant did not act promptly after becoming aware of the decision. In addition, the decision affected other persons and they could be disadvantaged if the decision were altered. Those factors were properly regarded as relevant to the exercise of the discretion. A like approach was taken in Re Fund for Animals Ltd and Minister for Arts, Heritage and [page 80] Environment (No 3) (1986) 16 ALD 278; Re Smith & Nephew (Aust) and Department of Health, Housing and Community Services (1992) 29 ALD 280. Finality in government decision-making is important, hence the very short time limit within which review has to be sought. It would be running counter to this legislative direction if persons affected, but not the subject of the decision, could seek review where the person affected by the decision may not be able to do so because of the lapse of time. The power to extend time under s 29(7) of the AAT Act refers only to an extension of time to make an application for review of a decision. The section is not applicable to an application for reinstatement of an application that has been dismissed under s 42A(2) (see 15.6, 15.11): Re Mitchell and Federal Commissioner of Taxation [2001] AATA 689; (2001) 65 ALD 273. However, if a fresh application is made after dismissal, it

will require a formal application for an extension of time: Re Lower and Comcare [2001] AATA 703; (2001) 64 ALD 521.

Approach to applications for extension of time 6.17 It was inevitable that the very short time limit of 28 days in which review of a decision must be sought would result in applications being made for an extension of time. The time limit was presumably fixed with the view in mind that there should be finality in government decision-making. However, as with the Federal Court in relation to applications under the AD(JR) Act 1977 (see Australian Administrative Law (LexisNexis) at [355]–[355A]), the AAT has displayed no reluctance to extend the time to apply. The New South Wales Court of Appeal in Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 said that ‘where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time’. This passage was cited by the AAT in Re Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158 and clearly represents the general approach that it has adopted. (For an earlier statement to like effect see Re Levana Pty Ltd and Minister for Capital Territory (1982) 4 ALN N124.) The result of this has been that most applications for an extension of time to commence proceedings have been successful. Nonetheless, the prima facie rule is that proceedings will not be entertained out of time and an applicant must positively satisfy the AAT that it is proper that it exercise the discretion with which it is vested to extend time: Re Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349; Re Becek and Department of Immigration and Citizenship [2012] AATA 237; (2012) 132 ALD 545. See also the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553–4; 139 ALR 1 at 9–10 relating to the purpose of limitation provisions. These remarks were cited by the AAT in Re Spencer and Commissioner of Taxation [2007] AATA 1194; (2007) 100 ALD 389 at [44]. Decisions of the Federal Court relating to applications for an extension of time pursuant to s 11 of the AD(JR) Act (see Australian Administrative Law (LexisNexis)

[page 81] at [355]) have had a considerable influence on the AAT’s attitude to applications under s 29 of the AAT Act. Lucic v Nolan (1982) 45 ALR 411; 4 ALN N289 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 7 ALD 315 are cited frequently. The factors enunciated by Wilcox J in the latter case form the basis for consideration of most applications and, despite the limitation indicated below in 6.19 on one element of those factors, will almost certainly continue to be the starting point of most decisions. Regard is also paid by the Tribunal to the restatement of these principles in Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109 at [10] which was endorsed by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540. See also Re Rosenzweig and Military Rehabilitation and Compensation Commission [2012] AATA 228; (2012) 130 ALD 284. However, ‘[t]oo slavish adherence to them should … be avoided’: per Hill J in Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 at [41] noted in Re Williams and Defence Force Retirement and Death Benefits Authority [2004] AATA 921; (2004) 83 ALD 671. Where internal review is a statutory prerequisite to seeking review of a decision, the Tribunal has applied the same approach to that set out above (and in the cases referred to in 6.18–6.32) to decisions by agencies refusing to give an extension of time to request review of the decision: Re Francis and Commissioner of Taxation [2007] AATA 1927; (2007) 98 ALD 489. The cases set out in 6.18–6.32 give an indication of factors to which the AAT will pay regard in reaching a decision on an application for an extension of time to lodge an application. However, none of the factors should be considered definitive of the basis for the exercise of the AAT’s discretion.

Factors referred to in extension of time cases 6.18 A number of factors fall for consideration by the AAT on an application for an extension of time. These will be relevant for applications to review decisions in all Divisions of the Tribunal except the Migration and Refugee Division. No one factor carries primacy over others. All that are relevant to the particular case have to be weighed together in reaching a decision: Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451.

Explanation for delay 6.19 It had been said by the AAT in a number of decisions that it was a prerequisite to the exercise of the discretion for the applicant to show an acceptable explanation for the delay: see, for example, Re CSIRO and Barbara (1987) 11 ALD 447. The adoption of this requirement was based on a statement to that effect by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 7 ALD 315 relating to applications for extension of time under the AD(JR) Act: see Australian Administrative Law (LexisNexis) at [355]. However, a Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441 at 444; 119 ALR 85 at 88, following the Full Victorian Supreme Court [page 82] in Dix v Crimes Compensation Tribunal [1993] 1 VR 297; (1992) 28 ALD 565, rejected this approach. In Dix’s case, a distinction was drawn between the recognition of matters relevant to the exercise of the discretion and the elevation of some matter into a condition precedent to the existence or exercise of the discretion: at 569; 302. The Supreme Court considered that the latter was the effect of Wilcox J’s ruling. This view was endorsed by the Federal Court in A’Hearn’s case adding that normally an explanation for the delay would be given and this would be a relevant matter for the AAT to take into account when considering whether to exercise the discretion to allow an extension. However, such an explanation was not an essential precondition. It is nevertheless one of the factors to be taken into account when dealing with an application for an extension of time. The Tribunal now approaches the matter on the basis that, where there is no explanation for the delay in bringing an action but the overall justice of the case invites consideration of the application by the AAT, an extension should be granted. However, if there is no such explanation, that fact, taken together with the other factors to which the Tribunal will have regard, may point against granting an extension. For examples of this approach see Re Novosel and Comcare [2011] AATA 182; (2011) 121 ALD 172 at [30]; Re Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280; (2011) 121 ALD 184 at [18].

Strength of the applicant’s case 6.20 One of the most significant issues influencing the decision of the AAT whether to grant an extension of time to apply for review of a decision has been the strength of the applicant’s case for setting aside the decision. The apparent merit of the applicant’s case weighed heavily in the decision to grant an extension of time in Re Edward Souery & Co Pty Ltd and Export Development Grants Board (1985) 9 ALN N18; Re Children’s Activities Time Society Inc and Collector of Customs, WA (1986) 9 ALN N111; Re CSIRO and Barbara (1987) 11 ALD 447; and Re Industrial Lighting Pty Ltd and Australian Industrial Research and Development Incentives Board (1987) 13 ALD 407. In Re Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care [2000] AATA 72; (2000) 58 ALD 285, affd on appeal Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd [2001] FCA 75; (2001) 65 ALD 76, it was said that, had it not been for the strength of the applicant’s case, an extension of time would have been refused. In Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520 the Tribunal noted the reverse of this — it is not required to investigate further than to see whether the applicant’s case has an obvious weakness or is unlikely to succeed. If there is no prospect of success, an extension will not usually be granted: Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479; Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121; Re Gilmore and Dairy Adjustment Authority [2005] AATA 259; (2005) 85 ALD 422. See also Re Confidential and Child Support Registrar [2010] AATA 577; (2010) 116 ALD 623 where the Tribunal [page 83] undertook an examination of the issue whether it had jurisdiction to review the decision that the applicant was seeking to review — and concluded that it did not. It is not an error of law for the AAT to take the merit of the applicant’s case into account when considering whether to grant an extension of time provided it recognises that the information before it may be incomplete: Moodie v Department of Defence (1993) 30 ALD 813. However, the Tribunal should not undertake a merits review of the decision

on an extension of time application: Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd, above. Because of this, there may be circumstances which are inappropriate for the Tribunal to consider on an extension of time application. For example, whether ‘special circumstances’ exist justifying the alleviation of a statutory provision cannot be resolved on such an application. Accordingly, the Tribunal should be slow to dismiss an application for an extension of time where this forms the substantive issue to be resolved on the appeal: Re Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45; (2011) 119 ALD 675. A Full Federal Court in Commissioner of Taxation v Brown [1999] FCA 1198; (1999) 99 ATC 4852 at [18] endorsed the following principles for considering the substantial merits of an application in relation to an application for an extension of time: (i)

In determining whether a taxpayer seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit. (ii) The arguable merits test requires the taxpayer’s case to be assessed at its highest. (iii) It follows that, in applying the arguable merits test, findings of credit have no place. In other words, it is an error of law for the AAT to decide that the taxpayer’s objection has no arguable merits on the basis that the taxpayer’s evidence is not worthy of belief. (iv) Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer’s witnesses with the view to testing the veracity of their evidence so far as the merits of the objection were concerned. This decision was applied by the Tribunal in Re Spencer and Commissioner of Taxation [2007] AATA 1194; (2007) 100 ALD 389 at [41].

Significant issue to be determined 6.21 The exhortation from Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 that ‘where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time’ was quoted in Re Reserve Bank of Australia and Comcare and Munivrana (1989) 18 ALD 281 and Re Appleton and Telstra Corporation Ltd

(1993) 32 ALD 357 as a ground for a favourable exercise of discretion to extend time. In similar terms Davies J in Baker v Secretary, Department of Social Security (1991) 23 ALD 305 referred to the fact that an extension of time was desirable because the issue in question was of wide application and ought therefore to be resolved. [page 84]

Potential financial loss 6.22 The potential financial loss to the applicant was a factor favourable to the application in Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97; and Re Edward Souery & Co Pty Ltd and Export Development Grants Board (1985) 9 ALN N18. Likewise the fact that a substantial sum had been paid to a person who had failed to disclose relevant information was significant in extending the time for the agency to appeal in Re CSIRO and Barbara (1987) 11 ALD 447.

Prejudice to the respondent or other persons affected by decision 6.23 Prejudice to the respondent to an application for an extension of time is a major factor that is taken into account by the Federal Court and the AAT. It has been emphasised by the court in relation to applications under the AD(JR) Act, although not always given as much weight as might have been expected: see Australian Administrative Law (LexisNexis) at [355]. The AAT has tended to discount claims of prejudice through passage of time where the respondent is the government: Re Edward Souery & Co Pty Ltd and Export Development Grants Board (1985) 9 ALN N18; Re Children’s Activities Time Society Inc and Collector of Customs, WA (1986) 9 ALN N111; Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520; and Re Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158. However, a three-year delay by Telecom in seeking to review a compensation award in favour of an employee was considered to prejudice the employee unfairly. The person compensated was entitled to rely on the decision: Re Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349. A like approach was taken in Re Smith & Nephew (Aust) and Department of Health, Housing and Community Services

(1992) 29 ALD 280 to reject a late application where the action was directed to challenging the validity of a competitor’s registration of goods. If the delay has resulted in the loss of evidence that would be essential to determination of the issue, the extension may be refused: Re Stevenson and Commonwealth (1987) 13 ALD 524; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248. In Deighton v Telstra Corporation Ltd (1997) 46 ALD 360 at 366 the applicant’s entry into a deed acknowledging the payment of a sum for compensation and agreement to a consent dismissal was held to count against the grant of an extension of time to reopen the matter. See also Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281 where the point is made that the AAT does not have power to review its own decisions, including those made by consent. However, if prejudice to a party is a ground of objection to an extension of time, it is desirable for the party asserting prejudice to lead evidence in support of the claim. It will not automatically be inferred from delay alone: Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235; Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451 at [38] (but cf the conclusion at [62]). In particular, the argument should not be put by a decision-maker as a [page 85] template response: Re Elliott and Swire Pacific Ship Management (Australia) Pty Ltd [2011] AATA 942; (2011) 125 ALD 132. However, the time lapse may be so great that it will be reasonable to infer that the respondent will be prejudiced: Re Williams and Defence Force Retirement and Death Benefits Authority [2004] AATA 921; (2004) 83 ALD 671 (27 years after the relevant decision which involved medical assessments); Re Gilmore and Dairy Adjustment Authority [2005] AATA 259; (2005) 85 ALD 422 (Authority had wound down as it completed its statutory function). Prejudice to others who have relied on the decision will also be a basis for declining an extension of time: Re Petuna Management Pty Ltd and Australian Fisheries Management Authority (1999) 54 ALD 130. Prejudice is less likely to arise if the respondent is aware of the applicant’s continuing concerns with the decision. It is not necessary for the applicant to bring those concerns to the attention of the decision-maker formally; it is

sufficient if the agency making the decision is aware of the position: Agar v Australian Postal Corporation (1998) 56 ALD 361 at 370. However, the fact that an applicant had sought to change the policy on which a decision was based did not constitute an indication that he was intending to challenge the decision affecting him: Re Gilmore and Dairy Adjustment Authority, above. Where the decision-maker was in a position to avoid any prejudice arising from the lapse of time, the delay will not be seen as a basis for refusing an extension of time. So in Re Rosenzweig and Military Rehabilitation and Compensation Commission [2012] AATA 228; (2012) 130 ALD 284 where an applicant had made a claim for a medical condition on the basis that it was a disease, and the respondent had failed to consider whether the condition constituted an injury simpliciter, it was held that the respondent could not rely on prejudice due to its own failure to investigate the claim on that alternative basis. More general reliance on the decision will also be relevant to the consideration of the grant of an extension. So the fact that the determination of a sentence for a criminal offence had taken into account the decision is a basis for refusing the opportunity to challenge it: Re Jorgensen and Australian Securities and Investments Commission [2001] AATA 424; (2001) 64 ALD 537.

Resting on rights 6.24 While, as indicated above, it is not mandatory for an applicant to provide an explanation for a delay, where a person has been aware of their right to seek review but has not pursued it, it is reasonable to expect that there should be some reason given to explain the delay. In Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381 the Tribunal declined to grant an extension of time to apply because it was satisfied that the applicant in each case was fully aware of the right to seek review of the decision in question and did nothing. An applicant cannot simply rest on his or her rights and then seek the indulgence of the AAT. See also Re Custodial Ltd and [page 86] Australian Securities and Investments Commission [2005] AATA 775; (2005) 88 ALD 510 where the Tribunal was also influenced by the fact that the application for

review would involve the revisiting of a matter that had already been the subject of a Tribunal decision. However, there may be circumstances that justify the apparent dilatoriness. In Re Conti and Secretary, Department of Family and Community Services [2005] AATA 199; (2005) 82 ALD 691 medical evidence indicated that the applicant had psychological difficulties in lodging the application. Similarly, in Re Confidential and Executive Director, Social Security Appeals Tribunal [2009] AATA 172; (2009) 110 ALD 413 the applicant’s personal problems and an inability to understand how to seek review of the decision, coupled with attempts to raise his concerns with the decision-maker, were deemed to be sufficient explanation to justify the extension of time. The pursuit of an alternative means of review will not necessarily amount to resting on rights: Re Petkovska and Telstra Corporation Ltd (1993) 31 ALD 767. In considering explanations for delay, the Tribunal should look at the whole of the period involved not just the reasons why a person may not have acted during the period in which the review application should have been made: Agar v Australian Postal Corporation (1998) 56 ALD 361.

Length of delay 6.25 The significance of the length of time that has elapsed after the expiry of the period allowed for seeking review will normally be reflected in other bases for the exercise of the discretion, particularly the possibility of prejudice to a respondent and the consideration of whether an applicant can be said to have rested on his or her rights. However, in Re Dolan and Comcare (1993) 29 ALD 887 the AAT warned against it being assumed that the AAT will always grant short extensions of time. In Re Secretary, Department of Family and Community Services and Roberts [2003] AATA 269; (2003) 73 ALD 412 the Tribunal refused, in the unusual circumstances of the case, to grant an extension of one day.

Misinformation as to rights 6.26 Where an applicant has received incorrect or misleading information as to his or her review rights from an official source the case for granting an extension of time to apply would seem to be strong: Re Bonavia and Department of Social Security (1985) 9 ALD 97; Re Woodman and Comcare Australia (1994) 34 ALD 782; Re Forsyth and Federal Privacy Commissioner; ACT Government Solicitor (party joined) [2003] AATA 916; (2003) 76 ALD 185.

Fault of legal or other adviser 6.27 An issue that has come before the AAT on a number of occasions when considering extension applications is whether the failure of an applicant’s adviser to act within the required time is an excuse for lateness. While some variants in views were expressed by the AAT, the matter now seems to have been resolved by the [page 87] Federal Court in Comcare v A’Hearn (1993) 45 FCR 441; (1993) 119 ALR 85 where it was held that delays by a solicitor in commencing proceedings need not be visited upon a client. It must also be clear that there is some fault on the part of the solicitor. Where there are interchanges between the solicitors for the parties towards settlement of a claim, it may well be that the solicitors for the applicant will assume that the time for lodging a review application will not be an issue that is raised: Re Elliott and Swire Pacific Ship Management (Australia) Pty Ltd [2011] AATA 942; (2011) 125 ALD 132. The same approach has been adopted where it is apparent that the reason for the delay in applying is attributable to the actions of another person purporting to act as adviser to the applicant (SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (2012) 130 ALD 472), or where it is shown that the failure to commence proceedings within the required time is due to third party material dishonesty such as to constitute a fraud on the tribunal: SZQVV v Minister for Immigration and Citizenship, above.

Pursuit of other means of review 6.28 The fact that an applicant has chosen to seek redress through other avenues will not be a bar to an extension of time. In particular, an application brought under the AD(JR) Act is not a bar because such an application is based on the lawfulness of a decision while an AAT application is concerned with its merits: Re Jorgensen and Australian Securities and Investments Commission [2001] AATA 424; (2001) 64 ALD 537. The matter will depend upon the factors mentioned in the preceding paragraphs and whether there are issues to which the AAT might

have regard that have not already been dealt with: Re Petkovska and Telstra Corporation Ltd (1993) 31 ALD 767.

Ignorance of appeal rights 6.29 Ignorance of appeal rights will be taken into account when considering an applicant’s position: Re Children’s Activities Time Society Inc and Collector of Customs, WA (1986) 9 ALN N111; Re Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158. More particularly will this be so where the decision-maker has not brought the right of appeal to the applicant’s attention: Re Edward Souery & Co Pty Ltd and Export Development Grants Board (1985) 9 ALN N18; Re Children’s Activities, above. There is a salutary lesson in this for decisionmakers who want to be able to close their files; likewise in Re Sam Mercorella Pty Ltd and Australian Apple and Pear Corporation (1987) 12 ALD 520 where the delay was due to attempts to obtain reasons from the decision-maker.

Absence of other applicants 6.30 In Re Industrial Lighting Pty Ltd and Australian Industrial Research and Development Incentives Board (1987) 13 ALD 407 the fact that there were no other applicants who would also be seeking to challenge like decisions out of time was seen as a factor that could be taken into account in favour of the grant of the extension. [page 88]

Commonwealth as applicant for extension 6.31 There are some decisions against which it is possible for the Commonwealth decision-maker to appeal to the AAT, for example, Comcare decisions. Time limits apply to such applications. It would appear that the general approaches set out above will apply also to applications for an extension of time made by the Commonwealth. However, in Re Secretary, Department of Family and Community Services and Roberts [2003] AATA 269; (2003) 73 ALD 412 the Tribunal was not moved by an argument that the Department had been misled by Centrelink in its understanding of the last day for lodging an appeal. The functions of the two bodies were so intertwined that it was not reasonable

for the Department to rely upon the agency for its advice. It was also relevant that the person affected by the decision was pressing the Department to ascertain its intention whether or not to appeal. These factors will be relevant in other cases where the Commonwealth is seeking an extension of time to lodge an application.

Previous dismissal of application for review 6.32 Where an application for review has been dismissed under s 42A(2) of the AAT Act for failure to appear (see 15.6), an application may be brought for it to be reinstated (see 15.8). However, a person may choose to make a fresh application and in such a case is likely to have to seek an extension of time to do so. The Tribunal has ruled that it has jurisdiction to hear a second application and to grant an extension of time in which the application can be brought: Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Re Allegretto and Telstra Corporation Ltd [2011] AATA 867; (2011) 125 ALD 536. See 6.33 in relation to further applications for an extension of time.

Further applications for extension of time 6.33 The question whether a person may make a further application for an extension of time after either withdrawing an application or being unsuccessful in a first application has exercised both the AAT and the Federal Court. The principal discussion is to be found in Comcare Australia v Grimes (1994) 50 FCR 60; 33 ALD 548. It appears from that decision that there is no jurisdictional bar to the consideration of a second application. The AAT is in charge of its procedure and it can exercise its discretion to allow an application to proceed even though it has given a previous ruling to the contrary. However, the chance of a second application succeeding is in most cases low: Browne v Minister for Immigration and Multicultural Affairs and Chappell (1998) 52 ALD 550 at 563.

Extension of time where previous review application withdrawn 6.34 Where an applicant has previously withdrawn an application for review, the Tribunal has jurisdiction to consider a second application and thereby an

[page 89] application for an extension of time to lodge it: Re Stevenson and Commonwealth (1987) 13 ALD 524; Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Re Head and Australian Telecommunications Corporation [1992] Admin Review 112; Re Hunter and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 1062; (2006) 100 ALD 140. The Tribunal in Mulheron said ‘where an applicant consented to dismissal of his or her application as part of a settlement agreement which has been honoured by the respondent, the factors favouring the grant of an extension of time would have to be very strong indeed’ (at 315). However, it noted that the position might be different if the applicant did not understand the significance of the action being agreed to. In Re Tuysuz and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1176; (2008) 106 ALD 661 the Tribunal paid particular heed to the fact that the fresh application for which an extension of time was sought was made soon after the original decision and that the respondent was thereby not disadvantaged. Generally it would seem that the Tribunal will have regard to the same factors as apply to an application for an extension of time to lodge an original application. However, if the applicant appears to be a serial withdrawer, the position might be different: see Mulheron, above, at 315.

Effect of lodging application for review 6.35 The lodging of an application for review gives an applicant the right to have the decision in question reviewed. Legislation that affects the decision under review does not take away that right in the absence of express words. In Esber v Commonwealth (1992) 174 CLR 430 at 440; 106 ALR 577 at 583 the majority of the High Court said: Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’ (Mathieson v Burton (1971) 124 CLR 1 at 23 per Gibbs J; and see Robertson v City of Nunawading [1973] VR 819). Nor was it a mere matter of procedure (see Newell v R (1936) 55 CLR 707 at 711–

712); it was a substantive right. Section 8 of the Acts Interpretation Act [1901 (Cth)] protects anything that may truly be described as a right, ‘although that right might fairly be called inchoate or contingent’ (Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552; [1964] 1 All ER 457). However, a distinction must be drawn between a decision having immediate effect, for example, the cancellation of a pension, and a decision relating to a future right. In the former case the Tribunal applies the law as at the date of the decision; in the latter as at the date of the Tribunal’s decision: see 16.18. This can mean that, in the absence of express words, the right of review is not lost, but the context in which the matter is to be considered on the review may be changed. See also Re Pacific Hydro Ltd and Office of the Renewable Energy Regulator [2005] AATA 752; (2005) 87 ALD 580. See Chapter 14 in relation to staying the operation of a decision pending review.

[page 90]

CHAPTER 7 PARTIES TO REVIEW APPLICATIONS: AAT PARTIES TO PROCEEDING BEFORE AAT: SS 30 AND 30A 7.1 The applicant for review and the person who made the decision that is subject to review are obviously the principal parties to a proceeding. But, in addition and except in regard to reviews in the Migration and Refugee Division, other persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision under review may apply to the Administrative Appeals Tribunal (AAT) to be made a party to the proceedings: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 30(1) (d), 30(1A). The Attorney-General may intervene in proceedings and thereby becomes a party to the proceedings: ss 30(1)(c), 30A. Sections 142 and 142A of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) and the equivalent provisions in the other social welfare legislation identify the decision-maker and thus the party to an application for the purposes of a first-tier review application to be heard in the Social Services and Child Support Division. An application to be made a party to a proceeding must be in writing and may be made in accordance with the form on the AAT website. Apart from this requirement, the legislation is silent as to the procedure for dealing with such an application. Nor are any provisions included in the Act or regulations relating to the time within which an application can be made. It would seem therefore that, subject to the matters going to the discretion to allow an application set out in

7.2–7.3, an application for joinder could be made at any time up until the decision on the proceeding is given. There is one significant contrast between s 27 of the AAT Act relating to applicants for review (see 5.1) and the persons who may seek to become parties to an application. There is no provision equivalent to s 27(2) (see 5.2) broadening the [page 91] range of persons who may be parties to include unincorporated associations. Subsections 30(1)(d) and 30(1A) of the Act are the crucial provisions in the expansion of the category of those permitted to be parties beyond the immediate group of applicant and decision-maker. Those provisions refer only to a ‘person’. This led the Federal Court to hold in Arnold (on behalf of Australians for Animals) v Queensland (1987) 13 ALD 195 that an unincorporated association could not be joined as a party to proceedings. Section 27(2) would allow such a body to be an applicant but it could not seek to be joined to an application. In so concluding, the court overruled a contrary direction of the AAT in Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262. A person may only be joined as a party to the whole proceeding and not just part of it: Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [198]; Re ABCD and Commissioner of Taxation [2008] AATA 898; (2008) 50 AAR 287 at [87]–[114]. Once a person has been joined as a party, the person may be directed to do something that can be required of an applicant such as lodging a Statement of Facts and Contentions or producing material. If the party joined fails to appear either in person or by a representative at a directions hearing, alternative dispute resolution process or at the hearing of a proceeding, the Tribunal may direct that he or she ceases to be a party to the proceeding: AAT Act s 42A(2)(b). However, if the person does not comply with a direction within a reasonable time, the Tribunal has no power to direct that he or she cease to be a party. The Tribunal’s powers in that situation are limited to a failure to comply by the applicant: s 42A(5). See General Merchandise, above, at [201]. Regard should also be had to the ABCD case, above, in which it is suggested that, notwithstanding the status of

the joined party, its contribution to and engagement in the proceedings can be modified by appropriate directions under s 33 of the AAT Act: at [121]–[123]. Section 39A(2) sets out the parties to reviews in the Security Division relating to security assessments. Apart from the Director-General of Security and the applicant, the Commonwealth agency to which the security assessment is given is entitled to adduce evidence and make submissions on the review. This provision applies in place of ss 30 and 30A. See also 13.5–13.6 in relation to the appropriate body to represent the Commonwealth where it is a party to a proceeding.

DISCRETION TO ALLOW PERSON TO BECOME PARTY 7.2 When first enacted, s 30 of the AAT Act contained no provision empowering the AAT to refuse to permit a person to become a party to proceedings. This was noted in the first application to be considered by the AAT. In Re Phillips and Secretary, Department of Transport (1978) 1 ALD 341 the AAT said that a person applying to be [page 92] joined as a party to a proceeding pursuant to s 30(1)(c) (now s 30(1)(d)) has to satisfy three criteria: there must be an application to the AAT to be made a party; the application must be made by ‘a person’; and the interests of the ‘person’ must be affected by the decision. Once those criteria had been satisfied, the AAT had no discretion to refuse the application for joinder. However, this view was qualified in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74. The AAT there agreed that, while joinder of a person as a party was not a discretionary matter, nonetheless this did not mean that the AAT could not refuse an application in appropriate circumstances. If a person is dilatory in applying and the expeditious resolution of the proceedings would be impeded if

the application were allowed, the application might be refused. Likewise, if the reason for seeking joinder was not related to the objects of an incorporated organisation but to further some other interest, joinder might be questioned. The AAT summarised its view of the position in the following terms (at 81): While it will ordinarily be the duty of the tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits. This balancing approach was reiterated with reference to the restatement of the AAT’s objective in 2005 (see 1.7–1.8) in Re Coonan and Commissioner of Taxation [2006] AATA 329; (2006) 90 ALD 472 at [21]: In performing its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 2A, AAT Act). Those values stand in relation to each other. No one stated objective is to be advanced without reference to and consideration of the other stated objectives. Economy and quickness, however desirable, do not outweigh fairness, but are measured in relation to it. In the circumstances it is proper and fair to permit those seeking standing in these proceedings, whose interests are affected by the decision under review, to present their cases and be heard. It is also proper and fair to bring these proceedings to conclusion without undue delay or any unreasonable increase in costs to the existing parties. See also Re The Australian and Department of Families and Community Services and Indigenous Affairs [2006] AATA 755; (2006) 92 ALD 179 at [56]–[58]. There is no reason to think that the 2015 restatement of the Tribunal’s objective would have any effect on this analysis. 7.3 The discretionary nature of the joinder power has been affirmed by the inclusion of s 30(1A) in the Act, but it was made clear in Re C and Collector of Customs (NSW) (1983) 5 ALN N222 and Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262 that the matters referred to in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74

[page 93] still condition the exercise of the discretion. The issue was also discussed in detail in Re City of Doncaster and Templestowe and Minister for Community Services and Health (1987) 12 ALD 13; Re Peters and Department of Health and Aged Care (1999) 56 ALD 561; Re Apache Energy Pty Ltd and Chief Executive Officer of the National Off shore Petroleum Safety and Environmental Management Authority [2012] AATA 298; (2012) 132 ALD 559. In Melsom v Deputy President Forrest (1996) 42 ALD 261 the Federal Court indicated that a court should be slow to interfere with the exercise by the AAT of this discretion. These later cases emphasise the need for the AAT to take into account, in addition to the matters referred to in Control Investments, above, the position of the original parties to the application and in particular the inevitable increase in cost and likely delay that the addition of parties to the proceedings will bring. The AAT said in Re Sew Eurodrive Pty Ltd and Collector of Customs (1994) 35 ALD 790 that it was unnecessary to produce evidence to support the proposition that joinder of a party would increase the cost of the proceedings. This view was confirmed in Melsom’s case, above. In Re Marine World, above, the AAT only consented to the addition of the applicant parties if they agreed to be jointly represented at the hearing. The AAT was satisfied that there was sufficient commonality in their interests for this to be practicable. However, if a party was not willing so to agree, the application for joinder was rejected. In Peters’ case, above, the parties joined were limited to making a written submission on the issue that justified their joinder. By contrast, in the City of Doncaster case, above, the joinder of the applicant would of necessity have required a similar right to be offered to a number of other persons who would be affected if the original decision were overturned. These persons did not have a common interest. The factors referred to in earlier decisions accordingly militated against joinder and the application was refused. The allusion in this case to the interests of other parties stems from the fact that the AAT sees itself as under an obligation to bring an application before it to the attention of a person likely to be affected by the decision and to invite that person to apply to be made a party: Re Mrs B and Director-General of Social Security (1984) 6 ALD 609. However, the AAT cannot compel a person to become a party to an application even though a party may wish another person to be

joined in the proceedings: Re Prodan and Secretary, Department of Family and Community Services [2002] AATA 1134; (2002) 71 ALD 401. Re Marine World, above, followed in Re Boyd and Comcare (1991) 23 ALD 392, also indicated that the person seeking to be joined must show interests that are different from those of the parties to justify an order for joinder. However, this reading of Re Marine World was not accepted by the Tribunal in Apache Energy, above, at [11]. It was said there that the approach in Marine World was driven by the fact that there were a number of parties seeking joinder, all of whom had the same interest. The case did not support a general proposition that an applicant for joinder must be able to show interests different from those of the original parties to the application. [page 94] In Melsom’s case, above, and in Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738 and Re Davey and Australian Electoral Commission [2013] AATA 794; (2013) 137 ALD 184 each applicant for joinder was considered to be affected by the decision under review but joinder was refused because their interests could be adequately represented by the parties to the application. It would seem necessary for applicants for joinder to make their case based on the effect of the application on their interests and the desirability for them to be joined in order for the Tribunal to reach the correct and preferable decision. On the latter point see Apache Energy, above, at [18]. In Boyd’s case, above, it was noted that, as a joinder order can be made at any time, if it becomes apparent that a person’s interests will assist the Tribunal, a joinder order can then be made. Having regard to the obligation of the Tribunal to base its decision on the facts as they stand at the date of its decision (see 16.20), the Tribunal in Re Mulholland and Australian Electoral Commission [2011] AATA 717, affd on appeal: Mulholland v Australian Electoral Commission [2012] FCAFC 136 and in Davey’s case, above, joined the person whose appointment to a position was the subject of the applicant’s challenge. Joinder may be permitted subject to conditions as to the matters that the party joined may raise in the proceedings (Re The Australian and Department of Families, Community Services and Indigenous Affairs [2006] AATA 755; (2006) 92 ALD 179)

where the party joined in opposition to a Freedom of Information request was restricted as to the exemptions from disclosure that it could argue. Where a party has died after the hearing of an application but before the decision of the AAT has been made, it is necessary for a party to be joined to empower the AAT to give its decision: Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326, distinguishing the High Court decision in Ryan v Davies Brothers Ltd (1921) 29 CLR 527 and earlier AAT decisions on the basis that the AAT is an administrative body not a court. See further 7.9. Section 44(2) permits an appeal to be brought against a ruling that a person is not entitled to be joined as a party: see further 5.3, 19.10. However, a decision permitting a person to become a party to an application may only be challenged under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or the Judiciary Act 1903 (Cth): see 19.60–19.62.

PERSONS JOINED AS PARTIES 7.4

Applications for joinder have been allowed in the case of: the former wife of a deportee: Re Khan and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N142; [page 95] the parents of a deceased serviceman who were the personal representatives of his intestate estate: Re Saint-James and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N92; an association of aircraft engineers in an appeal against a refusal to grant a person an aircraft engineer’s licence: Re Phillips and Secretary, Department of Transport (1978) 1 ALD 341. (However, this case may no longer be followed. See the decisions referred to in 7.5–7.6 refusing party status to representative associations); the wife of an applicant seeking review of an order allocating child endowment to her: Re Dowling and Director-General of Social Services (1981) 4 ALN N203;

the agent of an exporter that would have been obliged to repay a grant if the exporter’s appeal were successful: Re Western Australian Lamb Marketing Board and Export Development Grants Board (1982) 4 ALN N192; a television licensee whose interests would be affected if a ruling of the Australian Broadcasting Tribunal in relation to other licensees were sustained: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 3) (1981) 4 ALD 1; a pharmacist whose business would be affected should an applicant’s appeal against the refusal of permission to open a pharmacy be granted: Re Malouf and Australian Community Pharmacy Authority (1996) 42 ALD 390; a state government authority whose activities were affected by a decision of a Commonwealth agency: Re Dixon and Australian Fisheries Management Authority [1999] AATA 1024; (1999) 57 ALD 481; Re Justice and Australian Fisheries Management Authority [2001] AATA 918; (2001) 65 ALD 601; the ACT was entitled to be joined as a party as it was a person. However, joinder was refused on the discretionary grounds referred to in 7.2–7.3: Re Keys and Comcare [2007] AATA 1667; (2007) 99 ALD 330; an agency against whom an order to pay compensation might be made had sufficient interest to justify its being made a party to proceedings: Re Forsyth and Federal Privacy Commissioner; ACT Government Solicitor (party joined) [2003] AATA 916; (2003) 76 ALD 185; persons who had Freedom of Information (FOI) applications rejected had sufficient interest to be joined as parties in a subsequent case that challenged a refusal to give access to documents on the same basis as that on which the persons were refused access: Re Peters and Department of Health and Aged Care (1999) 56 ALD 561; an authority had an interest in opposing the release of documents being sought in an FOI application on the basis of a claim of privilege in relation to the information in the documents: Re Coonan and Commissioner of Taxation [2006] AATA 329; (2006) 90 ALD 472; [page 96]

a company had an interest to be joined as a party to oppose the release of documents in an FOI application because the release would disclose its intellectual property: Coonan’s case, above; a newspaper seeking access to documents held by an agency was entitled to be joined as a party to an application opposing the release of those documents by the agency: Re Einfeld and Human Rights and Equal Opportunity Commission [2007] AATA 1507; (2007) 96 ALD 441; an Aboriginal council could be joined subject to conditions where it was named in a report following an investigation under the Native Title Act 1993 (Cth) and it claimed that the whole or part of the report was exempt from disclosure: Re The Australian and Department of Families, Community Services and Indigenous Affairs [2006] AATA 755; (2006) 92 ALD 179; directors of a superannuation fund trustee had an interest in being joined as parties as it was their conduct that would be the subject of the review and an adverse finding against the trustee might well result in action being taken against them: Re VBN and Australian Prudential Regulation Authority (No 1) [2005] AATA 861; (2005) 92 ALD 437; a company that produced similar goods and thereby could be a producer of substitutable goods was appropriate to be joined as a party to a decision challenging a refusal to make a Tariff Concession Order. It was also of relevance in that case that the company seeking joinder would be in the best position to adduce relevant information on the application for review: Re Stemcor Pty Ltd and Chief Executive Officer of Customs [2007] AATA 1347; (2007) 95 ALD 462; the Australian Securities and Investments Commission (ASIC) was joined as a party to an FOI application directed to the Commissioner of Taxation by a person whose conduct ASIC was investigating: Re ABCD and Commissioner of Taxation [2008] AATA 898; (2008) 50 AAR 287; and the person whose appointment had been approved by the Commission and which was the subject of the appeal to the Tribunal was joined as a party: Re Mulholland and Australian Electoral Commission [2011] AATA 717, affd on appeal: Mulholland v Australian Electoral Commission [2012] FCAFC 136; Davey v Australian Electoral Commission [2013] AATA 794; (2013) 137 ALD 184. Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3

ALD 74 also serves as an example of the Commonwealth being made a party to proceedings. See further 5.7 for persons held to have sufficient interest to bring an application for review. It could be expected that these persons would also have been held to be affected for the purpose of being joined as a party if that issue had arisen. In Re Mitsubishi Motors Australia Ltd and Department of Transport (1986) 11 ALN N253 the AAT added as a party a person to whom access to certain documents were to be given under the Freedom of Information Act 1982 (Cth). The applicant was [page 97] seeking the overturning of the decision of the respondent to make the documents available to the person. The AAT considered that there could not be a much clearer case of a person who would be affected by the application than the prospective recipient of the documents. The issue of keeping the documents from the party joined until the AAT’s decision was said to be a matter that could be dealt with at the hearing. An appropriate order could be made under s 35(2): see 11.9.

WHEN INTERESTS ‘AFFECTED’ 7.5 It is necessary to bear in mind that s 30(1A) of the AAT Act refers to a person whose interests are affected ‘by the decision’. So a company that was interested in a case because it concerned jurisdictional issues that also arose in other actions in which the company was an applicant was refused the right to become a party. The interests of the applicant for joinder must be affected by the decision under review not the review itself. The decision-maker could not and had not made any decision pertaining to the AAT’s jurisdiction and accordingly there was no decision affecting the company before the AAT: Re F J Rose and Sons Pty Ltd and Collector of Customs (1982) 5 ALN N346. See also Re Faulkner and Repatriation Commission (1990) 19 ALD 194 and the discussion at [1994] Admin Review 47 of Re Sanyo Australia Pty Ltd and Comptroller-General of Customs (1994) 33

ALD 787 and Re Coiltech (Aust) Pty Ltd and Collector of Customs (1994) 33 ALD 781. (Note that the joinder issue is not included in the reports of those cases.) To make a case it must be clear that the person seeking to be joined in the application has an interest in the subject matter of the application and not some associated matter. So the Australian Securities Commission (ASC) was refused leave to become a party to an application objecting to the discharge of a bankrupt because the ASC’s interest was in preventing the bankrupt from managing a company and that was only a side effect of the bankruptcy: Re Price and Official Trustee in Bankruptcy (1998) 49 ALD 785. The ASC had power to achieve its aim through other types of actions and it was not fair to the respondent that it should be able to use the happenstance of an AAT application instead of these. See also Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 54 ALD 433. The general question of when a person’s interests are affected was discussed in 5.5–5.6 in relation to who may apply for review of a decision. Re C and Collector of Customs (NSW) (1983) 5 ALN N222 stated that the same test is applicable when considering whether a person may be made a party to proceedings. The issue has arisen in its clearest form when applications for joinder have been made by bodies who claim that their objects refer to the subject matter of the application. In Re Maunsell & Partners Pty Ltd and Maunsell Consultants and Export Development Grants Board (1980) 2 ALD 813 and Re C, above, the AAT indicated that this may not be enough. It is necessary to be sure that the decision under challenge really impinges on the object in question. In Maunsell’s case, an application to extend the time within [page 98] which to make a claim for an export grant was held not to come within the ambit of the interests of a professional body concerned generally with the interests of exporters. In Re C an application to review a decision suspending a customs agent’s licence pending an investigation was held to fall outside the objects of the Customs Agents Institute. See also Re Dixon and Australian Fisheries Management Authority [1999] AATA 1024; (1999) 57 ALD 481. 7.6

The approach adopted in these cases may be thought to adopt an unduly

narrow interpretation of ss 27(2) and 30(1A), but the AAT has apparently been influenced by the views expressed above in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1981) 3 ALD 74 relating to the need to expedite proceedings. The thinking seems to be that the addition of extra parties can only delay proceedings and professional representative bodies should not be readily permitted to join in the proceedings. This was the approach followed in Re Catholic Education Office and Human Rights and Equal Opportunity Commission [2003] AATA 899; (2003) 75 ALD 608 to reject an application by an education employees’ union to be made a party. The fact that the union had made a submission to the respondent in the course of its inquiry was not sufficient in itself to warrant adding the union as a party. It was also relevant there that the Tribunal considered that the respondent was capable of providing adequate assistance to it to reach the correct and preferable decision. These later cases and the inclusion of s 2A in the AAT Act may well cast some doubts on the continuing applicability of Re Phillips and Secretary, Department of Transport (1978) 1 ALD 341: see 7.2–7.3. In Re C and Collector of Customs (NSW) (1983) 5 ALN N222 the AAT distinguished Re Phillips on its facts. However, in Re Mackay Permanent Building Society Ltd and Australian Securities and Investments Commission [2005] AATA 574; (2005) 87 ALD 769, the body representing credit unions in Australia was joined as a party on the basis that it had been involved in the formulation of the sections of the Act that were under consideration in the application to the Tribunal and its members had an interest in the formulation of policies and precedents under the relevant sections by the respondent. Where it is clear that the interests of an organisation are directly affected by a decision, it has every right to be heard in a case: Re Commonwealth and Nolis (1983) 5 ALD 315. As with the right to apply for review of a decision, concern about increased commercial competition is not sufficient to constitute an interest: Re Dixon and Australian Fisheries Management Authority [1999] AATA 1024; (1999) 57 ALD 481, following Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250; 32 ALD 71. Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262 added two points of significance to the issue of the question whether a person is affected by proceedings that do not arise in the context of s 27. The fact that a person has had an opportunity to influence the decision under review when it

[page 99] was being made does not prevent that person becoming a party to any subsequent review proceedings. The initial conduct does not, as it were, exhaust the person’s rights. Conversely, the mere fact that a person has taken part in some way in the decision-making process, for example, by making a submission, does not mean that person has a right to be a party to subsequent review proceedings. It is necessary to show that the person has interests that have been affected. A person does not have to be affected adversely by a decision to make out the right to be joined as a party. A person whose interests are affected beneficially by a decision under review may apply to be joined to support the original decision: Re Sew Eurodrive Pty Ltd and Collector of Customs (1994) 35 ALD 790. See 5.3 in relation to the power of the AAT to determine the parties to an application for review.

RIGHTS OF PARTIES JOINED 7.7 A party who has been joined to proceedings has, in the absence of a condition in the joinder order, the same right to present evidence and make representations as the original parties: Re Parisi and Australian Federal Police (1987) 14 ALD 11. However, a party joined can elect not to call evidence. It is open to it to protect its interests in whatever way it thinks fit: Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [202].

FAILURE OF PARTY TO PROCEEDING TO APPEAR: S 42A(2) 7.8 Other than in the Migration and Refugee Division, where a party to a proceeding before the AAT (other than the decision-maker) fails either to appear in person or by a representative at a preliminary conference or at the hearing of

the proceeding, the AAT is empowered, where the only other party to the proceeding is the decision-maker, to dismiss the application. See further 15.6–15.7. Under ss 362B and 462A of the Migration Act 1958 (Cth) (Migration Act), where an applicant fails to appear before the Tribunal, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Such a decision is likely to be that the application be dismissed. However, it is possible that the Tribunal will find that there is a deficiency in the original decision and set it aside.

DEATH OF PARTY TO PROCEEDINGS 7.9 No provision is made in the AAT Act relating to what is to happen with an application if the applicant dies after it has been commenced. The matter was fully considered in Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 [page 100] (some earlier decisions not being followed). The AAT ruled that where the statutory entitlement that the applicant was pursuing before the AAT was not capable of devolving to another on death, the death of the applicant would extinguish the availability of the entitlement and with it the power of the AAT to make an order in relation to the original decision. On the other hand, where the entitlement does devolve on death, the person to whom it devolves is entitled to continue the application but must apply to be made a party to the proceedings. Until such an application is made, the AAT has no jurisdiction to review the decision. Proceedings in the Migration and Refugee Division would terminate on the death of an applicant as only the persons specified in the Migration Act may seek review.

[page 101]

CHAPTER 8 PROCEDURE AT HEARING: GENERAL PROCEDURAL ISSUES PROCEDURE OF TRIBUNAL: PT 4 8.1 Part 4 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) sets out the general principles that determine the procedure to be followed by the AAT in hearing applications for review of decisions. However, proceedings dealt with in the Migration and Refugee Division are expressly excepted from this Part: s 24Z. Notwithstanding this exception, the procedures in the General Division and the decisions of the courts and the AAT relating thereto are often applicable to tribunals generally. Accordingly, the discussion in the text that follows is relevant to proceedings in the Migration and Refugee Division. Further, many of the judicial authorities cited are based on migration tribunal decisions and are thereby directly relevant to those proceedings. For this reason, where relevant, the conduct of proceedings in the Migration and Review Division is incorporated into the discussion that follows. The procedure to be followed in the Social Services and Child Support Division of the Tribunal is the same as that in the General Division unless specifically modified. Departures from the standard model are noted in the relevant part of the text that follows.

BASIC PROVISION: S 33

8.2 The provision that establishes the basic procedure for the AAT’s review of decisions is s 33 of the AAT Act. The procedures set out there are intended to give effect to the mandate of the AAT to provide an informal and inexpensive means of reviewing government decisions. To that end the section provides: (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; [page 102] (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. Sections 353 and 420 of the Migration Act 1958 (Cth) (Migration Act) empower Tribunal proceedings in the Migration and Refugee Division to be dealt with in the same way. When considering the procedure to be adopted by the Tribunal, it is necessary to have regard also to the Tribunal’s objective in s 2A of the Act (see 1.6) and to the power given to it by s 25(4A) to determine the scope of the review: see 15.1. Section 33(1)(a) of the AAT Act states that regulations can be made relating to the procedure of the AAT but no such regulations have been made. However, the AAT has issued a number of Practice Directions, guidelines and policies relating to its procedures. These are set out at on the AAT website. Particular note should be paid to the General Practice Direction which contains provisions for the expedited review of decisions: see 10.15. This procedure has been adopted as a measure to further the requirement of s 2A of the Act (see 1.6). There are also provisions requiring the expedited review of certain applications by the Migration and Refugee Division of the Tribunal: see Migration Regulations 1994 (Cth) (Migration Regulations) regs 4.23–4.25.

The other subsections of s 33 provide that directions as to the procedure to be followed at or in connection with the hearing may be given by the President or an authorised member prior to the commencement of a hearing and by the member presiding or an authorised member after a hearing commences. Any such directions may be varied or revoked by the appropriate member. It is usual for there to be a directions hearing soon after an application is filed and for further directions to be given whenever circumstances require: see 10.10. The AAT has approached the requirements of s 33 of the Act by adapting the procedure at the hearing to the nature of the case before it. Its aim is to provide greater flexibility than attaches to judicial proceedings without ceding its role as an independent high-level body capable of determining the law and merits of a matter under review. A passage from the judgment of Senior Member Hall in Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141 early in the life of the AAT is often cited: The function of this tribunal is administrative review. In contrast with judicial proceedings, pleadings and the rules of evidence form no part of the procedures of the tribunal: see s 33 of the Act. Were it otherwise, one of the important objectives of administrative review in allowing access to the tribunal by an unrepresented citizen whose ‘interests are affected’ by the decision under review might be endangered or frustrated … Neither should this tribunal be inhibited in its review [page 103] functions by any inadequacy in the expression of the reasons for review or any lack of understanding by an applicant of the relevant issues. See also Re The International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage (No 2) (2006) 93 ALD 625 where the Tribunal defended its action of issuing an interim finding subject to its final decision being reached after receipt of further evidence on specific issues. It relied on its being a body charged with the task of making the correct and preferable decision to justify this approach. Nonetheless, the Tribunal has adopted procedures in lieu of pleadings that enable the issues with which an application is concerned to be identified for the

benefit of the parties: see 10.2. It must also not be overlooked that the AAT is bound by the rules of procedural fairness: see 8.7. In relation to AAT procedure generally, see R D Nicholson, ‘Practice, Procedure and Evidence in the Administrative Appeals Tribunal’ (1988) 4 Australian Bar Review 85 and 128; and the general commentary on the procedure of tribunals in Justice Keith Mason, ‘The Bounds of Flexibility in Tribunals’ (2003) 39 AIAL Forum 18; Neil Rees, ‘Procedure and Evidence in “Court Substitute” Tribunals’ (2006) 28 Australian Bar Review 41; Justice Duncan Kerr, ‘Keeping the AAT from Becoming a Court’ (27 August 2013), reproduced on the AAT website.

PROVISIONS REQUIRING SPECIAL PROCEDURES 8.3 Section 33(1)(a) of the AAT Act recognises that the discretion in relation to the procedure to be followed by the AAT afforded by the section ‘is subject to this Act and the regulations and to any other enactment’. Specific provision is made in some cases for the procedure that is to be followed by the AAT in reviewing certain decisions. This may be in the AAT Act: see ss 39A and 39B which set out the procedure to be followed by the Security Division when considering a security assessment appeal. See Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241; 103 ALD 66 and 12.18 for a discussion of these procedures. See further Justice Garry Downes, ‘The Security Appeals Division of the Administrative Appeals Tribunal — Functions, Powers and Procedures’ (13 September 2006), reproduced on the AAT website. As to the form that reasons should take in relation to applications heard in the Security Division, see Re TCXG and Director-General of Security [2013] AATA 377; (2013) 135 ALD 600. See also s 39A relating to the making of submissions in the Social Services and Child Support Division. As noted above, the procedure to be followed in the Migration and Refugee Division is set out in the Migration Act and Regulations. Alternatively, the Act vesting jurisdiction in the AAT may determine aspects of the procedure that it should follow in hearing appeals: see, for example, the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 66; the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act),

particularly ss 147 and 180. However, the controlling ‘enactment’ must be a Commonwealth [page 104] Act. The AAT is not bound to comply with the requirements of a state Act: Brown v Commonwealth of Australia [1986] FCA 285 at [5].

OBLIGATIONS OF PARTIES: S 33(1AA), (1AB) 8.4 Provisions having an important effect on the relationship between the parties and the Tribunal are included in the AAT Act. A provision was first included in s 33 in 2005 imposing obligations on the decision-maker in the following terms: (1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. This was replicated in 2015 by imposing like obligations on parties generally: (1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A. Before the inclusion of subs (1AA), the Tribunal had stated that it expected the decision-maker to act at a hearing before the Tribunal in the way later set out in the subsection: see McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6; Re Beigman and Department of Social Security (1992) 29 ALD 332 at 337 and also the discussion at 13.5. However, the inclusion of the statement of the duty of the decision-maker in the general section relating to the Tribunal’s procedures indicates (if it were necessary) that the decision-maker has the responsibility to assist the Tribunal in all aspects of the Tribunal’s review function, not just at the hearing. See Re Connolly and Great Barrier Reef Marine Park Authority [2007] AATA 2098; (2007) 99 ALD 600 at [8]; Re Elliott and Swire Pacific

Ship Management (Australia) Pty Ltd [2011] AATA 942; (2011) 125 ALD 132 for examples of criticism of a failure by a respondent so to act. Former President Garry Downes J expressed the view that this obligation to assist the Tribunal imposed by s 33(1AA) has at least three aspects: (1) Reconsidering the original decision at the time of the Tribunal review for the purpose of determining whether it continues to represent the correct or preferable decision. This practice may involve informally referring the decision back to the decision-maker although that should not be allowed to delay review in the Tribunal. (2) Furnishing evidence and submissions to the Tribunal to ensure that the Tribunal is in the best position to make the correct or preferable decision. This may involve special assistance being given when an applicant is self-represented but will continue to apply even though the applicant is represented. (3) Responding to requests for assistance on particular issues from the Tribunal. In undertaking this task the respondent will simply be acting in the way that it would have acted if a similar request had been made by the original decision-maker. (Justice Garry Downes, ‘Future Directions’, a paper given at the AIAL Annual Forum, Canberra, 1 July 2005, reproduced on the AAT website.) [page 105] See also Justice Garry Downes, ‘Government Agencies as Respondents in the Administrative Appeals Tribunal’ (16 June 2005), reproduced on the AAT website. Agencies that have made decisions the subject of review before the AAT are subject to the Commonwealth Government’s model litigation policy. This can be found at Appendix B to the Legal Services Directions 2005. See also Guidance Note No 1 issued by the Office of Legal Services Coordination, ‘The Administrative Appeals Tribunal: Obligation to Assist the Tribunal’, available at (viewed 29 July 2015). See also Caporale v Deputy Commissioner of Taxation [2013] FCA 427; (2013) 302 ALR 246 which held that the Commonwealth Government Legal Services Directions do not confer private rights

or create obligations owed by the persons to whom they apply for the benefit of other litigants. For a commentary on the model litigation policy generally, see Zac Chami, ‘The Obligation to Act as a Model Litigant’ (2010) 64 AIAL Forum 47. In Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [142] the Tribunal noted that the obligation imposed by s 33(1AA) requires the lodging with the Tribunal of additional information and documents that come into the possession of the respondent after the hearing has commenced. This obligation also flows from the Commonwealth’s model litigation policy. The assistance that the Tribunal might expect may include information that is advantageous to an applicant or which he or she is unable to obtain: Re CVA and Minister for Immigration and Citizenship [2011] AATA 742; (2011) 124 ALD 98 at [24]. See also Re Karhani and Linfox Australia Pty Ltd [2011] AATA 506; (2011) 129 ALD 275 where the Tribunal was critical of the respondent for failing to produce video evidence that it had used to brief a medical practitioner but which was in fact favourable to the applicant’s case. In this context the comments of Flick J in Patel v Minister for Immigration and Border Protection [2015] FCAFC 22; (2015) 145 ALD 566 at [41] are relevant: Well short of any ‘duty to inquire’ and entirely separate from any consideration of improperly imposing an onus of proof upon a government agency participating in an administrative review, there may be circumstances in which a ‘review’ as contemplated by the legislature may not be lawfully carried out if relevant and available materials are not placed before the Tribunal. There may, for example, be circumstances in which a claimant can show that a government agency has documents or other information centrally relevant to the proper resolution of the potential claims which are — for whatever reason — not being made available to the Tribunal. A failure on the part of a government agency to make such materials available to a reviewing authority may be tantamount to a failure to comply with the ‘old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects’: Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 per Griffith CJ. A ‘review’ may, for example, require that an administrative tribunal need have before it not only such materials as were before the delegate

whose decision is under ‘review’, but all such other relevant material that was available to the delegate. [page 106] The Tribunal had also indicated that it expects to be assisted by applicants to the Tribunal, to the best of their capacity: cf Re Kowalski and Repatriation Commission [2008] AATA 903; (2008) 107 ALD 447. This obligation has now been affirmed by the inclusion in the Act of s 33(1AB). Notwithstanding these obligations of parties under the AAT Act, failure to comply probably does not lead to jurisdictional error on the part of the Tribunal: SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123; 120 ALD 208 (referring to requirements in the Migration Act relating to the obligation of the Secretary to furnish information to the Refugee Review Tribunal) but see also the discussion at 13.9. Subsections 33(1AA) and (1AB) do not formally apply to proceedings in the Migration and Refugee Division but clause 2.5 of the General Practice Direction states the expectation of the Tribunal that they will also be followed in such proceedings.

ARRANGEMENTS BETWEEN AND CONCESSIONS BY PARTIES 8.5 In reviewing a decision, the AAT exercises all the powers of the original decision-maker. If it so determines, its decision can substitute for that of the decision-maker. In these circumstances, prima facie it would seem that the AAT must act as it were from scratch and look at all relevant material. However, the reality is that the AAT acts in a quasi-judicial fashion and is largely dependent upon what is put before it by the parties. It is therefore not surprising to find that the AAT has permitted statements of facts agreed between the parties to be lodged before or at the hearing. Such statements will normally be accepted by the AAT as evidence of what is agreed upon and will not be pursued further. They are seen as focusing the issues in dispute thereby directing the AAT to the

matters on which it should concentrate its attention: Tuite v Allen (1993) 40 FCR 483 at 488; 29 ALD 647 at 651. However, the parties cannot agree away, as it were, an essential jurisdictional issue: see 3.6. For example, in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 3 ALN N66 a decision of the AAT was set aside because it had not considered whether a deportee was still an immigrant, an essential precondition to the power to deport. The issue had not been raised by the parties but it was nonetheless held to be a matter to which the AAT was obliged to turn its attention. In Re Martin and Commonwealth (1983) 5 ALD 277 the AAT referred to Kuswardana in remarking that in the ordinary course of events it will rely on a concession by the parties, but if the evidence led before the AAT raises a doubt as to the correctness of the conceded issue, it may be necessary to open up the whole question. See also Calderaro v Secretary, Department of Social Security (1991) 24 ALD 556 at 560; Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191; Re Nicholls and Secretary, Department of Primary Industry (1988) 22 ALD 596; Re Redmond and Secretary, Department of Social Security (1992) 26 ALD 362. [page 107] The AAT looks carefully at concessions between the parties. In Re Marks and Secretary, Department of Defence (1987) 11 ALD 456 at 459 the AAT referred to the fact that while it considered a concession to have been properly made, it needed to state why it had reached that conclusion as it ‘cannot simply accept such concessions’. Similarly in Re Melbourne and Secretary, Department of Social Security (1988) 14 ALD 415 the AAT said that it was not able to rely on concessions to reach a correct conclusion on all issues involved in the application. It was not sufficient for it to be guided by argument of counsel; it had to consider the relevant issues at large. The AAT must therefore be most careful when considering agreements between the parties. Agreed statements of facts are, however, likely to cause fewer difficulties than the application of law to facts. Even there the AAT will have to satisfy itself that the facts are correct, the more particularly when they form the basis for the AAT’s jurisdiction. However, where the parties are experienced litigators and the applicant has legal representation, it will be more readily conceded that the parties might agree

on what is in dispute between them and the Tribunal is entitled to proceed on that basis: Batchelor v Commissioner of Taxation [2014] FCAFC 41; (2014) 219 FCR 453; 142 ALD 1 at [8]. See further 10.2 on the question of ‘pleadings’. 8.6 A party before the AAT needs to be aware that, once a concession has been made and accepted by the Tribunal, ‘[a]s a general rule, it is only in the clearest case, and for the most cogent reasons, that a party who has conceded a matter is able to make the validity of what was conceded a basis for overturning a decision’: per Kiefel J in Repatriation Commission v Warren [2007] FCA 866; (2007) 95 ALD 606 at [34]. See further on appeal Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511; 101 ALD 222 at [78] where, in an oftquoted passage, the court summarised the position as follows (full citations omitted): The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to ‘review’ a primary decision, is given all the powers and discretions that were conferred on the original decisionmaker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana 54 FLR at 342: 35 ALR at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on ‘appeal’ matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana 54 FLR at 343; 35 ALR at 195 per Bowen CJ and at 348; 199 per Fox J). [page 108]

Where a concession is made, there must be some difficulty in finding an ‘error of law’ when the contrary of the concession is raised for the first time in this Court (Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be ‘able, in practical terms, to narrow the issues by concession … even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision … on all relevant aspects of the matter before it’ (Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]). A concession ‘does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions’ (Peacock 161 FCR 256 at [23]; and see Comcare v Fiedler (2001) 115 FCR 328 at 337–338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana 54 FLR at 343; 35 ALR at 195; Tefonu 44 FCR at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527–528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Company (Canberra) Ltd v Commissioner for Revenue (ACT) (1994) 50 FCR 405 at 418–419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas v Repatriation Commission (1994) 50 FCR 112 at 120 per Beazley J); or

(c)

the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana 54 FLR 334; 35 ALR 186).

A relevant issue in determining whether a matter not raised at hearing can later be asserted is whether the other party has been given the chance to consider the new matter. If there has been an agreement as to the matters to be considered by the Tribunal, an attempt to add to that by way of written submissions after the conclusion of the hearing or on appeal is unlikely to succeed: Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1; 141 ALD 506 at [39], [111]. The position where the AAT is dealing with a matter following concessions made by the applicant to the decision maker was considered in Re Duncan and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments [page 109] Commission [2009] AATA 70; (2009) 107 ALD 167. The Tribunal there rejected a claim by the respondent decision-maker that the applicant could not resile from an agreed statement of facts on which the decision under review was based. As there is no formal mechanism for factual admissions in AAT proceedings, there was no basis for finding that the applicant had to seek leave to justify departing from the previously agreed statement of facts. However, the refusal to make orders limiting the ability to depart from the agreed statement did not affect the potential relevance of that statement in the AAT proceedings nor the weight that might be given to the previous admissions. See further 19.41–19.43 in relation to appeals.

PROCEDURAL FAIRNESS General 8.7 It has been apparent from its initial establishment that the AAT must comply with the common law rules relating to procedural fairness/natural

justice. The following discussion of the effect on AAT proceedings of those rules is qualified in its applicability to review applications in the Migration and Refugee Division insofar as they involve the applicability of the natural justice hearing rule. The bias rule is not affected. Special provisions are included in the Migration Act relating to hearings which are intended to limit the operation of some aspects of the general law. These provisions are discussed at 8.12. That said, many of the decisions referred to as providing guidance to the way in which the AAT is to conduct its hearings are based on rulings of the courts on appeals from migration tribunal decisions. These will continue to be applicable to proceedings in the Migration and Refugee Division. The general application of the requirements of procedural fairness is also affected by some specific provisions relating to hearings in the Security Division and the Social Services and Child Support Division. The relevant legislation needs to be examined when considering the application of the general requirements that the law imposes on tribunals that are discussed below.

Hearing 8.8 Section 39 of the AAT Act specifically recognises that an applicant must be given a proper chance to present his or her case: see further 13.9–13.15. However, this is not the limit of an applicant’s rights. The general approach developed by the courts requiring tribunals to afford parties procedural fairness also applies to the AAT: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323; Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 16 ALD 280; City of St Kilda v Evindon Pty Ltd [1990] VR 771; Tuite v Allen (1993) 40 FCR 483 at 487; 29 ALD 647 at 650; Hutton v Repatriation Commission (1998) 49 ALD 8. [page 110] The direction to the AAT in s 33 of the AAT Act that it conduct its hearings with as little formality and technicality as a proper consideration of the matters before it permits is subject to this overriding requirement. In relation to the procedure that the AAT should follow, having regard to its natural justice

obligations, Deane J in Sullivan’s case at ALD 402–3 summarised the approach that should be adopted thus: In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case. However, subject to this caution against undue interference, the nature of the applicants appearing in AAT proceedings and the type of decision that the Tribunal has to make may require the AAT to take the initiative and alert the parties to the manner in which a case should be presented. Suggesting an adjournment to obtain evidence or the assistance of counsel may be part of the management of a hearing: see further 13.4 relating to the obligations of the Tribunal towards unrepresented applicants. (However, the inability to obtain the assistance of counsel does not constitute a breach of procedural fairness even where the matter is complex: Federal Commissioner of Taxation v La Rosa [2002] FCA 1036; (2002) 196 ALR 139 at [122].) The fact that the AAT may substitute a decision for that of the decisionmaker impacts on the procedure to be followed. The AAT must be sure that it is making the correct and preferable decision. This would seem to increase the right of the AAT members to intervene in the course of proceedings: Re Perring and Australian Postal Corporation (1993) 31 ALD 693. When this occurs it is important that the Tribunal clearly brings to the attention of the parties the matters that are of concern to it: Lodkowski v Comcare (1998) 53 ALD 371 at 387. The Tribunal should not take part in a demonstration relating to matters before the Tribunal unless the parties are present: Re Yu and Civil Aviation Safety

Authority [2005] AATA 274; (2005) 85 ALD 57 at [144]. Whether or not it should take part in a view is at its discretion: Re Yu, above, and see 13.39. 8.9 Not only the hearing but also the decision-making process followed by the AAT must comply with procedural fairness. The AAT may not base its decision on a ground not relied on by the parties or raised at the hearing: Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 16 ALD 280. So to act is to breach the [page 111] requirements of procedural fairness as laid down by the High Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321. If the AAT intends to base its decision on an argument not raised at the hearing, it must give the parties an opportunity to address it even though the decision may be within its discretion. Fletcher’s case was followed in Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 at [92] to set aside a decision of the Tribunal where it had imposed a condition on a licence without there having been any discussion at the hearing of the possibility of this action being taken. If the AAT intends to depart from a previously announced intention to have regard to material tendered to it, the AAT must give the party who tendered the material an opportunity to show that regard should be paid to it: Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533. If the Tribunal undertakes to follow up some evidentiary material, a failure to do so is a breach of the requirement to give a fair hearing: WZARB v Minister for Immigration and Citizenship [2013] FCA 523; (2013) 136 ALD 77 at [31]. In similar vein, if the AAT intends to take into account perceptions that it has formed or observations made of an applicant’s or a witness’s demeanour or physical capacities while giving evidence or taking part in the proceedings, and that observation has not been the subject of discussion at the hearing, the AAT is obliged to draw those conclusions to the attention of the parties for them to respond to. A failure to do so is a breach of natural justice: Marelic v Comcare (1993) 47 FCR 437; 32 ALD 155; Farah v Australian Postal Corporation (1994) 35 ALD 349; Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA

1277; (1999) 56 ALD 321 at [44]; Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55; (2003) 75 ALD 34 at [16]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; 93 ALD 300 at [47]. However, the position is different where the Tribunal is reaching a conclusion based upon an assessment of the credibility of the applicant and other witnesses. This is the function of the Tribunal and, provided that reliance is not placed upon any new fact or matter, the Tribunal is not obliged to reveal its reasoning to the parties in advance of its decision: Waldron v Comcare (1995) 37 ALD 471; Lidono Pty Ltd v Federal Commissioner of Taxation [2002] FCA 174; (2002) 67 ALD 656; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166; Green v Minister for Immigration and Citizenship [2008] FCA 125; (2008) 100 ALD 346 at [38]; Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 142 ALD 76 at [77]. In SZBEL, above, at [48] the High Court put it that the Tribunal is not obliged to provide ‘a running commentary of what it thinks about the evidence that is given’. Nor does procedural fairness require the Tribunal to disclose to an applicant what it is minded to decide so that the parties may have a further opportunity of criticising the Tribunal member’s mental processes before she or he reaches a final decision. These dicta were applied in Danagher v Child Support Registrar [2014] FCA 1408; [page 112] (2014) 228 FCR 213 at [16] and McKinley v Repatriation Commission [2015] FCA 145; (2015] 65 AAR 232 at [8]. The position was summarised by a Full Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 at [30]; (1994) 49 FCR 576 at 591; 34 ALD 324 at 330: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of

submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. An exception to this approach was noted in Habeeb v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411; 108 ALD 478 at [73] where reliance was placed on previous false statements in other proceedings to reach a conclusion on credibility in the present application. Such an intention must be drawn to the attention of the applicant. The Tribunal does not have to accept or reject evidence in whole but may reach a conclusion on its view of the facts, even where this is different from the submissions of the parties: Lidono, above. 8.10 In the context of an appeal to the Refugee Review Tribunal (RRT), the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; 93 ALD 300 at [35] noted that, if the tribunal were to reach its decision on a basis other than that relied upon by the decision-maker, a failure to reveal that to an applicant and provide a chance to respond would constitute a breach of procedural fairness. While the basis of an appeal to the RRT was at the time different from that to the AAT, this ruling is probably applicable to the AAT also. In Repatriation Commission v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348 the submission of documents at a hearing and reliance upon them by the Tribunal where the respondent had not had the opportunity to read them or supply them to its experts for comment was held to be a breach of procedural fairness. The court also emphasised in a number of appeals from the RRT that information relied on by the tribunal to reach its decision must be disclosed for comment to the applicant. In Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66; (2004) 38 AAR 425, a failure to provide any particulars of events relied upon to establish that the applicant had committed

[page 113] serious crimes and reliance upon identification evidence without providing any indication of the features to which regard was had were held to constitute a breach of natural justice such as to constitute a jurisdictional error on the part of the tribunal. The court noted at [155] that the argument that had arisen in the course of the hearing demonstrated ‘the critical importance of a tribunal which has made a confidentiality order that restricts a party’s access to relevant information remaining conscious of the ongoing effect of such an order and constantly reassessing how procedural fairness may nonetheless be provided’. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 87 ALD 512 the RRT, when reviewing a decision refusing a protection visa, had regard to an unsolicited, but not anonymous, letter that the Minister’s Department had received. There was a tension between maintaining confidentiality of the author of the letter and the need to afford procedural fairness to the applicant. The High Court recognised that there was a public interest in ensuring that information that had been supplied by an informer is not denied to the executive government when making its decisions, and said that the information in the letter was relevant to the RRT’s inquiry, and could not be ignored. However, it held that there was a lack of procedural fairness because the applicant should at least have been informed of the substance of what was said against him in the letter. See also 11.9 in relation to the AAT’s power to prohibit or restrict the publication of documents or evidence. See also MZZFM v Minister for Immigration and Border Protection [2014] FCA 1379; (2014) 144 ALD 316 at [24] where the tribunal had relied upon country information not disclosed to the applicant. In WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; 77 ALD 1 at [42] a Full Federal Court said: An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment … However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend.

In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; (2006) 156 FCR 205; 93 ALD 313 the failure by a tribunal member to disclose the undertaking of an internet search in order to obtain information used in reaching a decision was held to be a breach of natural justice. However, non-disclosure of thought processes in arriving at a decision was not such a breach. Again, it would seem that these decisions are applicable to proceedings in the AAT. See Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 121 ALD 514 for an example of an AAT decision being set aside because it failed to provide an opportunity for the applicant to study, and address the Tribunal on, a document that was presented to the Tribunal at the end of the hearing and which it took into account in making its decision. [page 114] This position is qualified if there is a statutory limitation on the disclosure of information that is before the Tribunal: see 12.15–12.19. The Tribunal may use findings of another tribunal or of a court as evidence upon which it bases its findings. However, it must bring these to the attention of a party and be satisfied that the party has had the opportunity to comment on them: Re Thorpe and Commissioner of Taxation [2011] AATA 638; (2011) 123 ALD 355 at [72]; Habeeb v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411; 108 ALD 478 at [73]. A decision reached following further investigation by the Tribunal after the conclusion of the hearing will not breach procedural fairness requirements if the matter arose in the course of the hearing. But if it is a new issue, the Tribunal must bring it to the attention of the parties and provide them with an opportunity to make submissions on the issue. See Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351. It would seem that this is also the case where the AAT proposes to hold that a decision-maker acted without power if this has not been an issue raised at the hearing: Repatriation Commission v Richardson [2001] FCA 1626; (2001) 115 FCR 220; 66 ALD 80 at [19]. Where assistance is obtained in the decision-making process from other persons such as Tribunal officers or other members, the issue of disclosure will be dictated by the nature of the information provided. Legal research assistance

or expressions of opinion on legal issues will usually not have to be drawn to the attention of the parties. However, information relating to factual matters that have to be determined by the Tribunal will be likely to be regarded as having been obtained from another source and the parties will need to be given an opportunity to make submissions on the information: Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301; (2001) 183 ALR 719. Similarly, Tribunal members may well have encountered like issues in previous proceedings. Reliance may be placed on such knowledge subject to its being disclosed to the parties if it is to be relied upon in reaching a decision: Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 at [85]. 8.11 A delay in giving reasons for its decision may result in a finding that the Tribunal was no longer competent to evaluate the evidence and this would give rise to a breach of procedural fairness: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 88 ALD 257 at [9]; Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245 at [23]. A breach of procedural fairness can arise through no fault on the part of the Tribunal in that it may be unaware of a circumstance that affects a party adversely, for example, that the failure to attend a hearing is due to circumstances beyond the party’s control such as an accident: MZYZE v Minister for Immigration and Citizenship [2013] FCCA 569; (2013) 136 ALD 395 at [23]; or that the applicant had not been informed of the hearing because of the tribunal’s error: Minister for Immigration and [page 115] Multicultural and Indigenous Affairs v George [2004] FCAFC 276; (2004) 139 FCR 127; 85 ALD 513. A large number of cases involving the migration tribunals have been concerned with claims of breach of the hearing requirements of procedural fairness because the applicant has not been made aware of the date or time of the hearing and thus has not attended. These cases have usually arisen because of the prescriptive requirements on service and notification that are to be found in

the Migration Act. The decisions are usefully canvassed in DZAFF v Minister for Immigration and Border Protection [2015] FCA 569. The discussion will be applicable to proceedings in the Migration and Refugee Division of the Tribunal. The Tribunal does not consider that its procedural fairness obligations require it to obtain and pay for a transcript for a party: Re Wang and Australian Federal Police [2005] AATA 908; (2005) 88 ALD 765 at [19]. An issue can arise where information is presented to the Tribunal in a foreign language. Does procedural fairness oblige the Tribunal to have the document translated? The matter arose most frequently in the migration tribunals but it can be expected that a like approach would be applied to the AAT. Moore J in S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] summarised the position usefully: Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely on it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546. See also SZLSW v Minister for Immigration and Citizenship; [2008] FCA 1321; (2008) 103 ALD 580 at [10]–[14].

Migration and Refugee decisions 8.12 Sections 357A and 422B of the Migration Act specify that the provisions of the Act which relate respectively to Part 5-reviewable decisions and Part 7reviewable decisions are ‘to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters’ that they deal with. The sections nonetheless go on to require the Tribunal to ‘act in a way that is fair and just’. Like provision is made by s 51A in relation to visa applications. On its face, this type of provision appears to be directed to excluding the common law rules of procedural fairness. However, it has not been so

interpreted. The initial consideration of the operation of the section by the High Court was in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; [page 116] 115 ALD 493 at [40]–[42]. The court paid particular heed to the reference in ss 357A and 422B to the matters that the relevant sections deal with. It also noted the operation of the requirements in subs (3) of the respective sections that the tribunal must act in a way that is fair and just. The court read the limitation on the natural justice hearing rule as restricted to the matters specifically dealt with in the sections to which the limitation applied and not to the operation of that rule at large. So if a provision does not fully cover a requirement that would be applicable to the hearing under the common law natural justice rule or there is no relevant provision, that requirement remains applicable to the tribunal hearing. This approach was endorsed and applied in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 139 ALD 181, particularly per French CJ at [17]. The effect of this has been to retain the significance of compliance with the common law hearing rule in migration appeals. Many of the cases referred to in the discussion in 8.7–8.11 concern migration appeals. For a good example of the operation of the interaction of the statutory provisions of the Act and the requirements of procedural fairness/natural justice see Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619 at [80]– [83]. See further Alan Freckelton, Administrative Decision-making in Australian Migration Law, Australian National University eText, Canberra, 2015, pp 139–42. While this position applies to the general sections dealing with the application of the natural justice rules, this does not prevent a specific provision from displacing what would otherwise be an accepted procedural right at common law. Vella v Minister for Immigration and Border Protection [2015] FCAFC 53 is illustrative of the effect of such a provision. It is a fundamental natural justice rule that information being relied upon by a decision-maker must be revealed to the person affected. However, s 503A of the Migration Act proscribes the release of information to an applicant that has been provided to the Tribunal by

a law enforcement or intelligence agency. The court held that this specific provision overrode the common law right to access to the information.

Bias 8.13 The fact that a tribunal has the power to inform itself in such manner as it thinks fit does not mean that it can act in a manner that gives rise to an apprehension of bias: Atkin v Willee [2011] FCA 568; (2011) 194 FCR 220; 121 ALD 105 at [52]–[54]; Isbester v Knox City Council [2015] HCA 20; (2015) 320 ALR 432. Accordingly, an AAT member may be disqualified from sitting on a particular application because of actual or perceived bias: Re Falk and Repatriation Commission (1992) 27 ALD 355. However, it must be apparent that the alleged disqualifying circumstance is relevant to the application that is before the Tribunal. In Re ‘SAN’ and Military Rehabilitation and Compensation Commission [2008] AATA 237; (2008) 103 ALD 387, the claimed bias was that the member [page 117] presiding had made adverse findings as to the applicant’s credibility. Such findings were not relevant to an application to revoke a confidentiality order as the applicant’s credibility was not in issue. For a valuable general consideration of the law relating to perceived bias, see Southern Equities Corporation Ltd (in liq) v Bond (2000) 78 SASR 339; 211 LSJS 487 and in regard to tribunals specifically, Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254; 276 ALR 196. On the issue of when pecuniary interest on the part of persons involved in the decision-making can constitute bias, see the strict view taken by the High Court in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438; 70 ALD 314. Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; 135 ALR 753 provides a useful discussion of the distinction between the obligation of an adjudicator to disclose facts that might possibly lead to concerns of bias and whether those facts should result in the adjudicator being disqualified. That case concerned previous personal and professional connections between a judge and counsel. In regard to the AAT, care must be taken not to assert bias too readily if it is based on previous associations as members are appointed to the AAT for

their expertise. Mere familiarity with a particular field, including probably the holding of an appointment in the respondent agency, would in itself not constitute bias. However, a previous involvement in the decision challenged (other than as a member of the AAT: see 2.9) would be sufficient to disqualify a member: see Falk’s case and the Southern Equities case, above. Undisclosed contact between the tribunal and a witness could provide a reasonable basis for concluding the possibility of bias: Atkin v Willee, above. However, the mere fact of dealings having occurred in the past between a member and a government agency respondent to an application does not necessarily constitute a basis for the member to recuse themselves: Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2012] AATA 113; (2012) 125 ALD 588. The test will always be whether a fair-minded, informed observer would apprehend the member as being likely to be biased. The fact that members are appointed to the Tribunal because of their expertise also has an effect on their ability to call upon their own knowledge of the background to the issues involved. Use of their own expertise does not constitute bias: see further 9.33. McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504; 251 ALR 558 provides a valuable discussion of the effect on a decision of one member of a multi-member tribunal being biased: see particularly per Campbell JA commencing at [238] where the many and sometimes differing cases are collected. It can be expected that an AAT member may have reached tentative conclusions on the strength of filed materials. Provided the member is still open to consideration of the issues this does not constitute bias: Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385; 26 ALD 704. However, care must be taken that the preliminary view is genuinely preliminary and does not indicate that the member has decided the issue: Hassam Khadem v BA Barbour (1995) [page 118] 38 ALD 299. In like vein, it is unwise for a tribunal to indicate that it has made an adverse finding but then to say that it does not intend to take the finding into account in reaching its decision. Such an approach is likely to raise doubts as to

whether the adverse finding has been put to one side: Lee v Maskell-Knight [2004] FCAFC 2; (2004) 137 FCR 59; 207 ALR 362 at [64]. However, it is proper for a tribunal to put to an applicant tentative views that it has reached in the course of a hearing to ensure that the applicant does not have anything further to say on the issues: AZACK v Minister for Immigration and Border Protection [2014] FCA 762; (2014) 144 ALD 72 at [49]. Reaching a finding that the evidence of an applicant cannot be relied upon in the context of the material before the Tribunal does not constitute bias: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272; 249 ALR 762 at [103]. The fact that, following an appeal, an application has been referred back to a tribunal constituted by the same members does not mean that those members will be biased. There must be a clear basis for coming to the conclusion that what they have done before necessarily precludes them from approaching the matter with an open mind. Mere familiarity with the case will not constitute bias nor will the fact that they have set out in a previous judgment matters that they will have to consider afresh. It will be necessary to show that conclusions have been reached that preclude proper consideration of matters arising on the new hearing: Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing [2011] AATA 196; (2011) 121 ALD 304. 8.14 An issue relating to bias can arise from the fact that the proceedings of the Tribunal may be at least partly inquisitorial in nature, particularly where an applicant is unrepresented. In the context of the Refugee Review Tribunal, the High Court said in Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [30] in response to an allegation of bias arising out of the questioning of an applicant by the tribunal: Where … credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

Following on from this approach, a Full Federal Court in SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109; 111 ALD 59 at [82] found that bias was not demonstrated by a series of highly specific and possibly onerous questions posed by the tribunal. The critical issue was what was made of the responses. It would seem that these conclusions are applicable also to the AAT. See SZSQS v Minister for Immigration and Border Protection [2014] FCA 219; [page 119] (2014) 142 ALD 509 for a discussion of allegations of bias arising from the tribunal member’s ‘tone’ in conducting the hearing. The general management of hearings where there is an unrepresented applicant can present a tribunal with something of a dilemma. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438; 57 ALD 23 at [29] a Full Federal Court observed: While [the presiding judge] may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood, Council of the Municipality of v Harvey (1995) 86 LGERA 389 at 397; BC9504421 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6. See further 13.4 in relation to the management of proceedings where an applicant is unrepresented. 8.15 The management of the business of the Tribunal means that Tribunal members should not be overly ready to recuse themselves on the ground of bias. The position has been well put by Flick J in SZMJA v Minister for Immigration and Citizenship [2008] FCA 1773 at [7]: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [(1976) 136 CLR 248] and

Livesey [(1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553–4]; Watson [(1976) 136 CLR at 262]; Re Lusink; Ex parte Shaw [(1980) 32 ALR 47 at 50–1]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. [page 120] An example of the application of the approach adumbrated here is provided by Re PMMC/WJPJ and Australian Prudential Regulation Authority [2009] AATA 801; (2009) 112 ALD 210 where the fact that a Tribunal member had previously sat on an application involving like facts did not preclude him from hearing the application in question. However, regard should be paid to the discussion of the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2;

(2011) 242 CLR 283; 273 ALR 429 where a decision in a previous case was considered to disqualify a judge on the grounds of apprehended bias. The significance of the findings in the previous decision to the current litigation was a significant factor in the court’s conclusion. For an application of this approach to a Tribunal member, see Re BQL and Commissioner of Taxation [2013] AATA 423; (2013) 134 ALD 419. 8.16 Directions given by a tribunal in the course of the management of an application may seem unfair to a party but will seldom support an argument of bias where the member giving the direction is acting in good faith: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 697; (2011) 126 ALD 600. See also Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164; (2011) 119 ALD 565 where the issue arose in judicial proceedings. It is noteworthy in that case that the actions of the judge’s associate provided the basis for the (unsuccessful) claim, the associate’s actions being attributed to the judge. The use of template reasons for the management of the writing of reasons for similar cases was held in SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012) 200 FCR 223; 125 ALD 481 not of itself to give rise to bias on the part of an independent reviewer under the Migration Act. It was necessary to establish that the reviewer had not turned his mind to the specific case before him. The mere fact of using paragraphs that had been drafted for other applications did not mean that the reviewer had prejudged the issues (at [79]). It would seem that the same reasoning would apply to decisions of the AAT. See further on the use of standard paragraphs in reasons: 17.20. In the past it has been left to the member to make a judgment of possible bias if this were raised as an issue. If the member declined to recuse himself or herself, a court could so direct. The matter could now, it seems, be determined by the President in advance of any ruling by a court: see 2.9. For a general discussion of the law see John Griffiths SC, ‘Apprehended Bias in Australian Administrative Law’ (2010) 38 Federal Law Review 353.

General 8.17 The Federal Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 divided on the question whether a breach of procedural fairness by the AAT constituted an error of law for the

purposes of an appeal under s 44 of the AAT Act. Gray ACJ and North J thought that it fell within s 44. Gyles J considered that it did not but that it provided a ground of review under [page 121] the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth). This latter view seems to run counter to the numerous cases that have considered breach of procedural fairness claims on an appeal pursuant to s 44: see 19.34. Because of the special nature of review by the Tribunal and its role as part of the administrative process, there may be circumstances where some aspects of procedural fairness are excluded by statutory provision: see 11.9. See also 8.18–8.19 relating to the rule in Browne v Dunn (1893) 6 R 67; 9.5 relating to the impact of procedural fairness on the AAT’s taking of evidence; 9.33 in relation to reliance by members on their own expertise; 9.6–9.31 on evidentiary rulings generally; and 13.46–13.47 in relation to the procedure to be followed on a rehearing of an application. A breach of procedural fairness may also be characterised as a breach of the right under s 39 of the AAT Act for the parties to be given the opportunity to make submissions (see 13.10): Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 at [6]. For a comprehensive overview of procedural fairness obligations, including in respect of particular jurisdictions, see Deputy President D G Jarvis, ‘Procedural Fairness as it Applies in the Administrative Appeals Tribunal’ (2007) 81 Australian Law Journal 465.

RULE IN BROWNE V DUNN 8.18 The rule in Browne v Dunn (1893) 6 R 67 is that any matter on which it is proposed to contradict the evidence in chief of a witness must normally be put to the witness to provide an opportunity to explain the contradiction. A failure to do so may be held to imply acceptance of the evidence in chief. While this rule was enunciated in respect of adversarial proceedings, it was held in Hoskins v

Repatriation Commission (1991) 32 FCR 443 and Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 31 ALD 510 to apply to hearings before the AAT because it was an aspect of the rules of natural justice. It was said that the AAT’s inquisitorial type of procedure made it necessary for the Tribunal itself to take a similar approach because it is unfair to an applicant to act otherwise. That a failure to comply with the rule could vitiate a decision of the AAT was confirmed in Marelic v Comcare (1993) 47 FCR 437; 32 ALD 155 with the rider that if the party had been fully alerted before and during the hearing to the particular allegations, the rule might not apply. See to like effect the conclusion in Haberfield v Department of Veterans’ Affairs [2002] FCA 1579; (2002) 121 FCR 233; 72 ALD 333 at [59]. It has been said that it is particularly important that a tribunal act in accordance with the principle underlying the rule where an applicant is not fluent in English as misunderstanding is more likely to occur: Meadows v Minister for Immigration and [page 122] Multicultural Affairs (1998) 90 FCR 370; 54 ALD 654. Accordingly, if a tribunal intends to make a finding adverse to an applicant, that finding must be put to the applicant so that he or she may have an opportunity to address it. The foregoing should be read in the light of the refutation of the applicability of the rule to the proceedings of the Refugee Review Tribunal by Gummow and Heydon JJ (Gleeson CJ agreeing) in Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 75 ALD 1 at [57]. A distinction was drawn between the adversarial procedures of a court and the inquisitorial procedures followed by the RRT. The tribunal was not to be viewed as a contradictor of the case being put forward by an applicant. Accordingly, the basis underlying the rule was not applicable. These remarks were referred to as being applicable to the AAT in Lawrance v Centrelink [2005] FCA 1318; (2005) 88 ALD 664 at [31]; Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68 at [28]; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; 141 ALD 540 at [149]. However, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; 93 ALD 300 at [47]

qualified its comments somewhat in regard to the operation of the RRT by saying: The proceedings are not adversarial and the Tribunal has not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. These comments on the operation of the RRT will continue to be relevant to the hearing of applications in the Migration and Refugee Division of the AAT. 8.19 However, the procedure followed by the AAT in its general jurisdiction is significantly different from that of the RRT in that there are usually two parties involved and a case is presented by each. While not following the full adversarial practices of the courts, the AAT adopts a more adversarial approach than that which was followed by the RRT and which is applicable in the Migration and Refugee Division. The conclusions expressed by the High Court in Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 75 ALD 1 set out in 8.18 should be viewed in this light when considering their applicability to the AAT in Divisions other than the Migration and Refugee Division. In AAT proceedings it might not be appropriate to allow the rule to be invoked against an applicant but it might be necessary as a matter of fairness for it to be applied against a decision-maker. An automatic application of the dicta in Ruddock’s case might well result in unfairness, particularly for an unrepresented applicant. However, there seems to be no good reason why the respondent decision-maker should not be obliged to comply with the requirements of the rule and there may well be occasions when a legally represented applicant should also be subjected to the discipline underlying the rule. [page 123] A strict application of the rule in Browne v Dunn (1893) 6 R 67 would seem inappropriate but the better way to proceed is to regard the principle underlying the rule as being applicable as an element of procedural fairness. For an application of this approach, see 3D Scaffolding Pty Ltd v Commissioner of Taxation

[2008] FCA 1477; (2008) 105 ALD 475 at [18]; affd on appeal [2009] FCAFC 75; 2009 ATC 20-111; Mautner v Minister for Immigration and Citizenship [2009] FCA 1475; (2009) 112 ALD 518 at [19]; Fenner v Repatriation Commission [2005] FCA 27; (2005) 218 ALR 122 at [59]–[62]; Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013] FCA 860; (2013) 137 ALD 53 and the cases cited there at [114]–[118]. Logan J in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; 141 ALD 540 at [48] summarised the position: In light of these cases, it must now be held that, while, in form, a tribunal such as the Administrative Appeals Tribunal is strictly inquisitorial, the ‘core function’ of such a tribunal is one of review. In undertaking such a review and where there are interested parties to the review with conflicting positions, there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version. To recognise this is not to subvert S154 [ie Re Ruddock] by assimilating the differing nature of judicial and administrative review proceedings. It is just that the inherently flexible content of a procedural fairness obligation can, where that obligation attends the exercise of administrative power, entail a requirement which resembles that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn. However, note the cautionary words from Hill J in Jagelman v Commissioner of Taxation (1995) 31 ATR 467 at 473: However, it has been pointed out in a number of cases that the application of the rule in Browne v Dunn must depend upon the circumstances of the case. Where the issues in a case are such that it would readily be apparent to a party that a particular imputation has been made, there will be no necessity to put that imputation to a witness who denies it and, in consequence, there will have been no denial of procedural fairness. See 8.7–8.17 in relation to procedural fairness.

[page 124]

CHAPTER 9 PROCEDURE AT HEARING: EVIDENTIARY MATTERS AAT NOT BOUND BY RULES OF EVIDENCE: S 33(1)(C) 9.1 The direction in s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’, when taken in conjunction with the fact that the Administrative Appeals Tribunal (AAT) is not a court, has a significant effect on the procedures of the Tribunal. The High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 54 ALD 289 at [49] said of provisions of this kind: ‘They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.’ Like provisions apply to the review of decisions in the Migration and Refugee Division (Migration Act 1958 (Cth) (Migration Act) ss 353, 420), so it would seem that the commentary below is applicable to the review of such decisions. The duty of the AAT is to review an administrative decision to determine whether it, or some other decision, is the right decision in all the circumstances. The AAT accordingly must follow the procedures that are best suited to achieving this goal: Re Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5. To this end, evidence which might not be admitted in a court can be taken into account by the AAT. Statutory limitations on the evidence admissible in a court do not apply to the AAT: Re Pouki and Australian

Telecommunications Commission (1984) 6 ALD 324. The test has been said to be whether the evidence is ‘logically probative’ and relevant to the issues before the AAT: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. On appeal, Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 155–6 put the obligation: [page 125] In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice. The ability to take account of a wider range of matters than those to which a court can have regard also has an impact on appeals against decisions of the AAT. In Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198, the Federal Court noted that it is inappropriate to argue that a decision is against the evidence or against the weight of evidence when considering an appeal from a tribunal not bound by the rules of evidence. Such a tribunal can inform itself in whatever manner it chooses and it is only if there is no material before the tribunal upon which a conclusion can be based that an appeal will lie. See also Hafza v Director-General of Social Security (1985) 6 FCR 444 at 454; 60 ALR 674 at 685. See the further discussion at 19.39. This last point was taken further by the Federal Court in Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205; 8 ALN N102. While the AAT is not bound by the rules of evidence, there must nonetheless be some evidence presented to it before it can make a finding. In that case the basing of a decision on an asserted understanding of traditional Aboriginal concepts of community ownership of property constituted an error of law

because there was no evidence to support the understanding. See also Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 at [25]–[26] where the Tribunal’s conclusion could only have been reached if it were supported by expert evidence and there was no such evidence. It will, of course, have to be shown that there was no evidence before the AAT of the matter in question. This task is made more difficult by the fact that there is no obligation on the AAT to keep a record of its proceedings (Oldfield v Secretary, Department of Primary Industry (1988) 14 ALD 760) and a written transcript of the proceedings is not generally prepared. See further 9.33 in relation to use by members of the AAT of their own specialist knowledge. However, there may be occasions when the fact that the AAT is not a court may result in its not being able to have regard to certain evidence. In Re RC and Director-General of Social Services (1981) 3 ALD 334 and Re Australian National Railways Commission and Gerlach (1986) 10 ALN N133, for example, the AAT held that it could not receive in evidence documents in the control of the registrar of the Family Court because s 121 of the Family Law Act 1975 (Cth) forbade their disclosure to a tribunal which is not a court. This position will, however, be the exceptional case. Usually the range of matters admissible before the AAT will be wider than in a [page 126] court: see 9.6ff for examples and see R K Todd, ‘Administrative Review Before the Administrative Appeals Tribunal — A Fresh Approach to Dispute Resolution?’ (1981) 12 Federal Law Review 95. 9.2 The fact that the AAT is not bound by the rules of evidence does not mean that it can ignore evidence. The wrongful rejection of evidence is an error of law: Repatriation Commission v Maley (1991) 24 ALD 43. However, it must be clear that the rejection is wrongful, not just a mistaken finding of fact: Gleeson v Repatriation Commission (1994) 33 ALD 95. It may also decline to receive material that is of little or no probative value: Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation (1997) 81 FCR 335 at 343; 162 ALR 237 at 244. The position was well summarised by Hill J in Casey v Repatriation Commission

(1995) 60 FCR 510 at 514; 39 ALD 34 at 38 and repeated in Secretary, Department of Social Security v Jordan (1998) 83 FCR 34 at 43; 49 ALD 496 at 504: However, s 33 of the AAT Act means what it says. The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the tribunal or taken into account by it. The criterion for the admissibility of material in the tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance. The Tribunal returned to the issue in Re General Merchandise & Apparel Group Pty Ltd and Chief Executive Officer of Customs [2009] AATA 988; (2009) 114 ALD 289 at [132]ff. It noted that the material on which the Tribunal must base its decision is evidence that is both relevant and admissible according to the rules of evidence and other material that is relevant but not necessarily admissible. It cautioned in regard to the latter that although it is clear that the Tribunal may have regard to material that is not necessarily admissible, the decision to do so should only be taken after considering what may fairly be considered. It said at [139]: Although not bound by the rules of evidence, those rules provide a tried and tested means of assessing what material is safe to rely upon. If the material does not meet those rules, careful thought of the sort given in the context of hearsay must be given to the material. That is to say, its reliability and whether it is logically probative of a fact in issue must be carefully considered before regard may be had to it. Material that is speculative or mere suspicion does not meet the required standard. See further Re Optimise Group Pty Ltd and Commissioner of Taxation [2010] AATA 782; (2010) 119 ALD 585 at [26]–[32]. 9.3 While s 33 of the AAT Act may remove constraints on admissibility of evidence, the issue of admissibility must be carefully distinguished from the weight to be attributed to evidence: Heyward v Minister for Immigration and Citizenship [2009] FCA 1313; (2009) 112 ALD 226 at [64]. The mere fact that the constraints that might apply to a court are lifted does not mean that equal weight must be given to all material before the Tribunal. It is necessary for the Tribunal to determine whether it is prepared to put trust in the value of the evidence that has been presented to it. It is important to note also in this context that the weight to be given to evidence is

[page 127] a matter for the Tribunal and, ‘unless the reasons of the Tribunal demonstrate that there was no bona fide attempt to consider the relevant material and the appropriate weight that should be given to it, the way in which the Tribunal treated the evidence would not constitute jurisdictional error’: per Emmett J in Heyward, above, at [66]. The power vested in the Tribunal by s 33(1)(c) can also be used in conjunction with the power given by s 25(4A) to determine the scope of proceedings: see 15.1 and Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595. See also Neil Rees, ‘Procedure and Evidence in “Court Substitute” Tribunals’ (2006) 28 Australian Bar Review 41; Justice Duncan Kerr, ‘Keeping the AAT from Becoming a Court’ (27 August 2013), reproduced on the AAT website. See 9.32 in regard to the power given to the Tribunal ‘to inform itself on any matter’.

EFFECT OF RULES OF EVIDENCE 9.4 While the decisions referred to in 9.1–9.3 and 9.6–9.31 make it clear that matters will be taken into account by the AAT that would not necessarily be considered by a court, the AAT, with the approval of the Federal Court, does not entirely disregard the rules of evidence. Deputy President Todd in Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 at 241–2 encapsulated the position thus: [Section 33] gives a clear warrant to the tribunal to refrain from applying the rules, or some particular rule, of evidence, for it provides that the tribunal is not bound by such rules. But it does not provide that the tribunal shall not apply the rules of evidence, and the provision that the tribunal is not bound by the rules of evidence is not to be read independently of the other provisions of s 33(1)(c) namely that ‘the tribunal … may inform itself on any matter in such manner as it thinks appropriate’. The requirements of s 33 as a whole may thus lead the tribunal in certain cases to consider that at least the principles underlying a rule of evidence, if not the strict rule itself, may offer clear guidance as to how it should inform itself.

The effect of this approach has been twofold. First, the AAT has taken the view that a rationale for the rules of evidence is that decisions should be reached on the best evidence available and by giving the parties affected a fair hearing. This may mean that while evidence is admitted, regard is not paid to it because it is not considered to carry sufficient weight or is unsafe to rely on. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, for example, the AAT in a deportation case refused to take into account hearsay evidence having regard to the severe consequences that would follow from so acting: see further 9.6. This approach was affirmed on appeal (Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139) but on the basis that the rules of natural justice required the AAT in a case of this kind to disregard such evidence. Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198 also noted that the right of the AAT to inform itself in such manner as it chooses is subject to compliance with the rules of natural justice. See also Re Barbaro (Saverio) and [page 128] Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5 and Re Pacific Film Laboratories Pty Ltd and Collector of Customs (1979) 2 ALD 144 — the terminology in these cases is that of ‘fairness’ to the parties. A refusal to apply the rules of evidence might not always be favourable to the applicant. In Re Kevin, above, the AAT admitted evidence from a non-expert in relation to land values but preferred the views of an expert valuer. The evidence of the non-expert was admissible, unlike the position in relation to a court, but its weight was slight in the face of the expert’s views. See also Re Rovere and Minister for Capital Territory (1979) 2 ALN N350. The second way in which it appears that the rules of evidence are likely to affect matters brought before the AAT flows from the public interest exclusionary rules such as the right not to incriminate oneself and legal professional privilege. The AAT is constrained to apply these rules: see 9.7–9.10. Looking at the matter overall, it appears that the AAT is considerably influenced by the thinking that had been expressed many years previously by Evatt J in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50

CLR 228 at 256. After referring to a provision that the tribunal in that case was not bound by any rules of evidence, his Honour continued: But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, throughout many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’. While the cases set out below from 9.6 indicate that the AAT is willing to avoid the technicalities of the law of evidence, nonetheless the AAT will need to be satisfied that it is proper to take into account evidence that would be inadmissible in a court. See, for example, Re McDowall and Secretary, Department of Social Security (1994) 37 ALD 117 at 123. On this whole issue see E Campbell, ‘Principles of Evidence and Administrative Tribunals’ in E Campbell and L Walker (eds), Well and Truly Tried: Essays on Evidence in Honour of Sir Richard Eggleston, Law Book Co, Sydney, 1982; Neil Rees, ‘Procedure and Evidence in “Court Substitute” Tribunals’ (2006) 28 Australian Bar Review 41; Justice Duncan Kerr, ‘Keeping the AAT from Becoming a Court’ (27 August 2013), reproduced on the AAT website.

EVIDENCE AND NATURAL JUSTICE 9.5 While the AAT is not bound by the rules of evidence it is obliged to comply with the requirements of natural justice or procedural fairness: see 8.7. The fact that evidence may be available to the AAT that would not be available to a court does not [page 129] relieve the AAT of the obligation to make sure that the material is brought to the

attention of the parties and that they are given an opportunity to rebut it: Casey v Repatriation Commission (1995) 60 FCR 510 at 514; 39 ALD 34 at 38; Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533. Kunz’s case also indicates that procedural matters relating to evidentiary issues can still impact on the AAT as they are based on procedural fairness. There the failure of the respondent to require the maker of a statement that was accepted into evidence by the AAT to be made available for cross-examination was held to prevent an objection to regard being paid to the statement. The position set out here is subject to specific provisions of the AAT Act and other legislation which may prevent information that has been brought to the attention of the Tribunal being disclosed to an applicant. In these circumstances, the Tribunal must nonetheless take the information into account in reaching its decision: see, for example, AAT Act ss 36, 38A, 39B; Migration Act ss 375A, 438.

RULINGS ON EVIDENTIARY AND PROCEDURAL MATTERS Hearsay evidence 9.6 The admissibility of hearsay evidence has caused the AAT difficulty on occasions. As noted in 9.4, the AAT in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 held that hearsay evidence of involvement in drug marketing was insufficient to provide a basis for a deportation order. Likewise in Re Rovere and Minister for Capital Territory (1979) 2 ALN N350, hearsay evidence relating to building costs could not be used to make a finding differing from departmental statistics. A sworn statement by a witness before the AAT who has been subject to cross-examination will almost certainly be given credence over a written statement of a person who has not so appeared: Re Waterford and DirectorGeneral of Social Services (1980) 3 ALD 63, and see 13.40 relating to telephone and video hearings. These cases afford examples of the general principles alluded to in 9.4. However, this does not mean that evidence that cannot be tested by a party must be disregarded by the AAT. President Davies J in Re Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5 put it:

It is not in every case fair to all parties or otherwise appropriate that the tribunal should insist upon the best evidence of disputed facts, even critical facts. There are occasions when it is inappropriate to insist upon such evidence and when it is appropriate to receive evidence which, though of a logically probative nature, cannot be tested by one or more of the parties. In such a case, the party adversely affected by the evidence is given a fair hearing by his attendance at the hearing, his awareness of the evidence adduced against him and his ability to adduce evidence to the contrary if he sees fit to do so. This approach of Davies J was reiterated by the Full Court on appeal: Barbaro v Minister for Immigration and Ethnic Affairs (1982) 4 ALN N219. See also Shulver v Sherry [page 130] (1992) 28 ALD 570 and, in relation to the Refugee Review Tribunal and therefore applicable to hearings in the Migration and Refugee Division, SZQVM v Minister for Immigration and Citizenship [2013] FCA 5; (2013) 139 ALD 81 at [84]. Nevertheless, hearsay evidence that is crucial to the issue and to which regard ought not to be had in the absence of cross-examination will be excluded. In Re Pettifer and Director-General of Health (1982) 4 ALD 517 the hearsay evidence of conversations between the applicant and his doctor was not admitted as it was prejudicial to the applicant and the doctor was not available for crossexamination. Likewise, medical certificates unsupported by an affidavit or direct evidence: MZYZE v Minister for Immigration and Citizenship [2013] FCA 569; (2013) 136 ALD 395 at [8]. A request for a summons directed to departmental officers was refused because their evidence would do no more than repeat that which they had been told by the applicant’s witnesses and which was available directly from them: Re Davsa Forty-Ninth Pty Ltd atf Krongold Ford Bus Unit Trust and Commissioner of Taxation [2012] AATA 317; (2012) 128 ALD 619. A number of the items listed below would not normally be admissible in a court, but the AAT has both admitted them and paid regard to their content in pursuance of the principle enunciated by Davies J in Barbaro’s case set out above.

For a detailed general analysis of the use of hearsay evidence by the AAT see Re Ileris and Comcare [1999] AATA 647; (1999) 56 ALD 301.

Incriminating evidence 9.7 It seems unlikely that the AAT would or could insist on the admission of incriminating evidence — particularly in the light of s 60 of the Act which gives witnesses before the AAT (including witnesses in applications in the Migration and Refugee Division) the same immunity as witnesses before the High Court. The privilege against self-incrimination is of general application: it is not limited to curial proceedings but applies in quasi-judicial and non-judicial proceedings unless excluded by statute. The terms of the AAT Act do not abrogate the privilege in the explicit manner contemplated by the High Court in Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; 45 ALR 609; and Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; 57 ALR 751. See also Lee v R [2014] HCA 20; (2014) 308 ALR 252 at [33]: ‘The companion rule to the fundamental principle [against self-incrimination] is that an accused person cannot be required to testify.’ In Re VCA and Australian Prudential Regulation Authority [2006] AATA 873; (2006) 92 ALD 724 the Tribunal directed that incriminating material contained in statements made by an applicant to the respondent under compulsion should not be included in the documents lodged with the Tribunal under s 37 of the AAT Act: see 12.2. No adverse conclusion may be drawn by the AAT from the fact that a person declines to answer a question on the basis that to do so might be incriminating: Dolan [page 131] v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 31 ALD 510. However, the absence of such evidence may mean that the Tribunal will be unable to reach a conclusion that is favourable to the applicant: Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630 at [48].

For comments on how to deal with the hearing of a matter when the possibility of incrimination arises see Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317; Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155 at 173. In Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 398; (2004) 81 ALD 473 the Tribunal declined to make an order under s 35(2) of the AAT Act that would have allowed the applicant to call a witness who would give incriminating evidence but not permit the respondent to use that evidence in the performance of its statutory duties. The refusal to make the order meant that the evidence was not given. See Commissioner of Taxation v Pham [2013] FCA 579; (2013) 134 ALD 534 for consideration of the type of order that the Tribunal might make where evidence to be given before the Tribunal might incriminate a person in criminal proceedings.

Legal professional privilege 9.8 The High Court has affirmed that legal professional privilege attaches to legal advice furnished in relation to administrative decisions, including AAT proceedings: Waterford v Commonwealth (1987) 163 CLR 54; 12 ALD 741. In consequence, the AAT has on many occasions upheld objections to the production of a document on this basis: see, for example, Re Peric and Commonwealth Banking Corporation (1984) 7 ALN N2; Re Lindsey and Australian Postal Commission (1989) 18 ALD 340; Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393; Re Loknar and Secretary, Department of Social Security (1992) 29 ALD 591. See also Re Greenbank and Secretary, Department of Social Security (1986) 9 ALD 338 but note the expression of regret at 343 that a claim of privilege should be made: ‘Reviews of decisions made particularly under the Social Security Act should not be conducted as tactical exercises. As a matter of good faith we would normally expect a full and frank disclosure on both sides of all available evidence.’ A like view was expressed in Re Bryant and Military Rehabilitation and Compensation Commission [2005] AATA 190; (2005) 87 ALD 154 at [17]. It must, of course, be clear that the document in question satisfies the tests for legal professional privilege: Re Clearihan and Registrar of Motor Vehicle Dealers (ACT) (1994) 150 FCR 301; 33 ALD 318; Comcare v Foster [2006] FCA 6; (2006) 150 FCR 301; 89 ALD 508. In Re Parremore and Australian Postal Corporation (1991) 150 FCR 301; 23 ALD 115 a video film that could have attracted the privilege was

held not to do so as it had been brought into existence for the purposes of the original decision not the AAT proceedings. Compare Comcare v Foster, above, where such a film was held to fall within the privilege because it was brought into existence for the purposes of submission to Comcare’s external lawyers and therefore formed part of the overall communication with those lawyers. [page 132] The privilege may be taken to have been waived as a result of the conduct of the party claiming it: Re Wagh and Australian Postal Corporation [2007] AATA 1948; (2007) 98 ALD 671: reading of, and reliance upon, parts of privileged communication at a conference of parties convened under s 34A of the AAT Act. However, the provision of a document to a party will not constitute waiver of privilege if the document was provided as a result of a direction of the Tribunal: Re Rodsted and Repatriation Commission [2009] AATA 658; (2009) 113 ALD 125 at [133]. 9.9 There are two branches of common law legal professional privilege: (1) communications between a client and lawyer for the dominant purpose of seeking and receiving legal advice (sometimes referred to as ‘advice privilege’); and (2) communications between a lawyer and client or third party for the dominant purpose of providing legal services in connection with pending or anticipated proceedings (sometimes referred to as ‘litigation privilege’). In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530; (2006) 91 ALD 118; 67 NSWLR 91 Bergin J of the New South Wales Supreme Court declined to uphold a claim of ‘litigation privilege’ in respect of documents prepared on behalf of a party for the purposes of AAT proceedings. Her Honour said that neither s 119 of the Evidence Act 1995 (Cth) nor common law litigation privilege applied as the AAT was not a court and its proceedings were not adversarial. However, she left open the possibility of the respondent seeking to protect the documents by claiming advice privilege. This limitation on the scope of the privilege exception was subsequently rejected by a Tribunal presided over by President Downes J in Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788. The Tribunal said that the nature of the AAT was such that there was no reason why litigation privilege should not be attracted to its proceedings. In

the absence of a clear indication to the contrary, that privilege, as well as advice privilege, should be assumed to attach to documents relating to applications to the Tribunal. See also the analysis of the position by DP Forgie in Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 commencing at [179]. The Tribunal at [205] noted that the decision of the High Court in Waterford v Commonwealth (1987) 163 CLR 54; 12 ALD 741 indicated a contrary conclusion to Ingot Capital and should be followed. Farnaby was followed by the Tribunal in Re Neenan and Australian Postal Corporation [2011] AATA 372; (2011) 121 ALD 459. The privilege may be displaced by express legislative provision: see, for example, Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 70. However, such a displacement must be clearly stated: Baker v Campbell (1983) 153 CLR 52 at 122; 49 ALR 385 at 438; Re Farnaby, above, at [36]. A requirement to comply with procedural fairness will not displace the privilege: Griffiths v Rose [2010] FCA 964; (2010) 190 FCR 173; 117 ALD 473. [page 133] 9.10 The power of the AAT in s 33(2) of the AAT Act to give directions as to the procedure to be followed at a hearing is not sufficient to displace the privilege: Re Lindsey (1989) 18 ALD 340 at 344; Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86. However, insofar as the production of documents to the Tribunal itself as distinct from a party is concerned, the applicability of the privilege is affected by s 37 of the AAT Act. Section 37(1) provides that the decision-maker must furnish to the AAT all documents relevant to the review of the decision that are in its possession. Section 37(3) provides that this obligation applies ‘notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents’. These provisions will, in effect, allow the AAT to override a privilege claim and require the s 37 documents (the ‘T’ documents: see 12.2) to be supplemented by any document that would otherwise be privileged from production: Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393; Re Daronadis Pty Ltd and Commissioner for ACT Revenue (1994) 33 ALD 725; Re Baker and Australian and Overseas Telecommunications Corporation [1992] Admin Review 113; Re Fahey and

Psychologists Board of ACT (1996) 44 ALD 394; Re Chang and Comcare (1997) 48 ALD 746; Re Forsyth and Federal Privacy Commissioner and ACT Government Solicitor [2004] AATA 175; (2004) 80 ALD 489. As to whether this document then becomes available to an applicant, see 12.2 and the discussion in the Hobart Central Child Care case, above. In Fahey and Forsyth, above, and Re Spicer Axles Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77; (2005) 83 ALD 104 the Tribunal discussed the possibility of limiting an applicant’s access to a document to which privilege applied by using its power under s 35 of the AAT Act to make a confidentiality order: see 11.9. However, in Re VBN and Australian Prudential Regulation Authority (No 2) [2005] AATA 1060; (2005) 92 ALD 455 at [25] the AAT indicated that a confidentiality order would not be made as a matter of course on the basis that the document was subject to legal professional privilege. The direction in s 37(1AE) that a party is entitled to be given documents and in s 37(3) that the section has effect notwithstanding any rule of law relating to privilege indicate that the claim for confidence must be based on arguments other than simply an assertion of legal professional privilege. The Tribunal in Re Sumabe Pty Ltd and Minister for Health and Ageing [2011] AATA 799; (2011) 125 ALD 327 made such an order preventing access to a document to which privilege attached after what it described as ‘detailed consideration following submissions from the parties’. It is possible for another Act to override the operation of s 37 and prevent the production of a document to which legal professional privilege attaches: Re Rytir and Discrimination Commissioner (1996) 44 ALD 427. The documents to which privilege relates must be relevant to the proceedings before production will be ordered: see 12.9. [page 134] There is no recognition in Australia of a category of ‘legal medical privilege’: Hill v Howe (1991) 24 ALD 159; Re Cavanagh and Comcare [2005] AATA 297; (2005) 85 ALD 769. See generally the discussion in Christos Mantziaris, ‘Client Legal Privilege in Administrative “Proceedings”: Killing off the Adversarial/Inquisitorial Distinction’ (2008) 82 Australian Law Journal 397.

