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Administrative Review Council - Admin Review |
The Administrative Appeals Tribunal may review a decision only if an Act, Regulation or other enactment provides that the decision is subject to review by the Tribunal.
The enactments listed here came into operation between 1 July 2004 and 31 December 2005 and either conferred on the Tribunal jurisdiction to review certain decisions or amended or removed such jurisdiction.
The following enactments confer new jurisdiction on the Administrative Appeals Tribunal:
• the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 • the Agricultural and Veterinary Chemicals (Administration) Amendment Regulations 2004 (No 1)—introduced merits review of decisions under the Agricultural and Veterinary Chemicals (Administration) Regulations 1995 • the Anti-Terrorism Act (No 2) 2005—introduced new jurisdiction for the Administrative Appeals Tribunal under the Criminal Code Act 1995 • the Australian Meat and Live-stock Industry (Export Licensing) Amendment Regulations 2004 (No 1)—introduced merits review of decisions under the Australian Meat and Live-stock Industry (Export Licensing) Regulations 1998 • the Australian Meat and Live-stock (Beef Export to the USA—Quota Year 2006) Order 2005 • the Australian Passports Act 2005 • the Australian Passports Determination 2005 • the Aviation Transport Security Act 2004 • the Aviation Transport Security Regulations 2005 • the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 • the Export Control (Animals) Order 2004 • the Export Control (Dairy, Eggs and Fish) Orders 2005 • the Export Control (Eggs and Egg Products) Orders 2005 • the Export Control (Fish and Fish Products) Orders 2005 • the Export Control (Hay and Straw) Orders 2005 • the Export Control (Meat and Meat Products) Orders 2005 • the Export Control (Milk and Milk Products) Orders 2005 • the Export Control (Plants and Plant Products) Orders 2005 • the Family Assistance (One-off Payments to Families and Carers) Scheme 2004 • the Federal Court of Australia Regulations 2004 • the Film Licensed Investment Company Act 2005 • the Health Insurance (Eligible Collection Centres) Approval Principles 2005 • the High Court of Australia (Fees) Regulations 2004 • the Marine Orders Part 30—Issue 7 (Order No 4 of 2005) • the Marine Orders Part 94—Issue 4 (Order No 5 of 2005) • the Marine Orders Part 95—Issue 4 (Order No 6 of 2005) • the Maritime Transport and Offshore Facilities Security Amendment Regulations 2005 (No 1)—amending the Maritime Transport and Offshore Facilities Regulations 2003 • the Military Rehabilitation and Compensation Act 2004 • the Motor Vehicle Compensation Scheme (MRCA Instrument No 2 of 2004) • the Petroleum (Submerged Lands)(Management of Well Operations) Regulations 2004 • the Textile, Clothing and Footwear Post-2005 Strategic Investment Program Scheme 2005 • the Water Efficiency Labelling and Standards Act 2005.
The following enactments listed in the left-hand column amended the Administrative Appeals Tribunal’s jurisdiction to review certain decisions by extending the Tribunal’s jurisdiction or reducing the number of decisions subject to review. The right-hand column shows the existing enactments that are affected.
The following enactments listed in the left-hand column removed the Administrative Appeals Tribunal’s jurisdiction by repealing an enactment or removing the Tribunal’s jurisdiction under an enactment that continues to exist. The right-hand column shows the enactments affected.
