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Administrative Appeals Tribunal Act - Administrative Review Council - Report - Year - 1983-84 (8th)


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The Parliament of the Commonwealth of Australia

ADMINISTRATIVE REVIEW COUNCIL

Eighth Annual Report

1983-84

Presented 22 February 1985 Ordered to be printed 28 March 1985

Parliamentary Paper No. 86/1985

Administrative Review Council

Eighth Annual Report 1983-84

Administrative Review Council

Eighth Annual Report

1983-84

Australian Government Publishing Service Canberra 1984

© Commonwealth of Australia 1984 ISSN 0155-025X

Typeset by Graphicset Pty. Ltd., Mitcham, Victoria

Printed by Watson Ferguson and Co., Brisbane

Administrative Review Council G.P.O. Box 9955 Canberra, A.C.T. 2601 October 1984

Senator the Hon. Gareth Evans, Q.C. Attorney-General Parliament House Canberra A.C.T. 2600

Dear Attorney-General,

In accordance with section 58 of the Administrative Appeals Tribunal Act 1975, I furnish to you the Annual Report of the Administrative Review Council, which was adopted by the Council on 27 July 1984.

Yours sincerely,

(E.J.L. TUCKER) Chairman

This photograph was taken at a Council meeting at which Sir Gerard Brennan, K.B.E., Justice of I the High Court of Australia, first Chairman o f the Administrative Review Council and first j President o f the Administrative Appeals Tribunal, was present as a visitor. Those photographed | are:

(Standing from left) Mr L .J. Curtis, Mr R.J. Young, Justice M.D. Kirby, Mr A.D. Rose, Professor G.S. Reid, Professor J.E. Richardson, Mr P.R. Munro and Mr D.G. Mackay.

(Sitting from left) Dr J.E. Griffiths (Director o f Research), Sir Gerard Brennan, Mr E.J.L. Tucker I (Chairman), Dr C.A. Saunders and Mr Justice J.D. Davies.

Two Council members (Messrs A.J. Ayers and L.J. Hartigan) do not appear in the photograph.

iv

THE ADMINISTRATIVE REVIEW COUNCIL

Members

M rE.J.L. Tucker (Chairman) Mr A.J. Ayers Mr L.J. Curtis (from 28 July 1983) *The Hon. Mr Justice J.D. Davies (President, Administrative Appeals Tribunal) Mr L.J. Hartigan, A.O. Sir William Keys, O .B .E ., M.C. (to 8 Lebruary 1984) *The Hon. Justice M.D. Kirby, C.M.G. (Chairman, Australian Law Reform

Commission) Mr D.G. Mackay Mr P.R. Munro (from 9 Lebruary 1984) The Hon. Mr Justice A.R. Neaves (to 1 July 1983)

Professor G.S. Reid * Professor J.E. Richardson, A.O. (Commonwealth Ombudsman) Mr A.D. Rose

Dr C.A. Saunders M rR.J. Young

*Ex officio member

Officers of the Administrative Review Council’s Secretariat

Dr J.E. Griffiths (Director of Research) Ms L. Shaw (to 24 May 1984) Dr I.S. Thynne (to 16 December 1983)

Mr J.W. Bames Ms H.M. Watchirs (from 19 March 1984) Mrs M.I.L. McAnulty (to 28 October 1983) Ms M. Brims (from 24 October 1983 to 6 January 1984) Mr B.C. Newman (from 3 January 1984) Ms A.J. Donnelly Mrs J.M. Griffiths

Address for Correspondence

The Director of Research Administrative Review Council G.P.O. Box 9955 Canberra, A.C.T. 2601 Telephone (062)47 5100

A list of Reports of the Administrative Review Council appears on page vii of this Report.

ADMINISTRATIVE REVIEW COUNCIL FUNCTIONS AND POWERS

Section 51 of the Administrative Appeals Tribunal Act 1975 sets forth the functions and powers of the Council as follows:

(1) The functions of the Council are: (a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; (b) to make recommendations to the Minister as to whether any of those classes

of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review; (c) to inquire into the adequacy of the law and practice relating to the review by

courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; (d) to inquire into the adequacy of the procedures in use by tribunals or other bodies engaged in the review of administrative decisions and to make

recommendations to the Minister as to any improvements that might be made in those procedures; (e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be

constituted; (f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by

the Administrative Appeals Tribunal; and (g) to make recommendations to the Minister as to ways and means of improving the procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and

equitable manner.

(2) The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions.

REPORTS OF THE ADMINISTRATIVE REVIEW COUNCIL

Report 1 Administrative Decisions (Judicial Review) Act 1977— Exclusions under Section 19 2 Repatriation Appeals * 3 Review of Import Control and Customs By-Law

Decisions

4 Administrative Appeals Tribunal Act 1975 — Amendments * 5 Defence Force Ombudsman 6 Entry to Cocos (Keeling) Islands and Christmas Island * 7 Citizenship Review and Appeals System * 8 Social Security Appeals

9 Administrative Decisions (Judicial Review) Amendment Bill 1980 10 Shipping Registration Bill * 11 Student Assistance Review Tribunals * 12 Australian Broadcasting Tribunal Procedures * 13 Commonwealth Employees ’ Compensation Tribunal *14 Land Use in the A.C.T. *15 Australian Federal Police Act 1979: Sections 38 and 39 * 16 Review of Decisions under the Broadcasting and

Television Act 1942 * 17 Review of Taxation Decisions by Boards of Review *18 Compensation (Commonwealth Government Employees) Act 1971 — Amendments *19 Rights of Review under the Migration Act 1958 and

Related Legislation — Interim Report on the Constitution of the Administrative Appeals Tribunal *20 Review of Pension Decisions under Repatriation Legislation

*21 The Structure and Form of Social Security Appeals

Date of Transmission

13 October 1978 26 February 1979

25 June 1979

26 June 1979 16 July 1979 2 November 1979 13 June 1980

27 June 1980

16 July 1980 6 August 1980 23 January 1981 20 February 1981

8 May 1981

16 November 1981 11 February 1982

11 June 1982 6 June 1983

27 June 1983

4 August 1983

16 September 1983 12 April 1984

Published by the Australian Government Publishing Service

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CONTENTS

Para. Page

SUMMARY 1

1. THE YEAR REVIEWED 1 3

2. PERSONNEL, ORGANISATION & ACTIVITIES Membership Meetings, Committees & Working Parties Secretariat Visitors Appropriation & Expenditure Freedom of Information

Senate — Standing Committee Seminars & Conferences Liaison with Academics Contacts with Overseas Bodies Bibliography

3. GENERAL GUIDELINES CONCERNING ADMINISTRATIVE REVIEW Criteria for Reviewability of Administrative Decisions on the Merits

Reviewability of Ministerial Decisions Two-Tiered Structure of Appeals Tribunal Panels in First Tier of Review

Independence of Members of Tribunals Public/Private Review Tribunal Hearings No Prohibition on Representation of Parties Obligation on Administering Department to Notify

Subject of Decision of Appeal Rights Reasons for Decisions The Appropriate Tribunal — the AAT, an Existing or a New Specialist Tribunal?

Recommendatory/Determinative Powers Restrictions on the Constitution of the AAT

4. THE COUNCIL’S WORK PROGRAM Current Work Program ‘Admin Review’ Bulletin

5. SUMMARY OF 1983-84 REPORTS & RECOMMENDATIONS Rights of Review Under the Migration Act 1958 & Related Legislation: Interim Report on the

Constitution of the Administrative Appeals Tribunal Review of Pension Decisions Under Repatriation Legislation The Structure & Form of Social Security Appeals Migration Amendment Bill 1983

Report of the Senate Standing Committee on Constitutional & Legal Affairs on the National Crime Authority Bill 1983

12 6

18 6

22 7

25 8

26 27 28 31

32 33 34

36 11

42 13

43 14

44 14

45 15

47 15

49 16

50 16

51 17

52 17

55 18

60 19

62 21

76 23

80 24

85 25

100 29

110 33

111 33

IX

OO OO OO OO ON O s O n

Merit Protection (Australian Government Employees) Bill 1984 114 33

Consultation with the ARC 115 34

6. IMPLEMENTATION OF COUNCIL RECOMMENDATIONS Review of the Ombudsman Act 1976 120 35

Defence Force Ombudsman 124 36

Student Assistance Review Tribunals 125 36

Ombudsman Amendment Bill 1982 128 36

Rights of Review Under the Migration Act 1958 & Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal 129 36

Migration Amendment Bill 1983 131 37

Report of the Senate Standing Committee on Constitutional & Legal Affairs on the National Crime Authority Bill 1983 133 37

7. CUMULATIVE SUMMARY OF RECOMMENDATIONS AWAITING FINAL DECISION OR ACTION Registration of Tax Agents 136 38

Review of Import Control & Customs By-law Decisions 137 38

Passports Amendment Bill 1979 139 38

Draft Air Pollution (Stationary Sources) Ordinance (A.C.T.) 140 38

Draft Water Pollution Ordinance (A.C.T.) 142 38

Legislative Assembly (Election) Regulations (A.C.T.) 144 39

Review of the Ombudsman Act 1976 146 39

Family Law Act 1975 147 39

Citizenship Appeals & Review System 149 39

Superannuation Act 1976 — Jurisdiction 151 39

Liquor Ordinance 1975 (A.C.T.) 152 39

Australian Broadcasting Tribunal Procedures 153 40

Postal By-laws Amendment (No. 2) 1981 154 40

Land Use in the A.C.T. 155 40

Australian Federal Police Act 1979: Sections 38 & 39 156 40

Review of Decisions Under the Broadcasting & Television Act 1942 157 40

Review of Taxation Decisions by Boards of Review 158 41

Compensation (Commonwealth Government Employees) Act 1971 — Amendments 159 41

Review of Pension Decisions Under Repatriation Legislation 160 41

The Structure & Form of Social Security Appeals 162 42

8. LEGISLATIVE & RELATED DEVELOPMENTS Acts Interpretation Amendment Act 1984 165 43

Archives Act 1983 166 43

Australian Citizenship Amendment Bill 1983 167 44

Federal Court of Australia Amendment Act 1984 168 44

Freedom of Information Amendment Act 1984 169 44

Merit Protection (Australian Government Employees) Act 1984 171 44

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National Crime Authority Act 1984 172 45

Ombudsman Legislation 173 45

Repatriation Legislation Amendment Bill 1984 174 45

Sex Discrimination Act 1984 175 45

Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 176 46

Statute Law (Miscellaneous Provisions) Act (No. 1) 1984 177 46

9. THE ADMINISTRATIVE APPEALS TRIBUNAL Membership 178 47

Jurisdiction 183 48

Statistics on Operation of the Tribunal 191 49

A AT Review: Emerging Trends 198 50

Freedom of Information Requests 205 51

10. COMMONWEALTH OMBUDSMAN The Council & the Ombudsman 206 52

Project on Relationship between the Ombudsman & the AAT 207 52

FOI Developments 208 52

Complaints Against Police 215 53

Defence Force Ombudsman 217 54

National Crime Authority 218 54

Office Organisation 220 54

Statistics 222 54

11. REVIEW BY THE COURTS Legislative Developments 226 56

Judicial Developments 232 57

12. OTHER REVIEW TRIBUNALS 262 64

Appendix 1 Administrative Review Council Appropriation & Expenditure 1983-84 65

Appendix 2 Bibliography of Publications Relating to Administrative Law & Public Administration 66

Appendix 3 Administrative Appeals Tribunal Membership 71

Appendix 4 Administrative Appeals Tribunal Jurisdiction 73

Appendix 5 Administrative Appeals Tribunal Statistics of Business for the Year Ended 30 June 1984 91

Appendix 6 Administrative Decisions (Judicial Review) Act 1977 — Statistics for 1983 94

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SUMMARY

The major issues and developments affecting administrative review during the year ended 30 June 1984 and recorded in the following report are set out below.

Key Issues

• Utilisation o f administrative review processes. Acting on a concern that the ‘new administrative law’ may be under-utilised, the Council: — commenced work on a project which will investigate the law and practice regarding notification of rights of review; — commenced publication of a quarterly news and information bulletin called

Admin Review; and — continued work on its Impact project which aims to assess the costs and benefits of the new administrative law. • Role o f the Council. The Council wrote to the Attorney-General on the need for it to

be given an effective opportunity to provide advice on legislative proposals which raise issues affecting administrative review.

New Legislation

The year witnessed a great deal of legislative activity relevant to review of administrative action, including: • changes to the Ombudsman’s operations; • expansion of the Freedom of Information Act;

• new avenues of judicial review; and • stricter requirements for the giving of written reasons. Wide-ranging proposals for legislation were also made in the areas of repatriation and citizenship appeals.

