AAT and VCAT: Introduction
People affected by certain decisions of the Commonwealth Government or its agencies may The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. to the Commonwealth Administrative Appeals A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (AAT). Similarly, people affected by certain decisions of the Victorian Government or its agencies may appeal to the Administrative Division of the Victorian Civil and Administrative Tribunal (VCAT). Contact details for AAT and VCAT are supplied at the end of this chapter.
The relevant Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. for AAT is the Administrative Appeals Tribunal A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1975 (Cth) (‘AAT Act’). The relevant legislation for VCAT is the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
AAT and VCAT are independent forums for The time and place at which a court or tribunal hears the parties argue their case and makes a decision. appeals against a wide range of government decisions. Appeals to these tribunals are brought on their merits, so the tribunal can take a fresh look at the relevant facts and the relevant law and make up its own mind about the matter. New Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. or arguments may be taken into account. The tribunal can affirm, vary or set aside the decision under review.
The word ‘decision’ is given an extended meaning under the AAT Act (s 3(3)). Under the AAT Act (s 25(5)) and the VCAT Act (s 4(2)(d)), a failure by a decision-maker to act within the prescribed period amounts to a decision. The VCAT Act (s 126) permits time extensions in certain circumstances.
In this chapter, references to ‘the tribunal’ refer to both AAT and VCAT, unless otherwise specified.
Decisions AAT may review
AAT can only review a decision where a Commonwealth Act or Regulation gives it the power to do so, or where the right is in the AAT Act (s 25). More than 400 separate Acts and regulations give AAT the power to review decisions.
The list of which decisions AAT can review is constantly changing. The list, and relevant legislation, is available on AAT’s website (www.aat.gov.au). Make sure you look at the most up-to-date list of reviewable decisions. If you are unsure about whether AAT can review a particular decision, contact AAT’s deputy The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. (see ‘Contacts’ at the end of this chapter).
On 1 July 2015, the Migration Review Tribunal, the Refugee Review Tribunal, and the Social Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. Appeals Tribunal were merged with the AAT.
The most common types of decisions that are reviewable by the AAT relate to:
- child support;
- Commonwealth workers’ compensation;
- family assistance, paid parental leave, social security, and student assistance;
- migration and refugee visas and visa-related decisions;
- taxation; and
- veterans’ entitlements.
The AAT also reviews decisions relating to:
- Australian citizenship;
- When a debtor who cannot pay their debts has their money and property taken over and managed by a trustee who uses it to pay back creditors. The debtor is then called a bankrupt.;
- civil aviation;
- corporations and finance services regulations;
- The right of any person to access documents held by government agencies, except documents excluded by legislation.;
- the National Disability Insurance Scheme;
- passports; and
- security assessments made by the Australian Security Intelligence Organisation.
For individuals, the most important areas of AAT’s The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. are covered by the following legislation:
- A New Tax System (Family Assistance) (Administration) Act 1999 (Cth);
- Aged Care Act 1997 (Cth);
- Australian Citizenship Act 2007 (Cth);
- Australian Passports Act 2005 (Cth);
- Child Support (Assessment) Act 1989 (Cth);
- Civil Aviation Regulations 1988 (Cth);
- Civil Aviation Safety Regulations 1998 (Cth);
- Corporations Act 2001 (Cth);
- Customs Act 1901 (Cth);
- Education Services for Overseas Students Act 2000 (Cth);
- Freedom of Information Act 1982 (Cth);
- Fringe Benefits Tax Assessment Act 1986 (Cth);
- Higher Education Funding Act 1988 (Cth);
- Higher Education Support Act 2003 (Cth);
- Income Tax Assessment Act 1936 (Cth);
- Income Tax Assessment Act 1997 (Cth);
- Industry Research and Development Act 1986 (Cth);
- Migration Act 1958 (Cth);
- Military Rehabilitation and Compensation Act 2004 (Cth);
- Mutual Recognition Act 1992 (Cth);
- National Disability Insurance Scheme Act 2013 (Cth);
- National Vocational Education and Training Regulator Act 2011 (Cth);
- Paid Parental Leave Act 2010 (Cth);
- Safety, Rehabilitation & Compensation Act 1988 (Cth);
- Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth);
- Seafarers Rehabilitation and Compensation Act 1992 (Cth);
- Social Security Act 1991 (Cth);
- Social Security (Administration) Act 1999 (Cth);
- Taxation Administration Act 1953 (Cth); and
- Veterans’ Entitlements Act 1986 (Cth).