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Repealing enactments
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Affected enactments
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• the Australian Meat and Live-stock Industry Amendment and Repeal Order 2004 |
• the Australian Meat and Live-stock Industry (Export of Cattle) Order 2003 • the Australian Meat and Live-stock Industry (Export of Live Sheep and Goats to the Middle East) Order 2003 • the Australian Meat and Live-stock Industry (Export of Pregnant Cattle) Order 2002 |
• the Export Control (Animals) Order 2004 |
• the Export Control (Animals) Orders 2004 |
• the Export Control (Dairy, Eggs and Fish) Orders 2005 |
• the Export Control (Processed Food) Orders 1992 |
• the Export Control (Fish and Fish Products) Orders 2005 |
• the Export Control (Dairy, Eggs and Fish Products) Orders 2005 |
• the Export Control (Meat and Meat Products) Orders 2005 |
• the Export Meat Orders 1985 |
• the Export Control (Plants and Plant Products) Orders 2005 |
• the Export Control (Dried Fruits) Orders 1987 • the Grains, Plants and Plant Products Orders 1985 |
• the Federal Court of Australia Regulations 2004 |
• the Federal Court of Australia Regulations 1978 |
• the Film Licensed Investment Company (Consequential Provisions) Act 2005 |
• the Film Licensed Investment Company Act 1998 |
• the Health Insurance (Eligible Collection Centres) Approval Principles 2005 |
• the Health Insurance (Eligible Collection Centres) Approval Principles 2004 |
• the High Court of Australia (Fees) Regulations 2004 |
• the High Court of Australia (Fees) Regulations 1991 |
• the Marine Orders Part 30—Issue 7 (Order No 4 of 2005) |
• the Marine Orders Part 30—Issue 6 |
• the Marine Orders Part 94—Issue 4 (Order No 5 of 2005) |
• the Marine Orders Part 94—Issue 3 |
• the Marine Orders Part 95—Issue 4 (Order No 6 of 2005) |
• the Marine Orders Part 95—Issue 3 |
• the Passports Repeal Regulations 2005 |
• the Passports Regulations 1939 |
The Administrative Appeals Tribunal Amendment Act 2005 (Cth) came into effect on 16 May 2005, making important amendments to the practice and procedure of the Administrative Appeals Tribunal. The reforms are designed to make the Tribunal more efficient, flexible and responsive. Reforms have been made in four main areas: reforms to tribunal procedures; the removal of restrictive constitution provisions; better use of ordinary members; and reform of the role of the Federal Court and Federal Magistrates Court in relation to appeals. In addition to these reforms, the amendment Act clarifies the meaning of some provisions, divides existing parts of the Act into divisions and subdivisions, introduces headings and notes for some subsections, makes other stylistic changes, and uses plain English principles to update the Administrative Appeals Tribunal Act 1975 (Cth) in accordance with modern drafting conventions.
More information about the amendment Act is provided in the ‘Admin law watch’ section of this publication.
In Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs[1] Mrs Skase sought review of a refusal by the Minister for Immigration and Multicultural and Indigenous Affairs to register her declaration of desire to resume Australian citizenship, made under s 23AA of the Australian Citizenship Act 1948 (Cth).
In 1990 Mr and Mrs Skase left Australia to take up residence in Spain. In 1998, after Mr Skase’s Australian passport was cancelled and he subsequently renounced his Australian citizenship, he and his wife sought to obtain Dominican passports. On 22 June 1998, after Mr and Mrs Skase had each received a certificate of naturalisation, the Dominican Minister for Legal Affairs, Immigration and Labour declared that, on taking the oath or affirmation of allegiance, Mrs Skase would be a citizen of Dominica. Six days later she received her Dominican passport, stating that she was a Dominican citizen.
Under s 17(1) of the Australian Citizenship Act, as in force at the time in question, a person ceased to be an Australian citizen if they did any act or thing that had the sole or dominant purpose and the effect of acquiring citizenship of a foreign country. Section 23AA(1)(b)(ii) provided, however, that a person may submit a declaration of desire to resume Australian citizenship if the person did not know that the act or thing done would lead to cessation of their Australian citizenship. If satisfied of the truth of the matters submitted for consideration and that the person was of good character, the Minister could then, in his or her discretion, register that declaration. Registration of the declaration led to reinstatement of citizenship.
The Administrative Appeals Tribunal considered two questions. First, did Mrs Skase know that, by obtaining a Dominican passport, she obtained Dominican citizenship, with the consequence that her Australian citizenship ceased? Second, if she did not know, should the discretion granted in s 23AA(1) be exercised to register her declaration, thereby reinstating her Australian citizenship?
The Tribunal held that the word ‘know’ requires that a person have ‘actual knowledge that the consequence of his or her act or thing would be the cessation of Australian citizenship’, rather than constructive knowledge, because of the importance of citizenship and the expectation that citizenship is not ‘given away lightly or carelessly’.[2] When determining a person’s actual knowledge, since ‘[n]o-one can know what another person knows’[3], the Tribunal noted that all it can do is consider the person’s evidence and actions. It can also consider whether the person had an opportunity to acquire the requisite knowledge and whether it was reasonable for the person to acquire that knowledge in the circumstances. The Tribunal emphasised, however, ‘[t]his is not to suggest that an assessment is made on the basis of constructive knowledge’.[4] Instead, what a person can reasonably be expected to know is, according to the Tribunal, evidence that can be used to infer the person’s actual knowledge.