Without prejudice privilege 9.11 Communications between parties to litigation on a ‘without prejudice’ basis are protected from disclosure in subsequent proceedings. The same rule applies to communications relating to Tribunal proceedings: Re Feben and Repatriation Commission (1998) 50 ALD 600 at 607; Re Mining Holding Co and Commissioner of Taxation [2006] AATA 491; (2006) 63 ATR 1027 at [40]; Re Casperz and Secretary, Department of Employment and Workplace Relations [2006] AATA 211; (2006) 42 AAR 329 at [15]; Re Bruse and Commissioner of Taxation [2010] AATA 404; (2010) 116 ALD 183. As with legal professional privilege, s 37(1) and (3) may enable the Tribunal to override the privilege: see 9.8 and 12.9. The Bruse case equated without prejudice privilege with legal professional privilege. Accordingly, the remarks at 9.8–9.10 are probably generally applicable to this privilege also.

Public interest privilege 9.12 Whether production of documents can be prevented in judicial proceedings on the basis that their disclosure would be contrary to the public interest was a matter of dispute for many years. It appears to have been settled in Australia since the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 that such a claim can be made but whether it can be sustained is a matter to be determined by the court hearing the case in which the claim arises. The basis on which a claim of public interest privilege may be upheld in judicial proceedings was usefully summarised by the AAT in Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86 at [49]–[57]. The Hobart Central Child Care case from [58] considered the question whether a public interest privilege claim can be made in the Tribunal. The consideration of the issue is clouded by the fact that there is provision made in ss 36–36D of the AAT Act for the Attorney-General of the Commonwealth or of a state to issue a certificate that disclosure of material lodged with the AAT should not be released because it would be against the public interest: see 12.16. The Tribunal in the Hobart Central Child Care case said that those sections did not provide a code for determining public interest privilege. A claim that documents to which no Attorney-General’s certificate

relates should nevertheless not be disclosed in the public interest is to be determined on the principles that apply to such claims when made in judicial proceedings. See also Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425; (2006) 90 ALD 417; [page 135] Re Telstra Corporation Ltd (No 2) [2006] ACompT 10; (2006) 93 ALD 407; Re Tang and Minister for Immigration and Citizenship [2012] AATA 330; (2012) 132 ALD 105 at [165]; and see 12.6 and 12.16. The provisions in the AAT Act are replicated in the Migration Act ss 375– 376, 437–438 and these would be relevant to applications for review of a decision in the Migration and Refugee Division. See SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281 in regard to the protection on public interest grounds of adverse security assessments.

Parole evidence rule 9.13 Where parties have recorded the terms of their contract in a document, the so-called parole evidence rule excludes the use of evidence of extrinsic terms which subtract from, add to, vary or contradict the language of the written instrument. In Re Son and Australian Trade Commission [2005] AATA 227; (2005) 86 ALD 469 the Tribunal held that the fact that it is not bound by the rules of evidence excluded the operation of the rule in Tribunal proceedings. Accordingly, the Tribunal accepted statements of the intention of the parties when determining the effect of a contract. It noted that the weight to be given such statements was for the Tribunal to determine.

Rule in Jones v Dunkel 9.14 The rule in Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 that an adverse inference can be drawn against a party who fails to call a witness where the witness might be expected to support the case being put by the party is applicable to proceedings before the AAT: Re Perring and Australian Postal

Corporation (1993) 31 ALD 693; Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178 at [110]–[115] (where a failure by an applicant to take a DNA test resulted in an adverse conclusion being drawn against her); Re Optimise Group Pty Ltd and Commissioner of Taxation [2010] AATA 782; (2010) 119 ALD 585 at [33]–[37]. But see Re Confidential and Commissioner of Taxation [2013] AATA 382; (2013) 135 ALD 609 at [101] and Re Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority [2014] AATA 496; (2014) 145 ALD 416 at [69] for cautionary words on the nature of the adverse inference that the rule permits. However, it is necessary to bear in mind that the AAT stands in the shoes of the decision-maker. The reasons why the decision-maker came to a particular conclusion may not be relevant to the outcome of a review as the Tribunal is to come to its own conclusion in the matter. For this reason, a failure to call the decision-maker as a witness does not have the significance that it would in relation to judicial review proceedings: Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) [2004] AATA 704; (2004) 82 ALD 163 at [123]–[124]. There the failure to call the decision-maker was said not to lead to the Tribunal [page 136] drawing any conclusion that the decision-maker had not been called because his evidence would not assist the respondent’s case. The rule should also be applied with discretion in the case of an unrepresented party: Re Rodgers and Secretary, Department of Social Security (1991) 24 ALD 720. In Xu v Director of Housing [2008] VSC 82 at [9], the Victorian Supreme Court upheld an appeal from the Victorian Civil and Administrative Tribunal where an adverse inference had been drawn against an unrepresented applicant for failing to call a witness where no warning had been given to the applicant of that possibility. The fact that the AAT is an inquisitorial body may also mean that the rule ought not to be automatically applied. The Tribunal should consider whether it should call the witness: Re Bessey and Australian Postal Corporation [2000] AATA 404; (2000) 60 ALD 529 at [23] and see 13.19. Where a Minister is the relevant witness, the demands of office might be argued to oppose the inference that the rule in Jones v Dunkel posits. However, a

failure to contradict positive evidence makes it more likely that an inference will be drawn from the uncontradicted evidence: Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 at 548; 67 ALR 195 at 199; Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 61; 43 ALD 203 at 223. This approach was noted in Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; 126 ALD 10 at [115] but with the rider being added that it was not possible to rely on the Minister’s failure to give evidence to make good a deficiency in the applicant’s case. While it is concerned with judicial review, a useful commentary on the applicability of the Jones v Dunkel inference in regard to Ministers is to be found in Anthony Papamatheos, ‘Inferences Against Ministers who Fail to Give Evidence in Judicial Review Proceedings’ (2009) 17 Australian Journal of Administrative Law 50.

Royal Commission reports 9.15 The AAT in Re Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 paid much attention to the Report of the Royal Commission into Drug Trafficking. The same report was also taken into account in Re Piscioneri and Minister for Immigration and Ethnic Affairs (1980) 3 ALN N8. In Barbaro v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690; 65 FLR 127; 4 ALN N219 this was said to be a legitimate way for the Tribunal to proceed provided that the applicant had been afforded appropriate procedural fairness. In Re Vincenzo Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALN N31, on the other hand, while the report was admitted in evidence, the AAT, on the facts presented to it, reached a different conclusion from the Commission.

Findings of other bodies 9.16 The Tribunal may use the findings of other tribunals or of courts as evidence upon which it may base its own findings: Re Thorpe and Commissioner of Taxation [page 137]

[2011] AATA 638; (2011) 123 ALD 355 at 366. The weight to be given such evidence is for the Tribunal to determine. This approach is based, in part, on the undesirability of requiring parties to re-litigate a matter that has already been the subject of litigation in other forums. However, see 9.17–9.19 in regard to the effect of an actual decision in judicial proceedings on an application before the AAT.

Effect of findings by court in other proceedings 9.17 The effect on review of a decision by the AAT where there have been findings of fact made by a court in other proceedings has usually arisen in relation to criminal proceedings: see 9.19. However, the issues at stake may not be limited to facts underpinning a conviction. Civil proceedings may also have resulted in findings by a court relevant to matters arising on an AAT review. This will usually give rise to a question whether the Tribunal is estopped from reconsidering the court’s findings. This is discussed at 17.7–17.10. The issue of findings in other proceedings arose in Re Proctor and Commissioner of Taxation [2005] AATA 389; (2005) 87 ALD 247. It was concluded there that the essential findings on which a court decision is based bind the Tribunal where the Tribunal is required to consider the same issue as the court and a reading of the AAT Act and the legislation conferring jurisdiction lead to the conclusion that the decision is intended to bind the Tribunal. There the findings of fact made by a court on a taxation appeal by an associate of the applicant to the Tribunal bound the AAT as the findings determined the status of the transaction that was at the heart of the claim before the Tribunal.

Going behind order 9.18 The AAT may go behind an order of a court or tribunal that, for example, awards compensation to an applicant, where it considers it necessary to do so to understand the facts of a matter before it: Re Cocks and Secretary, Department of Social Security (1989) 18 ALD 160; Secretary, Department of Social Security v Littlejohn (1989) 19 ALD 361; Re Secretary, Department of Social Security and Smith (1992) 29 ALD 385. Regard must, however, be paid to the fact that the order has been made.

Evidence challenging criminal conviction 9.19 The AAT has had to confront the issue whether evidence can be given to it that contradicts a criminal conviction, in other words, whether it can go behind the conviction. This has arisen mainly in two circumstances — review of deportation orders based on a criminal conviction and review of decisions to recover moneys paid by the Commonwealth where the person has been convicted of an offence arising out of that payment. The issues have been considered by the Federal Court on appeal from the AAT in a number of decisions. The position that seems to have been reached is as follows. [page 138] If the factor upon which the decision under review by the AAT is based depends upon conviction for an offence, the conviction cannot be challenged before the AAT. Nor can the AAT go behind the conviction and examine the facts on which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 102 ALR 19 at 22. However, this is not to be taken as denying the right of the applicant to present to the AAT matters pertaining to a conviction provided that they do not contradict the facts which the jury must have found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N205. So on an application to review a deportation order based on a criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify the evidence given at the trial. What cannot be attempted is to show that the conviction on which the order was based is wrong. Nor can the AAT receive evidence suggesting that an appeal might have been successful: Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 531. The limitation on giving evidence extends to the factual matters to which the trial judge referred in imposing sentence (Minister for Immigration and Multicultural Affairs v SRT [1997] FCA 1197; (1999) 91 FCR 234; 56 ALD 349), but it is possible to give evidence of a matter of a continuing nature to which the court

referred such as the likelihood of reoffending: Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; 23 ALD 556. By way of contrast, ‘where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based’: Saffron’s case, above, at 22. A Full Federal Court in Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 at 281; 29 ALD 726 at 731 explained this approach in the following way: The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the tribunal) exercise that decision-making power. That person is entitled to present to the tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based. See also Secretary, Department of Social Security v Mariot (1993) 29 ALD 677 at 680 where Einfeld J suggested that a failure to allow evidence in such circumstances would constitute a breach of natural justice. However, Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 at [43] sounded the cautionary warning [page 139] that, when considering the effect of criminal convictions, it should be recognised that the criminal justice system is pre-eminently suited to the determination of the guilt of persons and that inconsistency between decisions of criminal courts and tribunals should be avoided. This led her Honour to observe that a conviction and sentence should be treated as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a

person who seeks to challenge such facts to show why they should not be accepted. For an application of these principles in relation to social security applications, see: Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155; Re Goonewaradana and Secretary, Department of Social Services [2013] AATA 795; (2013) 137 ALD 188; and in relation to migration applications, see: Re Le Geng Jia and Minister for Immigration and Multicultural Affairs (1996) 42 ALD 700 at 702; Re Chandra and Minister for Immigration and Citizenship [2010] AATA 992; (2010) 120 ALD 108 at [12].

Criminal statistics 9.20 In a number of early deportation cases, but probably most notably Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225, the AAT has taken into account official statistics relating to recidivism and the incidence of the commission of crime by persons of particular ethnic origin.

Textbooks on criminal behaviour 9.21 Again in deportation cases, the AAT has had regard to textbooks concerned with such matters as the psychological aspects of criminal behaviour and the effect of imprisonment on persons: see, for example, Re Lazarevic and Minister for Immigration and Ethnic Affairs (1979) 2 ALN N532.

Medical dictionaries 9.22 The AAT may refer to medical dictionaries to assist it in understanding medical evidence. It is not obliged to give the parties the opportunity to address on the content of the dictionary if all that it is doing is obtaining assistance on the meaning of an expression: McMullen v Commissioner for Superannuation (1985) 61 ALR 189; Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533; Winch v Repatriation Commission [1999] FCA 408; (1999) 55 ALD 351 at [17]–[20].

Hospital records 9.23 In Re Z and Commissioner for Superannuation (1983) 5 ALN N251 the AAT admitted hospital records relating to the applicant. It insisted that all the relevant

records, not just part, be tendered. The AAT noted that the records were hearsay but considered that they should be admitted as they formed part of a continuous record kept in relation to the applicant by persons as part of their professional duties. [page 140] They were also relevant as indicating whether certain disclosures had been made to a medical practitioner by the applicant.

Medical statements of principle 9.24 In veterans’ cases, the AAT is obliged to take into account the statements of principle relating to medical causation made by the Repatriation Medical Authority under the Veterans’ Entitlements Act 1986 (Cth). It has also had regard to these principles notwithstanding that they did not apply to the case before it because of the date when it had been commenced and the fact that they would not be admissible in court proceedings. Their content was relevant to the medical questions that the AAT had to consider: Casey v Repatriation Commission (1995) 60 FCR 234; 39 ALD 34.

Trade survey 9.25 In Re Virgo Manufacturing Co Pty Ltd and Collector of Customs (Vic) (1981) 3 ALN N19 a trade survey was admitted. However, the AAT remarked that the survey disclosed no unanimity of view and that as the survey expressed the opinions of a number of unidentified persons which were untested in crossexamination, it carried little weight.

Policy statements, etc 9.26 Policy statements are frequently issued by Ministers or senior departmental officers to direct the way in which a discretionary decision is to be made. Such statements are relevant to the decision of the AAT standing in the shoes of the decision-maker and are admitted in evidence by the Tribunal. The

manner in which such statements are used by the Tribunal in reaching a decision is discussed at 16.24–16.30. Such statements are to be distinguished from the decision under review itself. The decision itself is not to be afforded any evidentiary weight by the Tribunal in reaching a decision on the facts of a particular case: Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198.

Expert evidence 9.27 Evidence of experts is admissible in proceedings before the AAT in the same circumstances as it is admissible in proceedings before a court. Regard is to be had to whether the understanding of the subject matter requires special training: Re Potoroo Press and Minister for Primary Industry (1983) 5 ALN N106. However, as that case shows, while special expertise may not be required ultimately to understand the problem in question, an expert might be able to assist the AAT by pointing out particular matters that are relevant to that conclusion. As to what constitutes an ‘expert’ in the Tribunal context, see Ananda Marga Pracaraka Samgha Ltd v Tomar [2012] FCA 385; (2012) 202 FCR 564; 291 ALR 292. [page 141] On the use of expert medical evidence, see Re Foulger and Repatriation Commission (1980) 2 ALD 789 and Re Welsford and Commonwealth Banking Corporation (1984) 5 ALN N570. In a number of cases the AAT has been concerned with a challenge by a layman to opinion evidence given by an expert. In these cases the AAT has consistently ruled that, in the absence of obvious error, the evidence of the expert must be preferred to that of the layman: see, for example, Re Firth and Minister for Capital Territory (1979) 2 ALD 183 and Re Hill and Wilson and Minister for Capital Territory (1979) 2 ALD 457. It is not that the evidence of the layman is inadmissible but that it usually can carry little weight against that of the expert: Re Hall and Minister for Capital Territory (1979) 2 ALD 958. It is accepted, however, that different considerations would arise if it were shown that the expert’s

opinion was based on insufficient or incorrect data: Re M J & N L Quinlivan and Minister for Capital Territory (No 2) (1979) 2 ALN N529. The President has issued a Persons Giving Expert and Opinion Evidence Guideline which is reproduced on the AAT website. The Guideline indicates the duty of expert witnesses to the Tribunal, including an obligation to include in a report a declaration acknowledging that duty (cl 4.5). The Guideline also sets out the form the report of the witness should take and the information that should be included in it. If a witness is or becomes aware of a conflict of interest, this must be disclosed to the party engaging the witness. That party must disclose the conflict to the Tribunal (cl 5). The AAT must also be apprised of any preexisting relationship between the witness and the party or any unusual remuneration arrangements for the witness. Failure to comply with the Guideline may be relevant to determining the weight to be given to the evidence: Re Heaney and Commissioner of Taxation [2013] AATA 331; (2013) 138 ALD 144 at [101]. However, it must be clear that the evidence in question is ‘expert’ evidence before the issue of compliance can arise: Re AP Energy Investments Ltd and Commissioner of Taxation [2013] AATA 626; (2013) 138 ALD 339 at [21] See further 13.36 in relation to the taking of concurrent evidence from experts. See also the paper by Justice Garry Downes, ‘Expert Witnesses in Proceedings in the Administrative Appeals Tribunal’ (22 March 2006), reproduced on the AAT website.

Opinion rule 9.28 In Re Proctor and Commissioner of Taxation [2005] AATA 389; (2005) 87 ALD 247 reference was made to the statement in s 76 of the Evidence Act 1995 (Cth) that ‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed’. The Tribunal observed that this rule did not apply to the Tribunal because it is not bound by the rules of evidence. However, DP Forgie went on to point out that an opinion could not be received in [page 142]

evidence if it related to the matter that the Tribunal had to determine. The Tribunal has to make its decision on the facts before it and the expression of an opinion by a witness as to what that decision should be could not be taken into account.

Trade usage 9.29 The AAT has frequently admitted evidence of trade usage. The fullest discussion of this issue is to be found in Re Pacific Film Laboratories Pty Ltd and Collector of Customs (1979) 2 ALD 144. See also Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1; Re Gissing and Collector of Customs (1977) 1 ALD 144. In Re Sussan (Wholesalers) Pty Ltd and Bureau of Customs (1977) 1 ALD 89 it was indicated that evidence would have been admitted from members of the public to show the use made of the garments that were the subject matter of the appeal to the AAT.

Technical words 9.30 Evidence may be admitted of the meaning to be given technical words: Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 101; Re Computer Manufacture and Design Pty Ltd and Comptroller-General of Customs (1983) 5 ALD 218.

Statutory interpretation generally 9.31 Many of the AAT’s decisions involve the meaning of legislation. There can be no doubt that an administrator, when endeavouring to place meaning on an Act, does not feel constrained by the artificial rules of interpretation adopted by the courts. In particular, a departmental officer will almost certainly pay heed to what was said by a Minister in introducing legislation as indicative of the purpose of the legislation. However, at common law the courts declined to look at such extraneous materials and the High Court had ruled that a tribunal could not take into account for interpretation purposes matters to which a court would not have regard: South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Ltd (1977) 139 CLR 449; 14 ALR 485. The AAT originally conformed to this directive by declining to look at materials extrinsic to the legislation under consideration. The position was then changed. Section 15AB was inserted in the Acts Interpretation Act 1901 (Cth) by

amendment in 1984. That section permits regard to be had to a wide range of extrinsic materials for interpretation purposes and the AAT regularly pays regard to such materials. The issue that the AAT now faces is whether the material is relevant and useful. It is no longer a case of being forbidden to look at extrinsic aids: Re Shingles and Director-General of Social Security (1984) 6 ALD 568; Re Christoffelsz and Commonwealth (1987) 13 ALD 392; Re Grace and Commonwealth (1987) 13 ALD 433; Re Gilbert and Secretary, Department of Social Security (1987) 13 ALD 518. [page 143] For the present attitude of the courts to the use of extrinsic materials see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014, ch 3.

TRIBUNAL MAY INFORM ITSELF ON ANY MATTER: S 33(1)(C) 9.32 In addition to stating that the Tribunal is not bound by the rules of evidence, s 33(1)(c) of the AAT Act says that the Tribunal ‘may inform itself on any matter in such manner as it thinks appropriate’. The effect of this provision has received little attention. If the Tribunal has wished to obtain further information than that which has been furnished by the parties, it has usually looked to the power in s 40 to summon a witness: see 13.27. However, see the discussion by DP Forgie in Re Pescott and Inspector-General in Bankruptcy [2013] AATA 680; (2013) 147 ALD 128 at [71] in relation to estoppel: see 17.8. The inclusion of the ‘inform itself ’ power in this sense is common in tribunal legislation. In Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 the validity of direct action by the Board to inform itself was considered. The Board had conducted a Google search to ascertain the credentials of an expert witness. It brought this action and the information that it had learned to the attention of the parties. The applicant claimed that this action was beyond the Board’s powers and prohibition was sought to prevent it continuing the

inquiry. The Court of Appeal held that the action taken fell within the power of the Board to inform itself in such way as it thought fit. It complied with procedural fairness requirements by bringing the information that it had obtained to the attention of the parties. Maxwell P, with whom the other judges agreed, said at [28] and [30]: The words ‘may inform itself …’ were plainly intended to have work to do. They have a meaning and a purpose quite distinct from the meaning and purpose of the words ‘not bound by rules of evidence’. Far from the phrase ‘may inform itself ’ being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts. For the purposes of ‘determining the matter before it’, the panel is authorised to ‘inform itself in any way it thinks fit’ subject always to the overriding obligation to accord procedural fairness … By giving the panel power to inform itself ‘in any way it thinks fit’, Parliament has clearly differentiated the panel’s conduct of a formal hearing from the judicial paradigm. Whereas the judicial function is essentially passive — in the sense that the court relies on the adversarial parties to present the evidence and define the issues for decision — the panel’s work is thus stamped with an inquisitorial character. As is emphasised by the conferral of the Evidence Act 1958 (Vic) powers, the panel’s role as investigator is envisaged as being active, not passive. This analysis was endorsed by the New South Wales Court of Appeal in Commissioner of Police v Sleiman [2011] NSWCA 21; (2011) 78 NSWLR 340; 281 ALR 253 at [187]–[190]. [page 144] It would seem that the comments and conclusion would be applicable to the AAT also, probably including in relation to hearings in its Migration and Refugee Division. The Migration Act does not contain a provision of the kind discussed above. However, ss 359 and 424 provide that the Tribunal may ‘get any information that it considers relevant’. The sections then go on to say that, if the Tribunal gets such information, it must have regard to it in making its decision. This

language is a shade removed from that in the AAT Act set out above but it does give the Migration and Refugee Division of the Tribunal a power to seek information of its own volition. To that extent, the commentary above would seem to apply to this power also. See 13.27–13.31 in relation to the power of the AAT to conduct its own investigations.

RELIANCE BY MEMBERS ON OWN EXPERTISE 9.33

In R v Milk Board; Ex parte Tomkins [1944] VLR 187 at 197 Lowe J said:

Where an arbitrator is chosen for his special knowledge, for example, where a medical question comes before a medical man, or an engineering question before an engineer, such an arbitrator is not bound to accept evidence, even if uncontradicted, which his experience makes him think incredible. In such cases the special knowledge of the tribunal cannot be separated from it and is part of the equipment of the tribunal. The passage was endorsed by the Full Supreme Court in R v Industrial Appeals Court; Ex parte Maher [1978] VR 126 at 142 and a Full Federal Court in Commissioner of Patents v Emperor Sports Pty Ltd [2006] FCAFC 26; (2006) 149 FCR 386; 225 ALR 407 at [24]. In the latter case it was observed also that a judge hearing an appeal from an expert tribunal was entitled to take into account conclusions based on the tribunal’s expertise. These cases indicate that it is legitimate for AAT members to rely on their own background knowledge whether it be derived from their training or from acquired experience on the AAT. Taking this further, ss 17CA and 17E of the AAT Act explicitly require members assigned to the Freedom of Information Division and the National Disability Insurance Scheme Division to have relevant knowledge or experience. In SZNTE v Minister for Immigration and Citizenship [2009] FMCA 1256; (2009) 113 ALD 522 it was held that the Refugee Review Tribunal was entitled to take account of evidence given by an applicant in one appeal in another hearing. It would seem that the same approach would apply to the AAT generally and in the Migration and Refugee Division in particular.

However, if the Tribunal proposes to reach a conclusion based on the knowledge of the members of a particular fact or in reliance on particular expertise, it is necessary for this to be indicated to the parties so that no question of a breach of the rules of natural justice arises: Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579; Tisdall v Health Insurance Commission [2002] FCA 97; Martinez [page 145] v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 at [85]. The AAT draws upon its own expertise from time to time: see, for example, Re Dowling and Commonwealth (1979) 1 CCD 225; Re O’Rafferty and Director-General of Social Security (1983) 5 ALN N160; Re Ball and Commonwealth (1987) 15 ALD 491; Re Pelgrave and Comcare [2005] AATA 214; (2005) 86 ALD 343 at [78]. It has been suggested that the expertise that may be relied upon can only be that which has been derived from service on the AAT itself: Re Ernst and Repatriation Commission (1988) 15 ALD 93. This seems to be a curious limitation. Provided that the basis of the expertise and the intention to rely on it are disclosed, it does not seem that this qualification is necessary. Persons are appointed to the AAT because of their expertise. They will be expected to draw on that expertise. However, there must be some basis for the matter relied upon. Decisions of the Tribunal were set aside in the following cases where it was considered that the expertise claimed could not be supported: Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205; 8 ALN N102 (reliance by Tribunal on own knowledge of traditional Aboriginal concepts of communality of property); Rodriguez v Telstra Corporation Ltd, above, at [25] (reliance on personal medical knowledge where expert evidence necessary); SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613; (2007) 98 ALD 575 at [54] (reliance on experience of why applicants fail to appear at hearing). It is appropriate for the AAT to draw the attention of the parties before it to other decisions of the AAT involving similar fact situations: Re Perks and Australian National Railways Commission (1987) 13 ALD 133 at 135. However, it may not be right for AAT members to become instant experts, as it were, by dint of the evidence heard in a particular case: Re Forever Living Products Australia Pty

Ltd and Collector of Customs (1986) 9 ALD 271 (correct description of taste of a product). See further Hayley Katzen, ‘Procedural Fairness and Specialist Members of the AAT’ (1995) 2 Australian Journal of Administrative Law 169.

ONUS OF PROOF No formal onus on applicant 9.34 There is no provision in the AAT Act (or the Migration Act) dealing with the issue of the onus of proof to establish facts or make out a case for review. However, the question has been considered in a number of decisions of the AAT and the Federal Court. The earliest statement of the position is to be found in Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1. The AAT there said (at 5): In arriving at this conclusion we have not thought it right to assume that the collector’s decision is either prima facie wrong or prima facie right. There is no onus upon an [page 146] applicant to prove that the collector’s decision is erroneous; nor is there an onus upon the collector to prove that his decision is right. Of course, the language of the tariff or the state of the known facts may give rise to some onus of proof resting on one party or another in a particular case, but such an onus does not arise from the making of a decision which is brought up to the tribunal for review. Nevertheless, we anticipate that the reasons which led the collector to make a decision on classification will be of considerable assistance to the tribunal in forming its own views in future cases under s 167 of the [Customs Act 1901 (Cth)], as they were in this case. See also Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD

88 and Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 3) (1981) 4 ALD 1 at 100; Re Tony Wain Agencies and Comptroller of Customs (1994) 35 ALD 649 at 652; Catena v Australian Securities and Investments Commission [2011] FCAFC 32; (2011) 276 ALR 25 at [33]. In Re Rutter and Commonwealth (1989) 18 ALD 635 the use of language by a decision-maker that evidence relied on by an applicant was not ‘strongly supportive’ was seen as indicating a misapprehension of an onus resting on the applicant. See further 9.39–9.41 relating to the standard of proof in Tribunal proceedings.

Onus arising from facts 9.35 While there is no formal onus on an applicant, the manner in which a case is presented may place a practical onus upon the applicant. In Re Keane and Australian Postal Commission (1977) 1 ALD 53 the AAT reaffirmed that there was no onus on the applicant to prove the Postal Commission’s decision was erroneous. However, in that case the Commission led evidence rebutting the applicant’s claim and the applicant did not appear. In these circumstances, the AAT stated that it could not determine the contested issue in the applicant’s favour in the absence of some supporting evidence that would rebut the evidence put forward by the Commission. In Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303 the AAT said that when either party raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence. This is particularly so where the fact in question is peculiarly within the party’s own knowledge. This requirement was discussed with a greater degree of particularity in Re Holbrook and Australian Postal Commission (1983) 5 ALN N46. The ‘onus’ contemplated was no more than that, as a matter of common sense, ‘he who asserts, or he who seeks a result, must prove’. This approach was expressly endorsed in Re Martin and Commonwealth (1983) 5 ALD 277 at 287. See also Re Andriopoulos and Secretary, Department of Social Security (1984) 7 ALN N54 where the AAT remarked that it was very difficult for it to decide that a person was permanently incapacitated for work without having seen or heard evidence from that person.

[page 147] A similar approach to that followed in these cases was adopted in Re Williams and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 556, where Fisher J observed that it was necessary for the applicant to convince the AAT that he had overcome the problems that had led to his conviction and the subsequent making of a deportation order. Likewise in Re Sea King Fisheries Pty Ltd and Australian Trade Commission (1986) 9 ALN N247 it was necessary for an applicant for a grant to demonstrate that its expenditure was such as to attract the grant. This was information that was of necessity peculiarly within its knowledge. See also Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [165] relating to an application challenging a disciplinary decision where information relating to a company’s management was necessarily within the applicant’s knowledge. The position is not affected by the special onus provisions in the Veterans’ Entitlement Act 1986 (Cth) in the sense that, if the matters of relevance are peculiarly within the knowledge of the applicant, he or she must bring the relevant evidence to the Tribunal: Re Kowalski and Repatriation Commission [2008] AATA 903; (2008) 107 ALD 447 at [31]. The general position was well summarised in Re Hanlon and Commissioner for Superannuation (1979) 2 ALN N657: Because the tribunal is reviewing the decision … it is not just a matter of seeking to demonstrate that the reasons for decision given by the decisionmaker may in some respects be in error. What must also be considered is whether evidence of a more positive nature to support the conclusion for which a party contends as being the correct conclusion may not need to be called. Because of the factors set out above, it is customary to require an applicant to present their case first: see 13.8. See also the discussion at 9.14 above relating to the applicability of the rule in Jones v Dunkel. The resolution of an application may also turn on the weight to be given competing evidence. Oral evidence tested in cross-examination is likely to be more persuasive than written: Re Ilgun and Department of Veterans’ Affairs (1989) 18 ALD 260; Re Houvardas and Tax Agents Board (NSW) (1991) 23 ALD 505.

A statement by a tribunal that it is ‘not satisfied’ of a matter based on the evidence of an applicant does not mean that the tribunal has placed an onus on the applicant. It is but a way of stating the conclusion that it has reached on all the evidence before it: SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321; (2008) 103 ALD 580 at [22].

Failure to appear or give evidence 9.36 This issue of the practical obligation to present evidence is highlighted in cases where an applicant does not appear. In Re Wedgwood and Australian Postal Commission (1978) 1 ALD 204 the Tribunal commented that the effectiveness of its [page 148] review function could well be limited where an applicant did not appear. In such a case, the AAT could not know whether any other facts or circumstances might qualify the evidence put before it by the respondent. See also Re Keane and Australian Postal Commission (1977) 1 ALD 53 and Re Andriopoulos and Secretary, Department of Social Security (1984) 7 ALN N54. A failure to appear will not necessarily mean that the applicant cannot succeed. In Re Heffernan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 220 the applicant was successful despite his failure to attend the hearing. That case turned largely on the interpretation of the relevant legislation and did not involve disputed issues of fact. In Re Baldt and Director-General of Social Security (1984) 6 ALN N53 the Tribunal declined to decide the case until the applicant, who was overseas, had been given a chance to provide further information to it. However, this approach was rejected in Re Mercurio and Secretary, Department of Social Security (1986) 10 ALN N158 as placing an excessive responsibility on the respondent decision-maker. Provided that the applicant was adequately informed of the matters that it was necessary to place before the AAT on the appeal and had a chance to do so, further consideration of the special position of an overseas applicant was unnecessary. See also Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630 where the fact that the applicant who was living outside Australia might be arrested if he

returned did not provide a basis for an adjournment where the applicant’s evidence on likelihood of recidivism was essential to the resolution of the application. Much the same issue arises where an applicant appears but elects not to give evidence. The Tribunal has to reach a decision on what is before it and if an applicant chooses not to present material then that will simply limit the factual basis from which the AAT can proceed. In Re AK and Commissioner for Superannuation (1986) 11 ALN N106 the respondent argued that the AAT should issue a summons under s 40(1A) (now s 40A) of the AAT Act requiring an applicant who had declined to give evidence to submit himself to crossexamination. The Tribunal declined so to act. It was up to the applicant to decide whether to give evidence. If he chose to take the risk that flowed from declining to do so — and it was proper to comment on that fact — the AAT should not compel him to do otherwise. See also Re Australian Petroleum Supplies Pty Ltd and Giuliano [2010] AATA 1050; (2001) 66 ALD 676 and 13.20. The approach discussed above may be affected in relation to hearings in the Migration and Refugee Division by the fact that the Migration Act does not place the same emphasis on personal appearance before the Tribunal as is found in the AAT Act. Sections 360 and 425 place an obligation on the Tribunal to invite an applicant to appear but ss 362B and 426A expressly empower the Tribunal to make a decision where the applicant does not appear after such an invitation has been issued. The reality of the migration jurisdiction is that many applicants will not be in Australia at the date of the hearing. The sections make clear that the Tribunal may proceed in their absence, albeit with the consequence that it might not have the best evidence available to it. [page 149]

Use of term ‘onus’ 9.37 The terminology used in some of the earlier decisions referred to above has to be qualified in the light of the Federal Court decision in McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6. It is doubtful, however, whether any different result would have flowed from the application of the court’s statements.

In McDonald’s case, the court was most anxious to avoid the onus terminology. It considered such terminology might tend to cause confusion and difficulties when applied to persons exercising statutory powers of differing kinds. The task of the AAT was said to be to view the available evidence against the statutory requirement in question. If the AAT is left in a state of uncertainty whether the facts necessary to activate the statutory power have been established, it must decide against the exercise of the power. Thus if, at the end of the hearing, the AAT is uncertain whether the facts exist, for example, to qualify an applicant for a pension, it should decide against the applicant. On the other hand, if such a state of uncertainty exists on an appeal against cancellation of a pension in the light of changed circumstances, then it will not have reached the required state of mind that the pension should be cancelled. A different conclusion might be necessary if the issue concerned a continuing pension and the question was whether in light of all the circumstances now known it should have been granted in the first place. On the question of facts being within the knowledge of one party, it was said that a failure by that party to produce evidence as to those facts might lead to an unfavourable decision — but this flowed from a common sense approach to the obtaining of evidence and ought not to be categorised in terms of an evidential onus of proof. See also Minister for Health v Thomson (1985) 8 FCR 213; 60 ALR 701 and the useful summary and analysis of the cases in Re VBN and Australian Prudential Regulation Authority (No 5) [2006] AATA 710; (2006) 92 ALD 259 at [230]–[237]. This approach to the resolution of decisions before it had been followed by the AAT prior to McDonald’s case on a number of occasions: see, for example, Re Dabbagh and Director-General of Social Security (1983) 5 ALN N235; Re Milanovic and Director-General of Social Security (1983) 5 ALN N241; and Re Shearing and DirectorGeneral of Social Security (1983) 6 ALN N12. The McDonald case principle was applied by the AAT in Re MacPherson and Secretary, Department of Social Security (1985) 7 ALN N139 where a distinction was drawn between matters pertaining to an applicant’s health as contrasted with his earning capacity. Where the latter was concerned, it fell to the applicant to place before the AAT such evidence relating to it as was relevant to the issue the AAT had to decide. See also Re Tudor and Repatriation Commission (1988) 14 ALD 29 at 35; Re Ball and Commonwealth (1987) 15 ALD 491 at 494. Perhaps the main point that flows from the McDonald case is that at the end of

the day the question the AAT has to answer is whether it is satisfied on what is before it [page 150] that the decision under consideration is the correct and preferable one: Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113; Scognamillo v Secretary, Department of Social Security (1985) 8 ALN N138; Re VBN, above. It can only do this if appropriate material has been put before it. It is up to the parties to do this, and if this means that a greater obligation falls on one rather than the other, so be it. As long as the obligation of the applicant is understood in these terms, the use of the language of onus of proof will not invalidate a decision: Lodkowski v Comcare (1998) 53 ALD 371 at 386. This approach highlights the non-inquisitorial role of the AAT.

Legislation affecting onus 9.38 In some instances the legislation under which the decision under review has been made will determine where the onus lies. For example, s 61 of the Freedom of Information Act 1982 (Cth) provides that the agency or Minister to which a request for a document was made has the onus of establishing that a decision given in respect of the request was justified or that the AAT should give a decision adverse to the applicant. Conversely, s 14ZZK of the Taxation Administration Act 1953 (Cth) provides that the burden of proving that an assessment is excessive lies upon the taxpayer. The onus provisions contained in veterans’ Affairs legislation have been productive of numerous decisions of tribunals and courts at all levels. For a comprehensive discussion see Robin Creyke and Peter Sutherland, Veterans’ Entitlement Law, 2nd ed, Federation Press, Sydney, 2008 at 472–80. It is important to bear in mind that while an applicant may not carry an onus of proof, he or she still has to adduce the evidence needed to support the application for review: Re Repatriation Commission and Delkou (1986) 9 ALD 358 at 370. It is not the task of the Tribunal to undertake investigative work on behalf of an applicant: Re Hanrahan and Repatriation Commission [2008] AATA 369; (2008) 102 ALD 399. The applicability of McDonald v Director-General of Social Security

(1984) 1 FCR 354; 6 ALD 6 in the repatriation context was discussed in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 600. An onus may also be placed upon one party by the form of the legislation relating to the decision. If there is a requirement of ‘satisfaction’ as in a case where a result is to follow ‘unless the secretary is satisfied’ as to certain events, the obligation to show the events justifying the state of satisfaction fall on the person indicated: Re Gallifuoco and Secretary, Department of Social Security (1988) 15 ALD 160. Likewise, if the exercise of a discretion is conditional upon a designated person being satisfied of certain circumstances, an applicant bears an evidentiary onus to establish the matters conditioning the discretion: Re Lander and Commissioner for Superannuation (1993) 29 ALD 870. See Re Kirby and Collector of Customs (1989) 20 ALD 369 at 376 on the standard of proof required in such cases. On standard of proof generally see 9.39. The effect of the shift in onus under the Taxation Administration Act referred to above was discussed in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] [page 151] FCAFC 26; (2013) 133 ALD 39. Particular regard should be paid to the judgment of Jagot J (with whom Nicholas J agreed) from [110] where a distinction is drawn between the obligation of the taxpayer to establish that the assessment is excessive and the usual role of the Tribunal to determine what is the correct and preferable decision. It is only the former issue that is before the Tribunal. In reaching this conclusion the court disagreed with observations made by the Tribunal in Re Sharkey and Commissioner of Taxation [2007] AATA 1435; (2007) 95 ALD 509 at [22] which were said to focus the attention of the Tribunal on what should have been the decision. Rawson’s case, above, was endorsed by a differently constituted Full Federal Court in Rigoli v Commissioner of Taxation [2014] FCAFC 29; (2014) 141 ALD 529 at [26]. In Re Confidential and Commissioner of Taxation [2013] AATA 382; (2013) 135 ALD 609 at [72]–[81] SM Fice pointed to an effect of the shift in onus being to make the review procedure in the Tribunal very similar to that in a court. In particular, he noted that the role of the Tribunal in such proceedings cannot be regarded as inquisitorial. However, the essential task of the Tribunal has not been altered, namely to determine whether the amount assessed as taxable

income is wrong: Re Trustee for the Grewal Property Trust and Commissioner of Taxation [2013] AATA 788; (2013) 137 ALD 176 at [21]. The required satisfaction will not be attained by an assessment that some other result of the exercise of the discretionary decision is merely marginally preferable in all the circumstances. See further Re Optimise Group Pty Ltd and Commissioner of Taxation [2010] AATA 782; (2010) 119 ALD 585 at [47]–[53] and the cases there cited; Re Thorpe and Commissioner of Taxation [2011] AATA 638; (2011) 123 ALD 355 at [18]–[24]. However, these decisions need to be read bearing in mind the observations in Rawson’s case, above. For the more specific question of onus in relation to Commonwealth employees’ compensation claims, see Commonwealth v Muratore (1978) 22 ALR 176; 1 CCD 100; Ladic v Capital Territory Health Commission (1982) 5 ALN N60; Vulic v Capital Territory Health Commission (1982) 5 ALD 35; Re Hamilton and Australian Postal Commission (1984) 6 ALD 53. However, contrast Re Barker and Australian Telecommunications Commission (1988) 15 ALD 573 at 574. The AAT there said that the transfer of jurisdiction in compensation matters from the courts to the AAT carried with it the intention to attract the AAT’s approach to onus as enunciated in McDonald’s case. This was doubted in Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 334 but the observation appears to have been confirmed by Commonwealth v Borg [1991] FCA 710; (1991) 20 AAR 299 at 307. The court there said that if the issue was whether a person in receipt of compensation had ceased to be eligible, Comcare had to be persuaded on the evidence that an entitling qualification had ceased to exist. It was incorrect to consider afresh whether the pensioner had made out all the entitling qualifications. The AAT, standing in the shoes of the decision-maker, should not exercise the power to make such a finding unless satisfied that the facts warrant the exercise of the power: Re ACT Department of Health and Nikolovski and [page 152] Comcare (1996) 42 ALD 599 at 602 applying comments of Davies J in Australian Postal Commission v Burgazoff (1989) 10 AAR 296 at 299. See also Telstra Corporation Ltd v Arden (1994) 20 AAR 285; Re Demosthenous and Comcare [2001] AATA 949; (2001) 66 ALD 323. See further Peter Sutherland and John Ballard with Allan

Anforth, Annotated Safety, Rehabilitation and Compensation Act 1988, 10th ed, Federation Press, Sydney, 2014 at 66.03.

STANDARD OF PROOF 9.39 As a general rule facts relevant to an AAT decision are to be established on the balance of probabilities: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; Re Kirby and Collector of Customs (1989) 20 ALD 369; Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; (2011) 121 ALD 630. However, some legislation that empowers the making of decisions provides expressly not only for the onus of proof that is to be applied, but also for the standard of proof. For example, subss 120(1) and (2) of the Veterans’ Entitlements Act 1986 (Cth) provide in effect that where claims are made in respect of incapacity or death of a veteran relating to operational, peacekeeping or hazardous service, the Repatriation Commission must find that the relevant injury, incapacity or death was war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. These subsections effectively impose a negative onus of proof to the criminal standard for the benefit of veterans who were engaged in the relevant kinds of service. In respect of other matters, s 120(4) provides that the decision-maker must decide the matter to its reasonable satisfaction (which has been held to be a standard of proof which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) FCR 327), and s 120(7) provides that there is no onus of proof. Section 119(1)(h) provides in effect that the Commission must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time and the absence of, or a deficiency in, relevant official records. See further Robin Creyke and Peter Sutherland, Veterans’ Entitlement Law, 2nd ed, Federation Press, Sydney, 2008 at 472–80. Various other expressions are used in legislation to denote the required standard of proof or the method by which relevant matters are to be established, or to facilitate the making of factual findings. Section 30DC of the Civil Aviation Act 1988 (Cth) provides, in effect, that the Civil Aviation Safety Authority (CASA) may vary, suspend or cancel authorisation to operate aircraft with immediate effect for a period of five days if CASA ‘has reason to believe’ that an

operator has engaged, is engaging or is likely to engage in conduct that constituted, contributed to or resulted in a serious and imminent risk to air safety. Provision is then made for CASA to apply to the Federal Court for a prohibition order for an extended period of up to 40 days, to enable CASA to complete its investigations into the [page 153] relevant conduct. Under s 30DE(2) the court is required to make a prohibition order according to a different statutory formula, namely where it is satisfied that there are ‘reasonable grounds to believe’ that the proscribed circumstances apply. This latter expression was considered in Civil Aviation Safety Authority v Alligator Airways Pty Ltd [2012] FCA 601. After referring to a number of authorities Murphy J concluded, at [38], that: … while procedural fairness must be afforded, I may have regard to evidence that is inexact or indefinite in providing a foundation for the existence of ‘reasonable grounds to believe’ the factual matters upon which my satisfaction rests. It is unnecessary for me to resolve the conflicts in the evidence by preferring the evidence of some witnesses over others as if at final trial, or by making ultimate findings as to the credit of any witness. 9.40 The relevance of concepts of civil standards of proof in the context of decisions made under the Refugees Convention was referred to in FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1. In that case the AAT had reviewed a decision refusing to issue a protection visa to the applicant, who had been found to be a refugee to whom Australia owed protection obligations pursuant to the Convention. The AAT decided that the exception in Art 1F(b) applied. This provides that the Convention shall not apply to any person with respect to whom there are ‘serious reasons for considering’ that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. The High Court drew attention to the wording of the exception, and cautioned against substituting other words for those words. French CJ and Gageler J, said, at [15]: The criterion for exclusion from the application of the Convention, defined by Article 1F(b), is not to be equated to a standard of proof. Standards of

proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences, including civil liabilities and criminal sanctions. They are not substitutes for the application of the ordinary words of Article 1F(b). Hayne J commented, at [34], that the notions of standard of proof and onus of proof did not find ‘ready accommodation in administrative decision making, where no issue is joined between parties’. However, Crennan and Bell JJ noted, at [79], that the expression ‘serious reasons for considering’ has been referred to consistently as a ‘standard of proof ’ in authorities, scholarly publications and in the UN Background Note, and said that an Australian decision-maker applying Art 1F(b) who is assisted by or adopts that usage does not, for that reason, make an error. They nevertheless also made it clear that the decision-maker was required to address the question raised by the expression used in Art 1F(b) and said, at [81], that that expression did not ‘derive from, or replicate, a standard of proof in any domestic legal system’. The AAT had made various findings of fact from which it drew adverse inferences, but the High Court (agreeing with the analysis of Kerr J in dissent in the Full Federal Court) held that the AAT’s findings were not probative of the test [page 154] provided for in Art 1F(b). As a result, the AAT had erred by not responding to the question it was required to ask in order to determine whether that Article applied, and had thereby committed a jurisdictional error. On remittal from the High Court, in Re FTZK and Minister for Immigration and Border Protection [2015] AATA 155 at [42], DP Forgie said: The statements of French CJ, Gageler and Hayne JJ are broadly stated and, I respectfully suggest, there is a risk that they will be taken out of context and understood to mean that the concepts of ‘standard of proof’ and of ‘burden of proof’ are never applicable in the Tribunal. They clearly are relevant from time to time and the reason why the language is appropriate is because that is the language that Parliament has prescribed. DP Forgie then gave examples where Parliament had expressly provided for

those concepts, and for other ‘measures’ which administrative decision-makers were required to use in order to decide whether the evidence before them established relevant factual issues, and said that decision-makers must be ‘constantly alert to the changing language adopted by Parliament’. After discussing the process of administrative decision-making, she added, at [50]: ‘In ascertaining the law and making findings of fact having regard to the evidence, the Tribunal carries out a function ultimately very similar to that of a court in its original jurisdiction.’ 9.41 The process of administrative decision-making used by the AAT differs in important respects from that used by many decision-makers at first instance in that those decision-makers commonly do not receive oral evidence or conduct a hearing, have no powers to compel the attendance of witnesses or the production of documents, cannot give the parties directions in a preliminary conference, do not exchange statements of facts issues and contentions, and are not legally represented. Those matters, or commonly, most of them, are features of proceedings in the AAT, and would constitute a further reason why, as DP Forgie suggested, generalisations about the process of administrative decisionmaking may not always be applicable to proceedings in the AAT, or to all aspects of such proceedings. It is suggested that, provided the AAT ultimately determines the issues before it in accordance with the language of the relevant legislation, it would ordinarily be permissible and appropriate (in the absence of any specific legislative provisions requiring a different approach) for the AAT, when determining factual issues, to be guided by the well-known and understood concept of the standard of proof in civil proceedings. As mentioned above, various authorities make it clear that administrative tribunals may be guided and assisted by the rules of evidence, notwithstanding that they are not bound by those rules (see 9.1–9.2). Utilising the civil standard of proof in appropriate circumstances would appear to be consistent with those authorities, with the approach commonly adopted by the AAT over many years, and with the many cases where the Federal Court has approved of, or not questioned, that approach. [page 155]

APPLICATION OF BRIGINSHAW TEST 9.42 The test of evaluating evidence according to the gravity of the consequences flowing from a particular factual finding was enunciated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2: Except upon the criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indifferent testimony, or indirect inferences. The application of this test to AAT proceedings was considered in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; 141 ALD 540 where a pilot had appealed against a decision of the AAT to affirm a decision by CASA to cancel his pilot’s licence on the ground that he was not a fit and proper person to hold a licence. It was submitted that certain findings by the Tribunal were erroneous because it had not applied the Briginshaw test. Flick and Perry JJ decided at [114] that there was no ‘principle of law’ that applied to all administrative tribunals, or to the AAT in particular, requiring that the Briginshaw test should be applied to findings of fact which may be characterised as ‘grave’ or ‘serious’. They said at [115] that such an approach failed to recognise that: the rule in Briginshaw is a rule of evidence derived from curial proceedings; the Tribunal is not ‘bound by the rules of evidence’; and a party to proceedings before the Tribunal has no ‘onus of proof’, let alone an ‘onus’ to establish facts to any particular or predetermined standard. They added that the appellant’s submission also failed to recognise the fact

that the procedure of the Tribunal was within its own discretion. They nevertheless also said, at [120], that when making findings of fact which have ‘serious’ consequences the Tribunal was free to consider the evidence and other materials before it, and ‘(t)he more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached’. They also acknowledged, at [121], that cases might be found where the Tribunal had applied the Briginshaw test, but said these were nothing more than the Tribunal proceeding in a manner which applied the common law rules of evidence, and there was no prohibition upon the Tribunal applying those rules if it saw fit. It should be noted that the presiding member of the Full Court in Sullivan, Logan J, said at [19] that he was bound by authority to accept that there was a [page 156] principle that there are types of decisions where it is incumbent upon the Tribunal in its reasons to make apparent an appreciation of the need not lightly to reach conclusions carrying grave consequences. He then went on to find that the Tribunal had appreciated and applied that principle in making its factual findings in that case. As to drawing inferences from circumstantial evidence see the comment by Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [98]: The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form ‘strands in a cable’ of a circumstantial case. These comments were applied in Re Brinkworth and Repatriation Commission [2008] AATA 174; (2008) 102 ALD 164, where the AAT found that the applicant was a ‘nuclear test participant’ within the meaning of the Australian

Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) on the grounds that he had participated in the maintenance and cleaning of contaminated aircraft that had been monitoring the results of the British nuclear tests in the Maralinga area of South Australia. There was no direct proof that the aircraft were contaminated, but the Tribunal drew that inference from certain special measures that were taken with respect to the maintenance and cleaning of the aircraft. It also took into account the applicant’s difficulties in obtaining evidence due to the passage of time and the secrecy of the tests, in accordance with s 31(c) of the above Act, which is in terms similar to s 119(1)(h) of the Veterans’ Entitlements Act 1986 (Cth). The Tribunal also discussed the need for parties to adduce evidence, and how s 31(c) applied to the drawing of inferences where there was an absence of direct proof. See also the discussion in D G Jarvis, ‘The Practice of the Administrative Appeals Tribunal in Relation to Medical Evidence’ (2012) 86 Australian Law Journal 34 at 45 concerning the evaluation of medical evidence, and the more exacting proof demanded in matters of medical science compared with the manner in which courts evaluate facts in order to determine issues of causation.

[page 157]

CHAPTER 10 PROCEDURE AT HEARING: PRE-HEARING AND SPECIAL PROCEDURES ACCESS TO EVIDENCE PRIOR TO HEARING 10.1 The General Practice Direction which is reproduced on the Administrative Appeals Tribunal (AAT) website requires the exchange of documents and the delivery of statements of facts and contentions prior to a hearing. However, if a party is entitled to claim privilege in respect of a document, production of the document is not required. None the less it must be clear that the privilege exists in respect of the document: Re Kaur and Australian Postal Commission (1991) 23 ALD 159; Re Parremore and Australian Postal Corporation (1991) 23 ALD 115. In Kaur’s case at 162–3 the AAT indicated a reluctance to conduct a preliminary hearing as to relevance. If one party sought material that appeared to be of value in the resolution of the matter it was better that it be produced for inspection so that each party might determine what material it might put to the AAT. See further 13.16–13.18 in relation to reliance by a party on evidence not disclosed to the other side prior to a hearing, particularly video evidence that is intended to be used to question the credibility of an applicant. The hearings in the Migration and Refugee Division are governed by the provisions of the Migration Act 1958 (Cth) (Migration Act): see Pt 5, Div 5 and Pt 7, Div 4. An applicant is to be invited to provide a statement of facts and

arguments to the Tribunal. The Secretary of the Department is likewise permitted to give the Tribunal written arguments: ss 358, 423. Sections 359A and 424A require the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The applicant is to be invited to comment on or respond to that [page 158] information. Sections 359B and 424B set out the way in which, and the time within which, a person is to respond to the invitation to comment on the information. Section 362A provides that an applicant seeking review of a migration decision is entitled to have access to written material before the Tribunal. However, there is no equivalent provision in relation to the review of refugee decisions.

PROCEDURE IN LIEU OF PLEADINGS 10.2 There is no requirement that parties before the AAT file pleadings. The effect of this on proceedings before the Tribunal is discussed in detail by Flick J in Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666. However, from its inception, the AAT has asserted most strongly that proceedings should not descend into ‘trial by ambush’. This was initially achieved through the combined effect of the s 37 statement that the decision-maker is obliged to file (see 12.1, 12.14) (which will normally reveal all the matters on which it has relied in reaching its decision and its reasons for the decision) and the use of the s 33 power for the AAT to control its own procedure. However, problems still arose, particularly in relation to medical evidence. The AAT has endeavoured to meet these by the adoption of a number of practice directions. The General Practice Direction requires the exchange of documents, the service of statements of facts and contentions (see 10.3) and participation in

conferences: see 10.6. Specific procedures are also included relating to medical evidence. The purpose underlying these directions is to make all relevant material available in advance of a hearing with a view to encouraging the parties to agree on the outcome of an application or, if this is not achieved, reducing and identifying the areas of dispute between them. (But see 9.8 relating to legal professional privilege.) However, there are still problems on revelation of information before the hearing, particularly video evidence: see 13.16–13.18. Pursuant to the same philosophy, the AAT has been reluctant to allow a respondent to raise at the hearing technical objections to the decision appealed from or new points of law without notice having first been given to the applicant: Re Ishak and Australian Telecommunications Commission (1983) 5 ALN N121; Re Grieci and Commonwealth (1983) 5 ALN N385; Re Payne and Comcare (1997) 48 ALD 733 at 743. Such an approach cannot be followed where the objection relates to the jurisdiction of the AAT. Such an issue must be addressed by the AAT and it is therefore not of relevance that one party has not advised the other of the intention to take the jurisdictional point: Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191. See further 3.6, 3.10. For applications in the Migration and Refugee Division, see 10.1. [page 159]

STATEMENTS OF FACTS AND CONTENTIONS 10.3 The Tribunal will usually require an applicant (other than an applicant in proceedings in the Migration and Refugee Division) to lodge a statement of facts and contentions. This statement is to set out: (a) the issues that remain in dispute; (b) the essential facts that are relevant to those issues; and (c) the contentions to be drawn from those facts, including any references to relevant legislation and case law: General Practice Direction cl 4.30. (It should be noted that Practice Directions relating to specific areas of jurisdiction state

this obligation in slightly different language, although the purport is probably the same.) The General Practice Direction is not as detailed as previous iterations and it is expected that the directions given at the first and second conferences (see 10.6) will spell out the requirements that the parties must meet. Previously the Tribunal indicated that the statement of facts and contentions should crossreference the T-documents (see 12.2) and also include references to relevant legislation and case law. Expert reports and statements of witnesses, including that of the applicant, were also to be lodged at this time. It is likely that these requirements will be continued. The respondent to the application for review then lodges a statement in reply together with reports and witness statements. The General Practice Direction says that any statement in reply should note what aspects are agreed, which are disputed and any alternative facts and/or contentions. In the past the Tribunal has indicated that, in an appropriate case, a party may lodge a further statement in rebuttal of the other party’s statement. It has also stated that, if facts are not in dispute, an agreed statement of facts should be lodged. The parties are then to lodge a statement of the contentions that it is said should be drawn from those facts. Again, it can be expected that the Tribunal will continue to adopt this procedure unless some other approach seems more appropriate. It can be seen that the AAT puts in place procedures that are designed to identify the matters to be resolved by the Tribunal in the same way as pleadings determine the case for consideration by a court. Flick J in Comcare v Davies [2008] FCA 393; (2008) 48 AAR 291; 173 IR 294 at [173] said: A Statement of Facts and Contentions should obviously not be construed with the constraints appropriate to a pleading in a Superior Court. Nor should a Statement of Facts and Contentions be filed with such generality that all issues which potentially may emerge will be held subsequently to fall within one or other of the matters set forth. But it should be drafted with a sufficient level of precision to enable both an opponent and the Tribunal to know the facts and contentions being raised for consideration. The procedures of the Tribunal are sufficiently flexible to permit of any subsequent need to revisit a Statement which has been filed if that is necessary to ensure that the

[page 160] ‘correct or preferable decision’ is reached and reached in a manner which permits all parties to have a ‘reasonable opportunity to present his or her case’: Administrative Appeals Tribunal Act 1975 (Cth), s 39(1). Within those broad limits, the procedures followed by the Tribunal should be sufficiently flexible to permit new or additional contentions to be raised, where that is necessary to ensure that the Tribunal properly discharges its functions, and sufficiently flexible to ensure that contentions which may have been initially raised at the outset of proceedings are able to be later abandoned. See also Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [170]; Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666. In Re VCA and Australian Prudential Regulation Authority [2006] AATA 873; (2006) 92 ALD 724 at [109] the AAT refused a request from the applicant to reverse the order in which statements were to be lodged. The applicant suggested that it should be entitled to respond to the decision-maker’s statement rather than have to lodge its statement first. However, the Tribunal considered that the normal order of procedure should be followed as the applicant would be able to lodge a statement in answer to that of the decision-maker if matters of which it was unaware were revealed. A similar ruling was made in Re Frugtniet and Migration Agents Registration Authority [2015] AATA 554 where it was claimed that the lodging of the statement might incriminate the applicant. In regard to applicants in the Refugee and Migration Division, ss 358 and 423 of the Migration Act permit, but do not compel, an applicant to lodge a written statement in relation to any matter of fact that the applicant wishes to have considered and written arguments relating to the issues arising in relation to the decision under review. As to the regard which the Tribunal is to pay to such documents see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; Hinton v Minister for Immigration and Border Protection [2015] FCA 408. See also 10.1, 10.2, 10.6 and 10.12 relating to other pre-hearing procedures and directions.

ALTERNATIVE DISPUTE RESOLUTION (ADR): SS 34–34H 10.4 The alternative dispute resolution (ADR) procedures followed in the AAT discussed below do not apply to proceedings in the Security Division relating to security assessments or to first review proceedings in the Social Services and Child Support Division: s 34. They also do not apply to proceedings in the Migration and Refugee Division.

Powers of AAT 10.5 The AAT has always endeavoured to bring the parties to an application for review together to achieve an agreed outcome to their dispute. Over the years legislative provisions in various terms have been included in the Administrative [page 161] Appeals Tribunal Act 1975 (Cth) (AAT Act) to give statutory backing to this approach. Section 34A is now expressed in general terms and empowers the President to ‘direct that the proceeding, or any part of it or matter arising out of the proceeding, be referred to an alternative dispute resolution process’. A definition of ‘alternative dispute resolution processes’ is included in s 3 of the Act. The definition reads: alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes: (a) conferencing; and (b) mediation; and (c) neutral evaluation; and (d) case appraisal; and (e) conciliation; and (f) procedures or services specified in the regulations;

but does not include: (g) arbitration; or (h) court procedures or services. Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition. If the President gives a direction, the parties must then take part in the ADR procedure so directed ‘in good faith’: s 34A(3). However, there is no sanction for not acting in good faith. The explanatory memorandum to an earlier amendment of the Act including this obligation noted that the provision was intended to educate and encourage the parties. The Tribunal previously issued detailed Alternative Dispute Resolution Guidelines which provide guidance as to the ADR process that provides the most suitable format for the issues in question. It is expected that similar guidelines will be issued in respect of proceedings in the amalgamated Tribunal. Reference should also be made to the Guide to the Workers’ Compensation Jurisdiction and the Guide to the Social Security Jurisdiction and directions relating to proceedings in particular jurisdictions all of which are on the Tribunal website. The Tribunal is not obligated to give reasons for directing the parties to engage in an ADR process: Re O’Connor and Australian Postal Commission [2010] AATA 504; (2010) 116 ALD 417 at [34].

Preliminary conferences 10.6 Conferences are held in almost every matter. The requirements and procedure are set out in the General Practice Direction reproduced on the AAT website. Generally there will be no more than two conferences. The first conference will take place 6–10 weeks after the parties have received the s 37 documents (or T documents: see 12.2). It may be conducted by telephone or in the presence [page 162] of the parties. Should a second conference be considered necessary, it will be held 12–16 weeks after the first conference.

The General Practice Direction says that the first conference provides an opportunity for the parties and the Tribunal to: (a) discuss and define the issues in dispute; (b) consider any new evidence that has been lodged and identify any further evidence that will be gathered; (c) explore whether an agreed outcome can be reached; and (d) discuss the future conduct of the case. It also says that the parties must act in good faith in relation to the conduct of the conference. A brief statement setting out the issues that the parties consider to be in dispute must be exchanged and lodged with the AAT at least one working day prior to the first conference. The Direction says that at the second conference the evidence that has been lodged and the strengths and weaknesses of each of the parties’ cases will be discussed as also will options for reaching agreement or narrowing the issues in dispute. If agreement is not reached, the Tribunal will discuss with the parties what will happen next, including whether another type of ADR process such as conciliation, mediation, case appraisal or neutral evaluation should be held or if the case should be listed for hearing. The Tribunal will usually make a direction setting a timetable for the next steps to be taken. Before the second conference, if so directed, the parties are to lodge and serve a statement of issues, facts and contentions. See 10.3 relating to this statement. Although the Act is silent on the question, it is normal for preliminary conferences to be held in private. Conferences may only be held prior to the commencement of a hearing. Once the AAT starts to hear an application, it becomes seized of the issue and it must make the correct and preferable decision: Re Short and Repatriation Commission (1988) 14 ALD 587. The original decision-maker generally cannot change its decision after hearing the evidence before the AAT, but see 15.21 relating to consent decisions generally.

Mediation 10.7 Mediation is not compulsory but it has been regularly used by the Tribunal. Senior Member Britton in Re O’Connor and Australian Postal Commission [2010] AATA 504; (2010) 116 ALD 417 at [33] provided the following explanation as to why she was referring a matter to mediation: Mediation, as is well known, is a process in which the parties to a dispute,

with the assistance of a Tribunal Member or another person appointed by the Tribunal (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. It is, in short, a method of cutting the Gordian [page 163] knot of fruitless and time-consuming interlocutory wrangling and prevarication. In this case, without attributing blame to either party, I consider that so much time has been consumed in unproductive argument and interlocutory events that have failed to advance the matter towards resolution that it is evident that a different approach is needed to bring the parties together to identify the real issues and, if possible, to settle them. In my opinion, it is not only in the parties’ interests that they fully co-operate in that process, but, the resources of the Tribunal being finite and its workload large, it is also in the public interest that they do so. This statement provides a useful guide to the circumstances in which mediation should be used in an endeavour to produce an outcome to a dispute.

Other forms of dispute resolution 10.8 It is expected that the various forms of ADR processes will be described by the Tribunal on its website. Alternative dispute resolution processes may only be conducted by members and officers of the AAT and other persons engaged for the purpose pursuant to s 34H of the AAT Act.

Provisions applying to all forms of ADR 10.9

Section 34E of the AAT Act provides that:

(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible: (a) in any court; or (b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or

(c)

in any proceedings before a person authorised by the consent of the parties to hear evidence.

A proceeding before the AAT subsequent to the ADR process would fall within this stricture. Two exceptions to this proscription are included in the Act as far as Tribunal proceedings are concerned (but not otherwise). First, the evidence may be admitted where the parties agree: s 34E(2). Second, a case appraisal report or a neutral evaluation report prepared by the person conducting the resolution process is admissible unless a party objects: s 34E(3). (Quite what value might be served by such a report is not entirely clear as it would not be evidence of any of the matters to which it refers.) Agreement to the admission of evidence given at an ADR process may be implied from the conduct of the parties. In Re Wagh and Australian Postal Commission [2007] AATA 1948; (2007) 98 ALD 671 the reading out, and reliance upon, documents at a conference of the Tribunal when taken with subsequent reference [page 164] to the documents in correspondence was taken to imply that the documents could be tendered at the hearing of the application for review. Where an ADR process has been presided over by a member of the AAT, a party to the proceeding may object to that member participating in the hearing and in such a case the member is not entitled to be a member of the AAT hearing the appeal: s 34F. This disqualification does not apply to a member who has taken part in a directions hearing: see 10.10. It is therefore important that the nature of the activity being conducted by the AAT be properly classified: see Stuart v Federal Commissioner of Taxation (1996) 45 ALD 474 where what had been described as a conference was, after examination of what took place before the Tribunal, considered to be a directions hearing. Accordingly, the applicant could not object to the member presiding continuing to perform that function. Section 34D of the AAT Act which was included in 2005 sets out the circumstances in which an agreement reached in the course of an ADR process might be given effect. The agreement must be reduced to writing and lodged

with the Tribunal. Either party may withdraw from the agreement by notifying the Tribunal within seven days after lodgement. If the agreement reached is an agreement as to the terms of the decision of the Tribunal, the Tribunal may make a decision in accordance with those terms: s 34D(2). If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may give effect to the agreement in the proceeding: s 34D(3). A decision reached following the agreement of the parties may be varied or revoked by the Tribunal on the same basis as applicable to the original agreement: s 34D(4). It is to be noted that the Tribunal is only empowered to make a decision in accordance with the parties’ agreement if ‘it appears appropriate to do so’: s 34D(1). The Tribunal would thus appear to have a discretion to reject an agreement that it considers is not fair to the applicant. See the discussion of the like power to enter a consent decision under s 42C of the Act at 15.21. The ‘cooling-off’ provision in s 34D(1)(c) is of interest. It applies to the decision-maker as well as to the applicant. The parties cannot agree to a decision that is outside the jurisdiction of the AAT to make. Such matters must always be considered by the AAT when presented with a proposed agreed decision: see 3.6. Note that s 42C of the AAT Act which relates to consent orders generally (see 15.21) excludes an agreement made after an ADR process. Section 40(7) provides that summonses ordering persons to appear or to produce documents may be issued in support of ADR proceedings: see 13.19 in relation to the operation of that section. [page 165] Preliminary conferences and mediation have proved to be a valuable means of dealing informally with a significant part of the AAT’s workload. Around 80 per cent of the applications to the AAT are resolved by consent either following a departmental concession or recognition on the part of the applicant following further explanation of the original decision that success is unlikely. In Re Reynolds and Secretary, Department of Social Security (1987) 14 ALD 223 the AAT stressed the

desirability of the parties endeavouring to reach a compromise, particularly when questions of law or principle were not raised. See Justice Garry Downes, ‘Alternative Dispute Resolution at the AAT’ (2008) 15 Australian Journal of Administrative Law 137.

DIRECTIONS HEARINGS (S 33(1A), (2), (2A)) 10.10 The General Practice Direction provides for a directions hearing at any time if the application requires it, including if the parties have not complied with the practice direction or with specific directions made by the Tribunal. This is an invocation of the Tribunal’s power under s 33(1A) of the AAT Act. The power is discretionary and the Tribunal will not have made an error of law if it decides not to conduct such a hearing: Avery v Commissioner of Taxation [2010] FCA 615; (2010) 116 ALD 117 at [8]. The conduct of the directions hearing itself is at the discretion of the AAT. Accordingly, matters such as exchange of documents, witnesses to be called, identification of matters in contention and so on can be the subject of a direction from the AAT designed to facilitate and expedite the hearing. (A directions hearing should be distinguished from the general power of the Tribunal to give directions, a power which can be exercised at any time during a hearing: see 13.7.) Regard should be paid in particular to s 33(2A) which, following amendment in 2015, reads: (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may: (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or (b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or (c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or (d) limit the number of witnesses who may be called to give evidence

(either generally or on a specified matter); or (e) require witnesses to give evidence at the same time; or (f) limit the time for giving evidence or making oral submissions; or (g) limit the length of written submissions. [page 166] It can be seen that these specific matters are not intended to constrain the directions that the Tribunal may give in a particular case. As noted in the explanatory memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill), the matters referred to would be within the Tribunal’s powers flowing from the general provisions of s 33. The subsection does no more than make explicit the types of directions that may be given. To a large extent they are exhortations directed to the Tribunal to give effect to its objective as set out in s 2A: see 1.6. In particular, the matters referred to emphasise the need for, and the capacity of, the Tribunal to control the hearings before it. The directions hearing will specify the times within which certain actions are to be taken. The Tribunal will expect these to be adhered to but they can, of course, be varied. However, it lies within the power of the Tribunal to adopt what are termed ‘guillotine’ orders under which failure to comply with a deadline may result in the dismissal of an application: see Re Carey and Commissioner of Taxation [2014] AATA 762; (2014) 145 ALD 236 at [22] for a discussion of the use of such orders and 15.10 relating to dismissal of an application for failure to proceed. 10.11 Fundamental to the Tribunal’s operation is that the section empowers the Tribunal to require the parties to lodge with the Tribunal a statement of matters or contentions on which reliance is to be placed at the hearing. Such a statement will usually be required: see 10.3. It is also possible for the Tribunal to require the decision-maker to provide a statement of the grounds on which the application is to be resisted. This again will usually be required. See further 10.12 on directions relating to evidence. An application may be made at a directions hearing for a review application to be dismissed. This will usually arise in circumstances where it is being asserted that the matters raised on the application have already been considered by the

Tribunal: see, for example, Re Quinn and Australian Postal Corporation [1992] AATA 668; (1992) 15 AAR 519; Re Grimsley and Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401; Re Ashton and Linfox Armaguard Pty Ltd [2011] AATA 579; (2011) 128 ALD 593. Such an application will raise issues of estoppel: see 17.7. It is also an approach that is akin to that under s 42B of the AAT Act relating to dismissal of an application because it is frivolous or vexatious: see 15.14. However, see 13.11 relating to the re-agitation of previous factual findings of the Tribunal. See 10.15 relating to expedited hearings. See further 15.1 relating to directions determining the scope of a review.

DIRECTIONS AS TO EVIDENCE 10.12 One of the principal purposes of a directions hearing is to avoid the need for an adjournment due to the non-availability of witnesses. The AAT must, however, be satisfied that the evidence of witnesses who it is requested to summon are relevant to the proceedings: Re Kim Yee Chan and Department of Immigration and [page 167] Ethnic Affairs (1985) 8 ALN N48. The Tribunal will also not direct the production of documents unless it is satisfied of their relevance: Re Michell Sheepskins Pty Ltd and Australian Trade Commission (1986) 9 ALN N244. There it was said that a distinction had to be drawn between an application to obtain material to support a case and an attempt to discover whether an applicant had a case at all. See also Re Michell Sheepskins Pty Ltd and Australian Trade Commission (No 2) (1986) 10 ALN N211. In Re Seghini and Telstra Corporation Ltd (1997) 44 ALD 711 the Tribunal declined to make an order sought by the respondent for the applicant to obtain certain documents because there was no simple mechanism available to the applicant to achieve this. However, it did observe at [6] that: There may be cases where it would be appropriate for the Tribunal to direct an applicant to take some simple reasonable step to gain possession of

documents under the applicant’s control and to provide those documents to the Tribunal. ‘Fishing expeditions’ will not be supported: Re Woodhouse and Comcare [2007] AATA 1920; (2007) 98 ALD 462; Re Tsartas and CSL Ltd [2012] AATA 485; (2012) 129 ALD 664. Nor will invasions of an applicant’s personal Affairs if they will not assist in the resolution of the application for review: Woodhouse, above. However, if the information, although personal, has adjectival relevance to the issues before the Tribunal, the fact that there is no certainty as to the precise information that may be revealed is no bar to the making of a production order: Re Rayson and Repatriation Commission [2009] AATA 231; (2009) 109 ALD 168 at [100]–[103]. See also Re Flanagan and Comcare [2011] AATA 446; (2011) 129 ALD 269 where a direction to produce was made in regard to information that the applicant might not otherwise have been compelled to produce because the applicant’s documents had referred to the information sought. Directions have been made for further searches for documents the subject of a Freedom of Information application: Re Anti-Fluoridation Association (Vic) and Secretary, Department of Health (1985) 8 ALD 163 at 168. The AAT has directed, at the request of the decision-maker, that an applicant attend a medical examination: Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229 (although there it invoked s 43 which seemed incorrect); Re Secretary, Department of Social Services and Twentyman [2014] AATA 582 (where it acknowledged that s 33 could be invoked but declined so to act as the decision-maker could itself require an examination). Directions to prevent ‘trial by ambush’ by an exchange of documents are also common: see 10.2. The AAT will not at a directions hearing rule whether evidence should be excluded at the substantive hearing: Re Kalinovska and Commonwealth Banking Corporation (1988) 16 ALD 342. Nor will it require the production of evidence at this stage of the proceedings, even though the existence of that evidence may be crucial to the issue of the AAT’s jurisdiction: Re Uphill and Comcare [1999] AATA 451; (1999) 58 ALD 317. To do so would convert the directions hearing into a hearing on substantive issues. [page 168]

The power to give directions is subject to the provisions of any other Act that might impose constraints on the evidence that may be required: s 33(1)(a). An issue arises if an Act requires a decision to be made on evidence before the decision-maker at a particular time. Such a requirement would seem to apply also to the Tribunal on an appeal as it has no greater power than the decision-maker. However, s 33(2A) empowers the Tribunal to require any person who is a party to the proceeding to provide further information to the Tribunal in relation to the proceeding. This power was invoked in Re Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority [2014] AATA 496; (2014) 145 ALD 416 at [31], [37] to permit an applicant to provide further information notwithstanding that the decision-maker had not requested it and, in the absence of such a request, the decision was to be made on the basis of evidence provided at the time of the original application. Directions on filing of evidence must take into account the possibility that the evidence in question may be relevant to judicial proceedings either criminal or civil: see 10.14. See also the observations in Seller v Commissioner of Taxation [2013] FCA 1373; (2013) 308 ALR 376 at [43] relating to the unfairness that can result for an applicant if review proceedings occur either before or concurrently with criminal proceedings. In that case, the court extended the time for filing of evidence in a group of tax appeals until after criminal proceedings had ended. Directions hearings must be distinguished from conferences of the AAT — as to which see 10.6 and Stuart v Federal Commissioner of Taxation (1996) 45 ALD 474. See also 10.2, 10.3, 10.6 and 10.13 relating to other pre-hearing procedures and directions.

PRELIMINARY HEARINGS 10.13 The Federal Court in WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398 endorsed the right of the AAT to hear and determine preliminary questions separately from the main hearing of an application. It said that such an approach was supported by s 33(1)(a) and 33(2). The Tribunal itself in Re Wright Patton Shakespeare Capital Ltd and Australian Securities and Investments Commission [2007] AATA 2102; (2007) 99 ALD 335 noted that such action was also supported by the Tribunal’s objective as set out in s 2A of the AAT Act.

Both decisions caution against a too ready acceptance of dealing with an issue by way of a preliminary hearing. They noted that such an approach is likely to lead to fragmentation of a proceeding and can result in the issues not being properly dealt with. However, it was acknowledged that, if there are particular stand-alone issues that go to the resolution of the application, it may be convenient to deal with them separately from the main hearing. In WAKN, above, there were issues of law that went to the heart of the applicant’s basis for seeking review of the decision. In the Wright Patton case, above, the issue [page 169] was the relevance of significant evidence. The Tribunal in each case considered that these were matters that so affected the main hearing they should be dealt with separately. In contrast, the Tribunal in Re Alyssa Treasury Services Ltd v Commissioner of Taxation [2011] AATA 578; (2011) 130 ALD 671 held against providing a preliminary ruling on the admissibility of a transcript of a conversation. So to act risked pre-empting proper assessment of the issues and the applicant was not disadvantaged by declining to rule on the matter ahead of the hearing of the substantive application. The AAT has the power to reconsider any preliminary factual findings before making a formal decision: Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170 at [38]. However, it would have to be persuaded that circumstances had changed since the original findings such as to require them to be revisited. A preliminary hearing does not result in a decision that determines the application for review. Accordingly, an appeal under s 44 of the AAT Act cannot ordinarily be brought against it: WAKN, above, at [38]. See further 19.10.

SETTING DOWN FOR HEARING 10.14 There are no formal provisions in either the Act or the regulations relating to the manner in which an application is to be set down for hearing. The General Practice Direction deals with some of the relevant matters. It is expected

that most matters will be dealt with by directions applicable to the particular case. The AAT has, in a number of decisions, indicated circumstances in which it will refuse to allow a matter to be set down. A matter will not be listed where to do so would interfere with judicial proceedings relating to the matters in issue: Re Lane and Conservator of Wildlife (1984) 5 ALN N429; Re Gruzman and Secretary, Department of Aviation (1986) 9 ALN N111; Re E Pty Ltd and Federal Commissioner of Taxation (1987) 12 ALD 102; Re Sogo Duty Free Pty Ltd and Commissioner of Taxation [2005] AATA 1298; (2005) 89 ALD 236; Re Hasani and Minister for Immigration and Multicultural Affairs [2006] AATA 282; (2006) 91 ALD 166. In Re Street Nation Pty Ltd and Australian Communications Authority [2004] AATA 1251; (2004) 86 ALD 413 at [44] the Tribunal considered at length the matters that should be taken into account when considering whether to set a matter down for hearing where criminal proceedings had been commenced or were contemplated. It emphasised that the primary issue to be considered was fairness to the applicant. It listed the following as non-exclusive factors that should be taken into account in reaching a decision whether or not to list a matter for hearing: (1) the proximity of the criminal proceedings. If they are to be heard and determined in the near future and there are no countervailing factors, justice may require that the Tribunal proceedings are heard after the criminal proceedings; [page 170] (2) whether the applicant in the Tribunal has already disclosed all of its evidence in both the Tribunal proceedings and those in the criminal courts; (3) if the criminal proceedings are ultimately to be heard by a jury, any possible publicity that may reach a jury; (4) whether the applicant wishes to proceed in the Tribunal before the criminal proceedings or regardless of when the criminal proceedings are heard; (5) whether the applicant has been properly advised regarding such

matters as the right to silence and possible consequences of having the Tribunal matter heard first; (6) whether the disclosure of evidence in the Tribunal could lead the respondent to make inquiries that it would not otherwise have known it should be making; and (7) any adverse effect on the applicant and the respondent in not having the application in the Tribunal heard and determined in the normal course of business. In that case the Tribunal declined to set down the matter for hearing until it was assured that the applicant had received independent legal advice on the possible effect of the Tribunal proceeding on the criminal trial. Street Nation also considered the question whether the setting down of the proceeding could constitute contempt: see 3.20. On this issue see also the remarks of Flick J in Goreng Goreng v Jennaway [2007] FCA 2083; (2007) 164 FCR 567; 100 ALD 508 at [22]–[27]. In Gruzman, above, the AAT noted that delaying the hearing until after the completion of criminal proceedings might result in a transcript which could be used subsequently to shorten the AAT proceedings. The unfairness that can result for an applicant if review proceedings occur either before or concurrently with criminal proceedings was emphasised in Seller v Commissioner of Taxation [2013] FCA 1373; (2013) 308 ALR 376 at [43] where the court extended the time for filing of evidence in tax appeals until after criminal proceedings had ended. The possible impact of judicial rulings on the evidence that a party wishes to put before the Tribunal will be a factor likely to lead to the setting down of an application for hearing being postponed until the judicial proceedings have been concluded: Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 126 ALD 396 at [47]. The availability of witnesses will be an important factor in determining whether a matter should proceed to hearing. In Re E Pty Ltd, above, and Re A and Federal Commissioner of Taxation (1987) 13 ALD 422 the fact that witnesses were likely to decline to give evidence on the grounds of possible incrimination arising out of concurrent criminal proceedings was a basis for refusing to allow the matter to proceed. The significance of the witnesses’ evidence will, of course, always be an important factor in considering the appropriate procedure to adopt.

[page 171]

EXPEDITED HEARING 10.15 An application may be made for an expedited hearing of a review: see the General Practice Direction. The Direction suggests that such a hearing might be appropriate to those involving significant commercial ramifications and those relating to the accreditation, licensing or registration of individuals or entities to undertake regulated activities. However, the right to seek an expedited hearing is at large. Migration Regulations 1994 (Cth) regs 4.23–4.25 make provision for expedited reviews of certain visa decisions. See also the President’s Direction Prioritising Cases in the Migration and Refugee Division on the AAT website. The Practice Direction Review of National Disability Insurance Scheme Decisions provides for what is called a ‘Fast-Track Hearing’. Section 145(5) of the Social Security (Administration) Act 1999 (Cth) requires the President to take reasonable steps to ensure a decision is reviewed ‘as quickly as possible’ where, under s 145(1), the Secretary has declared that payment of a social security payment is to continue, pending the determination of a review by the AAT of an adverse decision, as if the adverse decision had not been made. The application for an expedited hearing may be made at any stage of the review process. It must set out the reasons why the hearing should be dealt with other than in the ordinary course of proceedings. The application will be considered at a directions hearing. For an application to be dealt with on an expedited basis, the Tribunal must be satisfied that: the decision has significant implications for a party; the application is one that requires an urgent determination; the outcome of the review: – turns on one or more discrete questions of law; or – requires factual findings that can be conveniently made having regard to evidence that is already available, or which can readily be obtained and considered within the time frame contemplated by this practice direction; and

the Tribunal’s statutory objectives set out in s 2A of the Act cannot be adequately met by making orders staying or otherwise affecting the operation or implementation of the decision under review pending a hearing pursuant to subs 41(2) of the Act, or by adopting some other procedure contemplated under the General Practice Direction. See the General Practice Direction for the details of the procedure that will be followed in relation to an application and the directions that might be made by the Tribunal. [page 172]

REVIEW WITHOUT HEARING 10.16 Section 34J of the AAT Act permits the Tribunal to review a decision by considering the documents or other material lodged with it if it appears to the Tribunal that the issues can be adequately determined in the absence of the parties and the parties consent to the review being so determined. The explanatory memorandum to the Amalgamation Bill emphasised that deciding a matter on the papers in the way contemplated by the section is at the discretion of the Tribunal. In the Migration and Refugee Division an applicant must, with certain exceptions that are set out in the relevant section, be invited to appear (ss 360, 425) but if he or she fails to do so, the Tribunal may proceed to make a decision on the appeal: ss 362B, 426A. The sections permit a decision to be made without a hearing if it is favourable to the applicant. The Practice Direction Conducting Migration and Refugee Reviews at cl 2.1(c) urges members to consider this possibility as one of the means set out in the Direction for deciding cases quickly.

SPECIAL REVIEW PROCEDURES 10.17 Special review procedures are adopted in relation to proceedings in some Divisions that reflect the nature of the jurisdiction being exercised. Regard should be had to the following Practice Directions which are reproduced on the AAT website:

Review of National Disability Insurance Scheme Decisions: a contact officer will be appointed by the Tribunal to guide applicants. A case plan will be devised to manage the application. Child Support Review Directions: the Direction contains detailed information about the procedures that will be followed. Many of these differ from the standard procedures followed by the Tribunal. Among the procedures set out are the requirements for a valid application; provisions relating to confidentiality of information provided; and requirements for disclosure of family violence orders or history. Review of Taxation and Commercial Decisions: this Direction sets out the procedures that will be followed in relation to applications in the Taxation and Commercial Division and also some specified commercial decisions that may be reviewed in the General Division. The aim of the Direction is to reduce cost and delay by narrowing the issues in dispute, limiting factual investigations and holding as few additional case events as possible. A Managing Member will be appointed to manage each case in an endeavour to carry out this aim. Migration and Refugee Matters: directions are given in relation to a number of matters germane to applications in the Migration and Refugee Division including related applications; gender issues; the types of documents that should be [page 173] provided in support of applications; and responses to hearing invitations. Specific directions are included advising representatives of applicants how to manage an application. Conducting Migration and Refugee Reviews: this is a Direction to members and staff of the AAT setting out procedures to be followed to ensure that the Tribunal’s object that is set out in s 2A of the AAT Act (see 1.6) can be attained. While the matters do not apply directly to applicants, the Direction should be consulted as a guide to the procedures that the Tribunal will follow in dealing with a proceeding in the Migration and Refugee Division.

[page 174]

CHAPTER 11 PROCEDURE AT HEARING: FORM OF HEARINGS HEARINGS TO BE IN PUBLIC: S 35 11.1 Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relates to the form of the hearing that the Administrative Appeals Tribunal (AAT) is to undertake. The section was restated in the 2015 amendments but its content was largely unaltered. The commentary below is based on the previous form of s 35 but the decisions referred to seem to be pertinent to the operation of the restated version of the section. The basic rule is that hearings of proceedings before the AAT should be in public. Excepted from this approach are proceedings in the Security Division, first review proceedings in the Social Security and Child Support Division and refugee appeals in the Migration and Refugee Division: see 11.5. Some Acts vesting jurisdiction in the Tribunal also require private hearings. Section 35(5) (formerly s 35(3)) sets out the basic rule relating to the conducting of AAT hearings: … the Tribunal is to take as the basis of its consideration [of an application for privacy or confidentiality of a proceeding] the principle that it is desirable: (a) that hearings of proceedings before the Tribunal should be held in public; and (b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

(c)

that the contents of documents lodged with the Tribunal should be made available to all the parties.

However, s 35 also contemplates that the Tribunal may determine that this basic rule be departed from in circumstances set out in the Act. [page 175] The AAT, unlike a court, has no inherent powers to make orders relating to the management of its proceedings. It has only the powers with which it is invested by legislation. Accordingly, the issue whether proceedings are to be in public or private or whether there should be a restriction on the publication of evidence and the names of parties to an application is determined by the AAT Act and any other Act that gives the Tribunal jurisdiction to review decisions: Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; (2002) 66 ALD 663.

LIMITATION OF PUBLIC HEARINGS Circumstances where private hearing permitted 11.2 Section 35(2) of the AAT Act empowers the Tribunal to direct that a hearing or a part of a hearing take place in private and to give directions in relation to the persons who may be present. In addition to the matters set out in 11.1, s 35(5) says that the Tribunal is to ‘pay due regard to any reasons in favour of giving such a direction, including … the confidential nature (if applicable) of the information’ given to the Tribunal as to why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted. The operation of s 35 in its original form was considered by the AAT in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. The AAT said

that an order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order: there must appear to be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case it would be relevant whether the Attorney-General had given a certificate under that section: see 12.15). Where it is contended that publication of the proceedings would be contrary to the public interest the AAT said that it would be difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence; this class of case was therefore a narrow one. The Tribunal in Pochi cautioned that the power in s 35 is conferred in order to do justice in exceptional cases, namely, where the principle that it is desirable that hearings of the AAT should be held in public cannot be applied. The Tribunal in Re An Applicant and Australian Prudential Regulation Authority [2005] AATA 1294; (2005) 89 ALD 643, after reviewing AAT and court decisions relating to confidentiality orders, observed that it was wrong to adopt a formulaic approach. [page 176] While there were categories of cases where the courts had traditionally issued confidentiality orders, these should not be seen as the only circumstances in which such orders were appropriate in AAT proceedings. The Tribunal said at [58]–[59]: The principle that the Tribunal conduct its hearings in public is a fundamental principle enshrined in s 35(1) but, equally, s 35(2) recognises that there are occasions and reasons when not all that happens in the Tribunal should be subject to public scrutiny. Section 35(2) does not try to suggest any boundaries on the occasions on which Brennan J said [in Pochi’s

case] that the power is ‘… there to be exercised, albeit sparingly …’ just as it is in the courts. It is apparent that the context in which s 35 operates is a little different from that in which the principles were developed in the courts. That may mean that the Tribunal will, at times, be concerned with matters of public policy that may not have the same emphasis in the courts. It may mean that the Tribunal is concerned with different factual situations from those facing the courts. As is clear from s 35, though, it is clear that the principles apply equally in the Tribunal as to the courts. 11.3 This is a useful statement in its emphasis on the need to consider the context in which the AAT operates. However, some care must be taken in its application because of its reference to the conduct of hearings in public to be a fundamental principle. Full Federal Courts in Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559 and Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449 at [74] pointed to the language of s 35(3) being that requirement for hearings to be in public is to be the basis on which the issue is to be considered. This was said to emphasise the fact that suppression orders should not be lightly made. That language is repeated in what is now s 35(5). See also Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 at [9] and following where there is a discussion of the reason why hearings of the AAT should be held in public. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 the Tribunal observed that s 35 was intended to authorise the AAT to remove the impediment to the receipt of information which may inhibit the production of evidence or lead to its rejection in curial proceedings — the publicity associated with it. However, the Tribunal cautioned that the power is conferred in order to do justice in exceptional cases, namely, where the principle that it is desirable that hearings of the AAT should be held in public cannot be applied. Where the power was sought to be exercised to exclude a party, a further criterion had to be satisfied. It must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application. It is necessary, therefore, to show that the information is of such importance and cogency that justice is more likely to be done by receiving the

information in confidence, and denying the party access to it, than by refusing an order to exclude the party. [page 177]

Position of legal advisers 11.4 The legal advisers to the applicant in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 were permitted to remain at the hearing while the public and the applicant were excluded. However, the legal advisers were ordered not to communicate to the applicant the information disclosed at the closed hearing. This procedure of making information available to a party’s legal representative but not the party was criticised (without reference to Pochi) by Fox and Woodward JJ in the course of their respective judgments in News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88; 57 ALR 550. Fox J declared it a ‘dangerous practice’ and raised doubts as to its validity: at 96; 556. Woodward J thought that the legal advisers should not be put in ‘the invidious position of having to conceal important information from their clients’: at 103; 563. He did, however, concede that such a procedure may have to be followed if ‘the proper trial of an action admits of no reasonable alternative’. The approach adopted in Pochi’s case was referred to with approval in Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291; 61 ALR 319. That case was concerned with a similar provision to s 35 that was included in the Broadcasting and Television Act 1942 (Cth). In that case the court also indicated that there was no onus on the person seeking the exercise by the AAT of the power under the section. The reasoning in McDonald v DirectorGeneral of Social Security (1984) 6 ALD 6 was applicable: see 9.37. The views expressed by Woodward J in the News Corporation case, above, indicate the best approach to this issue. The exclusion of a party but not the party’s counsel should be followed rarely, but there may be the odd occasion where the presence of the legal representative may be desirable, if not essential. Pochi’s case affords an example. While the in-private evidence could not be as well tested without instructions from the applicant, without any cross-

examination at all the value of the evidence to the AAT would have been markedly reduced. The Federal Court in Bonan v Hadgkiss (Deputy Australian Building and Construction Commissioner) [2006] FCA 1334; (2006) 160 FCR 10; 92 ALD 116 upheld the validity of an unusual order made by the Commissioner under a power to make a non-disclosure order. The Commissioner had ordered that a lawyer not be permitted to represent a person at a hearing before the Commissioner because she had already appeared in that role on behalf of another client at a closed hearing. To have allowed her to appear would have provided a means of access, albeit unintentional, to her second client to the issues that the Commissioner would be exploring. As to the refusal to allow parties and counsel access to particular documents lodged with the AAT, see 11.6, 11.12. [page 178]

Legislative provisions requiring private hearing 11.5 As noted above, some legislation giving a right of appeal to the AAT specifies that the hearing is to be in private. Section 14ZZE of the Taxation Administration Act 1953 (Cth) requires a hearing to be in private if the taxpayer so requests. In Re Confidential A and Commissioner of Taxation [2013] AATA 24; (2013) 135 ALD 703 at [6] the Tribunal observed that the issue of whether a hearing should be in private should be dealt with under the specific legislation rather than s 35 of the AAT Act. Where such a provision applies it is more likely that the AAT will be persuaded to order that a party’s name be not disclosed: Re X and Insurance and Superannuation Commissioner (1992) 27 ALD 343: see further 11.14. This has become standard procedure in relation to taxation appeals. However, see Commissioner of Taxation v Pham [2013] FCA 579; (2013) 134 ALD 534 and the discussion in 11.6 relating to the possibility of this imposing an improper limitation on the conduct by the commissioner of his or her statutory duties. Sections 58B and 58C of the Freedom of Information Act 1982 (Cth) make

special provision for private hearings and access to documents where release under the Act is disputed: Re Telstra Corporation Ltd and Department of Broadband, Communications and the Digital Economy [2007] AATA 2100; (2007) 47 AAR 76. The relevant provisions of the social welfare legislation provide that a first review in the Social Services and Child Support Division is to be conducted in private. Appeals relating to Part 7-reviewable decisions in the Migration and Refugee Division of the Tribunal are to be in private: Migration Act 1958 (Cth) (Migration Act) s 429. However, in hearings on appeals against Part 5-reviewable decisions, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public unless the Tribunal considers that the public interest dictates otherwise: Migration Act s 365. See further cll 5.4–5.6 of the Presidential Direction Conducting Migration and Refugee Reviews relating to the management of personal information in proceedings in the Migration and Refugee Division. The High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 230 CLR 486; 91 ALD 565 at [21]–[29] discussed the requirement that a Part 7-reviewable decision must be in private in terms of private being distinct from public, the latter being when any member of the public is entitled to be present at the hearing. The court held that a hearing could still be in private although other persons associated with the applicant and the proceedings were present. It would seem that this discussion is relevant to the other jurisdictions where hearings are to be held in private. ‘Private’ does not necessarily mean that an applicant must be heard alone or with only their representative. See further cl 5.6 of the Presidential Direction Conducting Migration and Refugee Reviews. [page 179] On the general issue of privacy and tribunal decisions in an electronic age, see Re Paul and Minister for Immigration and Citizenship [2011] AATA 831; (2011) 128 ALD 604 at [24] and the papers there cited.

RESTRICTIONS ON PUBLICATION

OF EVIDENCE, DOCUMENTS, ETC: S 35 (3) AND (4) Basis for non-disclosure order 11.6 The grounds for making non-disclosure orders have been restated in s 35(3) and (4) of the AAT Act but, according to the explanatory memorandum relating to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill), ‘no change is intended to the current broad scope of the Tribunal’s power’. It would therefore seem that the decisions on the application of the section in its previous form continue to be applicable. The exhortation in s 35(5) of the AAT Act that public hearings should be regarded as the normal way in which the AAT transacts its business had been generally followed in the application of the former s 35(3). Orders restricting public access to hearings or to evidence and documents have been infrequent. For example, s 35(3) was relied upon to refuse an application for a confidentiality order in Re Eastman and Department of Treasury (Smart DP, AAT No A73/1983, 1 June 1984, unreported). While the evidence in that case concerned the personal Affairs of the applicant, the principal documents which would have related to him had not been tendered. In addition, the proceedings had been heard in public and reported in the press. A nicer application of the public interest test that was indicated in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, as being the basis for the exercise of the discretion by the Tribunal under s 35, was Re Sheepskin and Opal Exporters and Export Development Grants Board (1984) 6 ALD 594. The Tribunal had made an order under the section prohibiting disclosure of documents relating to an application before it in order, it was said, to prevent unreasonable disclosure to the public of financial information of private individuals and partnerships. As is customary, general leave to apply was reserved. Pursuant to this leave, the Corporate Affairs Commission (South Australia) sought access to the documents to which the order related. The Tribunal made the order sought. It said that the prohibition was intended to prevent indiscriminate public access. It was not intended to preclude access to any person or body who had a proper concern with the proceedings before the AAT.

See also Re Bragg and Minister for Immigration and Ethnic Affairs (1986) 10 ALN N213 where access to documents that were relevant to committal proceedings was granted despite the making of a confidentiality order; Re Hunt and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 505; (2009) 111 ALD 175 where a claim that disclosure could endanger a person was held insufficient to justify a confidentiality order in the absence of evidence to support the claim. [page 180] In Re Confidential A and Commissioner of Taxation [2013] AATA 24; (2013) 135 ALD 703 the Tribunal made a confidentiality order where the applicant was facing serious criminal charges relating to events that would be aired in the Tribunal proceedings. To allow disclosure of the information would impinge on the applicant’s right to remain silent in his criminal trial in order not to incriminate himself. This public interest outweighed that of the Commissioner being able to do his job without hindrance. In Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 398; (2004) 81 ALD 473 the Tribunal declined a request to make a confidentiality order that would have prevented the disclosure to the Commissioner of Taxation of evidence to be given by a witness in support of the applicant. This ruling was made notwithstanding the fact that the witness would decline to give evidence on grounds of self-incrimination in the absence of a confidentiality order. The Tribunal considered that the making of the order sought would impose an improper limitation on the conduct by the Commissioner of his statutory duties. See also Commissioner of Taxation v Pham [2013] FCA 579; (2013) 134 ALD 534 where particular emphasis was laid on the fact that it would be open to the applicants to refuse to answer incriminating questions. In the Sheepskin case, above, the Tribunal observed that when an applicant wishes to apply to the AAT for a review of an unfavourable administrative decision, the applicant must take into account that the proceedings will be in public, unless good reason to the contrary is shown. This is a point that applicants cannot afford to overlook. The Tribunal in Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 at [12] was prepared to make an order

under s 35 some time after it had delivered its reasons for decision. No request for such an order had been made at the hearing but the possible adverse effects following from disclosure of the information were recognised after the publication of the reasons. The Tribunal said that the power given to it by s 35 was separate from that to review the decision in question. It could therefore be exercised even though the Tribunal, by giving judgment, was functus officio as far as the review was concerned. In this case it was possible to amend the reasons to avoid the disclosure of information that might embarrass the applicant without obscuring any relevant facts.

Public interest 11.7 As noted above, the powers given to the AAT by s 35 are based on the ‘public interest’. While the parties to an application may address the AAT on what that interest might be in a particular case, the parties themselves do not represent the public interest. For this reason, the Tribunal in Re Maher and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALN N411; Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; (2002) 66 ALD 663 [page 181] and Re Bragg and Minister for Immigration and Ethnic Affairs (1986) 10 ALN N213 held that a third party has standing to seek an extension, variation or revocation of an order under s 35(2). In determining the ‘public interest’ it is appropriate to have regard to the desirability of securing good administrative practices. The fact that disclosure of information might result in the agency no longer being provided with that information is a valid reason for making a non-disclosure order: Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407; Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority [1999] AATA 677; (1999) 58 ALD 581. On the other hand, it is desirable that decision-makers be apprised of the AAT’s reasons for reaching a particular conclusion and this weighs heavily in favour of disclosure: Re Flood and Secretary, Department of Social Security (1994) 33 ALD 182; Re Taxpayer and Federal Commissioner of Taxation [2004] AATA 398;

(2004) 81 ALD 473. The making of an order is to be determined by a weighing of the competing public interests in open consideration of AAT applications and the impact that public disclosure of the existence of proceedings will have on a party seeking a non-disclosure order: Re Kanina Banner, above. Section 378(1) of the Migration Act provides in relation to Part 5-reviewable decisions: Where the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal; should not be published, or should not be published except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly. Section 440 makes like provision in regard to Part 7-reviewable decisions. Non-compliance with such a direction is an offence. The commentary above on ‘public interest’ is likely to be followed in relation to proceedings in the Migration and Refugee Division.

EMERGENCY ORDERS FOR NONDISCLOSURE 11.8 Although there is no specific provision relating to the AAT being able to make a confidentiality order in an emergency, the explanatory memorandum relating to the Amalgamation Bill contemplates that it is open to the Tribunal to make such an order. Reliance is placed on the fact that s 35(5) referring to the requirement to pay regard to the representations of the parties is prefaced by the words ‘without being required to seek the views of the parties’. The memorandum sees this as leaving it open to the Tribunal to act quickly in cases where, for example, sensitive information might otherwise be disclosed in social welfare cases. [page 182]

PROHIBITION ON DISCLOSURE OF DOCUMENTS, EVIDENCE TO PARTIES Exercise of power generally 11.9 The AAT is empowered to give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before it or of the contents of a document lodged with it, or received in evidence, in relation to the proceeding: AAT Act s 35(4) (formerly s 35(2)(c)). The comments above relating to restrictions on publication of evidence are generally applicable to this topic also. The power to order that documents not be disclosed vests in the AAT independently of any information certified by the Attorney-General pursuant to ss 36–36D as not to be disclosed: see 12.15. The principle of public disclosure set out in s 35 of the Act (see 11.1) also applies in the case of the disclosure of evidence, etc, to the parties. The provision was included in the AAT Act to overcome the difficulties encountered by the Taxation Board of Review that formed the subject matter of applications to the High Court in Sutton v Federal Commissioner of Taxation (1959) 100 CLR 518 and Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475. The provision also clearly overrides the basic principle of natural justice that a person is entitled to have access to all information that is being taken into account in determining the case affecting them: Errington v Minister of Health [1935] 1 KB 249; Re Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609; News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88; 57 ALR 550; McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at 143; 88 ALD 12 at 81. There are also statutory provisions that may require the exclusion of access to documents: see, for example, ss 63 and 64 of the Freedom of Information Act 1982 (Cth). For a discussion of their application see Australian Administrative Law (LexisNexis) at [790]. If, however, an applicant is not given a full opportunity to deal with confidential information adverse to his or her interests, the probative force of

the information must be particularly cogent if it is to be acted upon: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD. Weinberg J in Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1068; (1998) 86 FCR 483 went further in ruling that the failure to give some indication of the general nature of adverse comments contained in information to which access was denied amounted to a breach of natural justice. A similar approach was adopted by a Full Federal Court in Applicant S 214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66; (2004) 38 AAR 425. In that case a failure to provide any particulars of events relied [page 183] upon to establish that the applicant had committed serious crimes and reliance upon identification evidence without providing any indication of the features to which regard was had were held to constitute a breach of natural justice such as to constitute a jurisdictional error on the part of the Tribunal. The court noted that the argument that had arisen in the course of the hearing demonstrated ‘the critical importance of a tribunal which has made a confidentiality order that restricts a party’s access to relevant information remaining conscious of the ongoing effect of such an order and constantly reassessing how procedural fairness may nonetheless be provided’: at [155]. In Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407 the Tribunal urged the respondent to include in its s 37 statement as much of the content of the confidential information as it felt able to. This, it was pointed out, would not only be fairer to the applicant but would also overcome the reluctance of the AAT to act on the information not disclosed to the applicant. In Re Daronadis Pty Ltd and Commissioner for ACT Revenue (1994) 33 ALD 725 the Tribunal made a suppression order but directed the respondent to lodge a further statement setting out the suppressed information in a way that would overcome the perceived problem of public disclosure while informing the applicant of its content. In Re Edwards and Civil Aviation Safety Authority [2002] AATA 412; (2002) 68 ALD 598 an order was made preventing the applicant having access to documents until the respondent had completed an investigation. It was

considered that this investigation might otherwise be hindered by the applicant approaching witnesses identified in the documents. See also Re Galanos and Department of Immigration and Citizenship [2010] AATA 1004; (2010) 128 ALD 382 where disclosure of an affidavit lodged with the Tribunal was refused because it would alert people named in it of an ongoing investigation. In Re Fahey and Psychologists Board of ACT (1996) 44 ALD 394 and Re Forsyth and Federal Privacy Commissioner and ACT Government Solicitor [2004] AATA 175; (2004) 80 ALD 489 the making of a suppression order was discussed in relation to documents lodged with the Tribunal but which were affected by legal professional privilege: see further 9.8 and 12.9. See also Re Centurion Trust Co Ltd and Australian Securities and Investments Commission [2003] AATA 129; (2003) 77 ALD 470 at [22]; Re Fishing Party and Australian Electoral Commission [2008] AATA 377; (2008) 110 ALD 167; Re Sumabe Pty Ltd and Minister for Health and Ageing [2011] AATA 799; (2011) 125 ALD 327. In Re Actelion Pharmaceuticals Australia Pty Ltd and Minister for Health and Ageing [2008] AATA 227; (2008) 102 ALD 188 the Tribunal declined to make a confidentiality order in respect of the advice of an expert committee that advised the decision-maker on the decision being challenged. However, it did make such an order preventing access to the names of the members of the committee. The committee was not the decision maker so identification of its members was irrelevant to the challenge to the decision. [page 184] 11.10 Before making a ruling to restrict access to a document, the Tribunal should examine the document itself: Oliveri v Administrative Appeals Tribunal (1997) 79 FCR 394; 50 ALD 190; Re Centurion Trust Co Ltd and Australian Securities and Investments Commission [2003] AATA 129; (2003) 77 ALD 470; Re Cole and Telstra Corporation Ltd [2010] AATA 666; (2010) 126 ALD 542. In Cole’s case, the Tribunal refused to act on a statement from the respondent that the documents in question were ‘commercial in confidence’. It had to make the decision whether to deny access itself. In the Centurion Trust case, the Tribunal took the somewhat unusual approach of hearing argument from counsel for the respondent in the absence of counsel for the applicant as to the desirability of making a confidentiality order. However, it kept a transcript of its proceedings

which it indicated that it would disclose to the applicant prior to the substantive hearing if that became possible. A confidentiality order may be revoked if the circumstances requiring its issue cease to exist: Re ‘SAN’ and Military Rehabilitation and Compensation Commission [2008] AATA 237; (2008) 103 ALD 387 at [34]; Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361; (2009) 109 ALD 217. Section 35AA vests a discretion in the AAT when hearing security appeals under s 39A of the AAT Act relating to security assessments to prohibit or restrict the publication of information, including evidence, given or lodged with the Tribunal. It can also prohibit or restrict publication of the whole or any part of its findings on the review. For an example of the application of this section see the order made in Re MYVC and Director-General of Security [2014] AATA 511; (2014) 144 ALD 149. See further 12.15. See 8.7–8.17 in relation to procedural fairness. See 13.16–13.18 relating to provision of access to evidence on which a party proposes to examine a witness, for example, video evidence relating to claimed disability. See 17.32–17.34 relating to release of documents lodged or received in evidence in Tribunal proceedings.

Restrictions on disclosure in Migration and Refugee Division proceedings 11.11 Sections 378 and 440 of the Migration Act provide that where the Tribunal is satisfied that it is in the public interest to do so, it may direct that evidence, information or the contents of documents not be published. It is an offence to contravene such a direction. However, a person may publish the evidence, etc, if they knew the matter independently of its having been given to the Tribunal. The making of a direction does not relieve the Tribunal of its obligation to give reasons for its decision pursuant to ss 368 and 440 of the Migration Act but this is in turn subject to the limitations on disclosure applicable to Part 5-reviewable decisions set out in ss 375A and 376. There are no equivalent provisions relating to Part 7-reviewable decisions. [page 185]

Access by legal representatives and advisers 11.12 As with the actual hearing before the AAT, it may be appropriate in some cases to allow legal representatives for an applicant access to a document in return for an undertaking not to disclose its content to the applicant: Re Morgan and Secretary, Department of Social Security (1986) 10 ALN N187; Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority [1999] AATA 677; (1999) 58 ALD 581; Re Cyno Pty Ltd and Australian Fisheries Management Authority [2002] AATA 896; (2002) 72 ALD 435; Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425; (2006) 90 ALD 417. However, compare the criticism of this approach in News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88 at 96 and 103; 57 ALR 550 at 556 and 563. In the Cyno case, above, the Tribunal was at pains to indicate to the parties that it was possible for them to seek a variation of the order. In Re AJKA Pty Ltd and Australian Fisheries Management Authority (1995) 39 ALD 445 this approach was taken a step further by permitting the expert for the applicant as well as its legal advisers to have access to the confidential material on condition of entry into a deed of confidentiality. In the Everfresh case, above, access was given to expert witnesses after they had been interviewed by the AAT to determine the level of their independence from the applicant and subject to the same undertakings as to confidentiality as the applicant’s legal advisers.

Content of reasons 11.13 For the purpose of avoiding disclosure of information received by it, the AAT may limit access to its reasons or publish reasons with material deleted: Re Queensland Mines Ltd and Export Development Grants Board (1985) 7 ALD 357. An issue arose in Re Y and Commissioner for Superannuation (1982) 4 ALD 499 whether s 35(2) qualified the obligation in s 43 of the AAT Act to give reasons for decision. It was argued that, if an order was made under s 35 in relation to the evidence before the AAT, no reference could be made in the reasons to that evidence. The AAT conceded that the interrelationship between ss 35 and 43 was unclear. But it concluded that it could prepare a full statement of reasons for

its decision and then make an order limiting access to those reasons. This it did in that case by ordering that the reasons be available only to: the applicant; the respondent, his legal advisers and certain designated officers; and the relevant Minister. The Tribunal saw as significant the obligation to provide reasons in order to enable the parties to judge whether an appeal was warranted. [page 186] Another approach is to draft the reasons in a way that does not disclose information that might be prejudicial to an applicant provided that the omission of the information will not obscure a relevant fact on which the decision was made: Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 at [45]–[46].

PROHIBITING PUBLICATION OF NAMES Power to prohibit publication of name 11.14 The amendments to the AAT Act in 2015 included s 35(3) in the AAT Act which authorises the AAT to direct that the publication or other disclosure of the identity of a party to or a witness in a proceeding before the Tribunal should be prohibited or restricted. The power extends to include any person related to or otherwise associated with any party or witness. Prior to this amendment, there was no express power for the Tribunal to make such an order with respect to a party — although there was in relation to witnesses. However, the Tribunal had taken the view that such a power was a concomitant of the power in the then s 35(2)(b) to prohibit or restrict the publication of evidence and a Full Federal Court in Australian Securities and Investments Commission (ASIC) v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD

449 at [78] endorsed this approach saying that the express power to suppress the names of witnesses did not take away the general power to make confidentiality orders in appropriate cases. While supporting the power to suppress the publication of the name of an applicant, ASIC v Administrative Appeals Tribunal, above, at [76] emphasised that there must be cogent reasons for so acting. The Full Federal Court in Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559 strongly stressed the significance of the direction in s 35(3) of the AAT Act (now s 35(5)) requiring the Tribunal ‘[i]n considering [orders or directions under s 35(2)] to take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties’. An application for the suppression of the publication of an applicant’s name has to be viewed against this principle. See also Re Tennant and Secretary, Department of Social Services [2014] AATA 92; (2014) 140 ALD 677. It would seem that the emphasis in these cases will be applicable to the operation of the new s 35(3). ASIC v Administrative Appeals Tribunal, above, confirmed that, where an order could properly be made suppressing the publication of an applicant’s name, a pseudonym could be provided for the purposes of the proceedings: at [79]. Proceedings to review a security decision relating to a security assessment in the Security Division of the Tribunal are to be in private: AAT Act s 39A(5). Section 35AA(2) empowers the Tribunal to prohibit or restrict the publication of [page 187] information tending to reveal the identity of a party, a witness or a person related to or otherwise associated with any party or witness. The Tribunal, when applying the previous iteration of s 35AA, said that the fact of the proceedings having to be conducted in private pointed to the desirability of a prohibition order being made: Re BLBS and Minister for Foreign Affairs and Trade [2012] AATA 464; (2012) 129 ALD 380. See further 12.15. As the review of refugee decisions and the first review of social welfare decisions are to be conducted in private, it could be assumed that no issue of

publication of the names of the parties or others involved arises. However, the fact that it was considered necessary to include s 35AA in the AAT Act despite s 39A(5) stating that the hearing is to be in private raises the question whether it will require a specific order from the Tribunal to prohibit publication of the name of a party. On a second review of a social welfare decision, the ordinary rules applicable to AAT reviews apply. The position in regard to appeals against Part 5-reviewable decisions in the Migration and Refugee Division is more complicated. Section 368 of the Migration Act requires a written statement of the Tribunal’s decision to be made that sets out the Tribunal’s decision, reasons and findings. Presumably this will identify the applicant. However, s 378 gives the Tribunal a discretion to direct that any evidence or information given to the Tribunal not be published. Likewise the contents of any document produced to the Tribunal. Putting these powers together would probably suffice to authorise a direction that an applicant’s name not be disclosed. See 11.6 in regard to urgent prohibition orders.