Council Reports Submitted to Government

Two major reports were submitted during the year: • Review o f Pension Decisions Under Repatriation Legislation. This report proposed a new structure of primary decision making and a two-tier review system. • Structure and Form o f Social Security Appeals. This report proposed important but

evolutionary changes to the social security appeals system, including the organisation of SSATs into a national body with determinative powers. Advice was also given to the Government on the following matters: constitution of the AAT in migration matters; the Migration Amendment Bill 1983; the Report of the Senate

Standing Committee on Constitutional and Legal Affairs on he National Crime Authority Bill 1983; the Merit Protection (Australian Government Employee) Bill 1984; and consultation with the ARC.

Implementation of Council Reports

A number of Council reports were implemented during the year, including reports on the operations of the Ombudsman and on Student Assistance Review Tribunals. Proposed legislation has also adopted Council reports on citizenship and repatriation appeals.

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New Projects

The Council commenced work on two projects during the year: • Structure and Form of Social Security Appeals (which was also completed during the year); and • Notification of Rights of Review.

Internal Developments

• The Chairman of the Council was re-appointed and two new Council members were appointed to vacancies which arose from the expiration of the term of appointment of one member and the resignation of another following his appointment as a Judge of the Federal Court of Australia. • The Council publishes in the following report for the first time general guidelines

concerning the development of administrative review.

2

CHAPTER 1. THE YEAR REVIEWED

1. The new administrative law has been in existence for several years now but the system is far from static. Rather, that system is undergoing constant evolutionary changes and interest in its operation and development shows no signs of abating. The continuing growth and expansion of the system generates new issues and problems which have to be confronted. Indeed, the present challenge facing the Council in monitoring the operation of the system of administrative review and advising the Government on its future direction is as great as it ever was.

2. The year 1983-84 has been an especially important one for the Council. Among the notable events which occurred during the year was the transmission from the Council to the Attorney-General of reports on three vital areas of Commonwealth administration: migration, repatriation and social security. The report on migration was one of an interim

nature dealing with the specific issue of the constitution of the AAT in hearing criminal deportation appeals, but the other two reports were of major dimensions and contained significant proposals concerning review of repatriation and social security decisions.

3. It was also significant that two of the reports made by the Council during the year were acted upon speedily by the Government. The Council’s recommendations regarding the AAT’s constitution in criminal deportation appeals was implemented by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 and its recommendations regarding

review of repatriation decisions were substantially adopted in the Repatriation Legislation Amendment Bill 1984.

4. One matter which has concerned the Council over recent years is whether administrative review mechanisms are being under-utilized through ignorance or for other reasons. The issue is one to which the Council will give careful consideration as part of its current project assessing the impact of administrative review reforms. Other steps have also been taken during the year which, it is hoped, will contribute to a raising of public consciousness and awareness of the availability of rights of administrative review. First, the Council embarked upon a project concerning the notification of rights of review. The project will be limited in its frst stage to notification of rights of review by the AAT and consideration will be given in later stages of the project to notification of rights of review

in relation to both other tribunals reviewing decisions on their merits and other forms of review available from the Ombudsman and the courts.

5. A second development which took place during the year, relevant to the Council’s concern to improve the dissemination of information concerning administrative review, was its decision to commence publication of a quarterly bulletin to be known as Admin Review. The first issue was being printed at the end of the year under report and it was expected to be available for distribution during July 1984. It is hoped that the bulletin will go some way towards filling a gap in the existing literature on administrative review. Admin Review will not be a technical publication written primarily for a legal audience.

Rather, it is intended that it will provide general information about recent developments in administrative review including matters relating to the Council, the AAT, the Ombudsman and the courts. Further details regarding the bulletin are provided in chapter 4 (paras 76-77) of this Report.

6. Another matter which concerned the Council during the year was the need for it to be given an effective opportunity to provide advice on legislative proposals which raise issues affecting administrative review. While recognising that urgency is often required in dealing with legislative proposals, the Council was concerned that in several important

matters affecting administrative review during the year it was not given such an

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opportunity. The Council wrote to the Attorney-General on this matter, the details being described in chapter 5 (paras 115-116) of this Report.

7. The year 1983-84 witnessed a great deal of legislative activity relevant to review of administrative action part of which had been the subject of recommendations by the Council. The Ombudsman Amendment Act 1984 implements the Council’s Working Party Report entitled Jurisdiction o f the Ombudsman and substantially implements the Council’s Report on the Defence Force Ombudsman. The Freedom o f Information Amendment Act 1983 significantly widens the scope of the FOI Act and empowers the

AAT to make recommendations to the Attorney-General that the Commonwealth pay the costs of successful applicants. The Act also provides for the Ombudsman to represent applicants before the AAT. The Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 inserts a new section 39B into the Judiciary Act 1903 which provides for a new avenue of judicial review by the Federal Court, and the Act also implements the Council’s Report on

Rights o f Review Under the Migration Act 1958 and Related Legislation — Interim Report on the Constitution o f the Administrative Appeals Tribunal. Finally, another amendment to the Judiciary Act was effected by the first omnibus Act of 1984 which provides for a new avenue by which certain matters arising in the High Court’s original jurisdiction (including cases involving review of administrative action) can be remitted to the Federal Court. These and other legislative developments are discussed in more detail in Chapter 8.

8. There was a further expansion during the year in the jurisdictions of the AAT and the Ombudsman and an increase in the number of review applications received by the AAT. Despite the increase, there was a reduction in the backlog of cases and in the length of delay in matters coming on for hearing before the AAT. This development was contributed to by an increase in the Tribunal’s membership as well as by the normative effect of decisions of the Tribunal on several key issues. The Ombudsman took up his new role this year as general counsel in freedom of information (FOI) cases before the AAT. The Ombudsman’s office itself received several requests for access to its files as it is a subject agency under the FOI Act. In the year under report a decision of the Ombudsman to refuse access to a document under sections 36 and 38 of the FOI Act became the subject of litigation in the Federal Court. In the case of Kavvadias v Commonwealth Ombudsman (unreported, 23 March 1984) the Court upheld an appeal from an earlier AAT decision which affirmed the Ombudsman’s original decision to refuse access to the subject document under section 38 of the FOI Act. Proceedings were still in progress at the end of the year under report in the Federal Court in relation to an order for review which the applicant has sought under the Administrative Decisions (Judicial Review) Act 1977 in respect of the Ombudsman’s original decision to refuse access to the subject document under section 36 of the FOI Act. The case is discussed further in Chapter 10.

9. There was an increase during the year in the number of applications for review and requests for reasons under the Administrative Decisions (Judicial Review) Act 1977. However, accompanying this increased general use and awareness of that Act was a noticeable decline in the number of applications for review concerning personnel management decisions in the public sector, an area which previously had dominated AD(JR) Act statistics. Areas which appeared more prominently in this year’s statistics were taxation decisions and committal proceedings. Several important Federal Court decisions were handed down during the year on various aspects of the Act. The Full Federal Court held in Lamb v Moss (1983) 49 ALR 533 that the conduct or decisions of a magistrate in committal proceedings were reviewable under the Act but the Court emphasised that it would only interfere in “ exceptional circumstances” . The ambit of the Act’s operation was further clarified by another decision of the Full Federal Court in Chittick v Ackland (1984) 53 ALR 143, which dealt with the meaning of the definition of a decision to which the Act applies.

4

10. The AD(JR) Act has been in operation for almost four years now. As reported in last year’s Annual Report, the Council has commenced a project reviewing the Act’s operation. An Issues Paper was prepared during the year and was distributed to interested groups and persons during the early part of July 1984 with an invitation to comment.

11. The year 1983-84 might also be remembered as the year in which there was a perceptible change of attitude towards administrative review in some quarters. The Council recorded in its last Annual Report (para. 13) the criticisms contained in the Report of the Review of Commonwealth Administraton (A.G.P.S., 1983) and the Fifty-Eighth Annual Report (1981-82) of the Public Service Board about the costs and efficiency of the system of administrative review. This year showed a growing acceptance of administrative review in the public sector. At a seminar held on 7 February 1984 for Commonwealth Permanent Heads, the topic of developments in administrative law and their impact was chosen for discussion. The Attorney-General, Senator Gareth Evans, Q.C. spoke of administrative law reforms as an ‘irreversible process’ but that the new administrative law system was not an unchanging edifice’. The Chairman of the Public Service Board, Dr Peter Wilenski, stated at this seminar that external review mechanisms had led to better primary decision making. He saw the reforms as ‘modernising the doctrine of Ministerial responsibility’ by facilitating public scrutiny and by increasing the accountability of the federal administration. The Secretary of the Department of Veterans’ Affairs, Mr Derek Volker, spoke highly of the AAT as providing a suitable forum for resolution of individual grievances and for promoting desirable changes in decision making processes. He was critical, however, of the length of time it took for some applications to come on for hearing by the AAT and of the amount of time spent by the Federal Court on jurisdictional questions in hearing applications under the AD(JR) Act.

CHAPTER 2.

PERSONNEL, ORGANISATION AND ACTIVITIES

Membership

12. On 9 February 1984 the term of appointment of Sir William Keys, O.B.E., M.C., expired. The Council placed on record its appreciation of the services of Sir William and noted in particular his valuable assistance in the preparation of the Council’s Report on Review o f Pension Decisions Under Repatriation Legislation.

13. The Council recorded its pleasure concerning the re-appointment during the year of Mr Ernest Tucker as a part-time member and Chairman of the Administrative Review Council for a further period of three years.

14. Mr Paul Munro, National Secretary of the Administrative and Clerical Officers’ Association, was appointed to the Council on 9 February 1984 as a part-time member for a period of three years.

15. As at 30 June 1984 the Council members (and the dates on which their terms expire) were:

M rE.J.L. Tucker (Chairman) Mr A.J. Ayers Mr L.J. Curtis The Hon. Mr Justice J.D. Davies (President,

Administrative Appeals Tribunal) Mr L.J. Hartigan, A.O. The Hon. Justice M.D. Kirby, C.M.G. (Chairman, Australian Law Reform Commission) Mr D.G. Mackay M rP.R. Munro Professor G.S. Reid Professor J.E. Richardson, A.O. (Commonwealth

Ombudsman) Mr A.D. Rose DrC.A. Saunders Mr R.J. Young

9 Febmary 1987 3 Febmary 1986 28 July 1986

Ex Officio

3 Febmary 1986

Ex Officio

3 Febmary 1986 9 Febmary 1987 21 October 1984

Ex Officio

3 Febmary 1986 21 October 1984 3 Febmary 1986

16. The Council noted with pleasure that Professor G.S. Reid, a member of the Council, had been designated to become Governor of Western Australia, and that Professor J.E. Richardson, in addition to being appointed an Officer of the Order of Australia, was also re-appointed as Ombudsman until September 1985.

17. It was also noted that Professor Reid wrote to the Governor-General on 20 June 1984 advising His Excellency that his forthcoming appointment as Governor of Western Australia (as from 2 July 1984) made it necessary for him to resign from the Administrative Review Council. His resignation was accepted with effect from 1 July

1984.

Meetings, Committees and Working Parties

18. During the year under report, the Council met on seven occasions and its various Committees met on a total of nineteen occasions. The Committees which met during the year and their membership are as follows:

(1) Impact of Administrative Law Reforms Working Party (Professor Reid, Messrs Ayers and Curtis, Dr Griffiths, Messrs Hamilton (Public Service Board), Rose and Tucker).

6

(2) Repatriation Legislation (Mr Tucker, Mr Daniels (former Council member), Mr Justice Davies, and Sir William Keys). (3) Migration Act Appeals and Review (Mr Tucker, Mr Justice Davies, Sir William Keys, Professor Reid and Mr Rose).

(4) The Structure and Form of Social Security Appeals (Mr Tucker, Mr Ayers, Mr Justice Davies, Mr Rose and Dr Saunders). (5) Administrative Decisions (Judicial Review) Act (Dr Saunders, Mr Curtis, Mr Justice Davies, Professors Reid and Richardson). (6) Customs and Excise Appeals (Mr Tucker, Mr Curtis, Mr Justice Davies, Messrs

Mackay and Hartigan).

19. In addition to the above, the following Committees have been established but did not meet during the year: (1) Relationship Between the Jurisdiction of the Ombudsman and the AAT (Mr Tucker, Mr Justice Davies, Mr Mackay, Dr Saunders and Professor Richardson).

(2) Contempt (Mr Justice Davies, Mr Mackay, Professor Reid, Mr Rose and Dr Saunders). (3) Standing (Mr Justice Davies, Mr Mackay, Professor Reid, Mr Rose and Dr Saunders). (4) Notification of Rights of Review (Mr Ayers, Mr Curtis, Mr Justice Davies, Mr

Munro and Professor Richardson). 20. The Chairman, while formally appointed a member of some Committees, is a member ‘ex officio’ of all the Council’s Committees.

