Administrative Appeals Tribunal

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The Administrative Appeals Tribunal or "AAT" is an Australian tribunal which undertakes merits review of decisions by the Australian federal government. It is not part of the Australian court hierarchy and its decisions are subject to review by the Federal Court of Australia. The President of the AAT is a Federal Court judge (currently Justice Garry Keith Downes AM). The AAT was established in by the Administrative Appeals Tribunal Act 1975.

The AAT's jurisdiction is governed by statute. The AAT has jurisdiction to review a number of decisions made under Commonwealth legislation (including taxation, immigration, social security, industrial law, corporations and bankruptcy).

Contents 1 Jurisdiction 2 Current Members of the AAT 2.1 Members based in New South Wales 2.2 Members based in Queensland 2.3 Members based in Victoria 2.4 Members based in South Australia 2.5 Members based in Western Australia 2.6 Judge based in the Australian Capital Territory 2.7 Judge based in Tasmania 3 External links

[edit] Jurisdiction

The AAT's jurisdiction is governed by statute. The AAT has jurisdiction to review a number of decisions made under Commonwealth legislation (including taxation, immigration, social security, industrial law, corporations and bankruptcy).

There is a deep constitutional fault line in the jurisdiction of the AAT (and indeed for all non court decision makers) that has arisin as result of a series of rulings by the Australian High Court, the constitution and the flawed logic of merits review.

Firstly there is the Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002). In that case Gaudron and Gummow JJ stated at paragraphs [51] - [53]:

“There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

[…] Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decisionmaker making such a decision but, as a matter of strict legal principle, he or she is required to do so.”

In Bhardwaj the court held that the administrative decision makers have the power to review its own decisions in the case of jurisdictional error. The statements of Gaudron and Gummow JJ further bind the administrator to do so.

Bhardwaj was cited in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. At paragraph 78, their honours Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ state: This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”

The material outworking of these cases are remarkably clear (6-1 ratio) in Plaintiff S157/2002 the High Court has squarely reaffirmed that executive bodies touching on federal legislation, such as the AAT, are separated from the chapter III Judicial institutions. This means that any error of law that an AAT member makes causes that decision to be in fact to be no decision at all, and that the AAT legislative function remains unperformed.

Thus all that has happened at the “hearing” is that a bunch of people have sat around in a room and had a discussion, and one of those people has produced a comment “decision” about the other people’s discussions because the "decision" is a nullity if an error of law can be adduced.

Further the administrative decision makers “decision” does not require an appeal to lodged to set it aside as the High Court has deemed that administrators cannot maintain errors of law. Thus the applicant (or a party) may adduce an error of law and require that the tribunal member perform their legislative duty and make a decision that has no error of law.

The High Court rulings particularly notes this is the case in issues of constitutional questions, which also necessarily cause any state tribunal to be subject to the same problems where constitutional issues are raised, as s109 of the Constitution strikes down any state law that purports to sustain state tribunal errors of law that may touch on federal issues.

Effectively the High Court's rulings have recusively trapped decisions by any non-court body touching on federal legislation into having an unperformed legislative duty where their is an error of law. Were the High Court to adopt any other position, it would be intergrating a clearly executive bodies into the judicary (that is if the High Court allowed the executive to sustain errors of law in any way).

These High Court rulings have the rather far reaching effect of potentially causing every decision of the AAT, with a prima facie error of law to be a nullity. Further because this is a constitutional interpretation of the High Court it is not amenable to salvage legislation such as occurred in the cross vesting scheme.

This argument has been run in the AAT in early 2006 where the AAT President presided over the hearing. The President of the AAT took the view that errors of law that would cause the AAT to psrtake a null decision were only those of the most obvious procedural issues, such as sending the hearing date to the wrong address. Practically the President’s decision makes good sense, but legally the ruling is in direct opposition to the High Court finding. Further the High Courts has afirmed there are no degrees of nullity. So the Presidents decision itself is also a nullity as he is trapped by the same argument. This is particularly the case because one of the applicant arguments at the hearing was squarely on point having constitutional import and a jurisdictional issue which is an error of law Craig v South Australia (1995) 184 CLR 163 at 179. It is interesting to note that the President's decision is arguably flawed by bias, by giving a lecture Lectureon the topic, indeed on the particular hearing to a Queensland audience prior to the hearing. In that lecture, the President acknowledged the risk of bias, but then proceeded to give a position in the lecture that almost followed verbatim the ruling.

The reason for the development of this fault line, is because of the tension evident in the Judicary to remain a separate branch as situated in the Constitution, and the flawed logic that permeates the concept of merits review in a rule of law system of government.

The notion has developed that the merits of an executive decision makers decision is unreviewable by a court, except in rather extreme circumstances know as “Wednesbury unreasonableness”. This is in fact an illogical position in a classic rule of law system. In rule of law it may be reasonably said in the representative compact that a voter, can only have their rights effected by legislation (ignoring prerogative and expansive war time powers). Accordingly when discretion is cast on an administrator by legislation at the point of an actual decision being made that effects an individuals rights, this must be by definition a law. What the parliament is actually doing through the discretion is passing a domain of laws that a decision maker is deemed best placed to select the particular law to apply. In terms of legal analogy it may be thought as a floating charge over the domain of the lawful discretion that crystallizes at the moment of application. Accordingly the particular law of the domain of laws available is a law itself, and the veracity of the law can be tested in full at a Court of law, because any deviation from the domain will render the decision makers finding a nullity. Merits review is logicaly thus a myth or logicaly impossibility under classic rule of law. The recursive feature of the High Courts finding necessarily constrain all decisions to necessarily be valid at law. Thus the High Court has re-emphasised rule of law, and has logically found and confirmed that their is no such thing as merits review, in a rule of law system, if you consider the effect of the High Courts decision. The High Court probably has not consciously interpolated back to the merits review rule of law paradigm, but rather has ruled in such a way as a product of the Judicial branch constitutionally justifiable jealously of judicial power. This is perhaps an example of how a triparte constitutional system may ensure the branch participants act in such a way to counter balance the other constitutional branches so that rule of law prevails.