The Tribunal made two findings in respect of Mrs Skase’s actual knowledge. First, it found that Mrs Skase knew she became a Dominican citizen, despite having given evidence that she did not recall taking the required oath or affirmation of allegiance. Second, it found that Mrs Skase did not know she would lose her Australian citizenship when she acquired Dominican citizenship: ‘It is one thing for a person’s citizenship to cease by operation of law because a certain event has occurred and another for the person to know that this is what has happened’.[5] Although Mrs Skase simultaneously held an Australian passport and a Dominican passport, ‘[t]hat in itself does not lead to the conclusion that she knew that she had lost Australian citizenship’.[6] Further evidence suggesting Mrs Skase’s lack of knowledge about the loss of her citizenship included her continued use of her Australian passport after it was cancelled and the failure of the Department of Immigration and Multicultural and Indigenous Affairs to notify Mrs Skase of her passport’s cancellation. Finally, Mrs Skase’s media interviews did ‘not portray a person who considers that she has lost Australian citizenship’.[7]
In relation to the Minister’s discretion to register Mrs Skase’s declaration, the Tribunal held that the Minister was free to adopt a policy to guide himself or herself, provided it was consistent with the Act and did not require him or her to take irrelevant circumstances into account. The Tribunal expressed reservations that a person’s good character was relevant at this stage because, as required by the Act, a ‘person must satisfy the Minister of his or her good character before the Minister need consider the exercise of discretion at all’.[8] Thus, it need not be considered twice.
After consideration of a number of factors—including Mrs Skase’s desire to remain an Australian citizen, her strong family connections in Australia, and the reason for her earlier refusal to return to Australia (loyalty to her husband)—the Tribunal overturned the Minister’s decision and registered Mrs Skase’s declaration, reinstating her Australian citizenship.
Re Fischer and Anor and Australian Fisheries Management Authority[9] concerned the quota allocations for gummy and school shark assigned to specific fishing operators as well as the calculation method for determining the total allowable catch for all operators.
In 2001, following the release of the Jenkinson Panel report, fishing restrictions were changed from a method of input controls (limiting the equipment that could be used) to output controls (limiting the amount of fish that could be taken). In transferring operators to the new scheme, the Australian Fisheries Management Authority endeavoured ‘to minimize any adverse differential economic impacts on individual operators’.[10] The new quota allocations were based on a combination of the previous entitlements under the input control permits and the catch history of the individual operator.
Several operators sought review by the Administrative Appeals Tribunal, arguing that their quota allocations should be calculated either by sole reference to previous permit entitlements or with less emphasis on their catch history. The Tribunal rejected this argument.
The Tribunal stated it would ordinarily apply a policy set by the fishing body unless the policy was unlawful or unjust and that the applicant therefore had to show that the determination of the total allowable catch method for 2004 was unlawful or unjust. After reviewing the findings of the Lockhart Panel, which created the calculations, the Tribunal found that the current quota allocation policy was ‘preferable’ and that it did not contradict the Australian Fisheries Management Authority’s differential economic impact policy and was not unlawful. Since ‘[n]o method of quota allocation would please all operators’, the Tribunal stated, ‘[u]ltimately a decision-maker has to choose one method which the decision-maker considers to be the preferable one’.[11]
In accepting the Authority’s evidence on fish reserves, the Tribunal also rejected the claim that the method for calculating the total allowable catch was based on flawed evidence. It noted that it [the Tribunal] ‘could not commission an assessment of [fish] reserves. That is not its role. It does not have the resources available to it. The Tribunal must do the best it can with the material before it’.[12]
A determination of the Veterans’ Review Board was the subject of review in Re Moon and Repatriation Commission.[13] At issue were three questions: first, whether the Administrative Appeals Tribunal had jurisdiction to accept the application for review; second, whether the Tribunal had jurisdiction to inquire into the merits; and, third, whether the applicant’s arrears were calculated according to incorrect principles.
Nine years after unsuccessfully applying for a pension under the Veterans’ Entitlements Act 1986 (Cth) in 1992, the applicant, Dr Moon, was found to be entitled to a pension for the period from 1992 to 2001. The sum paid in arrears was calculated using the amount Dr Moon would have been paid had he been receiving the pension from 1992 onwards. Dr Moon claimed that, because of the effects of inflation, the rate of payment for the entire period should have been the rate applicable in 2001. The initial decision had been made by the Repatriation Commission and was reviewed by the Veterans’ Review Board. The Board held that it did not have jurisdiction to review the matter because there was no ‘decision’. It held that the calculation of the rate of pay was ‘self-executing’ and therefore a reviewable decision was not made by the Repatriation Commission.