21. An Editorial Committee was appointed during the year to oversee the production of the Council’s quarterly bulletin called Admin Review. This Committee comprises Justice Kirby, Mr Curtis, Mr Justice A.R. Neaves (Judge of the Federal Court and Presidential Member of the AAT), Professor Richardson and Mr Todd (Deputy President of the AAT).

Dr Griffiths is editor of the bulletin.

Secretariat 22. The Principal Project Officer, Ms L. Shaw, was appointed as an Assistant Ombudsman and left her appointment in May. Some difficulties were experienced in finding a suitable replacement and the position remained vacant at the end of the year under report. The Secretariat’s staff resources were accordingly depleted for that period but it is hoped that a suitable person will soon be found to occupy the position.

23. At 30 June 1984 the Secretariat’s staff ceiling stood at five full time positions and two part time positions. A request for an increase in establishment by two full time positions (Project Officers Class 7) and one part time position (Word Processor Operator) has been made. These positions are required on the basis of the need to provide the

Secretariat with the necessary flexibility to allocate priorities in accordance with the current work programme to ensure that the Council is able to discharge its statutory functions as well as to assist in the preparation of the new bulletin, Admin Review. At the end of the period under report, the staff consisted of the Director of Research (Dr J.E. Griffiths), two Project Officers (Mr J.W. Bames and Ms H.M. Watchirs), a part-time

Administrative Officer (Mr B.C. Newman), a Secretary (Ms A.J. Donnelly) and a part-time Word Processor Operator (Mrs J.M. Griffiths).

24. Two officers participating in the Executive Development Scheme conducted by the Public Service Board were attached to the Secretariat for several months during the year. These officers were Mr John Fielding, and Mr Gerard Linehan. Both joined the Secretariat in November 1983 and were involved in researching and compiling material

relating to the Impact of Administrative Review on Personnel Management in the Australian Public Service. Mr Linehan’s placement ended in February 1984 and Mr Fielding’s in March 1984.

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Visitors

25. During the course of the year the Council and/or Secretariat were visited by:

• The Hon. Sir Gerard Brennan, K .B .E ., Justice of the High Court of Australia (and first Chairman of the Council and first President of the Administrative Appeals Tribunal); • Sir Ivor Guild, a Scottish member of the UK Council on Tribunals; • Judge D.F.G. Sheppard, Chairman of the New Zealand Public and Administrative

Law Reform Committee; and • Dr Peter Wilenski, Chairman of the Public Service Board.

Appropriation and Expenditure

26. Expenditure of the Council during the 1983-84 financial year amounted to $270,543. This figure does not include the remuneration and travelling allowances of members. Details of funds appropriated and expended are set out in Appendix 1.

Freedom of Information

27. The Council is a subject agency for the purposes of the Freedom o f Information Act 1982. During the period under report no requests for access to information were received.

Senate Standing Committees

28. The work of the Senate Standing Committees on Regulations and Ordinances, and Scrutiny of Bills, is of considerable interest to the Council. The terms of reference of both Committees require them to scrutinize proposed legislation with a view to identifying discretions which are not subject to review (see para. 37). The Council has found the Committees’ reports to be particularly helpful in identifying areas of administrative action that are unreviewable on the merits. Moreover, both Committees have had occasion to refer to relevant Council projects in drawing attention to legislative proposals to enact unreviewable discretions.

29. The Council is also closely interested in the work of the Senate Standing Committee on Constitutional and Legal Affairs whose reports sometimes deal with matters relevant to administrative review. It is noted elsewhere in this Report (paras 111-114), for example, that the Council gave advice to the Attorney-General on some aspects of the Committee’s Report on the National Crime Authority Bill 1983.

30. A meeting was arranged during the year between members of the three Senate Committees and the Council. The meeting provided a valuable opportunity to exchange information on the work of the respective bodies and to inform the Senators of the Council’s current work programme.

Seminars and Conferences

31. Members of the Council and its Secretariat attended several seminars and conferences during the course of the year. These inlcuded:

• The Eighth Annual Conference of Australian Law Reform Agencies (July 1983). • The Social Security Appeals Tribunals’ National Conference (July 1983 and June 1984). • The Twenty-second Annual Legal Convention (July 1983). • A Seminar organised by the Commercial Law Association of Australia on the topic

of ‘Fair Play — Obtaining a Review of Government Decisions’ (September 1983).

8

• The National Conference of the Royal Australian Institute of Public Administration (November 1983). • The Commonwealth Legal Aid Council’s Conference on the topic of ‘Is the Existing Legal Aid System Wasting Legal Aid Money?’ (May 1984). • The Eighth Annual Conference of the Australian Mining and Petroleum Law

Association (June 1984). • The Ninth Annual Conference of Australian Law Reform Agencies (June 1984).

Liaison with Academics

32. As stated in previous Annual Reports, the Council attaches importance to fostering and maintaining close contact with academics involved in research in administrative law and public administration. Over the past year the Council has continued its practice of forwarding copies of discussion papers, issues papers and reports to the following list of persons who have agreed to act as Liaison Officers at various tertiary institutions:

• Professor E.M. Campbell, Monash University, Victoria • Dr R.J.K. Chapman, University of Tasmania • Professor J. Goldring, Macquarie University, New South Wales • Professor A. Graycar, University of New South Wales • Mr M.C. Harris, University of Adelaide, South Australia • Dr C. Hazlehurst, Australian National University, Australian Capital Territory • Associate Professor S.D. Hotop, University of Sydney • Mr K. Mackie, University of Tasmania

• Professor G. Nettheim, University of New South Wales • Dr P.W. O'Brien, Flinders University, South Australia • Professor D.C. Pearce, Australian National University, Australian Capital Territory

• Dr R. Tomasic, Kuring-gai College of Advanced Education, New South Wales • Mr R.R.S. Tracey, University of Melbourne, Victoria • Mr D. Tucker, University of Queensland

Contacts with Overseas Bodies

33. As stated in previous Annual Reports, the Council is in regular contact with several overseas bodies involved in administrative law reforms including the Council on Tribunals and the Justice and All Souls Committee on Review of Administrative Law in the United Kingdom, the Canadian Law Reform Commission, the Administrative Conference of the United States, and the Public and Administrative Law Reform

Committee in New Zealand. Papers and information are exchanged with these bodies concerning administrative law developments in Australia and overseas. The Council also considers that it derives great benefit from maintaining and fostering personal contact with members of these bodies. As noted above, members of the Council and its secretariat were pleased to welcome and meet the Chairman of the New Zealand Public and Administrative

Law Reform Committee, Judge D.F.G. Sheppard, during his recent visit to Australia. The Council has also found that good relations with overseas bodies and exchange of valuable information are encouraged by visits overseas by individual Council members and its Director of Research.

Bibliography

34. A bibliography of selected works relevant to the work of the Council is contained in Appendix 2 of this Report. That Appendix refers to publications relating to administrative law and public administration.

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35. The Council is aware that many readers find this bibliography a useful source of information. Suggestions from readers as to items which might be included in future bibliographies would be welcome.

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CHAPTER 3.

GENERAL GUIDELINES CONCERNING ADMINISTRATIVE REVIEW

36. The Council’s functions as set out in sub-section 51(1) of the Administrative Appeals Tribunal Act 1975 touch upon many aspects of the machinery of public administrative decision making. Recommendations havebeen made bythe Council on the law relating to administrative review; on the powers, procedures and jurisdiction of the

various review agencies; on the rationalisation and consolidation of review tribunals and their composition and procedures; and also on the procedures relating to primary decision making to ensure that discretions are excercised justly and equitably. In fulfilling its

statutory functions, the Council accepted that it could not initially draw up general guidelines, but that case by case studies of particular areas of decision making must be undertaken. As these studies developed, the characteristics of each became apparent, and different considerations emerged with importance in the Council’s examination of each.

In the Council’s eight years of operation there have, however, been a number of recurrent issues. The Council has attempted to deal consistently with these issues and, with its accumulated experience, it has decided to extract from reports its resolution of these issues and publish them, for general information, as guidelines. The following guidelines

should, however, be read ultimately in the context in which they were formulated, and thus they are in no sense a binding or definitive statement of Council policy in the area of administrative review. The Council would welcome any comments from interested parties on these guidelines.

Criteria for Reviewability of Administrative Decisions on the Merits

37. The monitoring of classes of administrative decisions in order to ascertain whether they should be subject to review is specifically included in the Council’s statutory charter. The Council performs this monitoring function in relation to existing and proposed legislation. In addition, the Attorney-General’s Department considers whether the AAT

should be vested with jurisdiction to review decision making powers for which provision is made in draft legislation or proposals for legislation. New legislation conferring discretionary powers is further scrutinised by Senate Standing Committees. The current terms of reference of the Senate Standing Committee on Regulations and Ordinances include the following provision relating to the reviewability of administrative decisions:

The Committee scrutinises delegated legislation to ensure: . . . (c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; . . .

Likewise, the terms of reference of the Senate Standing Committee for Scmtiny of Bills provide that it shall report on Bills or Acts which make ‘rights, liberties and/or obligations unduly dependent upon non-reviewable administrative decisions’.

38. In relation to the question of reviewability of decisions by the Administrative Appeals Tribunal, the Council in its Second Annual Report (para. 47) identified the following relevant general considerations. These principles were drafted by the Council in its early years of operation, and have not been specifically reconsidered in the light of its

subsequent experience:

(a) the criteria relevant to the making of the particular class of decisions (whether specified in a legislative provision or not), the consequences for persons affected by those decisions, and the structures and procedures currently used in making the decisions;

(b) the ascertainment of all avenues of review currently available (including internal review), the issues upon which review is undertaken, the procedures used, and their adequacy; (c) whether the decisions are capable of review by the Tribunal (including consideration of

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the extent to which the issues are ones of fact and law or involve policy issues) given the character of the Tribunal’s procedures; (d) the feasibility of vesting the jurisdiction proposed in the Tribunal, having regard to any relevant provision of the Constitution and the Administrative Appeals Tribunal Act; (e) the practical effects of exercising the jurisdiction proposed with respect to:

— the Tribunal (for instance caseload, new membership required); — the applicant for review (for instance need for expert witnesses, advice and assistance); and — the decision-making agency; and (f) the effect which the vesting of jurisdiction might have upon the processes of primary

decision making and upon existing review.

39. The primary criterion for reviewability on the merits indentified by the Council in its reports is that rights or interests of individuals must be specifically affected to a significant extent by the decision in question. The Council’s Report on Social Security Appeals emphasised that the right of review provided by an administrative appeals structure should be commensurate with the interests of individuals involved:

Because of the effect which adverse decisions can have upon claimants, it is of great importance that payment is refused, cancelled, suspended, or reduced only when that is the correct or preferable decision. In the Council’s view, this is only to be assured through a system of external review of individual decisions, (para. 3.002) Similarly, the Report entitled Review o f Decisions Under the Broadcasting and Television Act 1942 stated (para. 59):

. . . . where substantial commercial interests are at stake and where a decision has important social ramifications such costs and delays as may be associated with review on the merits are an unavoidable consequence of the need to ensure that the correct or preferable decision is in fact reached.

(See also Citizenship Review and Appeals System para. 8, Australian Federal Police Act 1979: Sections 38 and 39 para. 33, Review of Import Cotrol and Custms By-Law Decisions para. 22)

40. In order to fulfill this above requirement of reviewability, the decision in question must be of a substantive nature and not collateral or preliminary to the primary decision. The Council’s Social Security Appeals Report described such collateral decisions as an exercise of facultative powers:

These do not themselves constitute elements of a substantive decision concerning a social security payment, but are powers relating to the obtaining of material upon which a substantive decision is made. (para. 3.020) (See also Australian Federal Police Act 1979: Sections 38 and 39 paras 34 and 36, Third Annual Report para. 67). Likewise, a matter of internal administration or the exercise of a power of delegation which does not, of itself, affect an individual’s interests would not satisfy the above requirement of reviewability (Review o f Decisions Under the Broadcasting and Television Act 1942 para. 66, Social Security Appeals para. 3.023, Review o f Import Control and Customs By-Law Decisions para. 53). The decision must also affect individuals specifically, not as part of a general group affected by a decision of a quasi-legislative character (Review o f Decisions Under the Broadcasting and Television Act 1942 para. 69, Review o f Import Control and Customs By-Law Decisions para. 53, Fourth Annual Report para. 72). A decision which only takes effect for a short period of time may not have a significant enough effect on an individual to justify review.

Exceptions to General Principle

41. Decisions which should not be reviewable on the merits, notwithstanding that they affect rights and interests to a significant extent, are as follows:

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• the decision is not appropriate fo r review — where ‘high’ government policy or otherwise highly sensitive or partisan political issues are involved e.g. protection policy and management of the economy {Review o f Import Control and Customs By-Law Decisions paras.