AAT’s Taxation and Commercial Division
AAT’s Taxation and Commercial Division considers a wide range of taxation issues. It informally and inexpensively (the application fee is $91) reviews:
- small taxation disputes (under $5000);
- Tax Office decisions refusing an individual’s request to be released from paying a tax Money that is owed by one person or business to another. (regardless of the amount involved); and
- Tax Office decisions refusing an individual’s request for an extension of time within which to make a taxation objection.
Note that since 1 July 2015 the Small Taxation Claims Tribunal (STCT) no longer exists. Applications that were in the STCT are now dealt with in the AAT’s Taxation and Commercial Division.
VCAT exercises original jurisdiction in some matters (where it acts as the first decision-maker) and review jurisdiction in other matters (where it conducts merits review).
Decisions VCAT can review
VCAT can review specific decisions made by the Victorian Government and its agencies, Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. authorities and other administrative decision-makers.
In reviewing decisions, VCAT has all the powers and functions of the original decision-maker in question, as well as any other functions conferred on VCAT by the VCAT Act (s 51(1)) or by the enabling enactment.
The decisions VCAT can review relate to:
- local council land valuations and planning permits (e.g. under the Planning and Environment Act 1987 (Vic));
- Transport Accident Commission findings (under the Transport Accident Act 1986 (Vic));
- state taxation (e.g. under the Land Tax Act 2005 (Vic));
- business licences and professional registrations (e.g. a decision that affects a person’s ability to hold an occupational licence as a doctor, architect, dentist or lawyer);
- disciplinary proceedings across a range of professions and industries;
- freedom of information applications (under the Freedom of Information Act 1982 (Vic)). These decisions are first reviewed by the Victorian Information Commissioner, see Chapter 12.5: Freedom of information law); and
- WorkSafe assessments.
See also Pizer’s Annotated VCAT Act (see ‘More information’ at the end of this chapter, for publication details).
In VCAT’s Administrative Division, important areas of reviewable decisions (from the viewpoint of an individual A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant.) include decisions made under the following legislation:
- Births, Deaths and Marriages Registration Act 1996 (Vic);
- Building Act 1993 (Vic);
- Children, Youth and Families Act 2005 (Vic);
- Domestic Animals Act 1994 (Vic);
- All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. Agents Act 1980 (Vic);
- Freedom of Information Act 1982 (Vic);
Since the Freedom of Information A change made to a legal document or Act of parliament. (Freedom of Information Commissioner) Act 2012 (Vic) commenced, VCAT has jurisdiction to review a decision of the principal officer of an agency or a minister directly, but decisions made by other officers of the agency must be first reviewed by the Victorian Information Commissioner.
- Health Practitioner Regulation National Law (Vic) Act 2009 (Vic);
- Legal Profession Uniform Law Application Act 2014 (Vic);
- Local Government Act 1989 (Vic);
- Occupational Health and Safety Act 2004 (Vic);
- Planning and Environment Act 1987 (Vic);
- Privacy and Data Protection Act 2014 (Vic);
- Private Security Act 2004 (Vic);
- Racing Act 1958 (Vic);
- State Superannuation Act 1988 (Vic);
- Superannuation (Able to be moved. For example, mobile phone numbers and health insurance contribution periods are portable (can be moved between suppliers). You can take them with you if you change from one service provider to another.) Act 1989 (Vic);
- Transport Accident Act 1986 (Vic);
- Valuation of Land Act 1960 (Vic);
- Victims of Crime Assistance Act 1996 (Vic);
- Water Act 1989 (Vic); and
- Working with Children Act 2005 (Vic).
In VCAT’s Human Rights Division, important areas of reviewable decisions include decisions made under the following legislation:
- Assisted Reproductive Treatment Act 2008 (Vic);
- Disability Act 2006 (Vic);
- Medical Treatment Act 1988 (Vic);
- Mental Health Act 2014 (Vic); and
- Public Health and Wellbeing Act 2008 (Vic).
Making an application to AAT or VCAT
Who can apply to AAT?
Only those whose interests are affected by a decision may apply to AAT to review that decision (s 27 AAT Act). A person who thinks a decision is wrong, but whose interests are not affected by the decision, cannot apply to AAT. Where there is doubt about whether a person’s interests are affected, AAT A document that sets out what a person wants to happen to their money and other property after they die. decide if the person can apply for a review (s 31).
Community groups are given a wide right of access to the tribunals. The AAT Act states that an organisation or association (whether incorporated or not) is considered to have interests that are affected by a decision if the decision relates to the organisation’s objects or purposes (s 27(2), (3) AAT Act).
Who can apply to VCAT?
A person may apply to VCAT if they are entitled to do so under the enabling legislation (s 48 VCAT Act). Each Act has a different definition of who can apply to VCAT to review a decision made under that Act. You should check the relevant Act, or contact VCAT. VCAT’s website has an information about enabling enactment (www.vcat.vic.gov.au/case-types).
