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Editors --- "Amendments to the Administrative Appeals Tribunal Act" [2006] AdminRw 15; (2006) 57 Admin Review 86

Amendments to the Administrative Appeals Tribunal Act

The Administrative Appeals Tribunal Amendment Act 2005 (Cth), which came into force on 16 May 2005, introduced reforms to the Administrative Appeals Tribunal in four important areas: changes to procedures for dealing with review applications; amendments to the provisions for constituting tribunals; more extensive use of Tribunal members; and reforms relating to the appellate role of the Federal Court and the Federal Magistrates Court. In addition to these amendments, the Amendment Act inserts an object clause into the Administrative Appeals Tribunal Act 1975 (Cth), requiring the Tribunal to ‘pursue the objective of providing a mechanism of review that is fair, just, economic, informal and quick’.[1]

Tribunal procedures

The Amendment Act introduces a new set of provisions relating to alternative dispute resolution processes available to the Tribunal. As a result of the amendments, alternative dispute resolution processes now include neutral evaluation, case appraisal, conciliation, and any procedures or services specified in the Regulations in addition to the existing processes of conferencing and mediation.

Under the new s 34A of the Administrative Appeals Tribunal Act, the President of the Tribunal may compulsorily direct that a proceeding be referred to an alternative dispute resolution process. Parties directed to such a process must act in good faith (ss 34A and 34B).

As with previously provided alternative dispute resolution processes, the Tribunal may make a decision in accordance with an agreement reached by the parties under the new processes. This may be done if the Tribunal is satisfied that the terms of the agreement are consistent with the powers of the Tribunal, and the Tribunal considers it appropriate to make a decision in accordance with those terms. The Tribunal may, however, give effect to an agreement only after a seven-day ‘cooling–off’ period (s 34D).

Section 34E provides that evidence of anything said or done during alternative dispute resolution is not admissible in any court. Such evidence is, however, admissible at the hearing of a proceeding before the Tribunal if the parties agree or the evidence is a case appraisal report or a neutral evaluation report and neither party has objected to the report’s admissibility.

Finally, if a tribunal member conducts an alternative dispute resolution process, that member cannot participate in the hearing of the same matter if any party objects (s 34F).

The scope of the decision under review

New s 25(4A) specifically provides that the Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the matters it considers.

Constitution and reconstitution of tribunals

A number of changes have been made to the provisions dealing with the constitution of tribunals. First, multi–member panels consisting solely of members are now permitted.

Second, the Tribunal can now be reconstituted in a wider range of circumstances. Reconstitution can occur where a member ceases to be available. A member ceases to be available if they stop being a member, are not available for the proceedings, or are directed by the President not to continue to take part in the proceedings. The President may direct that a member not continue only if it is in the interests of justice and the President has consulted both the member and the parties to the proceeding.

The President may also reconstitute a Tribunal if it is in the interest of achieving the expeditious and efficient conduct of the proceeding and the President has consulted the parties.

When the Tribunal is being constituted, s 23B of the Administrative Appeals Tribunal Act provides an expanded list of factors the President must have regard to. Among these are the degree of public importance, the complexity of the matter, the status of the decision maker, whether the decision concerns national security, the financial importance of the matter, the purpose of the enactment under which the reviewable decision was made, and the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge or expertise in relation to the matter.

Third, the majority of special constitution provisions, which require the Tribunal to be constituted in a particular way for the exercise of certain review powers, have been repealed. Special constitution provisions continue to exist for hearings dealt with in the Tribunal’s Security Appeals Division, for review of certain decisions under the Archives Act 1983 (Cth), decisions under the Freedom of Information Act 1982 (Cth) concerning conclusive certificates, and decisions under the Commonwealth Electoral Act 1918 (Cth) relating to political parties.

Expanded use of tribunal members

As a result of the Amendment Act, a range of powers previously exercisable only by judges, deputy presidents and senior members can now be exercised by members under presidential authorisation before constitution of the Tribunal. These powers include:

• extending the time for lodging an application—s 29(7)

• deciding whether a person’s interests are sufficiently affected by a decision to enable them to be made a party to the proceedings—s 30(1A)

• making a decision in accordance with an agreement lodged by the parties—ss 34D and 42C

• making confidentiality orders in respect of documents lodged with the tribunal—s 35(2)(b)

• making an order staying the operation or implementation of a reviewable decision—ss 41(2) and (3)

• dismissing or reinstating an application on a range of procedural grounds—s 42A

• authorising the refusal of a request to issue a summons—s 40(1C)

• giving parties leave to inspect documents produced under a summons—s 40(1D).

The role of the Federal Court and the Federal Magistrates Court

The Federal Court and the Federal Magistrates Court can now make limited findings of fact in certain circumstances where there has been an appeal against a decision of the Tribunal under s 44(1) of the Administrative Appeals Tribunal Act. The Court may make findings of fact if the findings are not inconsistent with the findings made by the Tribunal—unless the Tribunal’s findings are the result of an error of law—and it appears convenient to make findings of fact having regard to a range of factors, including necessity, efficiency, expense, delay and appropriateness.

Other amendments

Under new s 33(1AA) of the Administrative Appeals Tribunal Act, the decision maker must use his or her best endeavours to help the Tribunal make its decision. Section 37 requires the decision maker to provide all relevant documents to the Tribunal. Section 37(1)(b) has been amended to change the test of a document’s relevance from a subjective to an objective one.

If the Tribunal considers an applicant’s statement of reasons does not sufficiently enable it to determine why the applicant believes the decision is not the correct or preferable one, the new s 29(1B) enables the Tribunal to ask the applicant to amend their statement within a specified period.

The Amendment Act also repeals certain provisions relating to tenure. A member can now hold office for up to seven years.

[1] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.

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