17-18); decisions made on the direction of a foreign government (Third Annual Report para. 54); decisions affecting international relations (Fifth Annual Report para. 139); and decisions critically affecting national security (Citizenship Review and Appeals System para. 14). — where the decision involves apportioning a finite resource e.g. the

distribution of legal aid from a limited fund (Fourth Annual Report para. 94), because in assessing the merits of an individual applicant’s case, it would be necessary also to assess the relative merits of all successful applicants who received a portion of the limited resource. — where the reviewing body’s adjudicative role would be frustrated by being

forced to rely in a significant number of cases upon the opinion of the primary decision maker, e.g. the opinion of the Legal Aid Commission on the management of the legal aid fund and the assessment of other competing applications (Fourth Annual Report para. 94). — where the decision involves the exercise of a discretionary power to

determine a penal sanction, e.g. the power to determine a fine for failure to register under the Aliens Act 1947 (Forth Annual Report para. 67). — where these is a discretion to grant exemption from normal administrative practice, e.g. the power to exempt from registration under the Aliens Act

1947 (Fourth Annual Report para. 67). — generally where a court is named as the forum for enforcement of the powers concerned e.g. requiring and securing payment from a person who is liable to pay damages or compensation to the recipient of sickness benefits or

rehabilitation (Social Security Appeals para. 3.021).

• no appropriate remedy may be given by the reviewing body — where the only possible remedy would cause unacceptable dislocation in the decision making machinery or could not in practice be made effective retrospectively, e.g. where the grant of or increase in an individual’s customs

quota entitlement would consequently require the reapportioning of shares among other quota holders (Review o f Import Control and Customs By-Law Decisions para. 30. In this Report the Council was able to suggest a number of possible alternative remedies which would not cause such unacceptable

dislocation.) — where the review tribunal would be unacceptably restricted in respect of the remedy which it may grant, e.g. a statutory limit on the amount of

compensation which may be awarded. — where the decision is irrevocable e.g. the exercise of powers of search. — where the decision is made in an emergency situation, e.g. the destruction of flora or fauna under quarantine laws. In such a case it would not be

appropriate or possible merely to substitute another decision for the decision in question. In the last two cases a more satisfactory form of review would be available from the Ombudsman who could determine the administrative propriety of the relevant decision and recommend in appropriate circumstances that compensation be paid.

Reviewability of Ministerial Decisions

42. The high status of primary decision makers does not preclude review on the merits of their decisions. Ministerial decisions subject to review by the Administrative Appeals

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Tribunal at the date of its inception comprised certain decisions made under the following Acts: the Agricultural Tractors Bounty Act 1966, the Broadcasting and Television Act 1942, the Book Bounty Act 1969, the Cellulose Acetate Flake Bounty Act 1956, the Customs Act 1901, the Distillation Act 1901, the Excise Act 1901, the Metal Working Machine Tools Bounty Act 1972,the Migration Act 1958 and the National Health Act

1953. The Council has recommended that the following Ministerial decisions be subject to review:

• licensing decisions under the Draft Water Pollution Ordinance (Third Annual Report paras. 64-65); • assessments of compensation under the Draft Nature Conservation Ordinance {Third Annual Report para. 71); • refusal of consent to transfer a lease and decisions regarding the determination of a

lease under the City Area Leases Ordinance 1936 {Land Use in the A.C.T. para. 48); • certain determinations under the Broadcasting and Television Act 1942 (Review of Decisions Under the Broadcasting and Television Act 1942 paras. 116-129); • certain decisions under the Australian Citizenship Act 1948 (Citizenship Review

and Appeals System para. 22).

The Council’s Report on Review o f Import Control and Customs By-Law Decisions stated (para. 20):

The justification for regarding any decision as unreviewable lies in the character of the substance of the decision. The identity of the decision maker is irrelevant to that decision.

However, it may be the case that matters of ‘high’ government policy or which involve highly sensitive partisan political issues are referred to a decision maker of appropriate status such as a Minister. Such decisions, because of their nature, would not be appropriate for review. The Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 held that the A AT was obliged under its Act to independently

assess the propriety of government policy, including Ministerial determinations (see M.D. Kirby, ‘Administrative Review: Beyond the Frontier Marked “ Policy — Lawyers Keep Out” ’ (1981) 12 Federal Law Review 101 and G.S. Reid, ‘The Changing Political Framework’ (1980) 24 Quadrant No. 150, 5, 12).

Two-Tiered Structure of Appeals

43. Generally, in a jurisdiction involving a high volume of appeals a two-tiered structure of review is necessary to provide an accessible, expeditious, informal and economical form of review on the merits while also achieving an adequate standard of justice in all cases. The two review tribunals necessarily have distinct but complementary roles and functions, and different standards of procedural fairness. Many appeals should be resolved at the first level of review, thereby obviating the need for further review by the final appeal tribunal. The first tier of review would be designed to provide economical, expeditious and informal review, whereas the final level of review would be designed not only to determine individual cases upon an enquiry of greater depth than the first review body but also to develop principles of general application for the future guidance of primary decision makers and the first review body (Review of Pension Decisions Under Repatriation Legislation paras. 192-193, The Structure and Form o f Social Security Appeals paras. 103-110).

Tribunal Panels in First Tier of Review

44. There is a general presumption that in a two-tiered stmcture of review, unless there are special reasons to the contrary, the first tier of review should be constituted by a single member rather than by a multi-member panel in the interests of economy and expedition.

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This presemption was rebutted in the case of the Social Security Appeals Tribunal as existing multi-member panels with their range of expertise and skill were, and were perceived to be, better equipped to satisfy the diversity of appellants’ needs. The presence of several members on a panel where one member either was nominated by an outside

organisation or was a serving departmental officer, helped to maintain the independence of the Tribunal (The Structure and Form of Social Security Appeals para. 122, Review of Pension Decisions Under Repatriation Legislation para. 203).

Independence of Members of Tribunals

45. The Council in its Second Annual Report (para. 63) recommended that statutory provisions for the constitution of the AAT should be made in accordance with the following set of principles:

(a) as a general rule, except as hereinafter stated, there should be no prescription of special conditions or qualifications of appointment for non-presidential members of the Tribunal; (b) any such special'conditions or qualifications should not in general go further than to state that members possess a particular expertise; (c) in an appropriate class of case membership may be drawn from those who have an affinity

to the problems which arise and to the parties before the Tribunal in that class of case, but as a general principle, no power of nomination to membership of the Administrative Appeals Tribunal should be vested in outside bodies; (d) the mode of appointment established by section 6 of the Administrative Appeals Tribunal Act should not be altered or modified for particular jurisdictions; (e) provisions should generally not be made for the appointment of public servants serving in the department whose decisions will be reviewed under the jurisdiction in question; and (f) any proposed exception to the general principles stated above should be submitted to the

Administrative Review Council for its consideration.

In accordance with principle (c), the Council recommended in its Review of Pension Decisions Under Repatriation Legislation Report that the AAT be constituted in its repatriation jurisdiction by or include at least one member who is an ex-serviceman (paras 292-297). "

46. Lack of independence from the primary decision maker in specialist tribunals has been a factor in the Council recommending that relevant jurisdictions be transferred to the AAT (Review o f Taxation Decisions by Boards o f Review paras 88-97, Review of Pension Decisions Under Repatriation Legislation paras 241-249). However, in two-tiered structures of review the Council has taken the view that the risk of a perceived lack of

independence on the part of some members of the first review body may be acceptable where there were positive reasons supporting the appointment of such members, as long as the final review tribunal was fully independent. Thus in its Report entitled The Structure and Form o f Social Security Appeals (paras 121-126), the Council recommended that membership of the Social Security Appeals Tribunal should include persons from, or formerly from, the Public Service with experience in social security or welfare administration. Similarly, in its Repatriation Report (paras 210-216) the Council did not object to the continuance, in relation to the Veterans Appeals Board, of the existing practice of appointing Services’ Members to the Repatriation Review Tribunal chosen exclusively from lists submitted by ex-service organisations.

Public/Private Review Tribunal Hearings

47. There is a fundamental and general presumption that tribunal hearings should be held in public. This principle is in accordance with Article 14 of the International Covenant on Civil and Political Rights (1966) to which Australia is a signatory: All persons shall be equal before the courts and tribunals. In the determination of any criminal

charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a

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fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a demoncratic society, or when the interests of the private lives of the parties so requires, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice . . .

48. The Council has recommended the preservation of section 35 of the AAT Act which provides that hearings in the AAT are public, subject to the Tribunal’s powers to give directions on such matters as the presence of persons and the publication or disclosure of evidence given before the Tribunal (Review o f Pension Decisions Under Repatriation Legislation paras 303-305, Review o f Taxation Decisions By Boards o f Review paras

172-174). Specialist tribunals should also hold their proceedings in public except where sufficiently strong reasons to the contrary exist (Australian Federal Police Act 1979: Sections 38 and 39 paras 70-75). An exceptional situation existed in relation to the proposed Social Security Appeals Tribunal, where the Council recommended that

hearings be generally conducted in private subject to a discretion in the presiding member to admit any person in appropriate circumstances. The Council, by majority, concluded that this exception to the general principle was justified for the following reasons:

• it was not considered that in a two-tiered external appeals structure consistency in practice and procedure between the two levels was necessary or desirable; • the essential requirements of informality and expedition at the first level of review would be more likely to be achieved if hearings were conducted in private; • it was considered that the holding of public hearings was only one of several

methods which could be employed to provide independent scrutiny; • the fear of publicity was inhibiting to applicants given the personal nature of the issues involved in social security cases, and privacy was beneficial to the applicant; and • it was expected that the presiding member would exercise favourably the discretion

to admit members of the public where an applicant so requested.

No Prohibition on Representation of Parties

49. There should be no restrictions on the parties’ freedom to be represented in tribunals, if they wish, by persons of their own choice, including legal practitioners (Review of Pension Decisions Under Repatriation Legislation paras 223 and 306, Student Assistance Review Tribunals paras 21-22, Australian Federal Police Act 1979: Sections 38 and 39 paras 95-101, Australian Broadcasting Tribunal Procedures paras 87-89). An exceptional situation existed in relation to the proposed Social Security Appeals Tribunal where applicants were often underprivileged and the Council considered informality of proceedings to be desirable. In that case the Council recommended that appellants be entitled to be represented by any person of their own choice, but that the Director-General of Social Security by required to obtain the leave of the Tribunal to be legally represented and upon granting such leave, the Tribunal have the discretion to require the Department to meet the reasonable costs of providing suitable representation for an unrepresented appellant (The Structure and Form o f Review o f Social Security Appeals paras 146-147).

Obligation on Administering Department to Notify Subject of Decision of Appeal Rights

50. Primary decision makers should be obliged to provide persons affected by their decisions with information as to their appeal rights. In its Third Annual Report (para. 78), the Council recommended that the AAT Act be amended to provide that the maker of a reviewable decision who furnishes to a person affected thereby a written notification of

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the decision shall include with it a notice relating to the persons’s right to seek review under the Act. The Council has also recommended in individual reports that uniform notification of appeal rights procedures be adopted by specific administering Departments (The Structure and Form of Social Security Appeals para. 134, and see also Appendix 4 of the Sixth Annual Report for details of notices of rights of review used by various Departments). The Council has commenced work on a project which will consider in more detail the provisions which should apply to notification of rights of review.

Reasons for Decisions

51. As a general rule there should be an obligation on decision makers to provide reasons for administrative decisions which affect the interests of an individual. Reasoned decisions promote sound and consistent administration, and also provide the parties affected with an explanation as to why a particular decision has been taken and enable them to better judge whether to appeal against the decision. Reasons should be fuller and

more informative as the appellant progresses along the review structure — primary decision making, intermediate review, final review on the merits (Review of Pension Decisions Under Repatriation Legislation paras 178-180 and 221-222, The Structure and

Form of Social Security Appeals paras 148-149, Australian Broadcasting Tribunal Procedures paras 109-112, Citizenship Review and Appeals System para. 20, Australian Federal Police Act 1979: Sections 38 and 39 paras 63-69). The fullest of reasons of primary decision makers may be required to be provided under sections 28 and 37 of the Administrative Appeals Tribunal Act 1975. The Council recognised an exceptional

situation in relation to taxation decisions which caused it to recommend that these two sections should not fully apply because of the administrative burden caused by strict compliance with them (Review of Taxation Decisions by Boards of Review paras 169-171).

The Appropriate Tribunal — the A AT, an Existing or a New Specialist Tribunal?