Application of power to prohibit publication of name 11.15 Orders either suppressing the publication of a name or making a pseudonym order in respect of the name have been made from time to time: see, for example: Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58: the nature of the applicant’s disability would be likely to affect his employment prospects. Re S J and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N99: the avoidance of publicity was seen as essential to the applicant’s rehabilitation. Re K B and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273: the protection of the interests of a child of the applicants made anonymity desirable. Re V C and Australian Federal Police (1985) 8 ALD 587: anonymity in relation to a freedom of information application was necessary as it would be prejudicial to the reputation of a well-known businessman if it were known

that he had sought access to documents held by the police. Publication of his name might also deter others from making use of the Freedom of Information Act 1982 (Cth) lest the fact of their action become public knowledge. [page 188] Re X and Insurance and Superannuation Commissioner (1992) 27 ALD 343: the Act under which the decision was made required the hearing to be in private and this protection would be lost if the name of the applicant was publicly available. Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; (2002) 66 ALD 663; Re An Applicant and Australian Prudential Regulation Authority [2005] AATA 1294; (2005) 89 ALD 643: the disclosure of the applicant’s name was likely to have such an adverse effect on its business that even if the applicant were successful on review, its business would be irreparably damaged. Re Secretary, Department of Family and Community Services and AX03C [2003] AATA 46; (2003) 73 ALD 81: the applicant’s unusual name and the fact that the nature of social security proceedings was likely to lead to the disclosure of personal information was sufficient ground to justify an order that his name not be disclosed. Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642; (2005) 87 ALD 747; Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403; Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106; (2008) 100 ALD 648; affd on appeal Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559: the applicant’s name should be suppressed where he had successfully sought a stay of the implementation of a decision pending reconsideration of that decision by the respondent. Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608: a confidentiality order was appropriate because, while the investigation by the Australian Securities and Investments Commission related to a technical dispute about accounting techniques, this

was unlikely to be understood by investors who would form an adverse conclusion about the applicant’s financial status from the fact of the investigation. The substantive hearing could also be dealt with expeditiously. Re Paul and Minister for Immigration and Citizenship [2011] AATA 831; (2011) 128 ALD 604: the applicant’s name should not be suppressed but his wife’s should and his sister-in-law’s address should not be revealed. Re Confidential A and Commissioner of Taxation [2013] AATA 24; (2013) 135 ALD 703: the applicant’s name should be suppressed because he was facing serious criminal charges relating to events that would be aired in the Tribunal proceedings and any disclosure of information could prejudice that criminal trial. 11.16 Australian Securities and Investments Commission (ASIC) v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449 and Re Klusman and Australian Securities and Investments Commission [2010] AATA 709; (2010) 117 ALD 617 referred to the fact that the making or otherwise of a stay order was a factor to be taken into account in determining whether a confidentiality order should be made. In Klusman the Tribunal said that the fact that the applicant could continue to [page 189] conduct his business was a factor making it desirable that the public should be able to know that there was an ASIC investigation into his conduct. The Tribunal in Re Nguyen and Australian Securities and Investments Commission [2011] AATA 398; (2011) 127 ALD 105 declined to make an order suppressing publication of the applicant’s name as ASIC had found multiple breaches of the financial services laws and the public interest required information as to his conduct to be made available. It also refused a stay of ASIC’s banning order pending the hearing of the appeal. Where a stay order is refused, it seems more likely that a confidentiality order will also be refused. Re V C and Australian Federal Police (1985) 8 ALD 587 also made the point that it is up to applicants to show good grounds for the making of an order preventing publication of their name. However, the public interest in knowing the names of applicants is much less than the public interest in hearings being

open to the public. Hence an order prohibiting the publication of an applicant’s name is easier to obtain than an order for an in camera hearing. However, this approach was questioned in Re Paul and Minister for Immigration and Citizenship [2011] AATA 831; (2011) 128 ALD 604. An order suppressing the name of an applicant can extend beyond Tribunal documents to matters associated with the decision under review. In Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106; (2008) 100 ALD 648 the Tribunal directed that information relating to the decision, including the applicant’s name, not be published in the Commonwealth Gazette as required by the relevant legislation. It also directed that no press release relating to the decision be released. The power to make such a ruling was approved by the Full Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal, above, at [81]. See also Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608 where ASIC was restrained from publishing details of the applicant on its public register and in other publications. By way of contrast, the Tribunal in Re Tarrant and Australian Securities and Investments Commission [2011] AATA 945; (2011) 128 ALD 376 directed that the applicant’s name not be published in the Gazette or in any press release but could be published on the respondent’s register. The rationale for the latter part of this order was that the register sets out the names of persons licensed to provide financial services and the ban against the applicant in that regard remained in place. The Tribunal said that its intention was to prevent gratuitous publicity of the applicant’s position. 11.17 The suppression order in the type of cases referred to above cannot continue after the Tribunal has affirmed the decision of the respondent as the statutory obligation to publish then comes into play and the basis for making the order ceases: Re JTMJ and Australian Securities and Investments Commission [2010] AATA 471; (2010) 115 ALD 682. In contrast, orders relating to the nonpublication of the names of other persons associated with the actions of the applicant can continue if that is appropriate in the circumstances. [page 190] Where an applicant’s name has been revealed in other proceedings, it may not

be appropriate to make a non-disclosure order: Re Modini and Tax Agents’ Board of Queensland [2005] AATA 1200; (2005) 89 ALD 496. However, in Re PYVM and Australian Securities and Investments Commission [2008] AATA 788; (2008) 106 ALD 578, the Tribunal made a non-disclosure order even though the applicant’s name had been published following conviction for an offence associated with the decision that was the subject of the application to the Tribunal. The order applied only until an application for an order staying the respondent’s decision was heard. Perhaps this is the justification for what seems otherwise to be a bold decision. The fact that the names of some parties are public knowledge is a reason for not suppressing the names of others in order to avoid speculation: Re VBN and Australian Prudential Regulation Authority (No 4) [2006] AATA 718; (2006) 92 ALD 475. A confidentiality order may be vacated where the reason for suppressing the publication of a party’s name has ceased: Re VBN and Australian Prudential Regulation Authority (No 4), above. In a number of decisions the Tribunal has been prepared to hear from a representative of a media organisation in opposition to an application to suppress the publication of a person’s name: see, for example, Re Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169; (2002) 66 ALD 663 and Re An Applicant and Australian Prudential Regulation Authority [2005] AATA 1294; (2005) 89 ALD 643.

Prohibition of publication of name on appeal 11.18 The situation changes significantly in regard to suppression of the name of an applicant if a matter before the Tribunal is taken on appeal. The governing legislation then is s 37AF of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and s 88F of the Federal Circuit Court Act 1999 (Cth). Those sections provide for suppression of the name of a party or a witness if such an order ‘appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth’. This is a harder test to satisfy than that applicable under s 35 of the AAT Act. The operation of s 37AF of the Federal Court Act in the context where a suppression order had been made by the AAT was considered by a Full Federal Court in Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435; 76 ALD 72. The court there affirmed the approach that had been

taken in SRD v Australian Securities Commission (1994) 52 FCR 187; 123 ALR 730 and disapproved of the decision in VZZ v Australian Sports Drug Agency [2001] FCA 816. The Full Court said that where a matter was before a court, the general principle of open administration of justice prevailed over the approach that might be applicable where administrative proceedings were afoot. The revelation of the names of persons involved in litigation was ‘an unfortunate incident of the open administration of justice’: per Kirby P in John Fairfax Group Pty Ltd (recs and mgrs [page 191] apptd) v Local Court of New South Wales (1991) 26 ALD 471 at 475. Section 50 (now s 37AF) of the Federal Court Act provided the test that had to be applied and this might well result in the name of a party that had been suppressed by the AAT being made public. However, when considering the interrelationship between s 37AF of the Federal Court Act and s 35 of the AAT Act regard should be paid to the analysis by the Tribunal of the then s 50 in Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106; (2008) 100 ALD 648 at [101]–[116]. It is to be noted that the court in Williams drew no distinction between the position where an appeal had been brought by an applicant (where it could be suggested that the applicant had elected to forfeit the right to privacy) and where the appeal was brought by an agency whose decision had been set aside by the Tribunal. The effect of such an approach is that an applicant before the AAT cannot count on anonymity once he or she has applied to the Tribunal for review of a government decision. Certainly, once an appeal has been lodged, no confidentiality order is likely to be made. This was so even though, as in the Williams case, the appeal was withdrawn when it became apparent that publication of the applicant’s name was likely. In contrast, the court in Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 was moved by the fact that the applicant’s name had been suppressed by the Tribunal and that the application for review of the Tribunal’s directions order was being brought by the respondent decision-maker. The court said that to allow the applicant’s name to be published on appeal would dissuade him from seeking to uphold the validity of the order. Compare

also the decision in National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436; 129 ALD 500 where the court continued an order suppressing the respondent’s name on the basis of the likely effect of disclosure on the respondent’s health and that the proceedings did not involve any public interest. See the cases from other jurisdictions there cited which appear to take a more generous view than those referred to above of the desirability of making a confidentiality order. The risk of their name being published on an appeal from a decision of the AAT is an outcome of which prospective applicants to the AAT should be made aware. For an example of an order suppressing the name of a witness pending an appeal against an AAT decision, see Commissioner of Taxation v H [2010] FCA 480; (2010) 268 ALR 101. The fact that the AAT has made an order preventing disclosure of the name of an applicant does not prevent reference in associated judicial proceedings to the person and the fact of that application being made to the AAT: Raffles College Pty Ltd v Tertiary Education Quality Standards Agency [2015] FCA 734 at [41]. See generally Sam Rosewarne, ‘Individual Rights and Protection of the Public — The Corporate Regulator, the AAT and Balancing Competing Public Interests’ (2011) 65 AIAL Forum 55.

[page 192]

CHAPTER 12 PROCEDURE AT HEARING: INFORMATION BEFORE AAT LODGING OF DOCUMENTS WITH AAT: SS 37, 38 12.1 Sections 37 and 38 are core provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in placing the AAT in a position to substitute as the decision-maker. The underlying premise is that the Tribunal should have before it all the information that it requires to make the correct and preferable decision in relation to the subject matter of the review that it is undertaking. To this end, the decision-maker is required to lodge with the Tribunal all relevant material and to keep that material up to date. With limited exceptions, this material is also to be available to the applicant for review so that he or she can present the case for changing the decision under review against a background of knowledge of the basis for the original decision. The sections have been amended from time to time which is reflected in the cumbersome numbering of their sub-sections. Amendments in 2015 were intended to reduce the administrative burden on decision-makers, provide greater flexibility for the Tribunal in dealing with the information that it requires and make special provision in regard to the documents to be lodged for second reviews of social welfare decisions. Despite the amendments, most of the case law referred to below, while relating to the operation of the sections prior to amendment, is still relevant to the amended sections. A Practice Direction Lodgement of Documents under Sections 37 and 38AA of the

AAT Act which is reproduced on the AAT website sets out the detail of the procedures to be followed. See Practice Direction Freedom of Information in relation to the documents to be lodged with the Tribunal where there is an application seeking review of a refusal to give access to a document under the Freedom of Information Act 1982 (Cth). [page 193] The requirements of ss 37 and 38 do not apply in relation to applications in the Migration and Refugee Division: see 12.11.

SECTION 37 OR ‘T’ DOCUMENTS 12.2 Section 37 of the AAT Act provides that within 28 days after receiving notice of an application for review of a decision (or within such further period as the AAT allows), the decision-maker is required to lodge with the AAT one copy of: a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and subject to the President’s directions, every other document that is in the decision-maker’s possession or control and is relevant to the review of the decision by the AAT. Section 37(1AAB) deals with the position of a second review of a social welfare decision. It contemplates that a Presidential direction may make special provision in relation to the documents to be lodged on such a review. However, the Practice Direction places such reviews on the same footing as other reviews and requires the lodging of the same types of documents: see Lodgement of Documents under Sections 37 and 38AA of the AAT Act cl 2.10. Section 37(1AA) to (1AG) then proceeds to set out a number of variations of and additions to these basic provisions the contents of which should be gleaned from the legislation itself. The documents required to be lodged under s 37 are commonly also referred to as the ‘T’ documents. Some Acts modify the operation of s 37. These are referred to in 12.12. It should also be recalled that the requirements of ss 37 and 38 do not apply in relation to applications in the Migration and Refugee Division: see 12.11. The importance to the AAT of the s 37 statement was emphasised in Re Mann and Capital Territory Health Commission (No 2) (1983) 5 ALN N368 in a passage not included in that report but reproduced and adopted in Re Wertheim and Department of Health (1984) 7 ALD 121 at 154: … the tribunal must be given assistance by respondents. The tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents,

who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the tribunal all matters which the tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the tribunal all the information which they have concerning the documents to which the applicant seeks access. If there are facts known to the respondent which are not known to either the applicant or the tribunal, how is the tribunal to be made aware of those facts unless they are disclosed to it by [page 194] the respondent? The Administrative Appeals Tribunal Act 1975 provides that in every case the decision-maker is to be a party to a review: see s 30. This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed. A copy of the statement of material facts and other documents provided to the Tribunal pursuant to s 37(1) must, unless the Tribunal directs otherwise, also be served on the other parties to the review: s 37(1AE). The exception was included in the section by amendment in 2015. It is intended to allow the Tribunal to deal with sensitivities which might make it inappropriate for the documents to be given to another person as a matter of course. The explanatory memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill) refers by way of example to the circumstance where there has been a history of violence between the parties. This section effects a change in the procedure that was formerly followed in regard to social security decisions on appeal to the Social Security Appeals Tribunal. There was no obligation in that jurisdiction for documents presented to the tribunal to be given to the parties to the appeal. The 28-day period referred to in s 37(1) may be shortened if the AAT considers that an applicant would or might otherwise suffer hardship: s 37(1A). ‘Hardship’ in this context was said in Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1995) 40 ALD 87 at 88 to include ‘any matter of appreciable detriment whether financial, personal or otherwise’. However, the Tribunal declined to reduce the time as the applicant himself had delayed in

pursuing the action. The Tribunal said that applicants must act to ameliorate the hardship which they claim to be affecting them and must proceed quickly. The AAT may request the Secretary of the Department of Social Security to lodge the documents required by s 37 before the end of the period that would otherwise apply in relation to a first review: Social Security (Administration) Act 1999 (Cth) s 148. No basis for the making of such a request is set out in the Act. The explanatory memorandum to the Amalgamation Bill which refers to the power merely observes that it is to enable a hearing to be expedited. See 10.15 relating to expedited hearings of proceedings before the Tribunal generally. 12.3 Section 37(1) permits the Tribunal to extend the 28-day period for the lodging of documents. An application to extend the time period must: set out the reasons for requesting further time; advise whether or not the applicant opposes the request; and be lodged with the Tribunal and given to the other party. The application must be made before the end of the 28-day period. There is no indication of any factors that must be taken into account by the Tribunal when considering an application to extend the time for lodging the [page 195] documents. The requirements of s 2A of the AAT Act requiring the management of matters to be ‘quick’ would probably be a guiding factor: see 1.6 and see also the remarks of President Downes J in Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264; (2005) 91 ALD 435 at [11]– [14]. The Tribunal in Re Seymour and Migration Agents Registration Authority [2012] AATA 86; (2012) 125 ALD 145 said that the discretion is entirely unfettered and noted the essential nature of s 37 documents to the Tribunal’s review. However, a failure by the decision-maker to act within the prescribed time is likely to attract adverse comment from the Tribunal: cf Re Von Stieglitz and Comcare [2012] AATA 217; (2012) 127 ALD 633. It is probable that the Tribunal would be reluctant to deny a respondent permission to lodge s 37 documents late. If it did refuse permission it would probably then be obliged to exercise its power under s 40 of the AAT Act (see

13.10) to require the production of the documents to enable it to carry out its review function. It is highly unlikely that the Tribunal would rule (as was argued in Seymour) that a late respondent was estopped from lodging the documents. A person acting in the office of the decision-maker may provide the documents relating to the decision in question: Re Kuswardana and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 999. Section 37(1)(a) of the Act does not require documents on which a decision was based but which are not in the possession or control of the decision-maker to be lodged with the AAT. A reference to such documents only is required: Re Harkins and Minister for Capital Territory (1978) 1 ALD 537. Production thus is not required of a document in the possession of a government agency that is not a party to the proceedings even though it may be relevant and have been relied upon by the decision-maker: Re Lindsey and Australian Postal Commission (1989) 18 ALD 340. A call for amendment of the AAT Act to overcome this position made in Re Reserve Bank of Australia and Comcare and Varvakis [1993] Admin Review 12 has so far gone unheeded. (The Tribunal can obtain a document in the possession of another agency by use of its power under s 40 of the AAT Act: see 13.19.)

SUPPLEMENTARY S 37 DOCUMENTS 12.4 The Practice Direction provides that if the decision-maker becomes aware that: (a) documents relevant to the decision under review were in its possession or control at the time the s 37 documents were prepared; and (b) those documents were not included in the s 37 documents; the decision-maker must lodge the documents with the Tribunal and give a copy to each other party as soon as is reasonably practicable, or in accordance with a direction of the AAT. These documents are referred to as ‘Supplementary Section 37 documents’. [page 196]

ONGOING REQUIREMENT TO LODGE DOCUMENTS 12.5 It was originally unclear whether the documents that a decision-maker must produce are limited to those in its possession at the time of making the decision or can include others that have come into possession after that time but which are relevant to the decision that the AAT has to review: different views were expressed by the Tribunal. The matter has now been resolved by the inclusion of s 38AA in the AAT Act in 2015. The section extends the obligation of a decision-maker who is required to lodge documents under s 37 to include lodging with the Tribunal further documents that come into the possession of the person that are relevant to the review by the Tribunal. Such documents must also be given to the parties as soon as practicable, subject to the exceptions referred to above in relation to the ‘T’ documents. This is a significant extension of the obligation on the decision-maker to keep the Tribunal informed during the course of the proceedings and before a decision is made by the Tribunal. As to what is meant by ‘possession’ or ‘control’ see Re Frohlich and Minister for Capital Territory (1979) 2 ALD 434. See generally the Practice Direction Lodgement of Documents under Sections 37 and 38AA of the AAT Act.

DESCRIPTION OF DOCUMENTS TO BE LODGED 12.6 Section 37(1)(b) requires the lodging of documents that are relevant to the review of the decision. Prior to the 2005 amendments, the obligation was only to lodge documents considered by the decision-maker to be relevant to the review. The AAT Act was amended in 2005 to delete the words italicised. The test is now an objective one. Ryan J in Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 at [36] referred to the documents that must be produced as those that are ‘relevant or possibly relevant’ to the proceedings. The latter reference was cited in Re McKinnon and Department of Finance and Deregulation [2011] AATA 192; (2011) 127 ALD 335 to justify the conclusion that it is only necessary for the Tribunal to form the opinion that the

documents in question may be relevant to the review to justify an order under s 37(2). As the obligation to lodge documents falls initially on the decision-maker, it will still be his or her view of the relevance of the documents that determines what is lodged in the first place. However, it will now be possible to seek a direction from the AAT for further documents to be lodged and the opinion of the decision-maker as to their relevance will not be an issue. It was argued in Re Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77; (2005) 83 ALD 104 that only documents that were probative to the review of the decision had to be lodged under s 37(1)(b). The obligation did not extend to documents that merely facilitated its making. This was in the context of the issue whether legal advice should be [page 197] produced to the Tribunal. It was claimed that such advice is not probative but simply assists in the making of a decision. The Tribunal rejected this argument. The issue turns on the relevance of the document to the decision under review. The legal advice in this case was relevant to the decision. (See 12.9 in relation to the availability to an applicant of documents to which legal professional privilege relates.) In Australian Prudential Regulation Authority v VBN, above, Ryan J overruled a direction of the Tribunal that required the lodging of all legal advice in the possession of the decision-maker that related to the decision under review. It is only advice which was considered by the decision-maker and which bears on the issue which the decision-maker had to resolve in arriving at the decision that is relevant in the sense in which the expression is used in s 37(1). A like approach was adopted in Re KLGL and Australian Prudential Regulation Authority [2008] AATA 452; (2008) 104 ALD 433 at [32]ff questioning some of the statements of the Tribunal in Spicer Axle, above. See also Re Smith and Commissioner of Taxation [2009] AATA 747; (2009) 115 ALD 13 at [26]–[28]. 12.7 In Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264; (2005) 91 ALD 435 at [21] the President stressed that the Tribunal

was entitled to be furnished with all documents that were relevant to the decision under review. Relevance is determined by the role of the Tribunal, namely to stand in the shoes of the decision-maker when considering what is the correct and preferable decision. An element of correct decision-making is consistency. So knowing what had been done in other cases was relevant to the decision before the Tribunal even though those decisions were not the subject of the review. Section 16 of the Income Tax Assessment Act 1936 (Cth) which prohibits the disclosure of information about a taxpayer to another person does not apply to the Tribunal. So information about another taxpayer’s Affairs, if relevant to an application before the AAT, may have to be disclosed to the AAT: Re Christie and Commissioner of Taxation [2008] AATA 320; (2008) 101 ALD 662. Nonetheless, the emphasis of the section is on relevance. The fact that a document may relate to an applicant does not mean that it should necessarily be produced. It will depend upon whether the document is relevant to the application before the Tribunal: Christie’s case, above. The Tribunal in Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [133] observed that documents reflecting on the credit of a witness that were taken into account by the decision-maker are relevant to the review of a decision. In reaching a conclusion on relevance, the Tribunal in Re KLGL and Australian Prudential Regulation Authority [2008] AATA 452; (2008) 104 ALD 433 drew a distinction between ‘adjectival’ and ‘facilitative’ relevance. Adjectival relevance refers to ‘the capacity of documents to support a conclusion or proposition that has an arguable relevance to the proceedings’ (at [15]). The documents have a capacity to influence the determination of the proceedings. Facilitative relevance, which was [page 198] seen as the basis for the conclusion reached in Re Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77; (2005) 83 ALD 104 means that the documents have a bearing on or are connected with or pertinent to the matter in hand (at [32]). In KLGL, the Tribunal expressed a preference for the more limiting adjectival test of relevance. The matter cannot be regarded as resolved. However, in practice it may not

matter greatly as the matter is most likely to be determined by the Tribunal making an assessment as to whether it thinks that the documents will be of use to it in reaching its decision. In regard to issues of relevance in cases involving a challenge to a taxation assessment see 12.12. Where the AAT considers that the statement lodged under s 37(1)(a) of the AAT Act is insufficient, it has a discretion under s 38 to require the lodging of additional statements containing further and better particulars in relation to one or more of: particulars of findings on material questions of fact; reference to the evidence or other material on which the findings were based; particulars of the reasons for a decision. See Re VCA and Australian Prudential Regulation Authority [2006] AATA 873; (2006) 92 ALD 724 at [97] for a discussion of this obligation. In VAI v Forgie [2003] FCA 87; (2003) 72 ALD 800 the Federal Court indicated a reluctance to review a refusal to exercise the discretion in s 38(1). To do so would fragment the hearing of the substantive application. Further it would not finally be apparent whether the statements were inadequate until the conclusion of the hearing. Section 38 does not apply to security assessment appeals in the Security Division: s 38(2).

DIRECTION TO LODGE OTHER DOCUMENTS 12.8 Section 37(2) of the AAT Act empowers the Tribunal to require a person to lodge with the Tribunal other documents than the ‘T’ documents that the Tribunal considers to be relevant to the review of a decision and which are in the person’s possession or control. The requirement to lodge documents applies only to the decision-maker. While s 37(2) empowers the AAT to require the lodging of further documents by a ‘person’, the reference to a person is to the decision-maker: Re Loknar and Secretary, Department of Social Security (1992) 29 ALD 591; Re Chang and Comcare (1997) 48 ALD 746. This is not immediately apparent on the face of the section

in its present form. However, before the inclusion of the subsections following after s 37(1), subs (2) followed immediately after subs (1) and the reference to ‘person’ was to the person referred [page 199] to in that subsection which is to the decision-maker. For this reason, the AAT cannot under this section direct an applicant or another agency to lodge a document. However, see 13.19 in relation to the general power of the Tribunal to require the production of documents under summons. Note also that s 66(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) provides that an applicant is not entitled to rely on evidence not disclosed to the Tribunal before the hearing without the leave of the Tribunal. See 12.5 in regard to the obligation of a decision-maker to give the Tribunal and the other parties documents that come into his or her possession after an application has been lodged. Before making an order under s 37(2), the AAT must be satisfied that the additional document sought is one that the decision-maker is obliged to lodge — that it falls within the description contained in s 37(1): Re Thomas Cook Australia Pty Ltd and Collector of Customs (1994) 34 ALD 301. Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264; (2005) 91 ALD 435 held that an application to vary an order for production under s 37(2) should not be suspended or varied without clear reason, as to do so delays the proceedings and this is counter to the directive in s 2A of the AAT Act relating to the manner in which proceedings before the Tribunal should be conducted: see 1.6. In addition to the power to require the lodging of additional statements, s 33(2A)(a) empowers the Tribunal to give directions requiring the provision of further information relevant to the proceedings: Re Rayson and Repatriation Commission [2009] AATA 231; (2009) 109 ALD 168. See also 13.19 in relation to the power to obtain documents under summons. Section 38 empowers the AAT to order the Commissioner of Taxation to lodge a further statement setting out further and better particulars of the statement of reasons provided pursuant to the modified obligations under s

37(1): see above and see Re Taxpayer and Commissioner of Taxation [2006] AATA 598; (2006) 91 ALD 242 in relation to this requirement.

LODGING OF DOCUMENTS TO WHICH PRIVILEGE APPLIES 12.9 Section 37(3) of the AAT Act provides that the section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents. This section has been applied to override an objection to the production of documents pursuant to s 37(1) and s 37(1AE) on the basis of legal professional privilege or public interest privilege: see 9.8, 9.12, 12.15–12.16 but note the qualification that is discussed in 12.15. However, in Re VCA and Australian Prudential Regulation Authority [2006] AATA 873; (2006) 92 ALD 724 a decision-maker was directed not to lodge statements containing incriminating material provided under compulsion: see 9.7. [page 200] The position is not clear where the production of a document might constitute a breach of privacy. In Re Dunstan and Comcare [2009] AATA 843; (2009) 113 ALD 176 at [11] it was suggested that the issue of a summons having this effect was not permissible. The Tribunal in Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [227] rejected this. The position awaits resolution. See also Re Aspen Pharma Pty Ltd and Commissioner of Patents [2012] AATA 281; (2012) 129 ALD 18 where the Tribunal refused to issue a summons requiring the production of a document that contained the terms of a confidential settlement. However, this was on the basis that the evidence could be obtained from other sources and it was desirable that production of the settlement not be required where this course was available. The case does not suggest that a summons could not have issued if this were the only course open and the evidence was necessary for the resolution of the proceedings.

ACCESS BY APPLICANT TO DOCUMENTS LODGED WITH AAT 12.10 An applicant will have access to the ‘T’ documents lodged under s 37(1) unless an order preventing disclosure is made under s 35 of the AAT Act: see s 37(1AF), 11.9–11.10. See Practice Direction Lodgement of Documents under Sections 37 and 38AA of the AAT Act for the procedure to be followed in relation to an application for such an order. The position in regard to non-disclosure is not quite so clear in regard to documents lodged pursuant to an order of the AAT under s 37(2). As noted above, s 37(2) empowers the Tribunal to require a decision-maker to lodge copies of other documents with it if it considers that they are relevant to the review of the decision before it. However, s 37(2) does not provide for copies of such documents to be given to the other parties to the review (s 37(1AE) only relates to documents lodged under s 37(1)). For documents lodged pursuant to s 37(2) to be given to the other parties to the review, the Tribunal will have to make a direction under s 33(2) relating to the procedure to be followed in connection with the hearing. Where a claim is made that a document is privileged from production, the wording of s 37 seems to leave a hiatus in regard to documents produced under s 37(2). Section 37(3) says that the section is to have effect notwithstanding any rule of law relating to privilege. Accordingly, a document called for under s 37(2) must be produced to the Tribunal even though it might otherwise be privileged (subject to the issue of an Attorney-General’s certificate: see 12.16). However, the fact that any order for production of that document to another party is not made under s 37 but under s 33 leaves it questionable whether the negation of privilege by s 37(3) is applicable. The Tribunal in Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86 thought that s 37(3) was not applicable. Accordingly, an objection to produce a document to the applicant based [page 201]

on legal professional privilege had to be sustained. See further Re Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources [2005] AATA 77; (2005) 83 ALD 104; Re VBN and Australian Prudential Regulation Authority (No 2) [2005] AATA 1060; (2005) 92 ALD 455 at [20]–[26]. (This conclusion does not seem to have been questioned in Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 where the Federal Court considered the effect of s 37.) It would seem that this is a gap in the operation of s 37. The additional document is properly to be seen as part of the ‘T’ documents. Access to it should be subject to the same rules as apply to those documents. (It should be noted in this context that a requirement to comply with procedural fairness will not displace legal professional privilege: Griffiths v Rose [2010] FCA 964; (2010) 190 FCR 173; 117 ALD 473.)

MIGRATION AND REFUGEE DIVISION 12.11 The requirements of ss 352 and 418 of the Migration Act 1958 (Cth) (Migration Act) are that the Secretary gives the Tribunal a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based and gives the reasons for the decision. The Secretary is also to give the Tribunal each document or part of a document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review. It can be seen that the objective test of relevance of the documents that now applies in the general jurisdiction of the AAT (see 12.3) has not been applied to proceedings in the Migration and Refugee Division. However, the comments of Flick J in Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 at [41] must be borne in mind when considering the material made available to the Tribunal: A government agency cannot, by way of example, artificially circumscribe the ambit of a proper ‘review’ by confining the ambit of those materials in fact before a decision-maker to the exclusion of other readily available material. Such an obligation imposed upon a government agency, perhaps,

goes a little further than the duty already imposed upon the Secretary to the Department by s 352(4) of the Migration Act … In the absence of any reason to question the position, the Tribunal may proceed upon an ‘assumption’ that the Secretary has provided all such information: Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [74]; (2009) 112 ALD 241 at 256. In an appropriate case the Tribunal may seek the provision to it of further information, be it further information which the Secretary ‘considered … to be relevant’ or otherwise. The view formed by the Secretary should not confine the freedom of the Tribunal to request such further information as may be available and which the Tribunal itself ‘considers to be relevant’. The Secretary may supplement the statement of reasons by giving the Tribunal ‘written argument in relation to the decision under review’: ss 358(2), 423(2). The Tribunal may also request information from the Secretary: ss 359, 424. [page 202]

MODIFICATION OF OPERATION OF S 37 12.12 The operation of s 37 of the AAT Act is modified by some Acts that provide for review of decisions. The most notable changes are those made by s 14ZZF of the Taxation Administration Act 1953 (Cth). Under that Act, first, the requirement in s 37(1) that a decision-maker has to provide a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision is changed to require only ‘a statement giving reasons for the decision’. Second, the objective requirement to lodge every document that is relevant to the review of the decision by the Tribunal is changed to requiring only ‘every … document that is in the Commissioner’s possession or under the Commissioner’s control and is considered by the Commissioner to be necessary to the review of the objection decision concerned’.

Third, the power of the Tribunal in s 37(2) to require by notice in writing the lodging of documents that the Tribunal considers may be relevant to the review is changed to permit such a request to be made only orally at a conference. The effect of these changes was discussed by a Full Federal Court in Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566; 103 ALD 238 and by the Tribunal in Re VLKG and Commissioner of Taxation [2011] AATA 915; (2011) 129 ALD 13; Re Confidential and Commissioner of Taxation [2013] AATA 112 at [346]ff. In Kennedy’s case the court said at [28]: … [An applicant] must show how a particular document or category of documents may be relevant to specific issues of fact relating to the excessiveness of the assessments issued to him. … The intent of s 14ZZF of the [Taxation Administration Act 1953] was clearly to narrow the class of documents which the Commissioner must produce to the tribunal, and in the absence of a demonstration by [the applicant] of the relevance of any additional documents, it is not appropriate to widen the class of documents which the Commissioner has already provided in this case. The operation of s 37 has also been qualified by various provisions of the Freedom of Information Act 1982 (Cth) and the Archives Act 1983 (Cth). Those provisions provide that the document that is the subject of the application for access is not to be furnished to the AAT unless the AAT so requests. Then the document is only to be made available to the AAT members. As was noted in Re Arnold Bloch, Leibler & Co and Federal Commissioner of Taxation (1984) 6 ALD 62, if this were not to be the practice followed, the exemption provisions of the Freedom of Information Act would be thwarted. In that case, the Tribunal also refused a request for the documents in question to be made available to counsel for the applicant. However, where the respondent asserts that the documents in question do not fall within the Freedom of Information Act and this issue is in question, the documents should be lodged pursuant to s 37: Re Anderson and Department of Immigration and Ethnic Affairs (1986) 11 ALN N233 at N239. [page 203]

SUBSIDIARY MATTERS RELATING

TO S 37 12.13 A party that lodges documents relevant to an application pursuant to s 37 is not guilty of contempt of court: Saunders v Federal Commissioner of Taxation (1988) 15 ALD 353 at 359. As to contempt of a state Supreme Court, see Re Windsor and Australian Postal Corporation (1991) 22 ALD 401. The fact that a document has not been produced pursuant to s 37 does not mean that, where relevant, it cannot be called for at the hearing: Re Pasla and Australian Postal Corporation (1990) 20 ALD 407. Section 37 does not apply to security appeals relating to security assessments. The obligation to provide information to the AAT for these reviews is contained in s 39A(3).

STATEMENT OF REASONS 12.14 The requirement of s 37(1)(a) is that the decision-maker lodge with the Tribunal a statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. (See 12.11 relating to the obligations under the Migration Act.) The form and content of a statement of reasons by a decision-maker has been discussed by the Tribunal on many occasions. One of the earliest cases in which it was considered was Re Palmer and Minister for the Australian Capital Territory (1978) 1 ALD 183. The AAT there ruled that, to give effect to the section, the reasons provided must be reasons which will not only be intelligible but also must deal with the substantial points that have been raised. The duty to give reasons was also said to be a responsible one that could not be discharged by the use of vague general words which were not sufficient to bring to the mind of the recipient a clear understanding of why the request was being refused. The AAT made it clear that it is the actual reasons for the decision and the findings on material facts relied upon at that time which must be set out, not other reasons or facts which may have subsequently come to light. This does not, of course, mean that the decision-maker cannot rely on any such subsequent reasons or facts at the hearing before the AAT. The AAT is to determine what the decision in the matter should be, not whether the basis of the decision-

maker’s decision was correct. See further 16.13–16.14. However, if additional matters are to be relied upon, it must be indicated to the AAT in a supplementary statement that the matters so advanced are not the original grounds for the decision: Re UK Family Reunion and Australian Postal Commission (1978) 2 ALD 383; Re Hitek Holdings Pty Ltd and Export Development Grants Board (1985) 8 ALN N156. Attention should also be paid to the obligation imposed on a decision-maker by s 38AA inserted in the AAT Act in 2015 to lodge with the Tribunal additional relevant documents that [page 204] have come into his or her possession after the ‘T’ documents have been lodged: see 12.5. Section 37(1)(a) only specifies that reference be made to the evidence on which findings were based. However, if it is not possible to understand the reasons for a decision without the evidence or a part of it being set out, compliance with s 37 will require this: Re Australian Mutual Provident Society and Minister for Territories and Local Government (1984) 6 ALN N50. In that case, reasons which merely said that the value placed on land was derived from a valuer’s valuation of the land without setting out the way in which the valuation was calculated were held not to satisfy the requirements of s 37. A similar attitude is taken by the AAT to statements of reasons that set out a number of facts and record the decision as having been based ‘on these facts’. Section 37 requires an indication of the specific facts relied upon and the weight given to them: Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100; Re Frith and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 590. However, note 11.6–11.13, 12.15–12.16 relating to limitations on disclosure of evidence. For other cases relating to the form of reasons, see Re Harkins and Minister for Capital Territory (1978) 1 ALD 537; Re Frohlich and Minister for Capital Territory (1979) 2 ALD 434; Re Taylor and Department of Transport (1978) 1 ALD 312; Re O’Donnell and Commonwealth (1985) 8 ALN N212; Re Tolo and Commonwealth (1985) 9 ALD 225 at 235; Re Lomax and Commonwealth (1986) 10 ALN N105; Re Champion and Reserve Bank of Australia (1988) 14 ALD 580; Re Cowling and Repatriation Commission (1990) 20 ALD 748; and the cases referred to at

paragraphs [364] and [364A] of Australian Administrative Law (LexisNexis) relating to the provision of reasons as required by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). See also the Administrative Review Council’s document ‘Practical Guidelines for Preparing Statements of Reasons’ reproduced at [8560] behind guidecard ‘General Information’ in that publication. In Re Taxpayer and Commissioner of Taxation [2006] AATA 598; (2006) 91 ALD 242 the Tribunal said that the modification of the requirement of s 37 of the AAT Act made by s 14ZZF of the Taxation Administration Act 1953 (Cth) so that the Taxation Commissioner has only to provide ‘a statement giving reasons for the decision’ meant that the statement had to expose the reasoning process relating to the substantive issues in a manner that renders them intelligible to a reasonable lay person. In Re KLGL and Australian Prudential Regulation Authority [2008] AATA 452; (2008) 104 ALD 433 the Tribunal considered a request for the production of the successive drafts that led up to the final statement of reasons. The request was rejected in the absence of any evidence indicating why the drafts might be relevant. In the absence of such evidence, the request could be characterised as ‘fishing’. However, the Tribunal did not say that drafts of reasons could never be relevant to an application for review — but it will require some solid basis for demonstrating that relevance to justify their production. [page 205]

NON-DISCLOSURE OF CERTAIN INFORMATION: SS 36–36D, 39A– 39B General 12.15 These sections impose important limitations on the information that may be made available either in documentary form or in answer to questions in proceedings before the AAT. They apply to applications for review being dealt with in all the Divisions of the Tribunal except for security assessment appeals in

the Security Division (see 12.18) and proceedings in the Migration and Refugee Division (see 12.19–12.20). Section 36D(6) provides that ss 36 and 36B (but not ss 36A and 36C) are to be taken to exclude the operation of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in proceedings before the AAT. There has been some disagreement as to whether this provision is intended to form an exclusive code on the whole issue of disclosure of documents where a claim is made based on public interest privilege or whether the provision only applies to documents to which a certificate under s 36 or s 36B relates. The view currently accepted is that the subsection applies only in the latter circumstance. A claim that documents should not be disclosed in the public interest to which no Attorney-General’s certificate relates is to be determined on the principles that apply to such claims when made in judicial proceedings: Re Hobart Central Child Care Pty Ltd and Commissioner of Taxation [2004] AATA 1222; (2004) 84 ALD 86; Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425; (2006) 90 ALD 417 and see 9.12. Sections 39A and 39B make special provision in relation to disclosure of documents in proceedings before the Security Division of the AAT (see further 12.18).

Disclosure of information or documents: ss 36, 36B 12.16 Under s 36(1) of the AAT Act, the Commonwealth Attorney-General may certify that the disclosure of information concerning a specified matter or the disclosure of any matter contained in a document would be contrary to the public interest: (a)

by reason that it would prejudice the security, defence or international relations of Australia; or (b) by reason that it would involve the disclosure of deliberations or decisions of the cabinet or of a committee of the cabinet; or (c) for any other reason specified in the certificate that could form the basis of a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the

documents should not be disclosed. [page 206] Despite the giving of such a certificate, a person who would otherwise be required under the Act to disclose the information or to produce the documents to the AAT must still do so. But the AAT is placed under an obligation to ensure that there is no disclosure of the information or document to any person other than a member or officer of the AAT. However, a distinction is drawn between the position where the AttorneyGeneral’s certificate specifies as the reason for non-disclosure one of the grounds mentioned in para (a) or (b) above and where the basis of the certificate is a ground specified in (c). In the latter case, the AAT is to consider whether the information or the contents of the document should be disclosed to all or any of the parties to the proceedings. If it considers that the information or the contents of the document should be so disclosed, then the party is to be given access to the information. In forming its opinion, the AAT is directed to take into account the principle that it is desirable, in the interest of securing the effective performance of its functions, that the parties to a proceeding should be made aware of all relevant matters. However, the AAT is to weigh against this the reasons specified by the Attorney-General in the certificate as a reason why the disclosure of the information would be contrary to the public interest: s 36(3) and (4). Section 36(3A) provides that the Attorney-General is deemed to be a party to the proceedings for the purposes of the matters referred to in the last paragraph. This presumably means that he or she could request a hearing of the Tribunal where the disclosure of the information could be debated. See further Re ABCD and Commissioner of Taxation [2008] AATA 898; (2008) 50 AAR 287; 75 ATR 393. A decision to give access to information can only be made by a Tribunal constituted by a member who is a judge of the Federal Court: s 36D(3). Section 36D(4) permits an appeal to be brought under s 44 of the AAT Act against a decision of the Tribunal to disclose the information to which the Attorney- General’s certificate relates. However, there is no mechanism provided under the AAT Act to challenge a decision of the Attorney-General to issue a certificate in reliance on s 36(1)(a) or (b). Review can be obtained by invoking

the AD(JR) Act or the Judiciary Act 1903 (Cth): see, for example, Traljesic v Attorney-General (Cth) [2006] FCA 125; (2006) 150 FCR 199; 89 ALD 569. The court there dismissed an application to overturn a refusal to allow the applicant’s solicitor access to certain information. See further 19.60–19.62. For an example of the operation of s 36, see Re Suardana and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 830 where the President ruled that the names of police informers should not be disclosed. However, their evidence could be taken into account but it had to be borne in mind that the weight of that evidence was affected by the fact that it was untested. Like provision to that in s 36 is made in relation to the issue of a certificate by a state or territory Attorney-General: s 36B. For an example of the intervention of [page 207] a state Attorney-General see Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1991) 25 ALD 160.

Answering questions: ss 36A, 36C 12.17 Similar provisions to those outlined above apply in relation to questions asked of a person in the course of giving evidence to the AAT with the important exception that, if the Attorney-General certifies that the answering of a question would be contrary to the public interest, the Tribunal is not informed of the content of the person’s evidence. If the Attorney-General’s certificate is based on a reason referred to in para 36(1)(a) or (b), above, an appeal can be brought to the Federal Court under s 44 of the AAT Act or a question of law can be referred to the court under s 45 of the Act. This somewhat curious provision was discussed by a Full Federal Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 163; (2006) 155 FCR 268; 93 ALD 61. The court held that, despite s 44 being limited to appeals on a question of law, the issue whether the answering of a question under s 36A(1) was contrary to the public interest had to be decided by the appeal judge on its merits by reaching his or her own opinion by reference to the facts and circumstances giving rise to the Attorney-General’s certificate.

The competing interests that have to be balanced are the same as those referred to in s 36(4): see 12.16. Where the Attorney-General’s certificate opposing the answering of a question is based on its being contrary to the public interest under s 36(1)(c), the Tribunal may decide that the answering of the question would not be contrary to the public interest. Such a ruling can only be made by a Tribunal constituted by a member who is a judge of the Federal Court: s 36D(3). As with a Tribunal ruling under s 36, the Attorney-General is a party to proceedings relating to the decision of the Tribunal to permit the giving of the information: s 36A(2A). See further Re ABCD and Commissioner of Taxation [2008] AATA 898; (2008) 50 AAR 287; 75 ATR 393. An appeal may be brought under s 44 of the Act against a ruling of the Tribunal: s 36D(4). Like provision to that in s 36A is made in relation to the issue of a certificate by a state or territory Attorney-General: s 36C. The Commonwealth Attorney-General may also prevent the disclosure of the contents of a statement of reasons prepared under s 28(1): see 4.3.

Security Division: ss 39A, 39B 12.18 These sections set out the procedures to be followed in a review by the Tribunal of a security assessment. Included are provisions relating to access to documents. Certificates can be given by the Minister administering the Australian Security Intelligence Organisation Act 1979 (Cth) or by the AttorneyGeneral that [page 208] will have the effect of limiting or preventing access to documents where disclosure would be contrary to the public interest. A Full Federal Court in Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241; 103 ALD 66 at [175] ruled that the relevant Minister was not obliged to give reasons for the issue of a certificate. The operation of the sections was considered by the AAT in Re GWVR and Director-General of Security [2010] AATA 1062; (2010) 120 ALD 127. The Tribunal

rejected a proposal that it appoint a person as a special counsel to assist it in the determination of an appeal against a cancellation of a visa where certificates had been issued under ss 39A and 39B. The Tribunal noted that the sections made it clear that information to which a certificate related could not be disclosed to such a person. However, it was prepared to direct that the respondent give such particulars of the case against the applicant with such specificity as was possible without breaching security. See Re BLBS and Director-General of Security [2013] AATA 820; (2013) 137 ALD 196 and Re MYVC and Director-General of Security [2014] AATA 511; (2014) 144 ALD 149 for examples of the Tribunal’s consideration of the making of an adverse security assessment. Note the reference in the latter case to ‘open’ and ‘closed’ evidence and the discussion of the difficulty that this imposes on the Tribunal in providing adequate reasons for its decision to an applicant. (See also Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505; 143 ALD 596 for discussion of similar issues on a judicial review application.)

Migration and Refugee Division 12.19 Sections 375 and 437 of the Migration Act proscribe the giving of information to the Tribunal if the Minister administering the Migration Act certifies that it would be contrary to the public interest to do so because of prejudice to security, defence or international relations or that it would disclose cabinet deliberations or decisions. Section 375A empowers the Minister to certify that disclosure of information other than to the Tribunal would be contrary to the public interest for the reasons set out in the section. If this occurs, the Tribunal may have regard to the information but cannot disclose it to anyone else. Sections 376 and 438 allow the Minister to certify that it would be contrary to the public interest for a document to be disclosed but not include a statement that it should be disclosed to the Tribunal only. In such a case the Minister is to give the Tribunal advice as to the significance of the document. It is then left to the discretion of the Tribunal, taking into account the Minister’s advice, whether to disclose the document to the applicant or a witness. If it chooses to do so, it must take steps necessary to ensure the confidentiality of the document. The use that the Tribunal can make of the information to which limitations apply in relation to appeals under s 500 is referred to in 12.20. The cases cited there are likely to provide guidance to the issues arising under the sections above.

[page 209] 12.20 Legislation that vests jurisdiction in the AAT to review decisions may limit the information that may be disclosed to an applicant. Provisions of this kind apply to appeals under the Migration Act. A category of ‘non-disclosable information’ is created under that Act (ss 5, 500). Such information includes information ‘whose disclosure would found an action by a person … for breach of confidence’. The Tribunal in Re Phung and Minister for Immigration and Citizenship [2007] AATA 1319; (2007) 96 ALD 151 noted that, in the absence of such a provision, reliance upon information not disclosed would be a breach of natural justice. It also indicated that the provision did not give carte blanche for the decision-maker to prevent the disclosure of information. The Tribunal had to consider the merits of a possible action for breach of confidence before it could be satisfied that the information was ‘nondisclosable’. However, if the information satisfied this test, it could not be disclosed to the applicant. A second category of information under the Migration Act is referred to as ‘protected information’ (s 503A). Except as referred to below, this cannot be disclosed even to the Tribunal (or a court). The use of this information was considered by a Full Federal Court in Peters v Administrative Appeals Tribunal [2005] FCAFC 159; (2005) 144 FCR 417. The court held that the AAT could not use its compulsory powers under s 37 of the AAT Act to require the production to it of the information. The Migration Act overrode the AAT Act on this issue. The Migration Act gives the Minister a limited power to disclose the information. However, if the information is produced to the Tribunal pursuant to an order of the Minister the information cannot be disclosed to the applicant before the Tribunal. The court noted that the AAT had said that the weight and evidentiary value of such ‘protected’ information as it received in evidence would be affected by the extent to which the appellant had been given (or not given) an adequate opportunity to comment upon it, as well as upon other matters. The court did not suggest that this statement was incorrect. The statement was repeated in Re Phung, above. It seems that, in fairness to an applicant, this approach should be followed by the Tribunal. It would also seem applicable to information the disclosure of which is proscribed under ss 36–36D: see 12.15–12.18. However, the Tribunal

must reach the correct and preferable decision and to this end it will be necessary for it to have regard to the information that is before it, even though the applicant may not have had an opportunity to review it. The information must be taken into account even though its weight may not be as great as it would have been if the applicant had an opportunity to test it. See further the discussion at 11.9–11.13. Section 500 imposes other restrictions on the use of certain information unless it has been disclosed to the Minister a specified time in advance of the Tribunal hearing.

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CHAPTER 13 PROCEDURE AT HEARING: HEARING BEFORE TRIBUNAL APPEARANCE AND REPRESENTATION: S 32 General 13.1 At the hearing of a proceeding before the Administrative Appeals Tribunal (AAT) (other than in the Migration and Refugee Division or the Social Services and Child Support Division, as to which see below), a party to the proceeding may appear in person or may be represented by some other person. In Re Ward and Secretary, Department of Industry and Commerce (1983) 8 ALD 324 it was held that the words ‘may appear in person or may be represented’ in s 32 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) imported the notion of right or entitlement to attend. Thus a prisoner cannot be denied the right to attend an AAT hearing, provided that satisfactory escort arrangements can be made. (With the development by the AAT of telephone and video hearings (see 13.40), it is more likely that the ‘hearing’ in such a case will be provided by this means.) No restrictions are placed upon the persons who may represent others at a hearing. However, the Tribunal, as with a court, may exclude a person as a representative of an applicant. ‘The test to be applied by the Tribunal is whether if the representative were not excluded a fair minded, reasonably informed member of the public might reasonably conclude that the proper performance of

its review functions requires that the legal representative should not act in the proceeding’: Re Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678; (2012) 131 ALD 162 at [30]. ‘In many respects such power is analogous to the power of the courts but it is derived from an implied statutory power to protect the integrity of its process rather than from its inherent jurisdiction or its control of representatives as officers’ (at [29]). [page 211] An applicant may be represented by a person in his or her absence: Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113. The principle in Dietrich v R (1992) 177 CLR 292; 109 ALR 385 that the absence of legal representation can constitute an unfair trial is not applicable to a hearing before the AAT: Federal Commissioner of Taxation v La Rosa [2002] FCA 1036; (2002) 196 ALR 139 at [122]. However, see Hogan v Australian Crime Commission [2005] FCA 913; (2005) 154 A Crim R 336 where the right to representation before a tribunal by counsel of a person’s choosing is discussed. Section 32(4) was inserted in the AAT Act in 2015. It provides that a person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person. The right of a person summoned to appear to seek representation was formerly set out in s 40(4) and representation was limited to a counsel or solicitor. The amended section expands the range of persons who can act as a representative and would include support persons. The new provision also extends the right to seek representation beyond persons who are formally summoned under the AAT Act to appear to include also those who are required to attend under other legislation which provides a right of review of a decision by the AAT.

Migration and Refugee Division 13.2 An applicant must be invited to appear before the Tribunal: Migration Act 1958 (Cth) (Migration Act) ss 360, 425. The nature of the appearance is not spelled out but ss 366 and 429A empower the Tribunal to allow evidence to be given by telephone, television or other means of communication. However, the question arises whether conducting a hearing by one of these means will always

be sufficient to satisfy the requirement of ss 360 and 425. The issue was alluded to in Chintalapudi v Minister for Immigration and Border Protection [2015] FCA 129; (2015) 144 ALD 603. It was questioned, without deciding, whether an invitation to appear by telephone at a hearing of the Tribunal in one city when there was a registry of the Tribunal in the place where the applicant lived and which could have been attended in person satisfied the legislative requirement. The invitation must be given by one of the methods set out in ss 379AA, 379A, 441AA or 441A, as appropriate. However, the method selected and the Tribunal’s actions following the giving of the invitation by one of the designated methods must take into account the Tribunal’s knowledge of the applicant’s circumstances. So where an applicant had actively pursued their application, the failure of the applicant to appear should have alerted the Tribunal to the need to make further inquiries as to whether the invitation had been properly given: Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619. In relation to a Part 5-reviewable decision, an applicant who accepts an invitation to appear may be assisted by another person: s 366A(1). However, that assistant is not entitled to present arguments to the Tribunal unless the Tribunal is satisfied that, [page 212] because of exceptional circumstances, the assistant should be allowed to do so: s 366A(2). It is expressly stated that an applicant is not entitled to be represented when appearing before the Tribunal: s 366A(3). In relation to a Part 7-reviewable decision, the applicant has the right to be represented. In practice such representation is usually by a registered migration agent. See 11.5 in relation to the requirement that the review of Part 7-reviewable decisions must be heard in private. See 15.6–15.7 in relation to a failure by an applicant to take up the invitation to appear.

Social Services and Child Support Division:

ss 32, 39AA 13.3 Consistent with the procedure that had been followed in the Social Security Appeals Tribunal (SSAT), the agency may be represented at a first review in the Social Services and Child Support Division: s 32(1)(b). See below as to the form of that ‘representation’. Any other party, including the applicant, ‘may appear in person or, with the Tribunal’s permission, may be represented by another person’: s 32(2). In determining whether to allow representation, the Tribunal is to have regard to its objective as set out in s 2A (see 1.6) and the wishes of the parties and the need to protect privacy: s 32(3). The position of the parties in regard to representation is affected by s 39AA. Agency parties are required to make submissions in writing unless the Tribunal gives permission for, or requires, oral submissions: s 39AA(2)–(4). Any other party is entitled to make oral or written submissions or both. On second review applications of first review decisions, the position set out above in relation to applications before the General Division of the Tribunal applies.

Unrepresented applicants 13.4 Many applicants appear in person before the AAT. The duty of the Tribunal to assist an unrepresented person is discussed with reference to authorities in Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362 at [50]–[54]. The point is made that the degree of assistance to be afforded by the Tribunal will depend upon the applicant’s ability and the nature of the issues that arise at the hearing. However, ‘the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy’: at [51]. It is important that the Tribunal ensure that relevant arguments are put and claims made that might otherwise be overlooked. On the other hand, the unrepresented applicant must not be given positive advantages over the other parties. See also Xia v Wang and Bian [2009] ACAT 21. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438; 57 ALD 23 at [28] the Full Federal Court cited the comments of

[page 213] Mahony JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986, unreported): Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done. While these comments were directed to a litigant in judicial proceedings, they are relevant also to the position of the AAT. But note Remely v Minister for Immigration and Border Protection [2014] FCA 619; (2014) 142 ALD 539 at [41] where the court emphasised that a respondent is entitled to assume finality in litigation relating to a decision even though an applicant may be unrepresented. The Tribunal in Re Tang and Minister for Immigration and Citizenship [2012] AATA 330; (2012) 132 ALD 105 at [137] made special reference to its needing to be ‘more actively engaged’ when dealing with the answer to a summons for production of information where the applicant is unrepresented. In particular it is important that an unrepresented party have explained to him or her the niceties of procedure in so far as a failure to follow them may impinge adversely on their case: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 305 ALR 557. See also P v Child Support Registrar [2013] FCA 1312; (2013) 138 ALD 563 at [117] where the issue is discussed in the context of natural justice. See further 8.13–8.16 on the issue of bias arising from the manner in which unrepresented parties are dealt with by the Tribunal. See also 19.42 for the position of unrepresented applicants on appeal from the AAT. The AAT website provides detailed assistance relating to the bringing of an application and participation in proceedings before the Tribunal. For a general discussion of the position of the unrepresented litigant see Justice Robert Nicholson, ‘Australian Experience with Self-represented Litigants’ (2003) 77 Australian Law Journal 820.

Role of representatives of parties 13.5 Except in a first hearing in the Social Services and Child Support Division (see 13.3), the respondent governmental authority is always represented — often by a legally qualified officer from the department. On many occasions, however, counsel is briefed to appear. Whether an applicant or other party is represented is at the discretion of the party, as is discussed above. In McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6 Northrop J in the Federal Court emphasised that the duty of the departmental representative was to assist the AAT in reaching the correct decision. The advocate’s [page 214] role should not be seen as adversarial. The AAT in Re Cimino and Director-General of Social Services (1982) 4 ALN N106 equated the task with that of counsel for the Crown, ensuring only that all the facts are before the AAT and not placing emphasis on the defeat of the application. For other comments on the role of the departmental representative, see Re Lukeman and Repatriation Commission (1989) 18 ALD 300; Re Crnkovic and Repatriation Commission (1990) 20 ALD 131; Re Moline and Comcare [2003] AATA 827; (2003) 77 ALD 224 and see also the strong criticism of the Commonwealth’s behaviour on appeal from the AAT in Scott v Handley [1999] FCA 404; (1999) 58 ALD 373 at [46]. This obligation to assist the Tribunal is not limited by the fact that the applicant is legally represented. The role of the respondent’s representative is still to enable the AAT to reach the correct and preferable decision: Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 111 ALD 579 at [47]. These requirements on the respondent were given statutory effect by the inclusion in the AAT Act in 2005 of s 33(1AA) and were reinforced and extended in 2015 to include also a representative of the applicant by s 33(1AB) of the AAT Act which reads: A party to a proceeding before the Tribunal for a review of a decision, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.

See the discussion at 8.4 on the obligations of parties.

Representation of decision-maker tribunal: Hardiman principle 13.6 Where the respondent decision-maker is a tribunal the position in regard to representation is more complicated. The High Court in Re Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; 29 ALR 289 at 306 had suggested that the Australian Broadcasting Tribunal should adopt a largely passive role in any legal challenge to one of its decisions. See further the application of this principle in Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) [2004] FCA 614; (2004) 136 FCR 338. The fact that the Authority was a regulatory body was said not to change the principle. However, in Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 12 ALD 1 at 11 President Davies J said this approach was inappropriate to the procedures of the AAT. Where no other party can undertake the role, the representative of a tribunal respondent should adduce evidence, question evidence and present substantive submissions in the same way as the representative of any other respondent before the AAT. This approach was followed in Re Tascone and Australian Community Pharmacy Authority [2011] AATA 724; (2011) 59 AAR 376 at Attachment E and Re Issa and Australian Community Pharmacy Authority [2012] AATA 374; (2012) 128 ALD 631. In contradistinction to this position, the function of a tribunal decision-maker may be restricted where there are parties to the hearing who can undertake the role [page 215] of contradictor of the applicant’s case. In such a case, the tribunal which made the decision should limit its interaction to clarifying its policies and practices and assisting the AAT as requested: Geographical Indications Committee v O’Connor [2000] FCA 1877; (2000) 64 ALD 325 at [35]. Such a function was cast by the AAT on the tribunal decision-maker in Re

Penola High School and Geographical Indications Committee [2000] AATA 922; (2000) 63 ALD 305. In that case, there were numerous interested parties in the application to the AAT representing diverse interests. The Tribunal agreed that the respondent tribunal should have a role in the proceedings but limited it to opening submissions, raising public interest concerns and assisting the Tribunal when called on. See also the remarks of DP Forgie in Re Confidential and Social Security Appeals Tribunal [2008] AATA 1176; (2008) 106 ALD 613 at [59] relating to the role of the Child Support Registrar in relation to an appeal from a decision of the SSAT reviewing a decision of the Registrar. These comments would now seem applicable to a second hearing in the Social Services and Child Support Division. For a critique of the applicability of the Hardiman principle in relation to administrative review proceedings see Simon Daley and Nick Gouliaditis, ‘The Hardiman Principle’ (2010) 59 Admin Review 60.

DIRECTIONS AT HEARING: S 33 13.7 The member presiding at a hearing or another member authorised by that member may give directions as to the procedure to be followed at or in connection with the hearing (s 33(2)). Any such directions may be varied or revoked (s 33(3)). This power is additional to that which will have been exercised prior to the hearing at a directions hearing: see 10.10. Note the wide power in s 33(2A) to require any person who is a party to provide further information in relation to the proceeding. This is a separate power from that to issue a summons requiring the production of information: see 13.19. For an example of the exercise of the directions power to ascertain the evidence that might be given by witnesses and thereby determine whether they should be called at the hearing, see Re Hinds and Australian National University [2012] AATA 495; (2012) 129 ALD 476. Section 33(2A) was expanded in 2015 to empower the Tribunal to give directions that enable it to more readily carry out its objective as set out in s 2A of the AAT Act: see 1.6. Pursuant to this power, the Tribunal may, among other things, do all or any of the following: limit the number of witnesses; require witnesses to give evidence concurrently (see 13.38); limit the time for giving evidence or making submissions; and limit the length of written submissions.

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PRESENTATION OF CASE 13.8 While there is no onus of proof on an applicant to show that a decision is wrong (see 9.34), the applicant is, in most cases, asked to open the proceedings and indicate why a decision should be altered. The applicant will usually have the initial factual burden of introducing the relevant evidence: Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599. This obligation will usually determine that the applicant should go first in putting his or her case to the Tribunal. The usual procedure adopted in civil proceedings will then be followed unless there is some reason to depart from it. The crucial issue is that the parties must be given a proper opportunity to present their respective cases and the procedures adopted must not prevent this. Subject to this proviso, the AAT can determine the procedure that is to be followed but will need good reason to depart from accepted forms: Re Spoolder and Secretary, Department of Social Security (1991) 24 ALD 786; Australian Postal Commission v Hayes (1989) 23 FCR 320; 18 ALD 135; Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [148]ff. See further 8.7–8.17 in relation to procedural fairness. See also MZYRX v Minister for Immigration and Citizenship [2012] FMCA 723; (2012) 131 ALD 101 for a discussion of the issue whether an applicant is fit to take part in a hearing. Evidence may be given before the AAT in person or in writing or by electronic or other means if the Tribunal agrees. (Written evidence may, of course, not carry the weight of oral.) In Re Dunning and Repatriation Commission (1987) 12 ALD 235 it was indicated that, in the repatriation and compensation jurisdictions, it was better to call lay evidence before medical evidence. This ensured that the medical experts could be examined and could comment on all the facts presented to the AAT. An applicant may tender evidence that emanates from the respondent where the respondent is refusing to do so: Re Ermolaeff and Commonwealth (1989) 17 ALD 686 where the AAT was critical of the adversarial attitude followed by the respondent agency. The informality in procedure prescribed by s 33(1)(b) makes it permissible for an applicant to give unsworn evidence from the bar table largely elicited by questions from the Tribunal: Secretary, Department of Social Security v Jordan (1998) 83

FCR 34 at 43; 49 ALD 496 at 504. In Re England and Australian Postal Commission (1977) 1 ALN N198 the applicant was permitted to give evidence on commission in Perth before a deputy registrar of the AAT. The subsequent hearing of the application took place in Brisbane where the applicant was represented by a friend. In Re Baldt and Director-General of Social Security (1984) 6 ALN N53 the AAT directed that a letter be sent to the applicant, who was overseas, seeking information from him on certain matters. On occasions, the AAT has invited written submissions from the parties after a hearing has been completed. See 8.5 in relation to arrangements between the parties as to the matters to be presented to the Tribunal. [page 217] See 13.16 in relation to the use of evidence not previously disclosed to a party. See 13.40 in relation to telephone and video hearings.

OPPORTUNITY TO MAKE SUBMISSIONS: S 39 13.9 Section 39 of the AAT Act requires the AAT to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and to inspect any documents to which the AAT proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. This right is expressed to be subject to ss 35, 36 and 36B which allow the AAT and the Commonwealth or a state or territory Attorney-General, respectively, to deny access to certain documents: see 11.6–11.13, 12.15–12.18. The Freedom of Information Act 1982 (Cth) also limits access by an applicant to documents in certain cases: see Australian Administrative Law (LexisNexis) at [790]. Section 39 does not apply to applications being heard in the Migration and Refugee Division, the Security Division or the Social Services and Child Support Division: see 13.13, 13.14.

Operation of s 39 13.10 The operation of s 39 was discussed in Sullivan v Department of Transport (1978) 1 ALD 383; Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 16 ALD 280; Repatriation Commission v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348. Those decisions make it clear that the section gives statutory recognition to the obligation of the AAT to observe the rules of procedural fairness: see 8.7–8.17. See also Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 at [6] where the court indicated that, in regard to the question whether an adjournment should have been granted, there was no difference between the obligations imposed by s 39 and procedural fairness. While s 39 will usually be invoked on behalf of an applicant for review of a decision, it also applies to a decision-maker who is seeking to uphold the decision. So a refusal by the AAT to issue a summons for the production of documents in order to allow an applicant to be cross-examined on their content was a breach of s 39: Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68. In Re Jurischka and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N215 the Tribunal said that any statements in the s 37 documents adverse to an applicant should be put to the applicant either by his or her own counsel or by counsel for the respondent. If this is not done, the AAT is placed in the difficult position of having material before it which it cannot ignore but which it has had no chance to assess against the direct testimony of a witness. An applicant is not constrained in the submissions that are made to the AAT by the matters that were put to the decision-maker in seeking the original decision: [page 218] Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 325. Nor is the applicant constrained to the matters set out in the statement of reasons in support of the application for review: see 6.4. In applying s 39 the following extract from the judgment of the Full Federal Court in Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [14] (which was restated in Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; (2013) 139 ALD 29 at [14]) should be borne in mind:

The section, it has long been recognised, does not require the Tribunal to ensure that a party takes the ‘best advantage’ of the opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748. See also: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 where Deane J (with whom Fisher J agreed) observed that ‘[n]either 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’. Appl’d: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], (2009) 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ. Like views were expressed in Salomonn v Migration Agents Registration Authority [2014] FCA 380; (2014) 141 ALD 459 at [29]. The Full Federal Court in Hutchinson v Comcare [2014] FCA 1300; (2014) 143 ALD 686 at [30] noted that it was not the role of the Tribunal to interfere with the way in which the applicant chose to run her case. Flick J in SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 at [46]–[47] considered the position of an applicant who for mental inability or other reason is unable to participate meaningfully in the Tribunal’s proceedings. This is a matter that must be determined by the Tribunal on the material before it. However, it is not clear what the Tribunal should do if it reaches such a conclusion. It still has the application for review before it and it is obliged to resolve the proceedings as best it can on the material to which it has access. The state of mind of the applicant may itself, in some cases, be relevant to the decision but where that is not the case the Tribunal will simply have to make the correct and preferable decision on the information that it has. The Tribunal has indicated that it does not consider that the obligation to permit a party to present a case carries with it an obligation to provide and pay for a transcript of a proceeding for the benefit of the party: Re Wang and Australian Federal Police [2005] AATA 908; (2005) 88 ALD 765 at [19]. If a party wishes to obtain a transcript, it must do so itself. In limited circumstances, the Tribunal may reopen a hearing or receive further evidence after the completion of the hearing: see 13.46, 16.20, 17.26. However, the Tribunal is under no obligation to consider further submissions

received after the hearing unless it gives leave for those submissions to be provided and the other side is apprised of their content and has the opportunity to respond to them: Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1; 141 ALD 506 at [39]. [page 219] See further 13.4 relating to the obligations of the Tribunal towards unrepresented applicants. A failure to comply with s 39 is an error of law: see the Sullivan, Farley-Smith and Maganga cases, above.

Re-agitating facts dealt with in previous decision 13.11 In certain circumstances an applicant may be permitted to re-agitate questions of fact dealt with in a previous decision. The Full Federal Court said in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300 at [27]–[28]: … the Tribunal may have regard to findings of fact made between the same parties in earlier proceedings before the same or a differently constituted Tribunal. Although a Tribunal may not be bound to make the same findings of fact, findings previously made — especially after a contested hearing — may appropriately be adopted in subsequent proceedings. Its freedom to do so may well depend upon the facts and circumstances of each individual case. There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made. But the obligation to ‘ensure that every party … is given a reasonable opportunity to present his or her case …’, may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some

of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the ‘correct or preferable’ finding is one different from that previously made. This approach was applied in Re Shaheed and Tax Practitioners Board [2011] AATA 938; (2011) 128 ALD 401 to reject an application to submit further evidence. The Tribunal held that the evidence had been before the previous Tribunal and relied on the findings of fact made in those earlier proceedings. Section 416 of the Migration Act makes specific provision in relation to Part 7-reviewable decisions. It says that if a non-citizen makes a further application after an earlier application has been reviewed, the Tribunal considering the further application is not required to consider any information considered in the earlier application and may have regard to, and take to be correct, any decision that had been made about or because of that information. It can thus be seen that the opportunity to re-agitate facts is more constrained than the position in regard to [page 220] applications to the AAT generally. This provision is designed to limit reiteration of the same information in a jurisdiction where multiple applications are common.

Examples of the operation of s 39 13.12 The following are some additional examples of the operation of s 39: Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229; Re Kaur and Australian Postal Commission (1991) 23 ALD 159: both parties are entitled to access to medical reports before a proceeding goes to hearing; Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287; (2013)

139 ALD 536 at [74]: assumed by counsel but not decided by the court that text books referred to by the Tribunal are documents for the purposes of the section and thereby should be made available for inspection by the parties; Opitz v Repatriation Commission (1991) 29 FCR 50; 23 ALD 40: an applicant who was living overseas was entitled in the particular circumstances to supplement an initial statement to the AAT through a telephone conference; Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97: use of a videoconferencing facility did not disadvantage the respondent in presenting its case; Dobbie v Department of Social Security [1995] FCA 1191: announcing a finding before hearing submissions on the issue from the party affected was a breach of the requirements of s 39; Cook v ASP Ship Management Pty Ltd [2008] FCA 1345; (2008) 105 ALD 453: refusing to grant an adjournment can constitute a breach of s 39. See also 13.51; and Goodricke v Comcare [2011] FCA 694; (2011) 122 ALD 546: proceeding in the absence of an applicant after the completion of evidence where the applicant was represented was not a breach of s 39.

Social Services and Child Support Division 13.13 As noted at 13.3, on a first review, agency parties are required to make submissions in writing unless the Tribunal gives permission for, or requires, oral submissions: s 39AA(2)–(4). Any other party is entitled to make oral or written submissions or both.

Migration and Refugee Division 13.14 Section 39 of the AAT Act is not applicable to proceedings in the Migration and Refugee Division. The position in regard to those proceedings is governed by the Migration Act. An applicant for review of both a Part 5-reviewable decision and a Part 7reviewable decision must be invited to appear before the Tribunal to give evidence and present arguments relating to the decision under review: Migration

[page 221] Act ss 360, 425. For a consideration of whether there had been a proper invitation to appear see Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 97 ALD 112 at [43]ff and the cases there cited. The ‘appearance’ must provide a ‘real and meaningful’ opportunity to be heard: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 139 ALD 181; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 at [51]. So if an applicant is unable to participate at the hearing because of language or cultural difficulties or mental impairment, it may be that ss 360 and 425 will not be satisfied. Each case will depend upon its individual facts: see SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 at [47] and the cases there cited. An applicant who fails to provide information to the Tribunal following a request under s 359C or s 424C of the Migration Act loses the right to appear and make submissions. Sections 359A and 424A require the Tribunal to give to the applicant ‘clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’. It is also obliged to ensure that the applicant understands the significance of the information and is given an opportunity to comment on or respond to the information. The principal authority on what ‘information’ falls within this requirement is SZYBR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1. There the High Court said at [17]–[18]: … The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1) (a) is to be determined in advance — and independently — of the Tribunal’s particular reasoning on the facts of the case … … if the reason why the Tribunal affirmed the decision under review was

the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1) [of the Migration Act]. Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 that the word ‘information’: … does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. [page 222] If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [71] explained the rationale underlying s 424A (and thereby also s 359A) as being that the Tribunal should be compelled: (a)

to put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal; (b) to ensure as far as is reasonably practicable that the visa applicant understands the significance of those matters to the decision under review; and (c) to give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

Flick J in SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; (2009) 109 ALD 242 at [55] said: The manner in which the Tribunal discharges the obligation imposed by s 424A(1)(b) can thus extend to both that which is set forth in a letter given to an applicant under s 424A and also that which may occur during the course of a hearing before the Tribunal. Apparent deficiencies in a letter, upon such an approach, may well be removed when a review is undertaken of that which has occurred during the course of a hearing when the relevance of information may then have been clearly and unambiguously communicated to the applicant. Upon such an approach, it would not be possible to determine whether there has been a breach of s 424A(1)(b) without considering both the terms of the letter and any previous discussion of the material at the hearing. His Honour had previously noted at [52]: The greater the degree of clarity in the ‘particulars of any information’ provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information. See also SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 at [16]ff; SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 144 ALD 525 at [11]–[34], [103]; SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; Carol Beaton-Wells, ‘Disclosure of Adverse Information to Applicants under the Migration Act 1958’ (2004) 11(2) Australian Journal of Administrative Law 61. [page 223]

Security Division

13.15 Sections 39A and 39B set out the procedure to be followed at hearings of the Security Division relating to reviews of security assessments. The procedure laid down is different from other applications in the Tribunal in that the decision-maker gives evidence first and then the applicant is to be invited to give evidence and make submissions. The applicant is entitled to be present when the decision-maker’s evidence is being given unless the Minister has certified that the evidence to be given is of such a nature that disclosure would be contrary to the public interest because it would prejudice the security or defence of Australia. In such cases, the Tribunal will have heard the evidence but the applicant will not be privy to its content. The sections should be consulted for the nuances of the procedures to be followed.

EXAMINATION ON MATTER NOT DISCLOSED BEFORE HEARING 13.16 An issue that had arisen on a number of occasions was whether a party can put to a person at a hearing before the AAT material that has not been previously disclosed to that person. The matter may now have been resolved by the making by the Tribunal in 2013 of a Practice Direction: see 13.18. The issue arises most frequently where a party is wanting to put to an applicant video evidence of their physical capabilities in order to refute claims of incapacity. Obviously the value of this evidence may be reduced if the applicant has advance knowledge of contents of the video. On the other hand this manner of proceeding can be described as an ‘ambush’ and not in accordance with the open approach that is the hallmark of AAT procedures whereby each party is to be made aware of all relevant material in the possession of the other. Authority can be found to support both approaches. The first significant consideration of the matter was by the Federal Court in Australian Postal Commission v Hayes (1989) 23 FCR 320; 18 ALD 135 where the approach adopted by the AAT of requiring a claimant’s employer to tender video evidence at the commencement of the claimant’s evidence in chief was held to be wrong. A party before the AAT was entitled to present their case in whatever manner they thought appropriate. If this involved testing a claimant’s evidence, the AAT should not adopt procedures that would fetter that cross-examination. This approach was followed by the AAT in Re Stoiche and Telstra Corporation Ltd

(1995) 40 ALD 369 and was endorsed in the South Australian Supreme Court (with reference being made to AAT authority) in BHP Co Ltd v Mason (1996) 67 SASR 456 at 464. It should be noted that the court in Hayes’ case pointed to a distinction between the non-disclosure of evidence that was taken into account by the decision-maker in making the original decision and matters that arose after that date. A special case would have to be made to deny the disclosure of the former. This distinction was affirmed in Oliveri v Administrative Appeals Tribunal (1997) 79 FCR 394; 50 ALD 190. [page 224] In contrast to these cases, President Matthews J in Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683 allowed access to documents that the respondent wished to keep from the applicant for the purpose of surprising him in cross-examination. She indicated that Hayes’ case represented the ‘high point’ for a party wishing to avoid disclosure and drew on the ‘ambush’ approach of traditional adversarial litigation. This should not be followed in the AAT. This decision was expressly applied to allow access to video evidence in Re Zito and Telstra Corporation Ltd (1995) 38 ALD 668. The only exception, it was said, would be if the only way in which to test the veracity of the applicant was by nondisclosure of the evidence. Oliveri’s case, above, also endorsed this line of approach. Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289; 76 ALD 389 was critical of the application of the approach in Hayes in the context of the presentation of evidence to a Royal Commission. The approach was described as the elevation of a useful forensic technique to the status of a mandatory legal rule. 13.17 A compromise position was posited by the AAT in Re Prica and Comcare (1996) 44 ALD 46 where it was allowed that the substance of a video might be withheld from an applicant in exceptional circumstances provided that the existence of the video and the intention to rely upon it in evidence were disclosed in advance: see the detailed analysis of Hayes’ case at 63–6. The issue was discussed at greater length in Re Bessey and Australian Postal Corporation [2000] AATA 404; (2000) 60 ALD 529 at [140]ff where further suggestions were made as to the manner in which the issues could be dealt with. However, the refusal of the Tribunal in that case to allow cross-examination based on an undisclosed

video was strongly criticised by the Federal Court on appeal and the decision overturned on the basis that there had been a breach of procedural fairness: Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508. The Tribunal in Re Moline and Comcare [2003] AATA 827; (2003) 77 ALD 224 accepted that the effect of the Federal Court decision was to prevent objection to the leading of video evidence without prior warning in the course of a hearing. However, it described the production of statements from medical practitioners without warning as ‘entirely unacceptable’ and a breach of the Commonwealth’s model litigant policy. It felt constrained to accept the material in evidence as it was relevant to the issues that had to be resolved, but it offered the applicant an adjournment to consider the material. The matter was revisited in Re Aunela and Telstra Corporation Ltd [2007] AATA 1392; (2007) 95 ALD 785. It was pointed out there that there had been two developments since the decisions referred to above. Section 2A had been included in the AAT Act directing the Tribunal as to the way in which it should go about resolving applications: see 1.6. Second, the Tribunal had issued a new Guide to the Workers’ Compensation Jurisdiction effective from 30 April 2007. Section 4.3 of that Guide provided in part: Respondents must also seek leave of the Tribunal at the hearing to rely on any material that has not been disclosed to the Tribunal and the other party prior to the [page 225] hearing. This includes video surveillance evidence or other material to be used in the cross-examination of a witness. Senior Member Constance, in a valuable guide to the approach to be adopted in these cases, continued (at [20]): The qualification expressed by the Court in Bessey, the amendments to the Act and the provisions of the new Guide cause me to conclude that Mr Aunela should be made aware of the existence of the surveillance video and reports. This will maximise the chances of a resolution of this matter as economically and quickly as possible and will allow the proper consideration of appropriate use of one or more of the alternative dispute

resolution processes available to the parties. It would be most undesirable that this matter be allowed to proceed through the extensive pre-hearing processes (including a conciliation conference) with Mr Aunela being unaware of the existence of potential evidence against him, which, on the argument of Telstra, may be critical in bringing the Tribunal to the conclusion that the decision under review should be affirmed. To do otherwise may be to cause unnecessary and substantial costs to be incurred by both parties, to delay the resolution of the application by several months and to increase the resources the Tribunal will need to allocate to resolving the dispute. In order to ensure that the respondent was afforded procedural fairness, the Tribunal ordered that the contents of the documents not be disclosed to the applicant until the Tribunal had given further directions. It indicated that such directions would ensure that the respondent be able to maintain its ability to cross-examine the applicant effectively. However, the existence of the purported evidence was disclosed to him. Such an approach to this problematic issue seems to provide the proper balance between the interests of the parties and it can be expected that it will be followed. See, for example, Re Towers and Optus Administration Pty Ltd [2011] AATA 832; (2011) 128 ALD 612 where the Tribunal used the language of refusing an access order but making a disclosure order. See also Re Karhani and Linfox Australia Pty Ltd [2011] AATA 506; (2011) 129 ALD 275 where the Tribunal was critical of the respondent for failing to produce video evidence that it had used to brief a medical practitioner but which was in fact favourable to the applicant’s case. 13.18 The Tribunal has now attempted to put the matter beyond doubt in its General Practice Direction and its Practice Direction Lodgement of Documents under Sections 37 and 38AA of the AAT Act which are reproduced on the AAT website. Video surveillance material is defined to include footage recorded in any format, any report relating to the footage and any log-sheets produced in connection with the footage. The directions require the lodgement and disclosure of any relevant video surveillance material unless there is a persuasive reason(s) in the particular circumstances of an individual case that requires the Tribunal to make a direction to the contrary. The fact that the credibility of another party is

[page 226] or may be in issue in the proceeding will not of itself be a sufficient reason for the Tribunal to make such a direction. Again subject to any order made by the Tribunal, if a party intends to rely on video surveillance material at the hearing of an application and that material has not already been given to the Tribunal and any other party, the party must give a copy of the material to the Tribunal and to any other party at least 28 days before the day on which the hearing is listed to commence. If video surveillance material has not been given to the Tribunal and any other party prior to the hearing in accordance with the Practice Directions or such other direction or order that the Tribunal may make, the party may not rely on the material as evidence in the proceeding without the leave of the Tribunal. These Directions largely accord with the position that the Tribunal and the court had reached as is set out above. In relation specifically to workers’ compensation proceedings where this issue seems most likely to arise, see also the Guide to Workers’ Compensation Jurisdiction on the AAT website. See 13.14 in relation to the disclosure of information to an applicant in proceedings in the Migration and Refugee Division.

SUMMONING OF WITNESSES: S 40A, REGS 11 AND 12 General power to issue summons 13.19 A person may be summoned to appear before the AAT to give evidence and/or to produce the documents that are referred to in the summons. This general provision does not apply to proceedings in the Social Services and Child Support Division, as to which see 13.25. A summons may be issued by the President, an authorised officer or an officer of the Tribunal. Usually a summons will be issued before the commencement of proceedings by an officer. Once the proceeding is under way, it is likely that the member presiding will issue the summons in his or her capacity as an authorised

member. However, a request to issue a summons can only be refused by the President or an authorised member: s 40A(2). The summons is to be in accordance with the relevant form set out on the Tribunal’s website. Administrative Appeals Tribunal Regulation 2015 (Cth) (AAT Regulation) reg 12 sets out the means by which a summons is to be served. See Re Pantazopoulos and Military Rehabilitation and Compensation Commission [2011] AATA 101; (2011) 121 ALD 148 for comments on the content of a summons. A summons to appear as a witness may only be issued to an individual but a summons to produce documents may be issued also to a company: Re Boyle and Commissioner of Taxation (2005) 87 ALD 377. [page 227] A summons issued by the Tribunal may subsequently be revoked, amended or varied by the Tribunal if good reason is shown: Re Perpetual Trustee Co (Canberra) Ltd and Commissioner for ACT Revenue (1993) 29 ALD 817; Re Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109; (2006) 91 ALD 691. The basis on which a summons issued by the Tribunal may be set aside is discussed in detail by DP Forgie in Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [203]ff. See also Re BLBS and Minister for Foreign Affairs and Trade [2012] AATA 464; (2012) 129 ALD 380. Regulation 13 of the AAT Regulation prescribes a witness’s expenses. Section 67 of the AAT Act designates who is liable to pay a witness the prescribed fees and allowances: see 20.6. A person who fails to appear before the AAT in accordance with a summons is liable to a penalty (s 61): see 20.3. If a witness so requests, the AAT may permit representation by counsel or a solicitor: s 32(4): see 13.1. Section 40A(3) allows a person simply to produce summoned documents at the Tribunal registry and not have to attend the hearing unless directed to do so. Section 40B authorises the President, an authorised officer or an officer of the Tribunal to give a party to a proceeding leave to inspect a document produced under a summons.

Discretion to issue 13.20 The power of the AAT to issue a summons is discretionary and an application may be refused. The general principles relating to the issue of subpoenas by a court are applicable to the issue of a summons by the AAT: Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432; Re Moore and Military Rehabilitation and Compensation Commission [2006] AATA 425; (2006) 90 ALD 417; Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289; Re Phillips and Inspector-General in Bankruptcy [2011] AATA 432; (2011) 127 ALD 113. The basis for the exercise of the discretion was summarised by DP Forgie in Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 at [42], after reviewing relevant judicial rulings, in the following terms: It is apparent from these cases that the court will take into account the relevance of documents sought to the issue in dispute before the court. Their relevance does not need to be established on the balance of probabilities. All that need be established is that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not enough if their relevance can only be speculated upon. Regard must also be had to the burden placed upon the person from whom the books, documents or things are sought and that must be weighed against the public interest in the administration of justice that requires all material relevant to the issues to be available to the parties and to the court. Given the principles, which underpin the Tribunal and to which I have referred, these principles are equally applicable to the interpretation of s 40(1A). [page 228] The issuing, refusal to issue and revocation of a summons require compliance with the rules of natural justice: Phillips’ case, above, at [48]. In Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711 it was observed that it would be unusual to issue a summons to a party to the application for review to produce documents. The decision-maker’s

obligation to produce was covered by s 37 of the AAT Act: see 12.2. In regard to the applicant, the directions power should be sufficient to ensure that all relevant material was before the Tribunal. See also Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [120].

‘Fishing’ summons 13.21 An example of the exercise of the discretion not to issue a summons is the decision in Re Michell Sheepskins Pty Ltd and Australian Trade Commission (1986) 9 ALN N244. There the AAT refused an application to direct a number of companies which had made successful applications for export grants to produce relevant documents. The applicant hoped thereby to demonstrate that its application for a grant had been unfairly refused. The AAT said that a distinction had to be drawn between an application to obtain material to support a case and an attempt to discover whether an applicant had a case at all. ‘Fishing’ summonses were also refused in Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432; Re Carpenter and Comcare [2003] AATA 665; (2003) 75 ALD 587; Re Mika Engineering Holdings Pty Ltd and Commissioner of Taxation [2006] AATA 634; (2006) 92 ALD 688 (where the summons directed to the decision-making officers to appear was to test whether they acted in good faith in making the decision under review); Re Phillips and Inspector-General in Bankruptcy [2011] AATA 432; (2011) 127 ALD 113 at [51]; Re Tsartas and CSL Ltd [2012] AATA 485; (2012) 129 ALD 664 (summons to produce list of treating medical practitioners refused where no knowledge that any treatment had been sought). In Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711, the Tribunal refused to issue a summons to produce documents relating to other taxation decisions. These documents were sought to show that the decision under review was inconsistent with the other decisions. The Tribunal said that its task was to review the facts before it and reach a conclusion on what was the correct and preferable decision.

Test for issuing 13.22 The test for the issuing of a summons is whether the documents being sought are relevant to the application before the Tribunal. In Comcare v Maganga

(2008) 101 ALD 68 at [37] Bennett J summarised the basis for determining ‘relevance’ as follows: A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything. Rather, the test is whether [page 229] the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings. Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation or if they might be used for a legitimate forensic purpose in cross-examination [citations omitted]. See also Re Carpenter and Comcare [2009] AATA 988; (2009) 114 ALD 289; Re Shiraz Nominees Pty Ltd and Federal Commissioner of Taxation [2003] AATA 778; (2003) 77 ALD 183; Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [135]; Re Dunstan and Comcare [2009] AATA 843; (2009) 113 ALD 176; Re Smith and Commissioner of Taxation [2009] AATA 747; (2009) 115 ALD 13; Re Phillips and Inspector-General in Bankruptcy [2011] AATA 25; (2011) 120 ALD 134. Documents may not be sought for a purpose other than the review of the decision before the Tribunal: Phillips’ case, above, at [11]ff. Re Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109; (2006) 91 ALD 691 noted that a summons should be refused if it was not issued for a legitimate forensic purpose or was too general. In that case production of personnel records of prospective witnesses was refused because they were sought only for credibility purposes and the bulk of the material on the file would not be relevant to the issues before the Tribunal. It was also pertinent to take into account that they would constitute an invasion of the privacy of the persons concerned. However, no objection can be taken to a summons to

produce documents solely on the basis that the documents are concerned only with the credibility of an applicant or witness if that credibility is an issue in the proceeding: Comcare v Maganga, above, at [30]. The issue of a summons may be refused because it is considered oppressive, for example, if to meet its requirements a stranger to the proceedings has to form an opinion as to what documents are relevant to those proceedings: Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 472; 34 ALD 239 at 256. See also Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711 at [66]. However, the fact that a person may have to seek legal advice to be informed how to identify documents falling within the demanded class is not of itself sufficient ground for holding a summons oppressive: Re Perpetual Trustee Co (Canberra) Ltd and Commissioner for ACT Revenue (1993) 29 ALD 817 at 821.

Effect of other legislation 13.23 An issue can arise where access is sought to documents in relation to which other legislation imposes secrecy requirements. For example, the Health Insurance Act 1973 (Cth) prevents the disclosure of a person’s medical records except in circumstances that are spelled out in the Act. Those circumstances do not include a reference to a Tribunal hearing. In Re Rayson and Repatriation Commission [2008] AATA 1063; (2008) 109 ALD 137 the Tribunal said that its general power to summon [page 230] documents did not override the specific secrecy provision. However, it noted that the applicant in the matter could obtain the records and could make them available to the Tribunal. When the applicant declined to do this, the Tribunal determined that it could give him a direction under s 33(2A) of the AAT Act to obtain and lodge with the Tribunal the relevant documents: Re Rayson and Repatriation Commission [2009] AATA 231; (2009) 109 ALD 168; Re Flanagan and Comcare [2011] AATA 446; (2011) 129 ALD 269. See the general and wideranging discussion of the right of a tribunal to seek information where a secrecy/confidentiality provision applies: Kalis v Kingsborough Council [2014] TASFC 2; (2014) 200 LGERA 455.

See also s 247A(4) in relation to requiring the production of documents to which privilege and confidentiality applies. In regard to the effect of the Privacy Act 1988 (Cth) on the power to summons evidence, see the conflicting views expressed in Re Dunstan and Comcare [2009] AATA 843; (2009) 113 ALD 176 at [11] and Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [225]ff.

Other issues 13.24 Where the material sought may be of relevance in proceedings and its production would not be oppressive, the better course is for the AAT not to exercise the discretion to refuse to issue a summons: Re Medtest Pty Ltd and Medicare Participation Review Committee [2003] AATA 983; (2003) 76 ALD 788. In regard to the enforcement of a summons, see the general discussion in Re Tang and Minister for Immigration and Citizenship [2012] AATA 330; (2012) 132 ALD 105 at [121]. The case indicates that the AAT usually takes no steps to require a person to comply with a summons but leaves it to the party at whose request the summons was issued to pursue it. However, as the discussion indicates, there can be circumstances where the Tribunal needs to be more proactive such as where the applicant is unrepresented (see 13.4) or where the Tribunal cannot reach a conclusion without further evidence: see 13.27 for summoning of witnesses on the Tribunal’s initiative. The AAT can compel a search for documents if it is not persuaded that all steps to identify material have been taken: Re Anti-Fluoridation Association (Vic) and Secretary, Department of Health (1985) 8 ALD 163 at 168. The issue of a summons is probably a decision of the AAT that is reviewable on error of law grounds under s 44 of the AAT Act: cf Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432. However, that section may only be invoked by a party to the proceedings. In Pancontinental Mining Ltd v Burns (1994) 52 FCR 454; 34 ALD 239 the court ruled that a person who was not a party but was affected by a summons could challenge its issue under the AD(JR) Act. Power is sometimes given to a decision-making agency to require a person to supply information to it. In Re Quick and Comcare [2010] AATA 209; (2010)

[page 231] 115 ALD 451 at [23] it was suggested by the Tribunal that such a power should not be exercised once a matter is before the Tribunal. Rather the Tribunal’s summons power should be the basis employed for the production of documents. In relation to the release of documents that have been produced in response to a summons, see 17.32–17.34.

Social Services and Child Support Division 13.25 Section 147 of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) provides that s 40A of the AAT Act does not apply in relation to first reviews. Instead, specific power is given under the social welfare legislation for the AAT on a first review to give notice to a person to give information or produce a document to the AAT within the time and in the manner specified in the notice: see, for example, Social Security Administration Act s 165A. The Tribunal may also request the Secretary to use the power vested in him or her by s 192 of that Act to require a person to provide information: Social Security Administration Act s 166. The provisions of the AAT Act that complement the summons power are therefore also inapplicable to first reviews.

Migration and Refugee Division 13.26 Sections 359 and 424 of the Migration Act empower the Tribunal to get information that it considers relevant. The Tribunal may invite a person (which would include the applicant), either orally or in writing, to give information to the Tribunal. If the Tribunal obtains information pursuant to one of these sections, it must have regard to that information in making its decision on a review. If the information sought is not provided, the Tribunal may make a decision without taking any further action to obtain the information: ss 359C, 424C. Sections 361 and 426 permit an applicant who has been invited to appear before the Tribunal to ask the Tribunal to obtain evidence from another person. The Tribunal is to have regard to such a request but is not obliged to adhere to it.

Sections 363(3) and 427(3) empower the Tribunal to summon a person to appear and give evidence or produce documents. This power can only be exercised in respect of a person who is in Australia: ss 363A(4), 427(4).

INVESTIGATION BY TRIBUNAL General approach 13.27 Section 33(1)(c) provides for the AAT to ‘inform itself on any matter in such manner as it thinks appropriate’: see 9.1. This empowers the Tribunal to summon a witness to appear at a hearing — it does not have to act only on the initiative of a party. However, this power is seldom exercised. For an example, [page 232] see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 635. Almost from the time of its establishment, the AAT has not seen the seeking of evidence on behalf of an applicant as part of its duty: Re A and Department of Transport (1978) 2 ALD 98. This is particularly the case where the parties themselves have not wanted a witness to be summoned: Re Achurch and Comcare (2003) 77 ALD 531 at [17]. However, where the evidence has left the Tribunal uncertain as to the condition of an applicant, it has used its powers to require the attendance of a medical practitioner: Re Lampitsi and Commonwealth (1983) 5 ALN N314; Re Bessey and Australian Postal Corporation [2000] AATA 404; (2000) 60 ALD 529 at [23]. It has also been prepared to require the respondent decision-maker to make further inquiries: Re Hanrahan and Repatriation Commission [2008] AATA 369; (2008) 102 ALD 399 at [22], nonetheless stressing that it is not the Tribunal’s task to make the applicant’s case. The Tribunal has declined to require an applicant to give evidence to the AAT: Re AK and Commissioner for Superannuation (1986) 11 ALN N106. The failure of the applicant to give evidence might be commented upon and is likely to affect greatly the chance of success but ‘[t]hat is the applicant’s risk. If he chooses to take this risk, then we do not consider the tribunal should compel him to behave otherwise’ (at N108). In Re Australian Petroleum Supplies Pty Ltd and

Giuliano [2001] AATA 1050; (2001) 66 ALD 676 the Tribunal noted that the applicants who failed to give evidence were legally represented, had been put on notice by the Tribunal that it considered their evidence to be lacking, and could be presumed to have been advised of the consequences of their action. Greenwood J in Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272; 249 ALR 762 affirmed that the general law relating to the obligation of a decision-maker to make inquiries when reaching a decision applied also to the AAT. The frequently cited statement of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169; 7 ALN N79 at N82 was applied: It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court finds that the sounder course would have been to make inquiries. But in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

Effect of decisions relating to migration tribunals procedure 13.28 The Migration Act ss 359 and 424 provide that the Tribunal has a power in conducting a review to ‘get any information that [the Tribunal] considers relevant’. These provisions will apply to proceedings in the Migration and Refugee Division [page 233] of the AAT. Their application to the former Migration Review Tribunal and Refugee Review Tribunal (RRT) generated a number of decisions examining their effect on the conduct of hearings by the tribunals which will be applicable

to proceedings in that Division. The decisions also seem pertinent to the operation of s 33(1)(c) of the AAT Act in its application to proceedings in the AAT generally. (The power to ‘get’ information given by ss 359(1) and 424(1) is not limited by the power in ss 359(2) and 424(2) to ‘invite’ a person to give information to the tribunal: Minister for Immigration and Citizenship [2009] HCA 30; (2009) 238 CLR 489; 110 ALD 238 at [42].) The starting point of any consideration of the obligation of the Tribunal to inquire into matters relevant to a proceeding before it is the decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15. When considering this case, it is important to remember that review of an appeal from the migration tribunals and henceforward the Migration and Refugee Division is based on the establishment of jurisdictional error. Nonetheless the general principle adumbrated by the High Court seems applicable to appeals relating to proceedings in the AAT generally. In SZIAI French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25] said: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. This statement was cited with approval by Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 297 ALR 225 at [100]. For an example of its application see Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241 at [73]. 13.29 Of particular applicability to appeals in the Migration and Refugee Division is Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; 119 ALD 1. Complementing ss 359 and 424 is a specific power in ss 363(1)(d) and 427(1)(d) for the Tribunal to require the Secretary to arrange a medical examination of an applicant. In that case it was asserted that the

applicant suffered from mental health problems and the failure of the RRT to request an examination and investigate the applicant’s state of health breached both s 424 and s 427. French CJ and Kiefel J said at [20] and [22]: Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant’s [page 234] claims. But they do not impose upon the Tribunal a general duty to make such inquiries. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 43: … whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. … The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) ‘[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power’ at [25]. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d). See also SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 144 ALD 525 at [80].

The approach discussed here was alluded to in an appeal from an AAT decision by Kenny J in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; 97 ALD 112. Her Honour said at [60] that, while there is no general obligation to make inquiries, such an obligation may arise in ‘rare or exceptional circumstances’. In that case a crucial document relied upon by the Tribunal raised obvious issues as to its accuracy. Her Honour said that to make no inquiry in such a case could result in the ultimate decision being considered Wednesbury unreasonable. However, she noted that this will be a most unusual circumstance. These comments were expressly or impliedly endorsed in relation to appeals from migration tribunals in SZMCE v Minister for Immigration and Citizenship [2008] FCAFC 1803; (2008) 105 ALD 508; MZXTZ v Minister for Immigration and Citizenship [2009] FCA 888; (2009) 110 ALD 577. Kenny J’s comments were applied in SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14; 98 ALD 270 at [60] to set aside a decision where the RRT did not make further inquiries in relation to a fax purporting to contain relevant information but which comprised only the cover sheet and not the five pages in support. Flick J, at first instance, made the following observations in SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22 at [26] in regard to the RRT and they would seem applicable to the position of the AAT both in its Migration and Refugee Division and generally: Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant [page 235] information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce … And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual — an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to

live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration. 13.30 The Tribunal will not be in breach of any obligation to make further inquiries where there is no apparent line of inquiry open for it to pursue: Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44; (2011) 191 FCR 345; 120 ALD 423; Patel v Minister for Immigration and Border Protection [2015] FCAFC 22; (2015) 145 ALD 566 at [40]. In Patel’s case, Flick J said at [45]: It is not every case in which there is a conflict in evidence that requires an independent decision-maker to undertake its own inquiries or secure the provision of further information which is not presently available to either the claimant or the government agency. Indeed, such cases it may readily be expected are the exception rather than the rule. Nor can a duty to secure further information be transferred by a claimant to an independent decision-maker simply by a claimant providing information that conflicts with the information available to a government agency. And that is the case even where a claimant has attempted, unsuccessfully, to obtain further information. In that case at [41] Flick J also alluded to the relationship between the duty of the MRT (and thus the Migration and Refugee Division) to inquire and its duty to review the decision before it. His Honour noted that the remarks of the High Court from SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22 referred to above: … are not to be construed as detracting from the fundamental task entrusted to the Migration Review Tribunal by the Commonwealth legislature to undertake a ‘review’. Well short of any ‘duty to inquire’ and entirely separate from any consideration of improperly imposing an onus of proof upon a government agency participating in an administrative review, there may be circumstances in which a ‘review’ as contemplated by the legislature may not be lawfully carried out if relevant and available materials are not placed before the Tribunal. Bennett J in Aporo v Minister for Immigration and Citizenship [2009] FCA 79; (2009) 107 ALD 54 said that the AAT had not erred in failing to inquire into the provenance of documents relied upon by the respondent where the applicant had not put the issue in question.

Rejection of evidence on the basis that its veracity had not been established but where inquiry by the RRT could have determined the issue one way or the other was an error of law: SZQVM v Minister for Immigration and Citizenship [2013] FCA 5; (2013) 139 ALD 81 at [96]–[99]. [page 236]

The AAT’s role: adversarial system 13.31 The foregoing cases demonstrate the influence of the adversarial system on the AAT’s procedures. It can be seen that the AAT will not go searching for evidence and will largely rely on that which the parties present to it. This will be more particularly so when the parties are represented by counsel: Re Roche and Commonwealth (1988) 16 ALD 787. Nor will the AAT conduct a general inquiry into the subject matter of the decision in question even though this may be pertinent to arriving at the correct and preferable decision: Re D J Moran Managements Pty Ltd and Minister for Community Services (1986) 11 ALN N181. The AAT will reach its decision having regard to what the parties present unless there has been a failure to provide readily available evidence that the AAT sees as essential to its conclusion. This approach was not that which was in the mind of many of those advocating the establishment of the Tribunal. However, when regard is paid to the AAT’s resources, the approach adopted is hardly surprising. The AAT has simply not been funded to the extent that pursuit by it of an inquisitorial role is possible. It does not have investigators who can search for evidence nor persons who can perform a counsel assisting role. This is not to say that the AAT should simply sit back and act only on what the parties choose to present. Its task is to reach the right decision on the facts, not just rule on what the parties invite it to pronounce upon. However, its capacity to influence material to which it may have regard in reaching its decision is markedly limited. See also Re Kowalski and Repatriation Commission [2008] AATA 903; (2008) 107 ALD 447 at [35]; Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [163].

INSPECTION ORDERS: S 40B General right of inspection 13.32 Section 40B of the AAT Act provides for leave to be given for a party to inspect a document or other thing produced under a summons. Whichever way the Tribunal has ruled on an application for leave to inspect, a party may request the Tribunal to review that decision (s 40B(3)). The precursor in the AAT Act to this provision (s 40(1D)) was discussed in Re BLBS and Minister for Foreign Affairs and Trade [2012] AATA 464; (2012) 129 ALD 380. It was noted that it would still be possible for a person to raise an objection to disclosure at this stage of the proceedings on grounds such as public interest privilege which would require the Tribunal to undertake a balancing act of the same kind as if the objection had been taken at the time of issue of the summons to produce the documents. Further, it was desirable to make a formal order even where the documents were produced without objection in order to attract the protection of the documents not having to be produced in other proceedings (see 17.32–17.34) and to make orders relating to the access to the documents. [page 237]

Social Services and Child Support Division 13.33 The right to seek inspection does not apply to applications in the Social Services and Child Support Division: see 13.25.

Migration and Refugee Division 13.34 Section 362A of the Migration Act provides for an applicant seeking review of a Part 5-reviewable decision to have access to any written material given or produced to the Tribunal for the purposes of the review. Excepted from this right of access is material which the Privacy Act 1988 (Cth) requires not to be disclosed and documents or information the disclosure of which the

Minister has certified would be contrary to the public interest: Migration Act ss 375A, 376. There is no right of access to material relating to a Part 7-reviewable decision.

ADMINISTRATION OF OATH: S 40(2), (3) 13.35 The member presiding at the hearing of a proceeding before the AAT will usually require a person appearing before it to give evidence either to take an oath or make an affirmation. An interpreter will also be required to take an oath or make an affirmation. See the General Practice Direction. The AAT is not required to take evidence on oath: Secretary, Department of Social Security v Jordan (1998) 83 FCR 34; 49 ALD 496. The power to require evidence to be given on oath is applicable to proceedings in the Migration and Refugee Division: Migration Act ss 363, 427.

TAKING OF EVIDENCE: S 40 13.36 The AAT may take evidence from persons appearing before it. Evidence may be taken other than at a hearing by the member presiding or by any other person authorised by the member. Such evidence may be taken within or outside Australia: s 40(4). A person who refuses or fails to answer a question that he or she is required to answer or who refuses or fails to produce a document that he or she is required to produce by summons under the Act is guilty of an offence under s 62. A person who knowingly gives false or misleading evidence to the AAT is guilty of an offence: s 62A; see 20.3. The AAT is not obliged to act only on oral evidence. Sections 364 and 428 of the Migration Act allow the taking of evidence in the Migration and Refugee Division by a member conducting a review or another person authorised by that member. The evidence may be taken inside or outside Australia. An authorised person has all the relevant powers of the Tribunal. Sections 361 and 426 of the Migration Act permit the applicant to request the Tribunal (by written notice given within seven days of the invitation to appear

[page 238] before the Tribunal) to obtain oral evidence from a person named in the notice. Sections 361(3) and 426(3) provide that the Tribunal must have regard to the applicant’s request but is not required to obtain evidence from the person named. However, while subs (3) clearly gives the Tribunal a discretion whether to seek evidence from the person named, it must nonetheless ‘genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice’: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 at [37]–[38]. See also CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 where it was held that the notice to request the obtaining of evidence had not been properly considered. See 13.25 in relation to proceedings in the Social Services and Child Support Division.

EXPERT EVIDENCE 13.37 In relation to expert evidence generally, see 9.27. The General Practice Direction which in turn refers to the AAT’s Guidelines for Giving Expert and Opinion Evidence should be consulted on the procedures to be followed.

CONCURRENT EVIDENCE 13.38 The Tribunal uses the concurrent evidence procedure (known colloquially as ‘hot tubbing’) whereby expert witnesses give evidence at the same time and are questioned together rather than separately. The circumstances for adopting this procedure and the manner of carrying it out is set out in the Use of Concurrent Evidence in the AAT Guideline reproduced on the AAT website. See also the discussion in Re King and Military Rehabilitation and Compensation Commission (2005) 83 ALD 322 at 327. This procedure is seen as being particularly useful when competing medical

evidence is to be given: Re Turner and Repatriation Commission [2002] AATA 799; (2002) 71 ALD 148 at [48].

TAKING OF ‘VIEW’ 13.39 Where appropriate the Tribunal will take a ‘view’ for the purpose of better understanding the evidence in a case. The use which the Tribunal might make of a view was discussed by DP Forgie in Re Tascone and Australian Community Pharmacy Authority [2011] AATA 724 at Attachment C. It was said there that, in general terms, [page 239] there was no difference in the role of a view in judicial proceedings and tribunal proceedings. Judicial authority was cited at [127]: Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in evidence … This might be contrasted with the statement of the Victorian Supreme Court in Norville Nominees Pty Ltd v Strathbogie Shire Council [2008] VSC 339; (2008) 29 VAR 309 at [15] in regard to the Victorian Civil and Administrative Tribunal: ‘the Tribunal is entitled to treat its observations on a view as evidence in a proceeding and not merely as an aid to understanding evidence given before it at a hearing’. Perhaps the best that can be said at present is that any use by the Tribunal of a view must accord with the rules of procedural fairness and that it must be apparent that the view will assist understanding and will not disadvantage a party to the proceedings: Re Yu and Civil Aviation and Safety Authority [2005] AATA 274; (2005) 85 ALD 57.

TELEPHONE AND VIDEO HEARINGS: S 33A 13.40 One of the most innovative procedural practices adopted by the AAT occurred soon after it commenced operation, namely to conduct hearings by telephone. The practice was given statutory recognition by the inclusion in the AAT Act of first s 35A and now s 33A. The power extends to any ‘other means of electronic communication’. It would seem that the provision is no more than declaratory of a power that the AAT had in any case under s 33. The General Practice Direction spells out the circumstances in which evidence might be taken by telephone or closed circuit television, the procedures that should be followed and the costs that will have to be paid. For an example of the application of these procedures with particular emphasis on their impact on the rules of natural justice see Re Hessing and Telstra Corporation Ltd (1995) 38 ALD 449. Issues have arisen in regard to the weight to be given to evidence taken by telephone or video. In Re SB and Director-General of Social Services (1981) 3 ALN N153, the applicant was permitted to give sworn evidence in such a hearing, but the AAT observed that whether it would so act in other cases would depend on the particular circumstances. In Re Opitz and Repatriation Commission (1992) 25 ALD 794 the AAT remarked that it would regard unsworn evidence given by telephone as simply a version of the events as it conflicted with sworn evidence previously given by the applicant in the course of criminal proceedings. The use of technological methods for taking evidence is at the discretion of the Tribunal. In Omran v Australian Postal Commission (1991) 14 AAR 51 at 54 the Federal Court questioned the use of telephone hearings where the credibility of a witness [page 240] was important to the outcome of a case. In Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97 the court suggested the desirability of video evidence where the witness’s credit was an issue in the case. However, the view may be

taken that, even in the case of video evidence, the credibility of a witness can only be properly resolved by personal examination. The Tribunal has refused requests for an applicant to be allowed to give evidence from overseas by video-link where the reasons for not wishing to return to Australia were in themselves not persuasive when weighed against the desirability of personal attendance: Re Murray and Commissioner of Taxation [2011] AATA 837; (2011) 129 ALD 6; Commissioner of Taxation v Seymour [2015] FCA 320 (fear of being arrested or being prevented from leaving Australia following return); Re Murray and Commissioner of Taxation (No 2) [2012] AATA 450; (2012) 133 ALD 423; Re Dunn and Commissioner of Taxation [2012] AATA 486; (2012) 129 ALD 638 (fear of air sickness). In Murray (No 2) the Tribunal made it clear that it was up to the applicant to persuade the Tribunal that the ordinary hearing procedures should not be followed. Contrast with these decisions Re The Overseas Applicants and Commissioner of Taxation [2014] AATA 788 where the Tribunal was persuaded that the applicants’ fear that, should they return to Australia, they would not be allowed to leave the country was sufficient basis for permitting them to appear by video link or telephone. The exercise by the Tribunal of the discretion to permit evidence to be given by telephone did not in itself constitute an error of law such as to give a basis for an appeal nor did the fact that, in its reasons for decision, it did not indicate that to have been the mode of receipt of the evidence: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [34]. While these matters may present problems in particular instances, overall much is to be gained in the AAT achieving its purpose of providing increased access for persons affected by government decisions to seek review by not requiring personal attendance before the AAT. There is also a considerable saving in the AAT not having to travel to remote locations. Section 33A(2) proscribes the use of telephone or teleconference facilities in relation to security appeals. Sections 366 and 429A of the Migration Act permit oral evidence to be given by telephone or other electronic means in applications being heard in the Migration and Refugee Division.

INTERPRETERS AND PEOPLE

WITH DISABILITIES 13.41 A person is entitled to seek the assistance of an interpreter in the same way as this service is available in judicial proceedings: see the General Practice Direction. The Tribunal will in general require interpreters to be accredited and will not usually allow family members, friends or representatives to interpret. [page 241] Sections 366C and 427(7) of the Migration Act make provision for the use of interpreters in migration and refugee appeals. The cases referred to below involve appeals under that Act but seem applicable also to the AAT acting in its general jurisdiction and are clearly applicable to hearings in the Migration and Refugee Division. On the use of interpreters generally, including the circumstances in which inadequate interpretative facilities can lead to a decision being set aside, see the discussion in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; 56 ALD 231. Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]–[18] sets out a test for determining whether interpreting has been adequate. It was applied in SZQNC v Minister for Immigration and Citizenship [2012] FCA 857; (2012) 131 ALD 257. See further the extended discussion of whether proceedings involving interpretation can properly be characterised as ‘fair’ in SZMRQ v Minister for Immigration and Citizenship [2013] FCAFC 142; (2013) 219 FCR 212; 139 ALD 436 at [9]–[25], [45], [75]. SZMRQ was applied in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 to hold that the level of mistranslation made it unsafe for the tribunal to rely upon it. In that case a claim that the tribunal member had, in effect, delegated the hearing of the appeal to the interpreter was rejected. People with disabilities will need to inform the Tribunal of any difficulties associated with their participation in a hearing. The Tribunal will then try to arrange appropriate assistance: see the General Practice Direction.

CROSS-EXAMINATION

General position 13.42 Except in the Security Division and the Migration and Refugee Division, cross-examination of parties and witnesses is permitted as in any judicial proceedings. However, the Tribunal hearing an application has a discretion whether to allow such action, bearing in mind the requirements of procedural fairness to the parties: Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 423. Wilcox J said in Australian Postal Commission v Hayes (1989) 23 FCR 320 at 326– 7; 18 ALD 135 at 140–1 that the right to cross-examine means the right effectively to cross-examine and that if directions given by a court or tribunal have the effect of fettering cross-examination such that the evidence of a witness cannot be tested, procedural fairness has been denied. This statement was endorsed by Bennett J in Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68 at [27]. Her Honour added that, in a case where there is a dispute as to an issue which cannot be established by independent objective evidence and a rejection of the claimant’s account is likely to be critical, the right to cross-examine effectively must include the right to test the [page 242] credit of the claimant. There a refusal by the AAT to permit the decision-maker to issue a summons to produce documents meant that it was denied the opportunity to cross-examine the applicant effectively. However, Jessup J in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 133 ALD 39 at [74] rejected the suggestion that Wilcox J was saying cross-examination must be permitted in all cases. It is clear that the AAT, like any other Tribunal, has the power to control its proceedings and can thereby place limits on cross-examination. The Tribunal is ‘plainly entitled to control the hearing and to limit examination or cross-examination so as to ensure some semblance of relevance to the real issues’: Lawrance v Chief Executive Officer, CRS Australia [2006] FCA 341; (2006) 42 AAR 539 at [30]. See also R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 34–5; 29 ALR 289 at 305; Minh Dung Luu v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 304 at 314; 157 ALR 213 at 223–4; Editorial, ‘Limiting Cross-examination’ (2007) 15 Australian Journal of Administrative Law 6. The AAT recognises the value of cross-examination to the resolution of issues before it but it also acknowledges that the inability to cross-examine a witness does not mean that the evidence is to be disregarded, again bearing in mind the need to afford the parties procedural fairness: Omran v Australian Postal Commission (1992) 15 AAR 232. In Re Kelly and Comcare [2006] AATA 700; (2006) 93 ALD 658 at [36] the Tribunal expressed concern ‘that a practice not develop whereby unsworn statements filed by a party in accordance with the Tribunal’s directions are used to cross-examine the other party in circumstances where the makers of those statements are not called to give evidence’. It said that the practice could give rise to undue pressure being put on a party to compromise a claim when ultimately no-one verified the statements in respect of which the party has been crossexamined. For a general discussion of the types of matters that may be put to a witness in the course of cross-examination going to credibility, see Re MacFarlane and Comcare (1998) 58 ALD 304.