On the first question—whether the Tribunal could accept the application for review—the Tribunal found that it could only review a ‘decision’ of the Veteran’s Review Board. Under s 175 of the Act, a ‘decision’ of the Veteran’s Review Board includes situations where the Board affirms or varies the decision of the Repatriation Commission. Even though the Board determined it did not have jurisdiction, the Tribunal found it did have jurisdiction to consider the application because, quoting Nicholson J in Meyza v Repatriation Commission[14], ‘[i]f a board decides it does not have jurisdiction its decision has the effect of affirming the decision under review because it does not vary it or set it aside’.[15] Thus, the Board’s decision that it did not have jurisdiction was a decision for the purposes of the Act.
Second—when determining whether the Tribunal had jurisdiction to inquire into the merits—the Tribunal concluded that, although the calculation of Dr Moon’s arrears was made using a computer, ‘the computer was nothing more than a sophisticated adding machine,’[16] emphasising that the calculation ‘did not take place in a vacuum, nor did a computer automatically print out a cheque. There was a significant amount of human input from the people who are charged with administering the [Act] in relation to Dr Moon’s claim for a pension’.[17] Thus, a decision had been made and the Tribunal could review its merits.
Finally—after reviewing the Act—the Tribunal determined that there was no error made in Dr Moon’s calculation since the Act specifies that ‘arrears are payable at the rates that were applicable during the periods in question, not at the increased rate’[18] and because the Act ‘contains no provision to allow for the calculation or payment of interest on pension arrears’.[19]
The cases of Re Liu and Comcare[20], Re Kelleher and Telstra Corporation Limited[21] and Re Fuad and Telstra Corporation Limited[22] all concern the entitlement to compensation or other benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
A determination of entitlement to compensation under the Act normally incorporates two findings in favour of the complainant—one under s 14 and one under another provision of the Act. The first finding, under s 14, determines that the complainant has a compensable injury; the second finding, under another provision, determines the nature and amount of compensation payable. The existence of a compensable injury (the first finding) does not, however, always result in the payment of compensation (the second finding).
In all three cases a person had made a claim for compensation, a compensable injury had been found, and compensation had been paid under the Act. In Liu, the parties had then reached an agreement stating the employer no longer had any liability to pay future compensation to the employee under the Act.
For the Administrative Appeals Tribunal to give effect to this agreement of the parties under s 42C of the Administrative Appeals Tribunal Act 1975 (Cth), two conditions precedent must have been present:
1. The Tribunal must be satisfied that a decision in or consistent with the terms of the agreement ‘would be within the powers of the Tribunal’. 2. It must appear to the Tribunal to be appropriate for the Tribunal to make such a decision.[23]
Therefore, the Tribunal could make a decision in accordance with the parties’ agreement only if it was ‘satisfied both of the lawfulness of the proposed decision and also of its propriety’.[24]
In these circumstances the Tribunal could not make a decision in accordance with the agreement because the terms of the agreement contained some provisions that were not lawful. Neither the parties nor the Tribunal could prevent future claims for compensation being made under the Act. In Fuad, the Tribunal stated:
Once liability has been established under s 14 … although it is possible that, as a result of the injury resolving, there may be no actual entitlement to compensation for periods of time, even long periods of time, an employee can never be deprived of his entitlement to claim further compensation relating to the established injury if the injury again causes some incapacity.[25]
Thus, even if the injury is resolved, the entitlement to claim because of the existence of a compensable injury never expires. The employers could not create arrangements with their employees stating they were absolved of all future liability for a particular compensable injury.
In Kelleher, an authorised officer of the Government Insurance Office had made a decision stating that Mr Kelleher was no longer entitled to compensation. As a result of Liu and other cases, both Mr Kelleher and his employer, Telstra, admitted the initial decision was incorrect and should be set aside. With no substantive matter before the Tribunal, it was necessary to decide how to deal with the matter—whether to remit it to the decision maker pursuant to s 42D of the Administrative Appeals Tribunal Act, to reconsider it under s 62 of that Act, or for the ‘matter to be simply dealt with before the Tribunal now’.[26] Consistent with the legislative requirement that proceedings be conducted with as much expedition as possible, the Tribunal held that matters such as these should be finalised without remitting them to the original decision maker, instead dealing with them under s 42C or s 43.
In Re He and Minister for Immigration and Multicultural and Indigenous Affairs[27] Mr He’s residence visa was cancelled without his knowledge on 3 June 2004 on character grounds, pursuant to s 501(2) of the Migration Act 1958 (Cth). Mr He had failed the character test because he had a criminal record.