[edit] Current Members of the AAT

As of January 2006:

[edit] Members based in New South Wales

PRESIDENTIAL MEMBERS

The Honourable Justice B J M Tamberlin

The Honourable Justice R V Gyles, AO

The Honourable Justice A C B Bennett, AO

The Honourable Justice R F Edmonds

The Honourable Justice A R O Rowlands, AO, RFD

Deputy Presidents

Deputy President R N J Purvis, AM, QC

Deputy President J Block

Deputy President G D deQ Walker

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member M D Allen (G,V,T,S) Senior Member G Ettinger (G,V,T,S) Senior Member N P Bell (G,V,S) Senior Member R Hunt (G,V,T,S) Senior Member J C Kelly (G,V) Senior Member I A Shearer, AM, RFD (G,V,S)

Members

Dr I S Alexander (G,V) Dr J D Campbell (G,V) Mr M A Griffin (G,V) Rear Admiral A R Horton, AO, RAN (Rtd) (G,V) Ms N Isenberg (G,S) Professor G A R Johnston (G,V) Dr P D Lynch (G,V) Professor T M Sourdin (G,V) Dr M E C Thorpe (G,V) Brigadier I R Way (Rtd) (G,V,T)

[edit] Members based in Queensland

PRESIDENTIAL MEMBERS

The Honourable Justice J E J Spender

The Honourable Justice A P Greenwood

The Honourable Justice J P O Barry

Deputy Presidents

Deputy President P E Hack, SC

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member B J McCabe (G,V,T) Senior Member P M McDermott, RFD (G,V,T)

Members

Ms M J Carstairs (G,V,T) Dr E K Christie (G,V,T) Dr M L Denovan (G,V) Associate Professor S C Fisher (G,V,T) Mr R G Kenny (G,V,T) Dr K St C Levy, RFD (G,V,T) Dr G J Maynard, Brigadier (Rtd) (G,V) Associate Professor J B Morley, RFD (G,V)

[edit] Members based in Victoria

PRESIDENTIAL MEMBERS

The Honourable Justice P R Gray

The Honourable Justice P C Heerey

The Honourable Justice N Mushin

Deputy Presidents

Deputy President S A Forgie

Deputy President G L McDonald

Deputy President H W Olney, AM, QC

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member J R Handley (G,V,T) Senior Member B H Pascoe (G,V,T) Senior Member G D Friedman (G,V,S)

Members

Brigadier C Ermert (G,V) Mr E Fice (G,V,T) Dr P D Fricker (G,V) Dr G L Hughes (G,V,T) Dr R J McRae (G,V) Associate Professor J H Maynard (G,V) Ms R L Perton (G,V,S) Miss E A Shanahan (G,V)

[edit] Members based in South Australia

PRESIDENTIAL MEMBERS

The Honourable Justice B T Lander

The Honourable Justice C E Dawe

Deputy Presidents

Deputy President D G Jarvis

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member L Hastwell (G,V) Senior Member R W Dunne (G,V,T)

Members

Dr E T Eriksen (G,V) Mr J G Short (G,V,T)

[edit] Members based in Western Australia

PRESIDENTIAL MEMBERS

The Honourable Justice R S French

The Honourable Justice R D Nicholson

The Honourable Justice A N Siopis

Deputy Presidents

Deputy President S D Hotop

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member S Penglis (G,V,T) Senior Member A Sweidan (G,V,T)

Members

Associate Professor G A Barton (G,V,T) Brigadier R D F Lloyd, OBE, MC, RL (G,V) Ms L Savage-Davis (G,V) Dr P A Staer (G,V) Ms L R Tovey (G,V) Brigadier A G Warner, AM, LVO (G,V,S) Dr H A D Weerasooriya (G,V)

[edit] Judge based in the Australian Capital Territory

PRESIDENTIAL MEMBERS

The Honourable Justice M M Finn

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member J W Constance (G,V,T,S)

Members

Air Marshall I B Gration, AO, AFC, RAAF (Rtd) (G,V) Dr M D Miller, AO (G,V) Mr S Webb (G,V,T)

[edit] Judge based in Tasmania

PRESIDENTIAL MEMBERS

The Honourable Justice R J C Benjamin

Deputy Presidents

Deputy President C R Wright, QC

Deputy President R J Groom

NON-PRESIDENTIAL MEMBERS

Senior Members

Senior Member M A Imlach (G,V,T)

Members

Ms A F Cunningham (G,V,T) Associate Professor B W Davis, AM (G,V)

Notes:

1. Presidential Members and Senior Members are listed according to their date of appointment, whilst Members are listed alphabetically.

2. Presidential Members may exercise powers of the Tribunal in all of the Tribunal's Divisions, while Senior Members and Members may only exercise powers of the Tribunal in the Division(s) to which they have been assigned. The Division(s) to which Senior Members and Members have been so assigned is indicated by a 'G', 'V', 'T' or 'S'.

'G' indicates General Administrative Division 'V' indicates Veterans' Appeals Division 'T' indicates Taxation Appeals Division 'S' indicates Security Appeals Division

[edit] External links

• Administrative Appeals Tribunal
• Full text of the Administrative Appeals Tribunal Act 1975