Security Division 13.43 Section 39A of the AAT Act deals with the procedure to be followed on review of security assessments. There is no express provision in the section denying the right of an applicant to cross-examine persons appearing in the review proceedings. However, the limitations on the evidence that may be given and an express provision in s 39A(17) permitting a Tribunal member to ask questions of a witness indicate that cross-examination would not usually be open to an applicant. [page 243]

Migration and Refugee Division 13.44

Sections 366D and 427(6)(b) of the Migration Act expressly exclude

the right of an applicant to cross-examine a person appearing before the Tribunal to give evidence on an application being dealt with in this Division.

REOPENING HEARING 13.45 If it is the duty of the AAT to hear all relevant evidence before reaching a decision on what is the correct decision, surely it should be possible to present evidence up to the moment when the AAT’s decision is given? Such was the effect of the argument of counsel in Re Defiance Milling Co Pty Ltd and Export Development Grants Board (No 2) (1986) 11 ALN N230. The Tribunal rejected it and refused to allow the hearing to be reopened. It noted that the evidence was available at the time of the hearing and both parties were represented by counsel. What was being sought was in fact a second opportunity by the respondent to present its case. The application to reopen received more sympathetic treatment in Re Gomez and Commonwealth (1988) 15 ALD 784. The Tribunal summarised the law as follows at 785: Fresh evidence should be admitted ‘only when it is so material that the interests of justice require it, and the evidence if believed would probably affect the result, and further that the evidence could not by reasonable diligence have been discovered before’: Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 (Watson’s case). In Murray v Figge (1974) 4 ALR 612 it was added that fresh evidence should be admitted after it had been left out by inadvertence of counsel, where the evidence was admissible, it was ensured its admission would cause no prejudice to the other party, and it was in the interests of justice for the evidence to be allowed. However, a matter should not be reopened merely to permit a party to fortify evidence adduced in the first instance by calling witnesses who might easily have been made available before, if due diligence had been shown: Betts v Whittingslowe (No 1) [1944] SASR 163. Nor would it be reopened where evidence had been deliberately withheld: Hughes v Hill [1937] SASR 285. In the Gomez case the evidence sought to be introduced had not been available at the time of the hearing. The AAT only agreed to allow the new evidence to be admitted if the applicant was also available for further cross-examination.

Two later decisions of the Federal Court, while not relating to AAT hearings, indicate that the issue may have been stated a little too inflexibly in Gomez. While the matters referred to there are relevant to the exercise of the discretion whether or not to allow a case to be reopened, they should not be regarded as stating the whole picture. Full Federal Courts in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128; 117 ALR 361 and Boucher v Australian Securities Commission (1996) 71 FCR 122; 44 ALD 499 emphasised that the issue turns on the trial court’s (and thus the Tribunal’s) view of the appropriateness of reopening a matter after the end of the hearing. [page 244] It was indicated that the interests of justice provide the only real guidance. If procedures can be adopted that will ensure that each party is treated fairly and is not embarrassed by the reopening of the case, evidence that is relevant to the outcome should be admitted. The conduct of the parties will presumably be a consideration to take into account in reaching a conclusion but will not necessarily be determinative. In Boucher, above, emphasis was also placed on the difference in roles of courts and tribunals. The latter are required to reach the correct and preferable decision so should not be constrained by limitations that courts have adopted for curial proceedings. In that case, the principal discussion was directed to whether reopening the proceedings would constitute a breach of procedural fairness. These decisions seem to be strongly supportive of reopening hearings provided that the interests of the parties will not be adversely affected. However, the decisions pay little heed to the need for finality in proceedings, particularly in regard to high volume jurisdiction tribunals. It is suggested that a relevant factor should be whether a party has had adequate opportunity to present his or her evidence. If this opportunity is not taken, it should not be readily open for a party to ask for further time as this can only be at the cost of the Tribunal’s capacity to comply with its obligation to deal with cases expeditiously. It is suggested that the approach in Gomez, above, did, in fact, reflect a reasonable balance between justice and efficiency of operation. It also accords with the direction as to the management of the operation of the Tribunal in s 2A: see 1.6–1.8.

See further the thorough and detailed discussion of the issues by Fice SM in Re Confidential and Commissioner of Taxation [2013] AATA 382; (2013) 135 ALD 609. See further 17.26 and 17.30.

REMITTED MATTER: PROCEDURE 13.46 Section 44(5) of the AAT Act provides that the court on an appeal from the AAT may make ‘an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court’. It can be seen that the court can control the nature of the hearing on the remittal by the directions that it gives. However, the court usually makes a more generalized order referring the case to the Tribunal to be reheard. Issues have arisen as to the nature of the rehearing in the absence of specific directions. The first matter to note is that the fact of the case being referred back to the AAT by the court overcomes any argument that the AAT is functus officio (see 17.26) or that an estoppel (see 17.7) arises preventing reconsideration of the matter: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 388; 51 ALD 519 at 533. The Tribunal in Re Dunstan and Comcare [2012] AATA 567; (2012) 130 ALD 370 at [210] summarised the general approach, based on previous decisions, that the [page 245] Tribunal should follow in dealing with an application remitted to it. The passage reads (omitting authorities): (1) the Tribunal must determine the scope of its powers on a remittal by reference to the order made by the remitting Court: (a) where the order is ambiguous or vague, it is permissible to have regard to extrinsic material including the reasons for judgment; (2) the Tribunal is bound by the law as determined by the remitting Court; and

(3) unless the terms of the Federal Court’s remittal require otherwise, the Tribunal is not bound by the findings of fact or concessions made by the Tribunal which heard the application on an earlier occasion: (a) the Tribunal may choose to adopt findings of fact made by an earlier Tribunal or as stated by the Federal Court if to do so is not contrary to its fact finding duty; and (b) consistent with its duty to find facts, the Tribunal may accept facts as agreed between the parties or conceded by one or other of them. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518; 72 ALD 577 Gleeson CJ at [18] decided that a finding of fact to be made following the re-hearing ‘does not require that the hearing be conducted on the basis that any favourable findings of fact, made in the course of the decision that was set aside by the Full Court, be somehow preserved for [the applicant’s] benefit’. At [45], McHugh J said ‘the Tribunal was not bound to make the same findings as it did on the first occasion’. At [68], Gummow and Hayne JJ said ‘[w]hether any findings from the first review would be preserved would entirely depend upon the view formed by the tribunal in conducting the second review’. These dicta were applied in Re Woodall and Repatriation Commission [2015] AATA 163 by the presiding member to enable him to revisit findings that he himself had made on a previous hearing that had been set aside. 13.47 A significant issue with which the Tribunal has had to deal following a remittal of a matter is to what evidence it may have regard. Unless the order of the court referring the matter back expressly forbids it, the AAT may receive further evidence: Repatriation Commission v Yates (1997) 46 ALD 487; Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 123 ACTR 17 at 25. This approach extends to permitting a party to resile from a concession on the evidence given at the previous hearing: Re Roncevich and Repatriation Commission [2006] AATA 660; (2006) 91 ALD 662 at [21]; Re Farley-Smith and Repatriation Commission [2010] AATA 637; (2010) 125 ALD 249. A question arises whether the new evidence must be relevant only to the issue that has been remitted to the Tribunal for reconsideration or whether it is possible for new issues to be raised. Part of the answer to this may turn on whether the order of the court remits the ‘case’ as referred to in s 44(5) of the

AAT Act or the ‘matter’ as is commonly the wording used by the court in the remittal order. Remittal of the case [page 246] would seem to invite the reconsideration of all issues involved. Remittal of a matter might be thought to limit the new evidence to that issue only. This question and the contending views were given careful consideration by DP Jarvis in Re Lees and Repatriation Commission [2004] AATA 583; (2004) 82 ALD 150. It had been claimed that, as it was the ‘matter’ that had been remitted for reconsideration, it was not possible to introduce evidence of another matter that had not been pursued at the first hearing. The Tribunal concluded that the decisions of the Federal Court did not require this constraint as a matter of course. It depended upon the nature of the issues under review and the particularity of the court’s order. The Tribunal discussed Repatriation Commission v Nation (1995) 57 FCR 25; Repatriation Commission v Yates, above; Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; 51 ALD 519; Repatriation Commission v Parr [2003] FCA 970. A like conclusion was reached by a Full Federal Court in Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256; 97 ALD 373. The court suggested that, in the absence of some express limitation, the whole of the matter must be considered by the Tribunal hearing the remittal. It is carrying out the administrative task of making the correct and preferable decision. It cannot, even with the consent of the parties, limit its obligation. This conclusion was reiterated in Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448; 280 ALR 621. Even though the remitting court had found against the applicant on one issue, the action of the AAT in limiting its review to the issue on which the applicant had been successful was held to be a failure to consider the whole of the applicant’s claim. The remitter had not been limited and therefore all claims should have been reconsidered. If the claim under review involves a continuing entitlement, it seems that the Tribunal must admit further evidence as it is the facts at the date of the Tribunal’s decision that are determinative of the issue: see 16.20. Depending upon the nature of the court’s order, the facts in question and the attitude of the parties, it may not be necessary to rehear all the evidence but the

responsibility for the findings lies on the new AAT: Blackman v Federal Commissioner of Taxation (1993) 30 ALD 346; Nation v Repatriation Commission (No 2) (1994) 37 ALD 63; Re McLean and Repatriation Commission [2000] AATA 504; (2000) 59 ALD 319. However, if the credibility of a witness is an essential issue to the resolution of the case, it is not sufficient for the reconstituted Tribunal to have regard only to the transcript of the original hearing: Ashmore v Commissioner for Superannuation [2000] FCA 1816; (2000) 62 ALD 97. Section 23D(3) of the AAT Act which permits a reconstituted Tribunal to have regard to the record of the proceeding (including the evidence) before the Tribunal as previously constituted expressly excepts from the operation of the section a Tribunal reconstituted following an order under s 44(4) remitting a case to be heard and decided again. [page 247] The court in Peacock, above, recommended that the parties should routinely put submissions to a court on whether the whole of a matter should be remitted to the Tribunal and the court should specify whether it is remitting the whole or only part of a case. A like view was taken in regard to the issue of whether further evidence should be taken by the Tribunal dealing with the remittal. (It was the failure to do this that led to the problems considered in Kaluza, above.) See Rigoli v Commissioner of Taxation [2014] FCAFC 29; (2014) 141 ALD 529 at [34]–[35] for an example of this approach being followed. For the composition of the AAT on a rehearing, see 2.12. See 8.7–8.17 on the general obligation of the AAT to observe procedural fairness. See 19.49 on the circumstances in which a court may order that a matter be remitted.

REVIEW IN ABSENCE OF PARTY: SS 40 AND 42A General 13.48

Section 40(1)(b) provides that the AAT may, for the purpose of

reviewing a decision, proceed in the absence of a party who has had reasonable notice of the proceeding: Re Keane and Australian Postal Commission (1977) 1 ALD 53; Re Stoddart and Commissioner for Superannuation (1982) 5 ALN N6 (where the applicant resided in the United Kingdom and requested the AAT to proceed in his absence). This provision is further expanded by s 42A(2) which empowers the AAT, in a case where a party other than the decision-maker fails to appear, to dismiss the application where the only other party to the proceeding is the decision-maker or to direct that the person who failed to appear shall cease to be a party to the proceeding. See further 15.6, 15.7. In two social security cases, the AAT expressed a somewhat different inclination in relation to proceeding in the absence of a party having regard to the differing circumstances of the respective cases. In Re Baldt and Director-General of Social Security (1984) 6 ALN N53 the Tribunal was at pains to hear fully an appeal from a person living overseas. Difficulties arose as to the relevant facts and this led the Tribunal to solicit further information from the applicant and from a medical practitioner. On the other hand, in Re Andriopoulos and Secretary, Department of Social Security (1984) 7 ALN N54 the Tribunal commented that it should not, as a general principle, engage in review of administrative decisions in the absence of an applicant or a representative of the applicant except where the applicant’s absence was for good reason such as living outside Australia, or being unable, for reasons of health or distance, to attend a hearing. In that case, in fact, the matter was reviewed on the evidence available to the Tribunal, the applicant having informed it that she did not wish to attend the hearing. The AAT is placed in a dilemma in cases of this kind. Having become seized of the matter and been directed to reach the correct and preferable decision there is much to be said for its doing the best that it can on the information before it, as was [page 248] done in Andriopoulos, above. Theoretically in such a case, the AAT could come to a conclusion that was less favourable to the applicant than the decision under appeal and could make a finding in these terms in substitution for the decision of the decision-maker. There are some commentators who might advance the view that the AAT should pursue the issue regardless of the absence of the applicant

— that it should take it upon itself to investigate the matter. On the other hand, if the applicant is not prepared to pursue the appeal, s 42A(2) contemplates its dismissal and the AAT should perhaps not expend valuable resources by conducting a hearing the result of which is almost certainly going to see the affirmation of the decision under review: see 15.6.

Migration and Refugee Division 13.49 In this Division if an applicant who has been invited to appear before the Tribunal does not do so, ss 362B and 426A of the Migration Act authorise the Tribunal to make a decision on a review without taking any further action to allow or enable the applicant to appear. However, the Tribunal has a discretion whether to proceed in this manner. Subsection (2) of each of the sections permits the Tribunal to reschedule the applicant’s appearance or delay its decision to enable the applicant to appear.

MANNER IN WHICH QUESTIONS TO BE DECIDED WHERE DISAGREEMENT: S 42 13.50 Section 42 of the AAT Act provides for the manner in which a matter is to be decided if the members of the Tribunal do not agree about a matter arising in a proceeding. The section was restated in 2015 and applies to all Divisions of the Tribunal (see s 24Z(2)). If the Tribunal is constituted by three members, the opinion of the majority applies. If the Tribunal is constituted by two members, the opinion of the presiding member prevails. The distinction between questions of law and questions of fact which determined the outcome of a disagreement in previous iterations of the section has been abandoned.

ADJOURNMENT OF

PROCEEDINGS: S 40 13.51 The AAT may adjourn any proceeding from time to time. However, the General Practice Direction makes it clear that there must be good reasons shown for granting an adjournment. Significantly, the Direction indicates that unavailability of counsel will not generally be sufficient (and see further the comments below on [page 249] the application of procedural fairness requirements) nor will it be enough that the parties consent to the adjournment. See also the exhortation in the President’s Direction Conducting Migration and Refugee Reviews, cl 5, that an adjournment should only be granted where there are ‘cogent’ reasons for doing so. The General Practice Direction sets out the procedures that must be followed for seeking an adjournment and should be examined before any application is made. It should be noted that the Direction says that the Tribunal will not grant an application for an adjournment made less than 10 working days before the hearing unless there are particular and compelling reasons for the hearing to be adjourned. An application made on the day of the hearing will not be granted unless there are exceptional reasons. It is to be noted that many of the decisions on adjournment applications discussed below arise from actions of the former migration tribunals. It can therefore be assumed that the comments are applicable to all Divisions of the Tribunal. Notwithstanding the purpose underlying the General Practice Direction that the AAT must manage cases in a way that brings them to an early conclusion and the direction in s 2A of the Act that it is to conduct its proceedings in such a way as to provide ‘a mechanism of review that is fair, just, economical, informal and quick’ (see 1.6), the Tribunal is bound to adhere to the requirements of procedural fairness: see 8.7–8.17. Accordingly, a failure to grant an adjournment in circumstances that will result in the applicant not receiving a fair hearing will lead to the setting aside of its decision: SBLF v Minister for Immigration and Citizenship [2008] FCA 1219; (2008) 103 ALD 566. See also Minister for

Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 where the court classified a refusal by the Migration Review Tribunal to grant an adjournment to enable an English language test to be re-marked as legally unreasonable. In contrast, in Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 the court was not prepared to make a finding of unreasonableness in regard to a refusal of an adjournment when it considered that the applicant was capable of representing himself. However, it must be clear that there will be a denial of procedural fairness if no adjournment is granted: Higgins v Hancock [2011] FCA 1119; (2011) 123 ALD 335; Caporale v Commissioner of Taxation [2012] FCA 86; (2012) 133 ALD 255; Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; (2013) 139 ALD 29. In those cases the Federal Court found that no sound basis had been put to support the claim for an adjournment. In Weti v Minister for Immigration and Citizenship [2007] FCA 1531; Daw v Minister for Immigration and Citizenship [2012] FCAFC 123; Demillo’s case, above; and Fiorentino’s case, above, the respective Federal Courts were not prepared to rule that the tribunals involved had not exercised their discretion correctly in refusing an adjournment because of the unavailability of legal representation for the applicant. The courts acknowledged that a failure to adjourn to facilitate legal representation could constitute a breach of procedural fairness but indicated that this did not [page 250] follow as a matter of course. The position had to be viewed in its entirety and the obligation on the tribunals in question to deal with numerous applications was a relevant matter. Likewise the nature of the proceedings, the issues that might arise and the competence of the applicant were all factors that could be taken into account in reaching a decision. Note the observation of Finkelstein J in Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126; (2008) 107 ALD 316 at [16] that an adjournment for an indefinite period can itself constitute a denial of natural justice. If it is apparent that an applicant is not actively pursuing his or her case, an adjournment may properly be refused: Cook v ASP Ship Management Pty Ltd [2008] FCA 1345; (2008) 105 ALD 453. See also Re Ugur and Australian Human Rights

Commission [2010] AATA 144; (2010) 114 ALD 192 at [26]ff for an example of a refusal to grant an adjournment where the claims in support of that action could not be sustained. 13.52 See the comments set out at 1.7–1.8 in relation to the balancing of the AAT’s obligation to provide quick but fair justice. In the decision in Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 126 ALD 396 referred to in 1.8, DP Forgie stressed that case management systems such as that mandated by s 2A ‘must be understood and applied in a particular case in the light of the particular circumstances of that case and in light of the tribunal’s functions and its duties that is its duties to act with procedural fairness and to reach the correct or preferable decision’ (at [46]). In that case an adjournment was granted to enable a court ruling to be obtained on certain evidentiary issues that were relevant to the AAT application. The fact that the court application was made after commencing the AAT proceedings was referred to but it was nonetheless concluded that justice required that the Tribunal await the outcome of the judicial proceedings. If the AAT fails to use its power to adjourn to enable additional information to be obtained it will have made an error of law: Adamou v Director-General of Social Security (1985) 7 ALN N203; Re Kiazim and Commonwealth (1986) 9 ALN N218. A failure to adjourn where the AAT’s inquiry will impinge on criminal proceedings could constitute contempt of court: see further 3.20. But it must be clear that criminal proceedings are truly contemplated and not merely something that might occur: Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317. An adjournment should not be granted because it is said that the law relevant to the application is about to be amended. The Tribunal is bound by the law and must act to give effect to it: Re Seale and Repatriation Commission [2004] AATA 700; (2004) 83 ALD 735 at [31]. As to the general law on this issue, see Esso Australia Resources Pty Ltd v Commissioner of Taxation (No 1) [2011] FCAFC 134; (2011) 196 FCR 560; 284 ALR 66 at [15]. See also 16.18. In Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 at [6] the court said that there was no difference in substance between the assertion that there was a breach of natural justice and a failure to comply with the obligation [page 251]

under s 39 of the AAT Act (see 13.9) to provide an opportunity for the parties to put their case to the Tribunal when considering whether an adjournment should have been granted. Section 61 of the AAT Act makes it an offence for a witness to fail to appear and report from day to day in the course of a hearing unless excused or released from further attendance.

RECORD OF PROCEEDINGS 13.53 It is usual for there to be a transcript of proceedings of an AAT hearing. However, there is no obligation on the AAT to ensure that such a record is kept and in relation, for example, to a telephone hearing it may be difficult for a traditional transcript to be prepared. An unsuccessful attempt was made in Oldfield v Secretary, Department of Primary Industry (1988) 14 ALD 760 to argue that the failure by the AAT to keep a record of its proceedings constituted an error of law. A Full Federal Court observed that it was desirable that such a record be maintained, particularly where an appeal lies from the AAT only on a question of law. However, there was no positive legal obligation to do so.

HEARING ON PAPERS: S 34J General 13.54 Section 34J of the AAT Act permits the Tribunal to review a decision on the papers if it appears to the Tribunal that the review can be conducted adequately by this means and the parties consent. Circumstances to which the Tribunal might have regard in deciding whether to review a decision on the papers include: whether a party is likely to be disadvantaged; whether the issues for determination are sufficiently limited and defined; that there is no dispute as to the facts; no additional evidence is required; and it is more cost effective to deal with the matter on the papers

The Tribunal in Re Bui and Commissioner of Taxation [2008] AATA 666 cautioned against a too ready acceptance of the agreement of the parties to this procedure. The parties there had exchanged documents and lodged them with the Tribunal. The applicant had indicated that she would not appear if the matter went to a formal hearing. In these circumstances the Tribunal adhered to the request to deal with the matter on the papers but it said at [50]: Ordinarily I would regard it as inappropriate to determine an application on the papers where issues of fraud, recklessness, evasion, improper conduct or intention [page 252] are involved, because it is essential for issues of that sort to be determined after hearing oral evidence that has been tested by cross-examination. However, the applicant through her solicitors has consistently refused to provide further information and made it clear that she would not attend a hearing if it was convened. She was legally represented, and I must assume that she was advised of the consequences of not attending. In the circumstances I concluded that it was necessary to proceed on the papers, notwithstanding the difficulties of not holding a hearing.

Migration and Refugee Division 13.55 The Tribunal must review a reviewable decision where an application has been properly made: ss 348, 414. It is required to invite the applicant to give information to, or comment on or respond to information before, the Tribunal: ss 359AA, 359A, 424AA, 424A. It is also required to invite an applicant to appear before the Tribunal: ss 360, 425. If the applicant fails to accept all or any of these invitations, the Tribunal must proceed to make a decision. Of necessity, the making of such a decision will be on the papers before the Tribunal.

[page 253]

CHAPTER 14 STAY OF DECISION STAY OF DECISION: S 41, REGS 7 AND 8 General power to make stay order 14.1 The making of an application to the Administrative Appeals Tribunal (AAT) for review of a decision does not affect the operation of the decision or prevent the taking of action to implement it. An application must be made to the AAT under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) if it is sought to stay the operation of a decision pending an appeal. For the procedure to be followed see the General Practice Direction on the AAT website. There is no power in the Migration Act 1958 (Cth) (Migration Act) equivalent to that given the AAT in s 41 so the implementation of a migration decision cannot be stayed by the AAT. Section 147 of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) provides that s 41 does not apply to an application for a first review of a decision in the Social Services and Child Support Division. However, once an application for review has been made, s 145 of the Social Security Administration Act empowers the Secretary to declare that payment of the social security payment is to continue, pending the determination of the review, as if the adverse decision had not been made. See also s 180 in relation to stay applications on a second review. In regard to other applications for review before the AAT, upon application by a party to a proceeding, the AAT may (s 41(2)): … if the Tribunal is of the opinion that it is desirable to do so after taking

into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision … or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. [page 254] Any such order may be varied or revoked: s 41(3). Subject to the qualification below, before making any such order, the person who made the decision must be given an opportunity to make a submission in relation to the application. Before varying or revoking an order, both the decision-maker and the person who obtained the order must be permitted to make submissions: s 41(4); Re Repatriation Commission and Strang (1988) 15 ALD 12. See 3.14 in relation to the jurisdiction of the Tribunal to make a stay order where the decision to which the application relates is invalid. Section 41(5) empowers the making of a stay order in circumstances where it is not practicable to give an opportunity to make submissions ‘by reason of the urgency of the case or otherwise’. Any such order is not to come into operation until notice is served on the person affected. Where an urgent application is made for a stay order, the AAT will consider the application having regard to the approach taken by a court to an application for an ex parte injunction: Re Island Voice and Great Barrier Reef Marine Park Authority (1989) 20 ALD 684. An order is not to be made lightly in the absence of the party affected and it is necessary for the applicant to demonstrate clearly the reason why the AAT should proceed without the decision-maker having the opportunity to present its side of the case. The request for an order under s 41 must be made in accordance with the form Request for Stay Order: see AAT website. An application to vary or revoke a stay order must be made in accordance with the form Request for Order Varying or Revoking Stay Order: see AAT website. If the application to the AAT follows a decision of an intermediate tribunal that has reviewed an original operative decision, any stay order will be directed to that operative order not to the decision of the intermediate tribunal: Yolbir v

Administrative Appeals Tribunal (1994) 48 FCR 246; 33 ALD 8 effectively overruling a number of decisions of the AAT to the contrary. No appeal under s 44 of the AAT Act lies to the Federal Court against an order under s 41: Director-General of Social Services v Chaney (1980) 3 ALD 161; 31 ALR 571; Frugtniet v Tax Practitioners Board [2013] FCA 752; (2013) 136 ALD 324. However, an application for review may be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or s 39B of the Judiciary Act 1903 (Cth): Yolbir v Administrative Appeals Tribunal, above; Otter Gold Mines Ltd v Administrative Appeals Tribunal (1997) 47 ALD 89. Frugtniet’s case, above, at [32] indicates that any such application cannot be lodged merely by way of an application to amend at the hearing of the s 44 appeal. See also 11.14–11.17 relating to orders prohibiting the publication of the name of an applicant.

Power applicable only to reviewable decisions 14.2 The power to make a stay order can only apply in respect of decisions which are reviewable by the Tribunal. This hardly needs stating as the AAT does not have [page 255] a general jurisdiction but may only review designated decisions. Obviously it could not stay other decisions: Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106; (2008) 100 ALD 648 at [53] (the Tribunal’s decision in relation to the stay order was not challenged on the subsequent appeal to the Federal Court: see Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559). However, the limitation has caused some problems for the Tribunal where the implementation of a reviewable decision involves associated action that is not subject to review. This has arisen most frequently where there is an obligation to publicise a decision that is subject to review, such as by notification in the Gazette or a newspaper, but there are no review rights in respect of the notification.

Early decisions took conflicting views as to whether the Tribunal could restrain publication where the publication decision was not itself reviewable by the Tribunal. It appeared that this conflict of authority may have been resolved by the decision of Emmett J in Duncan v Companies Auditors and Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572; 93 ALD 401 but this proved not to be the case and again differently constituted Tribunals expressed contrary views: Re PTLZ and Australian Securities and Investments Commission, above, at [55]; Re Quinlivan and Australian Securities and Investments Commission [2008] AATA 1094; (2008) 106 ALD 438. It is hoped that the matter has now been resolved by the decision of the Full Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449. The court there indicated that the decision (to ban a person from providing financial advice) and the notification of that decision were interrelated. The obligation to publish was stayed in practical terms if the banning order was stayed because there was no decision afoot that was required to be notified. It did not require a separate order on the part of the Tribunal directing that the notification be stayed. The court cautioned that the fact that there was a requirement to publicise a decision was to be taken into account in determining whether to stay the substantive decision. The notification requirement indicated that there was a legislative intention to warn the public of the circumstances relating to the person to whom the order applied. This was to be balanced against the impact that the order might have on that person. This decision was applied in Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608. See further 14.4–14.8.

Modification of stay power 14.3 The power to stay a decision may be modified when jurisdiction is being conferred on the Tribunal to review a decision. So it is possible for legislation to provide that it is not possible to seek a stay order in relation to a decision which is otherwise reviewable by the Tribunal. A significant provision to this effect is to be found in the Taxation Administration Act 1953 (Cth). Section 14ZZA of the Act provides that the AAT Act applies to

[page 256] reviewable objection decisions subject to the modifications set out in the Taxation Administration Act. Section 14ZZB(1)(a) of that Act provides that s 41 of the AAT Act does not apply in relation to such decisions. The operation of the exclusion was discussed by the Tribunal in Re Martino and Australian Taxation Office (No 1) [2002] AATA 519; (2002) 70 ALD 396 where an attempt to seek a stay of the original decision against which an unsuccessful objection was made was rejected. The original decision was not reviewable, only the objection decision. In relation to it, s 41 was excluded. In Re Coshott and Commissioner of Taxation [2013] AATA 822; (2013) 140 ALD 436 the Tribunal rejected an argument that the reference to ‘modifications’ in s 14ZZA did not embrace a total exclusion of s 41. The exclusion constituted a modification of the AAT Act. Section 14ZZM of the Taxation Administration Act replicates the effect of s 41(1) by providing that the fact that a review is pending does not affect the decision of which review is sought. However, there are no equivalent provisions akin to s 41(2)–(5) empowering the Tribunal to stay the implementation of the decision. See Re Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682; (2013) 138 ALD 409 for a discussion of the operation of these provisions. By way of contrast, the Civil Aviation Act 1988 (Cth) provides for an automatic stay for a specified period of certain decisions made under the Act. In Re Cape York Airlines Pty Ltd and Civil Aviation Safety Authority [2004] AATA 727; (2004) 80 ALD 369 the AAT made the point that this provision for a stay and, in particular, the length of the statutory stay, should be taken into account when considering an application under s 41 for a stay order. It is only a number of specified decisions that attract the automatic stay. If the decision is not one of those specified, the ordinary principles relating to the making of an order under s 41(2) of the AAT Act apply: Re McKenzie and Civil Aviation Safety Authority [2008] AATA 651; (2008) 106 ALD 180. For an example of the interplay between the statutory stay and the power to grant a stay under s 41, see Re Snook and Civil Aviation Safety Authority [2008] AATA 1139; (2009) 109 ALD 131. Once the AAT has made a decision, its capacity to make a stay order is at an end. Section 41 is concerned only with a stay pending a hearing by the AAT: Re Bragg and Minister for Immigration and Ethnic Affairs (1986) 11 ALN N272. It is not to point that an appeal has been lodged in the Federal Court against the decision

of the Tribunal: Seymour v Migration Agents Registration Authority [2006] FCA 649; (2006) 91 ALD 610; affd on appeal [2007] FCAFC 5; (2007) 156 FCR 544; 93 ALD 253. However, s 43(5C) stays the operation of a Tribunal decision where a stay order was in force at the time of the Tribunal’s decision until the time for lodging an appeal against that decision has passed. If an appeal is brought the decision is stayed until the appeal is determined. The operation of this provision will have the effect of continuing the stay order if the decision is appealed by either party. In Re Proh and Tax Agents Board (Vic) [2010] AATA 149; (2010) 115 ALD 68 at [19] the AAT extended the operation of an existing stay order for seven working days to allow time for its decision on the appeal to be implemented. This was said to fall [page 257] within the power in s 41(2) of the AAT Act to make an order for the purposes of securing the effectiveness of the determination of the application for review. A later Tribunal in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [482] disagreed with this ruling and it does seem to be questionable. As was said in Matthews’ case, postponement of the effect of a Tribunal decision is to be achieved through the exercise of the power in s 43(5B) to specify the date of its effect. Section 44A of the AAT Act empowers the Federal Court to make a stay order in relation to a decision under appeal to it: see 19.55. The power of the Tribunal to make an order under s 41 of the AAT Act does not limit the power of the Federal Court to make a like order under s 15 of the AD(JR) Act in appropriate circumstances: Lip-Air Pty Ltd v Civil Aviation Safety Authority [2008] FCA 866; (2008) 104 ALD 17. See Australian Administrative Law (LexisNexis) at [368] in relation to such orders. However, in view of the express power in s 41 to deal with such matters, it can be expected that the court will only intervene under the AD(JR) Act in exceptional cases: see 19.6.

MAKING AND EFFECT OF STAY

ORDERS Approach to making of stay orders Factors relevant to making order 14.4 President Downes J in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4] set out a non-exhaustive set of factors to be taken into account when determining an application for a stay order: (a) (b) (c) (d) (e) (f)

The prospects of success. The consequence for the applicant of the refusal of a stay. The public interest. The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not. Whether the application for review would be rendered nugatory if a stay were not granted. Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.

The Tribunal in Re XTWK and Australian Securities and Investments Commission (2007) 98 ALD 131 had previously encapsulated the circumstances in which a stay of an adverse decision might be made in similar terms. In that case an order was made because there was some doubt whether the legislation relied upon by the respondent to justify a banning order applied to the applicant; the order would have serious consequences for the applicant even if it were set aside on appeal; and the public would not be at risk if a stay order were made. [page 258] The factors set out in XTWK were endorsed by the Tribunal in Re Zarfati and Australian Securities and Investments Commission [2008] AATA 989; (2008) 106 ALD 225. That case is also of interest in that the stay order dealt with only part of the adverse result flowing from the decision under review. Some of the limitations

imposed on the applicant’s business activities accordingly continued to apply. However, the likelihood of a viable business ceasing to be able to operate caused the stay order to be adapted to ensure that this would not occur and that the business of which the applicant was the director could continue to trade. In Re Opus Capital Ltd and Australian Securities and Investments Commission [2010] AATA 694; (2010) 117 ALD 608 a stay was granted because the Tribunal considered that the adverse decision was based on debateable technical breaches of accounting standards; the investing public were likely to be misled if the suspension continued until challenged; and the substantive hearing could be brought on quickly. The factors referred to in Re Scott, above, seem to have become the general touchstone against which consideration of stay applications is approached: Re O’Sullivan and Australian Securities and Investments Commission [2015] AATA 265 at [6]. See further 14.10 in relation to the attachment of conditions to a stay order.

Principles underlying stay order 14.5 Complementing these specific factors, the general philosophy underlying the power of the Tribunal to make a stay order has been considered in a number of decisions and is taken into account in reaching a decision. It has been said that the test whether to make a stay order is whether it is ‘desirable’ to do so. In Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 at 384 the Tribunal said that, in the context of s 41(2), this expression connoted ‘a positive aspiration’ and ‘something worthy of achievement’ rather than ‘merely advisable’. This must be tested against the interests of any persons who might be affected by the review outcome and that can extend beyond the range of persons who might be ‘affected’ by the decision and able to bring an application for review pursuant to s 27 of the AAT Act or seek to be joined as a party under s 30(1A). There could be circumstances where the persons affected embraced the general public and their interests should be considered in deciding whether it was desirable to stay the decision under review. This view was reiterated by a Full Federal Court in Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559 at [42]: ‘It does not follow from the absence of any reference to the public interest in s 41(2) that that interest might not be relevant to an application under the section.’

See also Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449. The broad view of the considerations to which regard might be had referred to in the Griffiths case was followed also, after a review of the authorities, in Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146; (2004) 38 AAR 482. The Tribunal rejected a more limited approach adopted in [page 259] Re Crossan and Minister for Immigration and Multicultural Affairs [2002] AATA 216 that would have confined the examination to matters concerned only with the processes of the hearing and determination. The broader view seems to be that which has generally been followed by the Tribunal.

Preservation of status quo 14.6 The power contained in s 41(2) of the AAT Act is not positive in effect but merely negative. It is intended to preserve the situation prior to the reviewable decision, not to put the applicant in a different position to that in which he or she would have been prior to that decision: Re Alexander and Migration Agents Registration Board (1995) 40 ALD 99. There the fact that a person could conduct an activity without being registered prior to a change in the law could not justify the stay of a decision refusing an application for registration. To do so would give a right that the legislation was intended to remove. However, this principle poses problems where the decision sought to be reviewed is a refusal to renew an approval or licence. The grant of a stay order in such a case has the positive effect against which Alexander warns of allowing the person to continue an activity despite the existing approval having come to an end. It effectively grants an approval, at least until the AAT finalises the application for review. On the other hand, to decline to make an order staying the failure to renew may well put the applicant out of business. In Re Nelson and Tax Agents’ Board (Qld) (1993) 30 ALD 317 the Tribunal was able to find a power in the Act relating to deemed approvals operating after an approval had expired to justify the making of an order continuing an approval. This approach was endorsed by Tamberlin J in Shi v Migration Institute of Australia

Ltd [2003] FCA 1304; (2003) 134 FCR 326; 78 ALD 281 where there was a similar deeming provision. However, in Re Medtest Pty Ltd and Minister for Health and Ageing [2002] AATA 566; (2002) 70 ALD 580 the Tribunal took the bolder step of making an order under s 41(2) staying a refusal to renew the licence of a pathology laboratory. While this might have been an appropriate order to preserve the applicant’s business interests, it very clearly had the positive effect of awarding an approval in circumstances where it would not otherwise have existed because it had expired by effluxion of time and there was no provision in the relevant legislation that kept it afoot. The approach adopted in Medtest was formally endorsed by Siopis J in dismissing an appeal against a like order in Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551. The order made in that case continued in force an Air Operator’s Certificate after it expired. The court said that not to make such an order would mean that the applicant for review would not be able to work and it was thereby an appropriate order to ensure that the AAT’s ultimate order was effective. See also Re Tomkins and Civil Aviation Safety Authority [2006] AATA 591; (2006) 91 ALD 492 where the respondent had indicated that, in addition to cancelling the applicant’s approvals to engage in certain activities, it would not renew the approvals. Hotop’s case was also followed in granting a stay order in Re Transglobal Airways Corporation and Civil Aviation Safety Authority [2010] AATA 68; [page 260] (2010) 113 ALD 218 in circumstances where the licence was conditional upon the Authority being satisfied of certain matters and it was not. The Tribunal said that it was absurd to attempt to draw a distinction between a suspension or cancellation and a refusal to renew. For another example of the power to make a stay order being used in circumstances where the licence in question would no longer be in force, see Re WorldAudio Ltd and Australian Communications and Media Authority [2006] AATA 177; (2006) 90 ALD 101 where a stay of a decision to cancel a licence was granted despite the failure of the applicants to comply with a licence condition. The applicant was seeking review of a decision refusing to vary the condition. It can be seen that the Tribunal and the Federal Court have been prepared to

give the stay power significant substance and have emphasised the effect that the decision under review will have on the person concerned as the principal factor in deciding whether to stay a decision. However, before an order having this positive effect can be made, it must be clear that the original decision-maker could have continued the licence beyond the expiry date: Seymour v Migration Agents’ Registration Authority [2006] FCA 649; (2006) 91 ALD 610 affd on appeal [2007] FCAFC 5; (2007) 156 FCR 544; 93 ALD 253; Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485; (2006) 90 ALD 761. A failure by one of the parties to give an undertaking as to its actions should the ultimate decision be against it can be decisive of the choice of action on the stay application: Otter Gold Mines Ltd v Administrative Appeals Tribunal (1997) 47 ALD 89.

Hardship to applicant versus public interest factors 14.7 Hardship to the person affected by the decision under appeal, whether that decision be beneficial or adverse, is a significant factor in determining whether to make a stay order. However, all the circumstances of the case must be considered. Two decisions may be contrasted. In Re Young and Secretary, Department of Agriculture, Fisheries and Forestry [2002] AATA 1231; (2002) 71 ALD 390 a stay was granted having regard to the likely adverse effect on the applicant’s business with consequent implications for its employees together with the fact that the applicant had an otherwise good compliance record and that the delay before the hearing was short. In Re Confidential and Australian Prudential Regulation Authority [2002] AATA 1346; (2002) 72 ALD 571 a stay was refused because the Tribunal considered that the applicant’s own conduct had contributed to its failure to obtain a licence in time to continue its business and that its case for success at the substantive hearing was weak. In a number of cases the Tribunal has had to weigh the hardship that would be suffered by an applicant against the danger to the public interest if the applicant is to be allowed to continue to carry on the activities prevented by the decision sought to be reviewed. In Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 an application was made for an order staying the suspension of the applicant’s pilot’s [page 261]

licence. It was claimed that the applicant would suffer uncompensable hardship if his appeal against the suspension were upheld. However, the AAT said that it had to balance that hardship against the public interest in the safe operation of aircraft. The AAT made the stay order but drew a distinction between cases where the suspension of the licence was based on medical grounds and where other breaches of the Air Navigation Regulations provided the basis for the suspension. In the former case, the safety of the public would normally outweigh any personal hardship the applicant might suffer: see Re Commins and Civil Aviation Safety Authority [2004] AATA 1330; (2004) 86 ALD 637 as an example of this approach being followed. This distinction may be pertinent in some circumstances but the nature of the breaches of safety requirements might also indicate that the safety of the public outweighs the interests of the licensee. The AAT initially showed no enthusiasm for making stay orders to permit airlines to continue flying pending an appeal: Re Ramsay and Department of Transport (1977) 2 ALD 97; Re Aquatic Airways Pty Ltd and Civil Aviation Authority (1989) 22 ALD 766; Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380. In the slightly different context of an application for a stay order under s 44A of the AAT Act pending an appeal to the Federal Court, the court in McPherson v Civil Aviation Authority (1991) 22 ALD 754 indicated that ‘it would require a strong prima facie demonstration that a decision to suspend [a pilot’s licence] was totally unreasonable in the sense of being without foundation in fact or law for this court to override, even temporarily, the view of the Civil Aviation Authority or the AAT constituted as the present tribunal partly was by members with special expertise in this area’. 14.8 More recent decisions have indicated that, despite the strength of these views, regard must be had to the circumstances of the particular case. There now seems to be a greater preparedness to grant a stay where the refusal to do so would threaten the re-establishment of the business of the person affected. So a stay was granted in Re Edwards and Civil Aviation Safety Authority [2003] AATA 594; (2003) 74 ALD 572 because the case for suspending the licence was not strong and a stay would enable the air service to a remote community to be continued. See also Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; Re McKenzie and Civil Aviation Safety Authority [2008] AATA 651; (2008) 106 ALD 180; Re Anderson and Civil Aviation Safety Authority

[2008] AATA 206; (2008) 101 ALD 360; Re Snook and Civil Aviation Safety Authority [2008] AATA 861; (2008) 109 ALD 122. In Anderson’s case regard was also paid to the fact that the event in question had occurred some time previously and the authority had not exercised its power to suspend the pilot immediately. This was taken by the Tribunal to indicate that there was no immediate danger to the public in staying the suspension eventually imposed until the hearing of the appeal. The message to regulators is clear. If prompt action is not taken, it will be difficult to claim later that there is a danger to the public that cannot await the outcome of the application for review. [page 262] This issue of public safety was referred to in a different context in Re Dekanic and Tax Agents’ Board (NSW) (1982) 6 ALD 240. There the AAT discussed the danger that might be incurred by the public if a decision to cancel the registration of a tax agent were stayed. See also Re Nelson and Tax Agents’ Board (Qld) (1993) 30 ALD 317; Re Thomson and Tax Agents’ Board (Qld) (1993) 30 ALD 747; Re AX03D and Tax Agents’ Board of NSW (2003) 74 ALD 597; Re Li and Tax Practitioners Board [2013] AATA 669; (2013) 137 ALD 402. The same approach has been taken in regard to an order banning a person from providing financial services. The risk to the public of allowing his continuance in business outweighed the impact on the applicant: Re Nguyen and Australian Securities and Investments Commission [2011] AATA 398; (2011) 127 ALD 105. The public interest influenced the AAT in refusing an order to stay the suspension of a weapons licence in Re Znotins and Registrar of Weapons (1994) 33 ALD 384. Dekanic’s case, above, made the point that generalisation on the issue is unwise, but it listed two factors that should be considered in relation to a stay application. Where a person is suffering loss as a result of a decision, there will be pressure on the parties to bring the matter on for hearing quickly with consequent loss of preparation time. In addition, the AAT will feel obliged to hurry its consideration of the case. A stay order removes these pressures and, if the public is not going to be adversely affected, the case is strong for making it. The second matter alluded to is a corollary of the argument above on hardship. If success on the appeal will not restore the applicant to the position that he or

she was in prior to the decision being made, the decision of the AAT can only be fully effective if the decision under appeal is stayed. This approach of looking to the effect that a refusal to grant a stay order might have on an applicant was followed by the Tribunal in Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106; (2008) 100 ALD 648. There it was pointed out that the power given to the AAT is to make an order ‘staying or otherwise affecting the operation or implementation of the decision’. The emphasised words indicate that the Tribunal can look beyond just the decision and make such orders as are appropriate to preserve the position of a party affected pending the outcome of the review. In that case an order was made directing the respondent to recall press releases relating to its decision and not make any further release. It was said that if this were not done, a successful appeal would be rendered a pyrrhic victory because the applicant’s reputation would be ruined. In that case the Tribunal weighed the interests of the public in not permitting the applicant to continue in business against the likely impact on the applicant of not staying the orders of the respondent. It considered that the applicant’s interests outweighed the danger to the public. The comments of the Full Federal Court on the balancing of private and public interests in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130; 113 ALD 449 should also be noted. [page 263]

Stay orders where payments involved 14.9 Stay orders are frequently sought by an agency that has been directed to pay a pension or compensation to a person and is appealing to the AAT against that decision. Often these cases involve the payment of a lump sum for arrears together with a continuing payment for the future. Applications have been made to stay both types of payments pending an appeal. The leading discussion of the matter is to be found in Re Repatriation Commission and Delkou (1985) 8 ALD 454 (Delkou). Three principal factors were there identified as conditioning the stay power and these have formed the basis of discussion in all subsequent cases. The AAT should consider:

any hardship which a party to the review may suffer by reason of the grant or refusal of a stay; the likelihood of recovery by the Commonwealth of moneys to be paid under the determination sought to be stayed; and the prospect of success of the application for review. Other cases which have discussed these factors in some detail are Re Repatriation Commission and Bramston (1985) 8 ALD 468; Re Repatriation Commission and Strang (1988) 15 ALD 12; and Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418. A recipient of benefits might also wish to stay a decision cancelling that benefit pending hearing of an appeal. The approach in Delkou has been followed in regard to such applications: Re Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769; (2012) 132 ALD 584; Re Rose and Comcare [2013] AATA 735; (2013) 137 ALD 635. The point was also made in Delkou that the starting point for consideration of a stay application is that an application to the AAT does not effect a stay of the decision to be reviewed. A case for a stay has therefore to be made out. If there is nothing that the stay order can operate on, the application will be refused: Delkou. So if a lump sum of arrears has been paid to an applicant, no stay order can be made. Likewise if the decision sought to be reviewed is a one-off refusal of a benefit. A stay order cannot be used to provide a temporary grant of a benefit that the applicant has not been receiving: Re Kalman and Comcare (1998) 50 ALD 990. Conversely, if a failure to make a stay order will render success on appeal nugatory, the case for an order is markedly strengthened: Re Repatriation Commission and Bramston, above. It was said in Delkou, above, that it was inappropriate for the stay application to be treated as a preliminary trial but the subsequent decisions referred to above have taken into account the strength of the case of the applicant for a stay. Where dissipation of the moneys involved has seemed probable, the AAT has seen this as a major issue to be weighed in the balance against the hardship to the applicant if he or she is kept out of the funds awarded. [page 264]

Form of stay order 14.10 The AAT has endeavoured to tailor its order to the circumstances of the case, particularly in those cases where it is said that the recipient of a disputed payment will suffer hardship if a stay of the payment is made. So in Re Repatriation Commission and Groat (1985) 8 ALN N321 and Re Commonwealth and Quirke (1986) 9 ALD 92 an order was made staying the payment of lump sum arrears but not ongoing payments. The arrears it was said might be dissipated and therefore not be recoverable notwithstanding success on appeal. However, it would impose hardship on the respondent if he was not given some funds. By way of contrast, in Re Repatriation Commission and Delkou (1985) 8 ALD 454 and Re Australian National Railways Commission and Gerlach (1986) 10 ALN N133 an order was made staying the making of weekly payments. In Delkou it was said that the respondent had been paid a lump sum which provided adequate funds for support. In Gerlach the lump sum was invested and attracting interest which would be payable to the respondent if she were successful and the employer’s appeal were dismissed. She had led no evidence of hardship if the weekly payments were not made. There have been other variants. In Re Australian Telecommunications Commission and Inns (1987) 12 ALD 536 and Re Secretary, Department of Social Security and Pesu (1989) 18 ALD 469 the AAT stayed the operation of the decision appealed against but directed that both the lump sum arrears and the ongoing payments be paid to the applicant’s solicitors to be invested. The solicitors were to assume the role of stakeholders pending the appeal. In Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418 a stay order was made but, to reduce any hardship that the respondent might suffer, an order was made that the hearing of the application for review should be expedited. That decision is noteworthy also for the observation that ‘[i]n viewing hardship … the tribunal considers that it should give less weight to hardship arising from the need to sustain borrowings than it would to hardship involving the personal sustenance of the person concerned’ (at 422). Other cases in which the issue of hardship has been considered include Re Webber and Secretary, Department of Social Security (1989) 18 ALD 422; Re Secretary, Department of Social Security and Guner (1990) 21 ALD 399; Re Secretary, Department of Social Security and Collins (1991) 26 ALD 344. The AAT has been prepared to make a stay order for a limited period where immediate application of a decision might result in hardship but there are ways

open to the applicant to avoid that problem: Re Cape York Airlines Pty Ltd and Civil Aviation Safety Authority [2004] AATA 727; (2004) 80 ALD 369 where the order was only for such time as would enable the applicant to appoint a new Chief Pilot. The Tribunal has also made the stay conditional upon the applicant taking steps to avoid continuance of the conduct that prompted the adverse decision and to inform the decision-maker of those steps: Gammadell Pty Ltd (t/as Midstate Airlines) v Civil Aviation Safety Authority [2004] AATA 489; (2004) 81 ALD 441. See also Re Mahaffy and Tax Practitioners Board [2014] AATA 17; (2014) 142 ALD 383 where the [page 265] Tribunal made a detailed order conditioning the stay on the applicant’s adherence to a number of conditions going to his provision of information to, and modifying his conduct in his dealings with, the decision-maker.

Effect of stay order 14.11 Where an order is made suspending the operation of a decision, a person may do anything that could lawfully have been done if the decision had not been made. If an order is made that the proceedings under a decision be stayed, no action may be taken to implement the decision. The AAT has indicated that where an application has been lodged with the AAT for review of a decision to recover an overpayment, it is not appropriate for the decision-maker to continue action to recover that overpayment by deductions from a current pension, benefit or allowance. It should not be necessary for an applicant to the AAT who seeks review of a decision to recover overpayments to apply formally for a stay of deductions pending the AAT’s review: Re Bojczuk and Secretary, Department of Social Security (1986) 10 ALN N230. The fact that a decision has been stayed does not entitle the decision-maker to review it. Once the AAT is seized of a matter by the lodging of an appeal, it is required to determine the issue itself: see AAT Act s 26(1) and 3.33 (unless the applicant withdraws: see 15.5). But care must be taken to see what the power of the decision-maker is in the light of the stay order. In Re Dart and Director-General

of Social Services (1982) 4 ALD 553 the AAT noted that the staying of an order cancelling a pension revived the power of the Director-General not only to pay the pension previously cancelled but also to vary it from time to time as circumstances require. Payments made to a person in such circumstances are lawfully made and presumably an order could be obtained from a court enforcing the making of the payment. Section 1223AB of the Social Security Act 1991 (Cth) reversed the decision of the AAT in Re Williamson and Secretary, Department of Social Security (1988) 16 ALD 797. The section provided for the recovery of an amount paid to a person as a result of a stay order which had the effect of continuing a payment that was disputed by the department. However, the section did not entitle the department to recover an amount paid to a person following an order of the Social Security Appeals Tribunal (SSAT) where a stay order had been refused. The payment was then being made pursuant to the order of the SSAT and the fact that the absence of a stay order led to that payment was not to point: Re Secretary, Department of Social Security and Glanville (1994) 35 ALD 151. Where the AAT has decided an application for review of a decision to which a stay order relates, subject to a court direction, the stay order continues in effect until the end of the period within which an appeal can be lodged against the Tribunal decision. If such an appeal is lodged, the stay order continues in effect, again subject to any order of the court, until the appeal is finalised: s 43(5C).

[page 266]

CHAPTER 15 POWERS OF AAT ON REVIEW: ACTIONS PRIOR TO HEARING DETERMINATION OF SCOPE OF REVIEW: SS 25(4A), 33 15.1 Section 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that ‘The Tribunal may determine the scope of review of a decision by limiting the questions of fact, the evidence and the issues that it considers’. The purpose of this provision as described in the explanatory memorandum to the Administrative Appeals Tribunal Amendment Bill 2005 (Cth) by which the section was included in the AAT Act was that it ‘enables the Tribunal to dismiss a party’s request for the consideration of, and/or determination on, evidence or issues of law and fact which are not relevant [to the decision that is under review]’. The provision is presumably ambulatory and enables the Tribunal to act at any time in the review process. It can be expected that it will be invoked primarily before an application has been set down for hearing. Directions hearings should be the place to determine the scope of the review to be undertaken: see 10.10. However, the provision could be used to deal with issues that arise during a hearing. The application of the section was considered in Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170. The Tribunal said of the provision (at [12]): The Tribunal’s mandatory objective under section 2A of the AAT Act, and its power under subsection 25(4A), permit the Tribunal to confine the

issues and evidence it considers. Those powers could not be used to justify orders precluding effective review of decisions falling within the Tribunal’s proper review jurisdiction. But the amplitude of the language is certainly apt to permit the Tribunal to limit the scope of its review function to a consideration of matters that are truly material to the determination of the review proceedings. It gave as the reasons for this conclusion: the objective of the Tribunal set out in section 2A (see 1.6); the fact that, in addition to the general public interest in the [page 267] efficiency of the Tribunal’s proceedings, parties to those proceedings have a direct and immediate interest in ensuring that their participation is required only in relation to issues of genuine contest; and the inherent desirability of minimising the subjective burdens imposed upon parties required to participate in the intensity of contested forensic adjudication. The Tribunal concluded (at [16]): … subsection 25(4A) of the AAT Act does permit the Tribunal to determine the scope of its review function. The language of the subsection permits limits relating to facts, evidence and issues. The appropriate scope of any restriction will depend on the circumstances of the particular case. The section has been applied by the Tribunal. In Re Murdaca and Australian Securities and Investments Commission [2010] AATA 792; (2010) 118 ALD 202 at [27] the Tribunal directed that allegations of breach of natural justice by the decisionmaker not be considered in a case that had a long history of hearings and appeals. The Tribunal said that the current hearing before the Tribunal would provide an adequate opportunity for all matters to be raised. In Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [142]–[147] the Tribunal was prepared to invoke the section to resolve a Freedom of Information (FOI) appeal that involved a very large number of documents by reviewing a representative sample of the documents. However, it said that it could only do this if the parties agreed and the applicant declined to do so.

The general discretion given to the Tribunal by s 33 of the AAT Act also enables it to give directions as to the way in which applications are to be dealt with, including their dismissal: see 10.10, 15.3. For example, in Re Paper to Paper International Pty Ltd and Commissioner of Taxation [2008] AATA 837; (2008) 106 ALD 203 the Tribunal directed that two applications be heard together as there was a substantial commonality of evidence. In Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595 at [137] the Tribunal limited the evidence that the applicant could lead in the light of the fact that there had been two previous applications in which the facts had been canvassed. Reliance could be placed by the Tribunal on the findings in those cases. A like approach was adopted in Re McDonnell and Repatriation Commission [2013] AATA 74; (2013) 133 ALD 660. 15.2 Section 25 is one of the sections of the AAT Act which is applied to proceedings in the Migration and Refugee Division of the Tribunal. Accordingly, s 25(4A) (but not s 33) is applicable to such proceedings.

POWER OF AAT TO DISMISS APPLICATION: SS 42A, 69BA 15.3 The AAT may dismiss an application in the following circumstances: if all the parties consent (s 42A(1)); if the applicant withdraws (s 42A(1A)); [page 268] if the applicant fails to appear (s 42A(2)); if the applicant is unable to show that the AAT has jurisdiction (s 42A(4)); if the applicant fails to proceed with the application or comply with a direction within a reasonable time (s 42A(5)); or if the AAT considers the application frivolous or vexatious (s 42B). It should be noted that the exercise of the powers under ss 42A and 42B is

conditioned by s 21(1A) and may only be carried out prior to the commencement of a hearing by a presidential member or an authorised member. After a hearing has commenced, the power is to be exercised by the Tribunal as constituted for the hearing. In Re Kretchmer and Repatriation Commission (1988) 16 ALD 206 the AAT held that a purported exercise of the striking out power under s 42A(2) by an unauthorised member of the AAT was a nullity. The matter could therefore be relisted for hearing notwithstanding the earlier order. See further 17.26. When considering the invocation of the various grounds in s 42A to dismiss an application, regard should be paid to the approach adumbrated by a Full Federal Court in Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 99 ALD 229. The court there declined to exercise the power of summary dismissal of an application but chose rather to deal with the application and dismissed it on its merits. It commented that this was a preferable means of managing applications plainly devoid of merit. In view of the reinstatement provisions available under s 42A (see 15.11), this approach may present a better approach for the AAT to follow in unmeritorious cases in order to avoid equally unmeritorious reinstatement applications. There are no provisions equivalent to s 42A in the Migration Act 1958 (Cth) (Migration Act) but see 15.6 and 15.7 on failure to appear. Provisions in social welfare legislation relating to dismissal of applications are referred to where appropriate in the following paragraphs.

DISMISSAL BY CONSENT: S 42A(1) 15.4 Subject to what is noted below in relation to certain social welfare decisions, where all the parties consent, the AAT may dismiss an application. Consent dismissals need to be distinguished from consent decisions made pursuant to s 42C of the AAT Act: see 15.21. The power to dismiss is applicable only to the whole of the matters before the AAT and cannot be used to dispose of part only of an application: Re Robinson and Repatriation Commission (1991) 25 ALD 130; Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [152]. It is possible in limited circumstances for the AAT to reinstate an application dismissed by consent pursuant to the power in s 42A(10): see 15.11. It is also possible for a second application to be brought by the applicant: see 15.20.

[page 269] The consent of the agency party to a dismissal of an application in the Social Services and Child Support Division is not required: s 42(1AAA).

DISMISSAL FOLLOWING WITHDRAWAL OF APPLICATION, ETC: S 42A(1A), (1AA), (1B) 15.5

Section 42A(1A), (1AA) and (1B) reads:

(1A)

A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. (1AA) If a proceeding is in the Social Services and Child Support Division and is not a child support first review, the person may notify the Tribunal orally of the withdrawal or discontinuance. … (1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision. It can be seen that s 42A gives statutory recognition to the right of an applicant to withdraw an application unilaterally at any time. (Prior to the amendment of the AAT Act in 1993 to include these provisions, there had been some doubt whether it was possible for a party to discontinue an action without the consent of the Tribunal although the favoured view was that a party could do so: Re Stevenson and Commonwealth (1987) 13 ALD 524; Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3) (1992) 28 ALD 368 at 374.) Subsection (1A) requires a positive step to be taken to discontinue or withdraw an application: a notification in writing of that action must be lodged with the Tribunal. Thus an application cannot be withdrawn orally or by telephone. It can, however, be done electronically (Acts Interpretation Act 1901 (Cth) s 2: definition of ‘writing’). Subsection (1AA) provides a limited

qualification to this requirement for applications in the Social Services and Child Support Division where the withdrawal or discontinuance of an application may be done orally. No form of words is specified for either written or oral notification. For a general comment on withdrawal procedures and their effect, see Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 126 ALD 396 at [51]–[59]. Subsection (1B) provides a statutory deeming of the Tribunal having dismissed an application after withdrawal by the applicant. Thus as soon as a notification under subs (1A) or an oral notice under subs (1AA) is given, the application is dismissed. An applicant cannot change his or her mind. See further Kalafatis, above, at [55]–[56]. The Act does not say directly what flows as a result of the dismissal of an application on its withdrawal. However, in Telstra Corporation Ltd v Flynn [2002] NSWCA 315; (2002) 55 NSWLR 303 the New South Wales Court of Appeal, after noting that, on receipt of notification of the withdrawal of an application, the AAT is taken to have dismissed the application, observed (at [20]): ‘If an application is [page 270] dismissed, the effect of the dismissal must by its nature, leave untouched that which went before.’ Accordingly, the original decision continues in effect. Even though an application has proceeded to hearing and the respondent has incurred costs in the defence of the application, the choice to continue or not is in the hands of the applicant: Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3), above; Uniden Australia Pty Ltd v Collector of Customs (1997) 74 FCR 1990; 46 ALD 326. This can seem unfair to a respondent which may have incurred considerable costs defending an application. However, as there is no provision for the AAT to award costs to a successful respondent, the respondent is in no worse position than if the matter had proceeded to judgment. (See below in relation to making a fresh application.) See Chapter 18 for the award of costs generally. Where the affairs of an applicant have been taken over by a trustee, liquidator,

etc, the continuance of an application to the Tribunal is at the discretion of that person. If the person declines to proceed with the application, the original applicant cannot maintain it and it should be dismissed under s 42A(1B): Re A and Federal Commissioner of Taxation (1997) 46 ALD 715. See further 5.11. Section 42A(1B) was inserted in the Act to make the status of a withdrawn application clear — it is dismissed not simply removed from the list: Re Pavlovic and Telstra Corporation Ltd (1994) 34 ALD 800. The dismissal is of the whole application — it is not possible for the AAT to dismiss a part of the application: Re Sanyo Australia Pty Ltd and Comptroller-General of Customs (1995) 21 AAR 524; Kalafatis, above, at [70]–[71] (cf 15.4 relating to dismissal by consent). However, in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [153] the Tribunal was prepared, with the consent of the parties, to affirm part of an FOI decision and that issue thereby ceased to be the subject of the application before the Tribunal. The Sanyo case, above, held that a party joined could not prevent an applicant withdrawing an application and the application thereby being dismissed. Since, under s 42A(1B), a withdrawal is deemed to constitute a dismissal, it would seem that s 42A(10) can be invoked to reinstate a withdrawal under s 42A(1A) provided that the conditions in s 42A(10), particularly the establishment of an ‘error’, are met: see 15.11. However, if the subsection is not satisfied, reinstatement is not possible and a fresh application will have to be made, see below. See Kalafatis, above, at [57]. (Re White and Repatriation Commission [2003] AATA 1323 seems to have been wrongly decided if the original application was dismissed pursuant to s 42A(1A) and (1B) because the AAT relied on s 42A(9) which is only applicable to a dismissal under s 42A(2) for failure to appear.) A fresh application can be made after a withdrawal although an extension of time to apply would almost certainly be required: see 15.20. [page 271]

FAILURE TO APPEAR: S 42A(2), (7)

General 15.6 An application may be dismissed if a party, other than the decisionmaker, fails to appear personally or by representative at the hearing of the proceeding, a directions hearing, or an alternative dispute resolution (ADR) process. Appearance can be by telephone or television (s 33A): see 13.40. The AAT must be satisfied that the applicant has been given proper notice before exercising its power to dismiss for non-appearance: s 42A(7). For an example of the exercise of the power under s 42A(2), see Re Gulf Meat Exporters Pty Ltd and Export Development Grants Board (1982) 4 ALN N207. An application for an extension of time to apply to the Tribunal is not a ‘proceeding’ within the meaning of that expression in the AAT Act. Accordingly, s 42A(2) cannot be invoked to dismiss an application for failure to attend the hearing of the application: Re Confidential and Child Support Registrar [2010] AATA 577; (2010) 116 ALD 623 at [9].

Migration and Refugee Division 15.7 Under ss 360 and 425 of the Migration Act an applicant for review of a Migration Act decision must be invited to appear before the Tribunal. Where an applicant fails to appear before the Tribunal following an invitation, ss 362B and 426A provide that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. For an example of an application of these provisions, see SZTXE v Minister for Immigration and Border Protection [2015] FCA 493. This provision was considered in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 139 ALD 181 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 at [49]ff. It was pointed out that, like all discretions, the discretion given the Tribunal to proceed to make a decision on the appeal must be exercised having regard to procedural and legal reasonableness requirements. In those cases a failure to grant an adjournment was held to be an unreasonable exercise of the power in s 360 to provide a meaningful opportunity to appear and the decision to continue the hearing had not been properly reached. The Tribunal’s exercise of the discretion to proceed in the absence of an applicant following the giving of an invitation must take into account the

Tribunal’s knowledge of the applicant’s circumstances. So where an applicant had actively pursued their application, the failure of the applicant to appear should have alerted the Tribunal to the need to make further inquiries as to whether the invitation had been properly given: Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619. Failure to do so meant that its decision was legally unreasonable and it therefore exceeded its jurisdiction: at [108], [141]. [page 272]

REINSTATEMENT OF APPLICATION DISMISSED FOR FAILURE TO APPEAR: S 42A(8), (8A), (9) 15.8 Where an application has been dismissed for non-appearance, a party to the proceeding can seek the reinstatement of the application by applying to the AAT within 28 days after receiving notification of the dismissal or within such further period as the Tribunal, in special circumstances, allows: s 42A(8A). The notification does not have to be received formally from the AAT. In Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; 72 ALD 652 advice of the dismissal conveyed to the applicant by his lawyer was considered to be notification. If the AAT ‘considers it appropriate to do so’, it may reinstate the application and give appropriate directions: s 42A(9). There is no indication in the provision of what might be considered appropriate reasons for reinstatement. The issue was first considered by the AAT in Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. The approach adopted was that followed in applications for an extension of time to make an application: see 6.18–6.32. The principles enunciated in relation to such applications in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 were applied. It was concluded that, as the applicant had not satisfactorily explained his failure to

attend the AAT proceedings and had only a remote chance of success on his application, the case should not be reinstated. The issue was subsequently considered in Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241. The Tribunal there took a different view of the basis for judging whether reinstatement should occur. It declined to follow the extension of time approach adopted in Manoli saying that it was based on a presumption that proceedings out of time should not be entertained and involved a consideration of the general public interest in matters being resolved promptly and fairly between all persons having like interests. The Tribunal preferred the approach adopted by the courts in considering applications for an order setting aside judgment against a party for failure to take a step in the proceeding. This is characterised as involving an applicant in a lower level of persuasion, it being sufficient to show a prima facie case and that it was fair to the other party to reinstate the matter. In Re Sobcuk and Commissioner of Taxation [2004] AATA 655; (2004) 81 ALD 650 Manoli was followed and Oates was not referred to. There it was held that the failure to appear was adequately explained but that the obvious lack of merit in the applicant’s case would make it a waste of time and resources to reinstate the application. Re Myers and Commissioner of Taxation [2004] AATA 1337; (2004) 85 ALD 453 was concerned with an application for reinstatement under s 42A(10) because the application was made after the 28 days referred to in s 42A(9) had expired. However, it is interesting to note that the Tribunal referred to both approaches to reinstatement noted here and indicated a preference for the extension of time analogy. In Re White and Secretary, Department of Families, Community Services and Indigenous affairs [2007] AATA 1712; (2007) 97 ALD 204 DP Forgie reiterated the views that she had expressed in Oates. [page 273] It will probably matter little in most cases which approach is adopted — the conduct of the applicant is likely to be a significant factor. If the applicant appears to be treating the AAT with indifference, the chance of reinstatement is likely to be low. If, on the other hand, there is an explanation for the failure to attend the proceedings and reinstatement will not disadvantage the respondent,

the chance of success will be greatly increased — provided that the case being put has some merit. See Kouieder v Federal Commissioner of Taxation [2000] AATA 342; (2000) 60 ALD 320 for an example of dismissal for non-appearance followed by an order reinstating the application. An application that has been dismissed under s 42A(2) may also be reinstated under s 42A(10) if it can be shown that the application had been dismissed in error: Goldie v Minister for Immigration and Multicultural affairs, above; Brehoi v Minister for Immigration and Multicultural affairs [1999] FCA 772; (1999) 58 ALD 385 (but note that the court in Goldie did not accept the limitation on the meaning of ‘error’ adopted in Brehoi). See 15.11 on the operation of s 42A(10). The Migration Act makes no provision for reinstatement of an application dealt with under ss 362B and 426A following a failure to appear.

DISMISSAL BECAUSE DECISION NOT REVIEWABLE: S 42A(4) 15.9 Section 42A(4) permits the AAT to dismiss an application to review a decision if it is satisfied that the decision is not reviewable by the AAT. See Luck v University of Southern Queensland [2008] FCA 1582; (2008) 107 ALD 543 and Re Duarte and Australian Maritime Safety Authority [2011] AATA 530; (2011) 127 ALD 620 as examples of the exercise of this power. A previous requirement that an applicant be given 14 days notice of the intention to exercise this power has been omitted from the section. The explanatory memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (Amalgamation Bill) states that it is sufficient to rely upon the requirements of procedural fairness. An application for an extension of time to apply to the Tribunal for review of a decision is not an application for review of that decision. Accordingly, s 42A(4) cannot be invoked to dismiss an application for an extension of time on the basis that the Tribunal has no jurisdiction to review the substantive decision: Re Confidential and Child Support Registrar [2010] AATA 577; (2010) 116 ALD 623 at [15]. See Chapter 3 in relation to the jurisdiction of the Tribunal.

DISMISSAL FOR FAILURE TO PROCEED: S 42A(5) 15.10 This provision gives statutory effect to a practice that the AAT had adopted early in its existence: Re Bragge and Repatriation Commission (1986) 10 ALN N136 and AAT Case 4878 (1989) 89 ATC 508; 20 ATR 3251. [page 274] However, a limitation on the operation of the power given by the section, at least for failure to comply with a direction, was imposed by the decision of Burchett J in Guse v Comcare (1997) 49 ALD 288. There it was held that the dismissal power should be regarded as one of last resort and only exercised after giving the non-complying party an opportunity to indicate why the direction had not been followed. The power could not be exercised ex parte on the advice of the other party to the application that the direction had not been complied with. Guse’s case was followed in Re Greening and Repatriation Commission (1998) 52 ALD 110 where it was held that an application had been dismissed in error because the applicant had not been forewarned of the likelihood of dismissal where her solicitor had failed to comply with directions from the Tribunal. A further significant limitation on the power to dismiss for failure to proceed with an application was imposed by Beard v Telstra Corporation Ltd [1999] FCA 999; (1999) 57 ALD 376. There Spender J upheld an appeal against the dismissal of an application on the ground that it had not been shown that the applicant was not prepared to proceed with the application. The applicant had been granted an adjournment to enable him to obtain medical reports. After very considerable delays and a number of pre-hearing conferences and hearings at which further time to obtain the reports was sought without explanation of why they had not been forthcoming, the Tribunal concluded that the applicant was not showing sufficient interest in proceeding with the application and dismissed it under s 42A(5). On the appeal, the court said that this was not a basis for dismissal permitted by the section. It was necessary to show that the applicant was not prepared to proceed. In this case the applicant had not been put to the test as a hearing date had not been set.

It would appear from this that mere dilatoriness in pursuing an application may not be sufficient to enliven the power under s 42A(5). The section requires that it must be apparent that the applicant has failed to proceed with the application and this fact must be established on the evidence, not by inference. Spender J’s interpretation of the section will make it difficult to judge failure to proceed unless the applicant fails to prosecute the appeal following listing for hearing. This is unfortunate as it should be possible for the AAT to come to a conclusion that a person is acting in such a way that they should no longer be permitted to engage the Tribunal’s time. This should not have to await the setting down of a matter for hearing. Section 2A was included in the AAT Act (see 1.6) after these decisions. It could well be that a different view would be taken if the matter were re-litigated. Whether an applicant is failing to proceed with an application will be an issue to be determined in each case. It will be relevant whether the applicant is selfrepresented as this may increase the possibility that he or she may not understand the implications of their conduct. However, if it is apparent from the facts that the applicant is not pursuing the application, the Tribunal is entitled to exercise the power to dismiss: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous affairs [2011] FCA 299; (2011) 121 ALD 242; Re Byrt and Commissioner of Taxation [2013] AATA 862; (2013) 140 ALD 236. [page 275] In Re Vilips and Migration Agents Registration Authority [2007] AATA 1613; (2007) 96 ALD 249 at [17] the AAT noted that the mere fact that delay had been caused by a medical condition was not in itself sufficient to give an applicant a right to maintain a matter before the Tribunal indefinitely. This is particularly the case if the evidence shows that there is no reasonable prospect of the condition being resolved in the foreseeable future. Re McGrath and Inspector-General in Bankruptcy [2011] AATA 27; (2011) 119 ALD 439 was an application under the alternative basis for invocation of s 42(5), failure to comply with a direction. The Tribunal declined to make the order sought, stating at [20] that the discretion to dismiss should be exercised sparingly and only in the clearest cases. Section 42A(5) applies only to an applicant. Failure by a party joined to comply with the directions of the Tribunal cannot result in

the party being dismissed from the proceedings: Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289 at [201].

REINSTATEMENT OF APPLICATION: S 42A(10) 15.11 Subsections 42A(8) and (9) relate to reinstatement of an application that has been dismissed under s 42A(2) for failure of an applicant to appear: see 15.6. Section 42A(10) applies to all other types of dismissal under s 42A (but not s 42B). See Brehoi v Minister for Immigration and Multicultural affairs [1999] FCA 772; (1999) 58 ALD 385 for a discussion of the difference between the reinstatement provisions but note that Goldie v Minister for Immigration and Multicultural and Indigenous affairs [2002] FCAFC 367; (2002) 121 FCR 383; 72 ALD 652 qualifies some comments in that case on the operation of s 42A(10). Section 42A(10) permits the AAT to reinstate an application that has been dismissed in error and give such directions as appear to it to be appropriate in the circumstances. Subsection (10) does not spell out the nature of the errors that might attract its operation. Prior to the enactment of the subsection in 1993, the AAT had been prepared to reinstate an application by applying a slip rule approach where the AAT itself had made a mistake: Re Pontin and Repatriation Commission (1991) 22 ALD 191. It had also expressed the view that an agreed withdrawal was a nullity where it was apparent that the parties were in fact not in agreement: Re Faulkner and Repatriation Commission (1990) 21 ALD 633; Pontin’s case, above; but cf Re Nicholson and Secretary, Department of Social Security (1989) 18 ALD 115; Re Simcock and Telstra Corporation Ltd (1994) 33 ALD 247. The position post amendment was uncertain for some time but now seems settled. The issue in question was whether the ‘error’ that would attract the operation of the section was limited to an ‘administrative’ error, that is, it was concerned with something in the nature of a slip rule, or whether it applied to any error. A number of AAT decisions supported each of the competing views. The matter then looked

[page 276] to have been resolved in favour of the slip rule approach by unanimous, albeit obiter, comments of a Full Court of the Federal Court in Brehoi’s case, above. However, the issue was revisited directly by a differently constituted Full Court in Goldie’s case, above. There it was said that the intention of s 42A(10) was that, where any error in the application of s 42A led to the dismissal of an application, that dismissal could be set aside and the application reinstated. The comments in Brehoi’s case were considered carefully and rejected as a misunderstanding of the meaning of the subsection. A like approach to that in Goldie was taken without discussion of the issue in Katterns v Comcare [2002] FCA 1366. Dowsett J there set aside a decision of the Tribunal refusing to reinstate an application dismissed for failure to proceed because it was said that no administrative error had been made. The error in question was a breach of procedural fairness. His Honour indicated that such an error of law fell within the scope of s 42A(10). Goldie was also followed in SZLIO v Administrative Appeals Tribunal [2008] FCA 124. It appears that it should be taken as stating the approach to be followed. A refinement of the nature of the error that must be established was discussed in Re White and Secretary, Department of Families, Community Services and Indigenous affairs [2007] AATA 1712; (2007) 97 ALD 204. Deputy President Forgie noted that the court in Goldie’s case had referred to ‘the act of dismissal’ having to be attended with error. She posed the question whether the error had therefore to have been one made by the Tribunal or whether it meant any error that resulted in the dismissal. She concluded that Goldie’s case had intended to adopt the latter interpretation because an example referred to in that case was of an error on the part of a legal adviser that resulted in the dismissal of the application. However, the Deputy President noted that this left open the question of the connection that had to exist between the error and the dismissal. Issues of proximity will clearly arise. Goldie was applied in Re Myers and Commissioner of Taxation [2004] AATA 1337; (2004) 85 ALD 453 where the error in question was a misapprehension on the part of the applicant as to the effect of his actions in withdrawing his application resulting in its dismissal. (However, see the qualification on this approach applied in Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; (2008) 104 ALD 662.) See also Re

Taxpayers and Commissioner of Taxation [2010] AATA 899; (2010) 118 ALD 627; Re Samir Pty Ltd and Aged Care Standards and Accreditation Agency Ltd [2013] AATA 194; (2013) 135 ALD 567. 15.12 The power to reinstate is founded upon the establishment of an error and if this cannot be identified the AAT is functus officio: Re Pavlovic and Telstra Corporation Ltd (1994) 34 ALD 800; Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281. See 17.26–17.29 on functus officio. In Re Wilson and Commissioner of Taxation [2007] AATA 1721; (2007) 98 ALD 99 the claimed error was characterised as the forensic tactics adopted by the applicant. The fact that it had not worked out [page 277] as he had hoped did not mean that an error had led to the dismissal of the application. In like vein is Re Grass and Minister for Immigration and Citizenship [2011] AATA 495; (2011) 126 ALD 580. In Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; (2008) 104 ALD 662 at [22] the Tribunal said: Acting to withdraw an application in an ill-informed or precipitate manner, ignorant of the effect of the withdrawal, does not mean that the application was dismissed in error. Ignorance may lead to error. It does not follow, however, that action taken in ignorance is action predicated on error. See also Re Byrt and Commissioner of Taxation (No 2) [2014] AATA 30; (2014) ALD 440. Acting on legal advice subsequently suggested to be questionable is not an ‘error’. Nor is acting on the basis of then existing financial or personal circumstances: Re Novosel and Comcare [2011] AATA 182; (2011) 121 ALD 172. Section 42A(10) of the AAT Act can only be invoked where there has been a ‘dismissal’ of an application. Accordingly, if a consent order varies the decision under review, affirming it in part and setting aside a part of the decision and substituting a decision for that part, it may well not amount to a dismissal of the application: Re Aldridge and Repatriation Commission [2012] AATA 571; (2012) 130 ALD 698. It must be borne in mind that reinstatement does not flow automatically from the establishment of an error. The right to reinstate is

discretionary — the AAT may reinstate the application — so it is necessary for the Tribunal to be satisfied that reinstatement is appropriate in the circumstances of the particular case: Re Schramm and Repatriation Commission (1998) 54 ALD 501. The Tribunal in Re White and Secretary, Department of Families, Community Services and Indigenous affairs [2007] AATA 1712; (2007) 97 ALD 204 considered the factors that should govern the exercise of the discretion to reinstate an application that has been dismissed. Reference was made to the need to have regard to the efficiency of the Tribunal’s case management; fairness to the parties; and the strength of the applicant’s case. The existence of the power to reinstate an application provided by s 42A(10) means that it is not proper to imply into s 43 a general power to revoke or vary a decision once made: Re Sanchez and Comcare (1997) 48 ALD 785 at 788. See Oliver R Jones, ‘Neglectful Statutory Interpretation? A Commentary on Goldie v Minister for Immigration and Multicultural and Indigenous affairs’ (2005) 45 AIAL Forum 48 for a critical analysis of the conclusion in Goldie.

EXTENSION OF OPERATION OF S 42A: S 69BA 15.13 Section 69BA which was inserted in the AAT Act by the Tribunals Amalgamation Act 2015 (Cth) (Amalgamation Act) extends the operation of s 42A (except subs (4)) with some minor modifications to all other applications that fall within the definition of ‘proceedings’ before the Tribunal, not just applications for review. It is thus now possible for the Tribunal to dismiss the various subsidiary [page 278] applications that are referred to in the definition. The whole of s 42A applies to any such dismissal so the provisions of the section relating to reinstatement of the application would also apply.

DISMISSAL OF FRIVOLOUS OR

VEXATIOUS APPLICATIONS: S 42B Jurisdiction 15.14 The amendments to the AAT Act made in 2015 repealed and remade s 42B to provide that the Tribunal may dismiss an application for review of a decision if the Tribunal is satisfied that the application is: (a) frivolous, vexatious, misconceived or lacking in substance; (b) has no reasonable prospect of success; or (c) is otherwise an abuse of the process of the Tribunal. Previously the power to dismiss was limited to an application that the Tribunal was satisfied was frivolous or vexatious. On its face, the amended version of the section would appear to vest a wider power in the Tribunal than its previous iteration. However, the interpretation of ‘frivolous or vexatious’ by the Tribunal had covered much of what is now spelled out in the section. It is therefore instructive to set out the previous application of the section. This will in any case still provide guidance to the application of the ‘frivolous or vexatious’ ground in the future. The social welfare legislation empowering the Social Security Appeals Tribunal to review decisions made like provision for dismissal of an application. The specific provisions have been repealed and the AAT Act now provides the power for the AAT when hearing applications in the Social Services and Child Support Division to dismiss applications. The Migration Act does not include a specific power to dismiss an application on these grounds. It should be noted that under both the old and new versions of s 42B the AAT is authorised not only to dismiss an application but also to direct that no like applications can be made without the leave of the AAT. Such a direction has effect ‘despite any other provision of [the AAT Act] or a provision of any other Act’. The AAT may discharge or vary a direction under the section: Acts Interpretation Act 1901 (Cth) s 33. The AAT has made it clear that the power in s 42B is to be used carefully. If a legitimate purpose could be achieved by allowing the application to continue, it should not be prevented: Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) 82 ALD 514. However, if the application can serve no purpose for the applicant, it should not continue to use Tribunal time and resources: Re

Williams and Australian Electoral Commission (1995) 38 ALD 366; Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963; (2007) 99 ALD 106. Such a conclusion can [page 279] only be reached after considering the merits of the application for review: Theo v Secretary, Department of Family and Community Services [2006] FCA 279 where a decision of the AAT under s 42B was set aside because it had relied upon the outcome of a number of other applications without considering the evidence in those applications. The power in s 42B is applicable to the whole of an application. It cannot be used in relation to one part of an application: Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 247 at [13]. (It should be noted that an application may also be dismissed by invoking the power under s 33 of the AAT Act to give directions: Re Quinn and Australian Postal Corporation (1992) 15 AAR 519; Re Grimsley and Telstra Corporation Ltd [2010] AATA 106; Re Ashton and Linfox Armaguard Pty Ltd [2011] AATA 579; (2011) 128 ALD 593: see further 10.10, 17.7.) The most frequently cited discussion in the past of the approach that should be taken to s 42B applications was that which appeared in Re Williams and Australian Electoral Commission, above. Among the points made there was that an applicant who genuinely believed that he or she had a basis to bring an application was entitled to a ‘day in court’. Merely because a person’s case appeared weak was not a basis for declining to hear the application: see also Re Christ Circle Oriona Community Inc and Deputy Commissioner of Taxation (1995) 31 ATR 1001; 95 ATC 2040; [1995] Admin Review 48. This approach may now be affected by the express direction in s 42B(1)(b) for the Tribunal to consider whether an application ‘has a reasonable prospect of success’. This would seem to set a higher standard than that followed under the previous form of the section. Merely because a person believes in their cause would no longer seem to entitle them to continue an application that has no reasonable prospect of success. The Tribunal will have to determine the merits of the case if an application for dismissal under s 42B is made.

The Tribunal had previously held that, if the proceedings are futile or are being pursued for a collateral purpose, that is, a purpose that is irrelevant to any issue which could legitimately be raised in the proceedings, the application should be dismissed: Williams, above, at 373. This approach would seem to be confirmed by the reference in the new version of s 42B which refers to the dismissal of an application that is misconceived or lacking in substance. However, regard should still be paid to Re Hinds and Australian National University [2012] AATA 495; (2012) 129 ALD 476 where the Tribunal, picking up the point that the dismissal power should be used sparingly, said that it will only be where the collateral purpose is the predominant reason for pursuing the application that s 42B should be invoked. In Singh v Secretary, Department of Employment and Workplace Relations [2006] AATA 1381; (2006) 95 ALD 569 Weinberg J indicated that the general law adopted by the courts relating to the dismissal of applications by vexatious litigants was applicable to applications to the Tribunal under s 42B. See also Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595. [page 280]

Principles on which order may be made 15.15 In Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 DP Jarvis set out the principles that should be followed in regard to s 42B applications under the previous version of the section. It is likely that this statement will continue to provide guidance as to the application of the section in its new form. The Deputy President’s judgment at [33] reads: I think that applications for dismissal under s 42B should be approached according to the following principles: (a) The word ‘frivolous’ in combination with ‘vexatious’ is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].

(b) The expression ‘vexatious’ can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are ‘so obviously untenable or manifestly groundless as to be utterly hopeless’: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have ‘no reasonable prospect at all of success’: Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [24], per Madgwick J. (c) The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129–130. (d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing. (e) Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded. (f) Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document

in this [page 281] tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33]–[35]. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B. (g) Section 42B presupposes that the tribunal has jurisdiction, since it empowers the tribunal to dismiss the application, and also in appropriate cases, to direct that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction. If the tribunal has no jurisdiction to review the decision in question, it would not have power to take the steps contemplated by s 42B. Deputy President Jarvis referred to these principles in the later decision of Re Hopkins and Repatriation Commission [2013] AATA 270 noting that, while they had been stated in the context of an application under the Safety, Rehabilitation and Compensation Act 1988 (Cth), they were applicable also to applications under the Veterans’ Entitlement Act 1986 (Cth). Indeed, they seem applicable generally to all AAT applications. Particular care must be taken when dismissal is sought on the basis that a previous decision of the Tribunal has dealt with the same issues as are raised by a new application. The Tribunal cannot pre-judge future events and it may be that where an applicant is concerned with a continuing state of affairs such as a disability, he or she will be entitled to return to the AAT despite an earlier finding that there was no basis for making a claim: Plumb v Comcare (1992) 39 FCR 236; Re Romanov-Hughes and Comcare [2001] AATA 1030; (2001) 66 ALD

471 (and the cases cited); Re Slater and Telstra Corporation [2005] AATA 527 and see particularly Administrative Law Bulletin (LexisNexis) at [6950]; Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous affairs [2013] AATA 247 at [13]; Hopkins’ case, above. But cf Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069; (2005) 89 ALD 180; Re Kirk and Repatriation Commission [2007] AATA 1364; (2007) 95 ALD 506 where it was said that the new application raised nothing new and had no reasonable prospects of success. (However, compare the later decision in Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595 at [126] where later evidence suggested a different conclusion should be reached.) Where the applicant is only seeking restoration of honour and has no chance of success, the AAT is not obliged to hear the matter: Re Irving and Repatriation Commission (1997) 46 ALD 20. Re Williams and Australian Electoral Commission (1995) 38 ALD 366 noted that an application that is legitimate when commenced can become vexatious because of changes of circumstances. In particular, if no purpose will be achieved [page 282] by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out. See further 15.16. However, while there can be circumstances where the passage of time means that the reversal of the decision in dispute cannot assist the person affected by it, the fact that an adverse decision has been made can have a continuing effect. The recording of an adverse decision on a government website provides an example of this type of situation and has prompted the AAT to refuse to dismiss proceedings as vexatious even though the decision in question may no longer impinge directly on the applicant: Re Fleet Management Ltd and Australian Maritime Safety Authority [2006] AATA 390; Re Vilips and Migration Agents Registration Authority [2007] AATA 1613; (2007) 96 ALD 249.

Futility of continuing application

15.16 While ‘futility’ is not a nominated ground for dismissal, if the Tribunal is persuaded that it is an apt way to describe the applicant’s case it will dismiss the proceedings. It could properly be described as an abuse of the process of the Tribunal. Examples of this approach under the former version of the section are: Re McIntyre and Comcare (1997) 48 ALD 437: recovery of damages meant a compensation claim could not be pursued; Re Nugent and Minister for Urban Services (2000) 61 ALD 570: a challenge to a refusal to approve a structure was rendered futile by a change in the law removing the need to obtain approval; Re Rundle and Civil Aviation Safety Authority [2002] AATA 349; (2002) 68 ALD 234: a change of circumstance meant that the Tribunal could not grant the licence sought; Re Johnson and Veterans’ Review Board [2004] AATA 242; (2004) 80 ALD 659: the issue had previously been dealt with by the Tribunal, no error on its part going to jurisdiction was shown and the argument now being put was, in any case, not sustainable; Re Kirk and Repatriation Commission [2007] AATA 1364; (2007) 95 ALD 506: the fact that there were two previous decisions of the Tribunal on the same issue rendered a third application ‘untenable’; and Re Hawkins and Minister for the Arts [2013] AATA 835; (2013) 61 AAR 523: the applicant agreed with the decisions challenged but was bringing the action to enable him to challenge another decision. Other examples of circumstances in which the AAT has exercised the power to dismiss applications under s 42B are where the AAT would be unable to make a decision that would provide the applicant with any greater benefit than was provided by the decision sought to be reviewed (Re Knight and Comcare (1994) 36 ALD 417 at 423; Re Bergen and Secretary, Department of Social Security (1994) 36 ALD 717) and where the decision-maker has revoked the decision under review leaving no decision on [page 283] which an order of the AAT might operate: Re Coyne and Comcare (1995) 37 ALD

553; Re Farnan and Inspector-General in Bankruptcy (2007) 95 ALD 186. A significant basis for the dismissal of an application under s 42B has been where circumstances have changed since the making of an application and the basis on which the applicant had standing to apply no longer exists: see 5.9. Lack of practical benefit to the applicant and the cost that the respondent would incur in defending the claim were factors taken into account in Re Irving and Repatriation Commission (1997) 46 ALD 20 and Re Canberra Raiders Sports Club and Commissioner for ACT Revenue (1999) 59 ALD 229. The fact of the applicant making an irrevocable election to pursue an action for common law damages made continuance of a challenge to a Comcare determination irrelevant: Re Lambe and Australian Postal Corporation (1999) 58 ALD 755.

Supplementary orders 15.17 An order directing that no subsequent applications be made without leave of the Tribunal (s 42B(2)) has been held to be only able to be made in respect of applications that are within the Tribunal’s jurisdiction to review: Re Tait and Secretary, Department of Family and Community Services [2003] AATA 413; (2003) 74 ALD 247. If this is correct, it will be necessary to apply to have the applications not within jurisdiction dismissed: see s 42A(4). A direction under s 42B(2) can only apply to applications to the Tribunal and should state this: Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381; (2006) 95 ALD 569 at [45]. A variant from dismissal was provided by Re Zografakis and Telstra Corporation Ltd (1996) 44 ALD 182. There the Tribunal did not consider it appropriate to dismiss the application as frivolous but it used its power under s 33 of the AAT Act to give directions to limit the matters that could be dealt with on the application.

Appeals 15.18 An order under s 42B dismissing an application for review may be the subject of appeal under s 44 of the AAT Act as it effectively disposes of the application. However, where an application for an order under s 42B is refused, that decision cannot be the subject of an appeal under s 44 as, not being made under s 43, it is not a ‘decision’ in the ‘proceeding’: Board of Examiners under the

Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255; 62 ALD 535 at [62]; Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510. However, cf Australian Prudential Regulation Authority v Tidswell Administration Ltd [2003] FCA 1446; (2003) 134 FCR 265; 77 ALD 17 where it seems to have been assumed that an application could be made under s 44 to review a decision refusing to dismiss an application pursuant to s 42B. A refusal to dismiss an application as frivolous or vexatious is reviewable on judicial review grounds under the AD(JR) Act or s 39B of the Judiciary Act 1903 (Cth): see 19.60–19.62. [page 284] See generally also the discussion of issue estoppel at 17.7: an assertion that a matter has already been the subject of a decision of the Tribunal frequently founds an application for dismissal under s 42B.

NEW APPLICATION 15.19 The fact that an application has been dismissed under s 42B does not prevent a fresh application being made to review the decision in question. It was held in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 that a distinction must be drawn between the dismissal of an application after a decision on the merits and a dismissal on other grounds. In the former case the principles of estoppel arise: see 17.7. In the latter case, provided that the applicant can justify the grant of an extension of time to apply (see 6.34), the AAT has jurisdiction to hear a new application. See also Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 at 544; Re Head and Australian Telecommunications Corporation [1992] Admin Review 112; Re Hunter and Secretary, Department of Families, Community Services and Indigenous affairs [2006] AATA 1062; (2006) 100 ALD 140; Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811; (2008) 104 ALD 662; Re Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049; (2008) 105 ALD 664. As noted at 15.17, where, following an order that an application be dismissed

as frivolous or vexatious, a direction has been made that a fresh application may not be lodged without the leave of the AAT, that direction may be discharged or varied.

CONSENT DECISIONS: S 42C 15.20 Section 42C provides that if, at any stage of a proceeding, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings, the AAT is to make a decision in accordance with the agreement provided that the terms of the agreement are reduced to writing and the AAT is satisfied that a decision in those terms would be within the powers of the AAT. An exception to this power is provided in relation to agreements reached during the course of ADR: see 10.9. Also made subject to compliance with certain conditions are child support agreements: see s 42C(4). An agreement acted upon by the Tribunal may be revoked or varied by the Tribunal if the parties reach a different agreement: s 42C(5). In Re Higginbotham (GM) and Repatriation Commission (1994) 35 ALD 179 the AAT said that s 42C meant that a decision could be made by consent at any time after the lodgement of the application and before the AAT had handed down a decision. [page 285] It should be noted that s 42C provides that ‘the Tribunal may, if it appears appropriate to do so’ make a decision: see s 42C(1). This gives the AAT a discretion to refuse to make a consent decision. In Re Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119 the Tribunal said that there were two conditions that had to be satisfied before the Tribunal would permit a matter to be determined by consent: the Tribunal has to be satisfied as to the lawfulness of the proposed decision and also of its propriety. In that case, the initial agreement between the parties included a provision that the applicant would make no future claim against the respondent. The Tribunal considered that this did not accord with the terms of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and that agreement to a dismissal by consent was only possible if this provision were altered. Presumably consent might also be

refused if it were thought that one party was being overborne by the other and was being induced to agree to an unreasonable or inappropriate decision. The Federal Court in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323; 59 ALD 71 set out the circumstances in which it was appropriate for the court in judicial proceedings to make an order by consent of the parties. It is likely that these factors will be followed by the AAT in considering a request to make a consent decision. Adapting the court’s language to the AAT: The proposed order must be self-explanatory; it is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record. If a matter is to be referred back to the decision-maker for further consideration, the nature of any error in the original decision must be identified for the benefit of the decision-maker. The consent order must disclose the basis on which the original decision is to be set aside. The AAT can only make a decision by consent that is within its jurisdiction — a purported decision beyond its power will be a nullity: Re Cooney and Repatriation Commission (1991) 23 ALD 431. The order must be clear and complete so that it discloses to the public and to the decision-maker what the parties agreed should be its content. 15.21 The AAT had previously indicated that it could adopt a ‘slip rule’ approach to correct the decision based on the agreement if necessary: see 17.24. Subsection 42C(5) which was included in the Act in 2015 would seem to overcome any problems requiring an agreement to be revisited. Where the Tribunal has not made a jurisdictional error and has properly exercised its powers and the decision accurately represents the agreement between the parties, the Tribunal cannot reconsider the matter because the parties are later in disagreement as to the effect of the decision: Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227; (2006) 90 ALD 457; Re D’Alfonso and Telstra Corporation Ltd [2006] AATA 492; (2006) 90 ALD 767. [page 286]

Where an agreement is reached between the parties but is not reduced to writing the AAT is not bound to give effect to it. Section 42C requires a written agreement to enliven its effect. However, the AAT is entitled to take into account any agreement the parties put before it and reach a decision in accordance with that agreement: Re Lombardo and Commonwealth (1985) 8 ALD 334. A decision of the AAT entered by consent can support a plea of res judicata and prevent the AAT reopening a matter: Bogaards v McMahon (1988) 15 ALD 313. See further 17.9. However, it must be clear that it is the previous issue that is the subject of the new action and not some variant of it that has not been resolved previously: Re Ashton and Linfox Armaguard Pty Ltd [2011] AATA 579; (2011) 128 ALD 593. A consent decision can only be made in respect of all the issues in an application, not part only: Re Higginbotham (GM) and Repatriation Commission (1994) 35 ALD 179; cf the similar view on consent dismissals in Re Robinson and Repatriation Commission (1991) 25 ALD 130; and 15.4. A consent decision can give rise to an enforceable agreement: Civil Aviation Safety Authority v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111. The Court of Appeal was satisfied that the agreement to compromise AAT proceedings there did not breach the requirements of the Civil Aviation Act 1988 (Cth) relating to safety requirements. Nor did it purport to bind the subsequent exercise of the Authority’s discretion under the Act. Usually a consent decision will be given effect by the agency doing what it has undertaken to do as part of the decision. However, this case indicates that, provided the conditions alluded to are met, the agreement to settle the review proceedings will be enforceable as a contract in an appropriate court. A special procedure is adopted by s 181 of the Social Security Administration Act in relation to proceedings before the AAT that relate to the recovery of a debt. The Secretary may agree, in writing, with other parties to settle the proceedings. If the Secretary gives the Tribunal a copy of the agreement to settle, the application for review is taken to have been dismissed.

REMITTAL OF MATTER FOR FURTHER CONSIDERATION: S

42D 15.22 Section 42D permits the AAT to remit a matter for reconsideration by the decision-maker. However, this power cannot be exercised in regard to first review proceedings in the Social Services and Child Support Division. The explanatory memorandum to the Amalgamation Bill says that this exception is made to avoid delay and given the need for efficiency and timeliness in the review of decisions relating to social services. The remittal power has no application to proceedings in the Migration and Refugee Division. Section 42D refers to the remitter occurring at any stage of the proceeding for review. The section preserves the right of the applicant to revive his or her application if the decision after reconsideration is still not considered to be favourable. [page 287] The reconsidered decision then becomes the decision under review: see, as an example, Re Montgomery Wools Pty Ltd (as trustee for Montgomery Wools Pty Ltd Super Fund) and Commissioner of Taxation [2012] AATA 61; (2012) 128 ALD 406. That decision also points out issues that can arise in identifying the terms of the decision which should be reviewed by the Tribunal where the original decision is varied following a remittal. See also Re Aspen Pharmacare Australia Pty Ltd and Minister for Health and Ageing [2012] AATA 362; (2012) 128 ALD 660 and the follow up in [2012] AATA 376 where the Tribunal referred the matter to the parties for further consideration with a view to reaching an agreed solution to the matters that led to the application for review. See also Re Abbott and Australian Postal Corporation [2012] AATA 629; (2012) 132 ALD 573 where problems arose over whether the original application should continue as the basis for the AAT’s review or whether that application should be withdrawn and a new application lodged. In Re The Company and Federal Commissioner of Taxation (1998) 50 Admin Review 37 the AAT was urged to remit at the directions hearing stage. The Tribunal declined so to act saying that the power to remit should only be exercised at this early stage of proceedings where it was shown that the reasons for decision were

a sham or it was clear that the decision-maker had not applied his or her mind to the matter in question. Deputy President Forgie observed in Re Lavery and Registrar, Supreme Court of Queensland [1996] AATA 84 that there was no clear guidance either in the section itself or in the explanatory memorandum relating to the bill that introduced it as to the circumstances in which the discretion provided for in s 42D should be exercised. In that case, she noted that a matter should not be referred back to the decision-maker if the powers of the Tribunal could be used to overcome the problem said to require the referral back. For example, inadequacy of the reasons provided in support of the decision would not justify the use of s 42D as the Tribunal could require the supplementation of the reasons itself. Likewise if the decision-maker wants to amend the basis for the decision: Re Murdaca and Australian Securities and Investments Commission [2010] AATA 792; (2010) 118 ALD 202 at [25]. The case-management powers and practices of the Tribunal will overcome most problems. This was the approach followed in NT98/41-48 and Commissioner of Taxation (1998) 39 ATR 1032; [1998] AATA 311. It is to be noted that, in the cases referred to in the last paragraph, one of the parties opposed the invocation of the section. There is some support for the view that it should only be in exceptional circumstances that a matter is referred back for reconsideration where there is not agreement of the parties as to that course of action: NT98/41-48, above; N1112/00A v Minister for Immigration and Multicultural affairs [2000] FCA 1597. The reconsideration of a decision referred back must occur within a specified time — either within a period specified by the Tribunal or within 28 days. If this time limit is not adhered to, the decision-maker is taken to have affirmed the decision and the proceeding before the Tribunal resumes: see subss 42D(5)–(8). [page 288] 15.23 Section 42D is used by the Tribunal from time to time (sometimes it seems to be cited where it is really the power under s 43(1)(c)(ii) that is being invoked: see 17.2). The clear case for its use is where evidence has emerged in the course of the hearing that may affect the decision and it is desirable that the decision-maker be given the chance to consider and investigate the material further: see, for example, Re Slater and Repatriation Commission [1999] AATA 336;

Re Winpar Holdings Ltd and Australian Securities and Investments Commission [2000] AATA 980; Re Ego Pharmaceuticals Pty Ltd and Minister for Health and Ageing [2010] AATA 935; (2010) 120 ALD 105 (where the Tribunal considered whether the better course was to set the decision aside under s 43 or use the remittal power in s 42D). Another circumstance in which s 42D may be invoked is where a significant issue is raised by an applicant during the course of a proceeding and the respondent has not had a chance to consider it: Re Bendel and Inspector-General in Bankruptcy [2001] AATA 179. In Re SRRRRR and Commissioner of Taxation [2008] AATA 181; (2008) 100 ALD 690 the Tribunal emphasised that the relevant question for determining whether to exercise the power is what course of action will involve the most efficient disposition of the issues before the Tribunal at the least cost in the future; see also the discussion in Ego Pharmaceuticals, above. The Tribunal in Ego Pharmaceuticals, above, observed that it is not possible on a referral under s 42D for the Tribunal to include any direction as to the way in which the reconsideration is to be undertaken. A Full Federal Court in Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; (2013) 305 ALR 534 at [15] affirmed this position. If the Tribunal wishes to direct the decision-maker as to the way in which a reconsideration is to occur, including the matters that are to be taken into account on that reconsideration, it must use the power to set aside the decision and remit it for reconsideration under s 43(1)(c)(ii). It should be borne in mind that the power in s 42D does not permit the Tribunal ‘to compel the original decision-maker to make a decision different from that made in the first place’: Bienstein v Family Court [2008] FCA 1138; (2008) 170 FCR 382; 251 ALR 453 per Gray J at [39]. See further David Richards, ‘Remittal Orders and Reconsiderations in the AAT’, Ethos (ACT Law Society), March 2005, p 18 in relation to the effect in particular of referring for reconsideration decisions of Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

[page 289]

CHAPTER 16 POWERS AFTER HEARING REVIEW BY AAT: GENERAL POWERS: S 43 Introduction 16.1 Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) contains the provisions fundamental to the operation of the Administrative Appeals Tribunal (AAT). The powers of the AAT on a review are set out in s 43(1). Subject to any modification in the enactment conferring jurisdiction, the AAT may do one of three things: affirm the decision under review; or vary the decision under review; or set aside the decision under review and either make a decision in substitution for the decision so set aside or remit the matter for reconsideration in accordance with any directions or recommendations of the AAT. However, this general statement of powers does not apply to proceedings in the Migration and Refugee Division (see 16.2) and the Social Services and Child Support Division: see 16.3.

Migration and Refugee Division 16.2 Sections 349(2) and 415(2) set out the powers of the Tribunal on review of a Migration Act 1958 (Cth) (Migration Act) decision in terms very similar to s

43 of the AAT Act. The main distinction is that the power to remit a matter for reconsideration is limited to prescribed matters. Matters are prescribed for the purposes of s 415 (see Migration Regulations 1994 (Cth) reg 4.33), but it appears that no decisions have been prescribed for s 349. If the Tribunal varies the decision or substitutes a decision, the varied or substituted decision is taken to be a decision of the Minister: ss 349(3), 415(3). There is also an admonition that [page 290] the Tribunal must not, by varying or substituting a decision, make a decision that is not authorised by the Act or regulations. In light of the similarities in the empowering provisions, most of what is said below relating to s 43 of the AAT Act will be applicable also to decisions of the Tribunal on proceedings in the Migration and Refugee Division. A large number of the cases referred to are appeals from migration tribunal decisions and so are directly relevant to proceedings in that Division.

Social Services and Child Support Division 16.3 The operation of s 43 is considerably modified by s 147 of the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) in regard to first-tier reviews. Reference should be made to this section when considering the powers vested in the Tribunal on such reviews. Section 43 applies without modification to second-tier reviews.

General operation of s 43 16.4 The basic obligation of the Tribunal is to reach the decision that it considers to be the correct and preferable decision. Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 said: ‘The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.’ This duty may be described as being ‘to make the correct and preferable decision’. It is usually said that the duty of the Tribunal is to make the correct or

preferable decision. However, that there is a distinction between the two formulae is brought out well in Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) (2004) 82 ALD 163 at 194 where the Tribunal said: The Tribunal may conclude that there is only one decision that is correct on the facts it has found on the evidence and according to the law that it must apply. It then makes its decision accordingly. In other circumstances, it may conclude that more than one decision may correctly be made. If that is so, the role of the Tribunal is to determine which decision is the preferable decision and so the correct and preferable decision. To enable the AAT to reach the correct conclusion on the review, it may exercise all the powers and discretions that are conferred on the decision-maker. By s 43(6), the decision of the AAT is deemed to be the decision of the decisionmaker: see 17.5. The effect of these provisions is to establish that the AAT fits within the executive framework by making decisions that become decisions of the executive government and are to be carried out accordingly: Re Adams and Tax Agents Board (1976) 1 ALD 251; Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; Re Watt and Delegate of the Secretary, Department of Transport (1978) 1 ALD 242. [page 291] In performing its functions, the AAT is not exercising the judicial power of the Commonwealth: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. Since the AAT is acting as part of the executive, it must exercise any discretion after the fashion of an administrator and not as if the decision-making power were vested in a judge: Re Winthrop and Smith and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 873; Re Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing [2009] AATA 840; (2009) 113 ALD 546 at [22]. 16.5 When the AAT affirms a decision or when it sets aside a decision and remits it to the decision-maker for reconsideration, it is exercising the power given by s 43 of the AAT Act, not the power conferred by the enactment under

which the original decision was taken. The actions of the AAT under s 43(1) were described in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 thus: The tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s 43(1) to take effect under the ‘relevant enactment’, the grant to the tribunal of the original repository’s powers and discretions makes its order effective under the enactment. Not all of the orders for which s 43(1) provides are orders which draw upon the original grant of powers and discretions. A decision by the tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the tribunal. Section 43(1) grants the original powers and discretions to the tribunal, but it does not require the tribunal to exercise them unless the tribunal is making a fresh order the effectiveness of which depends upon their exercise. Wilcox J in Commonwealth v Ford (1986) 9 ALD 433 at 438 expanded on this statement by saying (in the context of review of a decision by the Commissioner for Employees’ Compensation): The condition precedent to the entitlement of a party to seek review is that ‘a determination by the Commissioner is made under this Act’. Had no determination been made, then — whatever other remedies might have been available — no relief before the tribunal could have been obtained. This is all that is meant by the statement that the tribunal is not a primary decision-maker. But once there is a decision by the primary decision-maker which is, by the relevant legislation, susceptible of review, the tribunal has jurisdiction to undertake a review and it has the power to make such decision as — upon the facts proved before it — is appropriate to be made. For further consideration see Powell v Department of Immigration and Multicultural Affairs (1998) 89 FCR 1; 53 ALD 228 applying Szajntop v Gerber (1992) 28 ALD 187; Madaferri v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326; 70 ALD 644 at [68]. See also Williams v Minister for

Immigration and Border Protection [2014] FCA 674; (2014) 142 ALD 76 at [60]. The categorisation of the [page 292] source of the Tribunal’s power set out in these cases can have significance, as the cases demonstrate, in relation to review of an AAT decision where there are constraints on review of the original decision by a court. The position is less clear where the AAT overturns a decision and substitutes another in its stead. This is acknowledged in the cases referred to. As the power in the enactment under which the original decision was made will have to be employed for giving effect to the decision, it is difficult to maintain that it is not that power that is being exercised by the Tribunal, at least in conjunction with s 43 of the AAT Act: but cf Powell’s case, above, per French J at 12; 229; see further 17.1. However, while s 43 is the source of the AAT’s power, the ‘content of the power is defined by the particular enactment under which the decision to review was made’: per French J, above. Accordingly, if there is a constraint on the manner in which the original decision-maker is to make a decision, that constraint will apply also to the AAT: Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission [2003] AATA 1267; (2003) 77 ALD 192 at [47]; see further 16.11. See 10.13 for the effect of preliminary factual findings on the Tribunal’s ultimate decision and see Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170 at [38].

TRIBUNAL MAY EXERCISE ALL POWERS OF DECISION-MAKER 16.6 Where the word ‘may’ appears in the phrase ‘the Tribunal may exercise all the powers and discretions’ of the decision-maker, the word is being used in a facultative, not a discretionary, sense. It confers on the AAT all the powers of the decision-maker so that it may, if it wishes, exercise not only the power upon which the decision-maker relied but also any relevant power or discretion

conferred on the decision-maker by the enactment: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. The power or discretion must, of course, be relevant to the decision under review (Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 451; 16 ALD 280 at 282) but it does not have to be interdependent with that decision: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39; 27 ALD 309 at 316. In Hodgson’s case, it was held that it was permissible for the AAT to consider whether a debt should be waived even though the decision-maker had only addressed the question whether the debt was owing. This view was affirmed by a Full Court in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; (2005) 148 FCR 472; 89 ALD 1. The court said at [30]: ‘Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision-maker who made the decision, can be exercised by the Tribunal [court’s emphasis].’ This view was endorsed by Full Federal Courts in Isaacs v Commissioner of Taxation [2006] FCAFC 105; (2006) 151 FCR 427; [page 293] 95 ALD 530 at [37] and Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313; 97 ALD 299 at [97]–[100]. But note the limitations referred to in 16.9–16.12. It must also always be borne in mind that s 43(1) confers power on the AAT in relation to matters in which it has jurisdiction. The section is not itself a source of jurisdiction: Comcare v Burton (1998) 50 ALD 846 at 851; Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Federal Commissioner of Taxation [2003] FCA 794; (2003) 75 ALD 321 at [19]–[21]. The AAT does not have to exercise all the powers of the decision-maker. They are merely available to it: Re Kelly and Australian Postal Commission (1983) 5 ALN N63. The position was summarised by the Tribunal in Re Donald and Australian Securities and Investments Commission [2001] AATA 622; (2001) 64 ALD 717 at [48]: Subject to any statutory qualifications to the contrary, the principles

adopted in each case require the tribunal first to identify the decision under review. It must then satisfy itself that it has jurisdiction to review that decision. It will do so by having regard to the scheme of the legislation and remembering that no provision of the AAT Act gives it jurisdiction to review a decision. Having done that, the tribunal must then identify the powers and discretions that rested in the decision-maker when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. Those are the powers and discretions that then rest in the tribunal by virtue of s 43(1) of the AAT Act. There is no requirement that those powers and discretions must lead to a decision that would itself be reviewable by the tribunal had it been made by the decision-maker in the first instance and an application for review lodged in the tribunal. There the Tribunal ruled that it could vary an order imposed on the applicant by the Australian Securities and Investments Commission (ASIC) even though, if ASIC had originally imposed the order in the varied form, it could not have been appealed to the Tribunal. That decision was affirmed on appeal, initially at first instance: Australian Securities and Investments Commission v Donald [2002] FCA 1174; (2002) 69 ALD 187 and then by a Full Court: [2003] FCAFC 318; (2003) 136 FCR 7; 77 ALD 449. Where a decision is before the AAT on appeal, it is the whole decision that the AAT must review. Neither the applicant nor the respondent can seek to confine the power of the AAT by purporting to accept part of a decision while challenging the rest: Re Staffieri and Commonwealth (1986) 10 ALN N36; Re McLaren and Repatriation Commission (1987) 13 ALD 479 at 488; Re Fitzmaurice and Repatriation Commission (1987) 13 ALD 723. 16.7 The AAT has observed on a number of occasions that its decision on a review should properly be seen as part of the continuum of administrative decision-making relevant to the facts of the particular matter: Jebb v Repatriation [page 294] Commission (1988) 80 ALR 329 at 333; Freeman v Secretary, Department of Social

Security (1988) 19 FCR 342; 15 ALD 671. This can have a significant effect on the facts on which the AAT should base its decision: see 16.20. However, the notion of a tribunal being part of the continuum of decision-making is relevant only where the issue before it is itself of a continuing nature. If, for example, the AAT should affirm a decision cancelling a pension, that will be the end of the matter. It cannot consider whether facts that have subsequently occurred give an entitlement because it is only the cancellation issue that is before it: cf Freeman, above, at 345, 674. While only a judicial ruling on the meaning of legislation is authoritative, government decision-makers, like any users of legislation, are obliged to place meaning on the law which they are applying. The Tribunal’s role in the continuum of decision-making places it in the same position as the government decision-maker when it comes to interpreting legislation. The court’s rules and approaches to interpretation bind all users of legislation and therefore must be followed by the Tribunal. This approach was applied in Re Seoud and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 640; (2011) 126 ALD 593 at [15] to enable the Tribunal to read an obvious error in the AAT Regulations 1976 (Cth) in such a way as to give effect to its intended meaning. The Tribunal noted that an administrator would have been able to interpret the regulation in this way. However, great care must be taken by a decision-maker and thereafter the Tribunal that it is not interpreting the legislation on the basis of what the agency thinks it should mean. The words of the legislation must be applied even though it is not thought that they have the effect that the agency intended: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014, ch 2. Where a matter has come before the AAT for review, it must be dealt with within a reasonable time and the Tribunal cannot postpone making a decision: Repatriation Commission v Morris (1997) 79 FCR 455; 50 ALD 156 (where the standing over of an application for a year to avoid an applicant having to commence proceedings afresh was said not to be within the Tribunal’s power). Re Rayson and Repatriation Commission [2008] AATA 1063; (2008) 109 ALD 137 at [76]–[99] considered whether s 43 of the AAT Act permitted the exercise by the Tribunal of procedural powers and concluded that it did not. A distinction was to be drawn between the Tribunal’s role as a review body and its ability to give procedural directions. The latter were governed by sections such as s 33 and s 40. Section 43 is concerned solely with the powers of the Tribunal when it comes to review a decision. This decision does not fit entirely happily with the

reasoning in Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229 where the AAT directed the medical examination of a claimant which was a power given to the employer by the Safety, Rehabilitation and Compensation Act 1988 (Cth). However, the order made in that case, while purporting to be under s 43, was probably more properly to [page 295] be seen as an exercise of the direction power in s 33(2). This reasoning was followed in Re Secretary, Department of Social Services and Twentyman [2014] AATA 582. It must always be borne in mind that, as the Tribunal stands in the shoes of the decision-maker, it has no greater powers than the decision-maker. Accordingly, if there is some limitation on the power of the decision-maker, that limitation will apply also to the Tribunal on review of a decision: see 16.11.