When an Act states that any person whose interests are affected by a decision made under that Act may apply to VCAT to review the decision, the term ‘interests’ refers to interests of any kind (i.e. not just proprietary, economic or financial interests: s 5).
How do you apply?
Applications to the tribunals must be in writing. If, after submitting an application, you decide not to proceed with your application, the tribunal must also be notified of this in writing.
Application forms are available from AAT’s website (www.aat.gov.au). The time limit for submitting an application depends on the type of decision you are asking AAT to review (time limits vary between seven days and six months from the date of the decision). The varying time limits are listed on AAT’s website. The time limit for applying may be extended (s 29(7)-(10) AAT Act); time limit extension forms are available on AAT’s website.
There is no application fee for the review of some types of decisions, including decisions related to Centrelink, freedom of information, the National Disability Insurance Scheme, and Commonwealth workers’ compensation. There is a $91 fee to apply for the review of tax matters. The application fee for the review of migration and refugee decisions is the highest, at $1764 (with the possibility of a 50 per cent reduction). For most other matters, the application fee is $920. This fee may be reduced to $100 if you provide evidence of financial hardship.
If you have paid a full application fee and your application is resolved in your favour, most of the fee will be refunded. There is no refund if you paid the reduced application fee. For more information about AAT’s fees, see www.aat.gov.au.
Application forms are available from VCAT’s website (www.vcat.vic.gov.au). VCAT must give you reasonable help with your application, if you request it (s 67(4)).
The time limit for submitting an application to VCAT depends on the type of decision you are asking VCAT to review. The different time limits are listed on VCAT’s website (www.vcat.vic.gov.au/steps-to-resolve-your-case/time-limits).
The time limit for applying may be extended (s 126 VCAT Act); time limit extension forms are available on VCAT’s website.
Application fees vary according to the type of dispute and the Act under which the application is made (the various application fees are listed on VCAT’s website: www.vcat.vic.gov.au/resources/fees). In some cases, daily hearing fees may apply. Fees may be waived for financial hardship.
Will an application stop a decision taking effect?
An application for review does not automatically stop the decision from being implemented. However, the person affected may apply to the tribunal to have the implementation of the decision postponed – this is known as a stay application (s 41 AAT Act; s 50 VCAT Act).
Before you appeal: Asking for the reasons for a decision
If the authority that made the decision did not inform you of the reasons for its decision, you may ask that authority to send you a written statement that outlines the facts and reasons for the decision (this statement will help you identify the grounds on which you are asking the tribunal to review the decision). Requests for these statements must be made in writing, generally within 28 days of the decision being made.
In certain cases, an authority is not required to give reasons for a decision where the matter involves the public interest.
The time frame in which you need to lodge an application for review with the tribunal usually starts from the day on which you receive the authority’s reasons, or its refusal to give reasons.
See ‘Obtaining reasons for government decisions’, above, for more information.
After lodging an application to AAT or VCAT
Notifying the authority
After the application for review has been lodged, the tribunal will ask the authority for a statement of the facts and reasons on which its decision was made.
The authority also has to supply the tribunal with every document in its (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. that is relevant to its decision (s 37 AAT Act; s 49 VCAT Act).
AAT generally ensures that you have access to the authority’s statements and to the documents on which the tribunal proposes to rely (s 39 AAT Act). There are some special exceptions to this.
AAT generally requires the parties to exchange and file statements of issues and facts and contention (including legal arguments) on which they intend to rely. A copy of the practice directions can be obtained from AAT’s website (www.aat.gov.au).
VCAT will provide you with information about its procedures (you can also read this information on VCAT’s website at www.vcat.vic.gov.au/steps-to-resolve-your-case). You may be required to attend a A short hearing between the judge and the lawyers in a case to decide how the case will be run until the hearing starts. For example, information can be given about the legal points the parties disagree about and the evidence that can be admitted. (or a practice day hearing in the Planning and Environment List) at which you will be told how to prepare for your case.
Generally, tribunals follow three courses of action:
- directions hearing;
- a preliminary conference; and/or
- a public hearing.
There may be a preliminary hearing called a directions hearing if the tribunal wishes to give directions about how the matter is to proceed.
A preliminary conference is a private, An informal, compulsory and confidential conference between the parties in a court action to try to reach a settlement or clarify any matters in dispute before the full hearing. for discussing and narrowing the issues in a dispute and possibly reaching a settlement. The tribunals may direct there be a preliminary conference between the parties or between their legal representatives and a member of the tribunal. If the applicant fails to attend a preliminary conference, their application may be dismissed. These preliminary conferences are part of the A way of resolving a dispute outside the court system. There are different kinds of alternative dispute resolution, including arbitration, negotiation and mediation. (ADR) Program. There are various types of ADR offered at the tribunals, including A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation. and conferences.