On 24 July 2004 Mr He left Australia and went to China. After being refused permission to board an aircraft in order to return to Australia, he discovered his visa had been cancelled. Although Mr He was not notified of the cancellation, the Act explicitly provided that failure to notify does not affect the cancellation’s validity. On 24 August 2004 Mr He’s solicitors lodged an application for review of the decision by the Tribunal. The question of jurisdiction was raised as a preliminary consideration.
In determining whether it had jurisdiction, the Tribunal considered s 500(3) of the Act, which stated:
A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.
Thus, for the Tribunal to have jurisdiction to review the decision, the decision must be reviewable under Part 5 or 7 of the Act on a ground other than character. Although Part 7 of the Act did not apply to Mr He, s 338, in Part 5, provided that a ‘decision to cancel a visa held by a non-citizen who is in the migration zone at the time of cancellation is an MRT-reviewable decision unless’ an exception applies. None of the exceptions applied, and Mr He was in the migration zone at the time of cancellation.
After finding that ‘a visa can be cancelled on a ground other than character’, the Tribunal considered the question of who has standing to apply for Migration Review Tribunal–reviewable decisions. Section 347(3) of the Act provided:
If the MRT-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.
Although the decision fell within s 338(3), Mr He was not physically present in the migration zone when the application for review was made.
Because Mr He did not comply with s 347(3), his application was not reviewable under Part 5 or Part 7 of the Act, so the Tribunal did not have jurisdiction to hear the matter. The Tribunal also found it had no power to order the respondent to ‘grant a visa to the applicant to enable him to return to Australia in order to proceed with this application’.[28]
In Re Rummery and Federal Privacy Commissioner[29] the Tribunal considered whether compensation should be awarded to Mr Rummery for a breach of the Privacy Act 1988 (Cth) and, if so, how much.
Mr Rummery was an employee of the ACT Department of Justice and Community Safety. In the course of his employment he became concerned about under-age drinking in Canberra. He made a public interest disclosure to the ACT Ombudsman under the Public Interest Disclosure Act 1994 (ACT), alleging that his Department had failed to enforce provisions of the Liquor Act 1975 (ACT). The Department disclosed personal information relating to Mr Rummery to an officer of the Ombudsman during the course of the Ombudsman’s investigation. Mr Rummery learnt of this disclosure and lodged a complaint with the Federal Privacy Commissioner, alleging that the breach had caused him great distress and humiliation and injured his feelings. The Commissioner found that Mr Rummery’s complaint was substantiated but decided not to make a declaration as to compensation for the breach. Mr Rummery applied to the Tribunal to review the decision not to award compensation.
Section 52 of the Privacy Act 1988 (Cth) provides that, after an investigation into a complaint, the Commissioner may find the complaint substantiated and may make a declaration that the complainant is entitled to compensation for any loss or damage suffered by reason of the breach. The Act provides no guidance as to when compensation should be awarded or how it is to be calculated.
The Tribunal set aside the determination of the Commissioner to make a declaration as to compensation and decided that Mr Rummery was entitled to compensation of $8000 for the injury to his feelings and the humiliation he suffered. The Tribunal adopted the view of French J in Hall v A & A Sheiban Pty Ltd[30], that once loss is proved there would need to be a good reason shown as to why compensation for that loss should not be awarded. The Tribunal found that no such reason appeared in this case. It also noted the Federal Court’s comments in Hall v Sheiban that to ignore items of damage such as injury to feelings, distress and humiliation simply because of the difficulty in demonstrating the correctness of a particular figure would be to visit an injustice on the complainant.
Taking into account relevant factors, the Tribunal found that a restrained, but not minimal, award of compensation would be $8000. In reaching this decision, it noted it was generally appropriate to measure damages to be awarded under a statute in accordance with the principles of tort law, if those principles did not conflict with the terms of the statute.
[2] Ibid [62] [emphasis added].
[3] Ibid [63].
[4] Ibid [emphasis added].
[5] Ibid [68].
[6] Ibid [69].
[7] Ibid [74].
[8] Ibid [80].
[10] Ibid [33].
[11] Ibid [75].
[12] Ibid [106].
[14] (1997) 142 ALR 580, 588.
[15] [2004] AATA 1264 [8].
[16] Ibid [14].
[17] Ibid [22].
[18] Ibid [50].
[19] Ibid [53].
[23] Re Liu and Comcare [2004] AATA 617 [8].
[24] Ibid.
[25] [2004] AATA 1182 [3].
[26] [2004] AATA 1156 [3].
[28] Ibid [28].
[30] [1989] FCA 72; (1989) 20 FCR 217.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2006/6.html