NO GROUNDS FOR REVIEW SPECIFIED 16.8 No grounds are set out in the AAT Act or the Migration Act as the basis for the AAT’s intervention in the administrative decision-making process. The AAT, by being able to exercise all the powers and discretions of the decisionmaker, is entitled to place itself in the shoes of the decision-maker and make a decision accordingly. It does not have to find something wrong with the decision in the way in which the Federal Court acting under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or the Ombudsman must so find. In Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 177 the AAT said: The questions which are relevant in a review by the tribunal include questions of the kind to which a court directs its attention when exercising a supervisory jurisdiction, but the tribunal’s questions range over a wider subject matter. Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

at 77 described the AAT’s review function as follows: It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s 25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorised and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the AAT may not reveal this. This approach is carried through to cases where the AAT is reviewing a decision that has already been subjected to a review process. In Re Foulger and Repatriation Commission (1980) 2 ALD 789 the AAT noted that when dealing with an appeal from the Repatriation Tribunal its duty was not to review the opinion of that tribunal but to determine whether the applicant was entitled to benefit under the Repatriation Act 1920 (Cth). [page 296]

REVIEW OF TAXATION OBJECTION DECISIONS 16.9 The general approach to the review of decisions outlined above is qualified in relation to review of taxation objection decisions. Section 14ZU(c) of the Taxation Administration Act 1953 (Cth) requires an applicant to state fully and in detail the grounds that the person relies on in making the objection. Section 14ZZK provides that, on an application for review of a reviewable objection decision the applicant is, unless the Tribunal orders otherwise, limited

to the grounds stated in the taxation objection to which the decision relates. The general power in s 43 of the AAT Act must be taken as being qualified by this specific provision and it cannot be used to circumvent the express limitation in the Taxation Administration Act: Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313; 97 ALD 299 at [28]. The Tribunal is thus constrained by the grounds that the taxpayer puts to it rather than being able to reach a decision on whatever basis it chooses: Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711 citing Eldridge v Federal Commissioner of Taxation (1990) 90 ATC 4907 at 4921; 21 ATR 897. As to the basis on which amendment of the grounds of review might be permitted, see Radge’s case. The taxpayer also bears an onus of proof: see 9.38.

AAT LIMITED TO REVIEW FUNCTIONS ONLY 16.10 Despite the broad power of the AAT to stand in the shoes of the decision-maker, it must be borne in mind that the power is exercisable only in relation to the decision under review. Section 43(1) says that ‘[f]or the purpose of reviewing a decision, the Tribunal may exercise all the powers’ of the decisionmaker. The AAT does not substitute for the decision-maker generally. Just as the AAT has no general review power (see 3.1) it has no general decision-making power. ‘The AAT is not a primary administrator. It is not the original repository of powers and discretions under an enactment’: per President Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175. Accordingly, if, for some reason, an issue before the AAT has not been the subject of a decision by the primary decision-maker, the Tribunal itself cannot assume to make a decision on the matter on the basis that the decisionmaker could have made such a decision: Re Hare and Commissioner for Superannuation (1979) 2 ALN N662. An example of the application of this principle is provided by Re Tradigrain Australia Pty Ltd and Export Development Grants Board (1984) 6 ALD 442. A grant had been paid to the applicant but it sought review of the amount of this grant. On the appeal, the respondent indicated that it had reconsidered the issue and

was now of the view that the applicant was not entitled to any grant at all. A provision of the [page 297] relevant Act permitted recovery of amounts wrongly paid. The respondent invited the AAT to make an appropriate order under this provision requiring repayment of the amount already paid. The AAT declined to do this on the basis that the issue before it concerned the quantum of the original grant. Before any question of ordering repayment of an amount could arise, a decision so to proceed would have to be taken by the Board as primary administrator. It would then be possible for the applicant to seek review of that decision. A similar approach was taken by the Federal Court in Comcare v Burton (1998) 50 ALD 846. The court set aside a decision of the AAT that had purported to consider the question of entitlement to compensation when the only issue before the Tribunal was whether there was a right to be paid taxi fares for treatment. No new decision had been made on the compensation issue and the mere fact that the Tribunal had the parties before it did not mean that it could determine a substantive issue that had not been considered by Comcare. See also Secretary, Department of Social Security v Riley (1987) 13 ALD 608; Owen v Repatriation Commission (1995) 38 ALD 241. This may seem a pedantic approach and one designed to give rise to multiple actions. It might be said that it would be better for the AAT to take the whole issue in hand and resolve all aspects of it. But this would change its appeal tribunal role and involve it in making decisions as an original decision-maker — a task that it properly sees itself as not being equipped to perform. It is important to recognise that Tradigrain, above, was concerned with an attempt to persuade the Tribunal to deal with a matter that, while related to the decision before it, was not an integral part of that decision. It was not the validity of the decision to pay the grant that the AAT was being asked to consider at the request of the decision-maker but whether a demand should be made for its repayment because it was said to be invalid. The decision that had not been taken and which the AAT declined to take upon itself was whether the discretion to recover should be exercised. This would of necessity have required consideration of the validity of the original decision to pay the grant but this was

a subsidiary issue to the decision that would have to be made, namely to recover the grant. However, it is important also to look carefully at the relevant legislation. In Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 a Full Court held that the military compensation scheme was different from the Comcare scheme in that a person’s application required a decision to be made on both liability and compensation together. An adverse finding on liability implied also an adverse finding on compensation. An appeal to the AAT could therefore consider both elements of the original claim. A different issue arises where the decision-maker has taken a decision without having regard to certain matters. The decision-maker cannot then argue that the Tribunal has no jurisdiction to take into account the issues to which regard has not been paid on the basis that they have not yet been considered. The Tribunal has all [page 298] the powers of the decision-maker in relation to the decision under review. It must reach the correct and preferable decision and is not constrained by the decision-maker’s reasoning. Tradigrain is not saying anything different from this: Re Queensland Mines Ltd and Export Development Grants Board (1985) 7 ALD 357. The fact that the AAT’s task is to make the correct and preferable decision in relation to the matter that is before it can limit the range of matters to which it should have regard. It cannot look at the way in which the decision-maker has decided other cases involving the same issues. Those decisions are not before the Tribunal: Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711. The foregoing does not impinge on the power of the AAT to reach a conclusion on a different basis from the decision-maker: see 16.14.

AAT NO GREATER POWER OR DISCRETION THAN DECISION-

MAKER 16.11 The AAT does not have any greater powers than those which may be exercised by the decision-maker. If, therefore, the decision-maker has no discretion as to the order that may be made if certain facts are found to exist, neither then does the AAT on an appeal from the decision so made: ‘… if the executive frames regulations in such a way that their provisions cannot be construed flexibly, the provision for review does not itself add flexibility’: Re La Porta and Secretary, Department of Employment, Education and Training (1991) 24 ALD 366 at 374. See also Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227; Re Babinda Co-operative Sugar Milling Association Ltd and Australian Industrial Research and Development Incentive Board (1980) 2 ALD 851; Re Aston and Secretary, Department of Primary Industries (1985) 8 ALD 366. Likewise, where the AAT is empowered to review a decision of a first-tier tribunal, it cannot make an order that it was not open to that tribunal to make: Walker v Secretary, Department of Social Security (1997) 75 FCR 493; 48 ALD 512. Similarly where there are two tiers of internal decision-making and the appeal lies from the second-tier decision-maker: Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [39]. If the power of the decision-maker is constrained by prerequisites those prerequisites will also limit the AAT’s power. So in Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 19 ALD 215 and Re Shortis and Secretary, Department of Community Services (1991) 23 ALD 396 the fact that the decision-maker could only grant an approval if an expert committee first recommended that it do so prevented the AAT from granting an approval in the absence of such a recommendation. If there are limitations on the evidence that a decision-maker may take into account for the purpose of making a decision, that limitation will apply also to the Tribunal: Re Issa and Australian Community Pharmacy Authority [2012] AATA 374; (2012) 128 ALD 631. [page 299] 16.12 These constraints apply to the exercise by the AAT of its powers even though the provision vesting review power in the Tribunal does not expressly

impose the constraint on it: Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission [2003] AATA 1267; (2003) 77 ALD 192 at [48]. In Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 452; 16 ALD 280 at 282, a Full Federal Court said: … the powers and discretions referred to by s 43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose. For an application of this principle, see Re Utilux and Comptroller-General of Customs (1995) 39 ALD 679 at 683. However, the position is different if the additional power is of a kind that could have been exercised by the decisionmaker in relation to the decision under review. Hill J in Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39; 27 ALD 309 at 316 put it thus: The language of s 43 is quite clear and unambiguous. It empowers the tribunal to exercise all the powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the tribunal is not otherwise limited. It is not necessary or permissible to put a gloss upon s 43 that would permit the tribunal to exercise the decision-maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the tribunal is necessarily involved in the making of the decision under review … The test is one of relevance rather than dependence. Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the tribunal may exercise the discretion. In that case the AAT was held to have the power when reviewing a decision to recover an overpayment of a pension to consider whether to waive that repayment as this was a discretion that the Secretary had under the Act when considering the recovery of the debt. See also Re Donald and Australian Securities and Investments Commission [2001] AATA 621; (2001) 64 ALD 717; affd on appeal (first instance) Australian Securities and Investments Commission v Donald [2002] FCA 1174; (2002) 69 ALD 187; (Full Court) [2003] FCAFC 718; (2003) 136 FCR 7; 77

ALD 449 where it was held that the Tribunal could exercise a power available to the original decision-maker even though there was no right of review of the exercise of that power. See also 16.6. It is necessary to bear in mind that the reverse of this situation can also apply. The AAT must consider whether a matter not taken into account by the original decision-maker disqualifies the applicant from the outcome sought: Bramwell v Repatriation Commission (1998) 51 ALD 56. The AAT must also accept the policy to which the law that it has to apply gives effect: Re Lane and Department of Transport (1978) 1 ALN N634, as distinct from any policy adopted by the government in its administration of a particular law: see 16.27. [page 300]

AAT NOT BOUND BY APPLICANT’S GROUNDS FOR REVIEW OR SUBMISSIONS AT HEARING 16.13 An applicant (other than in the Migration and Refugee Division) is, under s 29 of the AAT Act, required to lodge with the AAT a statement of the reasons for the application: see 6.4. However, regardless of the grounds for review asserted by an applicant, the AAT is obliged to review the decision as such and may therefore reach a conclusion whether or not it should be allowed to stand having regard to any matters that the AAT thinks appropriate. The AAT in Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 142 said: Unless, in relation to a particular jurisdiction, there is an express limitation either upon the grounds which an applicant may raise or the grounds which the tribunal may consider, we do not consider that the tribunal is precluded from considering any matter which is relevant to the decision under review. It will be a matter for the tribunal to determine in each case whether, in the

light of the whole of the evidence before it, it is appropriate that the decision should be reviewed. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. Similarly, the submissions made by the parties at the hearing cannot constrain the AAT’s conclusion: Lodkowski v Comcare (1998) 53 ALD 371 at 385. In Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [18] a Full Federal Court said: … the tribunal is required to determine the substantive issues raised by the material and evidence before it, and in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. A failure so to act will constitute an error on the part of the Tribunal: W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455; (2002) 68 ALD 69 at [35]. The High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 319 ALR 181 at [63] put the obligation in terms of the inquisitorial as opposed to the adversarial role of the Tribunal. The fact that there the best interests of the children of an applicant seeking review of a visa cancellation decision had not been raised by the parties did not preclude the Tribunal from taking this into account when it was a significant issue in relation to its decision. In Re Pacific Hydro Ltd and Office of Renewable Energy Regulator [2005] AATA 752; (2005) 87 ALD 580 at [39] the Tribunal indicated that it disagreed with the position of both parties as to what was the applicable law. However, where the AAT is relying in its decision on matters not raised by the parties, care must be taken that it does not breach procedural fairness requirements: see 8.8–8.12. In Re Cockcroft and Attorney-General’s Department (No 2) (1987) 13 ALD 623 a difference of opinion was expressed by the members of the Tribunal on the question whether an applicant was entitled to raise new arguments on a rehearing [page 301] of a matter after an appeal to the Federal Court. Deputy President Bannon

considered that an argument on a point of law which, if successful, would have been fatal to the Federal Court’s finding could not be asserted on the rehearing. Senior Member Hayes equated the situation with that in Re Greenham, above. The order of the Federal Court did not limit the ambit of review. The task of the AAT was still to make the correct decision and no relevant matter should be excluded from its considerations in reaching that decision. The latter view seems to be the better if the AAT is to be considered part of the administrative process as distinct from being simply a review body. The comments in this paragraph are qualified in respect of taxation objection appeals by the matters referred to in 16.10.

EFFECT OF DECISION-MAKER’S DECISION AND PROCEDURES ON AAT 16.14 The AAT is not bound in reviewing a decision by the grounds on which the decision-maker reached the conclusions. A decision may be affirmed but on grounds different from those followed by the decision-maker: Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10; Bramwell v Repatriation Commission (1998) 51 ALD 56 (where the appeal was against the decision of a first-tier tribunal); Secretary, Department of Employment, Education, Training and Youth Affairs v Mackay (1998) 58 ALD 130. When it comes to the hearing before the AAT, the decision-maker is not obliged to rely for support of the decision under review solely on the reasons formerly advanced: Re Jeans and Secretary, Department of Housing and Construction (1979) 2 ALD 337; Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Re Parisi and Australian Federal Police (1987) 14 ALD 11. If, however, the decision-maker intends to alter the grounds relied upon at the time of making the decision, notice should be given to the applicant and the AAT ‘well in advance of the hearing’: Re Geoffrey Thompson & Growers Co-op Pty Ltd and Export Development Grants Board (1985) 7 ALN N242. If the valid exercise of the power in question depends upon the prior fulfilment of statutory requirements, no additional arguments will be able to sustain that validity if the statutory requirements were not fulfilled: Re UK Family

Reunion and Australian Postal Commission (1978) 2 ALD 383. (The decision-maker cannot change a decision after an application has been made to the AAT unless specifically empowered to do so: see 3.33.) The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed and the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion: Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; [page 302] 36 ALR 598; Commonwealth v Twyman (1985) 8 ALD 554; Re KLGL and Australian Prudential Regulation Authority [2008] AATA 452; (2008) 104 ALD 433. In Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] AATA 1144; (2000) 62 ALD 472 at [72] the Tribunal said in relation to a specialist disciplinary tribunal: … in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence led before the Board. As part of that review process, we must make findings of fact based on the evidence and we must reach our decision in light of those findings and the relevant law. If we were to give weight to the decision of the Board simply because of our regard for the Board and because it is the highest level of peer review of an auditor’s conduct, we would be taking into account something other than the evidence and we would be in danger of adopting the Board’s decision rather than making our own. The Board’s decision can only be evidence of the fact that it made a decision based on certain findings of fact. It founds the Tribunal’s jurisdiction but it cannot itself be evidence of the matters upon which it has reached a decision and it cannot influence the decision on review that the Parliament has entrusted to this Tribunal. Deputy President Walker in Re Gould and Companies Auditors and Liquidators Disciplinary Board [2008] AATA 814; (2008) 106 ALD 53 at [75] agreed with this statement but added the comment:

It is clear, however, that the tribunal in that case was asked to give weight to the actual decision of the board (at [71]–[72]). Whether particular findings, such as the nature of industry practice, could be given weight was not argued. While we respectfully agree with the view expressed in Gooley concerning the effect of the board’s decision itself, it has no bearing on whether we should obtain guidance from the board’s reasoning and findings as regards matters of practice. The board is, as Gooley noted, a statutory specialist body: at [66]. The determination in this case was made by a three-member panel. Its conclusions on particular matters should receive due consideration and weight. As the respondent pointed out, such an approach would resolve what might otherwise appear to be a tension between having a specialist tribunal appointed in the first place and the applicant’s right of review of a decision where the tribunal makes its own decision, rather than adopting that of the board. The process by which a departmental decision is made does not bind the AAT in reaching its decision: Re Woolworths Ltd and Collector of Customs (NSW) (1978) 1 ALD 116; Re Fitzmaurice and Repatriation Commission (1987) 13 ALD 723 at 725. So the fact that the decision-maker did not exercise a discretion available to it in the course of gathering the information pertinent to the making of a decision does not preclude the AAT on appeal from exercising that power: Re Health Insurance Commission and Hobbes and Comcare (1990) 21 ALD 229. If, for reasons of departmental convenience and efficiency, the decisionmaking process is divided into components as to which separate delegations are given to designated officers within the department, the AAT does not take the view that its [page 303] powers of review are limited to reviewing only that component of the decisionmaking process exercised by the officer who had the final power of decision. The AAT is entitled to review all aspects of the decision: Re Watt and Delegate of the Secretary, Department of Transport (1978) 1 ALD 242. The fact that a decision was taken by a Minister is no bar to the AAT setting aside that decision if empowered so to do by the Act providing for review: Re Hospitals Contribution Fund of Australia and Minister for Health (1977) 1 ALD 209.

If the basis for a decision-maker’s conclusion adverse to an applicant cannot be ascertained by the AAT, this will be a reason for it to be set aside and the status quo restored: Commissioner for Revenue Collections (ACT) v Nelson Tobacco Co Pty Ltd (1991) 22 ALD 248. On the effect of concessions made by the parties prior to or at a hearing see 8.5–8.6.

REFERRAL OF MATTER TO OMBUDSMAN 16.15 The inability of the AAT to exercise powers other than those available to the decision-maker can lead to injustice in some cases where a strict application of the law results in unfairness to an applicant. A broad discretion may be available to a minister or the head of an agency which is not open to the AAT to exercise or there may be another remedy by way of a compensatory payment (see 16.16) or waiver of liability (see 16.17) that would overcome the injustice. The avenue for a person to pursue in such cases is through the Commonwealth Ombudsman. This has been recognised by the adoption of administrative arrangements between the AAT and the Ombudsman to facilitate the referral of matters between the two review bodies. The arrangements are set out in Australian Administrative Law (LexisNexis) at [7500] behind guidecard ‘AAT Jurisdiction, Procedure and Information’. The AAT has referred matters to the Ombudsman on a number of occasions: see, for example, Re Roberts and Repatriation Commission (1992) 26 ALD 611; Re Bartlett and Comcare (1996) 40 ALD 709; Re Trustees of the C & M Baldwin Pension Fund and Insurance and Superannuation Commissioner [1992] Admin Review 85; Re Murray and Repatriation Commission (1998) 52 ALD 117 at 127. Whether the Ombudsman should be asked to pursue the matter is of course up to the applicant to decide.

ACT OF GRACE AND COMPENSATION PAYMENTS 16.16

The Commonwealth has in place two schemes whereby persons

adversely affected by the actions of Commonwealth officers may receive compensation. They are the Compensation for Detriment caused by Defective Administration (the CDDA scheme) and the act of grace scheme. The CDDA is an executive scheme administered by individual agencies in accordance with a Finance Circular. The act of grace scheme is statutory; the Public Governance, Performance and [page 304] Accountability Act 2013 (Cth) determines the circumstances in which a payment can be made. The scheme is administered by the Department of Finance. The departmental circulars setting out the schemes are reproduced in Australian Administrative Law (LexisNexis) at [8600] behind guidecard ‘General Information’. One of the effects of the AAT having no greater power than the decisionmaker is that it may well appear that a decision, while in accordance with the law, works an injustice to an applicant. In such cases it is not unusual for the AAT to be pressed to make a CDDA or an act of grace payment to compensate the person affected as a result of the perceived injustice. However, the AAT has no power to make such a payment: Re Hawkins and Collector of Customs (1986) 10 ALN N10. In that case the AAT declined even to comment upon whether the facts indicated whether the making of an act of grace payment seemed desirable. The AAT in Re Kamil Export Co Pty Ltd and Australian Trade Commission (1986) 10 ALD 293 was not so constrained and indicated the matters that it thought relevant to the consideration of making a payment if it were sought. In Re Michael (dec’d) and Repatriation Commission [2005] AATA 1261; (2005) 89 ALD 251 the Tribunal discussed the strength of the case for the making of such a payment and indicated to the applicant the matters on which she should seek further information before making a claim. See also Re Billeci and Secretary, Department of Housing and Construction (1980) 2 ALN N1039; Re Harris and Secretary, Department of Social Security (1993) 29 ALD 599; Re Bitar and Secretary, Department of Family and Community Services [2003] AATA 64; (2003) 73 ALD 58; Re Secretary, Department of Family and Community Services and Brunner [2003] AATA 749; (2003) 77 ALD 130; Re Selimovic and Secretary, Department of Family and Community Services [2003] AATA

199; (2003) 77 ALD 738; Re QX07/1 and Military Rehabilitation and Compensation Commission [2007] AATA 1172; (2007) 94 ALD 750. It is possible for a person to take up the issue of compensation with the agency concerned or with the Department of Finance. However, the most profitable course of action to follow in a case where it appears that an injustice flows from the application of the law is likely to be for the issue to be taken up with the Commonwealth Ombudsman. The Ombudsman frequently pursues the making of compensation payments in cases where a person has incurred loss unfairly. In Re Boak and Director-General of Social Services (1982) 4 ALN N239; Re Francis and Secretary, Department of Health (1985) 8 ALN N193; and Re Spencer-White and Secretary, Department of Social Security (1992) 28 ALD 719 at 731–3 the AAT expressly referred to this role of the Ombudsman.

WAIVER OF DEBTS DUE TO COMMONWEALTH 16.17 In addition to the compensation schemes referred to in 16.16, it is possible to seek waiver of a debt due to the Commonwealth. Some Acts, notably the Social Security Act 1991 (Cth), contain provisions expressly dealing with waiver of debts. [page 305] It is common to find that there is a right to seek review by the AAT of decisions made under these waiver provisions. Where there is no relevant waiver provision, s 63 of the Public Governance, Performance and Accountability Act 2013 (Cth) applies. This section enables the Minister for Finance to waive a debt otherwise due. The departmental circular in which the waiver system is described is reproduced in Australian Administrative Law (LexisNexis) at [8850] behind guidecard ‘General Information’. As with the compensation schemes, invocation of the assistance of the Commonwealth Ombudsman may be of value.

AAT TO APPLY LAW AS AT DATE

OF REVIEW 16.18 As the AAT’s decision is to be treated as if it were that of the primary decision-maker, the AAT has to apply the law as if it were the decision-maker: cf 16.11. But is it the law in force when the decision under review was made or when the AAT comes to consider the matter? In Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374, the AAT said that, in the ordinary course of events, it was bound to reach its decision having regard to the state of the law applicable at the time it came to make that decision. If the law had changed since the date when the decision under review was made, it was the new law that had to be applied. See also Re Shelton and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 574; Re Waterford and Attorney-General’s Department (No 2) (1986) 9 ALD 482; Re FantaSea Cruises Pty Ltd and Great Barrier Reef Marine Park Authority (1999) 55 ALD 767. However, in Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939–45 the Tribunal pointed out that this approach is only applicable where a decision does not involve a consideration of accrued rights or liabilities but is concerned with present entitlements. If the AAT is concerned with rights or liabilities at some anterior date, it is the law in force at that date that has to be considered (unless the subsequent amending legislation is expressed to have retrospective effect: cf Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366). The analysis of the issues posited in Costello was expressly endorsed by a Full Federal Court in Commonwealth v Esber (1991) 29 FCR 324; 101 ALR 35 and by Brennan J, dissenting, in Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577 at 449; 590. (The reversal of the Federal Court decision by the High Court was based on the interpretation of the relevant legislation and did not impinge on the issue of principle referred to here.) The issues referred to in Costello have arisen in a number of cases concerned with pension rights. In the absence of an indication that an amendment is to apply retrospectively, the law in force at the date of the original application governs the decision: Re Hatzipashalis and Secretary, Department of Social Security (1986) 10 ALD 135; Re Reilly and Secretary, Department of Social Security (1987) 12 ALD 407; Re Phillips and Secretary, Department of Social Security (1987) 13 ALD 357; Re Stewart and Department of

[page 306] Employment, Education and Training (1990) 20 ALD 471; Re Secretary, Department of Social Security and Edwards (1992) 28 ALD 742; Lee v Secretary, Department of Social Security (1996) 68 FCR 491; 139 ALR 57; Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108; 60 ALD 401. These decisions turned on the effect of ss 8 and 50 of the Acts Interpretation Act 1901 (Cth) (now ss 7 and 46B(11)) which preserve rights and liabilities following the repeal or amendment of legislation. If the law was more favourable to an applicant at the date of application for the benefit concerned it was likely to have given a right that was to be regarded as preserved by the Interpretation Act. A group of decisions under the Veterans’ Entitlements legislation culminating in Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609 were concerned with the reverse of this position — the law as amended was more favourable than the law at the time of the original application. The Full Federal Court held that the law current at the date of the AAT’s consideration of the matter should be applied, not that in force at the date of the original application. The cases referred to above reaching a different conclusion were explained as having been based on the fact that a right had accrued to the benefit of the applicant. (But see also Stoddart v Repatriation Commission, above, in relation to the contrary effect arising in certain circumstances from the operation of s 120A(2) of the Veterans’ Entitlements Act 1986 (Cth).) Costello’s case itself was concerned with the granting of a pilot’s licence and the issue with which the Tribunal was concerned was whether the applicant was a fit and proper person to undertake flying. This had to be judged at the time that the Tribunal was considering the issue. Accordingly, the law in force at the date of the Tribunal’s decision was that which was applicable. In contrast, an appeal against a decision that a person was liable for disqualification as a superannuation fund trustee had to be resolved at the date the disqualification decision was made. The law then in force was therefore that which was applicable: Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [51]. See also the extended discussion of these principles and their application to particular fact situations in Re Drs Sullivan, Nicolaides & Partners and Minister for

Health, Housing, Local Government and Community Services (1994) 32 ALD 517; Re Russell and Conservator of Flora and Fauna (1996) 42 ALD 441. The identification of whether the law to be applied is that at the date of the original decision or the Tribunal decision is significant when a matter is referred back to the Tribunal for reconsideration after a successful appeal. On a rehearing, it may be that the matter will have to be decided on a different basis than that applicable when the Tribunal made its first decision: Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126. 16.19 The approach followed in these cases again distinguishes the AAT from a court. A court applies the law as in force when the events with which it is concerned [page 307] occurred — even though this may be some time previous to the court’s judgment and the law may have been altered since. By contrast, the AAT is a decision-making body and must usually apply the law as it exists at the date when it makes its decision. This distinction was graphically illustrated by two cases arising out of a Freedom of Information request to the Commonwealth Ombudsman. The Ombudsman declined access to the documents sought on a number of grounds. One of these grounds was challenged before the AAT and, the Ombudsman’s decision having been upheld, the matter was taken on appeal to the Federal Court. The court reached a conclusion based on the Ombudsman Act 1976 (Cth) as in force at the date of the AAT’s decision, the Act having been amended since the date of the Ombudsman’s original decision: Kavvadias v Ombudsman (No 1) (1984) 1 FCR 80; 6 ALD 47. Another ground of exemption was challenged by bringing an action directly to the Federal Court under the AD(JR) Act. The court in this case applied the law prior to its amendment. The court was engaging in judicial review of the Ombudsman’s decision and its task therefore was to see whether that decision was correct in law when it was made: Kavvadias v Ombudsman (No 2) (1984) 2 FCR 64; 6 ALD 198 at 72; 206. The final point to note in this context is that the AAT must apply the law that is relevant to the issue before it even though it might be aware that the law is about to be altered: Re Waterford and Department of Health (No 2) (1983) 5 ALN

N197. An administrator may be able to adapt his or her conduct to fit in with a proposed change — as that case illustrates. A bill to amend the Freedom of Information Act 1982 (Cth) by extending the range of ‘prior documents’ to which access had to be granted was before the Parliament. Departments had been instructed to act as if the amendments to the Act had been passed. The Tribunal held that it could not anticipate the amendment to the law in this way and was obliged to apply the Act as it stood. This appears to be the proper approach for the AAT to take. Technically speaking, it is what an administrator should do and, in the case, for example, of the issue of a licence, it would seem that the administrator should not have any discretion. However, where beneficial legislation is concerned, a decision that has no adverse implications for other persons can be made in anticipation of a change in the law. The AAT does not really have this flexibility. Its task is to make the right decision within the framework of the existing law, and it would be a bold step for it to start taking decisions that assumed the law to be other than that which was on the statute book: see further 16.11. The Tribunal followed this principle in Re Seale and Repatriation Commission [2004] AATA 700; (2004) 83 ALD 735 at [30]–[31] and refused an application for an adjournment of an application in anticipation of an expected change in the law. [page 308]

DATE AS AT WHICH AAT TO CONSIDER FACTS The law: Shi’s case 16.20 From soon after its establishment, it was determined that the AAT was not bound by the facts that were before the decision-maker: Re Greenham and Minister for Capital Territory (1979) 2 ALD 137. It had to base its decision on the facts that were before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 46 FLR 409. This approach applied even though the facts might not have been known to the original decision-maker: Re Repatriation Commission and

McCartney (1986) 9 ALD 441 at 449. However, what was uncertain was whether the Tribunal should have regard only to the facts as they existed at the time of the original decision or whether changes in circumstances that occurred after the original decision should be taken into account by the Tribunal in reaching its decision on review. The position has now been made clearer by the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 103 ALD 467. The court looked to the historical background to the establishment of the AAT and the fact that it was not intended to replicate the judicial model. Subject to any legislative indication to the contrary, the task of the Tribunal is to make the correct and preferable decision in the circumstances as they exist at the time of its decision. In reaching this conclusion it overruled the decision of the Full Federal Court in Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525; 95 ALD 260. Other decisions made before Shi must be looked at with care. Previous decisions had followed the line that if a present or continuing entitlement or obligation was in question, the facts that had occurred up to the date of the AAT’s decision were to be taken into account: Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58; Re C and Collector of Customs (NSW) (1983) 5 ALN N222; Commonwealth v Portelli (1982) 39 ALR 161. This approach fits with the decision in Shi. It also means that the Tribunal is obliged to take account of matters brought to its attention after the hearing but before its decision: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319; 67 ALD 355 at [17]–[18]. (If a Tribunal receives such material it must, of course, bring it to the attention of all parties and receive further submissions. See also 17.26 relating to the issue when a Tribunal becomes functus officio.) Kirby J in Shi at [45] endorsed comments of Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333 describing the general approach of the AAT as being: … to regard the administrative decision-making process as a continuum and to look upon the tribunal’s function as part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision.

[page 309] The approach to the determination of applications as required by Shi’s case seems to be applicable to proceedings in all Divisions of the AAT unless there is a clear statutory indication to the contrary.

Decisions applying this approach 16.21 This approach had been applied in many cases prior to Shi’s case including Re Easton and Repatriation Commission (1987) 12 ALD 777; Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 287; 31 ALD 296 at 296; 298; Comptroller-General of Customs v Members of Administrative Appeals Tribunal (1994) 32 ALD 463 at 473; Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316; 70 ALD 1. As could be expected, after Shi’s case it is now the way that the circumstances are analysed in reaching a decision. See, for example, Re Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing [2009] AATA 840; (2009) 113 ALD 546 at [25]; Re Wanrooy and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 815; (2010) 118 ALD 436; Re Ivy Education Group Pty Ltd and Australian Skills Quality Authority [2013] AATA 138; (2013) 134 ALD 446. In X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319; 67 ALD 355 at [18] the point was made that the evidence which may be placed before the Tribunal is not limited to facts that happened after the hearing: There may well be material that an applicant has not thought it worthwhile offering to the Tribunal before the hearing, but which becomes crucial when it is apparent during the hearing that the Tribunal is sceptical about some aspect of the applicant’s case. In applying this approach the Tribunal had said that it was proper to take into account facts that have occurred after a decision that takes effect on a designated date where it is apparent that the decision was based on expected events that have not eventuated. In Re Watson and Commissioner for Superannuation (1981) 3 ALN N80 the AAT set aside a decision under the Superannuation Act 1922 (Cth) that was based on a prognosis of disability that did not eventuate. Likewise in Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 where

subsequent events discounted a suggestion that the applicant’s disability was not permanent. Shi would require this approach to be followed. See also Ward v Nicholls (1988) 20 FCR 18 at 22; 16 ALD 353 at 357 where AAT decisions were approved that had held that it was not sufficient that an applicant had satisfied criteria for a pension in the past. The issue had to be determined having regard to the applicant’s condition at the time of the decision. Hayne and Heydon JJ in Shi at [99] stated the principle as follows: Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about [page 310] conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation. Kirby J, in endorsing these comments said that such a limitation would arise only ‘exceptionally’: at [46]. It is therefore necessary to consider whether the legislation under which a decision is made clearly requires the decision to be resolved on the facts as they existed at a specific date prior to the appeal. Examples of such a conclusion can be found: see Re Elsdon and Secretary, Department of Social Security (1985) 8 ALD 201 at 213; Aged Care Standard and Accreditation Agency v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 28 ALD 50. These cases were decided before Shi but were based on an analysis of the relevant legislation. See Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133 at [31] for a post-Shi example. It is possible for the relevant factors that have to be taken into account in reaching a decision to include some that are time controlled and some that are of a continuing nature. An application for citizenship requires a person ‘at the date

of application’ to be over the age of 18 and to have certain residency and other requirements, including satisfying the Minister that he or she is of good character. In Re Dandan and Minister for Immigration and Citizenship [2010] AATA 539; (2010) 117 ALD 167 the Tribunal held that the age and residency requirements had to be satisfied as at the date of application but the good character test was to be resolved on the facts at the date of its review of the Minister’s decision. A statement of the policy to be applied in reaching a decision is to be treated in the same way as the identification of the applicable facts. It is the policy applicable to the facts as they stand at the date of the Tribunal’s decision which is to be considered: Re Teng and Minister for Immigration and Citizenship [2012] AATA 388; (2012) 129 ALD 120. In that case the Tribunal was concerned with the position where the policy relating to applications for citizenship required different factors to be taken into account according to the age of the applicant. The Tribunal said that the age of the person at the date of the application before the Tribunal should be taken into account when reviewing the original decision, not the age at the date of the original application.

Examples of application of law 16.22 Since Shi the AAT in Re McWilliam and Civil Aviation Safety Authority [2008] AATA 687; (2008) 105 ALD 407 ruled that the breaches that led to a suspension of a licence had a temporal element that precluded reference to later events. See for a like conclusion Re Zhang and Minister for Immigration and Citizenship [2012] AATA 475; (2012) 129 ALD 646 where the Tribunal stressed that it is the nature of the decision [page 311] that is under review that will determine whether further material may be lodged. That case was concerned with the cancellation of a business skills visa. Evidence relating to the applicant’s business activities which occurred after the cancellation could only be received if it served to explain the nature of the activities as they existed at the time of the decision. The Tribunal could not make a decision that the applicant now satisfied the requirements for a visa. The issue was whether the requirements were satisfied at the date of the cancellation decision.

That a different result can follow from the choice of time for consideration of the facts is well illustrated by Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126. One of the statutory requirements that had to be met for approval to conduct a pharmacy was that the premises be at least 2 km from other pharmacies by the shortest lawful access route. Road works since the original decision had provided an access route that was less than 2 km. The AAT said that the decision on the application for approval had to be determined having regard to the access route as it existed at the date of the AAT’s consideration of the application. For a like conclusion on similar facts, see Commonwealth v Horsfall [2010] FCA 443; (2010) 115 ALD 344. Applying similar reasoning to that followed in the preceding cases, a refusal to release a document under the Freedom of Information Act 1982 (Cth) on public interest grounds requires the Tribunal on review to be satisfied that the ground is still applicable: Re Radar Investments Pty Ltd and Health Insurance Commission [2004] AATA 166; (2004) 80 ALD 733 at [33]. The issue will turn on the relevant legislation which might require the relevant issues be determined by reference to facts existing at a specified time. For example, in Commission of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; (2013) 305 ALR 534 it was held, at [17]–[21], that on the correct interpretation of the relevant tax legislation, when the Commissioner was considering the revocation of an entity’s endorsement as a charity for tax purposes, the criterion of whether it was entitled to be endorsed as a charity had to be considered as at the date when the Commissioner was making that decision, and not as at any earlier time. In contrast, in Re Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority [2008] AATA 1055; (2008) 106 ALD 635, the AAT held that on the proper construction of the relevant legislation the time at which the question of whether proposed premises could be used for the purposes of a pharmacy was the date of the application for approval, and not some later date at which further information might have become available. However, the significance of Shi is that it has adopted the presumption for the interpretation of the legislation as being that it should be assumed that the facts as at the date of the Tribunal’s decision should be the determinants unless the legislation clearly requires something different. For an example of the application of this approach, see Re Liu and Minister for Immigration and Citizenship [2009] AATA 101; (2009) 106 ALD 691 where the Tribunal

[page 312] refused to accept an argument that consideration of a decision cancelling a business skills visa was limited to the circumstances existing at the date of the decision. Consideration of circumstances that had occurred after the decision was not precluded by the legislation and indeed was relevant to the Tribunal’s conclusion. Contrast Re Zhang, above, where a different conclusion was reached having regard to the nature of the facts subsequent to the original decision. A cancellation decision in relation to a business skills visa must be made within three years of its issue. In Re Li and Minister for Immigration and Citizenship [2009] AATA 501; (2009) 110 ALD 419 it was held that evidence could not be admitted of events that occurred more than three years after the date on which the visa was issued. Another pertinent example is provided by Re Rahimovski and Commonwealth Bank of Australia [2013] AATA 755; (2013) 136 ALD 445 where the Tribunal held that it should consider a claim for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (Cth) on the facts as they existed at the time of the Tribunal’s decision, not at the time of application. It was agreed that the applicant was not suffering such an impairment when Comcare considered his application but that he was by the time of the Tribunal’s decision. The Tribunal could accordingly hold that he qualified for compensation. Later information can be used to inform the position as at the date at which the determination is to be made: see, for example, Re Tran and Comcare [2010] AATA 719; (2010) 52 AAR 449 at [63].

INTERVENTION ON COMMON LAW GROUNDS FOR REVIEW 16.23 While no grounds of review akin to those set out in ss 5 and 6 of the AD(JR) Act are included in the AAT Act, the AAT will intervene to set aside a decision that is beyond the power of the decision-maker: Re Upton and Department of Transport (1977) 1 ALD 150; Re Sibrava and Acting Commissioner for Superannuation (1978) 1 ALD 233; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 (affd on appeal Collector of Customs (NSW) v Brian

Lawlor Automotive Pty Ltd (1979) 2 ALD 1). It will also rule on questions of law (Re Ettridge and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 2670); but it has no power to determine finally such questions: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. See further 3.11–3.15.

EFFECT OF GOVERNMENT POLICY 16.24 There are four circumstances in which the AAT can find itself having to consider issues of government policy: first, where the nature of the policy statement or its use by a decision-maker raises legality questions; second, where the policy has been embodied in legislation; third, where the policy has no legislative status but has been used by the decision-maker in reaching the decision under appeal; and fourth, [page 313] where the policy statement purports to be an interpretation of the relevant legislation. These matters warrant separate consideration. (See 16.21 in regard to the date of the policy to be considered.)

LEGALITY ISSUES AND POLICY 16.25 The courts have ruled that the legality of a decision may be affected by certain uses of policy in its making. As the AAT must be satisfied as to the legality of a decision that it is reviewing, it will need to consider these matters. If a decision is made in accordance with a non-legislative statement of policy adopted by the government and that policy does not accord with the legislation under which the decision is made, the decision will be invalid: Green v Daniels (1977) 13 ALR 1. This approach has been followed by the AAT in the following decisions: Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373:

departmental guidelines concerned with the grant of Child Disability Allowance; Re Finch and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 745; (2009) 112 ALD 171 at [32]: interpretation of the expression ‘termination payment’ by Centrelink; Re Caper Pty Ltd t/as Direct Air Charter and Civil Aviation Safety Authority [2011] AATA 181; (2011) 120 ALD 495 at [61]: application of wrong legislation in regulatory policy dealing with charter operations. (This conclusion was reversed on appeal: Civil Aviation Safety Authority v Caper Pty Ltd [2012] FCA 1213; (2012) 207 FCR 357; 131 ALD 79 but the power of the Tribunal to make such a finding was not challenged); and Re Savvas and Commissioner for Land and Planning [2001] ACTAAT 37; (2001) 66 ALD 529: policy setting out restrictions on planning approval. Indeed if the AAT itself reaches a decision by applying a government policy that is invalid, it will have made a wrong decision: Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314; 39 ALD 481; Bateman v Health Insurance Commission (1998) 84 FCR 243; 54 ALD 408. A decision will also be invalid if it is made in accordance with a statement of policy without having regard to the individual circumstances of the particular case before it: R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176; qualified somewhat in relation to multiple decisions in British Oxygen Co Ltd v Minister of Technology [1971] AC 610; [1970] 3 All ER 165. For the application of these principles in Australia, see MLC Investments Ltd v Federal Commissioner of Taxation [2003] FCA 1487; (2003) 137 FCR 288; 205 ALR 207 at [25]–[30]; Government Employees’ Health Fund Ltd v Private Health Insurance Administration Council [2001] FCA 322; (2001) 65 ALD 377. In relation to the AAT, the principle is referred to in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 and was applied by the [page 314] Tribunal in Re Goodson and Secretary, Department of Employment, Education, Training

and Youth Affairs (1996) 42 ALD 651 at 655 and the ACT AAT in Re Savvas, above. In Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270 at 275 Gray J said in relation to the application of the policy by the Department in that case that: The circumstances of each case must be taken into account, and a decisionmaker must always be ready to accept the proposition that the circumstances of a particular case may render it inappropriate to apply a policy which may be applied without difficulty in the majority of cases. This statement was followed by the Tribunal in Re Serong and Civil Aviation Safety Authority [2006] AATA 1123; (2006) 93 ALD 673 at [28] to permit the issue of a pilot’s licence subject to conditions where the agency policy was not to issue a licence to a person with the applicant’s medical condition. This does not mean that the Tribunal is not to have regard to government policy: quite the contrary: see 16.27. However, the Tribunal must not surrender its decision-making role to the policy: Re Gray and Australian Securities and Investments Commission [2004] AATA 1235; (2004) 86 ALD 230 at [33]–[38]. The third way in which it is possible for the application of policy to render a decision invalid is where a decision-maker, charged with an independent discretion, exercises that discretion in accordance with the direction of another so that the decision is not really that of the designated decision-maker but of that other. This is known as acting under dictation: Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215. The adoption and strict application of a policy statement can constitute dictation but the matter will be complicated if there is high-level intervention of a political kind: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513. In none of these circumstances is the merits of the policy being called into question. The courts insist that decision-makers comply with the law and the AAT is requiring no more than that.

LEGISLATIVE-APPROVED POLICY: DIRECTIONS, GUIDELINES, ETC 16.26

All legislation constitutes a statement of policy and the AAT is, of

course, obliged to give effect to it. But legislation may also permit the making of policy statements that have the status of legislation. In such a case, regardless of the form of the statement or its author, the AAT must treat it in the same way that it would any other legislative instrument: Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340; 26 ALD 265 (plan of management under Fisheries Act 1952 (Cth)); Re Donlon and Pharmacy Restructuring Authority (1992) 28 ALD 791 (guidelines under the National Health Act 1953 (Cth)); Re Bateman and Health Insurance Commission (1997) 45 ALD 627 (eligibility criteria for health benefits payments); [page 315] Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission [2003] AATA 12667; (2003) 77 ALD 192 (guidelines under the Export Market Development Grants Act 1997 (Cth) relating to approval of a body for grant purposes). While the instruments in these cases had the appearance of ordinary policy statements, the empowering Acts gave them legislative status. A different approach from giving policy statements legislative status is to provide that certain decisions must be made in accordance with a policy statement that the minister or some other designated person is authorised to make. This approach has been adopted, at various times, under the Veterans’ Entitlements Act 1986 (Cth), the Social Security Act 1991 (Cth), the Lands Acquisition Act 1989 (Cth) and the Migration Act. The policy statement is binding on the original decision-maker and thereby on all review bodies. In Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583; 57 ALD 257 the court held that a direction under the Migration Act was intended to replace an earlier non-binding policy statement and the Tribunal’s failure to apply the direction and its reference to the earlier policy led to invalidity of its decision. However, that there are limitations on the scope of such a provision is demonstrated by the decision of the Federal Court in Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148; 20 ALD 607. Under s 22(5) of the Lands Acquisition Act 1989 (Cth) the Minister may make a statement of policy in relation to the acquisition of land and under s 31(3) the

AAT is expressly forbidden from inquiring into the merits of that policy. A statement was issued by a delegate of the Minister relating to the proposed acquisition of a specific piece of land. The court said that this was not a ‘policy’ statement. ‘Policy’ refers to a course of action of greater generality than a particular acquisition. See also Re Malincevski and Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 331 where, in a different context, a letter from the Minister to the AAT was held not to constitute a statement of policy. Going further than a requirement to adhere to a policy statement is the power vested in the Minister under s 499 of the Migration Act to give directions to a body having functions or powers under the Act about the performance of those functions or the exercise of those powers. This power has been exercised to give directions binding on the AAT in reviewing decisions to cancel a visa pursuant to s 501 of the Act. This direction is adhered to by the Tribunal when exercising this jurisdiction; Rokobatini’s case, above; Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 142 ALD 76 at [22]ff (where there is discussion as to whether the direction should be seen as ‘legislative’). However, note the comments of Chantal Bostock, ‘The effect of Ministerial Directions on Tribunal Independence’ (2011) 66 AIAL Forum 33 and Yee-Fui Ng, ‘Tribunal Independence in an Age of Migration Control’ (2012) 19 Australian Journal of Administrative Law 203. It must be remembered that, while an administrative guide may be used as an aid to the application of legislation in the course of administrative decisionmaking, [page 316] it cannot be used to construe the legislation itself. It is unlikely to fall into the category of extrinsic material as it is based on the legislation: P v Child Support Registrar [2013] FCA 1312; (2013) 138 ALD 563 at [65].

REVIEW OF CONTENT AND APPLICATION OF GENERAL

POLICY AND MINISTERIAL STATEMENTS The AAT and policy: general approach 16.27 The question whether the AAT can or should review the merits of government policy taxed the AAT and the Federal Court soon after the AAT was established. It has remained one of the more problematical theoretical issues relating to the operation of the AAT but in practice it has had minimal impact on the AAT’s actual functioning. In Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 the AAT made it clear that it would review discretionary decisions of Ministers where the enactment conferring jurisdiction so provided, and this jurisdiction might extend to a review of policy laid down by the Minister to guide the exercise of that discretion. However, the AAT expressed the opinion that different considerations might apply to policy that was basic and therefore might have to be settled at the political level, as compared with policy intended to implement a basic policy which was more likely to have been determined at the departmental level. The latter would be more readily reviewed than the former. However, if the jurisdiction vested in the AAT required the review of policy, the review would extend beyond the question of the validity of the policy to embrace its wisdom. Likewise, if the empowering enactment required the review of a Ministerial decision, even one that has major social and political implications, the AAT would undertake that review: Re Hospitals Contribution Fund of Australia and Minister for Health (1977) 1 ALD 209; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Re Barbaro (Saverio) and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1. The Federal Court endorsed this approach by the AAT to its review role and, indeed, insisted that it exercise a function independent of the executive. The court made it clear that where a decision-maker has purported to reach a decision by following government policy, the AAT may also have regard to that policy. However, it must not determine the issue simply by resolving whether or not the decision conforms with the policy. In Drake v Minister for Immigration and

Ethnic Affairs, above, Bowen CJ and Deane J described the AAT’s function as follows (at 69–70): If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the AAT to take into account in reviewing the decision. On the other hand, the AAT is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material [page 317] before the AAT, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be. The approach to be followed by the AAT in reaching an accommodation between the role stated for it by the Federal Court and published government policy was taken further by President Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2), above. Policy was seen by the President as being a key factor in attaining consistency in decision-making. Consistency was said to be a desirable goal in administration, as the application of differing standards in the exercise of a power by administrators cannot do other than result in unfairness and a consequent lack of confidence in the executive. The AAT ought therefore to apply lawful Ministerial policy unless there are cogent reasons to the contrary. It would, however, be a cogent reason if the application of the policy would work an injustice in a particular case. Consistency is not preferable to justice (see particularly at 644–5). This approach appears to require the AAT to give greater weight to enunciated policy than was contemplated, at least by Smithers J, in Drake’s case in the Federal Court. This is exemplified by Re Nevistic and Minister for Immigration and Ethnic Affairs (1980) 3 ALN N9 where Davies J expressly said that, had it not been for the stated policy on deportation, he would probably have come to a different conclusion. His Honour made particular reference to the notion of consistency enunciated by Brennan J. The decision was affirmed on appeal:

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639; 3 ALN N62. Where the Tribunal is not bound to apply a policy but, from its nature, the policy is nonetheless to be taken into account, misinterpretation of the policy in the making of a decision may be a failure to take account of a relevant consideration and thereby constitute an error of law rendering the decision invalid: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; 33 ALD 13 at 208; 30; Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279; 142 ALD 567 at [30].

Difference between political and departmental policy 16.28 Since these earlier decisions establishing the effect upon the AAT of policy statements, the AAT has enunciated an approach that distinguishes high level and more politically sensitive policy statements from such things as departmental guidelines or statements of policy prepared by officers. The clearest statement of the weight to be given the first category is perhaps that in Re Aston and Secretary, Department of Primary Industries (1985) 8 ALD 366. That case involved a challenge to fishing quotas allocated in accordance with a management scheme applicable to a fishery under threat of collapse through overfishing. The AAT described the scheme as ‘a policy which could only be developed in the political arena after consultation with industry’ (at 380). It commented that ‘[t]he AAT, which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight’. The policy ought to be [page 318] followed except where the evidence showed that ‘it was entirely misconceived or proceeded on a wholly erroneous basis’. In Re Jetopay Pty Ltd and Australian Fisheries Management Authority (1993) 32 ALD 209 the AAT at 231 set out a comprehensive and instructive list of factors to be taken into account when considering the application of the relevant policy

to the facts of that case. See also Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627; Stoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517. In Re Green and Australian Fisheries Management Authority [2004] AATA 426; (2004) 81 ALD 194 the same approach was applied to policy formulated by the Authority. While it did not have the cache of ‘high level’ policy, it had nonetheless been formulated by the body charged with management of the industry after consultation with the stakeholders. It ought therefore to be accorded great weight. Departmental guidelines or policies are not treated with anything like the same deference (unless they have been given legislative status: see 16.26). They have been described as ‘relevant only as forming part of the background of facts of which the AAT ought to be informed when making its decision’: Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225. Of like value, according to the Federal Court, is a statement from a public servant in evidence of the policy underlying legislation: Collector of Customs v Savage River Mines (1988) 79 ALR 258 at 263. While acknowledged as being necessary to the administration of a large department, the AAT has warned that there is a danger in guidelines supplanting the legislation. The AAT ought therefore to adopt a guarded approach to them: Re MT and Secretary, Department of Social Security (1986) 9 ALD 146 at 150; Re Kandasamy and Secretary, Department of Social Security (1987) 11 ALD 440 at 445; Re Lofthouse and Australian Securities and Investments Commission [2004] AATA 327; (2004) 82 ALD 481. It must also be apparent that the asserted policy has been adopted and is known to the relevant decision-makers. A mere assertion that something is the policy of the department is not sufficient: Re Rix and Secretary, Department of Industry, Innovation and Science, Research and Tertiary Education [2012] AATA 742; (2012) 132 ALD 578 at [26]. See also 16.30. However, if the policy is sound, consistency makes it desirable that it be followed: Re Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338 at 350. The policy may also represent the views of the industry and should not then be readily departed from: Re Green, above. Re MT, above, also acknowledged that departmental policy may be of value in alerting the AAT to problems that go beyond the case in hand. The AAT ‘should not exercise a discretion in a vacuum ignoring the nature and extent of any problem dealt with in administrative guidelines’ (at 150). See also: Re Secretary, Department of Social Security and Bosworth (1989) 18 ALD 373

(departmental policy manual on what constitutes ‘disability’); Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 (effect of tax rulings); [page 319] Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115; 114 ALD 26 at [60] (Australian Citizenship Instructions); and Re ZDDD and Commissioner of Taxation [2011] AATA 3; (2011) 122 ALD 164 at [49]–[50] (factors that will be considered in determining whether a notice of non-compliance should be given to a superannuation fund). In the same way that guidelines cannot direct the Tribunal in interpreting the law (see 16.30), they cannot guide the Tribunal in determining what material is relevant to the issues it must decide and what is probative. That follows from the fact that it is the legislation that determines the issues that must be decided by the decision-maker, whether it be the original decision-maker or the Tribunal on review: Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178 at [80]. Where it is considering the effect of a decision-maker’s policy, the Tribunal will take into account its value in the circumstances before it. In Tax Agents’ Board of New South Wales v Aquabani [2005] FCA 383; (2005) 144 FCR 446; 85 ALD 358 it emerged that the policy statements relating to educational qualifications for tax agents were prepared on a state-by-state basis and were not uniform. This was considered to reduce the value of the statements as a guide to the required qualifications in the instant case. Further, the policy might not be all embracing in that there may be circumstances to which it does not refer but which are relevant to the decision. The Tribunal must not ignore these even if the decision-maker has: Re Power and Australian Securities and Investments Commission [2005] AATA 338; (2005) 86 ALD 758. It is important when considering the appropriateness of referring to government documents to bear in mind the distinction between the exercise of a discretion and the ascertainment of facts that may have a subjective element to them. Government policy is highly relevant to a consideration of the former but directions as to factors that a decision-maker might take into account in relation

to the latter can only form a background to the overall factual situation. They will represent matters to which it is appropriate to have regard when attempting to ascertain the facts but it is not possible to direct the finding of facts in the way that the exercise of a discretion may be controlled: Re Henry and Department of Social Security (1986) 11 ALN N10. All this is, of course, subject to any policy guidelines being in accordance with the relevant legislation: see 16.25. The AAT is bound to apply the law and cannot depart from it because the Minister has undertaken not to enforce it. This is so even though that undertaking may advantage a member of the public: Re Sharpe and Secretary, Department of Social Security (1988) 14 ALD 681 at 694. (In such a case it might be appropriate to seek the assistance of the Commonwealth Ombudsman.) For a commentary on the distinction drawn by the Tribunal between various levels of policy, see Andrew Edgar, ‘Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help?’ (2009) 16 Australian Journal of Administrative Law 143. [page 320]

Other considerations 16.29 Where the AAT is reviewing a decision of another tribunal that is intended to act independently of the government, the policy of that tribunal is to be referred to, not government policy: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 3) (1981) 4 ALD 1 at 29. The AAT in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 and in Re Grimley and Department of Transport (1978) 2 ALD 689 made the point that whenever the review of a decision involves consideration of policy, it is essential that the AAT be fully informed as to the policy and the reason for it. If there is no statement of policy or that policy is inadequate or defective the AAT is obliged to review the decision from first principles without regard to the administration’s views on the operation of the legislation: Ahern v Deputy Commissioner of Taxation (1983) 50 ALR 177; 5 ALN N360; Re Rendevski & Sons and Australian Apple and Pear Corporation (1987) 12 ALD 280; Re Australian Metal

Holdings Pty Ltd and Australian Securities Commission (1995) 37 ALD 131 at 144. However, because it does not have the requisite expertise or access to the relevant information, the AAT is not in a position to enunciate a new policy in place of government policy that it considers defective: Re Fischer and Australian Fisheries Management Authority [2002] AATA 857; (2002) 71 ALD 665. Rather it will set aside the decision under review and refer the matter back to the decisionmaker for reconsideration of both the decision and the existing policy. In regard to the application of policy by the Tribunal, the limitation on inflexible application of policy discussed at 16.25 must not be overlooked.

EFFECT OF GOVERNMENT STATEMENT OF MEANING OF LEGISLATION 16.30 Government agencies will often issue statements of their understanding of the meaning of legislation that they administer. Such a statement is of value to persons having dealings with the agency but it does not have any status as a legal interpretation of the legislation: only a court can provide a definitive meaning of legislation. Nevertheless it can be expected that an agency decision-maker will have regard to the agency view of the legislation in reaching a decision in relation to a particular matter. However, the Tribunal is not an agency officer. It must consider what is the correct and preferable decision. Its obligation therefore is to interpret the legislation itself. It cannot simply follow the agency opinion as to its scope and effect. Should it do so, its decision will be invalid: Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 140 FCR 375; 81 ALD 549; Kumar v Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALD 178 at [77]. See also 16.26 and, in particular, P v Child Support Registrar [2013] FCA 1312; (2013) 138 ALD 563 at [65] on the use that can be made of policy statements for administrative review purposes as distinct from interpretation of the meaning of legislation.

[page 321]

CHAPTER 17 DECISIONS OF AAT NATURE OF EXERCISE OF POWER OF REVIEW 17.1 The Administrative Appeals Tribunal (AAT) regularly exercises each of the powers set out in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act): see 16.1. Many examples are to be found of affirmation of a decision, variation of a decision and substitution of a decision. There are also numerous instances of remitting a matter for reconsideration with directions: Re Grant and Secretary, Department of Transport (1978) 1 ALN N202; Re Sibrava and Acting Commissioner for Superannuation (1978) 1 ALD 233; Re Donald and Australian Securities and Investments Commission [2001] AATA 622; (2001) 64 ALD 717. Such a direction need not necessarily favour the applicant who can find himself or herself in a worse position after the appeal but this is the inevitable result of the AAT having the obligation to make the correct and preferable decision; see, for example, Re O’Connell and Insolvency and Trustee Service (Australia) (1993) 30 ALD 145. The AAT should not express its order as being to vary a decision where it is in fact affirming the decision but for different reasons than that adopted by the decision-maker: Batchelor v Commissioner of Taxation [2014] FCAFC 41; (2014) 219 FCR 453; 142 ALD 1 at [22], [123]. The AAT has on occasions affirmed a decision but in its affirmation included a recommendation to the decision-maker as to further action that might be taken: Re Hood and Minister for Immigration and Ethnic Affairs (1977) 1 ALN N203; Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD

227; Re Lazarevic and Minister for Immigration and Ethnic Affairs (1979) 2 ALN N532. Such a recommendation is of persuasive value only and can be ignored by the decision-maker: Re Lazarevic, above. An example of this approach is a suggestion that it would be appropriate to make an act of grace payment: see 16.16. Where a decision has to be carried into effect by the decision-maker, the AAT may feel constrained to include a direction to that effect: Re Ashram and Australian Postal Commission (1980) 2 ALN N1017. [page 322] Where the AAT exercises the power under s 43(1)(c) to set aside the decision under review it must take the next step of either making a decision in substitution for that set aside or remitting the matter for reconsideration: Commonwealth v Twyman (1985) 8 ALD 554. If it remits the matter to the decisionmaker under s 43(1)(c)(iii), the decision-maker has both a power to give effect to the decision of the AAT and a duty to do so promptly and in good faith: Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 346. This may necessitate the decision-maker making a fresh decision but if this is the effect of the AAT’s decision it must be carried out and the decision-maker cannot proceed as if it were the AAT that had made the decision: BHP Petroleum (Bass Strait) Pty Ltd v Jenkins (1993) 115 ALR 179. 17.2 The Tribunal may remit a matter for reconsideration ‘in accordance with any directions or recommendations of the Tribunal’: AAT Act s 43(1)(c)(ii). The Tribunal uses this power from time to time to condition the nature of the reconsideration. However, it must be clear that the decision-maker still has power to reach an independent decision. In Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 at [18] a decision of the Tribunal was set aside by the Federal Court because the Tribunal had ‘melded’ the separate powers to substitute a decision or to refer the matter back for reconsideration. The Tribunal had included a direction in its order that, following the reconsideration, a certificate should be issued. The court said that if this was the outcome that the Tribunal considered should occur, it should have substituted its decision for that of the decision-maker. The same approach was followed in Commonwealth v Horsfall [2010] FCA 443; (2010) 185 FCR 66; 115 ALD 344 at [103].

See also 15.22 in relation to the power to remit a matter for reconsideration under s 42D of the AAT Act. See further the discussion of the power of the AAT at 16.4–16.5. Where the AAT sets aside a decision on the basis that it is invalid, if the decision is not a nullity the AAT may either refer it back to the decision-maker for fresh action or make a decision itself: Re Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379; Whiteman v Secretary, Department of Veterans’ Affairs (1996) 69 FCR 510; 43 ALD 225. However, if the making of the substituted decision is dependent upon action by a third party such as a recommendation by a designated body, the AAT will not be able to make the decision itself and will be obliged to refer the matter to the decision-maker for action: see 16.11.

PRECEDENT AND AAT DECISIONS 17.3 The issue whether the AAT should follow previous decisions arises in two contexts — decisions of the courts on questions of law and decisions of the AAT itself. The AAT is part of the administrative structure of government. Therefore, despite the undoubted legal expertise of its members, it is bound to adhere to [page 323] relevant judicial pronouncements in the same way as is a government agency. The AAT should not decline to follow a judicial pronouncement on the meaning of an Act merely because it does not agree with it. French J in Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378; 81 ALR 25 summarised the position at 387; 34: … it is difficult to see how it is open to a senior member to form the view that a decision of the Supreme Court of a State which is on the very point before the tribunal is incorrect and not to be followed. In the special case of conflicting decisions of superior courts, the tribunal may have to decide

which to follow, but that occasion does not arise here. Ordinarily, senior members of the tribunal should apply the law as stated by the judges of this court or by judges of the Supreme Courts of the States. It seems that this reasoning applies to all members of the Tribunal no matter what their status or background. However, compare the rejection by President Downes J of a finding of the New South Wales Supreme Court discussed at 9.9. The position in relation to following previous decisions of the AAT is more complicated. Two pragmatic factors are relevant. First, an earlier decision may have been given by an AAT presided over by a presidential member. That member could be a judge of the Federal Court. It may be thought to be wise for a subsequent AAT to recognise the expertise of the presiding member and follow the earlier decision. Second, and importantly in terms of its position in the administrative structure, the AAT performs a normative or systemic role. Many decisions of the AAT will have the significance of a test case for decision-makers. The ruling on one application may need to be applied to many like cases arising in the course of the agency’s general business. Consistency in treatment of like cases is a hallmark of good administration. This can be made very difficult if not impossible if the AAT itself is inconsistent in its decision-making. President Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639: ‘Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’ These considerations led the AAT in Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499 to state what should be the approach to previous decisions: One effect of the tribunal’s decisions is to establish administrative norms; they enable legislation to be administered consistently. For the tribunal to make decisions inconsistent with its own previous decisions adversely affects that process. Doubtless, in some instances, where a matter has been decided by the tribunal without full argument or full consideration and it is necessary for the tribunal in later proceedings to examine the matter fully, it may then properly reach a conclusion different from the previous decision. In that event, because the later decision is the first made upon a full consideration of the matter, it is clear to administrators that that decision should be followed rather than the previous decision. More rarely there

may be instances where, notwithstanding that the tribunal has reached a decision on a certain matter after full consideration, it is nevertheless manifest that there was an error in the reasoning which led to that decision. To adapt what was said by Isaacs J in Australian [page 324] Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 278, it is not better that the tribunal should be persistently wrong than that it should be ultimately right. Nevertheless, where a matter has been decided by the tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of Australia or the Federal Court which may be relevant, it seems to us that it would be extremely unhelpful for the tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced are substantially the same as those advanced in the previous case … In our view, where a decision-maker is strongly of the view that a fully considered decision of the tribunal in relation to any matter is wrong, he should appeal to the Federal Court against that decision or, if it is not possible to do so, take the first opportunity to appeal against a decision in subsequent proceedings which follows and applies it, rather than attempt to persuade the tribunal to make a decision inconsistent with its previous decision and so create a situation in which those relying on the tribunal’s normative function to make administrative decisions or to advise their clients with regard to the correctness or otherwise of such decisions are cast into confusion. 17.4 This general approach was also endorsed in Re Times Consultants Pty Ltd and Collector of Customs (1986) 9 ALD 526 where the AAT declined to depart from a line of decisions extending over some six years. See also Re Niola Nominees Pty Ltd and Minister for Health (1986) 9 ALN N200; Re Perks and Australian National Railways Commission (1987) 13 ALD 133; Re Commonwealth Scientific and Industrial Research Organisation and Basinski (1987) 13 ALD 376.

However, the AAT has not always adhered to this approach and it is not difficult to find decisions where it has declined to follow a previous decision: Re Carter and Secretary, Department of Housing and Construction (1981) 4 ALD 329; Re Lee McKeand & Son Pty Ltd and Collector of Customs (1983) 5 ALD 613; Re Schlatter and Defence Force Retirement and Death Benefits Authority (1985) 8 ALD 133; Re McGrath and Defence Force Retirement and Death Benefits Authority (1986) 9 ALD 562; Re Swinburne and Australian Securities and Investments Commission [2014] AATA 602; (2014) 144 ALD 397 at [114]–[116]. Some agencies affected by AAT decisions have expressed concerns from time to time that there is inconsistency in AAT decisions. If this perception is accurate, it may stem from other factors than a deliberate refusal to follow earlier decisions. The number of AAT members and the volume of its work increases the possibility of differences in outcomes in decisions. This is a matter to which the AAT needs to attend by listing hearings before a strong AAT that includes the President or another Federal Court judge to hear a case that enables the competing views to be considered. A decision made in these circumstances is not binding for the reasons set out previously. However, it is very persuasive: Re Littlejohn and Secretary, Department of Social Security (1989) 17 ALD 482 at 486. [page 325] The arguments in opposition to inconsistency set out above are conclusive of the issues. The standing of the AAT will be greatly damaged if decision-makers cease to follow a particular decision on the basis that the Tribunal is likely to say something different or decide the same set of facts another way the next time an appeal comes before it. This is not to say that the AAT should not express reservations about a previous decision when it has them ‘for the record’ and that a disappointed party may not use them as a basis of appeal. But ‘it is not desirable for members to adhere to views that appeal to them when the point has been decided otherwise at a higher level’: Re Ganchov and Comcare (1990) 19 ALD 541 per DP Todd at 542.

DATE OF EFFECT OF AAT’S

DECISION: S 43(5A), (5B), (5C) AND (6) 17.5 The AAT’s decision comes into operation on the date on which it is given (s 43(5A)) unless the AAT specifies some later date for its commencement (s 43(5B)). The AAT may thus postpone the coming into operation of its decision if this is to the advantage of a party or to allow time for considering whether an appeal should be lodged: Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [478]. However, a conclusion on this will require the weighing of all interests, and where regulatory decisions are involved, postponing the coming into effect of a decision may not be in the public interest: Re Parker and Tax Agents’ Board of New South Wales (1995) 31 ATR 1248; 95 ATC 2174. The power to postpone the coming into effect of a decision cannot be used to make an anticipatory decision where the facts may have altered by the time the decision is to take effect: Re Vandenberg and Minister for Immigration and Ethnic Affairs (1979) 2 ALN N557. Nor can it be used where the AAT finds the decision under review to be invalid. The AAT cannot postpone the coming into operation of its decision if its decision is, in effect, that there is no original decision because it was made without authority: Re Fund for Animals Ltd and Minister for Arts, Heritage and Environment (No 2) (1986) 9 ALD 622 at 662. Section 43(6) provides that a decision of a person as varied by the AAT, or a decision made by the AAT in substitution for the decision of a person, is to be deemed to be a decision of that person and, unless the AAT otherwise orders, has effect, or is to be deemed to have had effect, on and from the day on which the decision under review has or had effect. The New South Wales Court of Appeal in Collector of Customs v Gaylor Pty Ltd (1995) 35 NSWLR 649; 127 ALR 641 said that the effect of a finding of the Tribunal that extra duty was not payable on the entry of goods into Australia meant that there had been an overpayment of such duty from the date of entry, not from the date of the Tribunal’s decision. This being so, the importer could claim interest on the amount paid from the date of payment of the duty. [page 326]

In relation to the power of the Tribunal to ‘otherwise order’, the Tribunal in Re Thiagarajan and Secretary, Department of Employment and Workplace Relations [2007] AATA 2065; (2007) 99 ALD 351 at [61] said: The ultimate parameters of the Tribunal’s power to ‘otherwise order’ are not susceptible to prescriptive definition. It is a power that may be enlivened by particular circumstances, in the light of their application to the relevant statutory powers, their nature and purpose. It is implicit in the width of the power to ‘otherwise order’ that it contemplates a measure of retroactive operation of a Tribunal decision. Just how far that might be permissible, in the light of events that have changed with the passage of time, has been the subject of cautionary comment: see Lesi v Minister for Immigration and Multicultural and Indigenous Affairs [see 17.6] and Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [see 17.6]. Thiagarajan’s case also pointed out that the ability of the AAT to determine the effect of its decision under the ‘otherwise order’ power can be displaced by the legislation under which the decision is made. In that case, the setting aside of a decision made under the Social Security (Administration) Act 1999 (Cth) (Social Security Administration Act) could not result in the right to receive payments that would have accrued after the making of the decision because there are express provisions in the Act preventing this outcome. Similarly, in Re Farnan and Inspector-General in Bankruptcy [2007] AATA 1199; (2007) 95 ALD 186 at [28] the AAT decided that s 149N(2) of the Bankruptcy Act 1975 (Cth) was a specific provision that displaced the general power in s 43(6) of the AAT Act for the AAT to specify some later date as the date of operation of its decision. 17.6 A problem can arise with the application of s 43(6) if a decision appealed from has been put into effect and is subsequently set aside by the AAT. This was discussed in Lesi v Minister for Immigration and Multicultural Affairs [2003] FCAFC 285; (2003) 134 FCR 27; 203 ALR 420. There a deportation order that had been executed was set aside by the Tribunal. The Full Court of the Federal Court held that the deportation was not rendered invalid or unlawful by the decision of the Tribunal. However, the conclusion by the respondent that, under the relevant legislation, the effect of a deportation order was to render the applicant’s visa invalid could no longer stand. The visa accordingly remained in force. The court emphasised that the effect of an order of the Tribunal in the light of s 43(6) would depend upon the legislation under which the decision that had been set

aside was made. See also Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 772; (2004) 138 FCR 60; 83 ALD 433. The operation of the section is likely to cause continuing difficulties. Difficulties might also be encountered if a decision was stayed under s 41 of the Act but subsequently affirmed and a person acted in a manner contrary to the decision in reliance on the stay order. See the valuable discussion of the effect of the section by DP Forgie in Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 326; (2004) 82 [page 327] ALD 514 beginning at [56] where reference is made to the like power of the court under s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act): see Australian Administrative Law (LexisNexis) at [372]. See also Re Premoso Pty Ltd (t/as Holden Special Vehicles) and Secretary, Department of Innovation, Industry, Science and Research [2010] AATA 271; (2010) 115 ALD 127 where the Tribunal rejected an application to vary the date of effect of its decision. There are special provisions in the Social Security Administration Act modifying the operation of s 43(6) in relation to the date of effect of a decision of the Tribunal on a first-review appeal in the Social Services and Child Support Division: see s 147. The general thrust of the provision is that, where an applicant applies for review of a decision more than 13 weeks after being given notice of the decision, the decision of the Tribunal takes effect on the day on which the application to the Tribunal was made. The issues to which the provisions in the social security legislation gave rise before the amendments in the Tribunals Amalgamation Act 2015 (Cth), many of which are still germane, are discussed by David Hertzberg in ‘The Date of Effect of Merits Review Decisions in Social Security and Other Contexts’ (2010) 64 AIAL Forum 18. See 14.11 for the effect of a decision of the Tribunal where a stay order has previously been made, and for the effect of s 43(5C). There are no provisions in the Migration Act 1958 (Cth) (Migration Act) setting out the date of effect of a review decision. The decision itself is taken to

have been made by the making of the written statement of the decision at the day and time it is made (ss 368(2), 430(2)) or, if the decision is given orally, at the date and time that it is given: ss 368D(1), 430D(1). Presumably that date would also be the date on which the decision takes effect. It is so regarded in s 476A(3) for the purposes of determining the time within which judicial review of a decision must be sought. There is no power to postpone the date of operation of a decision in the Migration and Refugee Division as can be done in the other Divisions pursuant to s 43(5B) of the AAT Act.

ESTOPPEL, RES JUDICATA AND AAT DECISIONS Problems with application of doctrines 17.7 The applicability of the doctrines of cause of action estoppel, issue estoppel and res judicata in relation to decisions of the AAT has been uncertain. In 2003 a Full Federal Court said in Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147; 200 ALR 565 at [63], after examining the authorities: ‘It is clear enough that it is difficult, if not impossible, to reconcile all that has been said in this array of authority.’ However, it seems that the tide of opinion has turned towards rejecting the application of these principles to the AAT, at least in the manner in which they apply to judicial decisions. [page 328] Statements in, for example, Bogaards v McMahon (1988) 15 ALD 313 and Re Hospital Benefit Fund (WA) Inc and Department of Health, Housing and Community Services (No 1) (1992) 28 ALD 25 supporting the application of estoppel are regularly ‘distinguished’. Reference is made to the dicta in Comcare Australia v Grimes (1994) 50 FCR 60; 33 ALD 548; Midland Metals Overseas Ltd v ComptrollerGeneral of Customs (1991) 30 FCR 87; 24 ALD 424; and Lilienthal v Migration Agents Registration Authority [2001] FCA 2; (2001) 65 ALD 437 at [20] where various Federal Court judges have pointed to the administrative nature of AAT decisions

as a reason why estoppel cannot be applied in its pristine form. See also Godwin v Repatriation Commission [2008] FCA 576; (2008) 168 FCR 471; 102 ALD 286 at [35]. Comments of an earlier Tribunal in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 suggested a pragmatic approach to the effect of earlier decisions on a current application before the AAT. The Tribunal said at 526: There is no single appropriate answer to the question of what extent estoppel as a matter of policy rather than law should apply in administrative decision-making as the balance of individual and public interests can and will produce different answers in the diverse areas of administrative practice. A doctrine with sufficient flexibility to recognise this diversity is needed. Having accepted that the concepts and policy considerations motivating the doctrines are desirable, the tribunal must have a mechanism for protecting both parties and the process. The tribunal is of the view that estoppel does not apply where there is a different decision, a clear legislative intent, the reconsideration decision is not ‘final’ and there has been prima facie a change in circumstances.

Inapplicability of concept of estoppel 17.8 More recently, Deputy Presidents of the Tribunal have indicated that even the language of estoppel should be eschewed. In Re Rana and Military Rehabilitation Compensation Commission [2008] AATA 558; (2008) 104 ALD 595 DP Forgie analysed the issue in terms of whether the Tribunal in making its decision was functus officio (see 17.26). If it had decided the issue that an applicant was attempting to raise again, the Tribunal had no jurisdiction. If it were a different issue because the facts had changed since the earlier decision or if the relevant legislation contemplated the right to return to the Tribunal, the issue of estoppel did not arise. See also that Deputy President’s analysis of the issues in Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564 at [450]–[456]; Re Pescott and Inspector-General in Bankruptcy [2013] AATA 680; (2013) 137 ALD 128 at [70]. In Pescott at [71] DP Forgie referred to the discretion given to the Tribunal by s 33(1)(c) of the AAT Act to inform itself on any matter in such manner as it thinks appropriate as leaving the way open for the Tribunal to have regard to the evidence given and conclusion reached in an earlier case dealing with the same

issues (provided that it did not deal with the same decision). However, having regard to the AAT’s obligation to determine applications in accordance with its statutory powers [page 329] and discretions, and by analogy to the principle that a statutory body cannot be estopped from exercising its statutory powers and discretions (Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93; Brickworks Ltd v Shire of Warringah (1963) 108 CLR 568), the functus officio approach may be questionable in cases where the issue sought to be raised again is the subject of a new application for review. Deputy President Jarvis in Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [52]ff saw the management of attempts to reopen previous decisions being through s 42B of the AAT Act permitting the dismissal of applications that are frivolous or vexatious. He stated that estoppel and res judicata are ‘inappropriate to administrative decision-making’. In the absence of a ruling on the issue from the High Court or a Full Federal Court, the matter cannot be taken to have been finally resolved. However, it appears that the view rejecting the applicability of estoppel and res judicata is that which the Tribunal will follow. (Contrast the decision of the UK Supreme Court in R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1; [2011] 2 All ER 1; [2011] 2 WLR 103 where the court ruled that res judicata applied to the decision of a disciplinary tribunal.)

Effect of previous decisions 17.9 If issue estoppel were to be applicable to AAT decisions, it is clear that, for an estoppel to arise, the previous decision would have had to resolve all issues that were sought to be raised before the AAT. The High Court in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; 208 ALR 1 at [25] said, in regard to whether a decision of an industrial tribunal could constitute an estoppel, that its decision had to be ‘final’. In this context: A ‘final’ decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended.

The fact that an appeal lies from a decision does not make it any less final. It must be ‘final and conclusive on the merits’: ‘the cause of action must be extinguished by the decision which is said to create the estoppel’. This will not always be apt to describe a decision of the AAT because of the nature of its jurisdiction. For example, in Re Walker and Secretary, Department of Social Security (No 2) (1995) 43 ALD 685 it was said that the facts claimed to have been resolved on a previous application, thereby constituting an estoppel, had been concerned with a different issue from that which was now before the AAT. In many of the decisions that come before the Tribunal for review the issues at stake can be ongoing and new circumstances may have arisen that qualify the position that existed at the date of the previous decision. Examples are: Freedom of Information requests: Re B and Medical Board (ACT) (1995) 39 ALD 748 where part of the information to which access had previously been denied had come into the public arena; [page 330] employee’s compensation: House v Department of Defence (1996) 65 FCR 94; 41 ALD 793 and Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 where the condition previously found not to be compensable was now characterised as a different medical condition; Re Ashton and Linfox Armaguard Pty Ltd [2011] AATA 579; (2011) 128 ALD 593 where a consent decision applied only to the applicant’s then condition and did not cover her later condition; and registration of tax agents: Re Modini and Tax Agents’ Board of Queensland [2005] AATA 1200; (2005) 89 ALD 496 where a previous refusal to register an agent because of insufficient employment experience was no bar to a later application where the applicant was seeking to rely on further work experience. It should always be borne in mind that the AAT is a part of the continuum of administrative activity. Deputy President Jarvis said pertinently in Re Lees and Repatriation Commission [2004] AATA 583; (2004) 82 ALD 150 at [32]: From a more general perspective, I think it is relevant to take into account

that this Tribunal performs an administrative function and not a judicial function, and the proceedings in the Tribunal are not inter partes. The Tribunal’s task is to arrive at the correct or preferable decision. It seems to me that the function may be impeded by an application of the doctrines such as waiver and estoppel in circumstances where a particular issue has been conceded by the respondent, but there is then a change of circumstances because new evidence has become available which requires evaluation by the decision-maker. See further the discussion by the same Deputy President in Re Jebb and Repatriation Commission [2005] AATA 470; (2005) 86 ALD 182. Deputy President Forgie in Re McWilliam and Civil Aviation Safety Authority [2005] AATA 1148; (2005) 89 ALD 391 at [36] set out the approach to be followed by the Tribunal if the parties raise an issue concerning the jurisdiction of the Tribunal and it is asserted that it has already made a decision on that issue: consider whether the two issues are the same; if they are the same, apply the general law unless it has been altered by the statutory context in which the first decision is made. The general law is that a decision on a jurisdictional issue cannot be regarded as conclusive or binding. The reason for this is that it must be open to reconsideration lest it be incorrect. If it be incorrect, it is a nullity and must be made again; and determine whether the statutory context modifies the application of the general law so that the first decision must be treated as a final decision on that issue. Where a decision of the AAT has been set aside by the Federal Court and the matter remitted to the Tribunal for a further hearing, the fact that an aspect of the original decision was not challenged before the court does not create an estoppel preventing the Tribunal from reconsidering that aspect of the decision: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; 51 ALD 519. See further 15.22. As noted above, an attempt to re-litigate previously determined issues may be a basis for dismissing an application as frivolous or vexatious: see 15.14. [page 331]

17.10 Estoppel by conduct has also been argued in the AAT. Such an approach encounters the difficulties referred to in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 124; 15 ALD 657 at 664–5. The court there held that estoppel has no role to play where the issues to be determined involve rights and obligations rather than the exercise of administrative discretions. The authority of a decision-maker cannot be extended beyond that given by the relevant legislation through the mechanism of an estoppel. For examples of the application of this approach see Roberts v Repatriation Commission (1992) 39 FCR 420; 29 ALD 442; Bramwell v Repatriation Commission (1998) 51 ALD 56 at 68; Telstra Corporation v Mahon [2004] FCA 1404; (2004) 85 ALD 772; Re Jebb and Repatriation Commission [2005] AATA 470; (2005) 86 ALD 182. In Re Camilleri and Comcare (1996) 43 ALD 167 the Tribunal said that an estoppel argument should not be dealt with at a preliminary hearing. The facts said to raise an estoppel were part of the determinative process, not just a jurisdictional matter. This makes it more than ever appropriate to consider whether an application said to be a reopening of a previous concluded application should be dealt with on a strike out application as being frivolous or vexatious. For an analysis of the issues, see Allan N Hall, ‘Res Judicata and the Administrative Appeals Tribunal’ (1994) 2 Australian Journal of Administrative Law 22; Timothy McEvoy, ‘Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole’ (1996) 4 Australian Journal of Administrative Law 37; and Justin Davidson, ‘After Estoppel: Managing Recidivism in the Administrative Appeals Tribunal’ (2013) 20 Australian Journal of Administrative Law 61. A decision of the Federal Court under the AD(JR) Act does not create an estoppel preventing subsequent review of the decision by the AAT. The court is concerned with the lawfulness of the decision and the AAT with its merits: Re Jorgensen and Australian Securities and Investments Commission [2001] AATA 424; (2001) 64 ALD 537. The Tribunal will, of course, be bound by the court’s ruling on the lawfulness of the decision to which the review application relates. In the context of estoppel flowing from a judicial proceeding, DP Forgie in Re Proctor and Commissioner of Taxation [2005] AATA 389; (2005) 87 ALD 247 at [81] summarised the position as follows: If a court decision, and so the essential findings on which it is based, is to bind the Tribunal it must be a case:

where the fact that a judgment, however described, has been recorded is essential to found the Tribunal’s jurisdiction, the Tribunal is bound by that conviction and the essential facts on which it is based; or where the Tribunal is required to consider the same issue as the court and a reading of the AAT Act and the legislation conferring jurisdiction lead to the conclusion that it is intended to bind the Tribunal. See also 9.17 and 9.19 relating to the power of the Tribunal to go behind the factual findings of a court. [page 332]

RAISING NEW MATTERS: ANSHUN ESTOPPEL 17.11 The discussion in 17.7–17.10 is not applicable to what is termed ‘Anshun estoppel’. Under that principle, where a party has behaved unreasonably in not raising a matter in earlier proceedings, that party will not be permitted to litigate that matter in later proceedings except in special circumstances. An attempt to claim that this principle was inapplicable to judicial review of administrative proceedings on the general basis that estoppel does not apply to such proceedings was rejected in Stuart v Sanderson [2000] FCA 270; (2000) 100 FCR 150; 175 ALR 681. Anshun estoppel was said to derive from a different foundation than issue estoppel. See also Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198 at [24]; Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054; (2003) 132 FCR 222; 78 ALD 50 at [33]; Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381; (2006) 95 ALD 569 at [41]; Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375; 124 ALD 181. However, the position may be different where it is a different decision, albeit concerning the same facts, that is being reviewed: Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1995] FCA 229; Australian Education Union v Lawler

[2008] FCAFC 135; (2008) 169 FCR 327; 104 ALD 258, particularly per Jessop J at [177]. In BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 the court refused to allow an argument not put on the original appeal from a decision of a tribunal to be raised when the matter was being reconsidered following remittal by the High Court. On appeal, this approach was affirmed: [2002] FCAFC 221. However, the court retains a discretion not to apply the Anshun principle: see Daniel’s case above. These cases were all concerned with judicial review of administrative decisions. It is unlikely that the same approach will be taken in regard to AAT decisions. Deputy President Jarvis in Re Jebb and Repatriation Commission [2005] AATA 470; (2005) 86 ALD 182 at [45] doubted the applicability of the doctrine if it were to prevent the parties raising an issue before the Tribunal that had not been raised before the original decision-maker. An AAT review involves a rehearing and the parties are permitted to put whatever they consider relevant to the Tribunal. The Tribunal noted that the position might be different if successive applications to the Tribunal were concerned. However, even then, an applicant must be given the opportunity to present his or her case: at [46]. A stay application is not of a kind that allows all the issues relevant to a matter to be addressed. Accordingly, a later hearing on the substantive issues cannot attract Anshun estoppel: Re Repatriation Commission and Kowalski [2009] AATA 6; (2009) 108 ALD 464. If it were apparent that a matter was being re-litigated by attempting to raise issues that could have been, but were not, raised on a previous application, it may be [page 333] that the AAT would declare the application to be frivolous or vexatious. However, for the same reason that estoppel arguments may not be applicable to AAT proceedings, namely the continuous nature of the administrative process, the Tribunal would have to be sure that it was open to the applicant to have raised the issues previously. There is also likely to be a stronger case as a matter of discretion for allowing an argument to be ventilated where the applicant does

not have legal representation and may not have been fully aware of the issues that could or should have been raised on the first hearing. See further 13.11 in relation to re-agitation of facts found in a previous decision.

FRAUD ON TRIBUNAL 17.12 In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; 96 ALD 510 the High Court discussed, in the context of the operation of the Refugee Review Tribunal, the circumstances that might constitute a fraud on a tribunal. It made the point that the expression ‘fraud’ in the context of public law refers to conduct of a much lower level of iniquity than is applicable in private law. Impropriety is sufficient to constitute fraud. The obligation of administrators is to exercise powers reasonably and in good faith. Moral obliquity is not the test: at [12]–[14]. On this approach, conduct relating to the proceedings of a tribunal may more readily be characterised as fraudulent. In the SZFDE case, action by a third party adviser that dissuaded an applicant from appearing before the tribunal was held to constitute fraud because it prevented the tribunal from meeting its statutory obligation to provide the applicant with natural justice. The fact that there could be no criticism of the tribunal was not relevant. The possibility of interfering with the AAT’s fair hearing obligations must be borne in mind when considering the forensic tactics to be adopted on an application for review.

SECURITY APPEALS DECISIONS: S 43AAA 17.13 Section 43 does not apply in relation to security appeals. Section 43AAA sets out the powers of the AAT on review of those appeals. See further Justice Garry Downes, ‘The Security Appeals Division of the Administrative Appeals Tribunal — Functions, Powers and Procedures’ (13 September 2006) reproduced on the AAT website.

AAT TO GIVE REASONS FOR

DECISION: S 43(2), (2A), (2B) 17.14 The AAT may give the reasons for its decision either orally or in writing: s 43(2). Where a Tribunal does not give its reasons in writing initially, a party may, [page 334] within 28 days of receipt of a copy of the decision, request a written statement of reasons: s 43(2A). Such a statement must then be furnished within 28 days. However, it is not open to the Tribunal to add entirely fresh reasons to those given orally as distinct from editing the oral reasons: Ma v Federal Commissioner of Taxation (1991) 37 FCR 225; 27 ALD 601. In Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 at [5] Stone J warned that merely annexing the transcript of the oral reasons will not satisfy the obligation to give reasons unless the Tribunal has given very clearly structured reasons that set out the findings of fact and conclusions from the facts which have been put in evidence, the cross-examination of witnesses and the submissions made. Where the AAT gives its reasons for decision in writing, the reasons are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based: s 43(2)(b). Copies of the AAT’s decision and reasons are to be served on each party to the proceedings. Notice is also to be given of the party’s right, as applicable, to apply for a second review of the decision or to appeal to a court on a question of law: s 43(5AA). An exception to this requirement to give notice is to an agency party to a proceeding in the Social Services and Child Support Division: s 43(5AB). There is no obligation to give notice of appeal rights to parties affected by decisions under the Migration Act. The requirement to give reasons is expressed to be subject to the operation of ss 35 and 36 which forbid the disclosure of information in certain circumstances: see 11.6–11.13, 12.15–12.20. See further Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83. There is no obligation on the Tribunal to provide a translation of its reasons:

WZAOL v Minister for Immigration and Citizenship [2013] FCA 425; (2013) 14 ALD 285. Section 14ZZJ of the Taxation Administration Act 1953 (Cth) modifies the requirement to give reasons in respect of taxation appeals. Where an appeal was not heard in public and where no appeal against the AAT decision has been lodged with the Federal Court, the Tribunal ‘must ensure, as far as practicable, that its reasons for the decision are framed so as not to be likely to enable the identification of the person who applied for the review’. See Re Areffco and Commissioner of Taxation [2011] AATA 687; (2011) 127 ALD 627 for a discussion of the operation of this requirement. It was there pointed out that the material required by the section not to be published is limited and any further restriction on the content of the Tribunal’s statement of reasons is dictated by the considerations set out in s 35(3) (now s 35(5)) of the AAT Act: see 11.1. In regard to the obligation imposed by s 14ZZJ, SM Taylor said at [8]: … the obligation … in so far as it includes criteria of practicability and likelihood of identification, requires an impressionistic judgment. That impressionistic judgment must be made against criteria that have not been exhaustively expressed. Certainly one criterion is the object of ensuring the non-identification of the applicant for review. But another criterion must be that of retaining clarity, cogency and confidence in the rationality, adequacy and thoroughness of the tribunal’s deliberative process. [page 335] As it seems to me, that second criterion can only be promoted by the presentation of a level of detail which provides confidence that the tribunal’s deliberative process has been carried out at an appropriate level of real regard to the underlying detail. The decisions or orders of the AAT and the reasons in support of those decisions may be proved by producing a copy of the decision or order or reasons certified by the registrar or a deputy registrar of the AAT: s 43(4). Special provisions are contained in s 43AAA relating to the making and publication of findings on security appeals. Sections 368 and 430 of the Migration Act require reasons to be given for decisions by the Tribunal under that Act. The requirements as to the form of

reasons are in terms similar to s 28(1) relating to the statement of reasons that a decision-maker must give in relation to a decision to be reviewed by the Tribunal: see 4.2. However, better guidance as to the form that the Tribunal’s reasons should take to meet the Migration Act requirements is provided by the law set out below developed prior to the amalgamation of the tribunals that has determined the form of reasons that the AAT must provide under s 43(1). The Migration Act requires the Tribunal to reach a decision on a review even though the applicant chooses not to take part in a hearing: see 15.7. This does not relieve the Tribunal of its obligation to provide reasons for the decision that it reaches: SZTGS v Minister for Immigration and Border Protection [2014] FCA 908; (2014) 142 ALD 558 at [34]. Section 178 of the Social Security Administration Act imposes an obligation on the AAT following a first review of a social welfare decision to give notice of its decision and reasons either orally or in writing for the decision within 14 days of making its decision. A party to whom oral reasons are given may request a statement of written reasons. The AAT must comply with this request within 14 days after its receipt.

FORM AND CONTENT OF REASONS FOR DECISION AAT’s obligation 17.15 General discussion of what is required in a statement of reasons for a decision of a tribunal is to be found in many cases, notably by a Full Federal Court in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; 41 ALD 361 at 423; 371 and by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 62 ALD 225. Both cases related to the obligation imposed on the former migration tribunals but the requirement in ss 368 and 430 of the Migration Act is the same as for the AAT. This also means that the discussion that follows is applicable to proceedings in the Migration and Refugee Division. The rulings of the court on the requirements necessary for compliance with s 13 of the AD(JR) Act also provide guidance: Repatriation Commission v Boyle (1997) 47 ALD 637 at 644.

[page 336] The following discussion refers to a number of various matters that have been said must be complied with if the statement of reasons is to be sufficient. At heart the obligation is to enable the parties and the public to understand how the Tribunal reached its decision: Seventy-Ninth Vibration Pty Ltd v CEO of Customs (1998) 50 ALD 865 at 870. As to the form that reasons should take in relation to applications heard in the Tribunal’s Security Division, see TCXG v Director-General of Security [2013] AATA 377; (2013) 135 ALD 600.

Matters to be included in reasons 17.16 Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd (1988) 78 ALR 466 said that where reasons are given for a decision, it is wrong to speculate upon matters, beyond those referred to in the reasons, which may have motivated the decision. His Honour was speaking at large. Like views have been stated by the Federal Court in relation to the statement of reasons by the AAT. In Sullivan v Department of Transport (1978) 1 ALD 383 the court said that if the AAT, in its findings of fact, failed to refer to a particular matter, it must be taken to have regarded that matter as not material. See also Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126. However, as the following cases indicate, this approach should now be regarded as too general. In Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124 at 129, Woodward J postulated that there could be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the AAT took the view that, whatever the state of the evidence, the matter was not important or ‘material’ to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The AAT need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel’s arguments. His Honour continued: The requirement of s 43 is, in my view, that the AAT should deal with all the matters which it is bound by relevant legislation to consider, or which it

has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence. Section 43(2B) of the AAT Act requires the Tribunal in its reasons for decision to include a reference to the evidence or other material on which its findings were based. In Milbourn v Repatriation Commission [2009] FCA 176; (2009) 174 FCR 486; 108 ALD 71 at [29] Graham J said that the ‘other material’ was ‘intended to contemplate matters such as an agreement as to relevant facts, other material to which the Tribunal may have regard which did not constitute “evidence” and material such as policy statements’. Flick J observed in Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 111 ALD 579 at [17] that s 43(2B) does not impose any constraint as to the manner [page 337] in which the Tribunal is to make ‘reference’ to the evidence or other material. The greater the conflict in the evidence, the greater will be the necessity to set it out. However, the person affected ‘should not be left to make a guess as to the evidence relied upon’: King v Minister for Immigration and Border Protection [2014] FCA 766; (2014) 142 ALD 305 at [33]. A Tribunal is not required to give a subset of reasons why it accepts or rejects individual pieces of evidence: Chief Executive Officer, Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538; (2007) 97 ALD 746 per Rares J at [44]. See also Dodds v Comcare Australia (1993) 31 ALD 690; SZJZS v Minister for Immigration and Citizenship [2008] FCA 789; (2008) 102 ALD 318. A failure to reject specifically evidence from a witness will not invalidate the reasons where it is apparent that the evidence had been considered: National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436; 129 ALD 500 at [61]. The fact that only part of extensive evidence is extracted or referred to in the reasons does not indicate a failure to consider the totality of the evidence. The Tribunal is entitled to accept or reject the respective pieces of evidence before it or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it, provided that it deals with the integers of the claim: Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 at [46]. Nor is there an obligation to make a finding

on every question of fact that may be regarded as objectively material: Australian Postal Corporation v Sellick [2008] FCA 245; (2008) 101 ALD 245 at [64]; Lang v Comcare [2007] FCA 47; (2007) 94 ALD 141 at [53]. It is necessary for there to be some further feature pointing to an actual failure by the Tribunal to consider the whole of the evidence before the reasons will be regarded as deficient: AJKA Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21 at [37]. 17.17 Nonetheless, a failure to refer to and make findings on a significant issue may lead to the conclusion that the Tribunal did not consider the issue to be material and this may in turn lead to the conclusion that there has been a misunderstanding of the law: Guy v Repatriation Commission [2002] FCA 525; (2002) 74 ALD 617 at [52]; Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337; 109 ALD 260 at [46]; Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277; 296 ALR 32 at [55]; Rand v Comcare [2014] FCA 584; (2014) 140 ALD 666 at [36]; Repatriation Commission v Holden [2014] FCA 605; (2014) 142 ALD 267 at [78]–[79]. A Full Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47] said, in a passage that is frequently quoted: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding [page 338] on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34], an immigration appeal, a Full Federal Court put it: … where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight. Another useful statement is that of Sackville J in Telepacific Pty Ltd v Commissioner of Taxation [2005] FCA 158; (2005) 218 ALR 85 at [54]: [I]f the AAT does not record the findings of fact it has actually made and this failure makes it impossible to ascertain the AAT’s reasoning processes, its decision would be materially affected by an error of law. See also Australian Postal Corporation v Sellick [2008] FCA 245; (2008) 101 ALD 245 and Lang v Comcare [2007] FCA 47; (2007) 94 ALD 141. For like reason, as was pointed out in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 14 ALD 794; 79 ALR 267 and East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 19 ALD 85; 90 ALR 457, important submissions should be dealt with in the statement of reasons. This point had previously been made in O’Brien v Repatriation Commission (1984) 1 FCR 472 at 486; 6 ALD 457 at 471, Keely and Fitzgerald JJ noting that the legislative policy underlying s 43 would be thwarted if inadequacy in the expression of reasons were to disguise any possible errors. Mansfield J in Brackenreg v Comcare [2010] FCA 724; (2010) 187 FCR 209; 117 ALD 39 at [69] referred to the obligation as being to deal with ‘a submission seriously advanced by a party relevant to the issue before the tribunal and worthy of consideration’. Flick J (with whom the other members of the Full Federal Court agreed) in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 140 ALD 1 at [22] put it:

Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely [page 339] removes any room for argument and provides assurance to the parties — especially the frequently unrepresented claimant — that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated. This is of universal importance. A Full Federal Court in Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 said that the obligation stems from the fact that an appeal lies from a decision of the AAT on a question of law and the reasons must be sufficient to disclose whether or not such an error has been made. Sheppard J reiterated this in Commonwealth v Pharmacy Guild of Australia (1989) 19 ALD 510 at 514; 91 ALR 65 at 88 adding the comment that ‘[a] prime purpose [of a statement of reasons] is the disclosure of the tribunal’s reasoning process to the public and the parties’. See also Anderson v Australian Postal Corporation (1993) 32 ALD 138. 17.18 Where there are competing views advanced by the parties on the meaning of a statute, it is not sufficient merely to indicate a preference for one over another. The reasons must explain the choice: Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [58]. The Tribunal’s understanding of the law, findings of fact and reasoning processes should be stated in ‘clear and unambiguous language, not in vague generalities or the formal language of legislation’: per Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 referring to the obligation imposed by s 13 of the AD(JR) Act and adopted by Weinberg J

in relation to the AAT in Comcare v Mathieson [2004] FCA 212; (2004) 79 ALD 518 at [62]–[63]. The length of the reasons statement is not a guide to its adequacy. ‘The duty can be properly performed in economical language. But the obligation imposed on the tribunal to give reasons for its decision is not satisfied by its stating a number of propositions, either concisely or at length, which do not provide an intelligible explanation for how the tribunal reached its conclusion’: Seventy-Ninth Vibration Pty Ltd v CEO of Customs (1998) 50 ALD 865 at 869. A recitation of the evidence followed by a conclusion on the facts without indicating how that conclusion was reached is not a sufficient statement of reasons: Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 30 ALD 377. Nor is a statement of findings of fact without reference to the evidence on which the finding is based: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 349; Telstra Corporation Ltd v Roycroft (1997) 77 FCR 358 at 364; 47 ALD 671 at 676. A mere statement that the submissions of one party dealing with an issue before the Tribunal are accepted may be insufficient if those submissions do not deal with all the issues raised by the other side: Narbey v Commissioner of Taxation [2008] FCA 1699; (2008) 111 ALD 312. Reproduction of the submissions of one of the parties without reference to the [page 340] other parties’ submissions is likely to give rise to an inference that the latter submissions have not been considered: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166; 128 ALD 489; applied in Palassis v Commissioner of Taxation (No 2) [2012] FCA 955; (2012) 136 ALD 91. ‘Where a case involves the exercise of a discretion, the Tribunal’s duty is not discharged by setting out the findings of fact necessary to enliven the relevant discretion … What must appear from the reasons is why the discretion was exercised in a particular way’: per French J in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; (2006) 91 ALD 103 at [40]. See also Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923; (2008) 174 FCR 157; 106 ALD 36 at [89]. Where there is conflicting evidence, the reasons should indicate why one version has been preferred over another: Davies v Australian Securities Commission

(1995) 59 FCR 221 at 244; 38 ALD 273 at 294; Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 at 641. Findings as to credit are to be set forth in the same way as findings as to facts: per Flick J in SZSRV v Minister for Immigration and Border Protection [2014] FCA 220; (2014) 142 ALD 219 at [23]. An exception to this has been recognised where the competing views are so clear cut that the fact of selecting one indicates the basis of the choice: Australian Postal Commission v Wallace (1996) 41 ALD 455. If uncontradicted evidence is not followed, the reasons should indicate why: Suters v Australian Postal Corporation (1992) 28 ALD 320. Setting out the names of the legal authorities cited by each party and saying that they have been taken into account in reaching a decision does not satisfy the requirement to state the reasons for the decision: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 108 ALD 329 at [44]. If the Tribunal proposes to set out a finding on an appeal but then goes on to deal with a situation that might arise if its finding should be found to be wrong, it should clearly indicate in its reasons the reason for dealing with the second issue. A failure to do so can lead to uncertainty as to its ultimate decision and that can constitute an error of law: Smith v Comcare [2013] FCAFC 65; (2013) 212 FCR 335; 134 ALD 480 at [34]. 17.19 All that said, it is necessary to consider the reasons as a whole when coming to a decision as to their adequacy. The way in which reasons may be stated was discussed in the context of an immigration decision by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 73 ALD 1 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. This statement was applied by Full Federal Courts to AAT decisions in Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43] and Nweke [page 341]

v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79; (2013) 136 ALD 235 at [23]. When judging the adequacy of the statement of reasons, the caution expressed by Mortimer J in Repatriation Commission v Holden [2014] FCA 605; (2014) 142 ALD 267 at [77] should not be overlooked: In a busy administrative tribunal such as the AAT, the content of the obligation in s 43(2B) must be approached with due appreciation of the circumstances in which the obligation must be discharged, including the obligations contained in s 33 of the AAT Act.

Use of standard paragraphs 17.20 Many of the areas of jurisdiction exercised by the Tribunal involve consideration of similar issues. This gives rise to the possibility of the Tribunal using standard paragraphs in its reasons to support a conclusion. This approach to the preparation of statements of reasons was widely used by the former migration tribunals which had to deal with large numbers of similar cases. That approach to the preparation of reasons has been endorsed by the courts as being acceptable, provided that it is apparent that the particular circumstances before the tribunal are considered: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 at [16]; (1996) 185 CLR 259 at 266; 41 ALD 1 at 5. The Full Federal Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166; 128 ALD 489 reviewed this approach in regard to the preparation of reasons by the AAT. It accepted that the Tribunal could have recourse to standard paragraphs in preparing its reasons. However, it cautioned that it was necessary that the Tribunal perform its allocated function of providing adequate reasons relating to its decision. It said at [92]: In relation to template or standard paragraphs, relevant to the question, to be answered objectively, whether or not the decision-maker has performed its allocated task will be the following: (i) the function of the decision-maker and the source of that function; (ii) the source of the copied material; (iii) the subject matter of the copied material; (iv) whether the copied material was controversial; (v) the similarity of the claim to the claim from which the material was

copied; (vi) the extent of the copying; (vii) whether the copied material was up to date; (viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and (ix) whether the fact of copying and the source of the copied material was acknowledged. [page 342] See also SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012) 200 FCR 223; 125 ALD 481 where the Full Federal Court rejected an argument that the use by a reviewer of paragraphs from previous statements of reasons indicated that the reviewer was biased. Leave to appeal was refused by the High Court: [2012] HCATrans 220. SZQHH was followed in Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160; (2012) 134 ALD 1. However, a differently constituted Full Court in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 142 ALD 211 at [20], after referring to SZQHH, cautioned that the standard paragraphs presented a risk of overlooking the actual submissions made. The court also noted that, ‘allied with that risk, or perhaps overlapping it, is the potential to fail to consider each case on its own merits’. Errors in the reasons for decision that were clearly brought about by reliance on a template but which had been preceded by a detailed analysis of the applicant’s case were not sufficient to establish jurisdictional error but were mere slips in stating the reasons: MZZXF v Minister for Immigration and Border Protection [2015] FCCA 158 at [70].

INADEQUACY OF REASONS IS ERROR OF LAW 17.21

In a number of cases it has been expressly held that a failure to provide

a satisfactory statement of reasons will constitute an error of law such as to lead to the AAT’s decision being set aside: see, for example, Dornan v Riordan (1990) 24 FCR 564; 21 ALD 255; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 at [49]; Comcare v Singh [2012] FCA 136; (2012) 126 ALD 119; Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 at [112]–[116]. This conclusion should be compared with the views expressed by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647 at 656–9 questioning its accuracy. Support for Finkelstein J is provided by Tracey J in Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411. Tracey J points out that, while the Full Court in the Civil Aviation Safety Authority case referred to and rejected Finkelstein J’s view, it did not refer to a High Court decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; 76 ALD 1 which provides support for the contrary conclusion. However, Palme and Kennedy were concerned with whether the inadequacy of reasons could constitute a jurisdictional error. Neither was an appeal under s 44 of the AAT Act. It would seem that, as the law stands at present, inadequacy of reasons should be considered an error of law such as to attract the right to appeal to the Federal Court under s 44 of the AAT Act. It may be that if the matter is considered by the High Court a different conclusion could be reached. However, this would be an unfortunate result as the cases supporting the view that inadequacy of reasons is not an error of law contemplate that the result of that conclusion should be the referral [page 343] back of the matter to the decision-maker for the provision of fresh reasons. To add such a step into the review process is not an appropriate way to manage proceedings that have already become protracted. To differentiate in this way between reasons and decision is artificial and serves both an applicant and the litigation processes ill. However, Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233; 4 ALN N137 makes it clear that the requirements of s 43(2) are not mandatory and substantial compliance with the section is sufficient. It is not

necessary for the AAT to expressly state findings of fact if, on reading its reasons as a whole, those findings can be determined; see also Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126. A like view was expressed by M L Foster J in Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368 at 370: It could not be suggested that the AAT was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored. In Commonwealth v Smith (1989) 18 ALD 224 at 225 von Doussa J said: … the tribunal does not fail to comply with s 43(2B) if it omits to make an express finding about a material fact which was not in issue because it was conceded, expressly or impliedly, by the way in which the case was conducted. Similarly the tribunal does not fail to comply with the section if it omits to discuss a contention of a party which has no relevance to the process of reasoning leading to its decision. See also Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 27 ALD 309; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. 17.22 Inadequacy of the Tribunal’s statement of reasons does not lead inevitably to its decision being set aside. The Federal Court has pointed to the need to distinguish between the decision that has been made by the Tribunal and the reasons stated in justification of it. The appropriate order to be made on an appeal under s 44 of the AAT Act ‘will depend upon the facts and circumstances of each individual case and the exercise of the discretion thereby conferred’: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 at [55]. The court followed this direction in Sent v Commissioner of Taxation [2012] FCA 382; (2012) 128 ALD 34 at [136], ruling that ‘the failure to provide adequate reasons is not a substantial one which operates to vitiate the decision’. The decision at first instance in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 108 ALD 329 at [69] is interesting in that the

court did not set aside the decision of the Tribunal on the basis that the inadequacy of the reasons statement indicated an error of law. Rather it set aside only the statement of reasons and directed the Tribunal, as previously constituted, to provide reasons in accordance with s 43(2). The matter then went on appeal: Civil [page 344] Aviation Safety Authority v Central Aviation Pty Ltd, above. The Full Court was obliged to reverse the order at first instance because the Tribunal member hearing the case had ceased to be a member and thus could not provide reasons. However, the court considered whether such an order could be made. It concluded that the discretion vested in the court by s 44 of the AAT Act could support such an order in an appropriate case. Whether such an order will be made will probably depend upon the nature of the error in the reasons. If it is substantial it will indicate that the Tribunal misunderstood the case before it. However, if it is of a relatively minor kind, a fresh statement may well be considered sufficient. What would be interesting then would be to see if a new application were brought under s 44. Deliberately left unanswered by Flick J in WZAQU v Minister for Immigration and Citizenship (No 2) [2013] FCA 403 at [30] was the question whether the reasons given for a decision could be supplemented and explained by reference to the transcript of the proceedings before the Tribunal. For an analysis of the law relating to the obligation to give reasons, see John Basten QC, ‘Judicial Review: Recent Trends’ (2001) 29 Federal Law Review 365 at 374–83; John Carroll and Cain Sibley, ‘The Impact of the Emerging “Reasoning” Grounds of Review’ (2014) 78 AIAL Forum 44.

GUIDANCE ON FORM OF REASONS 17.23 General guidance on the form that reasons prepared by an administrative tribunal should take is contained in the judgment of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996)

185 CLR 259 at 291; 41 ALD 1 at 22. See also the informed consideration of the matter by the then Principal Member of the Immigration Review Tribunal, Sue Tongue, in ‘Writing Reasons for Decision’ in Susan Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? Papers of the 1998 Administrative Law Forum, Australian Institute of Administrative Law, Canberra, 1999 at 392. In Gersbach v Australian Telecommunications Commission (1986) 10 ALN N137 Davies J stated what he considered to be good practice to be followed in compensation cases, namely for the reasons to set out the material parts of the relevant determination and legislation. In Re Tam Anh Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 DP Forgie discussed the tension between the obligation under s 43(2B) of the AAT Act for the Tribunal’s reasons for a decision to include findings on material questions of fact and refer to the evidence on which the findings were based and the power in s 35 to make confidentiality orders in respect of the evidence given in proceedings. She concluded at [41] that the principal obligation was that in s 43(2B). Provided that is satisfied, it is open to the Tribunal to make an order under s 35 restricting access to personal information. (As to the operation of s 35, see 11.6–11.7.) [page 345]

ALTERATION OF REASONS — SLIP RULE: S 43AA 17.24 In Re Dillon and Department of Trade (No 2) (1986) 9 ALD 187 the AAT was invited to amend a previous decision by nominating additional words to those in a document that had been held to be exempt from disclosure under the Freedom of Information Act 1982 (Cth). The extension would have been consistent with the decision in relation to other deletions in the document. It was argued that this action could be taken under a ‘slip rule’ process. Deputy President Todd acknowledged the desirability of being able to correct errors such as miscalculations, typographical mistakes, etc, but questioned whether such a power existed under the AAT Act once a decision had been made. He

had no doubt, however, that no change was possible where the Tribunal had put down what it intended to put down but subsequently had second thoughts. Nor could a change be made once an appeal had been lodged. Both these latter circumstances applied in the instant case and no change could therefore be made in the original decision. The Reasons for Decision contain a full exposition of the circumstances in which the slip rule can and cannot be invoked. The concerns voiced by DP Todd have largely been overcome by the inclusion of s 43AA in the AAT Act. That section allows alteration of the text of a decision or the written statement of reasons where it is found to contain an ‘obvious’ error. The section cites as examples of obvious errors clerical or typographical errors and inconsistencies between the decision and the statement of reasons. These are not meant to exhaust the possibilities but they give a flavour of what might be considered to be an obvious error. Clearly a change of heart cannot be encompassed within the section. In Re Murray and Repatriation Commission (1998) 52 ALD 117 at 127 the Tribunal said that ‘the parameters of the tribunal’s power to change a decision or reinstate a matter which had been dismissed previously are clearly and expressly defined in the Act’. In that case the Tribunal declined to reopen a case to allow evidence to be given of a matter that was relevant to the decision that had been given but which had not been raised at the hearing. The Tribunal had no inherent power over and above that provided in the AAT Act. The slip rule cannot be used to cure a basic defect such as a lack of jurisdiction: Re Bogaards and Commonwealth (1987) 13 ALD 578 at 587 (a point not affected by the upholding of an appeal from that case: Bogaards v McMahon (1988) 15 ALD 313; 80 ALR 342). In Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160 at [65] Mansfield J said in relation to an order for costs that had been made by the Tribunal when giving an oral judgment: The AAT Act, therefore, perfects the Tribunal’s orders upon their being pronounced. There is power to correct obvious errors in the text of a decision or the reasons under s 43AA, but not to reverse or vary the decision. It could not be said that the Tribunal, having formally said it set aside the decision under review could then revisit the decision. Matters of expression, or inconsistency or error in calculation, could be corrected under s 43AA, but not the decision itself. If that be so, I do not see how the

[page 346] costs order element of the Tribunal’s reasons and orders does not have a similar status. Without more, it took effect when made and could be enforced. The Tribunal had given its decision orally, and thereafter its role at least to the extent its decision addressed and resolved matters specifically in issue was spent. See also Iacono v Tax Agents’ Board of Victoria [2006] FCA 8096; (2006) 91 ALD 350; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 108 ALD 329; Re No Ship Action Group Inc and Minister for Sustainability, Environment, Water, Population and Communities [2010] AATA 789; (2010) 127 ALD 332. Moon’s case was followed in Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570; 89 ALD 51 to reject the right to use s 43AA to amend a consent decision where the decision represented the parties’ understanding at the time when it was presented to the AAT. See further 15.21. 17.25 The section cannot be used to substitute new reasons where it has been found or determined that the original reasons are deficient in some way. A Full Federal Court in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 at [62] said: Where it has been concluded that reasons as provided do not comply with s 43(2), s 43AA is not the source of power to rectify that inadequacy by providing reasons which do support the decision previously reached. Even if the inadequacy in reasons previously provided may be characterised as ‘obvious’, a conclusion which itself may well be doubted, it would be a curious construction of s 43AA(1) to conclude that that provision empowered a direction to be given to the Registrar to ‘alter the … statement in accordance with the directions of the Tribunal’ by the incorporation of new reasons either in addition to or in substitution for those previously provided. Even if the new or supplementary reasons could sit comfortably with those previously provided, it may well be doubted whether a direction to incorporate such reasons can truly be characterised as a mere ‘alteration’ of those previously provided.