52. In the absence of compelling reasons to the contrary, jurisdiction to review administrative decisions on the merits should be vested in the AAT rather than specialist tribunals. The Kerr Committee stated that a general appeals tribunal was to be preferred to ‘the proliferation, as occasion requires, of specialised tribunals to cover all cases’ and that

the broad policy in this regard should be to vest jurisdiction in the former body where ‘no real case exists for a specialist tribunal’ (P.P. No. 144/1971 at para. 233). The Bland Committee declared that ‘the proliferation of tribunals was wasteful of resources, uneconomical to the efficent functioning of government and calculated to cause public

dissatisfaction’ (P.P. No. 316/1973 at para. 123). In many of its studies, the Council has recommended that jurisdiction be vested in the AAT rather than specialist tribunals, not only because of this presumption in favour of the AAT, but because there have been positive reasons for preferring the AAT. The following features of the AAT have been

identified by Council as facilitating improved decision making:

• Flexibility in constitution. The AAT can be constituted most appropriately to meet the needs of the particular case in a way which assists in disposing of large numbers of cases should they arise. • High calibre of Members. The variety of jurisdictions and level of remuneration

offered assist in attracting and holding members with a wide range and variety of experience and expertise. Any need for specialist knowledge has been satisfied by the appointment of experts to the AAT. The presence of presidential members, some of whom are Federal Court Judges, has allowed complex legal issues and

important general principles to be dealt with authoritatively. The method and terms

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of appointment were designed to safeguard security of tenure and assure the independence of members of the AAT. • Advantageous procedures. The provision of preliminary conferences and directions hearings in the AAT has assisted in narrowing the range of disputes in areas

involving broad discretionary powers. The use of telephone hearings in appropriate cases has assisted in the economical and expeditious.resolution of cases. • Status o f AAT. The experience gained by the AAT in reviewing discretionary decision making has contributed to the soundness of its decisions in individual

cases and enhanced its authority in providing clear guidance for future decision making at all levels. The nationally co-ordinated organisation of the AAT has promoted uniformity in substantive and procedural approaches.

53. The following additional factors have been pointed to by the Council in favouring the conferral of jurisdiction on the AAT over other specialist tribunals. The non-existence of these factors has sometimes led the Council not to recommend that jurisdiction be conferred on the AAT.

• Existing analogous jurisdiction in the AAT (Review o f Import Control and Customs By-law Decisions para. 27, Commonwealth Employees’ Compensation Tribunal para. 46). • Independence o f AAT members (Review o f Taxation Decisions by Boards o f Review

paras 154 and 88-97, Review o f Pension Decisions Under Repatriation Legislation paras 241-249). The desirability of having representatives of employers and employees as members of the proposed tribunal for review of employment matters was a factor in the Federal Police Act 1979 Report in the Council not recommending conferral of jurisdiction on the AAT (para. 42). • Insufficient volume o f appeals to justify the establishment o f a specialist tribunal

(Review o f Import Control and Customs By-law Decisions para. 27). • Similar nature o f proceedings of existing specialist tribunal and the AAT (Commonwealth Employees’ Compensation Tribunal para. 48, Review o f Taxation Decisions By Boards of Review para. 150). The procedures under which the

Review Committees set up by the Legal Aid Ordinance 1977 were required to operate, including limitations as to standing, public access and the adjudicative process, were considered by the Council not appropriate to be accommodated by the AAT (Fourth Annual Report para. 94).

54. The presumption in favour of conferring new jurisdiction on the AAT is more easily rebutted where there is an existing specialist tribunal than where there is no such specialist tribunal. Some members of the Council took the view in the Student Assistance Review Tribunals Report (para. 16) that, where the existing specialist tribunal was working efficiently and economically in a field which presented special features, it was undesirable to disrupt unnecessarily the existing arrangements by conferring its jurisdiction on the AAT.

Recommendatory/Determinative Powers

55. Generally, there should be no restriction on the AAT’s determinative powers under section 43 of the AAT Act, except where the need for a recommendatory jurisdiction is inherent in the nature of the matter subject to review. Where the AAT’s juridiction is recommendatory there should be an obligation on the relevant Minister to state in Parliament the reasons for not accepting the recommendations of the AAT.

56. The Council recommended the removal of the limitation on the AAT’s determinative powers when reviewing decisions of the Minister for Immigration and Ethnic Affairs to deport an immigrant or alien consequent upon a criminal conviction. This recommendation was supported by the following arguments:

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• the recommendatory jurisdiction was inconsistent with the AAT’s character, since its function was to determine the correct or preferable decision in the case, and not to act as a Ministerial adviser. • it was unduly onerous on an applicant to incur considerable hardship and expense in

applying to the AAT with no guarantee that he would not be deported even if successful before the Tribunal. • a recommendatory jurisdiction was not inherent in the nature of the subject matter ('Third Annual Report para. 87).

57. The Attorney-General advised the Council that the Government would not remove this fetter on the AAT’s powers and accordingly the Council recommended that where the Minister decided inconsistently with a recommendation of the AAT, he should report his decision and the reasons for it to Parliament as soon as practicable. The Council took into account the following considerations when formulating this recommendation:

• where the AAT’s power was recommendatory, refusals to accept its recommendations should be rare, otherwise the Tribunal’s status and authority would be jeopardised; • as the AAT was a public forum which heard submissions from all parties and gave

detailed, reasoned decisions, it would be inappropriate if its recommendations were rejected otherwise than in public and for stated reasons; and • the process of accounting to Parliament conformed with the principle of ministerial responsibility (Fourth Annual Report paras 169-170).

58. The fact that the proposed review tribunal’s powers would only be recommendatory was a factor in the Council’s Report on the Federal Police Act 1979 in not recommending that jurisdiction be conferred on the AAT (paras 42 and 60-62).

59. An exception to the general principle that there should be no restriction on the AAT’s determinative powers was expressed in the Council’s Report entitled Review o f Decisions Under the Broadcasting and Television Act 1942 (paras 116-130). The Council concluded that the AAT’s jurisdiction should be recommendatory in relation to reviewing exercises of powers involving technical and planning matters where there was a relationship of interdependence between the decision under review and other decisions. The Council distinguished the Minister’s powers in that case from those involved in deportation matters on the basis that a recommendatory jurisdiction was inherent in the

subject matter of the former. The interdependence between decisions and the need to consider issues beyond the immediate merits of an individual exercise of power meant, in the Council’s view, that these decisions must ultimately be the responsibility of the authority responsible for planning the use of the frequency spectrum, the Minister for

Communications. The Council recommended that in any case where the Minister did not fully accept the AAT’s recommendation, he should report the reasons for his decision to Parliament within fourteen sitting days. Similarly, in relation to the Australian Federal Police Promotions Appeal Board, the Council recommended that where the Commissioner of Police refused to accept a recommendation of the Board he should

provide reasons for such refusal (Australian Federal Police Act 1979: Sections 38 and 39 para. 66).

Restrictions on the Constitution of the AAT

60. There should be no restrictions on the President’s power under section 20 of the AAT Act to determine the constitution of the AAT for particular proceedings. The Council recommended in its Third Annual Report that enactments conferring jurisdiction on the AAT should not prescribed that the Tribunal when exercising that jurisdiction be constituted by or include a presidential member and that existing prescriptions to this effect be repealed (see also Review of Pension Decisions Under Repatriation Legislation

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paras 280-283 and Review of Decisions Under the Broadcasting and Television Act 1942 paras 152-154, Commonwealth Employees’ Compensation Tribunal para. 64). Subsequent to this recommendation, prescriptions relating to the constitution of the AAT in its customs, trade marks and patents jurisdictions were repealed. Pending further consideration by the Government of the Council’s general recommendation that all existing prescriptions be repealed, the Council made a pragmatic recommendation in an interim report that legislation be amended as necessary to enable the AAT to be constituted in its Migration Act 1958 jurisdiction by any non-judicial as well as any judicial presidential member (Rights o f Review Under the Migration Act 1958 and Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal

paras 26-30).

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CHAPTER 4.

THE COUNCIL’S WORK PROGRAM

61. The impetus for a Council project may come from one of several sources. The Attorney-General might request the Council to give its advice on a particular topic and the Council’s normal practice in these circumstances is to give priority to any such request. A project might also be commenced where the Council’s attention is drawn to some aspect of adminstrative review which involves an issue of general principle following a debate in the Parliament, a report by a Parliamentary Committee or correspondence received from a

member of the public. Finally, a project might be commenced following the Council’s independent identification of an area which it considers requires detailed examination. Practical considerations have, of course, to be taken into account in determining the

current work program. There are many potential projects which might be undertaken but the Council’s capacity is limited by the small size of its Secretariat (an increase has been sought, see para. 23), and the inherent complexity and extensive scope of many of its existing projects.

Current Work Program

62. The projects which make up the Council’s current work program and the state of their progress are described below.

New Projects

63. Two new projects were commenced during the year. Following a request from the Attorney-General made in November 1983, the Council began a project on the Structure and Form of Social Security Appeals. A Report on this topic was transmitted to the Attorney-General on 12 April 1984 and is summarised in Chapter 5. The other new project concerns the law and practice regarding notification of rights of review. Work on this project began at the end of the year under report and its first stage involves the collection of information concerning the extent to which primary decision makers

currently notify individuals of the existence of a right of appeal to the A AT. Later stages of the project will involve consideration of notification of review rights in relation to other tribunals reviewing decisions on their merits as well as review by the Ombudsman and the courts.

Other Projects

64. The following projects were commenced in previous years and were not completed during the course of the year under report.

65. Impact. As noted in previous Annual Reports, it was decided to conduct four case studies of selected departments and statutory authorities as preliminary steps to undertaking a more extensive survey of the institutional and community impact of administrative law reforms. These case studies concern the administration of —

• the Commonwealth superannuation scheme by the Commissioner for Superannuation and the Australian Government Retirement Benefits Office; • the Australian Capital Territory by the Department of Territories and Local Government;

• the Commonwealth social security system by the Department of Social Security; and • the Customs Service by the Department of Industry and Commerce.

66. Research on all four case studies has now been completed. The form in which the material and findings associated with those case studies will ultimately be reported is yet

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to be finalised. A draft integrated report will be prepared for the Council’s consideration as soon as resources become available. At that time a decision is also likely to be taken on whether to recommend publication of the individual case studies.

67. Migration. Work on the Council’s project on review of decisions under the Migration Act 1958 and related legislation has been under way for several years. Progress on this project has been affected, however, by such factors as changeovers in Secretariat staff, the large number and disparate nature of migration decisions that have had to be considered, and the need to devise a system of review which takes account of the special features of migration administration. Considerable progress has been made in recent

months and a draft Report was considered by the Council at its meeting in June 1984. A final report is expected in the 1984-85 financial year.

68. Customs. A detailed examination of discretions under Customs legislation was carried out during the year and a Discussion Paper has been prepared by the Council’s Secretariat for circulation to interested groups and persons. A draft Report will be prepared for the Council’s consideration which will take account of submissions received in response to the Discussion Paper.

69. In June 1984 the Attorney-General invited the Council to consider rights of review under anti-dumping legislation in the next stage of its Customs project. Work commenced during the year in preparing an Issues Paper on this topic.

70. AD(JR) Act. . As reported in the Seventh Annual Report (para. 56), the

Attorney-General has invited the Council to review the operation of the AD(JR) Act. An Issues Paper was prepared by the Secretariat and has been circulated to interested groups and individuals. It is proposed to hold seminars and hearings early in the 1984-85 financial year to promote discussion and collect information on the need to amend any aspect of the legislation.

71. Ombudsman/AAT. A Discussion Paper on the jurisdictional interrelationship between the Ombudsman and the AAT was prepared and circulated during the year and 12 submissions were received. A draft Report is currently being prepared for the Council’s consideraton.

72. Air Navigation. Progress on the project concerning review of decisions under Air Navigation Regulations has been handicapped by the need to devote resources to other projects. It is expected, however, that work will resume soon on this project as other projects are completed.

73. Costs Before Administrative Tribunals. Little progress has been made during the year on this project; however, it is expected that the position will be remedied as suitable staff become available to develop the project. As noted in previous Annual Reports, Professor Enid Campbell has agreed to assist the Council in this project in her capacity as an Honorary Consultant.

74. Damages. It has been noted in previous Annual Reports that this project was being undertaken by Mr David Mitchell and Professor Colin Phegan in their capacities as Honorary Consultants. The amount of time that they have been able to gjve to the project has inevitably been affected by their other commitments and little progress has been possible during the year. Towards the end of the year, Professor Phegan was appointed a Full-time Commissioner of the New South Wales Law Reform Commission and he found it necessary to resign his position as Honorary Consultant to the Council.

75. Immunities, Privileges and Time Limits Affecting Statutory Authorities. It was noted in the Council’s Fifth Annual Report (para. 63) that the Council was considering commencing a project dealing with immunities, privileges and time limits affecting statutory authorities. Competing priorities and lack of availability of staff have prevented any work being done on this project but inquiries are currently being conducted with a

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view to engaging the services of an outside consultant to assume responsibility for preparing a paper on the topic.