If, through ADR, the parties reach an agreement, the tribunal may make a decision without holding a hearing (s 34D(2)-(3) AAT Act; s 93 VCAT Act).
More information about ADR is available on the AAT and VCAT websites.
If the matter is not resolved through ADR (or if the tribunal does not refer the matter to ADR), it will be referred to a hearing on a particular date and time.
Hearings are conducted in public unless the tribunal directs otherwise (e.g. that a hearing be held by telephone or video link). All parties to the hearing are notified well in advance of the hearing date.
The tribunal must provide and pay for an inter-preter if you or another person (e.g. a A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. who gives evidence at the hearing) needs an interpreter. You should tell the tribunal that you or another person require an interpreter as early as possible and specify the language or dialect (including Auslan).
The tribunals can proceed with a hearing even if one of the parties is absent (if the A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. has had reasonable notice of the hearing date). The tribunals must observe the requirements of Rules that courts, other dispute settlement bodies and government officials must follow to ensure that decisions are fair to all parties. Examples include the requirement that decision-makers act fairly, without bias, and the right of all parties involved in a case to present their side of a dispute. See also administrative law. (see ‘Natural justice’ in ‘Judicial review’, above) but are also under a duty to act as quickly and with as little formality as possible.
If one of the parties has a very good reason for wishing to change the hearing date, they should contact the opposing party and ask for their To agree to something being done, to approve an action or arrangement. See also informed consent. to To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. the hearing. They should then apply to the tribunal for an adjournment. If the opposing party does not agree to an adjournment, then the party wanting the adjournment should still apply to the tribunal. The opposing parties may then need to attend a hearing of the application for an adjournment.
Usually, evidence of all witnesses is given on A person’s promise when they swear to tell the truth in court, or when signing an affidavit. A person taking an oath places one hand on the Bible or other holy book to demonstrate how seriously they take their promise. See also affirmation. or A formal promise to the court that a statement made by a witness, in court or in an affidavit, is true. An alternative to a religious oath.. Each witness may be questioned by your legal representative or by you if you are self-represented, and will also be cross-examined by the other party. Each party is entitled to make submissions to the tribunal.
Possible outcomes of AAT and VCAT applications
Powers and reasoning
AAT and VCAT have the power to:
- affirm the decision under review;
- vary the decision under review;
- set aside the decision under review and make a new decision, or compel the relevant authority to make a new decision that is in accordance with the tribunal’s directions; or
- dismiss the application for review.
Note that in certain cases, VCAT must apply stated government policy (s 57 VCAT Act).
Both tribunals must give reasons (either orally or in writing) for their decisions (subject to specified exceptions in the relevant Act). If requested, they must outline their reasons in writing (s 43 AAT Act; s 117 VCAT Act).
The powers and procedures of the tribunals are modified by special provisions in certain Acts and regulations. For example, there are special provisions relating to VCAT hearing state taxation cases and planning cases. The particular legislation under which the tribunal is operating must be checked.
The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.
The general rule is that parties to a proceeding before AAT or VCAT shall bear their own costs.
Under the AAT Act, AAT has no power to (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. costs (apart from witness costs). However, AAT can award costs in certain matters, including those brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (s 67). Also, under the Freedom of Information Act 1982 (Cth), AAT may, in certain circumstances, recommend to the Attorney-General that the Commonwealth pay the applicant’s costs (s 66).
VCAT has the power to award costs (s 109 VCAT Act). However, in the VCAT Act, there is a significant departure from the rule that the successful party will be awarded costs. Instead, awarding costs is discretionary and each case is assessed on its own merits. For example, costs may be awarded when a party has acted in a Causing trouble without good legal reason. A vexatious litigant repeatedly starts court cases that have no chance of succeeding. Vexatious litigation is a court action that is unnecessary or undertaken only to cause trouble, embarrassment or inconvenience for the other party. manner during proceedings, or where a party has caused undue delay.
Right of appeal
AAT decisions can be appealed to the Federal An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.. However, appeals are restricted to questions of law and refusals to grant The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. (where the AAT has not allowed you to be a party to a particular matter). An appeal must be lodged within 28 days of AAT’s decision (s 44 AAT Act).
VCAT decisions can be appealed to the Supreme Court of Victoria. However, appeals are restricted to questions of law. An appeal must be lodged within 28 days of VCAT’s decision (s 148 VCAT Act).