Response to Administrative Review Council
Judicial Review in Australia – Consultation Paper (April 2011)
The Consultation Paper raises the following issues for consideration that are
particularly relevant to the Administrative Appeals Tribunal:
 What are the benefits of specific statutory appeals (particularly when compared to
general judicial review); and could those benefits also be achieved through a
general statutory review scheme? (questions 23-24)
 What reasons are there for retaining or removing section 44 of the Administrative
Appeals Tribunal Act 1975 (AAT Act)? (question 26)
This response by Tribunal is primarily directed towards these issues.
The Tribunal considers that there are a number of benefits arising from the scheme
for statutory appeals under section 44 of the AAT Act. The primary benefits are that
it:
 provides a clear and explicit mechanism for the review of Tribunal decisions by
the Federal Court
 narrows the scope of Federal Court review and allows for the provision of
documents and other assistance to the Federal Court, thereby contributing to a
more efficient review process
 does not require the Tribunal to be a party to appeals from its decisions, thereby
preserving the impartiality of the Tribunal and reducing costs for parties and
government.
These benefits are discussed in more detail below. While some of these benefits
might be achieved under a different scheme, the existing scheme has been operating
effectively since 1976 and is well understood by parties and their representatives. In
its Report No.41 ‘Appeals from the Administrative Appeals Tribunal to the Federal
Court’ (September 1997), the Administrative Review Council recommended that
section 44 should be retained.1 Little has occurred since that report to warrant any
change to that recommendation.
Accordingly, the Tribunal supports the retention of the scheme for section 44
appeals. The Tribunal also considers that those decisions of the Tribunal involving
the Migration Act 1958 that are currently excluded from review under section 44
should be brought within that scheme.
1
ARC Report No.41 at [3.18]-[3.29].
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Section 44 provides a clear avenue of review from most Tribunal decisions
Section 44 provides a straightforward and direct mechanism for applying to the
Federal Court. It serves as a clear and explicit statement within the AAT Act that the
Tribunal is subject to judicial review, and that review by the Federal Court is the
primary remedy contemplated by Parliament for review of the Tribunal’s decisions.2
The nature of the appeal is described in familiar and conventional appellate terms
(‘question of law’). This explicit provision for review in the AAT Act supports the
principles of efficiency and openness in the administrative law system.
Review under section 44 is not available in some circumstances, such as where
review is sought of an interlocutory decision of the Tribunal (that is, a decision other
than a final decision).3 In these cases, review may be available under other
enactments, such as the Administrative Decisions (Judicial Review) Act 1977 and
section 39B of the Judiciary Act 1903. However, reviews under these enactments
are rare.4
The requirement for the appeal to be ‘on a question of law’ appropriately
narrows the scope of the Federal Court review
Section 44 requires an appeal from a Tribunal decision to be ‘on a question of law’.
There is considerable jurisprudence about this requirement.5
The requirement for the appeal to be on a question of law means that the question of
law ‘is the subject matter of the appeal, and the ambit of the appeal is confined to it’.6
A section 44 appeal thus has a narrower scope than review under other enactments.7
The section ‘tends to impose some discipline on the parties to an appeal’ by requiring
them to identify the questions of law.8
The narrower scope of review under section 44 helps make the review process more
efficient by focussing on the legality of the Tribunal’s decision. As a merits review
2
ARC Report No.41 at [3.25]. The Federal Court also sees section 44 as the ordinary basis
for reviewing Tribunal decisions: ARC Report No.41 at [3.26], ref to Australian Fisheries
Management Authority v PW Adams (1995) 61 FCR 314 at 316. See also Tuite v
Administrative Appeals Tribunal (1993) 40 FCR 483.
3 Consultation Paper at [3.63].
4 See Consultation Paper at [3.73]. The majority of appeals from AAT decisions made under
provisions other than s 44 are applications for review under the Migration Act. When these
are excluded, applications under other enactments (ADJR Act and s 39B of the Judiciary Act)
constituted approximately 6%, 5% and 7% of all applications for review of AAT decisions in
2009–10, 2008–09 and 2007–08 respectively.
5 See e.g. Brown v Repatriation Commission (1985) 7 FCR 302 at 304; Waterford v
Commonwealth (1987) 163 CLR 54 at 77-78; TNT Skypack International (Aust) Pty Ltd v
Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Australian
Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524-527; Birdseye v
Australian Securities and Investments Commission (2003) 38 AAR 55 at 60; Comcare v
Etheridge (2006) 149 FCR 522 at 527; Rana v Military Rehabilitation and Compensation
Commission [2011] FCAFC 80 at [8]-[16].