‘Admin Review’ Bulletin

76. As noted in Chapter 1, publication commenced during the year of a Council bulletin called Admin Review. The first issue was prepared during June and was at the printers at the time this Report was written. The bulletin will be published on a quarterly basis. It deals with recent developments in administrative review and has sections devoted to the work of the Council, the AAT, the Ombudsman and judicial review. Significant legislative developments are noted, as are important decisions of the AAT and the courts affecting administrative review.

77. Inquiries regarding subscriptions to the bulletin should be addressed to the Australian Government Publishing Service.

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CHAPTER 5.

SUMMARY OF 1983 - 84 REPORTS AND RECOMMENDATIONS

78. This chapter summarises the reports and recommendations made by the Council during the year. The date upon which each report or recommendation was forwarded to the Attorney-General appears in the heading of each summary. In the interests of brevity, the summaries necessarily omit some details of the Council’s recommendations and some explanatory material. For a full appreciation of the Council’s views, reference should be made to the full reports where these are publicly available.

79. During the year the following Council reports were tabled in the Parliament on the dates indicated:

• Review o f Taxation Decisions by Boards of Review, Council Report No. 17 (15 September 1983). • Compensation (Commonwealth Government Employees) Act 1971 — Amendments, Council Report No. 18 (3 November 1983). • Rights o f Review Under the Migration Act 1958 and Related Legislation —· Interim

Report on the Constitution o f the Administrative Appeals Tribunal, Council Report No. 19 (15 September 1983). • Review o f Pension Decisions Under Repatriation Legislation, Council Report No. 20 (16 November 1983).

Summaries of the first two of these four reports were included in the Council’s Seventh Annual Report.

Rights of Review Under the Migration Act 1958 and Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal (transmitted 4 August 1983)

Introduction

80. As was indicated in its First Annual Report (para. 37), the Council early in its history prepared a work program which included examination of immigration and citizenship powers. Given its magnitude, the project was dealt with in stages. Firstly, a report entitled Citizenship Review and Appeals System was transmitted to the Attorney-General on 13 June 1980 and was tabled in the Senate on 29 October 1981. Secondly, work on a report on the Migration Act and related legislation was commenced. The Council understood that the matter of the constitution of the AAT for the purposes of reviewing migration decisions required urgent consideration. Accordingly, the Council dealt with this matter in an Interim Report to the Attorney-General.

Relevant Law

81. The AAT’s existing jurisdiction to review migration decisions was restricted to reviewing orders made by the Minister for deportation of an alien or an immigrant consequent upon a criminal conviction, and decisions of the Minister that a person was not a fit and proper person to act as an immigration agent. (No application for review of the latter decisions have been received by the AAT). Sub-section 66E(4) of the Migration Act 1958 provided that the AAT would be constituted in its migration jurisdiction by a presidential member alone. Sub-section 40(1) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 defined a ‘presidential member’ for the purposes of the Tribunal’s migration jurisdiction as a Judge of the Federal Court.

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Identified Problems

82. The Council identified the following problems in reviewing certain deportation orders. These resulted from limitations in the constitution of the A AT, and were:

• Workload o f the AAT. These applications normally took in excess of two sitting days to hear. • Availability of Federal Court Judges. With the exception of the President of the AAT, judicial presidential members were primarily attached to the Federal Court

and had only limited time to undertake Tribunal work. • Pressure on the President of the AAT. The cumulative effect of the above two factors imposed a heavy burden on the President and derogated from his responsibilities in other jurisdictions. • Inappropriateness of review by Judges in all cases. In the Council’s opinion, it was

wasteful of scarce judicial resources to involve Judges of the Federal Court in the hearing of every application for review, many of which required the Tribunal to establish the relevant facts and to apply established principles to those facts.

Reform

83. The Council concluded that these problems warranted reform of the restriction on the constitution of the AAT. In reaching this conclusion the Council took account of the fact that the relevant decision to be reviewed was made by a Minister and involved Ministerial policy. The following options for reform were considered by the Council:

• Removing the prescription on the AAT’s constitution. • Allowing the AAT to be constituted by any Presidential Member.

84. The Council preferred the last option as an immediate and short term solution to the above identified problems and accordingly recommended that legislation be amended as necessary to enable the AAT to be constituted in its Migration Act jurisdiction by any presidential member. Effect was given to the Council’s recommendation by the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 (see paras 129-130 and 176).

Review of Pension Decisions Under Repatriation Legislation (transmitted 16 September 1983)

Background

85. In December 1978, the Attorney-General invited the Council to comment on the Repatriation Acts Amendment Bill 1979. The Council's comments on this matter were forwarded to the Attorney-General on 26 February 1979, and were summarised at paras 55-63 of the Council’s Third Annual Report (1979). It was resolved by the Council that the review of repatriation decisions should be monitored and re-examined at the end of a 2 year period.

Identified Deficiencies

86. The Council identified the following deficiencies in the existing systems of primary decision making and review:

• Primary decisions were often made on the basis of incomplete evidence. • Claimants were frequently not given adequate explanations of the reasons for decisions. • Claimants were often inadequately represented.

• There were a large number o f appeal and review avenues. Adverse decisions could be reviewed or reconsidered by the Repatriation Commission, the Repatriation

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Review Tribunal (RRT), the A AT, the Federal Court, the High Court and the Ombudsman.

The consequences of these deficiencies were seen by the Council to be as follows:

• Not enough claims were allowed by primary decision makers and an unnecessarily large number of cases proceeded to hearing before the RRT. • Hearings before the RRT were often in substance primary consideration of evidence rather than in the nature of a review. • Undue delays occurred in the final disposition of cases.

Reform

87. In the Council’s opinion, the existing cumbersome structure of multiple tiers of primary and review decision making produced substantial delays, and was both unnecessary and wasteful of resources. The reforms which, in the opinion of the Council, should be implemented involved a three-tiered framework for decision and review consisting of: primary decision making; intermediate review; and final review on the

merits.

Primary Decision Making

88. It was considered by the Council that it would be more desirable for reasons of economy and expedition that primary decisions be taken by individual delegates of the Repatriation Commission rather than by Repatriation Boards which exercised their jurisdiction in panels of three. The Council recommended that Repatriation Boards be

abolished and that all claims be determined in the first instance by delegates of the Repatriation Commission. It was further proposed that such a delegate should be: empowered to seek further material from the claimant and/or the Department; authorised to hold a voluntary informal interview with the claimant upon the request of either party; and required to provide the claimant with a written statement of the reasons for a primary decision and the terms of that decision.

Intermediate Review

89. It was the Council’s view that a two-tiered system of external review was desirable in a large volume jurisdiction. It was envisaged that many appeals would be resolved by the intermediate review tribunal which should be designed to achieve a relatively

expeditious, economical and informal means of review. The Council considered which of the following bodies should perform the functions of the intermediate review tribunal — the Repatriation Commission, Repatriation Boards, the RRT, or a new tribunal.

90. The first option was rejected by the Council as it considered that an independent tribunal was necessary if the problems of delay and the large volume of cases going to the final review tribunal were to be alleviated. In relation to the second option, the Council viewed the role of the proposed intermediate review tribunal as so fundamentally different from the Board’s current and traditional function of primary decision making, that it would be undesirable for the Boards to assume that new role whilst retaining their existing structure and appearance. The Council concluded that the existing practice of claimants appealing to the RRT almost as a matter of course where an adverse decision was obtained would be more likely to continue if the RRT were to be retained as an intermediate review tribunal. The Council preferred the last option as the establishment of a new tribunal would emphasize the fact that the Council’s proposed system of repatriation decision making was significantly different to the present system.

91. Accordingly, the Council recommended that:

• A Veterans’ Appeals Board (VAB) be established under the Repatriation Act 1920

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as an intermediate review tribunal hearing appeals on the merits from primary decisions made by delegates of the Commission. • The claimant should have a right to appeal to the VAB, and in specified cases there should be automatic referral to the VAB.

• Upon lodgment or referral of an appeal to the VAB the claimant or applicant should be supplied with a copy of a report compiled by the Secretary of the Department of Veterans’ Affairs pursuant to section 24AB of the Repatriation Act 1920, and be allowed to add or comment upon the material in the report within a specified time

limit.

• The Repatriation Act 1920 should be amended to provide for consistent appeal rights with respect to Service Pensions and other repatriation pensions.

92. In the Council’s view, the VAB should be modelled to some extent on the RRT, but consideration was also given to ensuring that the VAB was endowed with powers and procedures which would enable it to discharge its novel functions. The Council recommended that in regard to composition and constitution, places of sitting,

appointment and qualifications of members (including Services’ Members) and terms of appointment, the VAB should be modelled on the RRT. The presence of Services' Members in the Boards and the RRT enhanced the confidence of claimants in the decision making and review processes and was strongly supported by ex-service organisations. A

knowledge of service conditions, although only one of the qualities desirable for selection as a VAB member, would assist a decision maker in properly appreciating the merits of a claim. The Council considered whether the existing practice of appointing Services’ Members to Repatriation Boards and the RRT exclusively from lists submitted by ex-service organisations should be duplicated with the establishment of the VAB. The

Council decided that this well-established practice should continue in relation to the intermediate review body, provided that the final review tribunal was fully independent.

93. In addition, the Council recommended that legislation should provide that the VAB:

• be empowered to conduct oral hearings, summon witnesses, take evidence on oath or affirmation, and require production of documents; • be required to provide a hearing if the claimant so requested, and to offer the opportunity of a hearing before reaching an adverse decision;

• conduct proceedings with as little formality and technicality, and with as much expedition, as the requirements of all relevant enactments and a proper consideration of the matters before the VAB permitted;

• be required to give its decisions in writing and to state the reasons for its decisions, including findings of fact, and provide such reasons in writing if requested by one of the parties within 28 days of such a request being made; • place no restrictions on the claimant’s or applicant’s freedom to be represented by a

person of his own choice.

94. In further rationalising the system of appeals and review, the Council recommended that the Repatriation Commission’s existing appellate functions be repealed but that the Commission retain its powers of review under sections 31 and 98 of the Repatriation A ct 1920.

Final Review on the Merits

95. The Council considered which of the following bodies should be selected as the final review tribunal: the RRT; the A AT; or a specialist administrative appeals tribunal. The Council decided in favour of the AAT over the RRT by taking cognizance of the following aspects of the AAT’s operations as opposed to the RRT:

• Independence. In the repatriation context, it was important that the final review body should be and be seen to be independent of the Repatriation Commission, the Department of Veterans’ Affairs, ex-service organisations, claimants and their

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representatives. In the Council’s view, the AAT best fulfilled these needs in providing the appearance and the reality of independence. The RRT was closely connected with the Department of Veterans’ Affairs in terms of staffing, funding and filing of claims. Recommendations for the appointment and re-appointment of members to the Tribunal were usually made to the Minister through the Department or the Commission. Services’ Members were selected exclusively from lists submitted by ex-service organisations to the Minister, and their re-appointment was subject to renomination by such organisations. • Qualifications fo r membership. The Council noted the difference in the range and

variety of experience, expertise, and level of remuneration between members of the RRT and those of the AAT. • Constitution. Flexibility in the manner of constituting the final review tribunal in repatriation was regarded as particularly important given the fact that cases varied

widely in the degree of complexity and range of issues they raised. Because of the wide range of available members, the composition of the AAT could be varied both within special jurisdictions and over all its jurisdictions, which would assist in disposing of a large number of cases. The provisions relating to the RRT did not permit such flexibility. • Powers and procedures. The powers and procedures of the AAT and the RRT were

similar in some respects. Flowever, the powers and procedures of the AAT were superior in terms of flexibility and promoting settlement, e.g. the holding of preliminary conferences.

96. It was concluded by the Council that it would not be appropriate, in the absence of special reasons to the contrary, to establish a specialist tribunal in the repatriation area. The AAT was an appropriate forum which had an existing repatriation jurisdiction in hearing referrals from the RRT. The Council’s conclusion was consistent with those of the Kerr and Bland Committees which both envisaged the development of a general administrative appeals tribunal. Accordingly, the Council recommended that the Repatriation Act 1920 be amended so as to provide that the RRT be abolished and that jurisdiction to review decisions of the VAB be conferred on the AAT.

