Express law No. 21

20 May 2005

Amendments to the AAT Act

Significant amendments to the Administrative Appeals Tribunal Act 1975 ('the AAT
Act') have now commenced.
The Administrative Appeals Tribunal Amendment Act
2005 empowers the Federal Court to make findings of fact in
appeals from decisions of the tribunal and introduces
significant new requirements for decision makers. The
amendments commenced on 16 May 2005. In this Express
law we highlight some of the key changes.

Background

The Administrative Appeals Tribunal Amendment
Act 2005 introduces a range of measures designed to assist
the Administrative
Appeals Tribunal ('the tribunal') to meet the
aims of its new formal objective statement of 'providing
a mechanism of review that is fair, just, economical, informal
and quick'. In his second reading speech, the Attorney-General
described the amendments as 'the most substantial
reform' to the tribunal since its inception.

Role
of the Federal Court

It may now be necessary in future appeals
to the Federal Court from decisions of the tribunal to
give consideration
at an early stage as to whether further evidence may need
to be filed on the appeal.

Section 44 of the AAT Act now
permits the Federal Court to make findings of fact in appeals
from decisions of the
tribunal. This amendment implements an Administrative Review
Council recommendation and is designed to allow the court
to dispose of appropriate matters completely rather than
remitting them to the tribunal for the taking of further
evidence. The new procedure also applies to the Federal
Magistrates' Court where matters are transferred
to that court by the Federal Court.

Under new section 44(7)
of the AAT Act, the court is only able to make findings
of fact that are not inconsistent
with those already made by the tribunal. Before making
findings of fact, the court must determine whether it is
convenient to do so having regard to factors including
the expeditious and efficient resolution of the whole of
the matter and the relative expense or delay to the parties.
Section 44(8) of the AAT Act allows the court to have regard
to evidence in proceedings before the tribunal and to receive
further evidence for the purpose of making new findings
under section 44(7).

Referral of questions of law

Section 45(1) of the AAT Act
now requires the concurrence of the President to be obtained
before a question of law
may be referred to the Federal Court. This is designed
to ensure that referrals occur only in exceptional circumstances
that justify the guidance of the court.

Appeals to the Federal
Court may still only be made on a question of law.

New
requirements imposed on decision makers

Decision makers
now have a legislative duty to assist the tribunal

New section
33(1AA) of the AAT Act imposes a duty on the person who
made the decision under review to use their
best endeavours to assist the tribunal to make its decision.
The Explanatory Memorandum to the new amendments states
that s 33(1AA) is consistent with the model litigant obligations
under the Legal Services Directions issued by the Attorney-General,
and is not intended to place any obligations on the decision
maker that are the responsibility or obligation of the
applicant. The Office of Legal Services Coordination of
the Attorney-General's Department has issued Guidance
Note No. 1 of 2005
relating to this amendment.

Decision
makers will need to consider the extent to which s 33(1AA)
may require them to alter the way they conduct
their cases before the tribunal. In some cases, this may
raise difficult questions of approach, with time and resource
implications. AGS envisages further guidance by it to clients
in light of the developing understanding of s 33(1AA)'s
operation.

Decision makers must now provide the tribunal
with all documents objectively relevant to the review of
the decision
by the tribunal, not only those they subjectively consider
relevant

Section 37(1)(b) of the AAT Act previously required
that a decision maker must give to the tribunal every other
document (or part thereof) that is in that person's
possession and considered by the person to be relevant
to the review of the decision by the tribunal. This section
has been amended by deleting 'considered by the person
to be'. The effect is to require decision makers
to give the tribunal all documents that a reasonable person
would consider relevant to the review of the decision by
the tribunal, and not only documents which they, in their
subjective opinion, consider to be relevant to the decision
under review.

Reforms to tribunal procedures

Further statement of reasons

New section 29(1B) of the
AAT Act enables the tribunal to obtain an amended statement
of reasons from the applicant
where the tribunal considers the original statement does
not assist it in identifying why the applicant believes
the decision is not the correct or preferable decision.

Alternative
dispute resolution

New section 34A(1) of the AAT Act provides
that where an application has been made for review of a
decision, the
President may direct the holding of a conference in relation
to the proceeding or any part of it, or that the proceeding
or any part of it be referred for a particular dispute
resolution process. The range of alternative dispute resolution
procedures available to the tribunal is also expanded to
include neutral evaluation, case appraisal and conciliation.

New section 34D of the AAT Act enables parties to give
effect to an agreement reached through alternative dispute
resolution processes, on conditions including that the
agreement is in writing and lodged with the tribunal and
that the tribunal is satisfied that such a decision would
be within its powers.

Reforms to tribunal management and
constitution

Sections 20(2) and 20(4) of the AAT Act now
give the President the power to issue directions determining
tribunal practice
and procedure on the conduct of reviews.

The amendments
also remove restrictions in the AAT Act and some other
legislation on how the tribunal is to be
constituted for particular matters. The removal of these
restrictions is designed to ensure the tribunal is constituted
by the most appropriate members in each hearing, having
regard to factors including the degree of public importance
or complexity of the matter, the status of the decision
maker, and the degree to which it is desirable for the
members constituting the tribunal to have special knowledge,
expertise or experience.

Other amendments

The accessibility and readability of the
AAT Act is improved through the insertion of new headings
and sub-headings
and plain English terms like 'given to' instead
of 'served on' and 'given' instead
of 'furnished'.

Criminal offences in the AAT
Act have been redrafted in the style of the Criminal
Code, and penalties for those
offences have been updated.

A consolidated version of
the AAT Act is available at:
http://scaleplus.law.gov.au/html/pasteact/0/27/pdf/AAT1975.pdf

For further information please contact:

Justin Hyland
Senior Lawyer
T 02 6253 7417 F 02 6253 7380
justin.hyland@ags.gov.au

Important: The material in this Express law is provided
to clients as an early, interim view for general
information only, and further analysis on the matter
may be prepared
by AGS. The material should not be relied upon
for the purpose of a particular matter. Please contact
AGS before
any action or decision is taken on the basis of
any
of the material in this message.