6 Brown v Repatriation Commission (1985) 7 FCR 302 at 304.
7 See Consultation Paper at [4.168] and ARC Report No.41 at [3.22]-[3.24].
8 ARC Report No.41 at [3.28]. This formulation is used in a number of other statutory
appeals: see ARC Report No.41 at [3.7] for a list of enactments as at 1997.
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tribunal, the Tribunal is a less expensive and more appropriate forum to engage in
fact finding than a court. Many applications before the Tribunal have also been
subject to fact finding at earlier levels of merits review, both internal and external
(e.g. by the Social Security Appeals Tribunal, Veterans Review Board, or Information
Commissioner), so it may be desirable to restrict further fact finding.
Section 44 empowers the Federal Court to find facts in some circumstances9, but by
confining the appeal to questions of law in most cases, it emphasises the Court’s
primary role in supervising the legality of Tribunal decisions.
Notwithstanding the narrower scope of review, the power of the Court to provide
remedies is expressed broadly in subsection 44(4), which empowers the Court to
make such orders as it thinks appropriate on an appeal from the Tribunal.
Other provisions in the scheme for section 44 appeals provide further
assistance to the Court that may make the review more efficient
In addition to the narrower scope of review, the scheme for review under section 44
incorporates some additional features that assist in the timely and efficient disposition
of appeals.
Subsection 44(3) enables the Federal Court to be constituted as a Full Court to hear
appeals. This occurs automatically when the appeal is from a decision of a judge
sitting as the Tribunal. It may also occur on an appeal from the decision of a Tribunal
constituted by, or including, a Deputy President if the Chief Justice considers that is
appropriate. This follows consultation with the President of the Tribunal, who makes
recommendations that may assist the Court in identifying cases with novel or
complex questions of law that would be appropriate for review by a Full Court,
promoting an appropriate level of review and finality in the appeal process.
Subsection 46(1) requires the Tribunal to provide “all documents that were before the
Tribunal in connexion with the proceeding” to the Court. The Federal Court Rules
provide that the documents must be provided within 21 days of the Tribunal’s
Registrar being served with a copy of the notice of appeal. This process ensures that
the basic documents relevant to the appeal are provided to the Court in a timely
manner, removing any uncertainty as to what material was before the Tribunal and
otherwise assisting the Court and parties (particularly those who are selfrepresented) to focus on other aspects of the preparation and resolution of the
appeal.
The Tribunal is not usually named in section 44 appeals, making the Tribunal’s
impartiality clear and saving costs for parties and government
The Tribunal is not ordinarily named as a party to a statutory appeal under section
44. As noted in ARC Report No.41, this helps preserve the Tribunal’s impartiality as
9
See section 44(7), which was inserted as a result of the earlier review of s 44 appeals, to
address perceived deficiencies in s 44 that meant that cases would sometimes cycle back
and forth between the Federal Court and the AAT.
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it is not seen to be defending its own decisions in matters which may be remitted to it
by the Federal Court.10
By contrast, the Tribunal is normally named as a party to an application for review to
the Court in applications under the ADJR Act, Judiciary Act and Migration Act. As a
party, the Tribunal must enter an appearance in the Court. While this is normally a
submitting appearance, it involves the expenditure of Tribunal resources for what in
the majority of cases is a mere formality. The other parties to the review also incur
additional costs in preparing and serving copies of documents on the Tribunal as a
party. Section 44 appeals are less expensive for government and the parties in this
regard.
Migration Act exclusion of section 44
The Migration Act 1958 excludes the operation of section 44 in respect of most
migration decisions made by the Tribunal.11 This means that those decisions are
subject to a different system of review. Some of these decisions are subject to
review by the Federal Court, others by the Federal Magistrates Court.12
This can lead to confusion for appellants about the correct forum for lodging
migration appeals and about the correct form to use. It also means that the benefits
of section 44 appeals described above are not available for appeals from migration
decisions of the Tribunal.
The Tribunal is of the view that section 44 should be the sole mechanism for review
of Tribunal decisions.
24 June 2011
10
ARC Report No.41 at [3.27], referring to R v Australian Broadcasting Tribunal; Ex parte
Hardiman (1980) 144 CLR 13.
11 Section 483 of the Migration Act.
12 AAT decisions on review under s 500 of the Migration Act are subject to review by the
Federal Court, while decisions on review under s 136 of the Migration Act are subject to
review by the Federal Magistrates Court: ss 476, 476A of the Migration Act.
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