97. The Council concluded that, should the AAT be made the final review tribunal, consequential reforms would be required in respect of the following matters, for the purpose of review of repatriation decisions:

• The AAT should review the original decision, as affirmed or varied by the VAB. • Where the claimant appealed to the AAT, the respondent should be the Repatriation Commission and where the Commission appealed, the respondent should be the claimant. • No restriction should be placed on the parties’ freedom to be represented by persons

of their own choice. • Provision should be made for payment of expenses and allowances to applicants in respect of attendance at Tribunal hearings. • The AAT should be constituted by or include at least one member who is an

ex-serviceman. The final recommendation was made by the Council bearing in mind that the effect of such a requirement would be to enhance veterans’ confidence in the repatriation review system whilst the knowledge of such members of service conditions would also assist the Tribunal in properly appreciating the merits of a claim and in dealing with issues likely to arise in the repatriation jurisdiction. The Council attempted to strike a balance between the perceived need to preserve the independence of the AAT, and the desirability of ensuring that proper expertise was available to enable the AAT to determine a wide range of issues on their merits. The Council did not recommend that provision be made for nomination of AAT members by ex-service organisations as this would have unacceptably weakened the independence of and restricted the constitution of the AAT.

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Costs and Effects o f ΑΛΤ Review

98. In making its primary recommendation that the repatriation jurisdiction currently vested in the RRT be absorbed into the AAT’s jurisdiction, the Council considered the likely costs and effects. The Council emphasized that the costs of administrative review could not be looked at in isolation, but had to be balanced by a consideration of the

benefits likely to accrue from such review. The above recommendations were designed to achieve an improvement in the quality of decision making at all levels and to lead to fewer and more expeditious appeals.

99. The majority of the Council’s recommendations were reflected in the Repatriation Legislation Amendment Bill 1984, which was introduced into the Senate by the Minister for Veterans’ Affairs, Senator the Hon. A.T. Gietzelt, on 29 May 1984 (see para. 174).

The Structure & Form of Social Security Appeals (transmitted 12 April 1984)

Background

100. Social security appeals were identified early in the Council’s history for inclusion in its program of research (see First Annual Report para. 37). In June 1980 the Council reported to the Attorney-General on Social Security Appeals and its report was tabled in Parliament on 2 June 1981. The Council recommended in that report that Social Security Appeals Tribunals (SSATs) be abolished and replaced by an improved Review Officer structure in the Department of Social Security (DSS) and that provision be made for review by the AAT. The Council’s recommendations were not implemented. However, the Attorney-General requested the Council in November 1983 to give further consideration to a two-tiered structure of review in social security appeals.

Developments

101. As from 1 April 1980, the AAT was given jurisdiction to review decisions of the DSS which differed from the recommendations of SSATs, and also matters certified to involve an important principle of general application and referred by the

Director-General. At the time of writing of the Council’s earlier report there had not been a substantial accumulation of experience of AAT appeals. Since that earlier report, the Council has gained more experience in relation to two-tiered structures of appeals in jurisdictions involving large numbers of decisions. Different considerations applied in the Council’s later report as SSATs constituted the first level of a proposed two-tiered structure of appeal whereas, in the Council’s earlier report it was envisaged that the AAT would constitute the single level of review. After the writing of the Council’s earlier report, there was an extension of SSATs’ jurisdiction to include medical appeals, which caused increases in both the number of appeals and periods of delay.

Identified Problems

102. The Council identified the following problems with the existing structure of social security appeals:

• Absence o f a legislative foundation for SSATs. In the Council’s view, the lack of a statutory base detracted from SSATs’ status and perceived independence and implied that their continuity may have been precarious. • SSATs’ recommendatory power. It was considered that the SSATs’ lack of

determinative power undermined public confidence and promoted dissatisfaction in some appellants. The inefficiency of having the DSS reconsidering decisions after

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appeals to SSATs was underlined by the fact that during 1982-83 the DSS rejected overall only 5% of SSAT recommendations that were in favour of appellants. • Inclusion o f serving DSS officers as members o f SSATs. Serving DSS officers on secondment were appointed by the Director-General. unlike other members, who

were appointed by the Minister. • Procedural differences among SSATs. It was found by the Council that there were significant variations in procedure among SSATs both within and between States and Territories. The Council regarded as a serious deficiency the absence of a

formal mechanism by which procedural differences between SSATs could be authoritatively and formally resolved: • Absence o f control over progress o f appeals. In the Council’s opinion, the absence of any formal powers of control over the progress of appeals on the part of SSATs

undermined their independence and contributed to lengthy delays in processing appeals. • Appellants’ access to material. The Council was concerned that decisions on matters relating to disclosure of documents were taken by the DSS itself without

any direct involvement by SSATs. • Unnecessary delays. In the Council’s opinion, unnecessary and avoidable delays were caused by the practice of not setting down appeals for hearing by SSATs until the DSS had reconsidered primary decisions, and the subsequent process of the

DSS considering SSAT recommendations. • Internal review. Some submissions to the Council commented on the high number of appeals to SSATs that were conceded by the DSS notwithstanding that internal review had previously occurred and the inadequacy of RO review. • Inadequacy o f advice and assistance. It appeared to the Council that there was an

absence of a developed and adequate system of advice and assistance for social security claimants.

Reform

103. It was the Council’s view that the above identified problems with the system of social security appeals warranted reform. However, the changes proposed by the Council were more in the nature of a progressive evolution and refinement of the existing system than a radical reform thereof. In the Council’s opinion, a two-tiered structure of external appeals was to be preferred to a single-tiered structure in a high volume jurisdiction such as social security. This conclusion was based on the Council’s wider experience of high volume jurisdictions, such as immigration and repatriation, gained since its earlier report, Social Security Appeals.

104. The Council emphasised the essential need to appreciate the distinct functions and roles to be performed by the first and final review tribunals. The first tier of review was designed to provide economical, expeditious and informal review, whereas the final level of review was designed not only to determine individual cases filtered through the first review body, but also to develop general principles for the guidance of both primary decision makers and the first review body alike. It was the Council’s opinion that different standards of procedural fairness should apply at the two levels of appeal in the two-tiered structure.

First Tier o f External Review: Social Security Appeals Tribunal

105. The Council considered that the lower review tribunal should be organised on a national basis and accordingly, it would be preferable to refer to it as ‘the SSAT’, rather

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than by a title appropriate to a series of autonomous tribunals. The following recommendations were made by the Council in relation to the proposed SSAT:

• That it be given a legislative foundation. The Tribunal's independence from the DSS would thereby be underlined, and it would be provided with greater permanence, status and authority.

• That it be granted determinative powers. This would enhance the Tribunal’s credibility and independent status, as well as contribute to a reduction in delay in finalising appeals.

• That certain conditions apply to its membership. Namely, that members possess relevant skills and expertise and include former or current public servants with experience in social security or welfare administration. The Council considered the citicisms made in some submissions of the practice of including serving DSS officers on existing SSATs. However, the majority of the Council decided that a perceived lack of independence on the part of one member of a first-tier review

tribunal was acceptable as long as the final review authority was fully independent. The Council wished to avoid the ensuing problems of undue formality and adversarial atmosphere by using DSS officers as clerks, advisers or advocates in proceedings. Additional recommendations as to methods and terms of appointment

were made by the Council in relation to Public Service members in order to emphasise their independence.

• That certain conditions apply to its constitution. It was concluded by the Council that the SSAT should be constituted by multi-member panels rather than single-person panels because of the range of expertise and skills required on the part of the panel to cater for the special needs of social security claimants. In order to promote uniformity of procedures and consistency of decision making the

Council recommended that a national Chairman and at least one Deputy Chairman in each State be appointed to the SSAT.

• That it be empowered to make special orders. Because of financial hardship suffered by some appellants, it was recommended that the Chairman or his delegate be empowered to order in special circumstances the interim payment of a benefit or to stay the cancellation or suspension or reduction in rate of a benefit, pending the determination of an appeal. • That it provides an informal, expeditious and economical review process. To this

end the Council made various recommendations as to the powers of the SSAT and the conduct of proceedings. • That parties be in a position to know the case they have to meet at a hearing. It was recommended by the Council that parties be required to provide the Tribunal with

all relevant reports and documents within a specified period and that the SSAT be responsible for providing parties with relevant information lodged with it by the other party prior to hearing. • That provision be made for representation of parties. In the Council’s opinion

appellants should be entitled to be represented by persons of their own choice, including legal practitioners, and the Director-General should be similarly entitled, subject to the leave of the Tribunal and with it having a discretion to require the DSS to meet the reasonable costs of providing suitable representation for the appellant. • That it provide reasons for its decisions. A brief but adequate statement of reasons

for the SSAT’s decisions would provide guidance for the DSS’s decision making and would also assist both parties in determining whether or not to appeal to the A AT. e That it generally conduct hearings in private. The Council concluded by majority

for the following reasons that hearings before the SSAT should be held in private,

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subject to a discretion in the presiding member to admit any person in appropriate circumstances:

— it was not considered that in a two-tiered external appeals structure consistency in practice and procedure between the two levels was desirable or necessary; — the essential requirements of informality and expedition at the first level of review would be more likely to be achieved if hearings were conducted in

private;

— it was considered that the holding of public hearings was only one method of providing independent scrutiny. Other methods recommended by the Council were: AAT and judicial review of hearings; requiring the SSAT to prepare Annual Reports; and the discretion to admit any persons to proceedings.

• That its members and witnesses be given protection and immunity. • That appellants be reimbursed fo r expenses in respect of attendance at hearings. • That review by a Review Officer not be a prerequisite for lodging an appeal with the SSAT.

Final Review: Administrative Appeals Tribunal

106. The Council considered that the AAT had operated satisfactorily as the final tier of review in social security cases and that the following minor changes only were recommended:

• that section 15A of the Social Security Act 1947, which deals with appeals to the AAT under the existing system, be repealed and replaced by a new provision conferring jurisdiction on the AAT to hear appeals from the SSAT brought by either a claimant or the Director-General; • in addition, that the Chairman or a Deputy Chairman of the SSAT be empowered to

refer an appeal to the AAT where an important principle of general application was involved; • that similar appeal provisions be established in relation to decisions under the Health Insurance Act 1973 concerning disadvantaged persons and decisions of the

Director-General of Social Security acting on behalf of the Commonwealth to recover debts arising under regulation 22 of the Migration Regulations; • that provision be made for payment of expenses and allowances to appellants in respect of attendance at Tribunal hearings.

Miscellaneous Matters

107. It was the Council’s view that the benefits of the proposed two-tiered structure of external appeals would not be fully realised unless appellants had access to independent sources of advice and assistance concerning social security law and the review processes. To this end, the Council recommended that a national survey of the needs of social security claimants be conducted.

108. The Council considered the likely costs of its proposals concerning the structure and form of social security appeals. It regarded that additional costs created by its proposals had to be balanced against the benefits that would be likely to flow from the new system. The Council’s recommendations were designed to facilitate the resolution of the vast majority of external appeals at the lower level of appeal which was expected to be expeditious, economical and informal.

109. Two members of the Council, the Hon. Justice M.D. Kirby and Mr A.D. Rose, dissented from the majority recommendations that panels of the SSAT contain a Public

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Service member and that SSAT hearings generally be conducted in private, and a statement of their reasons was included in the Report.

Migration Amendment Bill 1983 (transmitted 4 November 1983)

110. The Council expressed its concern to the Attorney-General over the absence of a provision for review of the exercise of a proposed new discretionary power to deport non-citizens who have been convicted of ‘trafficking in dangerous drugs’, which was proposed to be conferred on the Minister for Immigration and Ethnic Affairs by the

Migration Amendment Bill 1983. The amendment in the Bill which related to section 14 of the Migration Act 1958 was not proceeded with (see paras 131-132).

Report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill 1983 (transmitted 4 May 1984)

111. The Council in its report to the Attorney-General considered aspects of the Senate Standing Committee’s report relating to judicial review and the role of the Ombudsman. The Committee’s recommendation that the proposed National Crime Authority be excluded from the operation of the Administrative Decisions (Judicial Review) Act 1977 was not supported by the Council. It was further suggested by the Council that consideration be given to the questions of whether applications for review under that Act should only be by special leave of the Federal Court in order to prevent abuse of the Court as a delaying tactic, and whether Schedule 2 of that Act should apply to the proposed

authority. The Council did not regard the Committee’s recommended procedure whereby an aggrieved individual could make a summary application to a Judge as providing adequate review.

112. In relation to the Committee’s recommendation that the operation of the proposed Authority be excluded from the jurisdiction of the Ombudsman, the Council pointed to the effective review already provided by the Ombudsman in matters involving criminal investigation. Attention was also drawn by the Council to sub-section 3(1) of the Ombudsman Act 1976 which excluded from investigation bodies which had judges as members. As the proposed Authority may include among its members a Judge, the Council submitted that the exclusion in the Ombudsman Act should be reconsidered in the light of the use of Judges in a wide variety of different capacities which may not have been formerly envisaged.

113. The National Crime Authority Act 1984 was assented to on 15 June 1984 and provides for:

• review of the Authority’s functions by the Parliamentary Joint Committee on the National Crime Authority; • application of the AD(JR) Act; and • review by the Federal Court of decisions of the Authority that a person is not

entitled to refuse to produce a document.