See also the rejection by Re Sanchez and Comcare (1997) 48 ALD 785 of the argument that s 33 of the Acts Interpretation Act 1901 (Cth) which permits the exercise of powers and duties to be revisited provides a means for revisiting a decision of the Tribunal once made. See also Collins’ case, above. For examples of use of the power to correct decisions where an obvious error had occurred, see Re Brackenreg and Comcare [2002] AATA 1325; (2002) 74 ALD 137; Re Trans Air Ltd and Civil Aviation Safety Authority [2010] AATA 42; (2010) 113 ALD 426. A failure or refusal to exercise the power under s 43AA to correct an error might constitute an appealable error of law, but only if the Tribunal’s attention is drawn to the error: Hazim v Secretary, Department of Family and Community Services [2002] FCA 242; (2002) 116 FCR 533; 68 ALD 39 at [26]. The power to alter may be exercised by the President or the member who presided at the proceeding to which the decision relates. Section 43AA does not apply to proceedings in the Migration and Review Division and there is no equivalent provision in the Migration Act. Indeed ss 368(2A), [page 347] 368D(2), 430(2A) and 430D(2) expressly say that the Tribunal has no power to vary or revoke a decision after it has been given.

FUNCTUS OFFICIO 17.26 The question whether the AAT has dealt with a matter in such a way that it cannot revisit it has arisen in a number of contexts additional to that referred to in 17.24 of correcting its Reasons for Decision. It has also been a live issue in relation to the former migration tribunals and the approach taken there will continue to be applicable to proceedings in the Migration and Refugee Division of the AAT. Two circumstances arise.

When has a decision been made 17.27

First, at what point has a tribunal made a decision such that it has

completed its handling of the case? In Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; 60 ALD 383 it was said that a decision was made when the conclusion on the matter as a mental process had been the subject of an overt act of such a character as to give finality to that conclusion. This would occur by the Tribunal putting its conclusion beyond recall such as by publicly announcing its decision or communicating it to the parties. Up until this had occurred it would be possible for the Tribunal to receive and take into account further material from the parties: X v Minister for Immigration and Multicultural Affairs [2002] FCA 256; (2002) 116 FCR 319; 67 ALD 355 at [24]. The Tribunal would also be able to change its mind as to the outcome of the case. See also: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18; 183 ALR 531: the fact that a decision had been prepared and signed did not prevent the consideration of additional material as the decision had not been promulgated; Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 25; 132 ALD 1: the Refugee Review Tribunal (RRT) was not functus officio where a member of the RRT electronically transmitted to the Registry of the RRT a written decision, with a view to the decision being notified to the first respondent and to the Secretary of the Department of Immigration and Citizenship; Re Gibson and Repatriation Commission [2006] AATA 1090; (2006) 94 ALD 187: the fact that there was a brief electronic record of the outcome of a case was not sufficient to render the Tribunal functus officio in the absence of any document recording the members of the Tribunal and their decision; Re Smedley and Director-General of Social Security (1983) 5 ALD 387: an application for an order as to costs could be made after the AAT had published its reasons on the substantive matter that the application for review raised. The fact that the [page 348] question of costs had not been raised before that publication took place did

not prevent its subsequent consideration. It was a part of the appeal and it had not been dealt with by the publication of the AAT’s reasons; and Re Hume and Repatriation Commission (1993) 29 ALD 891: the AAT could add to previous reasons the date from which its decision was to take effect as this was a part of the issue that it had to decide and the failure to do so meant that it had not finally resolved the appeal. See also the cases referred to in 17.24–17.25.

Jurisdictional error 17.28 The second issue is what is the position if a Tribunal becomes aware that it has made an error going to its jurisdiction, for example, by failing to follow required statutory procedures? In Re Kretchmer and Repatriation Commission (1988) 16 ALD 206 the AAT took the view that a dismissal for failure to appear had no effect when the member making the order was not authorised to do so. It was therefore possible for the AAT, properly constituted, to deal with the matter as if no earlier action had been taken. This approach has been confirmed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 67 ALD 615 in a case involving the Immigration Review Tribunal. The High Court upheld the right of a tribunal that has become aware of a failure to comply with required procedures to reopen a matter that it had purported to have concluded. As a decision involving a jurisdictional error is properly to be regarded as no decision at all, the duty to make the decision remained unperformed and the tribunal could act to remedy this deficiency. The reasoning in Bhardwaj has been considered in later cases, perhaps most notably Jadwan Pty Ltd v Secretary, Department of Health and Ageing [2003] FCAFC 288; (2003) 145 FCR 1; 204 ALR 55. There, Gray and Downes JJ said at [42]: Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. There are a number of matters arising from Bhardwaj that pose difficulties for a tribunal. For example, how can a tribunal be confident that it has made an

error that renders its decision a nullity? Must it be apparent that the decision, if left unchanged, could be the subject of judicial review? For how long after the tribunal has concluded a matter can it revisit its decision on the basis that the decision involved a jurisdictional error? In Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227; (2006) 90 ALD 457 at [17] President Downes J said: … it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when [page 349] the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal. See also President Downes’ comments in his Hartigan Memorial Lecture, Brisbane, 30 November 2005, Finality of Administrative Decisions: The Ramifications of Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597 reproduced on the Tribunal website. 17.29 The wiser course where there is a contested error on the part of the Tribunal is to allow the matter to go forward to review on appeal by a court. However, where the defect is obvious and is drawn to attention very soon after the decision has been made, see the approach adumbrated by DP Forgie in Re Gibson and Repatriation Commission [2006] AATA 1090; (2006) 94 ALD 187 at [49] which places a greater obligation on the Tribunal to monitor errors that may have affected its decision and contemplates a preparedness to revisit the decision. That was the approach that was taken by DP Jarvis in Re Burnet and Repatriation Commission [2005] AATA 290, where the Tribunal had decided that the applicant was entitled to a pension for certain war-caused conditions but, at a resumed hearing to determine the date from which pension would be payable, it was successfully argued that the material before the Tribunal had raised a case not articulated at the hearing that the applicant was suffering from an additional war-caused condition. The Tribunal held that its omission to consider this further unarticulated case constituted a jurisdictional error, that it was not functus

officio to the extent of its jurisdiction not exercised, and that it was preferable for the Tribunal to deal with this further matter rather than put the parties to the expense of an appeal to the Federal Court. In Christiansen v Social Security Appeals Tribunal [2010] FCA 1146; (2010) 126 ALD 423 it was held that the AAT could revisit a decision that was based on such a fundamental misconception of the law and the facts as to constitute jurisdictional error. In Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [61]–[62] the Tribunal held that it was not functus officio and could consider a new application based on fresh evidence to review Comcare’s rejection of liability for the applicant’s claim for workers’ compensation, notwithstanding an earlier AAT consent decision affirming a decision by Comcare to reject liability for the same medical condition. The Tribunal also considered whether to dismiss the new application under s 42B as frivolous or vexatious, but decided not to do so after evaluating factors relevant to the exercise of the discretion conferred by that section: see further 15.14–15.15. Reference should also be made to the associated issue of estoppel and AAT decisions at 17.7–17.10 and re-agitating facts found in previous proceedings discussed at 13.11. Despite these issues, if the Tribunal has dealt with all the issues involved in the case and has not made a jurisdictional error, the functus officio rule applies and it is not [page 350] a liberty to review its earlier decision: Johnson v Veterans’ Review Board [2005] FCA 1136; (2005) 88 ALD 652. See further Enid Campbell, ‘Revocation and Variation of Administrative Decisions’ (1996) 22 Monash University Law Review 30; Margaret Allars, ‘Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Courts and Administrators to Re-open or Reconsider their Decisions’ (2001) 30 AIAL Forum 1; Robert Orr and Robyn Briese, ‘Don’t Think Twice? Can Administrative Decision Makers Change Their Mind?’ (2002) 35 AIAL Forum 11.

REOPENING CASE 17.30 An issue closely associated with estoppel (see 17.7–17.10) and functus officio (see 17.26) is whether a Tribunal can reopen consideration of factual issues. In Re Harrington and Military Rehabilitation and Compensation Commission [2005] AATA 384; (2005) 85 ALD 624 the Tribunal held that, in a compensation case, there was nothing stopping it reconsidering all the relevant issues when considering a fresh claim for a different condition which it was claimed had arisen by reason of an earlier condition even though that had been the subject of a previous Tribunal decision. The earlier findings did not create an estoppel as far as the facts were concerned if the fresh application was not attempting to review the decision in the previous case. The position is different if all that the applicant is trying to do is to reargue the previous decision because all arguments had not been put or had not been properly argued: Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069; (2005) 89 ALD 180 applying Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; 111 ALR 385 and Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68. Likewise, where the previous proceedings had been settled by consent and there was no new evidence or other developments: Re Basonyi and Comcare [2011] AATA 207; (2011) 128 ALD 191. In relation to reopening a hearing before the AAT after receipt of evidence but before the giving of a decision, see 13.45.

RETURN OF DOCUMENTS 17.31 Section 43A of the AAT Act used to contain a provision formally authorising the return of documents supplied to the AAT for the purpose of a hearing. This provision was repealed in 2015. The explanatory memorandum to the Tribunals Amalgamation Bill 2014 (Cth) says that the provision is unnecessary as arrangements for the return of documents can be dealt with in the context of the Tribunal’s general record-keeping policies and procedures and by practice directions if necessary. Deputy President McMahon noted in Re Environmental Images Pty Ltd and

Australian Trade Commission (1996) 45 ALD 674 at 676: ‘The general administration policy of [page 351] the Tribunal is that documents and other objects are returned to the party that tendered them in evidence, irrespective of their ultimate origin.’ See further Chapter 12 on production of documents generally and 17.32 on release of documents to a person other than the party that gave them to the Tribunal.

RELEASE OF DOCUMENTS LODGED IN TRIBUNAL PROCEEDINGS ‘Harman’ rule 17.32 Applications are made from time to time to the AAT by one party for the release of a document tendered in a proceeding that has emanated from another party for the purpose of using the document in other proceedings. In such cases the AAT has addressed the so-called Harman rule. This is a rule that has been adopted in relation to judicial proceedings under which there is an implied undertaking attaching to a party to proceedings in a court of record not to disclose in any other forum the contents of any document produced in that proceeding without the consent of the party who produced it or the leave of the court. The Harman rule has been held to apply to proceedings in the AAT: Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674; Otter Gold Mines Ltd v Deputy President GL McDonald of the Administrative Appeals Tribunal (1997) 76 FCR 467; 48 ALD 222; Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361; (2009) 109 ALD 217. However, those cases recognised that the Tribunal had an inherent power to release the party from the implied undertaking.

Special circumstances justifying release 17.33 Where documents have been lodged in judicial proceedings and are subject to the implied undertaking, it is necessary to establish that ‘special circumstances’ exist to justify release from the undertaking. See Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685 per Wilcox J at 225; 693 (cited in Otter Gold Mines Ltd v Deputy President GL McDonald of the Administrative Appeals Tribunal (1997) 76 FCR 467; 48 ALD 222) for a description of what might be regarded as such circumstances. The issue came before the AAT in Re P J Beaconsfield Gold NL and Australian Securities Commission (1998) 54 ALD 109 where a like approach to that in the Springfield Nominees case was taken with the additional point being made that if the proceedings in contemplation concerned both parties, it was appropriate that both be granted leave to use the other’s documents in the collateral proceedings. The Tribunal in Re Von Stieglitz and Comcare [2012] AATA 217; (2012) 127 ALD 633 at [23] referred to these cases and specified a number of the factors relevant to a consideration of the issue in the AAT: Release cannot be assumed; for the proper exercise of the Tribunal’s discretion, factors of relevance must be considered in the particular circumstances. [page 352] These include the nature of the document, the circumstances under which it came into existence, the attitude of the author and any prejudice the author may sustain, whether the document was expected to enter the public domain, the nature of the information it contains, the circumstances in which it came into the hands of the applicant for release, and the likely contribution of the document to achieving justice in the proceeding. In that case, release of documents from a previous application to the Tribunal involving the same parties was refused because the respondent had not addressed these issues. ‘Special circumstances’ had been found to exist in the earlier decision of Re ‘SAN’ and Military Rehabilitation and Compensation Commission [2008] AATA 237;

(2008) 103 ALD 387 justifying the revocation of a confidentiality order that had the effect of preventing the release of documents. Significant among the circumstances taken into account were that the applicant for access to the documents had taken over the functions of the respondent to the original action in which the documents had been produced, confidentiality restrictions continued to apply to new recipients of the documents and the agencies to which the documents would be disclosed needed them to carry out their statutory functions. The Tribunal in SAN indicated that it could make the order sought even though it had completed its review of the reviewable decision that had given rise to the proceedings. It was not functus officio in considering an application for the release of documents as that was a separate incidental procedure. In Re Environmental Images Pty Ltd and Australian Trade Commission [1996] AATA 318; (1996) 45 ALD 674 the Tribunal at [12]–[23] drew a distinction in terms of the availability of documents between those that had been tendered in evidence and those that had been produced in answer to a summons but which had not been furnished to the Tribunal. It was said that documents that had not been tendered to the Tribunal should simply be returned to the party that produced them. The Tribunal in Re Rana and Military Rehabilitation and Compensation Commission (2009) 109 ALD 217 took a somewhat different approach from that which is set out above. It drew attention to the provisions of s 35 of the AAT Act which direct that Tribunal hearings are to be in public and that evidence given in Tribunal proceedings should be made available to the public and the parties. It was said that this indicated that the Tribunal’s obligation in regard to the release of documents is broader than that which applies to courts. A distinction was to be drawn between documents lodged with the Tribunal and those produced under summons. The former were to be regarded as generally available to the public. The Tribunal said at [61]: … the obligation or implied undertaking would be taken to extend to all documents lodged with the Tribunal before the hearing of the proceeding to which they relate. Once that hearing had been held and no order had been made under s 35(2) restricting access or disclosure, the obligation or implied undertaking would not extend to those that had either been given in evidence before the Tribunal or lodged with the Tribunal in relation to that proceeding.

[page 353] Note the exception referred to of documents to which an order prohibiting disclosure had been made: see 11.9. Rana at [70] also referred to the possibility of documents being protected from disclosure under the general ambit of the principles of confidentiality. The Tribunal in Re Areffco and Commissioner of Taxation [2011] AATA 932; (2011) 125 ALD 340 considered in some detail the position in regard to evidence given in the course of a hearing that was conducted in private but in relation to which no s 35 order limiting disclosure had been made. It concluded that there was no prohibition on use of the evidence in other proceedings. Under the approach posited in Rana, the limitations on access set out above would continue to apply to documents produced under summons but not tendered in evidence, a view reaffirmed in Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [169]. See generally the discussion in that case at [158]–[182] of the implied undertaking to use evidence where the position in judicial and Tribunal proceedings is compared. In Australian Trade Commission v Deputy President McMahon (1997) 46 ALD 338 the court ruled that the AAT could hear ex parte an application for the release of documents where the documents were to be used for obtaining a search warrant. In some of the cases referred to above a distinction is drawn between the release of documents that were required to be produced to the Tribunal on summons and those tendered as part of a parties’ case.

Practice Direction 17.34 The position in regard to documents provided under compulsion is now affected by the General Practice Direction which is reproduced on the AAT website. The Practice Direction says that the implied undertaking against disclosure arises in relation to any document provided to the Tribunal under compulsion. A party that obtains a document provided under compulsion in a proceeding or a person to whom the party gives such a document must not use the document for any purpose other than that for which it was given unless: the document was received in evidence by the Tribunal in relation to the

proceeding and the confidentiality of the document is not protected by an order under s 35 of the AAT Act or by another statutory provision; or the Tribunal gives the party leave to use the document for another purpose. It is said that acting in breach of the implied undertaking that this Direction recognises may constitute a criminal offence as being in contempt of the Tribunal. The Practice Direction then goes on to deal with two situations. First, where a party seeks to be relieved of the implied undertaking in order to be able to use the documents in question in other applications lodged by the same applicant that are currently before the Tribunal and which the Tribunal decides should be dealt with [page 354] together. In this case the documents can be used in the other application, subject to any direction of the Tribunal. The second situation covers other uses of the documents. Here the party must apply to the Tribunal for leave to be released from the implied undertaking. The other party to the proceeding is to be informed of the request. The Tribunal may deal with the request either on the papers or may hold a hearing. It seems likely that the circumstances discussed in the cases above will be influential in the determination of the application for release from the undertaking: see, for example, Re Vallas and Comcare [2014] AATA 669; (2014) 143 ALD 419 where the Tribunal referred to the factors referred to in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685 and indicated that it was not satisfied that the proposed use of the documents could constitute special circumstances as the use was contrary to the applicant’s interests.

[page 355]

CHAPTER 18 COSTS COSTS: GENERAL 18.1 The Administrative Appeals Tribunal (AAT) has no general power to award costs. However, costs may be awarded in the following cases: appeals brought to it under the Australian Security Intelligence Organisation Act 1979 (Cth) (see Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 69B); Commonwealth employees’ compensation legislation (see further 18.2) Lands Acquisition Act 1989 (Cth); Mutual Recognition Act 1992 (Cth) and Trans-Tasman Mutual Recognition Act 1997 (Cth); and Freedom of Information Act 1982 (Cth). In regard to the last four Acts see 18.7. The AAT is not a ‘court’ for the purposes of the power to award costs under the Corporations Act 2001 (Cth): Re Verus Capital Ltd and Australian Securities and Investments Commission [2001] AATA 864; (2001) 66 ALD 349 at [53]–[58]. Where the AAT makes no order as to costs in proceedings where a costs order can be made, it should be taken to have reserved its decision on that issue and can make an appropriate order at a later date. However, where it has made such an order it cannot reopen the matter except in the circumstances discussed at 15.11 and 17.24: Re Sanchez and Comcare (1997) 48 ALD 785. The fact that it is possible for the primary decision-maker to award costs does not mean that the AAT has such a power on an appeal in respect of the decision

to which that order relates: Kimberly-Clark Ltd v Commissioner of Patents (No 2) (1988) 13 IPR 551 at 568. [page 356] The statutory power of an administrative body to award costs is not unconstitutional as an exercise of the judicial power of the Commonwealth: Stack v Commissioner of Patents [1999] FCA 148; (1999) 55 ALD 654 at [30]. No order should be made in respect of costs until a matter has been finally determined by the Tribunal: Re Mitchell and Comcare [2003] AATA 750; (2003) 78 ALD 626. There an application seeking an order that the applicant pay the cost of a medical examination was deferred until the matter was concluded. A costs order once made cannot be amended except pursuant to s 43AA of the AAT Act (see 17.24) in the case of an obvious error. Justice Finn in Comcare v Labathas and McMahon (1995) 61 FCR 149; 40 ALD 255 queried without deciding whether an order determining the amount of costs payable is appealable as a decision of the AAT within the meaning of s 44 of the AAT Act. However, his Honour had no difficulty in dealing with the matter by way of an Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) application. See 18.8 in relation to the taxing of costs. See 19.52 relating to costs on appeals to the Federal Court from the AAT and 20.6 in relation to fees for witnesses.

COSTS IN COMPENSATION DECISIONS Power to award 18.2 The AAT has power to award costs in relation to applications brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the Military Rehabilitation and Compensation Act 2004 (Cth) and the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth). The following comments

relate to the SRC Act but they would seem to be applicable also to the other Acts. Section 67 of the SRC Act sets out the circumstances in which costs may be awarded following an appeal against a decision under that Act. The general rule (s 67(1)) is that each party bears their own costs, but this is qualified in a number of ways. The more significant of these qualifications are as follows. If, on the application of a claimant for compensation, the AAT makes a decision that is more favourable to the applicant than the decision under review, the Tribunal may order that all or part of the costs of the proceedings be paid by the responsible authority (s 67(8)). If a responsible authority unsuccessfully seeks review of a decision in favour of a claimant, the AAT may order that the authority pay the claimant’s costs (s 67(8A)). Where a decision is set aside by the AAT and remitted to the authority, the AAT must order that the authority pay the applicant’s costs (s 67(9)). (Note that where, pursuant to s 42D of the AAT Act, a decision is referred back to Comcare for reconsideration (see 15.22), it does not seem that costs relating to the Tribunal’s decision or the reconsideration can be awarded unless the hearing of the application is resumed following the failure of the reconsideration to resolve the matter.) [page 357] It must be noted that costs may be awarded in respect of ‘proceedings’. In Re Woolmer and Military Rehabilitation and Compensation Commission [2007] AATA 1506; (2007) 96 ALD 204 at [53] the Tribunal said that this reference meant that costs could only be awarded in respect of the substantive application for review by the Tribunal, not in respect of interlocutory or incidental applications. Prior to the enactment of the SRC Act, workers’ compensation for Commonwealth employees was dealt with by the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (CCGE Act). Section 64 of that Act empowered the AAT to award costs to successful applicants in cases challenging decisions under that Act. Decisions under that Act would in most cases seem relevant to the approach to the award of costs under s 67 of the SRC Act and are so treated in the following comments. Nevertheless, they are different provisions and this needs to be borne in mind when considering the earlier decisions.

18.3 At the outset it should be noted that there is a change in language between SRC Act s 67(8) and (9). Section 67(9) relating to a decision setting aside a decision of an authority and referring it back for reconsideration says that the AAT must award costs to the applicant. The fact that this leaves no discretion in the AAT was affirmed by the Federal Court in Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449; 121 ALR 477 setting aside an order of the AAT that had reduced the costs awarded to an applicant on the basis that his conduct had prolonged the hearing. The court contrasted the wording of s 67(8) where the AAT is given a discretion. In Re Van de Vreede and Commonwealth (1983) 5 ALN N232 the AAT indicated that under the CCGE Act (and presumably under s 67(8) of the SRC Act) generally costs should follow the cause and an applicant should be deprived of costs only to the extent that the costs had been unnecessarily incurred or where the applicant had caused the respondent to incur unnecessary costs. An applicant ought not to be deprived of costs simply because of a failure to comply with certain procedures of the AAT — unless that failure had resulted in unnecessary costs being incurred by the applicant or by the respondent. Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319; 89 ALD 526 provides a useful general discussion of the approach that should be adopted in the exercise of the discretion to award costs. In particular the court said that, while the Tribunal was not a judicial body, some guidance was to be obtained from the authorities relevant to the exercise of the same discretion by courts. Because of the discretionary nature of a ruling on costs, a court should be slow to find on appeal that the AAT has made an error of law in fixing the amount: Griffiths v Australian Postal Corporation [2008] FCA 19; (2008) 47 AAR 190. The Federal Court said in Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380; 134 ALD 82 at [35] that where a matter is remitted to the Tribunal after a successful appeal by the applicant, the applicant is entitled to the costs of the initial application as well as those incurred after the remittal. While this [page 358] would seem to be the correct approach where the Tribunal finds for the

applicant following the remittal hearing, the position might be different if the respondent is successful on grounds other than those dealt with by the court on the appeal. In such a case it might be appropriate for an award of part of the costs, or at least those incurred in the first hearing, to be awarded. Justice Logan in Guppy’s case, above, noted that it might be open to a court that upholds an appeal under s 44 of the AAT Act to make an order in respect of the costs in the Tribunal up until the date of the appeal. However, he declined to do so, saying that it was better for the costs to be assessed by the Tribunal having regard to its experience in such matters. The position in regard to the award of costs to an applicant where an application under s 67 of the SRC Act has been withdrawn is not certain. In Re Commonwealth Bank of Australia and Swann and Comcare [1995] AATA 307 the Tribunal said that it did not have power to make a costs order following a dismissal. However, the later decision of Re ACT Department of Justice and Community Services and Comcare [2009] AATA 579; (2009) 110 ALD 679 disagreed with this view and held that an order could be made in an appropriate case. The view was taken that the application to the AAT enlivened the power under s 67 to award costs and this was not lost by the withdrawal of the application. The reasoning in the latter case is the more comprehensive and persuasive but the matter cannot be regarded as settled. Section 67 of the SRC Act does not permit a costs order to be varied: Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570; 89 ALD 51.

Refusal to award costs 18.4 There have been a number of cases where the AAT has refused costs that it considered had been unnecessarily incurred. In Re Barton and Australian Broadcasting Commission (1982) 5 ALN N33 the Tribunal indicated that it would not usually allow the costs of medical witnesses where the applicant had failed to supply the respondent with the witness’s reports. This approach was applied in Re Martin and Commonwealth (1983) 5 ALD 277. It was not followed in Re Van de Vreede and Commonwealth (1983) 5 ALN N232 because the Tribunal considered that the failure to exchange reports had not, in the circumstances of that case, resulted in the respondent incurring any costs. In Barton’s case, above, the applicant was also refused the costs of counsel for

attendance at a preliminary conference. It was not considered that such attendance was justifiable. In that case too, costs were awarded on the scale prevailing at the time when the AAT considered that the case should have been brought on for hearing. The delays were considered to be the responsibility of the applicant. The costs of two counsel were refused in Re Ivanovic and Australian Postal Commission (No 2) (1988) 14 ALD 710. The Tribunal indicated that it would only be in exceptional cases that representation by two counsel before the AAT would be [page 359] appropriate. See also Re Rodriguez and Telstra Corporation Ltd [2001] AATA 1053; (2001) 67 ALD 109 where the Tribunal rejected a claim that the complexity of the issues justified the retention of two counsel. One of the most significant rulings on denial of costs was that in Re Miller and Australian Telecommunications Commission (1984) 6 ALD 328. The issue there was whether costs should or indeed could be refused not because of the applicant’s conduct in relation to the AAT proceedings but because she (through her solicitors) had acted unreasonably at the stage when the primary decision had still to be made by the compensation commissioner. The AAT held that the compensation review system had to be looked at as a whole. It provided a twotier review system on the merits — the appeal to the AAT was not (and could not be) limited to questions of law. This, it was said, placed an obligation on an applicant to act reasonably at both levels of the review system. To withhold information from the commissioner had the effect that the first effective review made truly on the merits was before the AAT. If this situation were brought about by the conduct of the applicant, costs should be refused. The decision of the Tribunal in Miller was reversed on appeal: Miller v Australian Telecommunications Commission (1985) 5 FCR 480; 7 ALN N280, but only on the factual issue whether the applicant had acted unreasonably. The Full Federal Court agreed that the question of entitlement to costs was to be determined, bearing in mind the whole circumstances of the case, not just the conduct in the litigation itself. In Rodriguez, above, at [30], the Tribunal was invited to decline to make a costs order on the basis that the applicant had refused a settlement offer that was

greater than the amount ultimately awarded by the AAT. The Tribunal indicated that this might be a basis for refusing costs as there was a duty on both parties to avoid litigation. However, in the circumstances, the refusal of the settlement offer was justifiable as it would have precluded the applicant from pursuing other claims against the respondent. 18.5 In contrast, an order was made in Re Perry and Comcare [2005] AATA 365; (2005) 86 ALD 220 that the applicant should only have his costs incurred up to the date of a settlement offer where the ultimate amount awarded was less than the offer. Reference was made by the Tribunal to the principles relating to Calderbank offers. On appeal, the Federal Court found that the letter of offer did not constitute a Calderbank offer. However, the making of the offer was a matter that was properly to be taken into account by the Tribunal in exercising the discretion whether or not to award costs and the appeal was dismissed: Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319; 89 ALD 526. A Calderbank offer was not allowed to affect the award of costs where the proceedings were compromised after the date of the offer: Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570; 89 ALD 51. The court said that such offers are only relevant to proceedings determined at a contested hearing. [page 360] Lest the foregoing give the wrong impression, it should be said that the award of costs in compensation cases is the general rule. Indeed in Re Immonen and Commonwealth (Ballard SM, AAT, N82/552, 23 December 1983, unreported) costs were awarded on a higher scale because the Tribunal considered that the concession of the issue by the respondent only at the commencement of the hearing was instrumental in the incurring of the costs by the applicant. Likewise in Re Rutter and Commonwealth (1989) 18 ALD 635 where the Tribunal was critical of the decision-maker’s carriage of the whole claim. In Re Brown and Comcare [2011] AATA 606; (2011) 125 ALD 99 costs were awarded despite a Calderbank offer. The Tribunal noted that the amount to which the applicant was found to be entitled was only marginally less than the

offer and that Comcare’s conduct in the management of the claim and the appeal did not meet appropriate standards.

Test for award of costs 18.6 The test for the award of costs is that the decision of the Tribunal must be one that is ‘more favourable to the claimant than the reviewable decision’ (SRC Act s 67(8)). This will be a matter of judgment for the Tribunal to make. In Re Khourey and Military Rehabilitation and Compensation Commission [2010] AATA 434; (2010) 116 ALD 218 the Tribunal said that the assessment of whether a decision was more favourable was a separate issue from fixing the amount of costs that should be awarded. It should be determined first. On the issue of what is ‘more favourable’, it is not necessary that the applicant succeed on all matters that were the subject of the reviewable decision: Re Khourey, above, at [11]. A decision may be more favourable even though a compensation award is not made. For example, in Re Peers and Commonwealth (No 2) (1987) 15 ALD 193, even though the effect of the AAT’s decision did not immediately entitle the applicant to a payment, it did allow the possibility of such a payment in the future whereas the respondent’s order had disentitled the applicant forever. An order for costs was accordingly made in favour of the applicant. In Re Ivanovic and Australian Postal Commission (No 2) (1988) 14 ALD 710 the applicant was awarded that part of his costs that could be attributed to his successful opposition to a cross application by the respondent even though his own application was unsuccessful. See also Re Polito and Australian Postal Commission (1981) 11 ALN N60. Once it is determined that a decision was more favourable than the reviewable decision, the separate issue then arises as to whether costs should be awarded. In Re Khourey, above, the Tribunal said at [15]: The Act provides no express guidance on the factors to be taken into account when deciding whether some or all of the costs of the claimant should be paid by the respondent. While it is not possible to draw up an exhaustive list of factors that might be relevant to the exercise of the power to award costs, it seems to us that, as a starting [page 361]

point, the following factors may be relevant, depending on the circumstances of the case: (i) the manner in which the claimant has conducted the proceedings, in particular whether the proceedings were vexatious; (ii) whether the claimant has been responsible for prolonging unreasonably the time taken to complete the proceeding; (iii) whether a reasonable offer of settlement was made by the respondent; (iv) whether the claim could be described as hopeless or untenable; (v) whether the claim for compensation was only successful in part. In Re Colosimo and Commonwealth (1984) 6 ALN N65 it was held that the declining of an offer from the Commissioner made on a ‘without prejudice’ basis could not be taken into account as a factor indicating that the applicant had incurred costs unnecessarily. To be recoverable, however, the costs must relate to the application itself and not simply to the compensable injury: Re Gurkavak and Commonwealth (No 2) (1985) 8 ALD 511. And it is only a successful application that attracts the right to costs. So if multiple applications are made, only some of which are successful, the award of costs can relate only to the successful claims: Re Rodriguez and Telstra Corporation Ltd [2001] AATA 1053; (2001) 67 ALD 109 at [23]; Re Keen and Deputy Registrar of the Administrative Appeals Tribunal and Telstra Corporation Ltd [2005] AATA 1171; (2005) 89 ALD 595; affd on appeal on this point [2006] FCA 834; (2006) 91 ALD 324; Re Falle and Comcare [2009] AATA 227; (2009) 108 ALD 231. The right is to recover the costs associated with the reviewable decision and not all costs relating to the claim, for example, those associated with the internal review of the original decision: Comcare v McMahon (1995) 61 FCR 149; 40 ALD 255, reversing the AAT decision in Re Labathas and Comcare (1994) 33 ALD 273. The costs recoverable may involve expenditure incurred prior to the making of the reviewable decision but only if it can be shown that they were incurred in anticipation of a projected appeal to the AAT. (Cf Re Treneski and Comcare [2004] AATA 98; (2004) 80 ALD 760 at [17] where Labathas is referred to but not the qualifications alluded to in Comcare v McMahon.) In Re Commonwealth and Nolis (1983) 5 ALD 315 the Tribunal ruled that s 64(4) of the CCGE Act did not permit the award of costs to an association that had been made a party to the proceedings pursuant to s 27 of the AAT Act. The

problem lay in the fact that s 64(4) limited the right to costs to parties to the determination of the commissioner, and the association was not such a party. The same approach appears to apply to the SRC Act as s 67 talks only of the claimant’s costs. Nor may an order for costs be made by the AAT where the respondent in effect concedes the appeal by making a fresh determination favourable to the applicant prior to the hearing. Section 67(2) expressly provides for the reimbursement by the authority of an applicant’s costs where a review proceeding is aborted by the action [page 362] of the authority. The operation of this section was considered in Re Rooney and Comcare (1993) 31 ALD 616 and Re Coyne and Comcare (1995) 37 ALD 553. It must be clear that the action of the authority truly aborts the proceeding before the section comes into play. Where there are still issues to be resolved that justify the applicant maintaining the application, the section has no operation: Re Rebeiro and Comcare (1996) 44 ALD 632 at 647. See 15.5 in relation to the award of costs when an application has been withdrawn under s 42A(1B) of the AAT Act.

COSTS UNDER OTHER ACTS 18.7 Under s 35 of the Mutual Recognition Act 1992 (Cth) and s 34 of the Trans-Tasman Mutual Recognition Act 1997 (Cth) the AAT ‘may order a party in proceedings before it to pay costs if the party has acted unreasonably’. It can be seen that an order could be made against an applicant as well as a decisionmaker. The AAT in Re Wearne and New South Wales Police Service (1994) 34 ALD 315 at 319 and again in Re Cleary and Nurses Board (NT) (1996) 41 ALD 395 at 409 warned that this power should not be exercised lightly. In neither case was it prepared to make an order despite the claims of unreasonableness made by both parties. The Tribunal said in Cleary that it would have expected ‘much stronger language to have been used in s 35 [of the Mutual Recognition Act] if the power to order costs were to extend to a method of regulating delinquencies in the

preparation for, or conduct of, proceedings in the Tribunal by either party’. However, a differently constituted Tribunal in Re Wright and Nurses Board (ACT) (1996) 41 ALD 411 at 418 was prepared to make an order that the respondent pay costs on the basis that its conduct had caused the applicant to incur costs unnecessarily by the way in which it had dealt with his case. Costs may also be awarded in relation to applications for review of decisions made under the Freedom of Information Act 1982 (Cth). For a discussion of the basis for such an award, see Re Viliamu and Commissioner of Taxation [2010] AATA 884; (2010) 119 ALD 400 and Re Vasta and Civil Aviation Safety Authority [2011] AATA 84; (2011) 120 ALD 182.

AMOUNT OF COSTS AND TAXATION OF COSTS: S 69A 18.8 If the parties cannot agree as to the costs payable in a proceeding, the costs may be taxed by either the Tribunal or an officer of the Tribunal: s 69A. The President has issued a Practice Direction Taxation of Costs relating to the awarding of costs in those cases where this is applicable: see the AAT website. On the question of the amount of costs, the Direction provides: Subject to any legislative requirements and the order made by the AAT: (a) costs will be assessed on a party and party basis; [page 363] (b) the costs payable may include: (i) witness expenses at the prescribed rate; (ii) all reasonable and proper disbursements, such as counsel’s fees, fees for reports by doctors or other experts, and photocopying; (iii) professional costs determined as follows in accordance with the scale of costs set out in the Federal Court Rules 2011: (A) for items with non-discretionary amounts — 75 per cent of the costs which would be allowable under those items; and (B) for discretionary items — the amount which would be

allowable under those items having regard to any matters set out in those items. The Tribunal has on occasions used scales other than the Federal Court scale to determine the costs payable. See, for example, Re Wright and Commonwealth (1985) 8 ALD 436 where the Tribunal turned to the Victorian County Court scales for guidance. In Re Polito and Australian Postal Commission (1986) 11 ALN N60 the South Australian Industrial Court scale was used and in Re Nolan and Comcare (1991) 24 ALD 513 the Queensland District Court scale was used instead of the Federal Court Rules scale. The amount provided for costs in the Federal Court Rules includes an amount representing the GST payable on the legal fees. Accordingly, a costs order made by the AAT cannot be increased by the amount of that GST: Keen v Telstra Corporation Ltd [2006] FCA 834; (2006) 153 FCR 28; 91 ALD 324 at [46]. In Re Brooks and Comcare (1995) 38 ALD 612 at 622 it was said that costs cannot be awarded on an indemnity basis. However, the Tribunal in Re Rodriguez and Telstra Corporation Ltd [2001] AATA 1053; (2001) 67 ALD 109, while declining to make such an award, did not suggest that it was not permitted and also considered whether costs should be awarded on a party and party basis. In Re Parr and Commonwealth (1984) 6 ALN N279 the AAT said that the conduct of the applicant was not relevant to the question of the appropriate scale at which costs should be awarded. Conduct will go to whether costs are awarded at all but, once the decision to award costs has been made, the scale will be determined by issues such as the complexity of the matter and the amount involved. Clause 4.43 of the General Practice Direction provides that, if the Tribunal can make a costs order in the case, it may take into account any relevant matters relating to adjournments in any decision on costs. The means for applying for a bill of costs to be taxed and the taxing procedures are set out in the Practice Direction reproduced on the AAT website. If an officer of the Tribunal has taxed the costs, either party may apply to the Tribunal for review of the taxed amount: s 69A(2). An appeal against a taxing order is to be determined in the same way as any other appeal to the Tribunal, that is, that the Tribunal is to reach the correct and preferable decision: Keen v Telstra Corporation Ltd [2006] FCA 834; (2006) 153

[page 364] FCR 28; 91 ALD 324. (The decision in Re Treneski and Comcare [2004] AATA 98; (2004) 80 ALD 760 holding that, in considering a registrar’s decision on a taxation of costs, the registrar’s decision could only be disturbed if it were infected by an error that would provide a ground for a court to review an administrative decision must be regarded as having been overruled).

[page 365]

CHAPTER 19 APPEALS FROM AAT DECISIONS APPEALS TO FEDERAL COURT: S 44 General 19.1 A party to a proceeding before the Administrative Appeals Tribunal (AAT) may appeal to the Federal Court of Australia, on a question of law, from any decision of the AAT except certain migration decisions: see below. The power of the Federal Court to hear appeals on questions of law from the AAT is a judicial function and is a valid exercise of the judicial power of the Commonwealth as provided in the Constitution according to Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; 42 ALR 209 and see the cases cited by a Full Federal Court in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 at [12]–[13]. Also pertinent to this issue is the discussion by Gummow J in TNT Skypac International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 181 of the need for the matters to be dealt with under s 44 to be limited to questions of law. This comment was followed in Clement v Comcare [2014] FCAFC 164 at [34]. The constitutional validity of the provision is also relevant to the making of consent orders on an application under s 44: see 19.51. In exercising the power given to it by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the court is acting in its original jurisdiction

under s 19 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and not pursuant to its appellate jurisdiction conferred by s 24 of that Act: Gungor’s case, above, per Sheppard J at 584; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [11]–[12]. This has an effect on the admissibility of further evidence in support of an application to the court: see 19.41. When there is an appeal from a decision of a primary judge hearing an appeal under s 44, the Full Court considers whether there has been an error made by the [page 366] judge, not the Tribunal: Bennett v Chief Executive Officer, Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101; 80 ALD 247 at [56]. Note should be made of s 43B of the AAT Act which provides that the provisions of the Act relating to appeals from the AAT apply also to decisions of the AAT made pursuant to a law of a state. This can arise where cooperative Commonwealth–state legislation provides for review by the AAT of decisions by a state authority: see, for example, the Research Involving Human Embryos Act 2002 (Cth) and its state counterparts. Appeals from the AAT to the Federal Court or the Federal Circuit Court are excepted from the requirements of the Civil Dispute Resolution Act 2011 (Cth) to take genuine steps to resolve the dispute before proceedings are instituted: see s 15 of that Act.

Migration and Refugee Division 19.2 Appeals under s 44 against migration decisions made by the AAT are limited; see s 43C of the AAT Act which excludes from review: privative clause decisions and purported privative clause decisions — these are defined in s 476A of the Migration Act 1958 (Cth) (Migration Act); and AAT Act migration decisions — these are defined in s 474A of the Migration Act and relate to the arrangement of business in the AAT. The effect of these provisions is to remove the right to seek review on a

question of law of the decisions made in proceedings in the Migration and Refugee Division. If review of these decisions is to be achieved, it must be through invoking the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act), the Judiciary Act 1903 (Cth) (Judiciary Act) s 39B or the Constitution s 75(v): see 19.56–19.57.

Social Services and Child Support Division 19.3 There is no right of appeal to the Federal Court under s 44 in respect of a first review of a social welfare decision in the Social Services and Child Support Division. An exception is made for proceedings that are a child support first review and a reviewable employer decision within the meaning of the Paid Parental Leave Act 2010 (Cth): s 44(2). This follows the present position where there is no right of appeal on a question of law from a decision of the Social Security Appeals Tribunal. A person affected by a decision of the AAT in its Social Services and Child Support Division must first seek review of that decision in the General Division of the AAT. Thereafter it would be possible to appeal to the Federal Court as provided for in s 44. A rider to the exclusion of a child support first review from the embargo on appeals is provided by s 44AAA which permits an appeal to the Federal Circuit [page 367] Court instead of the Federal Court in cases where the Tribunal undertaking the review did not include a presidential member.

PROCEDURE FOR APPEALS 19.4 The procedure for appeals is set out in Div 33.2 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). The Rules were remade with effect from 1 August 2011. The new Rules apply to all proceedings commenced in the court after that date and, unless the court otherwise orders, to all steps taken after that date in a proceeding commenced before that date (r 1.04). Unless otherwise stated, a reference to a rule in the following paragraphs is to the rule of that number in the new Rules.

METHOD OF COMMENCEMENT OF APPEAL 19.5 An appeal is commenced by filing a notice of appeal in accordance with Form 75 of the Rules. The notice must be filed in the District Registry in the state or territory in which the Tribunal heard the matter. The notice must state: (a) the part of the decision the applicant appeals from or contends should be varied; and (b) the precise question or questions of law to be raised on the appeal; and (c) any findings of fact that the Court is asked to make; and (d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and (e) briefly but specifically, the grounds relied on in support of the relief or variation sought (r 33.12(2)). The applicant must serve a copy of the notice of appeal on each other party to the proceeding and the Registrar of the Tribunal (r 33.12(4)). The fees payable for lodging an appeal and for all other subsequent steps in the proceedings are set out in the Federal Court and Federal Circuit Court Regulation 2012 (Cth).

CONSTITUTION OF COURT ON APPEAL: S 44(3) 19.6 An appeal from a decision of the AAT may, at the discretion of the Chief Justice of the Federal Court, be heard by a court constituted by a single judge or as a full court. It must be constituted as a full court if the AAT was constituted by a judge or by members one of whom was a judge. Where the AAT included a Deputy President who is not a judge, the constitution of the court on appeal is to be determined by the Chief Justice after consultation with the President of the AAT. [page 368]

TRANSFER OF APPEALS TO FEDERAL CIRCUIT COURT: S 44AA 19.7 The Federal Court may transfer to the Federal Circuit Court an appeal from a decision of the AAT where the Tribunal was not constituted by a presidential member. The transfer can occur either on the application of a party or on the court or the judge’s own motion: Federal Court Rules r 27.11. The factors to be considered in deciding whether to transfer an appeal are set out in s 44AA of the AAT Act and in Federal Court Rules r 27.12. They include: the resources available to the Federal Circuit Court; the interests of the administration of justice; whether the appeal or proceeding is likely to involve questions of general importance; whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred; whether an appeal or proceeding would be determined more quickly if transferred; and the wishes of the parties. If an appeal is thus transferred, the Federal Circuit Court has the like powers to deal with the appeal as the Federal Court. There is no right of appeal against a decision transferring an appeal: AAT Act s 44AA(10). See Waaf v Minister for Immigration and Multicultural Affairs [2002] FCA 135; (2002) 67 ALD 90 and Uyar v Administrative Appeals Tribunal [2011] FCA 623; (2011) 121 ALD 288 for a discussion of the operation of the transfer provision. References in the text that follows to the Federal Court should be read as if they referred also to the Federal Circuit Court.

APPEALS FROM FEDERAL CIRCUIT COURT

19.8 Section 24 of the Federal Court Act provides for an appeal to be brought from the Federal Circuit Court to the Federal Court. An appeal is to be heard by a Full Court unless the Chief Justice considers that it may properly be heard by a single judge: Federal Court Act s 25. An appeal to the Federal Court from a decision of the Federal Circuit Court is an appeal by way of rehearing rather than an appeal in the ordinary sense of that word. However, as the appeal to the Federal Circuit Court from the AAT may only be brought on a question of law, it is not open to the Federal Court on appeal to admit evidence as to factual matters: Doelle v Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 801; (2009) 111 ALD 82 at [24]. [page 369]

DOCUMENTS TO BE SENT TO COURT: S 46 19.9 The AAT is required to send to the court all relevant documents before it in connection with any proceedings if an appeal is instituted against those proceedings or a question of law arising in the proceedings is referred to the court (see 19.58). If the Attorney-General has issued a certificate in respect of the documents in accordance with s 28(2) or s 36(1) of the AAT Act (see 4.3, 12.16), the court is to ensure that the contents of the documents are not disclosed to any person. However, under s 46(3), the court can rule that a certificate of the Attorney-General issued under s 28(2)(c) or s 36(1)(c) should not prevent the disclosure of the document to one or all of the parties. If an appeal is referred by the Federal Court to the Federal Circuit Court, the documents lodged with the Federal Court must also be transferred. At the conclusion of the proceedings on the appeal the documents are to be returned to the AAT.

‘DECISION’ APPEALABLE

Identification of appealable decision 19.10 It is only a ‘decision’ that can be appealed. It was held in Director-General of Social Services v Chaney (1980) 3 ALD 161 that an appeal would only lie ‘from a decision of the tribunal which constitutes the effective decision or determination of the application for review’ (per Deane J at 181). The various rulings or adjudications made by the Tribunal along the way towards its ultimate decision are not subject to appeal. In that case it was held that a decision of the AAT under s 41 staying the implementation of a decision to cancel a pension was not a decision within the meaning of s 44.

Application of Chaney’s case test 19.11 Chaney’s case was followed by a Full Federal Court in Alcoa of Australia Ltd v Swiss Aluminium Australia Ltd (1986) 9 ALD 345. There it was held that an appeal would not lie against a decision that a document was not exempt from disclosure under one section of the Freedom of Information Act 1987 (Cth) because other bases for exemption had not been ruled upon. The AAT’s ruling on the one exemption did not finally determine the question and so did not satisfy the test from Chaney set out above. See also McLeod v Repatriation Commission [1993] Admin Review 16 where a ruling of the AAT that the Federal Court described as preliminary and capable of being reversed at the hearing was held not to be appealable. Further examples of decisions held not appealable are: Australian Postal Corporation v Nguyen (1996) 71 FCR 516; 142 ALR 170; Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; [page 370] (2008) 48 AAR 559; Agapis v Plumbers Licensing Board [2012] FCA 1375; (2012) 133 ALD 307: confidentiality orders made under s 35(2) of the AAT Act; McMillan v Repatriation Commission (1997) 47 ALD 774: order adjourning proceedings for a lengthy period; Canberra Tradesmen’s Union Club Inc v Minister for the Environment, Land and

Planning (1998) 87 FCR 163; 55 ALD 415: provisional decision relating to planning; Geographical Indications Committee v O’Connor [2000] FCA 1877; (2000) 64 ALD 325; Luck v Chief Executive Officer of Centrelink [2008] FCA 1506; (2008) 107 ALD 538: directions relating to management of application and hearing; WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398: preliminary ruling on legal basis for considering visa application: ‘Even if error were disclosed it would be a rare and exceptional case in which the court would grant relief of the kind sought here against a preliminary ruling that did not finally dispose of the proceedings before the tribunal’: per French J at [57]; Minister for Immigration and Citizenship v Hassani [2007] FCA 436; (2007) 94 ALD 378: exercise of statutory power to ‘defer’ making a decision; Roper v Repatriation Commission [2008] FCA 1610; (2008) 108 ALD 16: preliminary decision on nature of military service and therefore relevant standard of proof to the determination of the application; Phillips v Inspector-General in Bankruptcy [2011] FCA 612; (2011) 121 ALD 562: refusal to issue summonses for production of documents; Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; (2013) 305 ALR 534: exercise of the power under s 42D of the AAT Act (see 15.22) to remit a matter to the decision-maker for further consideration; and Frugtniet v Tax Practitioners Board [2013] FCA 752; (2013) 136 ALD 324: following Chaney, a stay order could not be appealed. This approach has also been taken under the AD(JR) Act where it has been said that courts should resist ‘fragmentation’ of decision-making: see Australian Administrative Law (LexisNexis) at [307]. The approach adopted in Chaney’s case does not prevent review of an interim ruling of the AAT by invoking the AD(JR) Act or s 39B of the Judiciary Act. However, as noted there, parties should be ‘discouraged’ from so acting and courts have referred again to the undesirability of fragmentation: see 19.60–19.62.

Exceptions to Chaney’s case test 19.12 Despite this general approach, it has been recognised that there are exceptions to the Chaney test. Deane J in that case himself pointed to two exceptions. Section 44(2) provides expressly that an appeal may be brought against a decision [page 371] by the AAT that a person’s interests are not affected by a decision. Such an order would of course effectively bring the challenge to the decision, at least by that applicant, to an end. Unless the AAT is to be given the final say on this question, it is essential that the ruling be appealable. Where the AAT’s ruling is favourable to an applicant, the decision may be reviewed under the AD(JR) Act or the Judiciary Act: see 19.60–19.62. The second case noted by Deane J was where a proceeding before the AAT could properly be divided into two or more separate parts in respect of which independent ‘decisions’ might properly be given. One of these might be appealable before the proceedings relating to the other were concluded. It will, however, have to be a clearly separate and conclusive decision before this exception can be called in aid: Alcoa of Australia Ltd v Swiss Aluminium Australia Ltd (1986) 9 ALD 345. Wilcox J in Australian Postal Commission v Hayes (1989) 23 FCR 320 at 323; 18 ALD 135 at 138 followed the general principle underlying the s 44(2) exception by ruling that a question was appealable if not to allow it to be determined would produce an irreversible result. The challenge there was to the manner in which evidence was to be presented. If the objection raised by the respondent to the AAT proceedings could not be tested, the objection would have been rendered nugatory. The appeal was entertained and the objection upheld. This decision was followed in Commissioner of Taxation v Seymour [2015] FCA 320; (2015) 65 AAR 443 to overrule a decision of the AAT permitting evidence to be given by audiovisual means. It was said that the Tribunal had made a jurisdictional error in reaching its decision. In Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97 the court declined to interfere with the way in which the AAT intended to gather evidence.

The Tribunal was empowered to proceed in the way that it proposed and the respondent would not be disadvantaged by the procedure. In Clark v Wood (1997) 149 ALR 38 the court went further in refusing relief even though a question asked on a bankrupt’s examination should not have been allowed. However, compare the decision in Commissioner of Taxation v Seymour, above, where Grbich was distinguished and an order made overturning a decision of the Tribunal permitting evidence to be given by video-link. The court considered that the reasoning of the Tribunal indicated that it had made a jurisdictional error in reaching its conclusion. A like approach permitting an appeal was adopted by the court in: Australian Trade Commission v Deputy President McMahon (1997) 73 FCR 211; 46 ALD 338: order that the hearing not proceed ex parte; and Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451: refusal to exercise the discretion to grant an extension of time to apply for review. A ruling that an application be dismissed because it is frivolous or vexatious would be appealable but a refusal to make such an order would not because, as the proceedings before the AAT were able to continue, no final decision had been taken: [page 372] Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900; (2000) 100 FCR 255; 62 ALD 535 at [62], [137]–[139]. Where a decision of the AAT determines the review application, even though it might not resolve the dispute between the parties, it will be regarded as final and therefore appealable: Repatriation Commission v Smith (1997) 75 FCR 298; 45 ALD 523. If a ruling constitutes an error of law and affects the ultimate decision, an appeal based on that ruling can be brought. So in News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88; 57 ALR 550 the Full Federal Court rejected an argument that it was not possible to challenge a ruling made under s 35(2) prohibiting access to documents where the challenge was based on a claim of breach of natural justice. If the ground were made out, an error of law

vitiating the AAT’s decision would have occurred and this could be challenged under s 44. However, in that case the court said that challenges of this kind can only be brought at the conclusion of the proceedings. The interim decision must affect the final order because it is only from this final decision that an appeal can be brought. In contrast, Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 348 took a more pragmatic approach: Nevertheless, from time to time it must be convenient to have such a question decided by this court before the whole dispute is finally concluded before the tribunal. That is likely to be so where a considerable saving of time and cost may be effected by avoiding the necessity of a long and complex hearing on disputed facts before the tribunal. There is much to be said for this approach provided that the Federal Court shows considerable sensitivity in its application. The value of the ruling in Chaney could quickly be lost if the court opened the way too readily to challenges to points of law ‘convenient to resolution’.

Other means of appeal 19.13 Where there is doubt whether an order of the AAT is a ‘decision’ for the purposes of s 44 the obvious course is to call in aid the AD(JR) Act: see Comcare v McMahon (1995) 61 FCR 149; 40 ALD 255 where Finn J queried whether a costs order made by the AAT under s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) constituted a decision for the purposes of s 44. Kirby J in Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145 at [43] observed that s 44 of the AAT Act is not an entire code for the hearing by the Full Federal Court of appeals from proceedings of the Tribunal. However, where an appeal is available under s 44, that is the mechanism that should be used, not an AD(JR) Act application: see 19.60. (This does not prevent general administrative law grounds being used as the basis for the appeal: see 19.34.) In Duncan v Hotop [2002] FMCA 56; (2002) 68 ALD 758 (followed in Kroushev v Secretary, Department of Family and Community Services [2004] FMCA 299; (2004) [page 373]

83 ALD 282) the Federal Magistrates Court (the predecessor of the Federal Circuit Court) firmly endorsed the view that s 44 of the AAT Act and not the AD(JR) Act should provide the standard means of review of AAT decisions. This was so even though the Magistrates Court’s ability to hear AAT appeals was dependent upon a reference of the matter to it by the Federal Court: see 19.7. The conclusion reached would be applicable also to the Federal Circuit Court. See further 19.60–19.62.

PARTY ONLY MAY APPEAL 19.14 Only a party to the AAT application may appeal to the Federal Court. The fact that a person may have been able to be joined as a party to the application does not avail if they have failed to obtain a joinder order: Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 464; 34 ALD 239 at 248. The court may nevertheless exercise its discretion to allow persons who, while not parties to the AAT proceedings, are affected by those proceedings to be joined as parties to the appeal: Minister for Immigration and Multicultural Affairs v Perth City Mission [1999] FCA 670; (1999) 59 ALD 481.

INTERVENTION ON APPEAL 19.15 Rule 9.12 of the Federal Court Rules provides that a person may apply to the court for leave to intervene in a proceeding. If the application is granted the person will have such rights, privileges and liabilities (including liabilities for costs) as may be determined by the court. In determining whether to grant leave to intervene, the court is to have regard to (a) whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter the court considers relevant. Comcare v Martinez [2013] FCA 160 provides an example of an application for intervention. The Secretary of the Department in which the applicant for compensation worked and who was thereby responsible for the officer whose conduct was said to have caused the injury for which compensation was being sought, applied to intervene. The intention was to argue that the conduct of the

departmental officer was reasonable administrative action thus taking it out of conduct that would attract compensation. The court refused the application. It was not persuaded that the Secretary would advance any argument that Comcare as the respondent and the body liable to pay the compensation would not advance. Further, the appeal was limited to a question of law and, again, the respondent was capable of putting all relevant arguments on the issue to the court. [page 374]

NO APPEAL AGAINST FAVOURABLE DECISION 19.16 A party cannot seek the intervention of the Federal Court to affirm a decision of the AAT. ‘An appeal is a procedure intended for the correction of error; not the affirmation of right decisions’: per Branson J in Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461; 85 ALD 24 at [43].

ANSHUN ESTOPPEL AND TRIBUNAL APPEALS 19.17 The general principle stemming from the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 601–3; 36 ALR 3 at 10–12 that a party must bring all his or her claims on one subject matter in a single proceeding is applicable to an appeal against a tribunal decision: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441; 85 ALD 532 at [15]. However, the principle is limited to circumstances of which the applicant is aware or should have been aware by the exercise of reasonable diligence. The rule is not applicable if the appellant did not know, and had no basis for suspecting, the existence of the circumstances on which he or she now wishes to appeal.

See 17.11 in relation to Anshun estoppel in Tribunal proceedings.

CONTINUING SUPPRESSION OF NAME 19.18 A party or witness before the AAT may have had their name suppressed from publication. However, the court on appeal has been reluctant to make a like order: SRD v Australian Securities Commission (1994) 52 FCR 187; 123 ALR 730; Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435; 76 ALD 72. The view is taken that there is a difference between administrative and judicial proceedings. Persons who come to court must expect to be identified. It is a part of the general principle of openness of judicial proceedings. The position is no different because it is an appeal from a decision of an administrative body. See 11.18 for a full discussion of this issue. On the general issue of suppression of names in proceedings before the Federal Court, see Dye v Commonwealth Securities Ltd [2010] FCAFC 115; (2010) 273 ALR 248 and the cases there cited; Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651; 267 ALR 12.

TIME TO INSTITUTE APPEAL: S 44(1), (2A), (2B) Time limit for appeal 19.19 An appeal is to be instituted not later than 28 days after the day on which a document setting out the terms of the decision of the AAT is furnished to the [page 375] person concerned or within such further time as the court allows. The 28-day period for an appeal thus commences when written advice of the decision is

given to the applicant, not when reasons are given for the decision. It was noted in Repatriation Commission v Tuite (1992) 37 FCR 571 at 575; 27 ALD 609 at 613 (affd on appeal Repatriation Commission v Tuite (1993) 39 FCR 540; 29 ALD 609) that the need to lodge an appeal without necessarily having the reasons for the decision may disadvantage an applicant but the section does not admit of another interpretation. However, it is open to an applicant to seek an extension of time: see 19.20. See also Secretary, Department of Social Security v Van den Boogaart (1995) 37 ALD 619. Rule 33.13 sets out the formal requirements to be followed for an application for an extension of time.

Extension of time to appeal 19.20 Under s 44(2A) of the AAT Act the court may extend the time for commencing an appeal either before or after the expiration of the 28-day period. It is to be noted that the basis for such action is not limited to ‘special reasons’ as is to be found in some other legislation permitting such an appeal. See Milne v Minister for Immigration and Citizenship [2010] FCA 987; (2010) 119 ALD 504 for a discussion of this expression. While that was an appeal from the AAT, the right to appeal was given by the Migration Act and governed by the Federal Court Rules. When acting under s 44A(2) the court has shown no great enthusiasm for granting an extension of time. It has said that an applicant ‘has to satisfy the court that justice requires that the default of his shall be overlooked, and he must satisfy the court that there is some reasonable kind of explanation or excuse for his neglect of the rules’: per Cullen CJ in Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 at 144 approved and applied by Toohey J in Mitchell v Minister for Immigration and Ethnic Affairs [1983] FCA 239. In that case, general dilatoriness on the part of the applicant was held to be insufficient excuse. Forster J in Polito v Australian Postal Commission (1987) 12 ALD 474 added the further requirement that an applicant for extension of time must also show that the appeal has sufficient prospects of success to make it just that the applicant should now be allowed to proceed with it. In that case the delay had been caused by the actions of the applicant’s solicitor. His Honour held that the applicant should not be prejudiced by these actions and he therefore satisfied the first requirement for the exercise of the discretion to extend time. However, he could

not demonstrate sufficient prospect of success to justify being allowed to proceed.

Court’s approach to extension of time applications 19.21 As observed above, the court has shown a disinclination to grant extensions of time to apply. Examples of applications that have been refused are Boehm v Ombudsman (1986) 11 ALN N232; Berry v Repatriation Commission (1992) 27 ALD 330; Younger v Repatriation Commission (1992) 28 ALD 211; Kuljic v Secretary, Department [page 376] of Social Security (1994) 33 ALD 121; Dickinson v Comcare (1998) 52 ALD 86; Secretary, Department of Social Security v Van den Boogaart (1995) 37 ALD 619; Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697; Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385; Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065; Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598; Metera v Administrative Appeals Tribunal [2008] FCA 1627; (2008) 105 ALD 18. In each case the court was either dissatisfied with the explanation for delay or was not persuaded that the applicant could establish an error of law. In Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109 and Roberts v Repatriation Commission [2004] FMCA 926; (2004) 83 ALD 343 the Federal Magistrates Court applied a slightly modified version of the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 7 ALD 315 for considering an application for an extension of time within which to seek review of a decision under the AD(JR) Act: see Australian Administrative Law (LexisNexis) at [355A]. This approach was expressly endorsed in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 and is usually referred to in extension of time cases. There have been successful applications. In Baker v Secretary, Department of Social

Security (1991) 23 ALD 305 the court noted that the applicant had acted promptly in seeking legal advice after being notified of the decision; that ongoing administration would not be affected by a late application; and the substantive issue to be raised on the appeal had wide application which ought to be resolved. More recently in Christiansen v Social Security Appeals Tribunal [2010] FCA 1146; (2010) 126 ALD 423 and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 28; (2011) 126 ALD 444 extensions of time were granted having regard to the applicants’ personal circumstances, the reason given for the delay in applying and very clear concerns about the validity of the decision sought to be reviewed. In SZQZR v Minister for Immigration and Citizenship [2013] FCA 69; (2013) 133 ALD 355 the fact of the applicant being self-represented and having difficulties with the English language were among a number of personal and other matters that were held to justify the granting of an extension of time. See also Australian Community Pharmacy Authority v Eaves (1997) 47 ALD 664. Overall it would seem that the test adopted as a basis for determining whether time should be extended is more stringent than that which applies when leave is being sought to bring an application out of time both to the AAT (see 6.9–6.32) and probably also to the Federal Court under the AD(JR) Act: see Australian Administrative Law (LexisNexis) at [355]. While the ruling in Comcare v A’Hearn (1993) 45 FCR 441; 119 ALR 85 that an explanation for delay is not an essential prerequisite to an extension of time to seek AAT review of a decision (see 6.17) has been adopted (see Budd’s case and Evans’ case, above), the court has nonetheless wanted to receive some reasons explaining the delay. [page 377] The approach followed by the court is probably appropriate, as in the AAT and AD(JR) Act cases referred to, the person concerned was making the first foray into review of the administrative action concerned. Where an appeal is being brought against an AAT decision, one opportunity to obtain review of the decision has been exercised and there is no reason why the person should not be required to act promptly if taking the matter on appeal. Section 44 was amended in 1995 by the inclusion of subs (2B) which sets out two specific grounds on which an extension of time might be granted. The

matter is still in the discretion of the court but two bases for an extension being granted are: where the AAT gave an oral statement of its reasons for its decision, later reduced the statement to writing and there are reasons in the written statement that were not included in the oral; and where the text of the decision or statement of reasons has been altered pursuant to s 43AA (see 17.24). It is expressly provided that these grounds are not to be taken to limit the general discretion of the court to extend time. An appeal to the Full Court against a refusal to grant an extension of time to appeal from an AAT decision requires leave of the court: Federal Court Act s 24(1A). Such leave will normally only be granted if the decision challenged is attended by sufficient doubt as to warrant its being reconsidered by the Full Court and substantial injustice would result if leave were refused: Vranic v Federal Commissioner of Taxation [2002] FCA 146; (2002) 67 ALD 798.

APPEAL TO STATE QUESTION OF LAW 19.22 The requirements relating to the manner in which an appeal is to be instituted are set out in 19.5. In Haritos v Commissioner of Taxation [2015] FCAFC 92 at [91] a five-member bench of the Full Federal Court said: ‘It is of great importance that the question or questions of law should be stated with precision.’ The notice of appeal must set out the question of law to be raised on the appeal. Rule 33.12(2)(e) requires the notice to state ‘briefly, but specifically, the grounds relied upon in support of the order sought’. In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J indicated that the grounds set out in the notice of appeal could not be used to qualify the statement of the question of law. If a question of law was not sufficiently identified or was incorrectly identified it was proper to strike it out. Burchett J in Black v Repatriation Commission (1993) 29 ALD 693 considered the reverse position of the grounds of appeal being insufficient. In the circumstances of the case he was prepared to allow the grounds as stated to be read in the light

of the statement of the question of law. However, he agreed with the principle underlying Lambroglou’s case and warned that his decision should not be taken as a precedent. [page 378] The Full Federal Court in Haritos, above, at [92] approved the statement by Ryan J in Lambroglou at 527 that: [I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law. But the Full Court continued: … this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows. The Full Court also emphasised that the determination of whether a question of law had been identified was not an issue going to jurisdiction as had been indicated in a number of earlier cases analysed and overruled in its judgment. When considering this matter it is appropriate rather to consider power and practice and procedure: at [84], [97]. To this end it is possible to amend a question of law as stated by an applicant to better identify the issue involved. At [106]–107] the court rejected an argument that it was not open on appeal for a Full Court to allow the appeal on the basis that it was able to satisfy itself that, looking at the reasons and at the notice of appeal, there was a question of law raised. It said: [This argument] confuses the substance of whether or not there is a question of law with the form, admittedly defective at first instance, which the question has taken to that point. As we have indicated, the form of the question is a matter of great importance but is one of procedure. Where as a matter of substance a question of law exists, then there is a procedural discretion, to be exercised judicially and where it is in the interests of justice to do so, to direct its formal identification in an amended notice of appeal

even where the question of law has not been identified before the primary judge. Previous decisions of the court had taken the view that, where it is apparent what is the question of law that should have been raised in support of the appeal, the court could formulate that question itself: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 76 ALD 321; Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [33]; Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438; (2010) 119 ALD 155 at [11]; Goodricke v Comcare [2011] FCA 694; (2011) 122 ALD 546 at [10]. An appropriate case may, for example, arise where an applicant is unrepresented and where it is possible to discern a question which — if properly framed — could found the jurisdiction of the court. The fact that an applicant may be unrepresented does not provide a reason why he or she should not comply with the rules of the court. It may, however, provide a reason why the court may itself attempt to formulate a question which does comply with s 44(1): Kolya v Tax Practitioners Board [2012] FCA 215 at [8] per Flick J followed in P v Child Support [page 379] Registrar [2013] FCA 1312; (2013) 138 ALD 563 at [53]. Mortimer J in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [77] put the obligation of the court as: Recognising minds differ on such matters, in my opinion a requirement that a notice of appeal be read fairly, rather than generously or benevolently, is a preferable approach. It provides more consistency with the role of the Court. It involves neither overzealous scrutiny, nor technicality, nor the imposition of a standard which in the circumstances it would be unreasonable to expect a non-legally trained person to meet. This approach which was endorsed in Haritos at [104] was applied in Hutchinson v Comcare [2014] FCA 1300; (2014) 143 ALD 686 at [23]–[25] but the court held that it was not possible to frame a question of law from the grounds of appeal before it.

The Full Court in Rana v Repatriation Commission [2011] FCAFC 124; (2011) 126 ALD 1 at [14] said: Though care must be taken, especially in the face of an objection to competency, not to visit on a respondent party a judicially attractive question of law which the notice does not fairly raise, there is authority which would support the reading as a whole and in context of a notice of appeal so as to give precision to an inelegantly specified question of law … Rule 33.15 permits an applicant to apply to the court for leave to raise, on the hearing of the appeal, a question of law that was not stated in the notice of appeal. Section 486I of the Migration Act makes special provision in regard to appeals lodged by a lawyer from migration decisions of the Tribunal in that it requires the notice of appeal to be accompanied by a certificate that the lawyer believes the appeal has a reasonable prospect of success. This requirement is not applicable to appeals lodged directly by an affected party. Rule 33.20 deals with cross appeals. In Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 120; (2005) 143 FCR 461; 85 ALD 24 at [4], Branson J said that the validity of the then applicable rule was open to doubt but made no finding on the issue as it had not been raised by the parties.

OBJECTION TO COMPETENCY OF APPEAL: R 33.30 19.23 A respondent may file a notice of objection to the competency of an appeal. Presumably such action could be taken on the basis, for example, that the appellant lacked standing or that the appeal was not based on a question of law. These issues could be raised on the substantive appeal and in most cases this is when they would be taken. However, r 33.30 sets out a procedure that can be used to raise the issues prior to a hearing. Action must be taken within 14 days of service of the notice of appeal. Once a notice of objection is filed, the burden is on the applicant to establish the competency of the appeal: r 33.30(2). [page 380]

If the court decides that an appeal is not competent, the appeal is dismissed: r 33.30(5). The effect of r 33.30(4) on the right to claim costs where an appeal is dismissed must not be overlooked. If the respondent has not filed a notice under r 33.30(1) objecting to the competency of an appeal and the appeal is dismissed as not competent, the respondent is not entitled to any costs of the appeal. This provides a strong inducement to raise competency issues when an appeal is lodged.

VEXATIOUS LITIGANT: R 6 19.24 Under rr 6.02 and 6.03 the court may determine that proceedings are vexatious and make appropriate orders. In Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; (2011) 122 ALD 114 the equivalent power in the old Rules, O 21 r 1, was used to declare a person a vexatious litigant in order to control repeated applications for review of AAT decisions.

SECURITY FOR COSTS 19.25 Under the previous O 53 r 8 of the Federal Court Rules it was provided that the court could in special circumstances order that such security for costs of appeal from an AAT decision to the court be given as it thinks fit. Subject to the exercise of that power, no security for costs of such an appeal to the court should be required. This specific provision relating to appeals from the AAT was not repeated in the new Rules. Rules 19.01 and 36.09 make general provision for the court to require security for costs to be given. Rules 19.02 and 36.10 set out the matters that a respondent seeking such an order is to state in the affidavit in support of the application. It appears that the previous protection afforded applicants from the AAT from security for costs orders is no longer applicable. The cases referred to below were decided under the previous provision. They are repeated here because they may give some guide as to the approach that might be adopted under the new Rules. However, care must be taken in relying upon them as the

view could be taken that there was a deliberate decision taken to move away from the special regime for AAT appeals. The explanatory statement relating to the new Rules provides little guidance. It simply says of Pt 19: Part 19 adopts, simplifies and streamlines the process and procedures which operated under the former Rules and does not substantially alter existing practice. It does provide better guidance to a respondent on what must be addressed in support of an application. In Arnold v Queensland (1987) 13 ALD 195 and Fletcher v Federal Commissioner of Taxation (1992) 37 FCR 288; 110 ALR 233 decided under the former Rules the court [page 381] drew attention to the express requirement that there be special circumstances before an order requiring security for costs be made. It said that mere impecuniosity on the part of an applicant was not, by itself, such a circumstance. In Fletcher the court went further and said that it would be a rare case in which security would be required where a natural person was seeking to appeal against a decision of the AAT favouring the commissioner. However, the court was prepared to make a security order in an appropriate case: see Bond v Trustee of Alan Bond, a Bankrupt (1994) 32 ALD 770 where the view was taken that, as it was the trustee and thereby ultimately the creditors who would have to bear the costs if the appellant were unsuccessful, not the public purse, an order should be made.

DISCONTINUANCE OF APPEAL: R 33.31 19.26 Rule 33.31 relates to discontinuance of an appeal under s 44 of the AAT Act at the behest of an applicant. It reads: (1) An applicant may discontinue an appeal by filing a notice of discontinuance of the appeal, in accordance with Form 78:

without the Court’s leave — at any time before the hearing of the appeal; or (b) with the Court’s leave: (i) at the hearing; or (ii) after the hearing and before a judgment is pronounced or an order made. (2) A notice of discontinuance has the effect of an order of the Court dismissing the applicant’s appeal. (3) A notice of discontinuance filed by one applicant does not affect any other applicant in the appeal. (4) An applicant who files a notice under subrule (1) must, unless the parties otherwise agree, pay the costs of each party to the appeal. (a)

DISMISSAL OR ADJOURNMENT OF APPEAL: RR 33.32, 33.33 19.27 Rule 33.32 provides: (1) A respondent to an appeal may apply to the Court for an order that the appeal be dismissed for the failure by the applicant for the appeal to do any of the following: (a) comply with a direction of the Court; (b) comply with these rules; (c) attend a hearing relating to the appeal; (d) prosecute the appeal. A note to the Rule reads: Note: The Court may make orders subject to conditions — see r 1.33. The Court may fix a time for the doing of an act and, in default, order the appeal be dismissed. [page 382] Rule 33.33 permits the court to dismiss an appeal or adjourn the hearing of an appeal because of the absence of the applicant when the appeal is called on for

hearing. If the respondent fails to appear, the court may order that the hearing proceed or be adjourned. The court can act on its own initiative as well as on the application of a party.

APPEAL MUST BE ON QUESTION OF LAW Jurisdiction for appeal 19.28 Section 44 refers simply to an appeal lying from a decision of the AAT ‘on a question of law’. A Full Federal Court said of this requirement in Brown v Repatriation Commission (1985) 7 FCR 302 at 304; 60 ALR 289 at 291: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Brennan J in the High Court in Waterford v Commonwealth (1987) 163 CLR 54 at 77; 71 ALR 673 at 689 expanded on this requirement: A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia ‘from any decision of the tribunal in that proceeding’ but only ‘on a question of law’. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. See 19.1 in relation to the constitutional validity of s 44.

Question of law cannot be agreed by parties 19.29 It is not possible for the parties to agree that a question of law has arisen to give an appeal court jurisdiction: Price Street Professional Centre Pty Ltd v

Commissioner of Taxation [2007] FCAFC 154; (2007) 97 ALD 593. However, a failure to raise a question of law before the Tribunal does not mean that it will not affect the decision of the Tribunal. In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 3 ALN N42, the court considered that the AAT had not addressed itself to the essential preliminary point on which the Minister’s jurisdiction depended, namely whether the deportee was still an immigrant. This issue had not been raised at the hearing before the AAT. The court held that a failure to put the argument to the AAT did not prevent its being raised as a question of law before the court. However, it said that the conduct of the party’s case before the AAT might affect the court in the exercise of its discretion as to what order should be made if it were satisfied that an error of law had been made by the AAT. [page 383] Kuswardana’s case was reaffirmed by a Full Federal Court in Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 231; 28 ALD 50 at 56. By way of contrast, a failure to make a finding of fact when not required to do so does not give rise to a right of appeal: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 528; 42 ALD 526 at 532 (see further 19.41). Nor does a failure to deal with an issue not raised before it: Commissioner of Taxation v Glennan [1999] FCA 297; (1999) 90 FCR 538 at [82]; Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448; 268 ALR 232 at [61]; Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24; (2012) 126 ALD 48 at [27]. If a question of law arises, it must be dealt with by the court even though the question arose as a result of the applicant’s conduct and is relied upon by the applicant on the appeal: Szajna v Australian Postal Corporation [2014] FCA 1136; (2014) 143 ALD 192 at [44].

Question of law contrasted with error of law 19.30 In Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 90 ALD 31 at [14] Branson J, with whom the other members of the Full Federal Court

agreed, said that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. Her Honour said that the subject matter of an appeal under s 44(1) is of the same character as the subject matter of a reference of a question of law to the court under s 45 of the AAT Act: see 19.58. She distinguished an appeal under s 24 of the Federal Court Act which is an appeal by way of rehearing. This approach and the many cases that had followed it were overruled by a five-member Full Federal Court in Haritos v Commissioner of Taxation [2015] FCAFC 92. It was expressly said at [192]–[193] that the reference to a question of law in s 44 was not to be constrained by the use of that expression in s 45. Further, a question of law under s 44 was not limited to a ‘pure’ question of law as was suggested in the cases overruled. In resolving a question of law, it will be necessary for the court to look at the facts of a case as it is not possible to divorce one from the other: see further 19.37.

Appeal right to be confined 19.31 The magnification and inflation of questions of fact into questions of law to provide an avenue of appeal from AAT decisions ‘is to be deprecated’: per Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (No 2) (1980) 3 ALD 38 at 49; per Finn J in Willcocks v Comcare [2001] FCA 1315; (2001) 66 ALD 119 at [23]. An immaterial error of law will not vitiate the AAT’s decision: BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 26 ALD 1 at 7; reiterated by the Full Court in Hyundai Automotive Distributors v Australian Customs Service (1998) 34 FCR 246 at 253; [page 384] 51 ALD 45 at 55; Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282; 125 ALD 167 at [52]. The Federal Court has cautioned against too ready an interference with a decision of the AAT. In Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100, Franki J noted:

There is no appeal to this court on anything other than a question of law and therefore the court is not concerned with whether or not it would have come to the same conclusion as the tribunal came to, but only with the question of whether the tribunal erred in law. In Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (No 2), above, a Full Federal Court indicated that to succeed an appellant must show that there was no basis on which the AAT could reach the conclusion that it came to. Fisher J at 49 put it: It is my firm view that this court when hearing appeals from a tribunal constituted for the purpose of reviewing decisions of [an administrative] nature should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the tribunal not be the final decision. This passage was cited with approval by Keely J in Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 and by Lockhart J in Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708. In the latter case his Honour was critical of what he saw as ‘a distinct and growing tendency’ for the court ‘to be asked to construe the AAT’s reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error’. The court, he said, ‘should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole’. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286–9; 115 ALR 1 at 6–8 where the Full Court discussed the fact–law distinction in the context of limiting appeals from the AAT. See further 19.36. In like vein, the Full Federal Court in Brown v Repatriation Commission (1985) 7 FCR 302; 60 ALR 289 warned that the court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of a specialist body like the AAT. For similar reasons Tamberlin J in Australian Postal Commission v Wallace (1996) 41 ALD 455 at 457 cautioned against a too fine analysis of the reasons given by an expert tribunal. See also Tax Agents Board (NSW) v Martin (1997) 45 ALD 192. Stone J put it succinctly in Fitz-Gibbon v Inspector General in Bankruptcy [2001] FCA 1677; (2001) 180 ALR 475 at [37] by dismissing an appeal on the basis that ‘the AAT gave rational consideration to probative evidence’. Her Honour went on to

say that ‘[t]he fact that another person (or even this court) reviewing the same evidence may have come to a different conclusion is not to point’. [page 385]

Nature of AAT confines appeal 19.32 Concerns about the way in which the AAT expresses its decisions should also be tempered by an appropriate perception of the nature of the AAT. Northrop and Sheppard JJ in Lennell v Repatriation Commission (1982) 4 ALN N54 said: A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal’s language may have a degree of looseness. Certainly it ought not to indulge in an exercise which overzealously picks the tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply. Sheppard J (Sweeney J agreeing) returned to this issue in Freeman v Defence Force Retirement and Death Benefits Authority (1985) 8 ALN N97 noting that ‘what may appear to be a loose or unhappy way of phrasing a thought ought not to be determinative of the outcome unless it is apparent that the tribunal has, by its language, been led to make an error of law’. A detailed consideration of the role of reasons and the attitude that an appeal court should take in regard to them was provided in the context of the Refugee Review Tribunal by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 41 ALD 1, particularly by Kirby J at 291; 22, and by a Full Federal Court in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; 41 ALD 361, particularly by Sackville J at 413; 371. It can be expected that the commentary will be applicable to the AAT also. The approach alluded to is illustrated by the decision in Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126 where a Full Federal Court made the point that a failure on the part of the AAT to refer specifically to every aspect of the case should not lead to a conclusion that it failed to take account of an

issue. See further 17.15–17.19 on the form the AAT’s statement of reasons should take. In Van Cong Huynh v Secretary, Department of Social Security (1987) 14 ALD 501 Davies J ruled that an error of law was not made out by pointing to lack of consistency with other decisions of the AAT. While inconsistency might lead to a sense of injustice in those affected, it did not of itself lead to an error of law justifying intervention by the Federal Court. The issue was summarised by the Full Federal Court in Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666: In considering the tribunal’s finding on the level of the appellant’s incapacity, it is necessary to keep in mind that the tribunal was the judge of the facts and that its decision is not to be set aside unless it is shown that the tribunal failed to take into account some relevant matter or took into account an irrelevant matter or misconceived the legislation or that the facts before it could not support the finding that was made, that is to say, that the finding was perverse or unreasonable. [page 386] Notwithstanding the foregoing comments, note should be paid to Flick J in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764; (2012) 128 ALD 571 at [36] who pointed to this general approach not being applicable to a tribunal comprising a judge who had been assisted by counsel. This could apply to the AAT when constituted by a judicial presidential member.

CASES HOLDING QUESTION OF LAW Identification of question of law 19.33 The foregoing discussion would suggest that the Federal Court would not often uphold appeals from the AAT. This is far from being the case. Appeals

are upheld in about a third of the cases that are brought to the court. The concept of what constitutes a question of law, although clearly stated in Apthorpe v Repatriation Commission (1987) 13 ALD 656 (see 19.32), is itself so subjective that it is readily possible for a court to classify a finding or the process followed in reaching a result as erroneous in law. The High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 186; 39 ALD 193 at 204 said that almost any question that arises for determination by a judge can be ‘dressed in the garb of a question of law’. The following propositions from Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; 115 ALR 1 at 9 have been influential in the identification of a question of law: (1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297; [1972] 3 WLR 521; (1972) 56 Cr App Rep 799. (2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (NSW); New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; [1956] ALR 286; Life Insurance Co of Australia Ltd v Phillips [1925] VLR 311; (1925) 36 CLR 60 at 78; 31 ALR 206; Neal v Secretary, Department of Transport (1980) 3 ALD 97; 29 ALR 350 at 361-2. (3) The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137–8; Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574 at 581; 10 ATR 310. (4) The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia Ltd v Phillips, supra, at 79. (5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7; 29 ALR 57 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed …

[page 387] A useful summary of the circumstances that can give rise to a reviewable question of law is also set out in Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) 317 ALR 328 at [100]. Questions of law arising from decisions of the AAT may be broadly grouped as follows:

Statutory construction 19.34 The construction of legislation has long been held to be a question of law and accordingly if, in reaching its decision, the AAT has been obliged to interpret a legislative provision, a question of law will have arisen such as to provide the foundation for an appeal. See the general discussion in H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340. Some typical examples are May v Secretary, Department of Transport (1981) 4 ALD 169; Repatriation Commission v Hayes (1982) 5 ALD 8; 43 ALR 216; Federal Commissioner of Taxation v Markey (1989) 87 ALR 454; Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282; 125 ALD 167. See also Australian Securities and Investments Commission v Administrative Appeals Tribunal [2011] FCAFC 114; (2011) 195 FCR 485; 123 ALD 1 at [112] where there is a discussion building on earlier cases of the desirability of recognising that: … the distinction to be drawn is between the factum probandum (that is, the ultimate fact in issue) and the facta probantia (the facts adduced to prove the ultimate fact). Where the factum probandum involves a term used in a statute (or a quasi-statutory instrument) the question whether the accepted facta probantia establish the factum probandum will generally be one of law. In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 396; 43 ALD 193 at 197 the High Court indicated that no distinction was able to be drawn between the meaning and construction of legislation, thus rejecting a view that the meaning to be given an Act was a question of fact while its construction involved a question of law. Agfa-Gevaert was applied in Secretary, Department of Employment and Workplace Relations v Richards [2008] FCAFC 97;

(2008) 168 FCR 438; 102 ALD 74 at [34]. However, whether the facts found fall within the scope of a word that has been used in its ordinary sense is a question of fact, not a question of law: Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCAFC 103; (2010) 187 FCR 352; 117 ALD 249. For the general rules for the interpretation of legislation, see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014. See, for an example of an incorrect approach to interpretation being characterised as an error of law, Civil Aviation Safety Authority v Caper [2012] FCA 1213; (2012) 207 FCR 357; 131 ALD 79 at [65]. It should be noted that the approach to review of administrative decisions in the United States — known as the Chevron doctrine whereby judicial deference is [page 388] to be paid to an executive department’s construction of the legislation that it administers — has been expressly rejected in Australia by the High Court: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 60 ALD 342 at [40]ff. See also Minister for Immigration and Citizenship v Yucesan [2010] FCAFC 110; (2008) 102 ALD 242 at [15].

Administrative law principles 19.35 The court has found on a number of occasions that the AAT has acted in breach of one of the general grounds on which administrative action is reviewed by the courts. Failure to afford procedural fairness was held early in the life of the Tribunal to raise a question of law: Sullivan v Department of Transport (1978) 1 ALD 383. In Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [8] the Full Court said: Given the state of the authorities, this court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. For this purpose, it is undesirable to attempt to distinguish between a denial of procedural fairness resulting from a course of action chosen by the Tribunal in conducting the case before it and a

denial that is unintended and results from an error of fact made by the Tribunal. This statement was endorsed by a five-member Full Federal Court in Haritos v Commissioner of Taxation [2015] FCAFC 92 at [202]. See also Ovens v Civil Aviation Safety Authority [2010] FCA 1354; (2010) 119 ALD 519 at [38]; affd on appeal [2011] FCAFC 75; (2011) 121 ALD 514; P v Child Support Registrar [2015] FCA 116; (2015) 65 AAR 190 at [31]; Eckinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 at [93] and see also the discussion at 8.7–8.17. The other administrative law grounds of review will also constitute an error of law and thereby raise a question of law. The decision may satisfy the Wednesbury unreasonableness test: Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 436; 21 ALD 740 at 742. However, this will not be easy to establish: see the discussion of the authorities by Flick J in SZSOB v Minister for Immigration and Border Protection [2014] FCA 685; (2014) 143 ALD 302 at [18]ff. The jurisdiction to make the decision reached may be questioned: Goodfellow v Commonwealth (1982) 5 ALN N57. Probably the most common basis for finding an error of law is the ubiquitous failure to take account of relevant considerations or taking account of irrelevant considerations: Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402; 15 ALD 338; 79 ALR 61; Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 14 ALD 794; 79 ALR 267; Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449; 76 ALR 313. However, care must be taken that the alleged failure to take account of factors is not a failure to take account of particular pieces of evidence, which is not an error of law: see 19.39–19.40. For an application [page 389] of the distinction, see Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690.

Inadequacy of statement of reasons

19.36 Even though there have been many statements of the court indicating that the AAT’s statement of reasons should not be subjected to intense scrutiny in order to seek out minute errors (see 19.31), as is indicated at 17.21, a failure to provide an adequate statement of the basis upon which a decision has been reached will be held to raise a question of law.

Fact–law interplay 19.37 Undoubtedly the most difficult issue relating to the identification of questions of law is their interaction with questions of fact. This is a problem that bedevils administrative law generally and the position with the AAT is no different from that which arises under the general law. In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394; 43 ALD 193 at 196 the High Court said: The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. Nevertheless, an attempt must be made to formulate a distinction if an appeal is limited to a question of law. Reference should be made to the propositions set out in 19.33 from Collector of Customs v Pozzolanic Enterprises Pty Ltd. Reference should also be made to the comments of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355–60; 21 ALD 1 at 23–6 and the High Court in Collector of Customs v Agfa-Gevaert Ltd, above, at 395; 197. The following comment of Mason CJ in Bond’s case at 356; 24 is pertinent: Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. This statement was followed in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411; 53 ALD 1 at [20]ff but the

additional comment was added that illogicality in reasoning might manifest a reviewable error. Earlier, Davies J in Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 440; 21 ALD 740 at 743 had put it that ‘a decision may be invalidated because of an unreasonable step in the reasoning process if that step was of sufficient significance to the ultimate decision to invalidate it’. See also W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455; (2002) 68 ALD 69 at [33]. [page 390] In Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212; (2001) 65 ALD 389 at [22] the Full Federal Court observed that the comments on illogicality applied also to arguments asserting ‘non sequitur’ and ‘lack of rational process’. A narrow view of the meaning of ‘question of law’ which was taken by the Full Federal Court in Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522; 90 ALD 31 (see 19.30) led to the rejection of mixed questions of fact and law being considered amenable to an appeal under s 44. This approach was rejected by a five-member Full Federal Court in Haritos v Commissioner of Taxation [2015] FCAFC 92. The court there emphasised that the court must not take over the fact-finding role of the Tribunal. That is its statutory remit. But that is not to deny that there may be circumstances where that fact-finding process demonstrates an error of law. It means that the question of law must be correctly framed to raise genuine issues of law, not fact: Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at 49; 96 ALD 536 at [55]; Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [87]. For example, in ascertaining whether there has been a breach of procedural fairness, the court must engage in factual evaluation and determination of what occurred before the Tribunal: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [8]. The Full Court in Haritos, above, at [202] placed this in the context of s 44 in the following terms: No textual aspect of s 44 denies the conclusion that, as a contextually understood judicial review provision, it encompasses the authority in this court to undertake any relevant process to assess the answer to a question of law such as whether a person was denied procedural fairness by the

Tribunal. Any answer to that legal question of jurisdiction may require factual evaluation and determination of what occurred before the Tribunal. Such is not to usurp the function of the Tribunal of fact finding, but to ensure that the Tribunal acts lawfully and with authority. However, compare Munswamy v Australian Postal Corporation [2015] FCA 678 for an example of the problems to which the mixed fact–law issue gives rise even after Haritos. In addition to these discussions and the matters dealt with in the next paragraph, mention should be made of two other cases. In Secretary, Department of Social Security v Greenwood (1992) 26 ALD 554 it was said that an error of law may be made by the AAT if, while stating the law correctly, it nonetheless applies the law as stated to irrelevant facts. In H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 the court held that there had not been an error of law where the AAT had failed to make a finding on a material issue of fact but an examination of its Reasons for Decision indicated that it had considered the matter. It would seem that such a failure would constitute an error if it were not possible to find that the fact had been considered. [page 391]

Tribunal procedure and delay 19.38 Failure by the AAT to adhere to the requirements of natural justice constitutes an obvious error of law. However, most procedural actions will lie in its discretion and, unless the outcome of the procedure adopted constitutes a breach of procedural fairness, failure to comply with procedural requirements will not support an appeal under s 44: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [33], [34]. See also Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 297 ALR 225 at [12]ff on the effect of the equivalent provision in the Migration Act to s 2A of the AAT Act (see 1.6) on the procedure to be followed by the Refugee Review Tribunal and arguments based on a failure to adhere to the exhortation in that section. These comments will be applicable to proceedings in all Divisions of the AAT.

Delay in reaching a decision does not itself give rise to a question of law; the Tribunal’s workload would render an alternative view untenable: Bienstein v Family Court of Australia [2008] FCA 1138; (2008) 170 FCR 382; 251 ALR 453 at [41]. However, a delay in reaching a decision and providing reasons for it may result in a finding that the Tribunal was no longer competent to evaluate the evidence and this would give rise to a question of law: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 88 ALD 257 at [10]; Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245 at [23]; SZFNX v Minister for Immigration and Citizenship [2010] FCA 562; (2010) 116 ALD 85 at [132]ff.

Appeal based on lack of evidence or weight of evidence 19.39 Despite the numerous cases in which an appeal has been said to raise a question of law, it must not be forgotten that it is a ‘question of law’ appeal right that is provided by the Act, not an ordinary appeal right such as lies from a lower to a higher court. In Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; 36 ALR 598, the court rejected as giving rise to questions of law assertions that a decision was against the evidence and the weight of evidence. The court said that these concepts: belong to appeals from courts of law and even then do not necessarily involve questions of law; and have no place where an appeal is from an administrative tribunal which is not bound by the rules of evidence. The New South Wales Court of Appeal decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; 9 ALN N245 is commonly cited to illustrate the limits on appeal rights involving factual questions where the appeal must be based on a question of law. Glass JA said at 155–6: [page 392] To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the

weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law. A useful statement in this context in an appeal under s 44 against an AAT decision is that of Jagot J, Nicholas J agreeing, in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 133 ALD 39 at [84]: The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being ‘no probative’ evidence to support a finding or a finding not being ‘reasonably open’ or ‘open’ on the evidence … or it being necessary that a finding be based on ‘some probative material or logical grounds’ and that a finding not be ‘completely arbitrary’ … the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula ‘some probative material or logical grounds’ does not convert questions of fact into questions of law. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 73 ALD 1 at [53]ff; P v Child Support Registrar [2013] FCA 1312; (2013) 138 ALD 563 at [73]; Repatriation Commission v Holden [2014] FCA 605; (2014) 142 ALD 267 at [59]; Neil Rees, ‘Procedure and Evidence in “Court

Substitute” Tribunals’ (2006) 28 Australian Bar Review 41; Justice Duncan Kerr, ‘Keeping the AAT from Becoming a Court’, reproduced on the AAT website. An appellant who attacks a decision of the AAT because of deficiency of proof said to raise a question of law must, to succeed, show that there was no material before the AAT upon which its conclusion could properly be based: cf Military Superannuation and Benefits Board No 1 v Stanger [2002] FCA 671; (2002) 68 ALD 12. See also Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 442; 21 ALD 740 at 745; Federal Commissioner of Taxation v La Rosa [2002] FCA 1036; (2002) 196 ALR 139 at [37]; Commissioner of Taxation v A Taxpayer [2006] FCA 888; (2006) 91 ALD 335 at [32]; James v Comcare [2011] FCA 1030; (2011) 125 ALD 418. See further the cases referred to at 9.1–9.3. [page 393] 19.40 Some difference of opinion has been expressed on the question whether an appeal can be allowed on the basis that, in the court’s opinion, the AAT attached undue weight to a matter or failed to pay due regard to another matter. However, the most authority seems to point against the right of the court to intervene on these grounds: Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705; Yildiz v Minister for Immigration and Ethnic Affairs (1982) 46 ALR 112; Repatriation Commission v Thompson (1988) 44 FCR 20; 15 ALD 501; H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340 at 355. However, compare the discussion in Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 693 where the conclusion was reached on the authorities cited that, in some circumstances, ‘the attribution of very little weight to a matter deserving of much could come so close to ignoring a relevant consideration as to amount to an error of law’. It has been held that disregarding relevant evidence can constitute a jurisdictional error. Gray J in SBLF v Minister for Immigration and Citizenship [2008] FCA 1219; (2008) 103 ALD 566 at [38] summarised the position: There is a clear distinction between making a finding of fact inconsistent with some of the material of a probative nature, after consideration of the whole of the material, and choosing not to rely on some of the material at all. In many, if not most, cases, it will be inevitable that the fact-finder will

make findings inconsistent with some of the probative material before him or her. That is the natural result of the process, which involves determining what to accept and what to reject. That process is altogether different from arbitrary rejection of probative material by labelling it as without probative value, or weight, altogether, when it has probative value. It would seem that this approach is applicable to proceedings in all Divisions of the AAT: see, for example, Jovanovski v Telstra Corporation Ltd [2008] FCA 465; (2008) 101 ALD 526. A court should not disturb a finding of fact of a tribunal based on its assessment of the credit or credibility of a witness unless it is satisfied that the tribunal did not take advantage of its opportunity to see and hear the witness or that the conclusions that it reached were inconsistent with an overwhelming body of evidence or were glaringly improbable: Goldberg J in Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 532. These various comments are applicable to appeals from the AAT under s 44. However, the position might well be different in relation to judicial review applications: see further 19.60–19.62.

ADMISSION OF NEW EVIDENCE ON APPEAL 19.41 Section 27 of the Federal Court Act supported by Federal Court Rules r 33.29 permits the court to receive fresh evidence on an appeal from a decision of the AAT. However, the court demonstrates a cautious attitude towards any application to receive such evidence. [page 394] In Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1979) 2 ALD 561 the court ruled that, having regard to the nature of the appeal that may be brought from a decision of the AAT, that is, on a question of law only, it would only be in unusual circumstances that fresh evidence would be admitted on the appeal. See also Servos v Repatriation

Commission (1995) 56 FCR 377 at 385; 37 ALD 489 at 496; Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254; 159 ALR 322 at 326; Phillips v Commissioner for Superannuation [2005] FCAFC 2. In Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCAFC 103; (2010) 187 FCR 352; 117 ALD 249 a Full Federal Court said that the issue of admission of new evidence was to be determined having regard to the approach generally adopted by the court in relation to such applications. In that case the evidence was not admitted because it was not new, it having been available at the time of the Tribunal hearing, and its relevance to the issues before the Tribunal was not clear. See also Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254; 276 ALR 196; Mulholland v Australian Electoral Commission [2012] FCAFC 136 at [17], [59]. In Sami v Minister for Immigration and Citizenship [2013] FCAFC 1128; (2013) 139 ALD 1 at [7] the Full Federal Court said that ‘unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it will not usually be admitted on an appeal’. Because an appeal is brought in the original jurisdiction of the Federal Court, not its appellate jurisdiction (see 19.1), it is possible for evidence to be admitted to establish facts on which the question of law is founded, for example, that there has been a breach of procedural fairness (Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [13]) or that a jurisdictional fact did not exist: Rana v Repatriation Commission [2011] FCAFC 124; (2011) 126 ALD 1 at [20]. It must be recalled that appeals from AAT decisions under the Migration Act are limited to the establishment of jurisdictional error. Accordingly, if it is sought to lead new evidence, it must be clear that the evidence goes to jurisdiction and is not going to the merits of the Tribunal’s decision even though this may have been affected by the new evidence: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27]; Sami v Minister for Immigration and Citizenship, above, at [9]; MZZUQ v Minister for Immigration and Border Protection [2015] FCA 157 at [24]. These decisions related to the former migration tribunals but they will be applicable to appeals from decisions of the AAT in its Migration and Refugee Division. For the position in regard to admission of evidence on appeals generally, see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288 at [32]ff. On the presentation of facts to the court on an appeal, see 19.47.

[page 395]

RAISING NEW MATTERS ON APPEAL 19.42 An argument based either on the law or the facts that has not been raised before the AAT may be considered by the court on appeal depending upon the nature of the issue to be raised. If it goes to the jurisdiction of the AAT, the issue must be raised on appeal even if it was not taken before the AAT: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 3 ALN N66. Similarly if the issue is central to the task to be performed by the AAT: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527; 42 ALD 526 at 532. In other cases the starting point is against allowing an argument to be put for the first time on the appeal. The general principle was stated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 where Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. Frequently cited is the statement of Gummow J in Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728: There must be some difficulty [where a case is sought to be put before the court in a way in which it was not put before the Tribunal] in finding an error of law in the failure of the Tribunal to make a finding first urged in this court. However, an appeal court has a discretion to permit an appellant to argue an issue not previously raised ‘where it considers that it is expedient and in the interests of justice to entertain the issue’: Summers v Repatriation Commission [2015] FCAFC 36; (2015) 145 ALD 30 at [93], endorsed by a five-member bench in Haritos v Commissioner of Taxation [2015] FCAFC 92 at [79].

In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out what he referred to as the relevant questions that had to be considered on an application to raise new matters: (1) Do the new legal arguments have a reasonable prospect of success? (2) Is there an acceptable explanation of why they were not raised below? (3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? (4) What is at stake in the case for the appellant? (5) Will the resolution of the issues raised have any importance beyond the case at hand? (6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? [page 396] (7) If so, can it be justly and practicably cured? (8) If not, where, in all the circumstances, do the interests of justice lie? See further the collection of relevant decisions and the discussion by Beazley J in Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 366; 30 ALD 455 at 459 and Flick J in SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 at [51]–[56]. See also Maretech CMDL Pty Ltd v Federal Commissioner of Taxation (1996) 43 ALD 775; Comcare v Marinceski [2007] FCA 2088; (2007) 166 FCR 221 at 225; 100 ALD 73 at [25]; NDMB v Minister for Immigration and Citizenship [2008] FCA 149; (2008) 100 ALD 118 at [23]ff; Culley v Australian Securities and Investments Commission [2010] FCAFC 43; (2010) 183 FCR 279; 268 ALR 206 at [16]; SZRCD v Minister for Immigration and Citizenship [2013] FCA 290. A Full Federal Court summarised the position as follows in Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511; 101 ALD 222 at [78]: The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:

(a)

the matter is a pure question of law, such as a question as to the validity of a regulation or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation; (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself such as a shared misapprehension as to the applicable law; or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual [citations omitted]. This passage was cited with approval by a differently constituted Full Federal Court in Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; (2009) 177 FCR 125 at 135; 257 ALR 237 at [58] and was endorsed by the five-member bench in Haritos v Commissioner of Taxation, above, at [80]. In Culley v Australian Securities and Investments Commission, above at [17], the passage was endorsed but it was added that it did not follow that the court would decline to entertain a question that could not be brought within one of the three categories. A Full Court in Summers v Repatriation Commission [2015] FCAFC 36; (2015) 145 ALD 30 at [94] noted that the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. 19.43 Where a party has made an admission or conceded a matter before the Tribunal and there has been nothing before the Tribunal that would require it to question the admission or concession, it cannot be asserted that the Tribunal erred in law by acting on the admission or concession: Federal Commissioner of Taxation v Glennan [1999] FCA 297; (1999) 90 FCR 538 at [82]; Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328; Inco Ships Pty Ltd v Hardman [2007] FCA 1138; [page 397] (2007) 167 FCR 294; 96 ALD 604 at [32]–[33]; Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511; 101 ALD 222. However, the court in Comcare v Fiedler described this as the general position

and qualified it by saying at [39]: The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. This qualification on the general approach was followed in Batchelor v Commissioner of Taxation [2014] FCAFC 41; (2014) 219 FCR 453; 142 ALD 1 at [102]. If the justice of the case demands that a point be raised on the appeal that has not been taken before the AAT and the other party is not prejudiced by its being raised for the first time, the court may allow it: Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314; 39 ALD 481; Vuax v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. All the foregoing is subject to the overriding qualification enunciated by Flick J in SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68; 143 ALD 310 at [56]: ‘One factor which remains constant, however, in the exercise of the discretion is an assessment as to whether the new argument has any merit.’ The failure of the AAT to make a finding of fact, or to deal with the materiality of a found fact, when it has not been required to do so by the party seeking to appeal on that point will mean that no question of law can be relied upon to ground the appeal: Ferriday v Repatriation Commission (1996) 69 FCR 521 at 527; 532. A court hearing an appeal on a question of law should not accept a concession of the parties as to the existence of an error of law in contradistinction to such a concession on a matter of fact: Polla-Mounter v Federal Commissioner of Taxation (1996) 71 FCR 570; 43 ALD 773; Drummond v Commissioner of Taxation [2005] FCA 1129; (2005) 220 ALR 691; Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 97 ALD 593.

COURT MUST SET ASIDE ERRONEOUS DECISION 19.44 If an error of law is revealed in the AAT’s reasons for decision and,

importantly, the error could have affected the decision reached, the decision must be set aside. It is of no consequence that the decision could have been supported on a different basis or that there was evidence that would have justified the ultimate decision: Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; 8 ALN N107; Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 182; 82 ALR 54 at 60; Walterschied Australia Pty Ltd v Collector of Customs (1988) 14 ALD 785. It is sufficient if the error could have affected the outcome of [page 398] the decision; it is not necessary to show that the error would have led to a different result. But the error must have contributed to the decision in some way or, at the least, it must be impossible to say that it did not so contribute: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384; (1990) 21 ALD 1 at 22, 43; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 519; (1998) 152 ALR 182 at 188; Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; (2001) 114 FCR 456; 67 ALD 306 at [10]. In qualification of the statements above, an immaterial error of law will not vitiate the AAT’s decision: BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246 at 254; 26 ALD 1 at 7; reiterated by the Full Federal Court in Hyundai Automotive Distributors v Australian Customs Service (1998) 81 FCR 590 at 599; 51 ALD 45 at 55; Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282; 125 ALD 167 at [52]. See further 17.21 relating to the effect of inadequacies in the Tribunal’s reasons for a decision.

ORDER OF COURT ON SUCCESSFUL APPEAL Power of court 19.45 On an appeal, the Federal Court may make such order as it thinks

appropriate by reason of its decision: s 44(4). Specifically it may affirm or set aside the decision of the AAT or remit the case to be heard and decided again, either with or without the hearing of further evidence, by the AAT in accordance with the directions of the court: s 44(5). The power to remit a matter to the AAT is constitutionally valid: AB v Federal Commissioner of Taxation (1998) 157 ALR 510. It is to be noted that the court has no power to substitute its own decision for that of the AAT. Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 at 585; 42 ALR 209 at 221 observed in relation to s 44(4) and (5) that it is not correct to say that the Federal Court is given wide powers to make such order as it thinks fit. The subsections contain a number of implicit restrictions. The appeal is expressly limited to a question of law, and it is the alleged error exposed by this question that is the sole matter before the court and is the only subject matter of any order made consequent on the appeal. The order which the court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows, it was said, that the only order which can be properly made is one the propriety of which is circumscribed by and is necessary to reflect the court’s view on the error of law. His Honour considered that a power to make ‘such an order as it thinks appropriate by reason of its decision’ is much more restrictive than a power ‘to make such order as it sees fit’ or a power ‘to make a decision in substitution for the decision’ the subject of the appeal. Having set aside a decision, the court has no express power to substitute what it sees as the correct decision unless that is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings. [page 399] A further qualification on the scope of the court’s order is that, if a power is specifically vested in the AAT, the court on appeal will not be able to exercise it: Liedig v Federal Commissioner of Taxation (1994) 50 FCR 461 at 463; 121 ALR 561 at 564 where the power to permit amendment of a notice of objection to income tax could not be exercised by the court under s 44 of the AAT Act as it was vested only in the AAT. In a somewhat similar vein, a failure by the Tribunal to provide reasons for a decision could not be remedied by the court: see 17.22 on

the question whether the decision must be set aside or whether the matter can be referred back for a new set of reasons to be prepared. Taking into account these limitations, ‘[t]he appropriate order to be made pursuant to s 44 will depend upon the facts and circumstances of each individual case and the exercise of the discretion thereby conferred’: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) FCR 554 at [55].

Findings of fact 19.46 This analysis has continued to be accepted as properly expressing the role of the court on an appeal. However, a significant consequence that was seen to flow from it was that it was not open to the court to make findings of fact, no matter how convenient it might be for it to do so for the resolution of the dispute. The role of the AAT as the sole fact-finding body was emphasised by the High Court in Harris v Director-General of Social Security (1985) 7 ALD 277 at 284; 57 ALR 729 at 736: Where the decision under review by the tribunal turns on a question of fact, the Federal Court (or this court on appeal from the Federal Court) should by its order leave to the tribunal the function of finding the facts if the tribunal has not already found them. The tribunal is bound to find the facts in accordance with the principles expressed by the judgment of the court. In the light of those principles, the tribunal decides the order it should make under s 43 of the Administrative Appeals Tribunal Act. This limitation on the capacity of the Federal Court to deal with all matters where it had found that the Tribunal had made an error of law led to criticism. The view was put that the court should have the discretion to resolve the matter itself rather than only being able to refer the issue back to the Tribunal. In 2005 the AAT Act was amended by adding subss (7)–(10) to s 44. The amendments gave a general discretion to the court to make findings of fact if, put generally, to do so would expedite the resolution of the case (see s 44(7) for the matters to which the court is to have regard in deciding whether to make findings of fact). For the purposes of making findings of fact the court can have regard to the evidence before the Tribunal and may also receive further evidence: s 44(8); r 33.29. However, the power is limited by the requirement that any finding of the court must not be inconsistent with findings made by the Tribunal: s 44(7)(a).

[page 400] Section 44(9) of the AAT Act makes it clear that the power given to the court to make findings of fact does not limit the power of the court to remit a case to the AAT for rehearing.

Limits on fact finding 19.47 The limitation on the court not making findings inconsistent with those of the Tribunal (s 44(7)(a)) constrains the court from undertaking a general factfinding role. It also limits its capacity to, in effect, re-hear the matter that has come to it on appeal. The merits–law interrelationship between the court and the Tribunal has thus been largely maintained. This is reflected in the decision of a Full Federal Court in Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364. The trial judge had held that the AAT had made an error of law in its method of assessing a veteran’s capacity for work and then proceeded to make a finding of eligibility for pension on the basis of the facts as he found them. This approach was disapproved on appeal. The court said at [19]: Notwithstanding the above view as to the legal correctness of his Honour’s reasoning, we consider that his Honour erred in not referring the matter back to the Tribunal for further consideration. The Tribunal had fallen into legal error and, in our view, the appropriate course in this case was for the Tribunal to reconsider the evidence having regard to any further submissions or evidence which the parties wished to advance. In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome. In this matter, his Honour erred in deciding the factual question rather than remitting it to the Tribunal. Gyles J in Byrne v Repatriation Commission [2007] FCAFC 126; (2007) 97 ALD 359 at [4] said: I do not consider that this Court can, or should, make factual findings pursuant to s 44(7) in this appeal based upon snippets of evidence which were not directed to the issue in question. The Tribunal could well take the

view that, if the hypothesis in question is to be properly considered, it should receive fresh evidence directed to it. Gray J in Spaul v Comcare [2012] FCA 741; (2012) 134 ALD 239 at [23] said: The Court has a limited power to make findings of fact, conferred by s 44(7) of the AAT Act. That is not a power that should be exercised so as to usurp the function of the Tribunal. The occasions on which it should be exercised are few and the task of fact-finding in an appeal limited to a question of law must necessarily be approached with great caution. Only the Tribunal has available to it all of the evidence. See also Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497; 120 ALD 228 at [27], [80]. Middleton J in Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796; (2008) 106 ALD 506 declined to deal with a matter where, in his view, the resolution [page 401] of the case required observing the demeanour of the applicant when he was giving evidence. His Honour refused to conduct the hearing that he thought necessary on the basis that it could as quickly and effectively be heard by the Tribunal. Where the Tribunal’s decision does not deal with all the issues that could have arisen on the appeal before it, the court will not make findings on those issues but will refer the matter back to the Tribunal: Commissioner of Taxation v White (No 2) [2010] FCA 942; (2010) 117 ALD 335. Likewise, if there are discretionary matters to be determined in reaching the final decision, the court will refer these to the Tribunal for consideration rather than come to a conclusion itself: Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43; (2011) 120 ALD 40 at [46]. Notwithstanding the reluctance demonstrated by these decisions to make findings of fact, it is a power that is available to the court and can be exercised in an appropriate case. Murphy J in McKenzie v Repatriation Commission (No 2) [2014] FCA 1007 at [16] noted that:

The power to make factual findings is only to be exercised in the limited circumstances described in s 44(7), but these circumstances do not include any requirement to have the same evidence before the Court as was before the Tribunal. It does though include a requirement that the evidence be sufficient to make the finding. His Honour alluded to three matters that determined the position that he proposed to take. First, the evidence had been fully traversed by the Tribunal and there was little dispute between the parties as to the primary facts. Second, a factual finding was necessary in the case as previous conclusions that he had reached were expressed in terms of identifying the Tribunal’s error of law rather than as a factual conclusion. Third, the facts underpinning the finding were clear and the respondent did not identify any significant evidence that was not before the court. In these circumstances, he ruled that the order sought by the applicant should be made. For another example of the exercise of the power, see Yao v Administrative Appeals Tribunal [2011] FCA 11; (2011) 122 ALD 310 at [29]. The power to make findings of fact may also be exercised by the Federal Circuit Court: s 44AA(11).

ORDER WHERE ONLY ONE RESULT OPEN 19.48 Before the 2005 amendment, the court had held in a number of cases that if the law as laid down by the court as applied to the facts found by the AAT admitted of only one result, it was appropriate for the court to make an order accordingly. So to act avoided costs for the parties and is the best use of the resources of both court and AAT. This approach has continued to be followed after the changes to the power of the court. The most frequently cited discussion is that in Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 at 725. See also Sheehy v Repatriation Commission (1996) [page 402]

66 FCR 569 at 576; 41 ALD 205 at 211; NAAO v Secretary, Department of Immigration and Multicultural Affairs [2002] FCA 292; (2002) 117 FCR 401; 66 ALD 545 at [42] (order made as no remaining residual discretion to be exercised by AAT); Canberra Tradesmen’s Union Club v Gambling and Racing Commission [2002] ACTSC 130; (2002) 72 ALD 359 at [24] (which takes the matter perhaps to its extreme as there was still a residual discretion open to the decision-maker and therefore the Tribunal). Other examples of cases where the Federal Court has grappled with this issue whether to refer a matter back to the AAT or decide the matter itself are Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988) 22 FCR 145 at 148; 17 ALD 535 at 536; Harradine v Secretary, Department of Social Security (1989) 25 FCR 35; 17 ALD 336; Truchlik v Repatriation Commission (1989) 25 FCR 414 at 419; 87 ALR 263 at 269; Federal Commissioner of Taxation v Emmakell Pty Ltd (1990) 22 FCR 157; 19 ALD 760; AB v Federal Commissioner of Taxation (1998) 157 ALR 510; Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; (2012) 132 ALD 475; Lee v Transpacific Industries Pty Ltd [2013] FCA 1322; (2013) 136 ALD 652 at [44]; McKenzie v Repatriation Commission [2014] FCA 777; (2014) 142 ALD 332 at [78].

REMITTING CASE TO AAT 19.49 One of the powers available to the court where an appeal has been successful is to remit the case to the AAT for reconsideration. It should be noted that s 44(5) of the AAT Act refers to the ‘case’ being remitted. The court commonly refers to the ‘matter’ being remitted. It may be that there is no difference between the words and the court does not seem to have given any credence to such a view. However, the issue was analysed by DP Forgie in Re Dunstan and Comcare [2012] AATA 567; (2012) 130 ALD 370 at [200]ff and it was suggested that there is a difference between the two descriptors. Care should be taken in regard to the terminology used. Where no useful result can flow to the parties because of, for example, the passage of time or a change in the law or government policy, the court may decline to remit the case to the AAT on the basis that there is no utility in so doing: P W Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60 FCR 387 at 411; 39 ALD 339 at 357; Secretary, Department of Education, Employment

and Workplace Relations v Holmes [2008] FCA 105; (2008) 100 ALD 101. However, see Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 121 ALD 514 where the court adhered to a request by both parties that the case be remitted to the AAT despite its concern that the licence to which the review related had expired by effluxion of time. Remitter may be refused where the facts as found by the AAT cannot lead to a result favourable to the applicant when the law is correctly applied to the review of the decision in question: Repatriation Commission v Malady [2010] FCA 798; (2010) 116 ALD 170 at [46]; Yao v Administrative Appeals Tribunal [2011] FCA 11; (2011) 122 ALD 310. [page 403] In Yao’s case, above, in order to reach a conclusion on the facts, the court was prepared to accept evidence pursuant to the power in s 44(8) contradicting an assertion made by the applicant. The court may decline to remit a case even though it finds an error of law to have been made by the AAT if it nonetheless considers that the decision clearly was correct on the material before the AAT: McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 at 295; affd on appeal McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 618; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560; 41 ALD 71 at 80; Harris v Repatriation Commission [2000] FCA 1687; (2000) 62 ALD 161 at [7]; Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1 at [83]; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 at 486; 125 ALD 181 at [76]. However, see the discussion at 19.50. It has also refused to remit where the issues said to be relevant were not raised at the original hearing before the AAT: Bennett v Repatriation Commission (1997) 45 ALD 491 at 498; Federal Commissioner of Taxation v Glennan [1999] FCA 297; (1999) 90 FCR 538 at [83]; Federal Commissioner of Taxation v Softex Industries Pty Ltd [2001] FCA 397; (2001) 107 FCR 111; 191 ALR 724 at [47]. 19.50 A Full Federal Court in Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236; (2003) 132 FCR 523; 77 ALD 518 was divided on the question whether it was possible for only part of a case to be referred back to the Tribunal

for reconsideration or whether the whole matter had to be reconsidered. The majority considered that it was only necessary for there to be reconsideration of that part of the decision in relation to which the Tribunal had made an error and it ordered accordingly. Hill J in dissent thought that it should be left to the reconstituted Tribunal to determine whether matters previously decided, and against which no appeal had been brought, should be reconsidered. While the majority view leads to efficiency in resolution of the issues involved, there is always the possibility that there could have been changes in circumstances that affect the matters previously resolved. The Tribunal is required to reach a decision on the facts as they exist at the time of its decision: see 16.20. There is accordingly a strong argument for the whole case to be referred back for the consideration of the Tribunal with it being made clear that the previous finding was in error on only one aspect of the decision. The court in Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; (2014) 227 FCR 459; 319 ALR 1 at [102] accepted Zoffanies’ case as authority for the power to remit part only of a case to the Tribunal. It nonetheless considered that all the findings were intertwined and that it was preferable for the whole case to be remitted for reconsideration. For an example of the difficulties that can arise where a case must be referred back to the Tribunal for the issues to be resolved but there have been changes in the circumstances since the original decision, see Berringer Blass Wine Estates [page 404] v Geographical Indications Committee Ltd [2002] FCAFC 295; (2002) 125 FCR 155; 70 ALD 27 at [112]. See Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) FCR 554; Repatriation Commission v Holden [2014] FCA 605; (2014) 142 ALD 267 at [84]ff for examples of orders devised by the court when remitting a matter to the Tribunal to meet the circumstances of the particular case. A difficult question arises where it appears to the court that an issue that has not been considered by the AAT might be relevant to the resolution of the application. Can the court refer the case back to the AAT in such a case? Would such an order be appropriate ‘by reason of its decision’? In Commissioner for Superannuation v Miller (1985) 8 FCR 153; 9 ALN N56 Davies and Beaumont JJ

thought such an order could be made while Pincus J held to the contrary. Pincus J’s reasoning is the more persuasive while the majority ruling appears to be the more likely to achieve justice for the applicant. See 13.46 on the form of wording that should be followed in the order of the court when a matter is remitted. See also 19.41 relating to the matters that may be taken into account by the court on an appeal; 2.12–2.13 in relation to the orders the court may make relating to the composition of the Tribunal where a matter has been referred back for rehearing; and 13.46–13.47 on the procedure and role of the Tribunal following referral back of an application after an appeal.

CONSENT ORDERS 19.51 Rule 39.11 of the Federal Court Rules authorises the making of an order by consent in a matter before the court. In a series of cases (using the old Federal Court Rules) involving the allowing of an appeal from, and referral of a matter back to, the former migration review tribunals, the court has said that it will only make a consent order if it is satisfied that an error of law has been made by the tribunal. It is therefore necessary that the error be identified to the court: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323; 59 ALD 71; Xiao v Minister for Immigration and Multicultural Affairs [2001] FCA 459; (2001) 109 FCR 129; (2001) 65 ALD 479. This approach was adopted in relation to an appeal from an AAT decision in Burge v Repatriation Commission [2001] FMCA 74; (2001) 66 ALD 152 and Chief Executive Officer of Customs v Biocontrol Ltd [2006] FCA 107; (2006) 150 FCR 64; 89 ALD 551. The court said that it was incumbent on it to be satisfied that it was appropriate to make the order. Consent by the parties did not mean that the order should be automatically made. In Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253 the same approach was adopted on the basis that the court is exercising judicial power and must therefore be satisfied that there has been an error of law. [page 405]

It is also necessary to identify the error of law so that the court’s order or reasons can bring it to the attention of the Tribunal on remitter: see the strong comments of President Downes J on the importance of the court so acting in Re Allan and Repatriation Commission [2003] AATA 994; (2003) 77 ALD 140.

AWARD OF COSTS ON APPEAL General principles 19.52 The question of the award of costs against an applicant who was successful before the AAT but finds that decision overturned on an appeal poses difficulties. One of the reasons for establishing the AAT was to provide a forum in which an applicant was not exposed to the risk of costs. Many of the applicants before the AAT are indigent; many represent themselves. For them to find themselves before the Federal Court is not something they would normally have contemplated when applying to the AAT. It is appropriate therefore for respondent decision-makers not to seek a costs award where they have secured the overturning of an AAT decision. This apparently is the attitude taken in many cases. Indeed in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 it was noted that the Authority, acting pursuant to its role as a model litigant, had made a contribution towards the respondents’ costs. However, in the commercial jurisdiction, particularly when the parties have been represented, the usual costs rule tends to be applied: Collector of Customs (Qld) v Times Consultants Pty Ltd (1986) 13 FCR 190 at 198; 11 ALD 277 at 284. The philosophical argument against the award of costs was given some credence in Harrigan v Department of Health (1986) 11 ALD 268. There a case was stated to the Federal Court under s 45 of the AAT Act: see 19.58. The ruling of the court favoured the respondent decision-maker. The applicant was ordered to pay the costs only of the principal respondent and not those of a number of parties who had been joined in the proceedings. This approach was taken further in Arnold v Queensland (1987) 13 ALD 195 where the public interest in having the issue in question resolved led to the court declining to order an unsuccessful appellant to pay the respondent government’s costs. An even more striking example is Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41 where the court ordered the successful agency to pay the costs of the

respondent as well as its own. The public interest and mistakes made by the agency were such as to make it unreasonable for the respondent to be expected to bear any costs. See also Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598. However, the general principle will be that the unsuccessful party bears the costs: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229; 188 ALR 143 at [16]. The position is different where it is an unsuccessful applicant before the AAT who appeals to the Federal Court. Costs will then usually follow the outcome and [page 406] if the applicant is unsuccessful, he or she will have to pay the respondent decision-maker’s costs: see, for example, Sheikh v Australian Postal Corporation [2006] FCA 646; (2006) 90 ALD 331; Theo v Department of Families, Community Services and Indigenous Affairs [2007] FCA 171. However, this is not a hard and fast rule. In Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; 23 ALD 257 at 269 a Full Federal Court, having observed that the AAT could not award costs, said: … it seems to us to be undesirable that persons who unsuccessfully challenge a decision of the Tribunal should automatically be visited with a costs order in this court. The court should consider the matter of costs, bearing in mind the result of the appeal but also taking into account the reasonableness of the applicant in bringing that appeal and the general importance of the clarification of the law for such an authority as the respondent. This view was reiterated by Full Courts in Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587; 58 ALD 256 and Hussain v Minister for Foreign Affairs and Trade [2008] FCAFC 128; (2008) 169 FCR 241; 103 ALD 66 at [182]. In Hussain the court noted that the appeal was not without any reasonable prospect of success and that the court had arrived at its conclusion only after extensively reviewing the authorities and carefully considering each of the competing contentions. Some of the contentions were finely balanced. The law

may have been clarified in the course of deciding the case. This combination of factors led it to conclude that there should be no order as to costs. By way of contrast see the decision and detailed discussion in Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200; (2008) 253 ALR 52 where a Full Court declined to refuse a costs order in favour of the successful respondent despite the applicant’s claim that he was acting in the public interest. The applicant’s claim under the Freedom of Information Act 1982 (Cth) had been carefully dealt with by the AAT and he was aware of the possibility of a costs order being made against him when he chose to appeal that decision. A like approach was followed in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; (2011) 280 ALR 91; Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; (2012) 132 ALD 475 (rejecting a claim that the application for review was a ‘test case’). 19.53 A court could make an order for payment of indemnity costs as the discretion under s 43 of the Federal Court Act to make a costs order is unconstrained. Such an order was sought but refused in Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444. The claim was based on the fact that the applicant had been clearly advised that his appeal must fail but had persisted despite the warning. In declining to make the order sought, the court noted that the applicant was self-represented and that there were some technical issues to which the appeal gave rise. [page 407] For the position in regard to costs where an application is discontinued, see El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474; (2014) 141 ALD 611 at [17] where the standard approach is described as being that the party withdrawing bears all costs. However, note that, in that case, the applicant was awarded part of his costs notwithstanding the withdrawal of his claim because the conduct of the respondent was such that he was obliged to commence action to protect his rights: at [29]. The operation of Federal Court Rule 33.30(4) must not be overlooked. If the respondent has not filed a notice under r 33.30(1) objecting to the competency of an appeal (see 19.23) and the appeal is dismissed as not competent, the respondent is not entitled to any costs of the appeal.

No order can be made by a court on an appeal in respect of costs incurred in the tribunal from whose decision the appeal is brought nor can an award be made for any expenses incurred in respect of the administrative decision against which the application to the tribunal was made. Costs may only be awarded in respect of the ‘proceedings’ before the court: Dutton v Republic of South Africa [1999] FCA 498; (1999) 162 ALR 625; NAOX v Minister for Immigration and Citizenship (No 2) [2009] FCA 1264; (2009) 111 ALD 602. An applicant in person is not entitled to costs in so far as they are referrable to his or her own time, including lost income: Von Reisner v Commonwealth (No 2) [2009] FCAFC 172; (2009) 262 ALR 430. However, the applicant is entitled to disbursements: Neeson v Chief Executive Officer of Centrelink [2006] FCA 1107; (2006) 154 FCR 489; 92 ALD 77 at [24].

Federal Proceedings (Costs) Act 19.54 The Federal Proceedings (Costs) Act 1981 (Cth) applies generally in relation to appeals to the Federal Court from decisions of the AAT. That Act can be invoked if at any stage of an appeal the court is obliged to determine a question of law that is contested before it: Jenkins v Gleeson (1983) 46 ALR 207. However, in Kunz v Federal Commissioner of Taxation (No 2) (1996) 62 FCR 345; 42 ALD 5 it was held that the power under s 8(1) of that Act to grant a costs certificate stating that it was appropriate for the Attorney-General to pay a party’s costs of a retrial after an appeal was not applicable to a rehearing of a matter by administrative review bodies. For an example of the application of the Act, see Minister for Human Services and Health v Haddad (1995) 39 ALD 557 and note that in that case it was held that the person seeking the certificate bears the onus of showing why the certificate should be granted. It does not flow as a matter of course as a result of the person showing that the AAT had made an error of law. Nor is there any presumption that an AAT applicant is entitled to a certificate; it is not an alternative form of legal aid: Repatriation Commission v Cornelius [2002] FCA 930; (2002) 69 ALD 250. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426; Comcare v Hill [1999] FCA 488; (1999) 56 ALD 487 at [23]–[28]; Pascoe v Australian Postal Corporation [2004] [page 408]

FCAFC 4; (2004) 77 ALD 464 at [24]; Repatriation Commission v Sergeant [2007] FCA 1408; (2007) 97 ALD 391 at [15]–[24]; Civil Aviation Safety Authority v Central Aviation Pty Ltd (No 2) [2009] FCAFC 137; (2009) 179 FCR 554; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29; (2012) 200 FCR 464. However, the court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially. While there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 at [4] Finn J said: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as [the respondent] bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act: see [Repatriation Commission v Cornelius, above] at [11]. I would emphasise that in granting a certificate I do take account of [the respondent’s] status as a war veteran though I do not consider it to be of decisive significance. The court in Repatriation Commission v Hill [2009] FCA 270; (2009) 108 ALD 131 at [82] citing Milenz stated that the same considerations applied in the case before it. The issue before the court concerned the interpretation by the Tribunal of legislation and the Commission relied on arguments that had not been raised before the Tribunal. The correction of the Tribunal’s reasoning provided sufficient justification for the issue of a certificate. In Minister for Immigration and Citizenship v Brar (No 2) [2012] FCAFC 66; (2012) 127 ALD 450 the court gave as reasons for its granting a certificate, first, that there were no matters disentitling the respondent from being given assistance and, second, that the issues raised in the appeal were of significance. See also Civil Aviation Safety Authority v Caper Pty Ltd (No 2) [2012] FCA 1305; (2012) 132 ALD 475.

EFFECT OF INSTITUTION OF APPEAL: S 44A

19.55 The institution of an appeal to the Federal Court does not affect the operation of the decision of the AAT or prevent the taking of action to implement that decision. However, the court or a judge may suspend the operation of the decision or stay any proceedings under the decision: s 44A; Federal Court Rules r 33.17. The section cannot be invoked unless the decision to be stayed is appealable to the court: Director-General of Social Services v Chaney (1980) 3 ALD 161; 31 ALR 571. The powers of the court parallel those of the AAT: see 14.1. An application for a stay order can, in urgent cases, be made ex parte to a judge in chambers: Federal Court Rules r 33.17(b). [page 409] There have been very few reported cases on the operation of this section. In Commissioner for Superannuation v Hastings (1986) 10 ALN N224, Northrop J ordered that a lump sum payment in dispute should be paid into court pending an appeal. Evidence was led that, if the amount were paid over and the appeal were successful, the chances of recovery were slight. However, his Honour did indicate that if the appeal were dismissed, interest would be payable on the lump sum. An application for a stay of payment was refused in Australian Trade Commission v W A Meat Exports Pty Ltd (No 1) (1987) 14 ALD 128. The basis for the claim was that if the appeal were upheld and the respondent were obliged to repay the money, it would be paid into consolidated revenue and would not be available for allocation as an export grant. The court did not regard this as an adequate reason for keeping the respondent out of its funds. As a general test the court observed that the question to be addressed was whether the effectiveness of the hearing and determination of the appeal would be advanced by making a stay order. The court has an inherent jurisdiction to stay or suspend the operation of an order made by the court itself on review of an AAT decision pending an appeal. The power to so act is discretionary. For examples of consideration of this power see Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458; (2011) 194 FCR 1; 122 ALD 97; Kolya v Tax Practitioners Board [2012] FCA 492; (2012) 128 ALD 86. In the latter case, it was pointed out that merely granting an order staying the lower court judgment would not assist the applicant as it would

leave the AAT’s order in force. If the relief sought were to be achieved, it would be necessary for an interlocutory injunction to be crafted and this required the applicant to satisfy the requirements for the making of such an order.

MIGRATION APPEALS Decisions excluded from appeal 19.56 As noted previously, s 43C of the AAT Act provides that the appeal provisions included in the AAT Act that are discussed above do not apply to privative and purported privative clause decisions under the Migration Act. These types of decisions are defined in ss 474 and 5E of the Migration Act. The appeal provisions are also not applicable to ‘AAT Act migration decisions’ which are defined in s 474A of the Migration Act. However, these relate to AAT management decisions and are unlikely to be the subject of an appeal. They are not considered further here.

Appeals against Migration and Refugee Division decisions 19.57 Appeals against decisions made in the Migration and Refugee Division will be subject to the appeals regime that applied to the Migration Review Tribunal and the Refugee Review Tribunal. This has been the subject of much dispute and uncertainty over many years. For a description of the various attempts to limit the [page 410] review powers of the courts acting under the AD(JR) Act, the Judiciary Act and the Constitution, see Alan Freckelton, Administrative Decision-Making in Australian Migration Law, Australian National University eText, 2015, ch 6. As Freckelton describes, what has emerged is that, notwithstanding the numerous attempts to curtail the courts’ intervention, where a review body has made a jurisdictional error, the provisions seeking to exclude review will have no

practical effect. Only errors of law not going to jurisdiction will be excluded from review by the exclusions. Further, the courts have broadened the categories of errors that will be described as ‘jurisdictional’. The principal authority is Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; 72 ALD 1. See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; 62 ALD 225; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651; 95 ALD 1. This situation has led Freckelton to question whether there is any point in retaining the special provisions in the Migration Act: see Alan Freckelton, ‘Effect of Privative Clauses on Judicial Review of Immigration Decisions’ (2015) 22 Australian Journal of Administrative Law 87. The upshot of this is that while it might not be open to review decisions of the Migration and Refugee Division of the AAT under the AAT Act, it is possible to review them for jurisdictional error by applications brought under the AD(JR) Act, the Judiciary Act and the Constitution. See Australian Administrative Law (LexisNexis), chapters 3 and 4 for a discussion of these methods of review of decisions. Somewhat ironically, as is pointed out at 19.61, the basis for review under these Acts is probably wider than the question of law ground provided by the AAT Act. Further, as review is not possible under that Act, the issue alluded to in 19.61 of the AAT Act being the only available mechanism for review of AAT decisions does not arise.

REFERENCE OF QUESTION OF LAW TO COURT: S 45 19.58 A question of law arising in a proceeding before the AAT (other than a decision that is referred to in s 43C) may be referred to the Federal Court by the AAT of its own motion or at the request of a party. A question of law may not be referred without the concurrence of the President. When determining a question of law referred to it, the Federal Court may be constituted by a single judge or, if the Chief Justice after consultation with the President of the AAT considers it appropriate, by a Full Court. Where a question of law has been referred to the court, the AAT is not to give a decision to which the question is relevant while the reference is pending or proceed in a manner or make a decision that is inconsistent with the opinion of

the court on the question. The AAT has a discretion whether or not to refer a matter to the court and a party cannot insist on a referral: Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761. [page 411] There have been references to the court from time to time: see, for example, Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148; 20 ALD 607; Blunn v Cleaver (1993) 47 FCR 111; 31 ALD 28; Naval, Military and Air Force Club of SA (Inc) v Federal Commissioner of Taxation (1994) 51 FCR 154; 32 ALD 385; Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; (2005) 148 FCR 427; 89 ALD 1. The referral process is discussed in Meilak v Commissioner for Superannuation (1992) 28 FCR 492; 22 ALD 32. The court there said that if a matter is referred to the court it must be accompanied by a proper statement of facts in order that the court might make an informed decision on the issue referred to it. In the absence of such a statement the court may take evidence itself. Care must be taken also with the form of the questions asked. In Meilak the court declined to answer the questions on the basis that they were expressed too widely. See also Hepples v Federal Commissioner of Taxation (No 2) (1992) 173 CLR 492; 104 ALR 616 where the High Court on appeal from a ruling of the Federal Court on a referral of a question of law was troubled by what it perceived to be an ambiguity in the question asked. The fact that the question for referral is not properly formulated will result in the AAT declining to refer the matter to the court: Re Davina, above; Re Dunn and Department of Defence [2004] AATA 1040; (2004) 84 ALD 419 at [105]–[110]. Because of the need for all the issues to be properly identified, it is unlikely that a question will be referred at the commencement of the hearing: Re Davina, above. The AAT will need to be satisfied that the question is essential to the resolution of the application before it if it is to be persuaded to refer a question for a ruling: Re Broken Hill Television Ltd and Spencer Gulf Telecasters Ltd and Australian Broadcasting Tribunal (1989) 19 ALD 528; Re Davina, above. The issue must also be one of such importance that it is suitable to be raised with the Federal Court. In Re Dunn, above, the Tribunal rejected the application for

referral saying that the matter was a procedural point and there was authority on the point even though it did not cover all the issues. The mere fact that the parties disagree over the law or that there have been differing interpretations by the AAT is not sufficient of itself to warrant the referral of a question: Re Davina, above. Nor is it a proper basis for the referral of a question that the Tribunal considers that the law as stated in a decision that is binding on the Tribunal is wrong: Re The Taxpayer and the Commissioner of Taxation [2006] AATA 429; (2006) 90 ALD 412. The Tribunal is obliged to apply the law as stated by the courts. In Re Lower and Comcare [2003] AATA 540; (2003) 74 ALD 547 DP Forgie, after reviewing authorities, put it (at [30]): … there are two sorts of issues that may be worthy of referral. One is an issue which the Tribunal has jurisdiction to consider but is of such complexity that it transcends the normal range of issues considered by the Tribunal. Such an issue might be a constitutional issue. … The other sort of issue concerns questions that precede the existence of the Tribunal’s jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact. [page 412] The Tribunal in Re Walsh and Commissioner of Taxation [2012] AATA 451; (2012) 57 AAR 421 rejected the respondent’s request to refer certain constitutional issues to the court. It considered that the delay that would result would be unfair to the applicants and was not compatible with the Tribunal’s function as set out in s 2A of the AAT Act. It noted that there were recent decisions of the High Court that provided guidance to the Tribunal in arriving at its decision. It said that if its judgment on the applications was considered to be wrong, the matter could be appealed to the court under s 44 of the AAT Act. Costs will usually follow the event although Blunn’s case, above, is an example of no costs being awarded on the basis that there was a public interest in the ruling.

APPEAL TO HIGH COURT

19.59 By virtue of s 33 of the Federal Court Act, an appeal lies to the High Court from a decision of the Federal Court on appeal from the AAT if leave is granted by the High Court. In Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139; 4 ALD 163 the High Court revoked leave to appeal that had been granted on the basis that the jurisdiction of the AAT in such cases was advisory only. The court considered that it should not be expected to rule on a decision that the Minister might choose to ignore. This is somewhat curious reasoning because the court was only being asked to rule on a question of law, not on the merits of the decision. The Minister would have been most unlikely to disregard the legal aspects of the decision — and, indeed, if he had proposed to act contrary to law, he would have quickly been called to account by the Federal Court or by the High Court itself. The High Court will also refuse to grant leave if the order of the Federal Court does not resolve the issue between the parties. So if, following a ruling of the Federal Court, there are still factual issues to be resolved by the AAT, leave to appeal will be refused: Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421; 14 ALD 133. While cases occasionally reach the High Court from the AAT (see, for example, Read v Commonwealth (1988) 167 CLR 57; 15 ALD 261; Harris v DirectorGeneral of Social Security (1985) 7 ALD 277; 57 ALR 729; Hepples v Federal Commissioner of Taxation (No 2) (1992) 173 CLR 492; 104 ALR 616; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; 43 ALD 193), in general it seems that the court is reluctant to grant leave to appeal from a decision of the Federal Court. In Board of Control of Michigan Technological University v Deputy Commissioner of Patents (1982) 40 ALR 577 in refusing leave, a majority of the High Court said that the interposition of the AAT and the Federal Court between the Commissioner and the High Court warranted the refusal of leave to appeal in a case involving administrative procedures unless the case exhibited a special quality. This approach could have been stated as a general proposition applicable to all decision-makers. It would defeat the intention that the [page 413] AAT provide a cheap and informal means of resolution of disputes if applicants could find themselves before the High Court on any except the rarest occasion.

REVIEW UNDER AD(JR) ACT, JUDICIARY ACT AD(JR) Act 19.60 The AD(JR) Act permits review to be sought of decisions of an administrative character made under an enactment. Decisions of the AAT fall within this description. Can they therefore be challenged under the AD(JR) Act? In Bogaards v McMahon (1988) 15 ALD 313; 80 ALR 342 at 347, Pincus J referred to this possibility but noted the counter argument that ss 44 and 45 of the AAT Act were intended to provide the only mechanism for an appeal. His Honour felt it unnecessary to rule on these countervailing arguments. He was, however, prepared to make an order under s 39B of the Judiciary Act prohibiting the AAT from dealing with an application because the AAT was functus officio. In Australian Postal Commission v Hayes (1989) 23 FCR 320; 18 ALD 135, Wilcox J made no reference to the doubts referred to above and proceeded to hear and set aside a procedural ruling of the AAT on an application brought under the AD(JR) Act. His Honour referred to Lamb v Moss (1983) 5 ALD 446 (see Australian Administrative Law (LexisNexis) at [324]) and indicated that, as with committal proceedings, the court should be slow to interfere in the course of AAT proceedings. Nonetheless, the court had power to do so in an appropriate case. Such cases would be where the resolution by the court of the point raised could resolve the issue before the AAT and where a refusal to intervene would produce an irreversible result. This view was reiterated in Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 463–5; 34 ALD 239 at 249–50. The challenge in that case was to the issue of summonses by the AAT. The court was prepared to review the AAT’s order on the basis that to answer the summonses would require the disclosure of commercially sensitive information. It said that interference in proceedings part heard could more readily be justified in non-criminal proceedings but that the present case was on the border line. See also Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 where a challenge to a rejection of a claim for legal professional privilege preventing the production of documents was permitted on the basis that to allow the ruling to stand would be conclusive of the issue.

A different approach was taken by Spender J in Federal Commissioner of Taxation v Beddoe (1996) 68 FCR 446; 44 ALD 561. His Honour ruled that directions orders under s 33 of the AAT Act relating to filing of answers to questions coupled with a confidentiality order were neither ‘decisions’ nor ‘conduct engaged in’ within the meaning of the AD(JR) Act and were not reviewable. Even if he were wrong in so regarding the actions of the Tribunal, he would have exercised the discretion under s 16 of the AD(JR) Act to decline relief on the basis that it was inappropriate to [page 414] interfere with the conduct of the hearing before the Tribunal. Like views were expressed in Geographical Indications Committee v O’Connor [2000] FCA 1877; (2000) 64 ALD 325 where the court emphasised the desirability of avoiding fragmentation of proceedings by allowing challenges to interlocutory decisions. See also VAI v Forgie [2003] FCA 87; (2003) 72 ALD 800 (refusal to make an order seeking further and better particulars); but cf the VBN case above where the argument on fragmentation was considered but rejected in the circumstances of the case. 19.61 These decisions were concerned with review of rulings that would otherwise have not been appealable. A number of decisions have gone further and indicated that where an appeal is available under s 44, that should be the mechanism used, not an AD(JR) Act or Judiciary Act application: Szajntop v Gerber (1992) 28 ALD 187; Tuite v Allen (1993) 40 FCR 483; 29 ALD 647; Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697; Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483; [1998] FCA 1088. Stone J in Alyssa Treasury Services Ltd v Commissioner of Taxation [2010] FCA 967; (2010) 118 ALD 494 at [10] reached such a conclusion in reliance upon s 37M of the Federal Court Act which, she noted, embraces the principle that ‘civil practice and procedure provisions have an overarching purpose of facilitating the just resolution of disputes, both according to law and as quickly, inexpensively, and efficiently as possible’. This purpose would best be achieved in the instant case by requiring any application for review to be brought under s 44. See also Military Rehabilitation and Compensation Commission v Administrative

Appeals Tribunal [2005] FCA 442; (2005) 216 ALR 181 where the court drew a distinction between its jurisdiction to review a finding in the AAT and its discretion to decline to deal with the matter under the Judiciary Act. See further 19.13. These decisions have been influenced by s 10(2)(b)(ii) of the AD(JR) Act which vests a discretion in the court to decline an application for review where ‘adequate provision’ is made by another law for review of the decision in question. Section 44 has been seen as providing such a provision. However, in some circumstances it may be that the basis for judicial review under the AD(JR) Act may be wider than that available under s 44 where review is available solely on ‘a question of law’. For example, the ‘no evidence’ ground in s 5(1)(h) of the AD(JR) Act exposes factual issues to review by the court: cf the comments at 19.40. The error of law ground in s 5(1)(f) may also permit a wider range of issues to be considered than does a ‘question of law’. See generally the discussion in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222; 69 ALD 257 at [49]ff; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 73 ALD 1 at [53]ff; Australian Administrative Law (LexisNexis) at [351]– [353]. On the exercise of the discretion in s 10(2)(b)(ii) of the AD(JR) Act see Cremona v Administrative Appeals Tribunal [2015] FCAFC 72 where the approach espoused in [page 415] a number of the earlier cases referred to above indicating that it was necessary to show ‘special circumstances’ to justify invocation of the AD(JR) Act where s 44 was available was rejected. The discretion is unconfined. When considering which method of review to pursue, a party must be sure that the AAT has considered all aspects of the decision sought to be reviewed. An appeal against a decision of the AAT under s 44 can only concern itself with matters dealt with by the AAT. If it is wished to raise matters that relate to the original decision but which were not before the AAT, the action must be taken

under the AD(JR) Act: cf Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 61 FCR 314; 39 ALD 481.

Judiciary Act 19.62 The limitations that may be encountered under the AD(JR) Act flowing from the need to identify a ‘decision’ are not relevant to an action under s 39B of the Judiciary Act (see Australian Administrative Law (LexisNexis), ch 4). Actions challenging a ruling of the AAT have been brought under that provision: Australian Postal Commission v Hayes (1989) 23 FCR 320; 18 ALD 135; National Registration Authority v Barnett (1998) 83 FCR 222; 154 ALR 681; Minister for Immigration and Citizenship v Hassani [2007] FCA 436; (2007) 94 ALD 378 (where the action of the AAT was not a ‘decision’ for the purposes of either s 44 of the AAT Act or the AD(JR) Act but was held reviewable under s 39B); Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; 107 ALD 253. However, the approach advanced under the AD(JR) Act by Spender J in Federal Commissioner of Taxation v Beddoe (1996) 68 FCR 446; 44 ALD 561 of using the court’s discretion to refuse the order sought was followed in Geographical Indications Committee v O’Connor [2000] FCA 1877; (2000) 64 ALD 325 and it can be expected that Judiciary Act applications will not be permitted to tie up AAT hearings. See also Commissioner of Police, New South Wales v Gray [2009] NSWCA 49; (2009) 74 NSWLR 1 at [128] where a similar approach was taken in regard to the review of decisions of the New South Wales Administrative Decisions Tribunal. It should be recalled that the AD(JR) Act and s 39B of the Judiciary Act are the only means to challenge an order of the AAT under s 31 of the AAT Act joining a party to the proceedings: see 5.3.

FRAUD ON TRIBUNAL 19.63 Fraudulent action on the part of a party to an application to a tribunal or of a third party may be such as to disable the tribunal ‘from the due discharge of its imperative statutory functions with respect to the conduct of the review’: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) ALD 510 at [51]. In such a case the review remedy will be sought by invoking the Judiciary Act

[page 416] SZFDE was concerned with the Migration Review Tribunal but the High Court’s analysis of the issue is applicable also to the AAT. SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73; 138 ALD 437 was concerned with fraud practised on the Federal Circuit Court. However, the Full Federal Court took the High Court’s judgment in SZFDE, above, as its basis for dealing with the matter. At [51] it set out the effect of that judgment in a series of propositions to which regard should be paid if the issue arises. It is to be noted that both courts draw a distinction between the meaning and effect of fraud in private and public law with the term having wider implications in the public law arena.

COLLATERAL ATTACK 19.64 The fact that s 10 of the AD(JR) Act recognises the possibility of an action being brought under that Act to review a decision of the AAT was referred to in Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434; 56 ALD 338 at [26]–[27] as being an exception to a general rule that it is not possible to attack a decision of the AAT collaterally. Bringing an action to recover a debt which involved challenging a finding of the AAT was not permissible. The only means for reviewing an AAT decision are those discussed above.

[page 417]

CHAPTER 20 MISCELLANEOUS MATTERS: AAT ADVISORY OPINIONS BY AAT: S 59 20.1 Section 59 of the Administrative Appeals Tribunal Act 1975 (AAT Act) authorises the Administrative Appeals Tribunal (AAT) to give an advisory opinion on a matter or question referred to it in accordance with an enactment. For the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate. The only enactment which provides for this to be done at present is s 11 of the Ombudsman Act 1976 (Cth). The AAT exercised the power given by this section in Re Reference under section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte DirectorGeneral of Social Services (1979) 2 ALD 86.

PROTECTION OF AAT MEMBERS, OFFICERS, ETC: S 60 20.2 Members, alternative dispute resolution (ADR) practitioners and officers of the AAT, barristers, solicitors and witnesses appearing before the AAT are given the same protection as a Justice, a barrister and a witness, as applicable, in the High Court: AAT Act s 60. Section 63 of the Act makes general provision for the protection of AAT members and preservation of hearings: see 20.4.

FAILURE TO COMPLY WITH SUMMONS; REFUSAL TO BE SWORN OR ANSWER QUESTIONS: SS 61, 62, 62A, 62B 20.3 These sections of the AAT Act provide variously that it is an offence for a person to fail to comply with a summons to give evidence or produce a document if required to do so under s 40A of the AAT Act or to refuse to be sworn or answer questions. An exception applies if to do so might incriminate the person. [page 418] In Re Gani and Comcare (1991) 24 ALD 415 it was noted that the papers relating to the failure of a medical practitioner to comply with a summons to attend and give evidence were referred to the President for further action. In Re Spagnolo and Minister for Immigration and Ethnic Affairs (1980) 2 ALN 1038 the AAT gave a direction under s 62 to the applicant who nonetheless declined to answer the question put. As far as is known, no action was taken as a result of this refusal. It is interesting to note that s 62 refers to ‘a person appearing as a witness before the AAT’. An applicant giving evidence was considered to fall within this description. Section 62A of the AAT Act makes it an offence knowingly to give false or misleading evidence to the AAT. Section 62B applies these various proscriptions to directions hearings and ADR processes conducted by the AAT. Sections 370, 371, 432 and 433 make like provision in regard to reviews under the Migration Act 1958 (Cth) (Migration Act).

CONTEMPT OF AAT: S 63 20.4 Section 63 of the AAT Act penalises two types of conduct as constituting contempt of the AAT. Section 63(1) refers to engaging in conduct

that obstructs or hinders the Tribunal or a member in the performance of their functions. Section 63(2) makes it an offence if a person’s conduct would, if the AAT were a court of record, constitute a contempt of that court. Northrop J in Saunders v Federal Commissioner of Taxation (1988) 15 ALD 353 said that the nature and functions of the AAT had to be taken into account when considering conduct alleged to constitute contempt. It would thus appear that actions that could constitute contempt of a court may, notwithstanding the broad terminology of the section, not be an offence when applied to the Tribunal. In that case, it was agreed by the court that the use by the commissioner of coercive powers to obtain information from a taxpayer could have constituted contempt if the intention was to use that information in criminal proceedings against the taxpayer. However, the commissioner was entitled to rely upon the fact that s 37(1)(b) of the AAT Act requires all relevant material to be lodged with the AAT. The coercive power could be used to obtain that material, even though it might be prejudicial to the taxpayer. The approach adopted in Saunders’ case was followed in Watson v Federal Commissioner of Taxation [1999] FCA 1796; (1999) 169 ALR 213 at [31] and Re Confidential and Commissioner of Taxation [2012] AATA 20; (2012) 127 ALD 353 at [123].

CONFIDENTIAL INFORMATION NOT TO BE DISCLOSED: SS 66, 66A 20.5 A person who is or has been a member, an officer or a staff member of the Tribunal or a person engaged to provide services to the Tribunal cannot be required to disclose information or produce a document to a court if the document or [page 419] information was obtained in the course of their duties. An exception to this

prohibition applies if the production or disclosure is necessary to carry into effect the AAT Act or another Act conferring powers on the AAT. Section 66(2) provides a further specific prohibition on production or disclosure of information to the Parliament if it relates to a Part 7-reviewable decision. Perhaps more significantly, under s 66A of the AAT Act if another Act forbids disclosure and a Tribunal member or officer acquires information the disclosure of which is forbidden by that other Act, the latter Act’s confidentiality provision applies to the AAT member or officer.

FEES FOR WITNESSES: S 67, REGS 13–15 20.6 A person summoned to appear before the AAT is entitled to be paid fees, and allowances for expenses in accordance with Administrative Appeals Tribunal Regulation 2015 (Cth) regs 13–15. Prior to an amendment of s 67 in 2005, the entitlement to payment of expenses was limited to a person summoned to appear as a witness. If a summons required only the production of documents, no expenses could be ordered to be paid. It is now open to the AAT to order the payment of expenses incurred by any person to whom a summons is issued. This can include a person summoned at the request of the decision-maker. Thus an order can be made for the payment of the expenses involved, for example, in the location and copying of documents required to be produced to the Tribunal. In the ordinary course of events the fees are to be paid by the party who requested that the witness be summoned, but s 67(3) and reg 14 give the AAT a discretion to order that the fees be paid in whole or in part by the Commonwealth. The exercise of this power was discussed in Re Sullivan and Secretary, Department of Transport (No 3) (1979) 2 ALD 502. Two significant points emerged from that discussion. First, it is only if a witness is summoned by the AAT that s 67 has any operation. If a witness appears voluntarily, even though at the request of a party, no order for payment of fees can be made. Second, the discretion to order that the Commonwealth pay the fees of a witness summoned by another party should not be lightly made. The Tribunal said (at 506):

… the discretion available to this tribunal is no doubt less confined than that exercised by a court of law, less governed by precedence in other instances and a discretion to be exercised having regard to the function which the tribunal performs. Nevertheless, if an order is to be made for the payment of witness’ fees and expenses by the Commonwealth of Australia, there must be a sound reason for it. It gave as an instance of such a reason a decision-maker declining to admit a fact and it being necessary to call a witness to establish it. Sullivan’s case was applied in Re Smedley and Director-General of Social Security (1983) 5 ALD 387 to refuse to order the payment of witness fees where the applicant was legally aided and the fees would [page 420] be payable out of legal aid funds. The additional point was made that it was not a sufficient basis to make such an order that the applicant had been successful in the application for review. The issue was also discussed in Re Legal and General Life of Australia Ltd and Minister for Territories and Local Government (1983) 5 ALD 476 where the Tribunal pointed to the valuable analysis of the law relating to witnesses’ expenses to be found in Bank of New South Wales v Withers (1981) 35 ALR 21. In the Legal and General case, above, claims for collating of materials, attendance and preparation of calculations of land values, done at the request of the AAT, were all disallowed. The general cautionary notes sounded by the AAT in the foregoing cases have been followed in other decisions on the award of fees and expenses — generally by refusing such claims. In Re Ricci and Director-General of Social Services (1982) 4 ALN N73 a claim was refused because the Tribunal was satisfied that the applicant was able to pay the witnesses’ fees but was simply unwilling to do so. In Re Blyth and Repatriation Commission (1982) 4 ALN N147 and Re O’Brien and Repatriation Commission (1983) 5 ALN N213 claims for payments of medical witnesses were refused. A case in which a more generous attitude was taken is Re Mullin and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N550. There the fees and expenses of two persons who were giving evidence relating to the applicant’s wife’s health were allowed. The evidence was crucial to the AAT’s decision to recommend the revocation of the deportation order. Also allowed,

but with considerable doubt, were the expenses of a character witness for the applicant. An application can be made for an order under s 67 notwithstanding the fact that the AAT has disposed of the main proceedings: Re Smedley and DirectorGeneral of Social Security, above.

MANNER OF SERVICE: SS 67A, 68, REGS 16–18 20.7 Section 67A of the Act provides that notices that are required or permitted by the Act to be given to a decision-maker may be given to the secretary of the relevant department. Section 68 specifies the manner in which documents, etc, may be given to a person. Regulation 17 expands on the Act in some detail and the Practice Direction Giving Documents or Things to the AAT adds further detail that should be checked where relevant, particularly if personal service is undertaken. The Migration Act contains detailed provisions relating to service of documents relevant to review of decisions under that Act. These provisions, together with the Practice Direction, complement the service requirements referred to above for proceedings in the Migration and Refugee Division. Clause 3.3 of the Practice Direction makes special provision for applications in the Social Services and Child Support Division. [page 421]

LEGAL OR FINANCIAL ASSISTANCE: S 69 20.8 An applicant or intending applicant or a person who is a party to a proceeding (other than in the Migration and Refugee Division or the Social Services and Child Support Division) may apply to the Attorney-General for legal or financial assistance to enable them to bring or take part in the

proceeding. Such an application may be made by writing to the Secretary, Attorney-General’s Department, Canberra, ACT 2600. This provision does not prevent a person from applying for legal aid. For comments on the operation of the section, see Re Whiteford and Commissioner for Superannuation (1987) 14 ALD 321 at 330; Applicant S214 of 2002 v Attorney-General (Cth) [2004] FCA 1635; (2004) 40 AAR 155. Reference might also be made to Federal Court Rules, r 4.12 which reads: Referral for legal assistance (1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9. (2) When making a referral under subrule (1), the Court may take the following matters into account: (a) the means of the party; (b) the capacity of the party to otherwise obtain legal assistance; (c) the nature and complexity of the proceeding; (d) any other matters the Court considers appropriate. (3) The referral certificate may state the kind of legal assistance for which the party has been referred. (4) The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer. For an example of the operation of this rule, see SZQZR v Minister for Immigration and Citizenship [2013] FCA 69; (2013) 133 ALD 355 at [46].

[page 423]

APPENDICES Appendix 1 — Extracts from Administrative Appeals Tribunal Act 1975 (Cth) Appendix 2 — Extracts from Administrative Appeals Tribunal Regulation 2015 (Cth) Appendix 3 — Extracts from Migration Act 1958 (Cth)

[page 425]

APPENDIX 1 EXTRACTS FROM ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) Part I—Preliminary 1

Short title

2

Commencement

2A

Tribunal’s objective

3

Interpretation

4

Extension to external Territories

Part II—Establishment of the Administrative Appeals Tribunal Division 1—Establishment of Tribunal 5

Establishment of Tribunal

5A

Membership

Division 2—Members of Tribunal 6

Appointment of members of Tribunal

Part III—Organisation of the Tribunal Division 1—Divisions of the Tribunal

Subdivision A—Divisions of the Tribunal 17A

Divisions of the Tribunal

17B

Allocation of business to Divisions

Subdivision B—Assignment of members to Divisions 17C

Assignment of members to Divisions

17CA Assignment to Freedom of Information Division 17D

Assignment to Migration and Refugee Division

17E

Assignment to National Disability Insurance Scheme Division

17F

Assignment to Security Division

17G

Assignment to Social Services and Child Support Division [page 426]

17H

Assignment to Taxation and Commercial Division

17J

Validity

Subdivision C—Division heads and Deputy Division heads 17K

Division heads

17L

Deputy Division heads

Division 2—Arrangement of business of Tribunal 18A

Arrangement of business

18B

President’s directions—arrangement of business

18C

Sittings of Tribunal

Division 3—Constitution of Tribunal Subdivision A—General 19A

President’s directions—constitution

19B

Constitution

19C

Constitution for review of taxing of costs

19D

Reconstitution

Subdivision B—Security Division 19E

Constitution of Security Division

19F

Constitution of Security Division for proceedings to review certain Archives decisions

Part IIIA—Management of the Tribunal Division 1—Management responsibilities of President and Registrar 24A

Management of administrative affairs of Tribunal

24B

Registrar of the Tribunal

Part IV—Reviews by the Tribunal of decisions Division 1—Applications for review of decisions Division 1A—Scope of operation of this Part 24Z

Scope of operation of this Part

25

Tribunal may review certain decisions

26

Restriction on powers of decision-maker after application for review is made

27

Persons who may apply to Tribunal

27AA Applications to Tribunal under Australian Security Intelligence Organisation Act 27A

Notice of decision and review rights to be given

27B

Review—Code of Practice

28

Person affected by decision may obtain reasons for decision

29

Manner of applying for review

29AA Oral applications 29AB Insufficient statement of reasons for application

29AC Notice of application 29B

Notice of application—review of security assessment [page 427]

Division 2—Parties and procedure 30

Parties to proceeding before Tribunal

30A

Intervention by Attorney-General

31

Tribunal to determine persons whose interests are affected by decision

32

Representation before Tribunal

33

Procedure of Tribunal

33A

Participation by telephone etc

Division 3—Alternative dispute resolution processes 34

Scope of Division

34A

Referral for alternative dispute resolution process

34D

Agreement about the terms of a decision etc

34E

Evidence not admissible

34F

Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal

34H

Engagement of persons to conduct alternative dispute resolution processes

Division 4—Hearings and evidence 34J

Circumstances in which hearing may be dispensed with

35

Public hearings and orders for private hearings, nonpublication and non-disclosure

35AA Orders for non-publication and non-disclosure—certain Security Division proceedings

36

Disclosure not required: Attorney-General’s public interest certificate

36A

Answering questions where Attorney-General intervenes on public interest grounds

36B

Disclosure not required: State Attorney-General’s public interest certificate

36C

Answering questions where State Attorney-General intervenes on public interest grounds

36D

Public interest questions under sections 36, 36A and 36C

37

Lodging of material documents with Tribunal

38

Power of Tribunal to obtain additional statements

38AA Ongoing requirement for lodging material documents with Tribunal 38A

Director-General of Security to lodge certain material with Tribunal

39

Submissions—Divisions other than Security Division and Social Services and Child Support Division [page 428]

39AA Submissions—Social Services and Child Support Division 39A

Procedure in Security Division review of security assessment

39B

Certain documents and information not to be disclosed in Security Division review of security assessment

Division 5—Procedural powers of Tribunal 40

Powers of Tribunal etc

40A

Power to summon person to give evidence or produce documents

40B

Inspection of documents produced under summons

41

Operation and implementation of a decision that is subject to review

42

Resolving disagreements

42A

Discontinuance, dismissal, reinstatement etc of application

42B

Power of Tribunal if a proceeding is frivolous, vexatious etc

42C

Power of Tribunal if parties reach agreement

42D

Power to remit matters to decision-maker for further consideration

Division 6—Tribunal’s decision on review 43

Tribunal’s decision on review

Division 7—Miscellaneous 43AAA Findings of Tribunal in Security Division review of security assessment 43AA Correction of errors in decisions or statement of reasons Part IVA—Appeals and references of questions of law to the Federal Court of Australia 43B

Part applies whether Tribunal’s power conferred by an enactment or by a law of a State

43C

Part does not apply in relation to certain migration decisions

44

Appeals to Federal Court of Australia from decisions of the Tribunal

44AAA Appeals to Federal Circuit Court from decisions of the Tribunal in relation to child support first reviews 44AA Transfer of appeals from Federal Court to Federal Circuit Court 44A

Operation and implementation of a decision that is subject to appeal

45

Reference of questions of law to Federal Court of Australia

46

Sending of documents to, and disclosure of documents by, the

Federal Court and the Federal Circuit Court Part VI—Miscellaneous 59

Advisory opinions

59A

Authorised members [page 429]

59B

Authorised officers

60

Protection of members, alternative dispute resolution practitioners, officers of the Tribunal, barristers and witnesses

61

Failure to comply with summons

62

Refusal to be sworn or to answer questions

62A

False or misleading evidence

62B

Extended operation of certain provisions

62C

Breach of non-disclosure order

63

Contempt of Tribunal

64

Registries

66

Confidential information not to be disclosed

66A

Application of confidentiality provisions in other Acts

66B

Publication of Tribunal decisions

67

Fees for compliance with summons

67A

Giving of notices

68

Giving documents

68AA President’s directions 68A

Calculation of short periods of time

69

Legal assistance

69A

Procedure for taxing costs

69B

Costs in Security Division review of security assessment

69BA Termination of certain applications 69C

Dismissal of application for non-payment of application fee

70

Regulations [page 430] [page 431]

An Act to establish an Administrative Appeals Tribunal Part I—Preliminary 1

Short title This Act may be cited as the Administrative Appeals Tribunal Act 1975.

2

Commencement This Act shall come into operation on a day to be fixed by Proclamation.

2A

Tribunal’s objective In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of

the Tribunal.

3

Interpretation (1)

In this Act, unless the contrary intention appears:

adduce includes give. agency party means a party who is: (a) the Secretary of a Department; or (b) the Chief Executive Medicare; or (c) the Chief Executive Centrelink; or (d) the Child Support Registrar. alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes: (a) conferencing; and (b) mediation; and (c) neutral evaluation; and (d) case appraisal; and (e) conciliation; and (f) procedures or services specified in the regulations; but does not include: (g) arbitration; or (h) court procedures or services. Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition. ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979. ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979. [page 432]

authorised member means a member who has been authorised by the President under section 59A for the purposes of the provision in which the expression occurs. authorised officer means an officer of the Tribunal who has been authorised by the President under section 59B for the purposes of the provision in which the expression occurs. authority of Norfolk Island means an authority, tribunal or other body, whether incorporated or not, that is established by a Norfolk Island enactment. authority of the Commonwealth means an authority, tribunal or other body, whether incorporated or not, that is established by an enactment. Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997. Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973. child support first review means a proceeding that is or would be a proceeding in the Social Services and Child Support Division on application for AAT first review within the meaning of the Child Support (Registration and Collection) Act 1988. Commonwealth agency means a Minister or an authority of the Commonwealth. CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. Deputy President means a member appointed as a Deputy President of the Tribunal. enactment means: (a) an Act; (b) an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or (c) an instrument (including rules, regulations or by-laws) made under

an Act or under such an Ordinance; and includes an enactment as amended by another enactment. Note: See also subsection 25(8) (Norfolk Island enactments).

engage in conduct has the same meaning as in the Criminal Code. full-time member means a member who is appointed as a full-time member. immigration advisory service means a body that provides services in relation to the seeking by non-citizens (within the meaning of the Migration Act 1958) of permission to enter or remain in Australia. Judge means: (a) a Judge of a court created by the Parliament; or (b) a person who has the same designation and status as a Judge of a court created by the Parliament. member means: (a) the President; or (b) a Deputy President; or [page 433] (c) a senior member; or (d) any other member (of any level referred to in subsection 6(3)). non-presidential member means a member other than a presidential member. Norfolk Island enactment means: (a) an enactment (within the meaning of the Norfolk Island Act 1979); or (b) an instrument (including rules, regulations or by-laws) made under such an enactment; and includes a Norfolk Island enactment as amended by another Norfolk Island enactment.

officer of the Tribunal means: (a) the Registrar; or (b) a person appointed as an officer of the Tribunal under section 24PA. part-time member means a member who is appointed as a part-time member. person who made the decision has a meaning affected by: (a) if a review of the decision is or would be an AAT first review within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999—section 111B of that Act; and (b) if a review of the decision is or would be an AAT first review within the meaning of the Paid Parental Leave Act 2010—section 224A of that Act; and (c) if a review of the decision is or would be an AAT first review within the meaning of the Social Security (Administration) Act 1999— section 142A of that Act; and (d) if a review of the decision is or would be an AAT first review within the meaning of the Student Assistance Act 1973—section 311A of that Act. President means the President of the Tribunal. presidential member means the President or a Deputy President. proceeding, in relation to the Tribunal, includes: (a) an application to the Tribunal for review of a decision; and (b) an application to the Tribunal under subsection 28(1AC); and (c) an application to the Tribunal for review of a taxing of costs; and (d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and (e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and (f) any other application to the Tribunal under this Act or any other Act; and (g) any matter referred to the Tribunal for inquiry and/or review

under this Act or any other Act; and (h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph. Registrar means the Registrar of the Tribunal. [page 434] second review: a review by the Tribunal of a decision is or would be a second review if another enactment: (a) authorises an application to be made for review of the decision; and (b) designates the review as an AAT second review. security assessment or assessment has the same meaning as in the Australian Security Intelligence Organisation Act 1979. senior member means a senior member of the Tribunal (of either level referred to in subsection 6(3)). State includes the Northern Territory and the Australian Capital Territory. Tribunal: (a) means the Administrative Appeals Tribunal established by this Act; and (b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and (c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal. (2) Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, this Act applies as if that board, committee or other body were a person empowered to make those decisions.

(3)

4

Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing.

Extension to external Territories This Act extends to every external Territory.

Part II—Establishment of the Administrative Appeals Tribunal Division 1—Establishment of Tribunal 5

Establishment of Tribunal There is hereby established an Administrative Appeals Tribunal. [page 435]

5A

Membership The Tribunal consists of the following members: (a) the President; (b) Deputy Presidents; (c) senior members;

(d) other members.

Division 2—Members of Tribunal 6

Appointment of members of Tribunal (1) (2) (3)

(4)

The members shall be appointed by the Governor-General. A Judge who is to be appointed as a member of the Tribunal is to be appointed as the President or a Deputy President. A person (other than a Judge) who is to be appointed as a member of the Tribunal is to be appointed as: (a) a Deputy President; or (b) a senior member (level 1); or (c) a senior member (level 2); or (d) a member (level 1); or (e) a member (level 2); or (f) a member (level 3). A member (other than a Judge) shall be appointed either as a full-time member or as a part-time member.

…

Part III—Organisation of the Tribunal Division 1—Divisions of the Tribunal Subdivision A—Divisions of the Tribunal 17A

Divisions of the Tribunal The Tribunal is to exercise powers conferred on it in the following Divisions: (aa) Freedom of Information Division; (a) General Division; (b) Migration and Refugee Division; (c) National Disability Insurance Scheme Division; (d) Security Division;

(e) Social Services and Child Support Division; (f) Taxation and Commercial Division; (g) any other prescribed Division. [page 436]

17B

Allocation of business to Divisions (1)

(2)

The Tribunal’s powers in relation to a proceeding before the Tribunal are to be exercised: (a) in the Division prescribed for such a proceeding; or (b) if no Division is prescribed for a proceeding—in the Division that the President directs. Despite subsection (1), the following powers of the Tribunal may be exercised by the Tribunal only in the Security Division: (a) the powers of review in respect of applications referred to in section 54 of the Australian Security Intelligence Organisation Act 1979; (b) the power under the Archives Act 1983 to review a decision of the Archives in respect of access to a record of the Australian Security Intelligence Organisation.

Subdivision B—Assignment of members to Divisions 17C

Assignment of members to Divisions (1) (2) (3) (4)

The Minister must assign a non-presidential member to one or more Divisions of the Tribunal. Before the Minister does so, the Minister must consult the President in relation to the proposed assignment. An assignment may only be varied with the consent of the member concerned. A non-presidential member may exercise, or participate in the exercise of, powers of the Tribunal only in a Division to which

(5)

the member is assigned. If the assignment is made in writing, the assignment is not a legislative instrument.

17CA Assignment to Freedom of Information Division The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member: (a) has training, knowledge or experience relating to the Freedom of Information Act 1982; or (b) has other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.

17D

Assignment to Migration and Refugee Division Before assigning a member to the Migration and Refugee Division, the Minister must consult the Minister administering the Migration Act 1958 in relation to the proposed assignment. [page 437]

17E

Assignment to National Disability Insurance Scheme Division (1)

(2)

Before assigning a member to the National Disability Insurance Scheme Division, the Minister must consult the Minister administering the National Disability Insurance Scheme Act 2013 in relation to the proposed assignment. The Minister must not assign a member to the National Disability Insurance Scheme Division unless the Minister is satisfied that the member: (a) has training, knowledge or experience relating to disability; or (b) has other relevant knowledge or experience that will assist the member in considering matters relating to the National

Disability Insurance Scheme.

17F

Assignment to Security Division The Minister must not assign a member to the Security Division if the member is or has been: (a) the Director-General of Security; or (b) an ASIO employee or ASIO affiliate. Note: See also subsections 19E(3) and 19F(3).

17G

Assignment to Social Services and Child Support Division Before assigning a member to the Social Services and Child Support Division, the Minister must consult the Minister administering the Social Security (Administration) Act 1999 in relation to the proposed assignment.

17H

Assignment to Taxation and Commercial Division Before assigning a member to the Taxation and Commercial Division, the Minister must consult the Treasurer in relation to the proposed assignment.

17J

Validity Sections 17A to 17H do not affect the validity of any exercise of powers by the Tribunal.

Subdivision C—Division heads and Deputy Division heads 17K

Division heads Assignment of Division heads (1) The Minister may assign a Deputy President to be the head of one or more Divisions of the Tribunal. (2) Before the Minister does so, the Minister must consult: (a) the President; and (b) any Minister required by sections 17D to 17H to be consulted in relation to the assignment of a member to the

(3)

Division. The Minister must not assign a person to be the head of a Division if the person could not be assigned to that Division because of section 17CA, subsection 17E(2) or section 17F. [page 438]

(4) (5)

If the assignment is made in writing, the assignment is not a legislative instrument. An assignment under subsection (1): (a) must be for the duration, or the remaining duration, of the person’s appointment as a Deputy President; and (b) may be varied, with the person’s consent; and (c) cannot be revoked.

Function of Division heads (6) The head of a Division has the function of assisting the President in the performance of the President’s functions by directing the business of the Tribunal in the Division. Acting Division heads (7) The Minister may, by written instrument, assign a Deputy President or senior member to act as the head of a Division during any period, or during all periods, when the head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the Acts Interpretation Act 1901.

17L

Deputy Division heads Assignment of deputy Division heads (1) The Minister may assign a Deputy President or a senior member to be the deputy head of one or more Divisions of the Tribunal. (2) Before the Minister does so, the Minister must consult:

(3)

(4) (5)

(a) the President; and (b) any Minister required by sections 17D to 17H to be consulted in relation to the assignment of a member to the Division. The Minister must not assign a person to be the deputy head of a Division if the person could not be assigned to that Division because of section 17CA, subsection 17E(2) or section 17F. If the assignment is made in writing, the assignment is not a legislative instrument. An assignment under subsection (1): (a) must be for the duration, or the remaining duration, of the person’s appointment as a Deputy President or senior member; and (b) may be varied, with the person’s consent; and (c) cannot be revoked.

Function of deputy Division heads (6) The deputy head of a Division has the function of assisting the head of the Division in the performance of the head of the Division’s functions. [page 439]

(7)

Acting deputy Division heads The Minister may, by written instrument, assign a member to act as the deputy head of a Division during any period, or during all periods, when the deputy head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the Acts Interpretation Act 1901.

Division 2—Arrangement of business of Tribunal 18A

Arrangement of business

Subject to this Act and the regulations, the President is responsible for ensuring: (a) the expeditious and efficient discharge of the business of the Tribunal; and (b) that the Tribunal pursues the objective in section 2A.

18B

President’s directions—arrangement of business (1)

(1A) (2) (3)

(4)

The President may give written directions in relation to any or all of the following: (a) the operations of the Tribunal; (b) the procedure of the Tribunal; (c) the conduct of reviews by the Tribunal; (d) the arrangement of the business of the Tribunal; (e) the places at which the Tribunal may sit. Before the President does so, the President must consult the head of any Division to which the direction would apply. A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal. If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding. Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections 37 and 38AA, including any or all of the following matters: (a) documents that are or are not required to be lodged under paragraph 37(1)(b) and subsection 38AA(1); (b) documents that are or are not required to be lodged under subsection 37(1AAB) for the purposes of second reviews; (c) lodgement of documents for the purposes of subsection 37(1AB); (d) lodgement of additional copies of documents; (e) documents that are to be given to other parties under subsection 37(1AE).

[page 440]

18C

Sittings of Tribunal Sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient.

Division 3—Constitution of Tribunal Subdivision A—General 19A

President’s directions—constitution (1)

(2)

19B

The President may give written directions in relation to: (a) the members who are to constitute the Tribunal for the purposes of a proceeding; and (b) if there is more than one such member—the member who is to preside. Paragraph (1)(b) does not apply to a proceeding in the Security Division.

Constitution (1)

(2)

(3)

The Tribunal as constituted for the purposes of a proceeding: (a) must not have more than 3 members, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding; and (b) must not have more than one member who is a Judge. At any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member. Subsection (2) does not apply in relation to the following powers: (a) the power under section 34J (circumstances in which hearing may be dispensed with); (b) the power under section 43 (Tribunal’s decision on review);

(c) the power under section 59 (advisory opinions); (d) a power that a provision of this Act (except this section) or another enactment requires or permits to be exercised by: (i) one or more persons specified by the provision; or (ii) the Tribunal constituted in a way specified by the provision. Note: Examples of powers covered by subparagraph (3)(d)(i) are the powers under sections 19A, 33 and 43AA. Examples of powers covered by subparagraph (3)(d)(ii) are the powers under section 19C.

(4)

19C

This section does not apply in relation to a proceeding in the Security Division (see Subdivision B).

Constitution for review of taxing of costs (1)

The Tribunal as constituted for the purposes of an application for review of a taxing of costs in another proceeding must be constituted by: [page 441] (a)

(2)

(3)

the member who constituted the Tribunal for the purposes of the other proceeding; or (b) if the Tribunal was constituted by more than one member for the purposes of the other proceeding—the member who presided for those purposes. However, the Tribunal is to be constituted as directed by the President if the member referred to in subsection (1): (a) has stopped being a member; or (b) is for any reason unavailable; or (c) has been directed by the President not to take part in the review. The President must not give directions that would result in none of the members who constituted the Tribunal for the purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that

it is in the interests of justice to do so.

19D

Reconstitution Before hearing commences (1) At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction. After hearing commences (2) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if: (a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding: (i) stops being a member; or (ii) is for any reason unavailable; or (iii) is directed by the President not to take part in the proceeding; or (b) the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding. (3) Subsection (2) does not apply in relation to a proceeding in the Security Division. (4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding). [page 442] President’s directions (5) The President must not give a direction referred to in subparagraph (2)(a)(iii) unless the President:

(6)

(7)

(a) is satisfied that it is the interests of justice to do so; and (b) has consulted the member concerned. The President must not, for the purposes of subsection (2), revoke a direction under subsection 19A(1) in relation to a proceeding and give another such direction unless the President: (a) is satisfied that it is in the interests of justice to do so; and (b) has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding. In giving directions for the purposes of this section, the President must have regard to the Tribunal’s objective in section 2A.

Subdivision B—Security Division 19E

Constitution of Security Division Scope (1)

This section applies to a proceeding in the Security Division other than a proceeding to which section 19F applies, but has effect subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979.

Constitution of Security Division (2) The Security Division is to be constituted by a presidential member and 2 other members. (3) The presidential member must not participate in the proceeding if the presidential member is or has been: (a) the Director-General of Security; or (b) an ASIO employee or ASIO affiliate. Presiding member (4) The presidential member is to preside at a hearing of the proceeding. Reconstitution

(5)

(6)

At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding is for any reason unavailable. The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding). [page 443]

19F

Constitution of Security Division for proceedings to review certain Archives decisions Scope (1)

This section applies to a proceeding in the Security Division in relation to a review of a decision of the Archives under the Archives Act 1983 relating to a record of the Australian Security Intelligence Organisation.

Constitution of Security Division (2) The Security Division is to be constituted by: (a) 3 presidential members; or (b) a presidential member alone. (3) A presidential member must not participate in the proceeding if the presidential member is or has been: (a) the Director-General of Security; or (b) an ASIO employee or ASIO affiliate. Presiding member (4) If the Tribunal is constituted by 3 presidential members, the person who is to preside at a hearing of the proceeding is: (a) if the President is one of the members—the President; or

(b) if the President is not one of the members but one or more Judges is—the most senior (or only) Judge; or (c) if paragraphs (a) and (b) do not apply—the Deputy President whom the President directs to preside. Reconstitution (5) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under paragraph 19A(1)(a) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding ceases to be available. (6) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

Part IIIA—Management of the Tribunal Division 1—Management responsibilities of President and Registrar 24A

Management of administrative affairs of Tribunal (1)

The President is responsible for managing the administrative affairs of the Tribunal. [page 444]

(2)

(3)

However, the President is not responsible under subsection (1) for matters relating to the Tribunal under: (a) the Public Governance, Performance and Accountability Act 2013; or (b) the Public Service Act 1999. The Registrar is not subject to direction by the President in

(4)

24B

relation to the Registrar’s performance of functions, or exercise of powers, under the Acts referred to in subsection (2). However, the Registrar must consult with the President in relation to the Registrar’s performance of those functions or exercise of those powers.

Registrar of the Tribunal In the management of the administrative affairs of the Tribunal, the President is assisted by the Registrar of the Tribunal. …

Part IV—Reviews by the Tribunal of decisions Division 1—Applications for review of decisions Division 1A—Scope of operation of this Part 24Z

Scope of operation of this Part

25

Tribunal may review certain decisions Enactment may provide for applications for review of decisions (1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. (2) The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment. (3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment: (a) shall specify the person or persons to whose decisions the

provision applies; (b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and (c) may specify conditions subject to which applications may be made. Delegations, acting appointments and authorisations (3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a [page 445] person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power: (a) by any person to whom that power has been delegated; (b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or (c) by any other person lawfully authorized to exercise that power. Tribunal may determine scope of review (4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. Failure of decision-maker to meet deadline (5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment,

(5A)

or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing. For the purposes of regulations that make provision in accordance with this section for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment, a failure by a person to do an act or thing within the period prescribed by: (a) that Norfolk Island enactment; or (b) another Norfolk Island enactment having effect under that Norfolk Island enactment; as the period within which that person is required or permitted to do that act or thing is taken to constitute the making of a decision by that person at the end of that period not to do that act or thing.

Enactment may add to, exclude or modify operation of certain provisions (6) If an enactment provides for applications to the Tribunal: (a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and (b) those sections and subsections have effect subject to any provisions so included. [page 446] What happens if decision-maker ceases to hold office etc. (7) Where: (a) a person has made a decision in respect of which an application may be made to the Tribunal;

(b) the person made the decision by reason that he or she held or performed the duties of an office or appointment; and (c) the person no longer holds or performs the duties of the office or appointment; this Act has effect as if the decision had been made by: (d) the person for the time being holding or performing the duties of that office or appointment; or (e) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President or an authorised member specifies. Norfolk Island enactment (8) If the regulations make provision in accordance with subsection (2) for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment (the primary Norfolk Island enactment), this Act, other than: (a) the definition of authority of the Commonwealth in subsection 3(1); and (b) subsections (1), (5) and (6) of this section; and (c) paragraph 19B(1)(a); and (d) subsection 27(1); and (e) paragraph 27A(2)(b); and (f) paragraph 33(1)(a); and (g) paragraph 43B(1)(a); and (h) section 59; has effect as if: (i) the primary Norfolk Island enactment; and (j) any other Norfolk Island enactment, in so far as it relates to the primary Norfolk Island enactment; were an enactment (within the meaning of this Act).

26

Restriction on powers of decision-maker after application for review is made (1)

(a)

Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless: if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application— [page 447]

(1A) (2)

27

the enactment that authorised the making of the application expressly permits the decision to be altered; or (aa) if regulations made for the purposes of subsection 25(2) authorised the making of the application—the Norfolk Island enactment under which the decision was made expressly permits the decision to be altered; or (b) the parties to the proceeding, and the Tribunal, consent to the making of the alteration. Paragraph (1)(b) does not apply in relation to a proceeding that is a child support first review. A reference in subsection (1) to the alteration of a decision is a reference to: (a) the variation of a decision; or (b) the setting aside of a decision; or (c) the setting aside of a decision and the making of a decision in substitution for the decision set aside.

Persons who may apply to Tribunal (1)

Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any

person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision. Note: The enactment may be regulations made for the purposes of subsection 25(2) (review of decisions made in the exercise of powers conferred by a Norfolk Island enactment).

(2)

(3)

An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association. Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.

27AA Applications to Tribunal under Australian Security Intelligence Organisation Act (1)

(2)

An application under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment may be made by a person in respect of whom the assessment was made and who has, in accordance with Part IV of that Act, been given notice of the assessment. An application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review [page 448]

(3)

of a security assessment may be made by the person who applied for the review in which the findings were made. If the Tribunal is satisfied that an application referred to in subsection (2) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of an assessment.

27A

Notice of decision and review rights to be given (1)

(2)

(3)

Subject to subsection (2), a person who makes a reviewable decision must take such steps as are reasonable in the circumstances to give to any person whose interests are affected by the decision notice, in writing or otherwise: (a) of the making of the decision; and (b) of the right of the person to have the decision reviewed. Subsection (1) does not apply to: (a) a decision that is deemed to be made because of the operation of subsection 25(5) or (5A); or (b) a decision in respect of which provision relating to the notification of a right of review is made by another enactment; or (c) any of the following decisions: (i) a decision not to impose a liability, penalty or any kind of limitation on a person; (ii) a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class; (iii) if an enactment establishes several categories of entitlement to a monetary benefit—a decision that determines a person to be in the most favourable of those categories; if the decision does not adversely affect the interests of any other person; or (d) a decision under the Corporations Act 2001 to which section 1317B of that Act applies; (e) a decision under the Australian Securities and Investments Commission Act 2001 to which section 244 of that Act applies. A failure to do what this section requires does not affect the validity of the decision.

(4)

In this section: reviewable decision means: (a) a decision that is reviewable by the Tribunal; or (b) a decision that is reviewable by: [page 449] (i)

a person whose decision on review is reviewable by the Tribunal; or (ii) a person whose decision on review, because of subparagraph (i), is a reviewable decision.

27B

Review—Code of Practice (1)

(2)

28

The Attorney-General may, by legislative instrument, determine a Code of Practice for the purpose of facilitating the operation of subsection 27A(1). A person, in taking action under subsection 27A(1), must have regard to any such Code of Practice that is then in force.

Person affected by decision may obtain reasons for decision Request for statement of reasons (1) Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a

statement. Exceptions (1AAA) Subsection (1) does not apply in relation to: (a) a decision that is reviewable in the Security Division; or (b) a decision that is a decision on AAT first review within the meaning of any of the following: (i) the A New Tax System (Family Assistance) (Administration) Act 1999; (ii) the Child Support (Registration and Collection) Act 1988; (iii) the Social Security (Administration) Act 1999; (iv) the Student Assistance Act 1973; (v) the Paid Parental Leave Act 2010. What happens if decision-maker contests applicant’s entitlement to statement of reasons (1AA) Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion. (1AB) A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the [page 450]

(1AC)

Tribunal so decides, the first-mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given. On application by an applicant who has received a notice

under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned. When decision-maker may refuse to give statement of reasons (1A) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if: (a) in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—the request was not made on or before the twenty-eighth day after the day on which that document was given to the applicant; or (b) in any other case—the request was not made within a reasonable time after the decision was made;

(1B)

and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given. For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.

Public interest certificate (2) If the Attorney-General certifies, by writing signed by him or her, that the disclosure of any matter contained in a statement prepared in accordance with subsection (1) would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or international relations of Australia; (b) by reason that it would involve the disclosure of deliberations of the Cabinet or of a Committee of the

(c)

(3)

Cabinet; or for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter should not be disclosed;

subsections (3) and (3A) have effect. A person to whom a request for a statement in relation to a decision is made under subsection (1): (a) is not required to include in the statement any matter in relation to which the Attorney-General has given a certificate under subsection (2); and [page 451]

(3A)

(b) where the statement would be false or misleading if it did not include such matter—is not required by subsection (1) to give the statement to the applicant. Where a certificate is given under subsection (2) in relation to matter contained in a statement prepared in accordance with subsection (1) in relation to a decision: (a) the person who made the decision shall notify the applicant in writing: (i) in a case where the matter is not included in the statement—that the matter is not so included and giving the reason for not including the matter; or (ii) in a case where the statement is not given—that the statement will not be given and giving the reason for not giving the statement; and (b) subsections 36(2), (3), (3A) and (4) and 36D(1) to (6), inclusive, apply in relation to any statement referred to in paragraph 37(1)(a) in relation to that decision that is lodged with the Tribunal under section 37 as if the certificate were a certificate given under subsection 36(1)

in relation to any such matter that is contained in the lastmentioned statement. When applicant not entitled to request statement of reasons (4) The applicant is not entitled to make a request under subsection (1) if: (a) the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or (b) a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her. Inadequate statement of reasons (5) An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following: (a) adequate particulars of findings on material questions of fact; (b) an adequate reference to the evidence or other material on which those findings were based; (c) adequate particulars of the reasons for the decision. (6) If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration. [page 452]

29

Manner of applying for review (1)

An application to the Tribunal for a review of a decision: (a) must be made: (i) in writing; or (ii) if the decision is reviewable in the Social Services and Child Support Division—in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and Note: For oral applications, see also section 29AA.

(b) must be accompanied by any prescribed fee; and (c) unless paragraph (ca) or (cb) applies or the application was oral—must contain a statement of the reasons for the application; and (ca) in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment—must be accompanied by: (i) a copy of the assessment as given to the applicant; and (ii) a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and (cb) in respect of an application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979—must be accompanied by a statement setting out the grounds on which the application is made; (d) if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A)—shall be lodged with the Tribunal within the prescribed time. Note: Paragraph 33(1)(c) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Address at which documents may be given (1A) If, in an application, a person does not provide an address at which documents in relation to the proceeding may be given, any address of the person shown in the application, or later notified to the Tribunal as an address at which such documents may be given, is taken to be an address provided by the person at which such documents may be given. Prescribed time for making applications—general (2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after: (a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or [page 453] (b)

if the decision does not set out those findings and reasons: (i) if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is so given; (ii) if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection—the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or (iii) in any other case—the day on which a document setting out the terms of the decision is given to the applicant.

Prescribed time for making applications—decision-maker’s failure to meet deadline (3) In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending: (a) in a case to which paragraph (b) does not apply—on the twenty-eighth day after that day; or (b) in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) or (5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—on the twenty-eighth day after: (i) if the decision sets out the findings on material questions of fact and the reasons for the decision— the day on which a document setting out the terms of the decision is given to the applicant; or (ii) if the decision does not set out those findings and reasons—the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision. What happens if there is no prescribed time for making applications (4) Where: (a) no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or (b) no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision; and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):

[page 454] (c)

(5)

(6)

in a case to which paragraph (a) applies—refuse to entertain an application for a review of the decision referred to in that paragraph; or (d) in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to. In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to: (a) the time when the applicant became aware of the making of the decision; and (b) in a case to which paragraph (4)(b) applies—the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision; and may have regard to any other matters that it considers relevant. Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.

Tribunal may extend time for making application (7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. (8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired. (9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may: (a) give notice of the application to any persons the Tribunal

(10)

or officer considers to be affected by the application; or (b) require the applicant to give notice to those persons. If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

29AA Oral applications (1)

If a person makes an oral application as referred to in subparagraph 29(1) (a)(ii), the person receiving the application must: (a) make a written record of the details of the application; and (b) note on the record the day on which the application is made. [page 455]

(2)

If a person makes a written record of an oral application in accordance with subsection (1), this Part has effect as if the written record were an application in writing made on the day on which the oral application was made.

29AB Insufficient statement of reasons for application If the Tribunal considers that an applicant’s statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice.

29AC Notice of application (1)

If an application is made to the Tribunal for a review of a

(2)

29B

decision, the Registrar must give the following persons written notice of receipt of the application: (a) the applicant; (b) the person who made the decision. The Tribunal or an officer of the Tribunal may, if satisfied that another person’s interests may be affected by the decision: (a) give the other person written notice of the application and of the person’s right to apply to be made a party to the proceeding under subsection 30(1A); or (b) require the applicant to give the other person such a notice.

Notice of application—review of security assessment If an application is duly made to the Tribunal for the review of a security assessment, the Tribunal must cause a copy of the application, and of the statement lodged with the application, to be given to the Director-General of Security and to the Commonwealth agency to which the assessment was given.

Division 2—Parties and procedure 30

Parties to proceeding before Tribunal Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies. Parties (1) Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision; [page 456]

(b) the person who made the decision; (c) if the Attorney-General intervenes in the proceeding under section 30A—the Attorney-General; and (d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A). Note: See also subsections 36(3A) and 36A(2A) (Attorney-General deemed to be a party to certain proceedings), and subsections 36B(4) and 36C(3) (State Attorney-General deemed to be a party to certain proceedings).

Person whose interests are affected may apply to be a party (1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding. Official name (2) A person who is a party to a proceeding before the Tribunal: (a) by reason of a decision made by him or her in the performance of the duties of an office or appointment; or (b) by reason of the operation of subsection 25(7); shall be described in the proceeding by his or her official name.

30A

Intervention by Attorney-General (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies. (1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Tribunal. (2) Where the Attorney-General intervenes under subsection (1) in a proceeding for a review of a decision, the Attorney-General may authorize the payment to a party to the proceeding by the Commonwealth of such costs as he or she considers were reasonably incurred by that party in relation to the proceeding as a result of that intervention.

31

Tribunal to determine persons whose interests are affected by decision (1)

(2)

Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive. This section does not apply to a proceeding in the Security Division to which section 39A applies. [page 457]

32

Representation before Tribunal Parties (1) At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person: (a) a party to a proceeding in a Division other than the Social Services and Child Support Division; (b) the agency party to a proceeding in the Social Services and Child Support Division. (2) At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal’s permission, may be represented by another person. (3) In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to: (a) the Tribunal’s objective in section 2A; and (b) the wishes of the parties and the need to protect their privacy. Persons required to appear (4) A person who is required to appear in a proceeding before the

Tribunal may, with the permission of the Tribunal, be represented by another person.

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.

Decision-maker must assist Tribunal (1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Parties etc. must assist Tribunal (1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A. [page 458] Directions hearing (1A) The President or an authorised member may hold a directions hearing in relation to a proceeding. Who may give directions (2) For the purposes of subsection (1), directions as to the

procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given: (a) where the hearing of the proceeding has not commenced —by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and (b) where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions. Types of directions (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may: (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or (b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or (c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or (d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or (e) require witnesses to give evidence at the same time; or (f) limit the time for giving evidence or making oral submissions; or (g) limit the length of written submissions.

33A

Participation by telephone etc. (1)

The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications

(2)

equipment. Subsection (1) does not apply to a proceeding in the Security Division to which section 39A applies. [page 459]

Division 3—Alternative dispute resolution processes 34

Scope of Division This Division does not apply to: (a) a proceeding in the Security Division to which section 39A applies; or (b) a proceeding in the Social Services and Child Support Division.

34A

Referral for alternative dispute resolution process (1)

(2)

(3)

34D

If an application is made to the Tribunal, the President may direct that the proceeding, or any part of it or matter arising out of the proceeding, be referred to an alternative dispute resolution process. The President may give written directions in relation to persons who are to conduct an alternative dispute resolution process. Any such person must be: (a) a member; or (b) an officer of the Tribunal; or (c) a person engaged under section 34H. The parties to a proceeding referred to an alternative dispute resolution process must act in good faith in relation to the conduct of the alternative dispute resolution process.

Agreement about the terms of a decision etc. (1)

If: (a)

in the course of an alternative dispute resolution process under this Division, agreement is reached between the

parties or their representatives as to the terms of a decision of the Tribunal: (i) in the proceeding; or (ii) in relation to the part of the proceeding; or (iii) in relation to the matter arising out of the proceeding; that would be acceptable to the parties; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) 7 days pass after lodgment, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and (d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal; the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. [page 460] (2)

(3)

If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms. If the agreement relates to: (a) a part of the proceeding; or (b) a matter arising out of the proceeding; the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part of the proceeding or the matter

arising out of the proceeding, as the case may be, to which the agreement relates. Variation or revocation of decision (4) The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if: (a) the parties, or their representatives, reach agreement on the variation or revocation; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) the variation or revocation appears appropriate to the Tribunal; and (d) in the case of a variation—the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.

34E

Evidence not admissible (1)

Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible: (a) in any court; or (b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or (c) in any proceedings before a person authorised by the consent of the parties to hear evidence.

Exceptions (2) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of particular evidence if the parties agree to the evidence being admissible at the hearing. (3) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of: (a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division;

or (b) a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division; [page 461] unless a party to the proceeding notifies the Tribunal before the hearing that he or she objects to the report being admissible at the hearing.

34F

Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal If: (a)

an alternative dispute resolution process under this Division in relation to a proceeding is conducted by a member of the Tribunal; and (b) a party to the proceeding notifies the Tribunal before the hearing that he or she objects to that member participating in the hearing; that member is not entitled to be a member of the Tribunal as constituted for the purposes of the proceeding.

34H

Engagement of persons to conduct alternative dispute resolution processes (1)

(2)

The Registrar may, on behalf of the Commonwealth, engage persons to conduct one or more kinds of alternative dispute resolution processes under this Division. The Registrar must not engage a person under subsection (1) unless the Registrar is satisfied, having regard to the person’s qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.

Division 4—Hearings and evidence

34J

Circumstances in which hearing may be dispensed with If: (a)

it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and (b) the parties consent to the review being determined without a hearing; the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

35

Public hearings and orders for private hearings, nonpublication and non-disclosure Public hearing (1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public. Private hearing (2) The Tribunal may, by order: (a) direct that a hearing or part of a hearing is to take place in private; and (b) give directions in relation to the persons who may be present. [page 462] Orders for non-publication or non-disclosure (3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of: (a) information tending to reveal the identity of: (i) a party to or witness in a proceeding before the Tribunal; or (ii) any person related to or otherwise associated with

(4)

(5)

any party to or witness in a proceeding before the Tribunal; or (b) information otherwise concerning a person referred to in paragraph (a). The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to another party or parties, of information that: (a) relates to a proceeding; and (b) is any of the following: (i) information that comprises evidence or information about evidence; (ii) information lodged with or otherwise given to the Tribunal. In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable: (a) that hearings of proceedings before the Tribunal should be held in public; and (b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and (c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information. Not applicable to Security Division review of security assessment (6) This section does not apply in relation to a proceeding in the Security Division to which section 39A applies. Note: See section 35AA.

35AA Orders for non-publication and non-disclosure—certain Security Division proceedings

(1) (2)

This section applies in relation to a proceeding in the Security Division to which section 39A applies. The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of: [page 463] (a)

information tending to reveal the identity of: (i) a party to or witness in the proceeding; or (ii) any person related to or otherwise associated with any party to or witness in the proceeding; or (b) information otherwise concerning a person referred to in paragraph (a); or (c) information that relates to the proceeding and is any of the following: (i) information that comprises evidence or information about evidence; (ii) information lodged with or otherwise given to the Tribunal; or (d) the whole or any part of its findings on the review.

36

Disclosure not required: Attorney-General’s public interest certificate Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies. Attorney-General may issue public interest certificate (1) If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or

international relations of Australia; (b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or (c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (2) A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. [page 464] Disclosure of information etc. (3) Where the Attorney-General has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal

shall make the information available or permit the part of the document containing the matter to be inspected accordingly. Attorney-General taken to be a party (3A) Where, in relation to a proceeding to which the AttorneyGeneral would not, but for this subsection, be a party, the Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a) or (b), the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding. What Tribunal must consider in deciding whether to disclose information etc. (4) In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.

36A

Answering questions where Attorney-General intervenes on public interest grounds Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies. Intervention by Attorney-General (1) Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the

public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36(1). [page 465] When person excused from answering question (2) Where the Attorney-General so informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless: (a) in the case where the reason specified is, or the reasons specified include, a reason referred to in paragraph 36(1)(a) or (b)—a court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or (b) in any other case—the Tribunal decides that the answering of the question would not be contrary to the public interest. Attorney-General taken to be a party (2A) Where the Attorney-General informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest, being a proceeding to which the Attorney-General would not, but for this subsection, be a party, the AttorneyGeneral shall, for the purposes of this Act, be deemed to be a party to the proceeding.

36B

Disclosure not required: State Attorney-General’s public interest certificate Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies.

State Attorney-General may issue public interest certificate (1) If the Attorney-General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: (a) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or (b) for any other specified reason that could form the basis for a claim by the Crown in right of the State in a judicial proceeding that the information or the matter contained in the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (2) A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to [page 466] section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. Disclosure of information etc. (3) Where the Attorney-General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be

contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly. State Attorney-General taken to be a party (4) Where, in relation to a proceeding to which the AttorneyGeneral of a State would not, but for this subsection, be a party, that Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a), that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding. What Tribunal must consider in deciding whether to disclose information etc. (5) In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal’s functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney-General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.

36C

Answering questions where State Attorney-General intervenes on public interest grounds Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies.

[page 467] Intervention by State Attorney-General (1) Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General of a State may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36B(1). When person excused from answering question (2) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless: (a) if the reason specified is, or the reasons specified include, a reason referred to in paragraph 36B(1)(a)—a court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or (b) otherwise—the Tribunal decides that the answering of the question would not be contrary to the public interest. State Attorney-General taken to be a party (3) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest and, but for this subsection, that AttorneyGeneral would not be a party to the proceeding, that AttorneyGeneral shall, for the purposes of this Act, be taken to be a party to the proceeding.

36D

Public interest questions under sections 36, 36A and 36C Scope (1AA) This section does not apply to a proceeding in the Security Division to which section 39A applies.

Parties to be notified of Tribunal’s decision (1) As soon as practicable after making a decision: (a) under subsection 36(3) or 36B(3) in relation to information, or matter contained in a document, in relation to a proceeding; or (b) under paragraph 36A(2)(b) or 36C(2)(b) in relation to the answering of a question at the hearing of a proceeding; the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision. Question of law (2) For the purposes of this Act: [page 468] (a)

the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or (b) the question whether the answering of a question would be contrary to the public interest; is a question of law. Constitution of Tribunal (3) The Tribunal’s power to make a decision under subsection 36(3) or 36B(3) or paragraph 36A(2)(b) or 36C(2)(b) may be exercised only by the Tribunal constituted by a member who is a Judge of the Federal Court of Australia. Appeals (4) A decision by the Tribunal: (a) under subsection 36(3) or 36B(3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or (b) under paragraph 36A(2)(b) or 36C(2)(b) that the answering

of a question at the hearing of a proceeding would, or would not, be contrary to the public interest; is a decision by the Tribunal in that proceeding for the purposes of section 44. Disclosure of information etc. to officers and staff of Tribunal (5) Nothing in section 36 or 36B prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal or to an officer of the Tribunal in the course of the performance of his or her duties as a member of the staff of the Tribunal or an officer of the Tribunal. Public interest (6) Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal. Commonwealth Attorney-General or State Attorney-General may appear or be represented (7) The Attorney-General, or the Attorney-General of a State: (a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section 36A or 36C; or (b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion. [page 469]

37

Lodging of material documents with Tribunal Scope (1AAA) This section does not apply to a proceeding in the Security

Division to which section 39A applies. Decision-maker must lodge statement of reasons and relevant documents Decision-maker must lodge material documents (1) Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of: (a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal. (1AAB) Subject to this section, if the Tribunal has made a decision that is the subject of an application for second review: (a) the person who made the decision that was reviewed by the Tribunal; or (b) for an application referred to in paragraph 96A(a) or (c) of the Child Support (Registration and Collection) Act 1988— the Registrar within the meaning of that Act; must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of any document of a kind referred to in paragraph (1)(b) that is required to be lodged by a direction given under section 18B. (1AA) The Tribunal may direct a person who is required to lodge a copy of a statement or document under subsection (1) or (1AAB) to lodge a specified number of additional copies with the Tribunal, within the specified period. The person must comply with the direction. Document setting out reasons for decision may be lodged instead of statement

(1AB) The Tribunal may direct a person who is required to lodge a copy of a statement under paragraph (1)(a) to lodge instead of that statement a copy of a document setting out the reasons for the relevant decision, within the specified period. The person must comply with the direction. (1AC) If a person has, in accordance with a direction given under subsection (1AB), lodged with the Tribunal a copy of the document setting out the reasons for a decision, the Tribunal may at any later time direct the person to lodge [page 470] with the Tribunal, within such period as the Tribunal determines, a statement in accordance with paragraph (1)(a). (1AD) If a person who has made a decision that is the subject of an application for a review by the Tribunal has given to a party to the proceeding a statement in relation to the decision under subsection 28(1), the reference in paragraph (1)(a) to a statement is taken to be a reference to the statement given under subsection 28(1). Statement of reasons and relevant documents to be given to other parties (1AE) A person who is required under subsection (1), (1AAB) or (1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period. When document not required to be lodged (1AF) If: (a) a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and

(b) within the period applicable under subsection (1) the person: (i) applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and (ii) gives a copy of the application for the direction to each party to the application for review; the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so. (1AG) Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) or subsection (1AAB) in relation to a document to which that subsection does not apply. Tribunal may shorten deadline for lodging documents (1A) If it appears to the Tribunal that a party to a proceeding before the Tribunal for a review of a decision would or might suffer hardship if the period prescribed by subsection (1) or (1AAB) for lodging with the Tribunal for the purposes of the review the copy of the documents mentioned in that subsection is not shortened, the Tribunal may, upon request being made by that party, make an order directing that the copy be lodged with the Tribunal within such period (being a period of less than 28 days) after the person [page 471] who made the decision receives or received notice of the application as is specified in the order. What happens if application lodged out of time

(1B)

(1C)

(1D)

Where an application that has been lodged with the Tribunal for a review of a decision was not lodged within the time within which it was required by section 29 to be lodged, the reference in subsection (1) or (1AAB) to the period of 28 days after the person who made the decision receives notice of the application for a review shall be read as a reference to the period of 28 days after the day on which that person so receives notice or the day on which the Tribunal makes a determination extending the time for the making of the application for a review, whichever is the later. The Tribunal may, upon request being made by a party to a proceeding before the Tribunal for a review of a decision, direct, by order, that subsection (1B) shall have effect in relation to an application for a review of the decision as if the last reference in that subsection to a period of 28 days were a reference to such shorter period as is specified in the order. Subsection (1B) does not apply in relation to an application for a review of a decision if the decision is the subject of another application to which subsection (1B) does not apply.

Tribunal may require other documents to be lodged (2) Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice. Privilege and public interest (3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

38

Power of Tribunal to obtain additional statements

(1)

The Tribunal may order a person who has lodged a statement with the Tribunal in accordance with paragraph 37(1)(a) to lodge an additional statement with the Tribunal, within the time specified in the order, containing further and better particulars in relation to any one or more of the following: (a) particulars of findings on material questions of fact; (b) reference to the evidence or other material on which those findings were based; [page 472]

(2)

(c) particulars of the reasons for the decision. Subsection (1) does not apply to a proceeding in the Security Division to which section 39A applies.

38AA Ongoing requirement for lodging material documents with Tribunal (1)

If: (a)

subsection 37(1) or (1AAB) applies to a person in relation to an application for review of a decision; and (b) at any time after the end of the applicable period under the subsection and before the Tribunal determines the review: (i) the person obtains possession of a document; and (ii) the document is relevant to the review; and (iii) a copy of the document has not been lodged with the Tribunal in accordance with the subsection;

(2)

the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession. Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if: (a) that requirement were the requirement referred to in those subsections; and

(b) the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.

38A

Director-General of Security to lodge certain material with Tribunal (1)

(2)

39

If an application for review of a security assessment is made in a case in which the Attorney-General has given a certificate certifying in accordance with paragraph 38(2)(b) of the Australian Security Intelligence Organisation Act 1979, the DirectorGeneral of Security must, within 30 days after receiving notice of the application, lodge with the Tribunal a copy of the certificate, together with a copy of the whole of the assessment. The Tribunal must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to any copy or particulars of, a certificate of the Attorney-General referred to in subsection (1) or any matter to which the certificate relates.

Submissions—Divisions other than Security Division and Social Services and Child Support Division (1)

Subject to sections 35, 36 and 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 [page 473]

(2)

which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. This section does not apply to: (a) a proceeding in the Security Division to which section 39A applies; or (b) a proceeding in the Social Services and Child Support

(3)

Division (see section 39AA). This section does not limit subsection 25(4A) (Tribunal may determine scope of review).

39AA Submissions—Social Services and Child Support Division Parties other than agency parties (1) A party (other than the agency party) to a proceeding before the Tribunal in the Social Services and Child Support Division may make oral or written submissions to the Tribunal, or both oral and written submissions. Agency parties (2) The agency party to a proceeding before the Tribunal in the Social Services and Child Support Division may make written submissions to the Tribunal. (3) The agency party may, by writing, request the Tribunal for permission to make: (a) oral submissions to the Tribunal; or (b) both oral and written submissions to the Tribunal.

(4)

(5)

The request must explain how such submissions would assist the Tribunal. The Tribunal may, by writing, grant the request if, in the opinion of the Tribunal, such submissions would assist the Tribunal. The Tribunal may order the agency party to a proceeding in the Social Services and Child Support Division to make: (a) oral submissions to the Tribunal; or (b) written submissions to the Tribunal; or (c) both oral and written submissions to the Tribunal; if, in the opinion of the Tribunal, such submissions would assist the Tribunal.

39A Procedure in Security Division review of security assessment

Review of security assessment (1) If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section. Parties (2) The parties to the proceeding are the Director-General of Security and the applicant, but the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions. [page 474] Director-General of Security must present all relevant information (3) It is the duty of the Director-General of Security to present to the Tribunal all relevant information available to the DirectorGeneral, whether favourable or unfavourable to the applicant. Member may require parties to attend etc. (4) A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings. Proceedings to be in private (5) The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time. Right of parties etc. to be present (6) Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director-General of Security or the Commonwealth agency to

(7)

which the assessment was given. The Director-General of Security or a person representing the Director-General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.

Security/defence certificate (8) The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia. (9) If such a certificate is given: (a) the applicant must not be present when the evidence is adduced or the submissions are made; and (b) a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents. (10) If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person. Penalty: Imprisonment for 2 years. [page 475] Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

Protection of identity of person giving evidence

(11)

If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.

Evidence and submissions (12) The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director-General of Security and any evidence or submissions that the Commonwealth agency to which the assessment was given may wish to adduce or make. (13) The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal. (14) The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence. (15) If a person invited or summoned to give evidence under subsection (14) is: (a) an ASIO employee or ASIO affiliate; or (b) an officer or employee of the Commonwealth agency to which the assessment was given;

(16)

subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, as the case may be. If: (a) a party presents his or her case to the Tribunal; and (b) after that case has been presented, the other party adduces evidence; and (c) the Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard; the Tribunal must give the first-mentioned party an opportunity of adducing further evidence but must not give to the applicant

(17)

any particulars of any evidence to which a certificate given under subsection (8) relates. A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.

Dismissal of application (18) If the applicant fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; [page 476] a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the security assessment.

39B

Certain documents and information not to be disclosed in Security Division review of security assessment Scope (1)

This section applies to a proceeding in the Security Division to which section 39A applies.

Attorney-General may issue public interest certificate (2) If the Attorney-General certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest: (a) because it would prejudice security or the defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or

(c)

for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed;

the following provisions of this section have effect. Protection of information etc. (3) A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure: (a) that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and (b) in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced. (4) Subsection (3) does not apply in relation to disclosure to the Director-General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a). Disclosure of information etc. (5) If: (a) the Attorney-General has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document [page 477] would be contrary to the public interest but the certificate

does not state a reason referred to in paragraph (2)(a) or (b); and (b) the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the Attorney-General; the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant. What presiding member must consider in deciding whether to authorise disclosure of information etc. (6) In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5): (a) the presiding member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but (b) the presiding member must pay due regard to any reason stated by the Attorney-General in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest. Disclosure of information etc. to staff of Tribunal (7) This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff. Public interest (8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding. Copy of document

(9)

If the Attorney-General has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first-mentioned document as if the copy were the original document.

Certificate lodged under subsection 38A(1) (10) For the purposes of this section, if the Director-General of Security, in accordance with subsection 38A(1), has lodged with the Tribunal a certificate of the Attorney-General given under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security. [page 478] Duty of Tribunal (11) It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.

Division 5—Procedural powers of Tribunal 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.

Oath or affirmation (2) The member who presides at the hearing of a proceeding before the Tribunal:

(a)

may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation; and (b) may administer an oath or affirmation to a person so appearing before the Tribunal. Power to take evidence (3) The power (the evidence power) of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation in a particular proceeding may be exercised on behalf of the Tribunal by: (a) the presiding member in relation to the review; or (b) another person (whether or not a member) authorised in writing by that member. (4) The evidence power may be exercised: (a) inside or outside Australia; and (b) subject to any limitations or requirements specified by the Tribunal. (5) If a person other than the presiding member has the evidence power: (a) the person has, for the purpose of taking the evidence, the powers of the Tribunal and the presiding member under subsections (1) and (2); and (b) this Act applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal or the presiding member. Incidental proceedings (7) The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an [page 479]

incidental proceeding) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.

40A

Power to summon person to give evidence or produce documents (1)

For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons: (a) appear before the Tribunal to give evidence; (b) produce any document or other thing specified in the summons. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.

(2) (3)

40B

The President or an authorised member may refuse a request to summon a person. A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless: (a) the summons or another summons requires the person to appear before the Tribunal; or (b) the Tribunal directs the person to attend the hearing.

Inspection of documents produced under summons (1)

Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding: (a) the President;

(b) an authorised member; (c) an authorised officer. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.

(2)

However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if: (a) the officer considers that it is not appropriate for the officer to make the decision; or [page 480]

(3)

41

(b) a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal. If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons: (a) a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and (b) the Tribunal may reconsider the decision on such an application or its own initiative; and (c) the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document.

Operation and implementation of a decision that is subject to review (1)

(2)

Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the

relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.

(3)

(4)

Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first-mentioned order. Subject to subsection (5), the Tribunal shall not: (a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or (b) make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless: (i) the person who made the decision to which the relevant proceeding relates; [page 481] (ii) the person who requested the making of the order under subsection (2); and (iii) if the order under subsection (2) has previously been

varied by an order or orders under subsection (3)— the person or persons who requested the making of the last-mentioned order or orders;

(5)

(6)

42

have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter. Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person. An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or (ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation.

Resolving disagreements (1)

If the Tribunal is constituted for the purposes of a proceeding by 3 members, a disagreement between the members is to be

(2)

42A

settled according to the opinion of the majority of the members. If the Tribunal is constituted for the purposes of a proceeding by 2 members, a disagreement between the members is to be settled according to the opinion of the presiding member.

Discontinuance, dismissal, reinstatement etc. of application Dismissal if parties consent (1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review. [page 482] (1AAA) For the purposes of subsection (1), the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required. Deemed dismissal—applicant discontinues or withdraws application (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. (1AA) If a proceeding is in the Social Services and Child Support Division and is not a child support first review, the person may notify the Tribunal orally of the withdrawal or discontinuance. The person who receives the notification must make a written record of the day of receipt. (1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

Dismissal if party fails to appear (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant— dismiss the application without proceeding to review the decision; or (b) in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding. Dismissal if decision is not reviewable (4) The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction (5) If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision. Dismissal if party fails to appear—giving of appropriate notice (7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be. [page 483]

Reinstatement of application (8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8A), apply to the Tribunal for reinstatement of the application. (8A) For the purposes of subsection (8), the period is: (a) 28 days after the person receives notification that the application has been dismissed; or (b) if the person requests an extension—such longer period as the Tribunal, in special circumstances, allows. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

42B

Power of Tribunal if a proceeding is frivolous, vexatious etc. (1)

(2)

The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application: (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) has no reasonable prospect of success; or (c) is otherwise an abuse of the process of the Tribunal. If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(3)

42C

The direction has effect despite any other provision of this Act or any other Act.

Power of Tribunal if parties reach agreement (1)

If, at any stage of a proceeding for a review of a decision: (a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and [page 484] (c)

(2)

(3)

the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;

the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing. If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter

arising out of the proceeding, as the case may be, to which the agreement relates. Limitation for administrative assessments of child support (4) The Tribunal must not act in accordance with subsection (2) or (3) to give effect to an agreement in relation to a departure from administrative assessment of child support in accordance with Part 6A of the Child Support (Assessment) Act 1989, unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters set out in subsections 117(4) and (5) of that Act. Variation or revocation of decisions other than on child support first reviews (5) The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if: (a) the parties, or their representatives, reach agreement on the variation or revocation; and (b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and (c) the variation or revocation appears appropriate to the Tribunal; and (d) in the case of a variation—the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied. (6) Subsection (5) does not apply to a decision made on child support first review.

42D

Power to remit matters to decision-maker for further consideration (1)

At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person. [page 485]

Powers of person to whom a decision is remitted (2) If a decision is so remitted to a person, the person may reconsider the decision and may: (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and make a new decision in substitution for the decision set aside. Note: For time limits, see subsection (5).

(3)

(4)

If the person varies the decision: (a) the application is taken to be an application for review of the decision as varied; and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied; or (ii) withdraw the application. If the person sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision; and (b) the person who made the application may either: (i) proceed with the application for review of the new decision; or (ii) withdraw the application.

Time limits (5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable: (a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period; (b) in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person. (6) The Tribunal may, on the application of the person, extend the

(7)

(8)

period applicable under subsection (5). If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision. If the person affirms the decision, the proceeding resumes.

Division 6—Tribunal’s decision on review 43

Tribunal’s decision on review (1A)

This section has effect subject to section 43AAA and to subsection 65(3) of the Australian Security Intelligence Organisation Act 1979. [page 486]

Tribunal’s decision on review (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Tribunal must give reasons for its decision (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. (2A) Where the Tribunal does not give reasons in writing for its

(2B)

decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement. Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

Tribunal must give copies of its decision to parties (3) The Tribunal shall cause a copy of its decision to be given to each party to the proceeding. Evidence of Tribunal’s decision or order (4) Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar, to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order. (5) Subsections (3) and (4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision. Tribunal must notify parties of further review rights (5AA) When the Tribunal gives a party to a proceeding a copy of its decision, the Tribunal must also give the party a written notice that includes a statement setting out the following, as applicable: (a) the party’s right to apply for second review of the decision; (b) the party’s right to appeal to a court on a question of law. [page 487] (5AB) Subsection (5AA) does not apply in relation to the agency party

to a proceeding in the Social Services and Child Support Division. (5AC) A failure to comply with subsection (5AA) in relation to a decision of the Tribunal does not affect the validity of the decision. When Tribunal’s decision comes into operation (5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision. (5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date. (5C) Despite subsections (5A) and (5B), if: (a) the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and (b) the order was in force immediately before the decision given by the Tribunal on the review; then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit Court of Australia otherwise orders, the operation or implementation of the Tribunal’s decision is stayed until: (c) subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or (d) if such an appeal is brought—the appeal is determined. Tribunal’s decision taken to be decision of decision-maker (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in

accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

Division 7—Miscellaneous 43AAAFindings of Tribunal in Security Division review of security assessment Scope (1)

This section applies to a review in the Security Division. [page 488]

Findings (2) Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment. (3) The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security. Copies of findings to be given to parties etc. (4) Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director-General of Security, the Commonwealth agency to which the assessment was given and the Attorney-General.

(5)

The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency to which the assessment was given.

Applicant may publish findings (6) Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her. Tribunal may attach comments to findings (7) The Tribunal may attach to a copy of findings to be given to the Director-General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review. (8) The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).

43AA Correction of errors in decisions or statement of reasons Correction of errors (1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal. [page 489] (2)

If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.

Examples of obvious errors (3) Examples of obvious errors in the text of a decision or statement of reasons are where: (a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or (b) there is an inconsistency between the decision and the statement of reasons. Exercise of powers (4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceeding to which the decision relates.

Part IVA—Appeals and references of questions of law to the Federal Court of Australia 43B

Part applies whether Tribunal’s power conferred by an enactment or by a law of a State (1)

This Part applies in relation to a proceeding that was before the Tribunal before the commencement of this section, or that is before the Tribunal after that commencement, under power conferred on it by or under: (a) an enactment; or (b) a law of a State. Note: The enactment may be regulations made for the purposes of subsection 25(2) (review of decisions made in the exercise of powers conferred by a Norfolk Island enactment).

(2)

43C

This Part has effect in relation to a proceeding before the Tribunal under power conferred on it by a law of a State as if a reference in this Part to a provision of this Act that is not in this Part were a reference to that provision as applying as a law of the State.

Part does not apply in relation to certain migration

decisions This Part does not apply to an application in relation to, or a proceeding for the review of, any of the following within the meaning of the Migration Act 1958: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. [page 490]

44

Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. Note 1: This Part does not apply to certain migration proceedings (see section 43C). Note 2: A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).

(1A)

Subsection (1) does not apply in relation to a proceeding in the Social Services and Child Support Division, other than a proceeding: (a) that is a child support first review; or (b) for review of an AAT reviewable employer decision within the meaning of the Paid Parental Leave Act 2010.

Appeal about standing (2) Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.

Note: This Part does not apply to applications in relation to certain migration decisions (see section 43C).

When and how appeal instituted (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. (2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A) (a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA. [page 491] Jurisdiction (3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction: (a) may be exercised by that Court constituted as a Full Court; (b) shall be so exercised if: (i) the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President who is

not a Judge; and (ii) after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; (c)

and shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.

Powers of Federal Court (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. Constitution of Tribunal if Federal Court remits case etc. (6) If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal: (a) the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and (b) whether or not the Tribunal is reconstituted for the hearing—the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court. Federal Court may make findings of fact

(7)

If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and [page 492]

(8)

(9)

(b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may: (a) have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. Subsection (7) does not limit the Federal Court of Australia’s

(10)

power under subsection (5) to make an order remitting the case to be heard and decided again by the Tribunal. The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).

44AAA Appeals to Federal Circuit Court from decisions of the Tribunal in relation to child support first reviews (1)

(2)

(3)

If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. The following provisions of this Part apply in relation to any such appeal as if the appeal were an appeal under subsection 44(1) and a reference in those provisions to the Federal Court of Australia were a reference to the Federal Circuit Court of Australia: (a) subsections 44(2A) to (10) (other than paragraphs 44(3)(a) to (c)); (b) section 44A (other than subsection (2A)); (c) paragraphs 46(1)(a) and (b). Paragraph 44(2A)(b) applies in relation to any such appeal as if the reference in that paragraph to rules of court made under the Federal Court [page 493]

(4)

of Australia Act 1976 were a reference to rules of court made under the Federal Circuit Court of Australia Act 1999. Subsection (1) does not affect the operation of subsection 44(1) in relation to a proceeding that is a child support first review.

44AA Transfer of appeals from Federal Court to Federal Circuit

Court Transfer of appeals (1) If an appeal under subsection 44(1) or (2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit Court of Australia. (2) However, the Federal Court of Australia must not transfer an appeal to the Federal Circuit Court of Australia if the appeal: (a) relates to a decision given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; or (c) is of a kind specified in the regulations. (3) The Federal Court of Australia may transfer an appeal under subsection (1): (a) on the application of a party to the appeal; or (b) on its own initiative. Federal Court Rules (4) Rules of Court made under the Federal Court of Australia Act 1976 may make provision in relation to transfers of appeals to the Federal Circuit Court of Australia under subsection (1). (5) In particular, Rules of Court made under the Federal Court of Australia Act 1976 may set out factors that are to be taken into account by the Federal Court of Australia in deciding whether to transfer appeals to the Federal Circuit Court of Australia under subsection (1). (6) Before Rules of Court are made for the purposes of subsection (4) or (5), the Federal Court of Australia must consult the Federal Circuit Court of Australia. Matters to which the Federal Court must have regard in transferring appeal (7) In deciding whether to transfer an appeal to the Federal Circuit Court of Australia under subsection (1), the Federal Court of Australia must have regard to: (a) any Rules of Court made for the purposes of subsection

(5); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and (c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the appeal; and (d) the interests of the administration of justice. [page 494] Jurisdiction (8) The Federal Circuit Court of Australia has jurisdiction to hear and determine appeals transferred to it under subsection (1). Powers etc. (9) Subsections 44(4), (5) and (6) apply in relation to the hearing and determination of an appeal transferred to the Federal Circuit Court of Australia under subsection (1) of this section in a corresponding way to the way in which they apply to the hearing and determination of an appeal by the Federal Court of Australia. No appeal from decision of Federal Court (10) An appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under subsection (1). Federal Circuit Court may make findings of fact (11) If an appeal under subsection 44(1) is transferred to the Federal Circuit Court of Australia under subsection (1) of this section, subsections 44(7), (8) and (9) apply in relation to the making of findings of fact by the Federal Circuit Court of Australia in a corresponding way to the way in which they apply to the making of findings of fact by the Federal Court of Australia. (12) The jurisdiction of the Federal Circuit Court of Australia under

subsection (8) of this section includes jurisdiction to make findings of fact under subsection 44(7) (as applied by subsection (11) of this section).

44A

Operation and implementation of a decision that is subject to appeal Appeal does not affect operation of Tribunal’s decision (1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision. Stay orders (2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following: (a) the decision of the Tribunal or a part of that decision; and (b) the decision to which the proceeding before the Tribunal related or a part of that decision;

(2A)

as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. If an appeal from a decision of the Tribunal is transferred from the Federal Court of Australia to the Federal Circuit Court of Australia, the Federal Circuit Court of Australia or a Judge of the Federal Circuit Court of [page 495] Australia may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

(a) the decision of the Tribunal or a part of that decision; (b) the decision to which the proceeding before the Tribunal related or a part of that decision;

(3)

(4)

45

as the Federal Circuit Court of Australia or Judge of the Federal Circuit Court of Australia considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. If an order is in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under this subsection): (a) the Federal Court of Australia or a Judge of that Court; or (b) the Federal Circuit Court of Australia or a Judge of that Court; may make an order varying or revoking the first-mentioned order. An order in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under subsection (3)): (a) is subject to such conditions as are specified in the order; and (b) has effect until: (i) where a period for the operation of the order is specified in the order—the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or (ii) where no period is so specified—the giving of a decision on the appeal.

Reference of questions of law to Federal Court of Australia (1)

The Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. The Tribunal may

do so on its own initiative or at the request of a party to the proceeding. Note: This Part does not apply to certain migration proceedings (see section 43C).

(2) (2A)

(3)

The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section. If, after consulting the President, the Chief Justice of the Court considers it appropriate, that jurisdiction is to be exercised by the Court constituted as a Full Court. Where a question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding: (a) give a decision to which the question is relevant while the reference is pending; or [page 496] (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.

46

Sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit Court Sending of documents to courts (1) When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45: (a) the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3), cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal or reference; and (b) except in the case of an appeal that is transferred to the Federal Circuit Court of Australia—at the conclusion of the proceeding before the Federal Court of Australia in

(c)

relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and in the case of an appeal that is transferred to the Federal Circuit Court of Australia: (i) the Federal Court of Australia must cause the documents to be sent to the Federal Circuit Court of Australia; and (ii) at the conclusion of the proceedings before the Federal Circuit Court of Australia in relation to the appeal, the Federal Circuit Court of Australia must cause the documents to be returned to the Tribunal.

Disclosure of documents by courts (2) If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit Court of Australia shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit Court of Australia as mentioned in subparagraph (1)(c)(i). (3) If: (a) the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a), as the case may be; (b) a question for decision by the Federal Court of Australia or the Federal Circuit Court of Australia is whether the matter should be [page 497]

(c)

(4)

disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and the court decides that the matter should be so disclosed;

the court shall permit the part of the document in which the matter is contained to be inspected accordingly. Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.

…

Part VI—Miscellaneous 59

Advisory opinions (1)

(2)

If an enactment so provides, the Tribunal may give an advisory opinion on a matter or question referred to it in accordance with the enactment and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate. If the regulations so provide, the Tribunal may give an advisory opinion on a matter or question: (a) arising under a Norfolk Island enactment; and (b) referred to the Tribunal in accordance with the regulations; and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate.

59A

Authorised members (1)

(2)

The President may, in writing, authorise a member to be an authorised member for the purposes of one or more specified provisions of this Act or any other enactment. The authorisation may be general or limited to specified

decisions or proceedings.

59B

Authorised officers (1)

(2)

60

The President may, in writing, authorise an officer of the Tribunal to be an authorised officer for the purposes of one or more specified provisions of this Act or any other enactment. The authorisation may be general or limited to specified decisions or proceedings.

Protection of members, alternative dispute resolution practitioners, officers of the Tribunal, barristers and witnesses Members (1) A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court. [page 498] Alternative dispute resolution practitioners (1A) An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Act, the same protection and immunity as a Justice of the High Court. Officers of the Tribunal (1B) An officer of the Tribunal has, in the performance of his or her duties as an officer of the Tribunal under subsections 29(9) and 29AC(2), paragraph 33(2)(a) and sections 40, 40A, 40B and 69A, the same protection and immunity as a Justice of the High Court. Barristers etc. (2) A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and

immunity as a barrister has in appearing for a party in proceedings in the High Court. Witnesses (3) Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court. (4) In this section: alternative dispute resolution practitioner means a person who conducts an alternative dispute resolution process under Division 3 of Part IV.

61

Failure to comply with summons (1)

(2)

A person commits an offence if: (a) the person is given, in accordance with any applicable regulations or directions, a summons referred to in section 40A; and (b) the person fails to comply with the summons. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Subsection (1) does not apply if complying with the summons might tend to incriminate the person. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

62

Refusal to be sworn or to answer questions Oath or affirmation (1) A person commits an offence if: (a) the person appears as a witness before the Tribunal; and (b) the person has been required under section 40 either to take an oath or make an affirmation; and (c) the person fails to comply with the requirement. Penalty: Imprisonment for 12 months or 60 penalty units, or both.

[page 499] Questions (3) A person commits an offence if: (a) the person appears as a witness before the Tribunal; and (b) the member presiding at the proceeding has required the person to answer a question; and (c) the person fails to answer the question.

(4)

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Subsection (3) does not apply if answering the question might tend to incriminate the person. Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

62A

False or misleading evidence A person commits an offence if: (a) the person appears as a witness before the Tribunal; and (b) the person gives evidence; and (c) the person does so knowing that the evidence is false or misleading. Penalty: Imprisonment for 12 months or 60 penalty units, or both.

62B

Extended operation of certain provisions Sections 61, 62 and 62A apply in relation to a directions hearing or an alternative dispute resolution process under Division 3 as if it were a proceeding before the Tribunal.

62C

Breach of non-disclosure order A person commits an offence if: (a) the person engages in conduct; and (b) the conduct contravenes an order under subsection 35(3) or (4) or 35AA(2).

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

63

Contempt of Tribunal (1)

(2)

A person commits an offence if: (a) the person engages in conduct; and (b) the conduct obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal. Penalty: Imprisonment for 12 months or 60 penalty units, or both. A person commits an offence if: (a) the person engages in conduct; and (b) the conduct would, if the Tribunal were a court of record, constitute a contempt of that court. Penalty: Imprisonment for 12 months or 60 penalty units, or both. [page 500]

64

Registries The Minister may establish such registries of the Tribunal as the Minister thinks fit.

66

Confidential information not to be disclosed Protected documents and information (1) An entrusted person must not be required to produce a protected document, or disclose protected information, to a court except so far as necessary for the purposes of carrying into effect the provisions of this Act or another enactment conferring powers on the Tribunal. (2) An entrusted person must not be required to produce a protected document, or disclose protected information, to a parliament if:

(a)

the document or information relates to a Part 7-reviewable decision within the meaning of the Migration Act 1958; and (b) the production or disclosure is not necessary for the purposes of carrying into effect the provisions of this Act or another enactment conferring powers on the Tribunal. Tribunal proceedings (3) A person who is, or has been, a member of the Tribunal shall not be required to give evidence to a court in relation to any proceedings before the Tribunal. Definitions (4) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. enactment includes a Norfolk Island enactment. entrusted person means any of the following: (a) a person who is or has been a member of the Tribunal; (b) a person who is or has been an officer of the Tribunal; (c) a person who is or has been a member of the staff of the Tribunal; (d) a person who is or has been engaged by the Tribunal to provide services to the Tribunal during a proceeding before the Tribunal. parliament means: (a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or (b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory. produce includes permit access to. protected: a document or information is protected if it concerns

a person and was obtained by an entrusted person in the course of the entrusted person’s duties. [page 501] Note: Section 81 of the Australian Security Intelligence Organisation Act 1979 contains additional provisions relating to secrecy that apply to members and officers of the Tribunal.

66A

Application of confidentiality provisions in other Acts (1)

If: (a)

a provision of an enactment (other than this Act) prohibits the disclosure, whether absolutely, in certain circumstances only or subject to conditions, of information by persons who: (i) are included in a particular class of persons; and (ii) acquired the information in the course of their duties under the enactment; and (b) a person who is or has been a member, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires any such information in the course of his or her duties as such a member, officer or member of the staff;

(2)

that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under the enactment. In this section:

enactment includes a Norfolk Island enactment.

66B

Publication of Tribunal decisions (1) (2)

The Tribunal may, by any means it considers appropriate, publish its decisions and the reasons for them. Subsection (1) does not authorise the Tribunal to publish information the disclosure of which is prohibited or restricted

by or under this Act or any other enactment conferring jurisdiction on the Tribunal.

67

Fees for compliance with summons (1)

(2)

A person who, under a prescribed provision of this Act or another enactment, is required to give evidence, or produce a document or give information, for the purposes of a proceeding before the Tribunal is to be paid, in accordance with the regulations, any fee or allowance prescribed by the regulations in relation to compliance with the requirement. Without limiting the matters that may be dealt with by regulations made for the purposes of subsection (1), the regulations may: (a) prescribe circumstances in which a fee or allowance is not payable; or (b) provide that a fee or allowance is to be paid: (i) if the requirement was made of the person at the request of a party to the proceeding—by the party; or (ii) by the Commonwealth. [page 502]

67A

Giving of notices (1)

A notice that is required or permitted by this Act to be given to the person who made a decision (other than a decision under a Norfolk Island enactment) may be given to: (a) the Secretary of the Department administered by the Minister who administers: (i) the enactment under which the decision was given; or (ii) if that enactment was made in pursuance of a power contained in another enactment—that other enactment; or (b) if a provision of the regulations or of any other enactment

(2)

68

prescribes the holder of a particular office as a person to whom notices may be given under this Act in relation to a class of decisions in which that decision is included—the holder of that office. A notice that is required or permitted by this Act to be given to the person who made a decision under a Norfolk Island enactment may be given to the Chief Executive Officer (within the meaning of the Public Service Act 2014 of Norfolk Island).

Giving documents (1)

(2)

(3)

A document or thing that is required or permitted by this Act or another enactment to be lodged with or given to the Tribunal must be lodged or given: (a) in the manner prescribed by regulations made under this Act or the other enactment; or (b) if those regulations do not prescribe a manner—in accordance with any direction under section 18B. A document that is required or permitted by this Act or another enactment to be given to a person for the purposes of a proceeding before the Tribunal must be given to the person: (a) in the manner prescribed by regulations made under this Act or the other enactment; or (b) if those regulations do not prescribe a manner—in accordance with any direction under section 18B. Subsections (1) and (2) do not apply to the extent to which this Act or another enactment specifies how a document or thing is to be lodged with or given to the Tribunal, or given to a person, for the purposes of a proceeding before the Tribunal.

68AA President’s directions If the President gives a direction that, under this Act, is to be a written direction, a failure to give the direction in writing does not invalidate anything done in accordance with or otherwise in relation to or as a consequence of the direction.

[page 503]

68A

Calculation of short periods of time (1)

(2)

69

If the period of time for doing anything under this Act or any other Act, or in accordance with a direction of the Tribunal, in relation to a proceeding is a period of less than 7 days, any day on which the Registry of the Tribunal in which the relevant application was lodged is not open to the public is not to be counted in working out whether the period has ended. Subsection (1) does not apply in relation to a proceeding in the Migration and Refugee Division.

Legal assistance (1)

(2)

(3)

A person who: (a) has made, or proposes to make, an application to the Tribunal for a review of a decision; (b) is a party to a proceeding before the Tribunal instituted by another person; or (c) proposes to institute a proceeding, or is a party to a proceeding instituted, before a court in respect of a matter arising under this Act; may apply to the Attorney-General for the provision of assistance under this section in respect of the proceeding. Where an application is made by a person under subsection (1), the Attorney-General may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the proceeding as the Attorney-General determines. This section does not apply if the powers of the Tribunal in relation to the application, proceeding or matter concerned are

or would be exercisable in the Migration and Refugee Division or the Social Services and Child Support Division.

69A

Procedure for taxing costs (1)

If: (a)

the Tribunal has, under this Act or another enactment, ordered a party to a proceeding to pay reasonable costs incurred by another party; and (b) the parties cannot agree on the amount of those costs; (2)

(3)

the Tribunal or an officer of the Tribunal may tax the costs. If an officer of the Tribunal has taxed the costs in accordance with subsection (1), either party may apply to the Tribunal for review of the taxed amount. If a party does so, the Tribunal must review the taxed amount and may: [page 504]

(4)

69B

(a) affirm the amount; or (b) set aside the amount and substitute another amount; or (c) set aside the amount and remit the matter to the officer of the Tribunal to be taxed in accordance with the directions of the Tribunal. An amount that a party to a proceeding is required to pay to another party under an order made by the Tribunal is recoverable by the other party as a debt due to the other party by the first-mentioned party.

Costs in Security Division review of security assessment (1)

If: (a)

a person makes an application under section 54 of the Australian Security Intelligence Organisation Act 1979 to the Tribunal for a review of an adverse or qualified security assessment in respect of the person; and

(b) the applicant was, in the opinion of the Tribunal, successful, or substantially successful, in the application for review; and (c) the Tribunal is satisfied that it is appropriate to do so in all the circumstances of the case;

(2)

the Tribunal may order that the costs reasonably incurred by the applicant in connection with the application, or any part of those costs that is determined by the Tribunal, be paid by the Commonwealth. For the purposes of section 69A, the Commonwealth is taken to be a party to the proceeding referred to in subsection (1) of this section.

69BA Termination of certain applications (1)

(2)

(3)

(4)

69C

Sections 42A and 42B, except subsection 42A(4), apply in relation to an application described in paragraph (b), (c), (d), (e), (f) or (h) of the definition of proceeding in subsection 3(1) in the same way as those sections apply in relation to an application for a review of a decision. Subsection 42A(1) applies under subsection (1) of this section as if it did not include the words “without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review”. Subsections 42A(1B) and (5) and paragraph 42A(2)(a) apply under subsection (1) of this section as if they did not include the words “without proceeding to review the decision”. Subsection 42A(2) applies under subsection (1) of this section as if it did not include the words “(not being the person who made the decision)”.

Dismissal of application for non-payment of application fee (1)

The Tribunal may dismiss an application to the Tribunal if: (a) regulations under section 70 prescribe a fee to be payable in respect of the application; and

[page 505]

(2)

70

(b) the fee has not been paid by the time worked out under regulations under section 70. Subsection (1) does not apply to an application for review of a decision that is reviewable in the Migration and Refugee Division.

Regulations (1)

(2)

(3)

The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act. Without limiting the generality of subsection (1): (a) the regulations may make provision: (i) prescribing fees to be payable in respect of applications to the Tribunal; and (ia) prescribing fees to be payable in respect of the taxation of costs ordered by the Tribunal to be paid; and (ii) for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant; and (b) regulations prescribing fees may: (i) prescribe fees in respect of a particular class or classes of applications only; and (ii) prescribe different fees in respect of different classes of applications. Without limiting the generality of subsection (1), the regulations may make provision: (a) prescribing fees to be payable in respect of proceedings before the Tribunal; and (b) for, or in relation to, the waiver (in whole or in part) of such fees.

[page 506]

APPENDIX 2 EXTRACTS FROM ADMINISTRATIVE APPEALS TRIBUNAL REGULATION 2015 (CTH) Part 1—Preliminary 1

Name

5

Definitions

Part 3—Applications for review 10

Time to oppose application to extend time for making application for review

Part 4—Summons 11

Form of summons

12

Giving a summons

13

Fees and allowances in relation to compliance with summons

14

Who must pay fees and allowances

15

When fees and allowances are payable

Part 5—Giving documents

16

Address for documents

17

Giving documents to a person

18

Time an electronic communication is taken to be given to a person

Part 6—Fees 19

Scope of operation of this Part

20

Fees

21

Concessional circumstances

22

Decisions for which application fee is not payable

23

Multiple applications

24

Consequence if application not accompanied by prescribed fee [page 507]

25

Consequences if the Tribunal considers that the amount in dispute is not less than $5 000

26

Refunds

27

Biennial increase in fees

28

Review by Tribunal—certain fee payment decisions [page 508]

Part 1—Preliminary 1

Name This is the Administrative Appeals Tribunal Regulation 2015. …

5

Definitions Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) (b) (c) (d) (e)

Commonwealth agency; enactment; proceeding; State; Tribunal.

In this instrument: Act means the Administrative Appeals Tribunal Act 1975. address for documents, for a person: (a) means an address where documents for a proceeding may be posted to or left for the person (and which may also include a DX address, a fax number, an email address or another electronic address); and (b) includes an address the person is taken to have provided under subsection 29(1A) of the Act. approved form means a form approved under subsection 7(1). document, for Part 5, includes a summons. electronic communication has the same meaning as in the Electronic Transactions Act 1999. government agency means: (a) a Commonwealth agency; or (b) a Department of State of the Commonwealth, or of a State; or (c) a statutory office-holder established under a law of the Commonwealth, or of a State, or under a Norfolk Island enactment; or (d) any other entity established for a public purpose under a law of a State or under a Norfolk Island enactment. …

Part 3—Applications for review …

10

Time to oppose application to extend time for making application for review For subsection 29(10) of the Act, the prescribed time to give a notice opposing an application for an extension of time is 14 days. [page 509]

Part 4—Summons 11

Form of summons A summons referred to in section 40A of the Act must be in the approved form.

12

Giving a summons (1) (2)

13

This section is made for paragraph 61(1)(a) of the Act. A summons referred to in section 40A of the Act is taken to be given to a person (the named person) named in the summons if the summons is given to the named person: (a) in a way mentioned in section 17; or (b) in a way agreed between the named person and the person giving the summons; or (c) in any other way, if the person giving the summons receives, from the named person, a written acknowledgement that the named person has been given the summons.

Fees and allowances in relation to compliance with summons (1)

For subsection 67(1) of the Act, this section prescribes fees and allowances payable to a person in relation to compliance with

(2)

the following summonses: (a) a summons referred to in section 40A of the Act; (b) a summons referred to in paragraph 363(3)(a) of the Migration Act 1958; (c) a summons referred to in paragraph 427(3)(a) of the Migration Act 1958. Fees or allowances are not payable to a person who is a party to the proceeding, unless the Tribunal orders otherwise.

Fees and allowances for appearance (3) The fee payable to a person who is summoned to appear before the Tribunal to give evidence is: (a) if the person is remunerated in his or her occupation by wages, salary or fees—the amount of wages, salary or fees that are not paid to the person because the person attends the Tribunal; or (b) in any other case—a reasonable amount for each day on which the person attends the Tribunal. (4) The allowances payable to a person who is summoned to appear before the Tribunal to give evidence are: (a) a reasonable amount for travel between the person’s usual place of employment or residence and the place where the person attends the Tribunal; and (b) if the person is required to be absent overnight from the person’s usual place of residence—a reasonable amount for meals and accommodation. [page 510] (5)

However, a person is not entitled to an allowance for travel, meals or accommodation if the person is given the equivalent in kind (such as access to pre-paid travel, meals or accommodation).

Allowances for production of things (6) For a summons referred to in section 40A of the Act, the allowances payable for a person who is summoned to produce something are the person’s reasonable expenses of producing the thing. Tribunal may determine fees and allowances if amount not agreed (7) If a person was summoned at the request of a party to the proceeding, the person may apply to the Tribunal for a determination of the amount of fees or allowances payable under subsection (3), (4) or (6) in relation to compliance with the summons, if the person and the payer cannot agree on the amount. (8) A person is not excused from complying with a summons only because the person thinks that an amount paid to the person under this section is not sufficient.

14

Who must pay fees and allowances General (1) The fees and allowances payable to a person in relation to compliance with a summons under section 40A of the Act must be paid by: (a) if the person was summoned at the request of a party to the proceeding—that party; or (b) otherwise—the Commonwealth. (2) The Tribunal may order that the fees and allowances of a person referred in in paragraph (1)(a) be paid, in whole or in part, by the Commonwealth. Migration and Refugee Division (3) The fees and allowances payable to a person in relation to compliance with a summons referred to in paragraph 363(3)(a) or 427(3)(a) of the Migration Act 1958 must be paid by: (a) if the applicant notified the Tribunal under subsection 361(2) or 426(2) of the Migration Act 1958 that he or she wants the Tribunal to obtain evidence from the person—

the applicant; or (b) otherwise—the Commonwealth.

15

When fees and allowances are payable A person who is summoned must be paid: (a) their fees as soon as practicable after the person has attended the Tribunal in accordance with the summons; and [page 511] (b) their allowances: (i) when the person is given the summons; or (ii) within a reasonable time before the day the person is required to attend the Tribunal in accordance with the summons.

Part 5—Giving documents 16

Address for documents (1)

An applicant for review of a decision must give the Tribunal an address for documents when making the application. Note: If the applicant does not do so, any address shown in the application or an address for documents later notified to the Tribunal is taken, under subsection 29(1A) of the Act, to be the applicant’s address for documents.

(2)

(3) (4) (5)

Each other party to the proceeding (unless the proceeding is in the Social Services and Child Support Division) must give the Tribunal an address for documents within 28 days after being given notice of the application. A person who is not a party to the proceeding may give the Tribunal an address for documents. If a person wishes to change their address for documents, the person must tell the Tribunal about the change. This section does not apply in relation to a decision that is

reviewable in the Migration and Refugee Division.

17

Giving documents to a person (1)

For subsection 68(2) of the Act, this section prescribes the manner in which a document is to be given to a person for the purposes of a proceeding before the Tribunal. Note: This section does not apply to the extent to which the Act or another enactment specifies how a document is to be given to a person for the purposes of a proceeding before the Tribunal (see subsection 68(3) of the Act).

(2)

A document is to be given to the person: (a) if the Tribunal has ordered that the document be given in a specified manner—in accordance with the order; or (b) in accordance with subsections (3) to (7) as applicable.

Giving documents to a person with address for documents (3) If a person has an address for documents, a document may be given to the person by: (a) leaving the document in a sealed envelope addressed to the person at that address; or (b) sending the document by pre-paid post addressed to the person at that address; or [page 512] (c)

sending the document to a DX address, fax number, email address or other electronic address included in the person’s address for documents.

Giving documents to individuals (4) A document may be given to an individual by: (a) handing the document to the individual; or (b) putting the document down in the person’s presence and telling the individual the general nature of the document; or (c) sending the document by pre-paid post addressed to the

individual to the last known address of the place of residence or business of the individual; or (d) leaving the document in a sealed envelope addressed to the individual at the last known address of the place of residence or business of the individual. Giving documents to corporations (5) A document may be given to a corporation: (a) by leaving the document in a sealed envelope addressed to the corporation at the head office, a registered office or a principal office of the corporation; or (b) by sending the document by pre-paid post addressed to the corporation to the head office, a registered office or a principal office of the corporation; or (c) if the corporation is a company within the meaning of section 9 of the Corporations Act 2001—in any way allowed by section 109X of that Act; or (d) in any other way that is allowed under: (i) a law of the Commonwealth or of the State in which the document is to be given; or (ii) a Norfolk Island enactment if the document is to be given in Norfolk Island. Giving documents to government agencies (6) A document may be given to a government agency by: (a) sending the document by pre-paid post addressed to the agency; or (b) leaving the document in a sealed envelope addressed to the agency at an office of the agency. Giving documents to unincorporated associations (7) A document may be given to a person representing an unincorporated association by: (a) sending the document by pre-paid post addressed to the association; or

[page 513] (b) leaving the document in a sealed envelope addressed to the association: (i) at the association’s principal place of business or principal office; and (ii) with a person who is apparently an officer of, or in the service of, the association.

18

Time an electronic communication is taken to be given to a person For the purposes of paragraph 17(3)(c), a document given to a person by means of an electronic communication is taken to have been given on the day the electronic communication was dispatched. Note: See section 29 of the Acts Interpretation Act 1901 for the time at which a document given by post is taken to have been given.

Part 6—Fees 19

Scope of operation of this Part This Part does not apply in relation to a decision that is reviewable in the Migration and Refugee Division.

20

Fees Standard application fee (1) The fee of $861 is prescribed in respect of: (a) an application for review of a decision (other than an application referred to in subsection (2) or section 22); or (b) an application under subsection 28(1AC) of the Act; or (c) an application under subsection 62(2) of the Freedom of Information Act 1982. Note: The fee is indexed under section 27.

Lower application fee for certain taxation decisions (2) The fee of $85 is prescribed in respect of an application for

review of a decision: (a) that is a reviewable objection decision under Part IVC of the Taxation Administration Act 1953 and either: (i) the application states that the amount that the applicant considers to be the amount of tax in dispute is less than $5 000; or (ii) after the application is made, but before the start of the hearing of the application, the applicant notifies the Tribunal in writing that the amount that the applicant considers to be the amount of tax in dispute is less than $5 000; or (b) that is a reviewable objection decision under Part IVC of the Taxation Administration Act 1953 which relates to an application made by the applicant under section 340-5 of Schedule 1 to that Act; or [page 514] (c)

that is a decision refusing a request for an extension of time within which to make a taxation objection under section 14ZX of the Taxation Administration Act 1953.

Note: The fee is indexed under section 27.

Fee in concessional circumstances (3) However, the fee of $100 is prescribed instead of the amount referred to in subsection (1) or (2) if: (a) the amount of the fee prescribed under subsection (1) or (2) is more than $100; and (b) the circumstances in section 21 exist. Note: The fees prescribed under subsections (1) and (2) are indexed under section 27.

21

Concessional circumstances For paragraphs 20(3)(b) and 25(1)(d), the circumstances are the following:

(a)

(b) (c)

(d) (e) (f) (g) (h)

22

the applicant has been granted legal aid, under a legal aid scheme or service established under Commonwealth or State law or approved by the Attorney-General, for the matter to which the fee relates; the applicant is the holder of a concession card within the meaning of the Social Security Act 1991; the applicant is the holder of any other card issued by the Commonwealth that certifies entitlement to Commonwealth health concessions; the applicant is an inmate of a prison or is otherwise lawfully detained in a public institution; the applicant is a child under the age of 18 years; the applicant is in receipt of a youth allowance, or an austudy payment, within the meaning of the Social Security Act 1991; the applicant is in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme; the Registrar makes an order that, having regard to the applicant’s income, expenses, liabilities and assets, the Registrar considers that the payment of an amount would cause, or has caused, financial hardship to the applicant.

Decisions for which application fee is not payable No fee is prescribed in respect of an application for review of a decision mentioned in the following table. [page 515]

Decisions for which application fee is not payable Item Decision 1 A decision under paragraph 21(h) or section 23 A decision under each of the following provisions of the Aged Care Act 1997 that has been reconsidered under section 85-4 or 85-5 of that Act: (a) subsection 22-1(2);

2

3

4 5 6 7 8 9

10 11 12 13 14 15 16

(b) subsection 22-2(1); (c) subsection 22-2(3); (d) subsection 22-2(4); (e) paragraph 22-5(2)(b); (f) subsection 22-5(3); (g) subsection 23-4(1) A decision under the family assistance law within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999 (whether the application is for AAT first review or AAT second review of the decision) A decision referred to in section 89 of the Child Support (Registration and Collection) Act 1988 where the application is for AAT first review of the decision A decision under a determination under section 58B of the Defence Act 1903 A decision of the Commonwealth Superannuation Corporation reviewable under section 99 of the Defence Force Retirement and Death Benefits Act 1973 A decision under the Defence Service Homes Act 1918 A decision under Part III of the Disability Services Act 1986 A decision reviewable under the Freedom of Information Act 1982, being a decision made in relation to a document that relates to a decision specified in items 2 to 20 A decision under the Military Rehabilitation and Compensation Act 2004 (including a decision under the Motor Vehicle Compensation Scheme determined under section 212 of that Act) A decision under the National Disability Insurance Scheme Act 2013 A decision under the Paid Parental Leave Act 2010 where the application is for AAT first review of the decision A decision under the Papua New Guinea (Staffing Assistance) Act 1973 A decision under the Safety, Rehabilitation and Compensation Act 1988 A decision under the Seafarers Rehabilitation and Compensation Act 1992 A decision under the social security law within the meaning of the Social

Security Act 1991 (whether the application is for AAT first review or AAT second review of the decision) [page 516] Decisions for which application fee is not payable Item Decision A decision under section 33 of the Social Services Act 1980 of Norfolk 17 Island A decision under the Student Assistance Act 1973 other than a decision 18 under Division 6 of Part 4A of that Act (whether the application is for AAT first review or AAT second review of the decision) 19 A decision under the Superannuation Act 1976 20 A decision under the Veterans’ Entitlements Act 1986 A decision under a legislative instrument under the Veterans’ Entitlements 21 Act 1986

23

Multiple applications (1)

(2)

The Registrar may order that only one prescribed fee is payable in respect of 2 or more applications if: (a) apart from this subsection, the same prescribed fee would be payable in respect of each of the applications; and (b) the applications relate to the same applicant; and (c) in the opinion of the Registrar, the applications may be conveniently heard before the Tribunal at the same time. The Registrar may order that only one prescribed fee is payable in respect of 2 or more applications if: (a) apart from this subsection, a different prescribed fee would be payable in respect of at least one of the applications; and (b) the applications relate to the same applicant; and (c) in the opinion of the Registrar, the applications may be

(3)

24

conveniently heard before the Tribunal at the same time. The prescribed fee specified in an order made under subsection (2) must be equal to the highest prescribed fee that would, apart from subsection (2), be payable in respect of any of the applications.

Consequence if application not accompanied by prescribed fee (1)

(2)

If an application is not accompanied by the prescribed fee, the Tribunal is not required to deal with the application unless, and until, the fee is paid. For the purposes of paragraph 69C(1)(b) of the Act, the time by which the fee must be paid is the end of the 6 weeks starting on the day the application is lodged. Note: The Tribunal may dismiss the application under that section if the fee is not paid by that time.

[page 517]

25

Consequences if the Tribunal considers that the amount in dispute is not less than $5 000 (1)

If: (a)

an applicant paid the fee mentioned in subsection 20(2) on the basis that the applicant considers that the amount of tax in dispute is less than $5 000; and (b) the Tribunal considers that the amount of tax in dispute is not less than $5 000;

(2)

then the Tribunal may make an order declaring that the prescribed fee in respect of the application is: (c) the fee prescribed by subsection 20(1); or (d) if the circumstances in section 21 exist—the fee prescribed by subsection 20(3). The amount payable by the applicant is reduced by the amount

of the fee already paid. Consequence if fee not paid (3) The Tribunal is not required to deal with the application unless, and until, the fee is paid. (4) For the purposes of paragraph 69C(1)(b) of the Act, the time by which the fee must be paid is the end of the 6 weeks starting on the day the order is made. Note: The Tribunal may dismiss the application under that section if the fee is not paid by that time.

26

Refunds If a person paid a fee in the circumstances referred to in an item in the following table, the person is entitled to the refund amount specified in that item.

Refund amounts Item Fee Circumstance the person paid a fee 1 the fee was not payable referred to in this Part the person is not entitled to the person paid a fee 2 apply for review by the referred to in this Part Tribunal the decision to which the the person paid a fee application relates is not 3 referred to in this Part subject to review by the Tribunal

Refund amount the amount paid the amount paid

the amount paid

[page 518] Refund amounts Item Fee the person paid a fee

Circumstance

Refund amount the difference the person was liable to pay a between:

4

5

6

7

8

9

referred to in this Part lower fee

(a) the fee paid; and (b) the lower fee the difference between: the person paid fees in the Registrar makes an order (a) the total respect of more than under section 23 that only one amount of the fees one application fee is payable paid; and (b) the fee payable the person paid a fee the Registrar certifies that a the difference referred to in proceeding in respect of the between: subsection 20(1) in application has terminated in a (a) the fee paid; respect of an manner favourable to the and application applicant (b) $100 the person paid a fee the Registrar certifies that a the difference referred to in proceeding in respect of at between: subsection 20(1) in least one of those applications (a) the fee paid; respect of 2 or more has terminated in a manner and applications under favourable to the applicant (b) $100 section 23 the person paid a fee the Registrar certifies that a the difference referred to in proceeding in respect of the between: subsection 20(2) of an application has terminated in a (a) the fee paid; amount greater than manner favourable to the and $100 in respect of an applicant (b) $100 application the person paid a fee referred to in the Registrar certifies that a the difference subsection 20(2) of an proceeding in respect of at between: amount greater than least one of those applications (a) the fee paid; $100 in respect of 2 or has terminated in a manner and more applications favourable to the applicant (b) $100 under section 23 [page 519]

27

Biennial increase in fees (1)

On 1 July 2016 and each second 1 July following that day (an indexation day), the dollar amounts mentioned in subsections 20(1) and (2) (a fee provision) are each replaced by an amount worked out using the following formula:

(2)

The indexation factor for an indexation year is the number worked out using the following formula:

where: base quarter means the March quarter ending 2 years before the reference quarter ends. index number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter. March quarter means a period of 3 months ending on 31 March.

(3) (4) (5) (6)

reference quarter means the March quarter immediately before the indexation day. An indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more). Amounts worked out under subsection (1) are to be rounded to the nearest whole dollar (rounding 50 cents upwards). An indexation factor that is less than 1 is to be increased to 1. Calculations under subsection (2): (a) are to be made using only the index numbers published in terms of the most recently published index reference period; and

(b) are to be made disregarding index numbers that are published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).

28

Review by Tribunal—certain fee payment decisions (1)

A person may apply to the Tribunal for review of any of the following decisions by the Registrar in respect of a prescribed fee: (a) a decision not to make an order under paragraph 21(h); (b) a decision not to order that only one fee is payable under section 23. [page 520]

(2)

(3) (4)

If the Registrar makes a decision of that kind, a notice must be given to the person liable to pay the fee: (a) containing the terms of the decision; and (b) giving written reasons for the decision; and (c) containing a statement to the effect that, subject to the Act, application may be made to the Tribunal for review of the decision. A notice under subsection (2) must be given within 28 days after the day the decision is made. Failure to include in a notice under subsection (2) a statement of the kind mentioned in paragraph (2)(c) does not affect the validity of the decision.

[page 521]

APPENDIX 3 EXTRACTS FROM MIGRATION ACT 1958 (CTH) Part 1—Preliminary 5

Interpretation (definition of ‘migration decision' only)

5E

Meaning of purported privative clause decision

Part 5—Review of Part 5-reviewable decisions Division 1—Interpretation 336M Simplified outline of this Part 336N Scope of this Part 337

Interpretation

Division 2—Part 5-reviewable decisions 338

Definition of Part 5-reviewable decision

339

Conclusive certificates

Division 3—Part 5-reviewable decisions: Tribunal review 347

Application for review of Part 5-reviewable decisions

348

Tribunal to review Part 5-reviewable decisions

349

Tribunal powers on review of Part 5-reviewable decisions

350

Review of assessments made under section 93

351

Minister may substitute more favourable decision

352

Tribunal to notify Secretary of application for review of Part 5-reviewable decisions

Division 4—Part 5-reviewable decisions: Tribunal powers 353

Tribunal's way of operating

353B Guidance decisions Division 5—Part 5-reviewable decisions: conduct of review 357A Exhaustive statement of natural justice hearing rule 358

Documents to be given to the Tribunal

359

Tribunal may seek information

359AA Information and invitation given orally by Tribunal while applicant appearing [page 522] 359A Information and invitation given in writing by Tribunal 359B Requirements for written invitation etc 359C Failure to give information, comments or response in response to written invitation 360

Tribunal must invite applicant to appear

360A Notice of invitation to appear 361

Applicant may request Tribunal to call witness and obtain written material

362

Certain bridging visa decisions—request to call witnesses

362A Applicant entitled to have access to written material before Tribunal 362B Failure of applicant to appear before Tribunal

362C Failure to appear—Tribunal's decisions, written statements and notifying the applicant 363

Powers of the Tribunal etc.

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do 364

Tribunal's power to take evidence

365

Review to be in public

366

Oral evidence by telephone etc

366A Applicant may be assisted by another person while appearing before Tribunal 366B Other persons not to be assisted or represented while appearing before Tribunal 366C Interpreters 366D Examination and cross-examination not permitted 367

Certain bridging visa decisions—to be made within prescribed period

Division 6—Part 5-reviewable decisions: Tribunal decisions 368

Tribunal's decision and written statement

368A Notifying parties of Tribunal's decision (decision not given orally) 368D Tribunal's decisions given orally Division 7—Part 5-reviewable decisions: offences 370

Failure to comply with summons

371

Refusal to be sworn or to answer questions

Division 8—Part 5-reviewable decisions: miscellaneous 375

Restrictions on disclosure of certain information etc.

375A Certain information only to be disclosed to Tribunal 376

Tribunal's discretion in relation to disclosure of certain

information etc. 378

Tribunal may restrict publication of certain matters [page 523]

Division 8A—Part 5-reviewable decisions: giving and receiving documents 379AA Giving documents by Tribunal where no requirement to do so by section 379A or 379B method 379A Methods by which Tribunal gives documents to a person other than the Secretary 379B Methods by which Tribunal gives documents to the Secretary 379C When a person other than the Secretary is taken to have received a document from the Tribunal 379D When the Secretary is taken to have received a document from the Tribunal 379EA Giving documents by Tribunal—combined applications 379F

Giving documents etc. to the Tribunal

379G Authorised recipient Part 7—Review of Part 7-reviewable decisions Division 1—Interpretation 408

Simplified outline of this Part

409

Scope of this Part

410

Interpretation

Division 2—Part 7-reviewable decisions 411

Definition of Part 7-reviewable decision

412

Application for review of Part 7-reviewable decisions

414

Tribunal to review Part 7-reviewable decisions

415

Tribunal powers on review of Part 7-reviewable decisions

416

Multiple review applications—consideration of information

417

Minister may substitute more favourable decision

418

Tribunal to notify Secretary of application for review of Part 7-reviewable decisions

Division 3—Part 7-reviewable decisions: Tribunal powers 420

Refugee Review Tribunal's way of operating

420B Guidance decisions Division 4—Part 7-reviewable decisions: conduct of review 422B Exhaustive statement of natural justice hearing rule 423

Documents to be given to the Tribunal

423A How Tribunal is to deal with new claims or evidence 424

Tribunal may seek information

424AA Information and invitation given orally by Tribunal while applicant appearing 424A Information and invitation given in writing by Tribunal 424B Requirements for written invitation etc. 424C Failure to give information, comments or response in response to written invitation 425

Tribunal must invite applicant to appear [page 524]

425A Notice of invitation to appear 426

Applicant may request Tribunal to call witnesses

426A Failure of applicant to appear before Tribunal 426B Failure to appear—Tribunal's decisions, written statements

and notifying the applicant 427

Powers of the Tribunal etc

428

Tribunal's power to take evidence

429

Review to be in private

429A Oral evidence by telephone etc. Division 5—Part 7-reviewable decisions: Tribunal decisions 430

Tribunal's decision and written statement

430A Notifying parties of Tribunal's decision (decision not given orally) 430D Tribunal's decision given orally 431

Identifying information not to be published

Division 6—Part 7-reviewable decisions: offences 432

Failure to comply with summons

433

Refusal to be sworn or to answer questions

Division 7—Part 7-reviewable decisions: miscellaneous 437

Restrictions on disclosure of certain information etc.

438

Tribunal's discretion in relation to disclosure of certain information etc.

440

Tribunal may restrict publication or disclosure of certain matters

Division 7A—Review of Part 7-reviewable decisions: giving and receiving documents 441AA Giving documents by Tribunal where no requirement to do so by section 441A or 441B method 441A Methods by which Tribunal gives documents to a person other than the Secretary 441B Methods by which Tribunal gives documents to the Secretary 441C When a person other than the Secretary is taken to have

received a document from the Tribunal 441D When the Secretary is taken to have received a document from the Tribunal 441EA Giving documents by Tribunal—combined applications 441F

Giving documents etc. to the Tribunal

441G Authorised recipient Part 8—Judicial review Division 1—Privative clause 474

Decisions under Act are final

Division 2—Jurisdiction and procedure of courts 474A Definition of AAT Act migration decision 475

This Division not to limit section 474 [page 525]

476

Jurisdiction of the Federal Circuit Court

476A Limited jurisdiction of the Federal Court 476B Remittal by the High Court 477

Time limits on applications to the Federal Circuit Court

477A Time limits on applications to the Federal Court 478

Persons who may make application

479

Parties to review

480

Intervention by Attorney-General

481

Operation etc. of decision

482

Changing person holding, or performing the duties of, an office

484

Exclusive jurisdiction of High Court, Federal Court and

Federal Circuit Court Part 8A—Restrictions on court proceedings 486A Time limit on applications to the High Court for judicial review 486AA Intervention by Attorney-General 486AB Operation etc. of decision 486B Multiple parties in migration litigation 486C Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court 486D Disclosing other judicial review proceedings

[page 526]

Part 1—Preliminary 5

Interpretation (1)

In this Act, unless the contrary intention appears: migration decision means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision; or (d) an AAT Act migration decision.

…

5E

Meaning of purported privative clause decision (1)

(2)

In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction; in the making of the decision. In this section, decision includes anything listed in subsection 474(3).

…

Part 5—Review of Part 5-reviewable decisions Division 1—Interpretation 336M Simplified outline of this Part

This Part provides for the review of Part 5-reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division. Part 5-reviewable decisions relate to the grant or cancellation of visas in some circumstances. They do not include decisions relating to protection visas or temporary safe haven visas, or decisions in relation to which the Minister has given a conclusive certificate. Part 7-reviewable decisions (which generally relate to protection visas) are reviewable in accordance with Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division. Part 7-reviewable decisions (which generally relate to protection visas) are reviewable in accordance with Part 7 by the Administrative Appeals Tribunal in its Migration and Refugee Division. (a) some decisions to cancel business visas; (b) some decisions relating to migration agents; [page 527] (c)

some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.

336N Scope of this Part (1) (2)

337

This Part applies in relation to the review by the Tribunal of Part 5-reviewable decisions (see section 338). The Tribunal’s powers in relation to Part 5-reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.

Interpretation

In this Part: Australian permanent resident means an Australian permanent resident within the meaning of the regulations. company includes any body or association (whether or not it is incorporated), but does not include a partnership. decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 5reviewable decision: (a) a decision to affirm the Part 5-reviewable decision; (b) a decision to vary the Part 5-reviewable decision; (c) a decision under paragraph 349(2)(c) to remit a matter in relation to the Part 5-reviewable decision for reconsideration; (d) a decision to set the Part 5-reviewable decision aside and substitute a new decision; (e) a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application. member means a member of the Tribunal. nominated has the same meaning as in the regulations. officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975. Part 5-reviewable decision: see section 338. Registrar means the Registrar of the Tribunal. sponsored has the same meaning as in the regulations. Note: “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).

… [page 528]

Division 2—Part 5-reviewable decisions 338

Definition of Part 5-reviewable decision (1)

A decision is a Part 5-reviewable decision if this section so provides, unless:

the Minister has issued a conclusive certificate under section 339 in relation to the decision; or (b) the decision is a Part 7-reviewable decision; or (c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or (d) the decision is a fast track decision. A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if: (a) the visa could be granted while the non-citizen is in the migration zone; and (b) the non-citizen made the application for the visa while in the migration zone; and (c) the decision was not made when the non-citizen: (i) was in immigration clearance; or (ii) had been refused immigration clearance and had not subsequently been immigration cleared; and (d) where it is a criterion for the grant of the visa that the noncitizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph: (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending. A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a Part 5reviewable decision unless the decision: (a) is covered by subsection (4); or (b) is made at a time when the non-citizen was in immigration clearance; or (c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or (a)

(2)

(3)

[page 529] (d) was made personally by the Minister under section 109 or 116 or subsection 140(2). (3A) A decision under section 137L not to revoke the cancellation of a non-citizen’s visa is a Part 5-reviewable decision if the noncitizen was in the migration zone when the decision was made. (4) The following decisions are Part 5-reviewable decisions: (a) a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal; (b) a decision of a delegate of the Minister to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation. (5) A decision to refuse to grant a non-citizen a visa is a Part 5reviewable decision if: (a) the visa is a visa that could not be granted while the noncitizen is in the migration zone; and (b) the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by: (i) an Australian citizen; or (ii) a company that operates in the migration zone; or (iii) a partnership that operates in the migration zone; or (iv) the holder of a permanent visa; or (v) a New Zealand citizen who holds a special category visa. (6) A decision to refuse to grant a non-citizen a visa is a Part 5reviewable decision if: (a) the visa is a visa that could not be granted while the noncitizen is in the migration zone; and (b) a criterion for the grant of the visa is that the non-citizen has been an Australian permanent resident; and (c) a parent, spouse, de facto partner, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident. Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.

(7)

A decision to refuse to grant a non-citizen a visa is a Part 5reviewable decision if: (a) the visa is a visa that could not be granted while the noncitizen is in the migration zone; and (b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen; and [page 530] (c)

particulars of the relative concerned are included in the application.

Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.

(7A) A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if: (a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and (b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone. (8) A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5-reviewable decision if: (a) the visa is a visa that could not be granted while the applicant is in the migration zone; and (b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by: (i) an Australian citizen; or (ii) the holder of a permanent visa; or (iii) a New Zealand citizen who holds a special category visa; and (c) the Minister has not refused to grant the visa. (9) A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.

339

Conclusive certificates

The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that: (a) it would be contrary to the national interest to change the decision; or (b) it would be contrary to the national interest for the decision to be reviewed. Note: If the Minister issues a conclusive certificate in relation to a decision, the decision is not a Part 5-reviewable decision (see subsections 338(1) and 348(2)).

Division 3—Part 5-reviewable decisions: Tribunal review 347

Application for review of Part 5-reviewable decisions (1)

An application for review of a Part 5-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the prescribed period, being a period ending not later than: (i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or [page 531]

(2)

(ii) if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or (iii) if the Part 5-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). An application for review may only be made by: (a) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non-citizen who is the subject of that decision; or

(b) if the Part 5-reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or (c) if the Part 5-reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or (d) if the Part 5-reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection. Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).

(3)

If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made. (3A) If the Part 5-reviewable decision was covered by subsection 338(7A), an application for review may only be made by a noncitizen who: (a) was physically present in the migration zone at the time when the decision was made; and (b) is physically present in the migration zone when the application for review is made. (4) If the Part 5-reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may: (a) request the opportunity to appear before the Tribunal; and (b) request the Tribunal to obtain oral evidence from a specified person or persons. A request must be made in the approved form and must accompany the application for review. (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5reviewable [page 532]

decisions (which may be decisions that relate to non-citizens in a specified place).

348

Tribunal to review Part 5-reviewable decisions (1)

(2)

349

Tribunal powers on review of Part 5-reviewable decisions (1)

(2)

(3)

(4)

350

Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision. The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339. The Tribunal may, for the purposes of the review of a Part 5reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or (e) if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application. If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

Review of assessments made under section 93

(1)

In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant: (a) the regulations for that purpose that were in force at the time the assessment was made by the Minister; (b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment. [page 533]

(2)

351

In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are: (a) in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and (b) in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the Tribunal about the assessment.

Minister may substitute more favourable decision (1)

(2)

(3)

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act. The power under subsection (1) may only be exercised by the Minister personally.

(4)

(5)

(6)

(7)

If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person. A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. [page 534]

352

Tribunal to notify Secretary of application for review of Part 5-reviewable decisions (1)

(2)

If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application. Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the

(3)

(4)

decision under review that: (a) sets out the findings of fact made by the person who made the decision; and (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. If the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application. The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

Division 4—Part 5-reviewable decisions: Tribunal powers 353

Tribunal’s way of operating The Tribunal, in reviewing a Part 5-reviewable decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case.

353B Guidance decisions (1)

(2)

The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Migration Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 5-reviewable decision of a kind specified in the direction. In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

(3)

However, non-compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

… [page 535]

Division 5—Part 5-reviewable decisions: conduct of review 357A Exhaustive statement of natural justice hearing rule (1)

(2)

(3)

358

Documents to be given to the Tribunal (1)

(2)

359

This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. In applying this Division, the Tribunal must act in a way that is fair and just. An applicant for review by the Tribunal may give the Tribunal: (a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review. The Secretary may give the Tribunal written argument relating to the issues

Tribunal may seek information (1)

In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) (3)

(4)

Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given: (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or (b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person. If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

359AA Information and invitation given orally by Tribunal while applicant appearing (1)

If an applicant is appearing before the Tribunal because of an invitation under section 360: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and [page 536] (b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on

(2)

or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

359A Information and invitation given in writing by Tribunal (1)

(2)

(3)

(4)

Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

[page 537] (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. (5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

359B Requirements for written invitation etc. (1)

(2)

(3)

(4)

If a person is: (a) invited in writing under section 359 to give information; or (b) invited under section 359A to comment on or respond to information; the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances. If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. If the invitation is to give information, or comments or a response, at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5)

If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time.

359C Failure to give information, comments or response in response to written invitation (1)

If a person: (a) is invited in writing under section 359 to give information; and (b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the information. [page 538]

(2)

360

If the applicant: (a) is invited under section 359A to comment on or respond to information; and (b) does not give the comments or the response before the time for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

Tribunal must invite applicant to appear (1)

(2)

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it;

(3)

or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

360A Notice of invitation to appear (1)

(2)

(4) (5)

361

If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. The notice must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. The notice must contain a statement of the effect of section 362B.

Applicant may request Tribunal to call witness and obtain written material (1)

(2)

In the notice under section 360A, the Tribunal shall notify the applicant: (a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and (b) of the effect of subsections (2) and (2A) of this section. The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. [page 539]

(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain: (a) written evidence from a person or persons named in the notice; or (b) other written material relating to the issues arising in relation to the decision under review. (3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it. (4) This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).

362

Certain bridging visa decisions—request to call witnesses (1)

(2)

(3)

This section applies to the review of a decision covered by subsection 338(4) if: (a) the applicant, in a request in the approved form that accompanied the application, requested the Tribunal to: (i) give the applicant the opportunity to appear before it; or (ii) obtain oral evidence from a specified person or persons; and (b) the applicant has been invited to appear before the Tribunal in relation to the decision under review. If this section applies, the Tribunal: (a) must have regard to the applicant’s request; but (b) is not required to obtain evidence (oral or otherwise) from a person named in the applicant’s request. To avoid doubt, nothing in this Division requires the Tribunal to adjourn the review or to delay making a decision so that: (a) the applicant may give evidence (oral or otherwise); or (b) the Tribunal may obtain evidence (oral or otherwise) from any other person.

362A Applicant entitled to have access to written material before Tribunal

(1)

(2)

(3)

Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review. This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information. This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1). [page 540]

362B Failure of applicant to appear before Tribunal Scope (1) This section applies if the applicant: (a) is invited under section 360 to appear before the Tribunal; but (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. Tribunal may make a decision on the review or dismiss proceedings (1A) The Tribunal may: (a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or (b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal. Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review. Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal (1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application. Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must: (a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or (b) confirm the decision to dismiss the application, by written statement under section 368. Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application. Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D) If the Tribunal reinstates the application: (a) the application is taken never to have been dismissed; and (b) the Tribunal must conduct (or continue to conduct) the review accordingly. [page 541] (1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368. Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed. (1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

362C Failure to appear—Tribunal’s decisions, written statements and notifying the applicant Decisions to which this section applies (1) This section applies in relation to the following decisions (each of which is a non-appearance decision): (a) a decision to dismiss an application under paragraph 362B(1A)(b); (b) a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph. Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A.

Written statement of decision (2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that: (a) sets out the decision; and (b) sets out the reasons for the decision; and (c) in the case of a decision to reinstate an application: (i) sets out the findings on any material questions of fact; and (ii) refers to the evidence or any other material on which the findings of fact were based; and (d) records the day and time the statement is made. (3) A non-appearance decision is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. (4) The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made. Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)).

[page 542] Notice to applicant (5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379A. (6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F). Notice to Secretary (7) A copy of the written statement made under subsection (2) must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379B. Validity etc. not affected by procedural irregularities (8) The validity of a non-appearance decision, and the operation of subsection (4), are not affected by: (a) a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or (b) a failure to comply with subsection (5), (6) or (7).

363

Powers of the Tribunal etc. (1)

For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; (b) adjourn the review from time to time; (c) subject to section 378, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to

(2) (3)

the Tribunal a report of that investigation or examination. The Tribunal may combine the reviews of 2 or more Part 5reviewable decisions made in respect of the same person. Subject to subsection (4), the Tribunal may, for the purposes of a review: (a) summon a person to appear before the Tribunal to give evidence; (b) summon a person to produce to the Tribunal the documents or things referred to in the summons; [page 543] (c)

(4)

require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and (d) administer an oath or affirmation to a person so appearing. The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

364

Tribunal’s power to take evidence (1)

The power (the evidence power) of the Tribunal under paragraph 363(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by: (a) a member conducting the review; or (b) another person (whether or not a member) authorised in writing by that member.

(2)

(3)

365

The evidence power may be exercised: (a) inside or outside Australia; and (b) subject to any limitations or requirements specified by the Tribunal. If a person other than a member conducting the review has the evidence power: (a) the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 363(1) and paragraphs 363(3)(c) and (d); and (b) this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and (c) the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and (d) for the purposes of section 360, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.

Review to be in public (1)

Subject to this section, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public. [page 544]

(2)

(3)

(4)

Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private. If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private. Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given.

366

Oral evidence by telephone etc. (1)

(2)

For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication. If, when a review is in public, a person appears or gives evidence by a means allowed under subsection (1), the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the review is preserved.

366A Applicant may be assisted by another person while appearing before Tribunal (1) (2)

(3)

(4)

The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her. The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so. Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person. This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

366B Other persons not to be assisted or represented while appearing before Tribunal (1)

(2)

A person, other than the applicant, is not entitled, while appearing before the Tribunal, to: (a) have another person present to assist him or her; or (b) be represented by another person. This section does not affect the entitlement of the person to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.

[page 545]

366C Interpreters (1)

(2)

(3)

A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person. The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English. If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).

366D Examination and cross-examination not permitted A person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence.

367

Certain bridging visa decisions—to be made within prescribed period (1)

(2)

Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period. The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.

…

Division 6—Part 5-reviewable decisions: Tribunal decisions 368

Tribunal’s decision and written statement Written statement of decision

(1)

Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2) (b) and 376(3)(b), make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and (f) records the day and time the statement is made. [page 546] Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made (2) A decision on a review (other than an oral decision) is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. Note: For oral decisions, see section 368D.

(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made. Return of documents etc. (3) After the Tribunal makes the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that

contains evidence or material on which the findings of fact were based. Validity etc. not affected by procedural irregularities (4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by: (a) a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or (b) a failure to comply with subsection (3).

368A Notifying parties of Tribunal’s decision (decision not given orally) (1)

(2)

(3)

The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 368(1). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379A. A copy of that statement must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379B. A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision. [page 547]

368D Tribunal’s decisions given orally How and when oral decisions are taken to have been made (1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally. Statement in relation to oral decision

(2)

(3)

If a decision on a review is given orally, the Tribunal must: (a) make an oral statement that: (i) describes the decision of the Tribunal on the review; and (ii) describes the reasons for the decision; and (iii) describes the findings on any material questions of fact; and (iv) refers to the evidence or any other material on which the findings of fact were based; and (v) identifies the day and time the decision is given orally; or (b) make a written statement that: (i) sets out the decision of the Tribunal on the review; and (ii) sets out the reasons for the decision; and (iii) sets out the findings on any material questions of fact; and (iv) refers to the evidence or any other material on which the findings of fact were based; and (v) records the day and time the decision is given orally. The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

Written statement to be provided on request of applicant (4) If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must: (a) reduce the oral statement to writing; and (b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement: (i) to the applicant by one of the methods specified in section 379A; and (ii) to the Secretary by one of the methods specified in section 379B. Written statement to be provided on request of Minister (5) If the Tribunal makes an oral statement under paragraph (2)(a)

and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must: (a) reduce the oral statement to writing; and [page 548] (b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement: (i) to the Secretary by one of the methods specified in section 379B; and (ii) to the applicant by one of the methods specified in section 379A. Return of documents etc. (6) After the Tribunal makes a statement under subsection (2), the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. Validity etc. not affected by procedural irregularities (7) The validity of a decision on a review, and the operation of subsection (3), are not affected by: (a) a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or (b) a failure to comply with subsection (4), (5) or (6). Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

Division 7—Part 5-reviewable decisions: offences 370

Failure to comply with summons (1)

A person commits an offence if:

(2)

(a) the person is given a summons under section 363; and (b) the person fails to comply with the summons. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Subsection (1) does not apply if complying with the summons might tend to incriminate the person. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

371

Refusal to be sworn or to answer questions Oath or affirmation (1) A person commits an offence if: (a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and [page 549] (b) the person has been required under section 363 either to take an oath or to make an affirmation; and (c) the person fails to comply with the requirement. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Questions (2) A person commits an offence if: (a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and (b) the Tribunal has required the person to answer a question for the purposes of the proceeding; and (c) the person fails to answer the question. Penalty: Imprisonment for 12 months or 60 penalty units, or both. (3) Subsection (2) does not apply if answering the question might tend to incriminate the person. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Division 8—Part 5-reviewable decisions: miscellaneous 375

Restrictions on disclosure of certain information etc. In spite of anything else in this Act, the Secretary shall not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest: (a) because it would prejudice the security, defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

375A Certain information only to be disclosed to Tribunal (1)

(2)

This section applies to a document or information if the Minister: (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal. If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies: (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and [page 550] (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the

purposes of the particular review.

376

Tribunal’s discretion in relation to disclosure of certain information etc. (1)

(2)

(3)

This section applies to a document or information if: (a) the Minister: (i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and (ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information. Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to

subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.

378

Tribunal may restrict publication of certain matters (1)

Where the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; (b) any information given to the Tribunal; or [page 551] (c)

(2)

(3)

the contents of any document produced to the Tribunal; should not be published, or should not be published except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly. Where the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not: (a) excuse the Tribunal from its obligations under section 368; or (b) prevent a person from communicating to another person a matter contained in the evidence, information or document if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal. A person shall not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person. Penalty: Imprisonment for 2 years.

Division 8A—Part 5-reviewable decisions: giving and receiving documents 379AA Giving documents by Tribunal where no requirement to

do so by section 379A or 379B method (1)

If: (a)

a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 379A or 379B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Tribunal may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA. Note 2: Under section 379G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

(2)

If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that: (a) the individual has day-to-day care and responsibility for the minor; or (b) the individual works in or for an organisation that has dayto-day care and responsibility for the minor and the individual’s duties, whether [page 552]

alone or jointly with another person, involve care and responsibility for the minor. (2A) However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor. (3) If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the

Tribunal giving the minor a copy of the document.

379A Methods by which Tribunal gives documents to a person other than the Secretary Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. (1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor): (a) who is at least 18 years of age; and (b) who a member or an officer of the Tribunal reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in an or for organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor. Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.

(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor. Giving by hand (2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient. [page 553]

Handing to a person at last residential or business address (3) Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who: (a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age. Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or (iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer. Transmission by fax, email or other electronic means (5) Another method consists of a member or an officer of the Tribunal transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or (e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

Documents given to a carer (6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document. [page 554]

379B Methods by which Tribunal gives documents to the Secretary Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to the Secretary; and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. Giving by hand (2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer. Dispatch by post or by other means (3) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by post or by other means; and (c) to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched. Transmission by fax, email or other electronic means (4) Another method consists of a member or an officer of the

Tribunal transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

379C When a person other than the Secretary is taken to have received a document from the Tribunal (1)

This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).

Giving by hand (2) If the Tribunal gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person. [page 555] Handing to a person at last residential or business address (3) If the Tribunal gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person. Dispatch by prepaid post or by other prepaid means (4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that

address) after the date of the document; or (b) in any other case—21 days after the date of the document. Transmission by fax, email or other electronic means (5) If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. Document not given effectively (7) If: (a) the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and (b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

379D When the Secretary is taken to have received a document from the Tribunal (1)

This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 379B (including in a case covered by section 379AA).

Giving by hand (2) If the Tribunal gives a document to the Secretary by the method in subsection 379B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer.

[page 556] Dispatch by post or by other means (3) If the Tribunal gives a document to the Secretary by the method in subsection 379B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or (b) in any other case—21 days after the date of the document. Transmission by fax, email or other electronic means (4) If the Tribunal gives a document to the Secretary by the method in subsection 379B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.

379EA Giving documents by Tribunal—combined applications If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them. Note 1: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method. Note 2: Section 379G deals with giving documents to a person’s authorised recipient.

379F Giving documents etc. to the Tribunal If, in relation to the review of a Part 5-reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so: (a) by giving the document or thing to an officer of the Tribunal; or (b) by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or (c) if the regulations set out a method for doing so—by that method.

379G Authorised recipient (1)

If: (a)

a person (the applicant) applies for review of a Part 5reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

[page 557] (1A) For the purposes of subsection (1): (a) paragraph (1)(a) is taken to also apply to an application for review of a Part 5-reviewable decision where the application is not properly made under section 347; and (b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section). (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. (3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1) (b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person

becomes the applicant’s authorised recipient. (3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address. (5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal. …

Part 7—Review of Part 7-reviewable decisions Division 1—Interpretation 408

Simplified outline of this Part

This Part provides for the review of Part 7-reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division. Part 7-reviewable decisions relate to the grant or cancellation of protection visas in some circumstances. They do not include decisions in relation to which the Minister has given a conclusive certificate. Part 5-reviewable decisions (which relate to the grant or cancellation of visas other than protection visas in some circumstances) are reviewable in accordance with Part 5 by the Administrative Appeals Tribunal in its Migration and Refugee Division. Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following: (a) some decisions to cancel business visas; (b) some decisions relating to migration agents; [page 558]

(c)

some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act. These are decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.

409

Scope of this Part (1) (2)

410

This Part applies in relation to the review by the Tribunal of Part 7-reviewable decisions (see section 411). The Tribunal’s powers in relation to Part 7-reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division.

Interpretation In this Part: decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 7reviewable decision: (a) a decision to affirm the Part 7-reviewable decision; (b) a decision to vary the Part 7-reviewable decision; (c) a decision under paragraph 415(2)(c) to remit a matter in relation to the Part 7-reviewable decision for reconsideration; (d) a decision to set the Part 7-reviewable decision aside and substitute a nedecision; (e) a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application. member means a member of the Tribunal. officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975. Part 7-reviewable decision: see section 411. Registrar means the Registrar of the Tribunal. Note: “Tribunal” means the Administrative Appeals Tribunal. See the definition in subsection 5(1).

Division 2—Part 7-reviewable decisions 411

Definition of Part 7-reviewable decision (1)

Subject to subsection (2), the following decisions are Part 7reviewable decisions: (a) a decision, made before 1 September 1994, that a noncitizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee); [page 559] (b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations); (c) a decision to refuse to grant a protection visa, other than a decision that was made relying on: (i) subsection 5H(2), or 36(1B) or (1C); or (iii) paragraph 36(2C)(a) or (b); (d) a decision to cancel a protection visa, other than a decision that was made because of: (i) subsection 5H(2) or 36(1C); or (ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or (iii) paragraph 36(2C)(a) or (b).

(2)

(3)

412

The following decisions are not Part 7-reviewable decisions: (aa) any decision to cancel a protection visa that is made personally by the Minister; (a) decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made; (b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3); (c) fast track decisions. The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that: (a) it would be contrary to the national interest to change the decision; or (b) it would be contrary to the national interest for the decision to be reviewed.

Application for review of Part 7-reviewable decisions (1)

(2)

An application for review of a Part 7-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). An application for review may only be made by the non-citizen who is the subject of the primary decision. [page 560]

(3)

(4)

An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made. Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7reviewable decisions (which may be decisions that relate to noncitizens in a specified place).

414

Tribunal to review Part 7-reviewable decisions (1)

(2)

415

Tribunal powers on review of Part 7-reviewable decisions (1)

(2)

(3)

(4)

416

Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision. The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3). The Tribunal may, for the purposes of the review of a Part 7reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or (e) if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application. If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

Multiple review applications—consideration of information Scope

(1)

This section applies if: (a) a non-citizen has made an application (the earlier application) to a review body for review of a decision under this Part; and [page 561] (b) the earlier application has been determined by a review body; and (c) the non-citizen makes a further application, to the Tribunal, for review of a Part 7-reviewable decision.

Review body not required to consider earlier information (2) The Tribunal, in considering the further application: (a) is not required to consider any information considered in the earlier application; and (b) may have regard to, and take to be correct, any decision that a review body has made about or because of that information. (3) In this section: review body means: (a) the former Refugee Review Tribunal; or (b) the Tribunal. Note: The Refugee Review Tribunal was abolished from 1 July 2015, and its functions transferred to the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”).

417

Minister may substitute more favourable decision (1)

(2)

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3) (4)

(5)

The power under subsection (1) may only be exercised by the Minister personally. If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. [page 562]

(6)

(7)

418

A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

Tribunal to notify Secretary of application for review of Part 7-reviewable decisions (1)

If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of

(2)

(3)

the making of the application. The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that: (a) sets out the findings of fact made by the person who made the decision; and (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

Division 3—Part 7-reviewable decisions: Tribunal powers 420

Refugee Review Tribunal’s way of operating The Tribunal, in reviewing a Part 7-reviewable decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.

420B Guidance decisions (1)

The President of the Tribunal, or the head of the Migration and Refugee Division of the Tribunal, may, in writing, direct that a decision (the guidance decision) of the Tribunal, or of the former Refugee Review Tribunal, specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of a Part 7-reviewable decision of a kind specified in the direction. [page 563]

(2)

(3)

In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision. However, non-compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

Division 4—Part 7-reviewable decisions: conduct of review 422B Exhaustive statement of natural justice hearing rule (1)

(2)

(3)

423

This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. In applying this Division, the Tribunal must act in a way that is fair and just.

Documents to be given to the Tribunal (1)

(2)

An applicant for review by the Tribunal may give the Registrar: (a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review. The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.

423A How Tribunal is to deal with new claims or evidence (1)

This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant: (a) raises a claim that was not raised in the application before

(2)

424

the primary decision was made; or (b) presents evidence in the application that was not presented in the application before the primary decision was made. In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

Tribunal may seek information (1)

In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the [page 564]

(2)

(3)

Tribunal must have regard to that information in making the decision on the review. Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. A written invitation under subsection (2) must be given to the person: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

424AA Information and invitation given orally by Tribunal while applicant appearing (1)

If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers

(2)

would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A Information and invitation given in writing by Tribunal (1)

Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. [page 565]

(2)

The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424B Requirements for written invitation etc. (1)

(2)

If a person is: (a) invited in writing under section 424 to give information; or (b) invited under section 424A to comment on or respond to information; the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances. If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the

(3)

comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. If the invitation is to give information, or comments or a response, at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. [page 566]

(4)

(5)

If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period. If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time.

424C Failure to give information, comments or response in response to written invitation (1)

(2)

If a person: (a) is invited in writing under section 424 to give information; and (b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the information. If the applicant: (a) is invited under section 424A to comment on or respond to information; and

(b) does not give the comments or the response before the time for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

425

Tribunal must invite applicant to appear (1)

(2)

(3)

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

425A Notice of invitation to appear (1)

If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. [page 567]

(2)

(3) (4)

The notice must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. The notice must contain a statement of the effect of section

426A.

426

Applicant may request Tribunal to call witnesses (1)

(2)

(3)

In the notice under section 425A, the Tribunal must notify the applicant: (a) that he or she is invited to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

426A Failure of applicant to appear before Tribunal Scope (1) This section applies if the applicant: (a) is invited under section 425 to appear before the Tribunal; but (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. Tribunal may make a decision on the review or dismiss proceedings (1A) The Tribunal may: (a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or (b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal. Note 1: Under section 430A, the Tribunal must notify the applicant of a decision on the review. Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

[page 568] Reinstatement of application or confirmation of dismissal (1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application. Note: Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must: (a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or (b) confirm the decision to dismiss the application, by written statement under section 430. Note 1: Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application. Note 2: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D) If the Tribunal reinstates the application: (a) the application is taken never to have been dismissed; and (b) the Tribunal must conduct (or continue to conduct) the review accordingly. (1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430. Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed. (1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E). Other measures to deal with failure of applicant to appear

(2)

This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant Decisions to which this section applies (1) This section applies in relation to the following decisions (each of which is a non-appearance decision): (a) a decision to dismiss an application under paragraph 426A(1A)(b); [page 569] (b) a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph. Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

Written statement of decision (2) If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that: (a) sets out the decision; and (b) sets out the reasons for the decision; and (c) in the case of a decision to reinstate an application: (i) sets out the findings on any material questions of fact; and (ii) refers to the evidence or any other material on which the findings of fact were based; and (3) A non-appearance decision is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. (4) The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).

Notice to applicant (5) The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 441A. (6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F). Notice to Secretary (7) A copy of the written statement made under subsection (2) must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 441B. [page 570] Validity etc. not affected by procedural irregularities (8) The validity of a non-appearance decision, and the operation of subsection (4), are not affected by: (a) a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or (b) a failure to comply with subsection (5), (6) or (7).

427

Powers of the Tribunal etc. (1)

For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or

(2) (3)

(4) (6)

(7)

428

(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. The Tribunal must combine the reviews of 2 or more Part 7reviewable decisions made in respect of the same non-citizen. Subject to subsection (4), the Tribunal in relation to a review may: (a) summon a person to appear before the Tribunal to give evidence; and (b) summon a person to produce to the Tribunal the documents or things referred to in the summons; and (c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and (d) administer an oath or affirmation to a person so appearing. The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia. A person appearing before the Tribunal to give evidence is not entitled: (a) to be represented before the Tribunal by any other person; or (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence. If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

Tribunal’s power to take evidence (1)

The power (the evidence power) of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation in a particular review may be exercised on behalf of the Tribunal by: (a) a member conducting the review; or [page 571]

(2)

(3)

429

(b) another person (whether or not a member) authorised in writing by that member. The evidence power may be exercised: (a) inside or outside Australia; and (b) subject to any limitations or requirements specified by the Tribunal. If a person other than a member conducting the review has the evidence power: (a) the person has, for the purpose of taking the evidence, the powers of the Tribunal under subsection 427(1) and paragraphs 427(3)(c) and (d); and (b) this Part applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal; and (c) the person must cause a record of any evidence taken to be made and sent to the member who authorised the person to exercise the evidence power; and (d) for the purposes of section 425, if that member receives the record of evidence, the Tribunal is taken to have given the applicant an opportunity to appear before it to give evidence.

Review to be in private The hearing of an application for review by the Tribunal must be in private.

429A Oral evidence by telephone etc. For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication.

Division 5—Part 7-reviewable decisions: Tribunal decisions

430

Tribunal’s decision and written statement Written statement of decision (1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and [page 572] (d) refers to the evidence or any other material on which the findings of fact were based; and (e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and (f) records the day and time the statement is made. Note: Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made (2) A decision on a review (other than an oral decision) is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. Note: For oral decisions, see section 430D.

(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made. Return of documents etc. (3) After the Tribunal makes the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has

provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. Validity etc. not affected by procedural irregularities (4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by: (a) a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or (b) a failure to comply with subsection (3).

430A Notifying parties of Tribunal’s decision (decision not given orally) (1)

The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 441A. [page 573]

(2)

(3)

A copy of that statement must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 441B. A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

430D Tribunal’s decision given orally How and when oral decisions are taken to have been made (1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

Statement in relation to oral decision (2) If the Tribunal makes an oral decision on a review, the Tribunal must: (a) make an oral statement that: (i) describes the decision of the Tribunal on the review; and (ii) describes the reasons for the decision; and (iii) describes the findings on any material questions of fact; and (iv) refers to the evidence or any other material on which the findings of fact were based; and (v) identifies the day and time the decision is given orally; or (b) make a written statement that: (i) sets out the decision of the Tribunal on the review; and (ii) sets out the reasons for the decision; and (iii) sets out the findings on any material questions of fact; and (iv) refers to the evidence or any other material on which the findings of fact were based; and (v) records the day and time the decision is given orally. (3) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally. Written statement to be provided on request of applicant (4) If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the oral statement to be provided in writing, the Tribunal must: (a) reduce the oral statement to writing; and (b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement: (i) to the applicant by one of the methods specified in section 441A; and (ii) to the Secretary by one of the methods specified in section 441B.

[page 574] Written statement to be provided on request of Minister (5) If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must: (a) reduce the oral statement to writing; and (b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement: (i) to the Secretary by one of the methods specified in section 441B; and (ii) to the applicant by one of the methods specified in section 441A. Return of documents etc. (6) After the Tribunal makes a statement under subsection (2), the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. Validity etc. not affected by procedural irregularities (7) The validity of a decision on a review, and the operation of subsection (3), are not affected by: (a) a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or (b) a failure to comply with subsection (4), (5) or (6). Note: Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

431

Identifying information not to be published The Tribunal must not publish a statement made under subsection

430(1) which may identify an applicant or any relative or other dependant of an applicant. Note: Section 66B of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to publish decisions and the reasons for them. However, section 66B does not authorise the publication of information if its disclosure would be prohibited or restricted by another enactment (such as this) conferring jurisdiction on the Tribunal.

Division 6—Part 7-reviewable decisions: offences 432

Failure to comply with summons (1)

A person commits an offence if: (a) the Tribunal gives a summons to the person under section 427; and (b) the person fails to comply with the summons. [page 575]

(2)

Penalty: Imprisonment for 12 months or 60 penalty units, or both. Subsection (1) does not apply if complying with the summons might tend to incriminate the person. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

433

Refusal to be sworn or to answer questions Oath or affirmation (1) A person commits an offence if: (a) the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and (b) the person has been required under section 427 either to take an oath or to make an affirmation; and (c) the person fails to comply with the requirement. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Questions (2) A person commits an offence if:

the person appears as a witness before the Tribunal for the purposes of a proceeding under this Part; and (b) the Tribunal has required the person to answer a question for the purposes of the proceeding; and (c) the person fails to answer the question. Penalty: Imprisonment for 12 months or 60 penalty units, or both. Subsection (2) does not apply if answering the question might tend to incriminate the person. (a)

(3)

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Division 7—Part 7-reviewable decisions: miscellaneous 437

Restrictions on disclosure of certain information etc. In spite of anything else in this Act, the Secretary must not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest: (a) because it would prejudice the security, defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet. [page 576]

438

Tribunal’s discretion in relation to disclosure of certain information etc. (1)

This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason

(2)

(3)

(4)

440

set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

Tribunal may restrict publication or disclosure of certain matters (1)

If the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; or (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal; should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner

and to particular persons, the Tribunal may give a written direction accordingly. [page 577] (2)

(3)

If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not: (a) excuse the Tribunal from its obligations under section 430; or (b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the firstmentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal. A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person. Penalty: Imprisonment for 2 years.

Division 7A—Review of Part 7-reviewable decisions: giving and receiving documents 441AA Giving documents by Tribunal where no requirement to do so by section 441A or 441B method (1)

If: (a)

a provision of this Act or the regulations requires or permits the Tribunal to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 441A or 441B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Tribunal may give the document to the person by any

method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 441EA. Note 2: Under section 441G an applicant may give the Tribunal the name of an authorised recipient who is to receive documents on the applicant’s behalf.

(2)

If a person is a minor, the Tribunal may give a document to an individual who is at least 18 years of age if a member or an officer of the Tribunal reasonably believes that: (a) the individual has day-to-day care and responsibility for the minor; or (b) the individual works in or for an organisation that has dayto-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor. (2A) However, subsection (2) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor. [page 578] (3)

If the Tribunal gives a document to an individual, as mentioned in subsection (2), the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441A Methods by which Tribunal gives documents to a person other than the Secretary Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows.

(1A) If a person is a minor, the Tribunal may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor): (a) who is at least 18 years of age; and (b) who a member or an officer of the Tribunal reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor. Note: If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.

(1B) However, subsection (1A) does not apply if section 441EA (which relates to giving documents in the case of combined applications) applies in relation to the minor. Giving by hand (2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient. Handing to a person at last residential or business address (3) Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who: (a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and [page 579]

(in

(b) appears to live there (in the case of a residential address) or work there the case of a business address); and (c) appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or (iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer. Transmission by fax, email or other electronic means (5) Another method consists of a member or an officer of the Tribunal transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or (e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer. Documents given to a carer (6) If the Tribunal gives a document to a carer of a minor, the Tribunal is taken to have given the document to the minor. However, this does not prevent the Tribunal giving the minor a copy of the document.

441B Methods by which Tribunal gives documents to the Secretary

Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to the Secretary; and [page 580] (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. Giving by hand (2) One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the Secretary or to an authorised officer. Dispatch by post or by other means (3) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by post or by other means; and (c) to an address, notified to the Tribunal in writing by the Secretary, to which such documents can be dispatched. Transmission by fax, email or other electronic means (4) Another method consists of a member or an officer of the Tribunal transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to the last fax number, email address or other electronic address notified to the Tribunal in writing by the Secretary for the purpose.

441C When a person other than the Secretary is taken to have

received a document from the Tribunal (1)

This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).

Giving by hand (2) If the Tribunal gives a document to a person by the method in subsection 441A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person. Handing to a person at last residential or business address (3) If the Tribunal gives a document to a person by the method in subsection 441A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person. [page 581] Dispatch by prepaid post or by other prepaid means (4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or (b) in any other case—21 days after the date of the document. Transmission by fax, email or other electronic means (5) If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

Document not given effectively (7) If: (a) the Tribunal purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and (b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

441D When the Secretary is taken to have received a document from the Tribunal (1)

This section applies if the Tribunal gives a document to the Secretary by one of the methods specified in section 441B (including in a case covered by section 441AA).

Giving by hand (2) If the Tribunal gives a document to the Secretary by the method in subsection 441B(2) (which involves handing the document to the Secretary or to an authorised officer), the Secretary is taken to have received the document when it is handed to the Secretary or to the authorised officer. Dispatch by post or by other means (3) If the Tribunal gives a document to the Secretary by the method in subsection 441B(3) (which involves dispatching the document by post or by other means), the Secretary is taken to have received the document: [page 582]

if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or (b) in any other case—21 days after the date of the document. (a)

Transmission by fax, email or other electronic means (4) If the Tribunal gives a document to the Secretary by the method in subsection 441B(4) (which involves transmitting the document by fax, email or other electronic means), the Secretary is taken to have received the document at the end of the day on which the document is transmitted.

441EA Giving documents by Tribunal—combined applications If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them. Note 1: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method. Note 2: Section 441G deals with giving documents to a person’s authorised recipient.

441F Giving documents etc. to the Tribunal If, in relation to the review of a Part 7-reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so: (a) by giving the document or thing to an officer of the Tribunal; or (b) by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or (c) if the regulations set out a method for doing so—by that method.

441G Authorised recipient (1)

If: (a)

a person (the applicant) applies for review of a Part 7reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient)

authorised by the applicant to receive documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.

(1A) For the purposes of subsection (1): (a) paragraph (1)(a) is taken to also apply to an application for review of a Part 7-reviewable decision where the application is not a valid application under section 412; and [page 583] (b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not a valid application under that section). (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. (3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1) (b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient. (3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address. (5) This section does not apply to the Tribunal giving documents to,

or communicating with, the applicant when the applicant is appearing before the Tribunal. …

Part 8—Judicial review Division 1—Privative clause 474

Decisions under Act are final (1)

(2)

(3)

A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). A reference in this section to a decision includes a reference to the following: (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); [page 584] (c)

granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction;

making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: (e)

(4)

Decisions that are not privative clause decisions Item Provision Subject matter of provision Liability for the costs of removal or 1 section 213 deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. Orders restraining non-citizens from 4 section 222 disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search Detention of vessels/dealing with 9 section 260 detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities

13 14 15 16 23

section 272 section 273 Part 3 Part 4 Division 7 of Part 5

Migrant centres Detention centres Migration agents registration scheme Court orders about reparation Part-5 reviewable decisions: offences [page 585]

Decisions that are not privative clause decisions Item Provision Subject matter of provision 28 Division 6 of Part 7 Part-7 reviewable decisions: offences Medical treatment of persons in 31 regulation 5.35 detention (5)

(6)

(7)

The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision. A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision. To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2): (a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3); (d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

Division 2—Jurisdiction and procedure of courts

474A Definition of AAT Act migration decision For the purposes of this Act, a decision under a provision of the Administrative Appeals Tribunal Act 1975 set out in the following table is an AAT Act migration decision, to the extent that the decision is made in relation to any of the following: (a) a review of a particular Part-5 reviewable decision or Part-7 reviewable decision; (b) a function of the Tribunal in relation to the exercise of its jurisdiction to review Part 5-reviewable decisions or Part 7reviewable decisions; (c) a Tribunal member in the Migration and Refugee Division of the Tribunal. AAT Act migration decisions Provision of the Item Administrative Appeals Tribunal Act 1975 1

section 6

2 3 4 5

section 8 section 9 section 10 section 10A

Subject matter of provision Appointment of members of the Tribunal Term of appointment Remuneration and allowances Acting appointments Delegation [page 586]

AAT Act migration decisions Provision of the Item Administrative Appeals Tribunal Act 1975 6 section 11 7 section 12

Subject matter of provision Outside employment Leave of absence

8

section 13

9 10 11 12

section 14 section 17K section 17L section 18A

13

section 18B

14 15 16 17 18 19 20 21

section 19A section 19D section 24C section 24N section 24P section 24PA section 42 section 64

Termination of appointment (not Judges) Disclosure of interests by members Division heads Deputy Division heads Arrangement of business President’s directions—arrangement of business President’s directions—constitution Reconstitution Appointment of Registrar Staff Functions of Registrar and staff Officers of the Tribunal Resolving disagreements Registries

Note: An AAT Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)).

475

This Division not to limit section 474 This Division is not to be taken to limit the scope or operation of section 474.

476

Jurisdiction of the Federal Circuit Court (1)

(2)

Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. The Federal Circuit Court has no jurisdiction in relation to the following decisions: (a) a primary decision; (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; (c) a privative clause decision, or purported privative clause

decision, made personally by the Minister under section 501, 501A, 501B or 501C; (d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7). [page 587] (3)

(4)

Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975. In this section: primary decision means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b) that would have been so reviewable if an application for such review had been made within a specified period; or (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

476A Limited jurisdiction of the Federal Court (1)

Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported

privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. [page 588]

(2)

(3)

(4)

(5)

The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions. Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or (b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). In this section:

judgment has the same meaning as in the Federal Court of Australia Act 1976.

476B Remittal by the High Court (1)

(2)

(3)

(4)

477

Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court. The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Circuit Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476. The High Court may remit a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court. Subsection (1) has effect despite section 44 of the Judiciary Act 1903.

Time limits on applications to the Federal Circuit Court (1)

(2)

An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. [page 589]

(3)

In this section:

(ca)

(4)

(5)

date of the migration decision means: (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or (b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or (c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or (d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate. For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3). To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

477A Time limits on applications to the Federal Court (1)

(2)

An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice

(3)

(4)

to make the order; and (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. In this section: date of the migration decision has the meaning given by subsection 477(3). For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions [page 590]

(5)

478

mentioned in the definition of date of the migration decision in subsection 477(3). To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

Persons who may make application An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and: (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or (aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or (b) in any other case—the person who is the subject of the decision; or (c) in any case—a person prescribed by the regulations.

479

Parties to review The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or

where appropriate the Secretary or Australian Border Force Commissioner, and: (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or (aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or (b) in any other case—the person who is the subject of the migration decision; or (c) in any case—a person prescribed by the regulations.

480

Intervention by Attorney-General (1)

(2)

(3)

481

The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A. If the Attorney-General intervenes in such a proceeding, the Federal Circuit Court or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit. If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.

Operation etc. of decision The not: (a) (b) (c)

making of an application referred to in section 477 or 477A does affect the operation of the decision; or prevent the taking of action to implement the decision; or prevent the taking of action in reliance on the making of the decision. [page 591]

482

Changing person holding, or performing the duties of, an office

If: (a)

a person has, in the performance of the duties of an office, made a migration decision; and (b) the person no longer holds, or, for whatever reason, is not performing the duties of, that office; this Part has effect as if the decision had been made by: (c) the person for the time being holding or performing the duties of that office; or (d) if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies.

484

Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court (1) (2)

(3)

(4)

Only the High Court, the Federal Court and the Federal Circuit Court have jurisdiction in relation to migration decisions. To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit Court, but to exclude other courts from jurisdiction in relation to migration decisions. To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions. To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Crossvesting) Act 1987.

Part 8A—Restrictions on court proceedings 486A Time limit on applications to the High Court for judicial review (1)

(2)

An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. The High Court may, by order, extend that 35 day period as the

(3)

(4)

High Court considers appropriate if: (a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order. In this section: date of the migration decision has the meaning given by subsection 477(3). For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions [page 592]

(5)

mentioned in the definition of date of the migration decision in subsection 477(3). To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

486AA Intervention by Attorney-General (1)

(2)

(3)

The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1). If the Attorney-General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit. If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.

486AB Operation etc. of decision The making of an application referred to in section 486A does not: (a) affect the operation of the decision; or

(b) prevent the taking of action to implement the decision; or (c) prevent the taking of action in reliance on the making of the decision.

486B Multiple parties in migration litigation Application of section (1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Circuit Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens. Consolidation of proceedings (2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that: (a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and (b) the consolidation is desirable for the efficient conduct of the proceedings. (3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2). Other joint proceedings etc. (4) The following are not permitted in or by a migration proceeding: (a) representative or class actions; (b) joinder of plaintiffs or applicants or addition of parties; [page 593] (c)

a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.

Relationship with other laws (5) This section has effect despite any other law, including in particular: (a) Part IVA of the Federal Court of Australia Act 1976; and (b) any Rules of Court. (6) However, this section does not apply to a provision of an Act if the provision: (a) commences after this section commences; and (b) specifically states that this section does not apply. Exceptions to general rules (7) This section does not prevent the following persons from being involved in a migration proceeding: (a) the applicants in the proceeding and any persons they represent, if: (i) the regulations set out a definition of family for the purposes of this paragraph; and (ii) all of those applicants and other persons are members of the same family as so defined; (b) a person who becomes a party to the proceeding in performing the person’s statutory functions; (c) the Attorney-General of the Commonwealth or of a State or Territory; (d) any other person prescribed in the regulations.

486C Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court (1)

(2)

Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit Court or the Federal Court that raises an issue: (a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens; and (b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations; (whether or not the proceeding raises any other issue). Those persons are:

(a) a party to a review mentioned in section 479; or (b) the Attorney-General of the Commonwealth or of a State or a Territory; or [page 594] (c)

a person who commences or continues the proceeding in performing the person’s statutory functions; or (d) any other person prescribed by the regulations. (3) This section applies to proceedings within the Federal Circuit Court’s jurisdiction under section 476 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law. (3A) This section applies to proceedings transferred to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999 and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c). (4) To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue. Relationship with other laws (5) This section has effect despite any other law. (6) However, subsection (5) does not apply to a provision of an Act if the provision: (a) commences after this section commences; and (b) specifically states that it applies despite this section.

486D Disclosing other judicial review proceedings (1)

(2)

A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation

(3)

(4)

(5)

to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. A person must not commence a proceeding in the High Court seeking the exercise of the commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section. In this section: judicial review proceeding, in relation to a tribunal decision, means: (a) a proceeding in the Federal Circuit Court in relation to the tribunal decision; or [page 595] (b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or (c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision. tribunal decision means a privative clause decision, or purported privative clause decision, made on review: (a) by the Tribunal under Part 5 or 7 or section 500; or (b) by the Immigration Assessment Authority under Part 7AA.

INDEX All references are to paragraphs

A Actions prior to hearing consent decisions …. 15.20–15.21 determination of scope of review …. 15.1–15.2 dismissal of application …. 15.3 consent, by …. 15.4 decision not reviewable, because …. 15.9 failure to appear …. 7.8 failure to proceed, for …. 15.10 frivolous or vexatious, because …. 15.14–15.18 new application after …. 15.19 withdrawal of application, following …. 15.5 failure to appear …. 7.8, 15.6 reinstatement of application …. 15.11–15.12 extension to all proceedings …. 15.13 reinstatement of application dismissed for failure to appear …. 15.8 remittal of original decision …. 15.22–15.23, 17.1–17.2

Adjournment court proceedings, where …. 3.20 Tribunal proceedings …. 13.51

Administrative Appeals Tribunal (AAT) arrangement of business …. 2.4 constitution see Constitution of Tribunal contact details …. 6.12 contempt of …. 20.4 decisions see Decisions of AAT divisions …. 2.2 assignment of members to …. 2.3 establishment …. 1.1–1.3 evidence see Evidentiary matters investigation see Investigation by Tribunal objective …. 1.6 effect of …. 1.7–1.9 origin …. 1.2 President see President proceedings …. 1.7–1.9, 2.2 reconstitution …. 2.8 review by see Review transitional arrangements …. 1.10

Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) commencement …. 1.3

Administrative Appeals Tribunal Regulation 2015 (Cth) fees payable …. 6.6, 20.6

Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act)

review under …. 19.60–19.61

Administrative Review Committee Report 1971 see Kerr Committee Report Advisory opinions …. 20.1 Alternative dispute resolution AAT powers …. 10.5 applicable provisions concerning …. 10.9 application …. 10.4 classification of proceeding …. 10.9 cooling-off provision …. 10.9 definition …. 10.5 entering a decision …. 10.9 evidence, admission of …. 10.9 forms of …. 10.8 mediation, use of …. 10.7 preliminary conference …. 10.6 withdrawal …. 10.9

Anshun estoppel …. 17.11 Tribunal appeals and …. 19.17

Appeals from AAT decisions admission of new evidence on appeal …. 19.41 Anshun estoppel and …. 19.17 appealable decision Chaney’s case test application of …. 19.11

exceptions to …. 19.12 other means of appeal …. 19.13 identification of …. 19.10 commencement of, method of …. 19.5 consent orders …. 19.51 constitution of court on appeal …. 19.6 costs, award of Federal Proceedings (Costs) Act 1981 (Cth) …. 19.54 general principles …. 19.52–19.53 discontinuance …. 19.26 dismissal or adjournment …. 19.27 documents to be sent to court …. 19.9 erroneous decision, court must set aside …. 19.44 Federal Circuit Court appeals from …. 19.8 transfer to …. 19.7 Federal Court, to …. 19.1 High Court, to …. 19.59 institution of appeal, effect of …. 19.55 intervention on appeal …. 19.15 migration appeals …. 19.56–19.57 name suppression, continuing …. 19.18 no appeal against favourable decision …. 19.16 objection to competency of …. 19.23 order on successful appeal findings of fact …. 19.46

limits on fact finding …. 19.47 power of court …. 19.45 order where only one result open …. 19.48 party only may appeal …. 19.14 procedure …. 19.4 question of law appeal to state …. 19.22 cases holding administrative law principles …. 19.35 fact/law interplay …. 19.37 identification of question of law …. 19.33 inadequacy of statement of reasons …. 19.36 lack of evidence or weight of evidence, appeal based on …. 19.39–19.40 statutory construction …. 19.34 tribunal procedure and delay …. 19.38 must be on appeal right to be confined …. 19.31 jurisdiction for appeal …. 19.28 nature of AAT confines appeal …. 19.32 question of law cannot be agreed by parties, where …. 19.29 question of law contrasted with error of law …. 19.30 reference of, to court …. 19.58 raising new matters …. 19.42–19.43 remitting case to AAT …. 19.49–19.50 security for costs …. 19.25 time to institute

extension of time …. 19.20 applications, court’s approach to …. 19.21 time limit …. 19.19 vexatious litigant …. 19.24

Applicant for review see also Party to proceedings administration order, effect of …. 5.11 legal or financial assistance, application for …. 20.8 loss of standing applicant no longer affected by decision, where …. 5.9 death of applicant, where …. 5.10 standing bankruptcy of applicant, effect of, on …. 5.11 public trustee appointment, effect of, on …. 5.11 substitution of applicant …. 5.11 when interests affected applicant has to be affected …. 5.8 ‘interests affected’, meaning of …. 5.5 persons held to be affected …. 5.7 who may apply …. 5.1 Commonwealth as applicant …. 5.1 convicted felons, rights of …. 5.1 determination of standing …. 5.3 joinder of parties …. 5.1 organisations or associations …. 5.2 standing, change in …. 5.4

Application for review

delivery to wrong address …. 6.13 effect of lodging …. 6.35 extension of time …. 6.14 applications for …. 6.15, 6.17 approach to …. 6.17 factors referred to in …. 6.18 absence of other applicants …. 6.30 Commonwealth as applicant for extension …. 6.31 delay, explanation for …. 6.19 fault of legal or other adviser …. 6.27 ignorance of appeal rights …. 6.29 length of delay …. 6.25 misinformation as to rights …. 6.26 potential financial loss …. 6.22 prejudice to persons affected by decision …. 6.23 prejudice to respondent …. 6.23 previous dismissal of application for review …. 6.32 pursuit of other means of review …. 6.28 resting on rights …. 6.24 significant issue to be determined …. 6.21 strength of applicant’s case …. 6.20 further applications for …. 6.33 hearing for …. 6.15 notice of opposition …. 6.15 persons affected by decision …. 6.16 where previous review application withdrawn …. 6.34

fees payable …. 6.6 effect of failure to pay …. 6.8 exceptions to …. 6.6 refund if successful …. 6.7 waiver of …. 6.6, 6.8 giving or lodging …. 6.12 what constitutes …. 6.13 mistakes in …. 6.1 notice of application …. 6.5 oral application …. 6.2 prescribed form, use of …. 6.1 requirements for …. 6.1 special provisions relating to …. 6.2 statement of reasons in support of …. 6.4 time for making see Time where more than one decision …. 6.3

Attorney-General certificate preventing disclosure of information …. 12.16 party to proceeding, as …. 7.1

B Bias what amounts to …. 8.13–8.16

Bland Committee Final Report AAT recommendation …. 1.2

Briginshaw test application of …. 9.42

Browne v Dunn rule in …. 8.18–8.19

C Collateral attack …. 19.64 Compensation decisions act of grace scheme …. 16.16 costs in power to award …. 18.2–18.3 refusal to award …. 18.4–18.5 test for award of …. 18.6

Compensation payments act of grace scheme …. 16.16 Compensation for Detriment caused by Defective Administration (CDDA scheme) …. 16.16

Confidential information non-disclosure of …. 20.5

Consent decisions …. 15.20–15.21 Constitution of Tribunal expeditious and efficient conduct of proceeding …. 2.10 hearings, for …. 2.7 reconstitution …. 2.8 appeal, after …. 2.12–2.13

bias, on grounds of …. 2.9 party, at request of …. 2.11 regard to previous record …. 2.14 unavailability of member …. 2.9

Contempt of AAT …. 20.4 Costs amount of …. 18.8 award of …. 18.1, 18.7 on appeal …. 19.52–19.54 Calderbank offer …. 18.5 compensation decisions, in power to award …. 18.2–18.3 refusal to award …. 18.4–18.5 test for award of …. 18.6 security for, on appeal …. 19.25 taxation of …. 18.8

D Death applicant, of …. 7.3, 7.9 loss of standing, where …. 5.10

Decisions of AAT affirmation of decision …. 17.1 Anshun estoppel …. 17.11 appeals from see Appeals from AAT decisions

collateral attack …. 19.64 correct and/or preferable …. 16.4 date of effect of …. 17.5–17.6 disagreement between members …. 13.50 estoppel effect of previous decisions …. 17.9–17.10 inapplicability of concept of …. 17.8 problems with application of …. 17.7 fraud on tribunal …. 17.12, 19.63 functus officio …. 17.26 jurisdictional error …. 17.28–17.29 when has decision been made …. 17.27 nature of exercise of power of review …. 17.1 precedent and …. 17.3–17.4 reasons for see Reasons for decision release of documents lodged in proceedings see Documents remitting matter for reconsideration with directions …. 17.1–17.2 reopening case …. 17.30 res judicata problems with application of …. 17.7 return of documents after …. 17.31

Delivery see Application for review Directions hearings conduct of …. 10.10–10.11 evidence, directions as to …. 10.12

time for …. 10.10

Dismissal of application …. 15.3 consent, by …. 15.4 decision not reviewable, because …. 15.9 failure to proceed, for …. 15.10 frivolous or vexatious, because …. 15.14–15.18 new application after …. 15.19 reinstatement after …. 15.8, 15.11–15.12 withdrawal of application, following …. 15.5 failure to appear, where …. 7.8

Documents appeal, to be sent to court on …. 19.9 disclosure of …. 12.16 access by legal representatives and advisers …. 11.12 content of reasons …. 11.13 prohibition on …. 11.9–11.10 lodging of …. 12.1–12.3 access to lodged documents …. 12.10 description of documents to be lodged …. 12.6–12.7 direction to lodge other documents …. 12.8 modification to …. 12.12 ongoing requirement …. 12.5 privilege applies, to which …. 12.9 subsidiary matters in relation to …. 12.13 supplementary documents …. 12.4 time period for …. 12.1

extension of …. 12.3 non-disclosure of …. 12.15 Attorney-General’s certificate …. 12.16 Migration and Refugee Division, in …. 12.19 Security Division, in …. 12.18 release of documents lodged in proceedings …. 17.32 Harman rule …. 17.32 practice direction …. 17.34 special circumstances justifying release …. 17.33 return of …. 17.31 statement of reasons …. 12.14 ‘T’ documents …. 12.2

E Estoppel see also Anshun estoppel effect of previous decisions …. 17.9–17.10 inapplicability of concept of …. 17.8 problems with application of …. 17.7

Evidentiary matters AAT may inform itself on any matter …. 9.32 Briginshaw test, application of …. 9.42 concurrent evidence …. 13.38 criminal behaviour texts, use of …. 9.21 criminal statistics, use of …. 9.20 evaluating evidence …. 9.42 evidence challenging criminal conviction, use of …. 9.19

expert evidence, use of …. 9.27, 13.37 extrinsic aids, use of see Expert evidence findings by court in other proceedings, effect of …. 9.17 findings of other bodies …. 9.16 going behind order …. 9.18 hearsay, admissibility of …. 9.6 hospital records, use of …. 9.23 incriminating material, use of …. 9.7 Jones v Dunkel, rule in …. 9.14 legal medical privilege, no recognition of …. 9.10 legal professional privilege …. 9.8–9.10 advice privilege …. 9.9 litigation privilege …. 9.9 medical dictionaries, use of …. 9.22 medical statements of principle, use of …. 9.24 members’ expertise, reliance on …. 9.33 Migration and Refugee Division …. 9.1, 12.19 natural justice and …. 9.5 onus of proof see Onus of proof opinion rule …. 9.28 parole evidence rule …. 9.13 policy statements, use of …. 9.26 public interest exclusionary rules, application of …. 9.4 public interest privilege …. 9.12 Royal Commission reports, use of …. 9.15 rules of

AAT not bound by …. 9.1 effect of …. 9.4 Security Division …. 12.18 self-incrimination, privilege against …. 9.7 similar fact situations, use of …. 9.33 standard of proof, application of …. 9.39–9.41 statutory interpretation …. 9.31 taking of evidence …. 13.36 technical words, evidence as to meaning of …. 9.30 trade survey, use of …. 9.25 trade usage …. 9.29 ‘view’, taking of …. 13.39 weight to be given to …. 9.3 without prejudice privilege …. 9.11 wrongful rejection of …. 9.2

Expert evidence challenge to …. 9.27 guidelines on giving …. 9.27 use of …. 9.27

F Federal Circuit Court appeals from …. 19.8 transfer to …. 19.7

Federal Court

appeals to see Appeals from AAT decisions

Fees for AAT applications see Applications for review Freedom of Information Division knowledge of members …. 9.33 where onus of proof lies …. 9.38

Frivolous or vexatious applications dismissal of appeals …. 15.18 futility of continuing application …. 15.16 jurisdiction …. 15.14 principles on which order made …. 15.15 supplementary orders …. 15.17

H Hardiman principle …. 13.6 Hearings see also Evidentiary matters, Pre-hearing and special procedures actions prior to see Actions prior to hearing adjournment …. 13.51 administration of oath …. 13.35 answering questions …. 12.17 appearance …. 13.1 concurrent evidence …. 13.38 court proceedings, effect of …. 3.20 cross-examination …. 13.42

directions at …. 13.7 disabilities, people with …. 13.41 disclosure of documents see Documents documents, lodging of see Documents evidence, taking of …. 13.36 examination on matter not disclosed before hearing …. 13.16–13.18 expedited …. 10.15 expert evidence …. 13.37 facts to be considered as at date of review …. 16.20–16.22 interpreters …. 13.41 investigation see Investigation by Tribunal law to be applied as at date of review …. 16.18–16.19 legal advisers, position of …. 11.4 manner in which questions to be decided where disagreement …. 13.50 Migration and Refugee Division, in see Migration and Refugee Division papers, on …. 13.54 presentation of case …. 13.8 private circumstances where permitted …. 11.2 legislative provisions requiring …. 11.5 public fundamental principle of …. 11.1–11.3 publication of names power to prohibit …. 11.14–11.17 application of …. 11.15 prohibition on appeal …. 11.18

record of proceedings …. 13.53 remitted matter …. 13.46–13.47 reopening …. 13.45 representation …. 13.1 Commonwealth litigation policy …. 8.4 decision-maker tribunal, of …. 13.6 Hardiman principle …. 13.6 role of representative …. 13.5 restrictions on publication of evidence non-disclosure order basis for …. 11.6 emergency orders for …. 11.8 public interest …. 11.7 review in absence of party …. 13.48 Security Division, in see Security Division Social Services and Child Support Division, in see Social Services and Child Support Division submissions, making of …. 13.9–13.12 re-agitating facts dealt with in previous decision …. 13.11 telephone and video hearings …. 13.40 unrepresented applicants …. 13.4 view, taking of …. 13.39 witnesses see Witnesses

Hearsay evidence admissibility of …. 9.6

High Court

appeals to …. 19.59

I Immigration Assessment Authority (IAA) review by …. 1.4

Interpreters use of, at hearings …. 13.41

Investigation by Tribunal adversarial system …. 13.31 general approach …. 13.27 inspection orders …. 13.32 J

Joinder see Party to proceedings Jones v Dunkel rule in …. 9.14

Judiciary Act 1903 (Cth) review under …. 19.62 fraud on tribunal, where …. 19.63

Jurisdiction AAT Act, modification of …. 3.5 compliance with formalities …. 3.10 conferral by enactment …. 3.2, 3.34 court, where matter before …. 3.20 decisions subject to review …. 3.1 delegated legislation, validity of …. 3.12

determination of, by AAT …. 3.7 inability of party to agree on, where …. 3.6 intermediate tribunal refuses jurisdiction, where …. 3.19 invalid decisions …. 3.14–3.15 Lawlor’s case …. 3.14–3.17 jurisdictional provisions strictly construed …. 3.8–3.9 legislation conferring jurisdiction …. 3.13 legislation, validity of …. 3.11 Migration Act decisions …. 3.3 power to review aspect of decision …. 3.9 invalid decisions …. 3.14–3.15 refusal to make decision …. 3.18 validity of legislation …. 3.11, 3.13 refusal to act …. 3.18 rulings on, to be made at hearing …. 3.35 social security decisions …. 3.4

K Kerr Committee Report establishment of AAT …. 1.2

L Lawlor’s case invalid decision, jurisdiction to review …. 3.14–3.17

Legal or financial assistance

application for …. 20.8

M Mandamus court intervention by …. 6.1

Membership of AAT appointment …. 2.1 judge, of …. 2.1 categories …. 2.1 divisions, assignment to …. 2.3 expertise, reliance by members on …. 9.33 President …. 2.1, 2.4 protection …. 20.2

Migration and Refugee Division access to evidence prior to hearing …. 10.1 appeals against decisions of …. 19.2, 19.57 decisions excluded from appeal …. 19.56 appearance at hearing in …. 13.2 applications to …. 6.2, 6.3 giving or lodging …. 6.12 no extension of time …. 6.14 time for lodging …. 6.10 who may apply …. 5.1 combined applications …. 6.3 cross-examination …. 13.44

determination of scope of review …. 15.1–15.2 disclosure of information, restrictions on …. 11.11 evidence in support of application …. 6.4 evidentiary matters see Evidentiary matters failure to appear …. 15.7 fees payable …. 6.6 waivers and refunds …. 6.7, 6.8 hearing on papers …. 13.55 procedure …. 12.11 inspection orders …. 13.34 investigations by Tribunal …. 13.28–13.30 power on review …. 16.2 power to seek information of own volition …. 9.32 procedural fairness see Procedural fairness proceedings …. 1.4, 2.7, 12.19–12.20 effect of decisions relating to MRT …. 13.28–13.30 representation at hearing …. 13.2 review in absence of party …. 13.49 reviewable decisions …. 3.3 standard of proof required …. 9.40 submissions, making of …. 13.14 summoning of witnesses …. 13.26

Migration Review Tribunal (MRT) AAT, amalgamation with …. 1.3–1.4, 1.10 court decisions, effect of on AAT …. 13.28–13.30

establishment …. 1.3–1.4 jurisdiction, powers and procedures …. 1.4

N National Disability Insurance Scheme Division knowledge of members …. 9.33

Notice of reviewable decision requirement to give …. 4.1

O Oath administration of …. 13.35 refusal to be sworn …. 20.3

Ombudsman compensation payments, making of …. 16.16 referral of matter to …. 6.1, 16.15

Onus of proof Commonwealth employees compensation claims, in relation to …. 9.38 failure to appear or give evidence …. 9.36 legislation affecting …. 9.38 no onus on applicant …. 9.34 ‘onus’, use of term …. 9.37 onus arising from facts …. 9.35

P

Party to proceedings application to become …. 7.1 delay to proceedings, consideration of …. 7.6 death of …. 7.3, 7.9 failure to appear …. 7.8 joinder of …. 7.1 appeal against refusal …. 7.3 discretion to grant …. 7.2–7.3 rights of parties joined …. 7.7 legal or financial assistance, application for …. 20.8 persons joined as parties …. 7.4 principal parties …. 7.1 unincorporated associations, exclusion of …. 7.1 when interests ‘affected’ …. 7.5–7.6 adversely and beneficially …. 7.6

Pleadings procedure in lieu of …. 10.2

Policy, government see Review Pre-hearing and special procedures access to evidence prior to hearing …. 10.1 alternative dispute resolution see Alternative dispute resolution directions hearings …. 10.10–10.11 evidence, directions as to …. 10.12 expedited hearing …. 10.15 preliminary hearings …. 10.13

review procedures …. 10.17 review without hearing …. 10.16 setting down …. 10.14 special procedures provisions requiring …. 8.3 statements of facts and contentions …. 10.3

Preliminary hearings …. 10.13 President appointment …. 2.1 directions …. 2.5 powers …. 2.7–2.10 role and responsibilities …. 2.4

Privilege legal medical privilege, no recognition of …. 9.10 legal professional privilege …. 9.8–9.10 advice privilege …. 9.9 litigation privilege …. 9.9 public interest privilege …. 9.12 self-incrimination, privilege against …. 9.7 without prejudice privilege …. 9.11

Procedural fairness bias …. 8.13–8.16 breach of …. 8.17 applicant unaware of date or time of hearing, where …. 8.11 delay in giving reasons for decision, where …. 8.11

translation, where failure to provide …. 8.11 common law rules, compliance with …. 8.7 decision-making process, in …. 8.9–8.10 evidence and …. 9.5 hearing, at …. 8.8 migration and refugee decisions …. 8.7, 8.11, 8.12

Proceedings adversarial approach …. 8.19 agreed statements of fact …. 8.5 applicants to Tribunal, assistance by 8.4 Browne v Dunn, rule in …. 8.18–8.19 Commonwealth Government’s model litigation policy …. 8.4 concessions between parties …. 8.5, 8.6 decision-maker, obligations of …. 8.4 evidence, giving of see Evidentiary matters General Practice Direction …. 8.2 hearings, procedure at see Hearings Migration and Refugee Division in see Migration and Refugee Division parties arrangements between and concessions by …. 8.5 obligations of …. 8.4 pre-hearing see Pre-hearing and special procedures presiding on …. 2.15 principles determining …. 8.1, 8.2 record of …. 13.53 special procedures see Pre-hearing and special procedures

Publication of evidence hearings in public …. 11.1–11.3 non-disclosure order basis for …. 11.6 emergency orders for …. 11.8 restrictions public interest, where in …. 11.7

Publication of names power to prohibit …. 11.14–11.17 application of …. 11.15 continuing suppression on appeal …. 19.18 prohibition on appeal …. 11.18

R Reasons for decision AAT, obligation of alteration of …. 17.24–17.25 form and content of …. 4.2, 17.15 guidance on form of …. 17.23 inadequacy of, error of law …. 17.21–17.22 matters to be included …. 17.16–17.19 requirement to give …. 17.14 slip rule …. 17.24–17.25 use of standard paragraphs …. 17.20 decision-maker, obligation of

additional statement, requirement of …. 4.2 contrary to public interest, where …. 4.3 exceptions to right to …. 4.2 form and content of …. 4.2 notification of …. 4.1 refusal to give …. 4.2 who may obtain …. 4.2

Refugee Review Tribunal (RRT) AAT, amalgamation with …. 1.3–1.4, 1.10 court decisions, effect of on AAT …. 13.28–13.30 establishment …. 1.4 jurisdiction, powers and procedures …. 1.4

Reinstatement …. 15.11–15.12 application dismissed for failure to appear, where …. 15.8

Res judicata problems with application of …. 17.7

Review applicant’s grounds for review, not bound by …. 16.13 date at which to consider facts …. 16.20–16.22 Shi’s case …. 16.20 decision under review setting aside of …. 17.2 substitution of …. 17.1 variation of …. 17.1 decision-maker’s decision and procedures, effect of …. 16.14

decisions subject to see Reviewable decisions determination of scope …. 15.1–15.2 government policy, effect of …. 16.24 government statement on meaning of legislation, effect of …. 16.30 intervention on common law grounds …. 16.23 law applied as at date of …. 16.18–16.19 legality issues and policy …. 16.25 legislative-approved policy …. 16.26 policy, review of content and application of …. 16.27 other considerations …. 16.29 political and departmental policy, difference between …. 16.28 powers on …. 16.1, 16.4–16.5 exercise all powers of decision-maker …. 16.6–16.7 limited to review functions only …. 16.10 no greater power or discretion than decision-maker …. 16.11–16.12 review grounds not specified …. 16.8 remittal for further consideration …. 15.22–15.23, 17.1–17.2 rights, notification of …. 4.1 submissions at hearing, not bound by …. 16.13

Reviewable decisions automatic decisions not reviewable …. 3.29 components of decision …. 3.27 computer-made decisions …. 3.30 decision AAT Act and AD(JR) Act compared …. 3.23–3.24 definition …. 3.21

identification of …. 3.25 interpretation of …. 3.22 failure to take decision …. 3.31 no alteration after appeal lodged …. 3.33 notice of making …. 4.1 operative decision …. 3.26 reconsideration, decision on …. 3.28 review rights, notice of …. 4.1 rulings …. 3.32 self-executing decisions not reviewable …. 3.29

Royal Commission reports evidence, use of, as …. 9.15

S Security Division cross-examination …. 13.43 decisions …. 17.13 evidence before …. 12.18 persons who may seek review …. 5.1, 7.1 procedural fairness …. 8.7 procedures to be followed …. 12.18 special provisions applicable to …. 6.2 submissions to, making of …. 13.15

Service manner of …. 20.7

Setting down for hearing …. 10.14 Shi’s case …. 16.20 Social Security Appeals Tribunal (SSAT) AAT, amalgamation with …. 1.3, 1.5, 1.10 establishment …. 1.3, 1.5 review procedure …. 1.5

Social Services and Child Support Division appeals against decisions of …. 19.3 appearance at hearing …. 13.3 applicants …. 5.1 applications where more than one decision …. 6.3 giving or lodging application …. 6.12 inspection orders …. 13.33 oral applications …. 6.2 power on review …. 16.3 procedural fairness in …. 8.7 proceedings in see Proceedings representation at hearing …. 13.3 submissions, making …. 13.13 summoning of witnesses …. 13.25 time for lodging application …. 6.11

Special procedures see Pre-hearing and special procedures Standard of proof application of …. 9.39–9.41

Stay order

effect …. 14.11 form …. 14.10 hardship versus public interest factors …. 14.7–14.8 making and effect of …. 14.4–14.8 modification of stay power …. 14.3 payment involved, where …. 14.9 power to make …. 14.1 modification of …. 14.3 reviewable decisions, applicable only to …. 14.2 principles underlying …. 14.5 status quo, preservation of …. 14.6

Summons discretion to issue …. 13.20 effect of other legislation …. 13.23 failure to comply with …. 20.3 ‘fishing’ …. 13.21 power to issue …. 13.19 test for issuing …. 13.22

T Taxation proceedings special provisions relating to …. 6.2 statement of reasons in support of …. 6.4 taxation objection decisions, review of …. 16.9 where onus of proof lies …. 9.38

Time appeal, against AAT decision extension of time …. 19.20 applications, court’s approach to …. 19.21 time limit …. 19.19 AAT, appeal to, extension of …. 6.14 applications for …. 6.15, 6.17 approach to …. 6.17 factors referred to in …. 6.18 absence of other applicants …. 6.30 Commonwealth as applicant for extension …. 6.31 delay, explanation for …. 6.19 fault of legal or other adviser …. 6.27 ignorance of appeal rights …. 6.29 length of delay …. 6.25 misinformation as to rights …. 6.26 potential financial loss …. 6.22 prejudice to persons affected by decision …. 6.23 prejudice to respondent …. 6.23 previous dismissal of application for review …. 6.32 pursuit of other means of review …. 6.28 resting on rights …. 6.24 significant issue to be determined …. 6.21 strength of applicant’s case …. 6.20 further applications for …. 6.33 hearing for …. 6.15

notice of opposition …. 6.15 persons affected by decision …. 6.16 prevented by legislation …. 6.15 where previous review application withdrawn …. 6.34 lodging application, for …. 6.1, 6.8, 6.9, 6.13 reasonableness of time …. 6.9 special provisions …. 6.15

Translation where failure to provide …. 8.11

Tribunals Amalgamation Act 2015 (Cth) operation …. 1.3

V Veterans’ Review Board establishment …. 1.3 medical statements of principle, use of …. 9.24 onus provisions …. 9.35, 9.38 standard of proof required …. 9.39

Vexatious litigant …. 19.24 see also Dismissal of application

W Waiver of debts due to Commonwealth …. 16.17 Witnesses see also Summons fees for …. 20.6

refusal to answer question …. 20.3 refusal to be sworn …. 20.3