There is no provision in the Act for review by the Ombudsman of the Authority’s operations.

Merit Protection (Australian Government Employees) Bill 1984 (transmitted 7 June 1984)

114. The Council made an interim report to the Attorney-General indicating features of concern to it in the Merit Protection (Australian Government Employees) Bill 1984 which

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proposed to set up a Merit Protection and Review Agency. The following issues were outlined by the Council as requiring further consideration:

• whether review of decisions relating to employment should be conducted differently to review of decisions affecting citizens generally; • whether a new tribunal should be created or whether the Ombudsman and/or the Administrative Appeals Tribunal could exercise the review functions of the

Agency; • whether it was desirable to allow one body to perform investigative, supervisory, advisory and review functions; • whether clause 55 of the Bill created an overlap of jurisdiction between the

proposed Agency and the Ombudsman; • whether the manner of conferring the review jurisdiction on the Agency (clause 39) was satisfactory having regard to the definition of ‘enactment’ decided in Chittick v Ackland (1984) 53 ALR 143.

Consultation with the ARC (transmitted 13 June 1984)

115. The Council wrote a letter to the Attorney-General on the general need for departments and authorities to consult with the Council in regard to new legislation affecting administrative review. It was recognised by the Council that urgency is often required in dealing with legislative proposals and that the normal processes of consultation must sometimes be abridged. The Council, however, emphasised that it was generally able to give advice at short notice under its recently established procedures. Its ability to act expeditiously was demonstrated in its recommendations in relation to the Report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill 1983. It was recommended by the Council that the Attorney-General issue instructions to all departments about the need to consult with the Council where legislative or policy proposals with administrative review implications are under consideration. It was also suggested by the Council that a suitable entry be included in the Legislation Handbook and the Cabinet Handbook.

116. In its letter, the Council expressed concern to the Attorney-General over the lack of early consultation with it on matters which had raised issues within its statutory charter over the preceeding eighteen months. Examples where the Council had not been afforded an early opportunity to consider and comment upon proposals were: further exemptions from review under the AD(JR) Act; the enactment of privative clauses in relation to various decisions; the insertion of section 39B and sub-section 44(2A) in tht Judiciary Act 1903; the insertion of section 25D in the Acts Interpretation Act 1901; and the enactment of the Merit Protection (Australian Government Employees) Act 1984.

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CHAPTER 6.

IM PLEM ENTATION OF COUNCIL RECOMMENDATIONS

117. This chapter summarises final decisions and action by way of implementation during 1983-84 of Council recommendations.

118. Proposed legislation, such as the Repatriation Legislation Amendment Bill 1984 and the Australian Citizenship Amendment Bill 1984, which, if enacted, will substantially implement Council recommendations, is dealt with in chapter 7.

119. The recommendations are summarised in greater detail in the Annual Reports referred to. Where a recommendation was furnished in the form of a report, the relevant report is also indicated.

Review of the Ombudsman Act 1976 (Third Annual Report, paras 100-126)

120. The recommendations of the Council made in its report, Review o f the Ombudsman Act 1976. have been substantially implemented by the Ombudsman Amendment Act 1983. which was assented to on 12 October 1983. Recommendations which were implemented relate to the jurisdiction, powers and procedures of the Ombudsman (see para. 173).

121. Recommendations of the Council which were not implemented or followed by the Ombudsman Amendment Act fall into three categories:

• recommendations which required an amendment to the Ombudsman Act; • recommendations which required maintenance of the status quo under the Act; and • recommendations which require an amendment to the Ombudsman Regulations (and as a result await final decision or action).

The principal recommendations in the first category are:

• that every complaint to the Ombudsman should be reduced to writing; • that the Act should be amended to remove any doubt that court registries are within the Ombudsman’s jurisdiction; • that the Act should be amended to remove any doubt that, where a registry of an

excluded Tribunal is not established separately from a department, it is within the Ombudsman’s jurisdiction; • that Norfolk Island should be included within the Ombudsman’s jurisdiction; • that the Ombudsman should be empowered to investigate notwithstanding a privative clause; • that the provision empowering the Attorney-General to issue certificates restricting

disclosure of information to the Ombudsman, where it would involve the disclosure of communications between Commonwealth and State Ministers which would prejudice Commonwealth — State relations, should be repealed; • that the Ombudsman should be immune from criminal proceedings; and • that the power to seek an advisory opinion of the AAT should be placed formally in

the hands of the Ombudsman and should apply to powers whether or not conferred by enactment.

122. The second category of recommendations not implemented or followed by the Ombudsman Amendment Act 1983 are those which required maintenance of the status quo. The Council had recommended that the exclusion of the several Parliamentary Departments from the jurisdiction of the Ombudsman should remain. However, the Amendment Act removed the exclusion.

123. Finally, the third category of recommendations not implemented or followed by the Ombudsman Amendment Act are those which await final decision or action. They are accordingly summarised in Chapter 7 at para. 146.

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Defence Force Ombudsman (Report No. 5; Fourth Annual Report, paras 181 — 183)

124. The Ombudsman Amendment Act 1983 implements all but one of the Council's recommendations relating to the establishment of a Defence Force Ombudsman. The exception is the recommendation that the Ombudsman Act should provide that ‘action taken by the Defence Force’ includes ‘action of the Governor-General relating to appointment, promotion, termination of employment, and transfer of members of the Defence Force’.

Student Assistance Review Tribunals (Report No. 11; Fifth Annual Report, paras 145-164)

125. The Statute Law (Miscellanous Provisions) Act (No. 1) 1984 implements most of the Council’s recommendations made in its 11th Report, Student Assistance Review Tribunals. The Council’s recommendations relating to ministerial directions, reconsiderations of a decision by an authorised person, certain extensions of time,

forwarding of documents to an applicant and to a SART, and legal representation before a SART, have been implemented in full.

126. One recommendation, on the jurisdiction of the A AT, was only implemented in part. The Council had recommended that review by the A AT should be with the leave of the President of the Tribunal, which should only be given if the matter involved an important principle of wide application. The Act provides for AAT review without the recommended restriction.

127. Finally, one recommendation was not implemented. The Council had recommended that SARTs should be given power to review a refusal of an authorised person to allow further time for the lodging of a request for reconsideration by an authorised person.

Ombudsman Amendment Bill 1982 (Seventh Annual Report, paras 69-70)

128. The Council made only one recommendation arising out of its consideration of the draft Ombudsman Amendment Bill 1982. It recommended that provision be made for review of the issue of certificates by the Attorney-General under sub-section 9(3) certifying that the disclosure to the Ombudsman of information or of the contents of a document would be contrary to the public interest. However, that recommendation was not implemented in the ensuing Ombudsman Amendment Act 1983.

Rights of Review Under the Migration Act 1958 and Related Legislation: Interim Report on the Constitution of the Administrative Appeals Tribunal (Report No. 19; Eighth Annual Report, paras 80-84)

129. The effect of sub-section 40(1) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 was to require the Tribunal to be constituted in its migration jurisdiction by a Judge of the Federal Court. The Council recommended in the above report that, in view of the problems which had arisen, legislation should be amended as necessary to enable the AAT to be constituted in its Migration Act jurisdiction by any presidential member.

130. The Council’s recommendation was given effect to by section 3 of the Statute Law (Miscellaneous Provisions) (No. 2) Act 1983 which amended sub-section 40(2) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982.

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Migration Amendment Bill 1983 (Eighth Annual Report, para. 110)

131. An amendment by the Senate of section 14 of the Migration Act 1958 made no provision for review by the AAT of the exercise by the Minister of the discretion provided for by the proposed enactment to deport non-citizens convicted of trafficking in dangerous drugs. The Council expressed its opinion to the Attorney-General that reveiw by the Tribunal of decisions made under the section upon amendment would be desirable.

132. The Attorney-General subsequently wrote to the Council on 5 December 1983 informing it that the Government had taken the Council’s view into account. In the event, the proposed amendment of section 14 was not proceeded with.

Report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill 1983 (Eighth Annual Report, paras 111-113)

133. The recommendation of the Council that the National Crime Authority be subject to review by the Ombudsman was not implemented in the National Crime Authority Act 1984. However, the Council’s recommendation that review be available under the AD(JR) Act in respect of decisions of the Authority was implemented.

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CHAPTER 7.

CUMULATIVE SUMMARY OF

RECOMMENDATONS AWAITING FINAL DECISION OR ACTION

134. This chapter provides a summary of recommendations of the Council on which no final decision or action by way of implementation had been taken by 30 June 1984.

135. The recommendations are summarised in greater detail in the Annual Reports referred to. Where a recommendation was furnished in the form of a report, the relevant report is also indicated.

Registration of Tax Agents (Second Annual Report, paras 54-56)

136. Recommendation: jurisdiction should be vested in the Administrative Appeals Tribunal to review decisions of Tax Agents Boards refusing to register persons as tax agents.

Review of Import Control and Customs By-law Decisions (Report No. 3; Third Annual Report, paras 27-38)

137. Recommendations: the Council made a number of recommendations relating to quantitative restriction decisions implemented by import licensing or tariff quota, including recommendations that legislative provision be made authorising quantitative restrictions; that the A AT should be empowered to review decisions made under that

legislative provision; and that certain rules should apply in respect of that review.

138. (Note: action has been taken on the Council’s recommendations on by-law decisions: see Seventh Annual Report 1982-83, paras 133-134).

Passports Amendment Bill 1979 (Third Annual Report, paras 53-54)

139. Recommendation: jurisdiction should be vested in the Administrative Appeals Tribunal to review a number of decisions under the Passports Act 1938.

Draft Air Pollution (Stationary Sources) Ordinance (A.C.T.) (Third Annual Report, paras 64-68)

140. Recommendations: jurisdiction should be vested in the Administrative Appeals Tribunal to review a number of decisions; criteria defining the powers of the Environment Protection Authority should be stated more narrowly; and provision should be made for a defence to a prosecution for failing to keep records or provide information.

141. As at 30 June 1984 the draft ordinance was before the A.C.T. House of Assembly.

Draft Water Pollution Ordinance (A.C.T.) (Third Annual Report, paras 64-68)

142. Recommendations: jurisdiction should be vested in the Administrative Appeals Tribunal to review a number of decisions; and criteria defining the powers of the Authority should be stated more narrowly.

143. As at 30 June 1984 the draft ordinance was before the A.C.T. House of Assembly.

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Legislative Assembly (Election) Regulations (A.C.T.) (Third Annual Report, paras 73-76)

144. Recommendations: jurisdiction should be vested in the Administrative Appeals Tribunal to review a number of decisions; and notice to interested parties should be given in particular circumstances.

145. The Ordinance under which these regulations are created is now the House of Assembly Ordinance 1936.

Review of the Ombudsman Act 1976 (Third Annual Report, paras 100-126)

146. Recommendations: The Council made recommendations on the jurisdiction of the Ombudsman requiring amendment of the Ombudsman Regulations, including (i) that , certain tribunals should be excluded; (ii) that certain companies should be taken to be prescribed authorities in terms of the Act; (iii) that certain commercial authorities and

equivalent authorities should not be excluded; and (iv) that certain statutory authorities should not be excluded. (Note: action has been taken in respect of other recommendations made in this report: see paras 120 and 173).

Family Law Act 1975 (Third Annual Report, para. 194)

147. Recommendation: jurisdiction to review decisions relating to marriage guidance organisations should be vested in the Family Court or the Administrative Appeals Tribunal.

148. The Council’s recommendation in this case was made to the Joint Select Committee on the Family Law Act. The Committee did not, however, make any recommendation in relation to the decisions concerned in its Report to the Parliament.

Citizenship Appeals and Review System (Report No. 7; Fourth Annual Report, paras 43-68)

149. Recommendations: jurisdiction should be vested in the Administrative Appeals Tribunal in respect of decisions under (i) all but expressly excluded sections of the Australian Citizenship Act 1948; (ii) decisions under certain regulations of the Australian Citizenship Regulations; and (iii) decisions under one section of the Aliens Act 1947.

Review of the Immigration (Guardianship of Children) Act 1946 should be referred to the Family Law Council or the Law Reform Commission.

150. The Australian Citzenship Amendment Bill 1984 adopts most of the Council’s recommendations in relation to the Australian Citizenship Act 1948 (see para. 167). As at 30 June 1984 the Bill was before the Senate.

Superannuation Act 1976 — Jurisdiction (Fourth Annual Report, paras 76-77)

151. Recommendation: jurisdiction should be vested in the Administrative Appeals Tribunal to review decisions under the Superannuation (Salaries) Regulations.

Liquor Ordinance 1975 (A.C.T.) (Fourth Annual Report, para. 78)

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152. Recommendation: jurisdiction should be vested in the Administrative Appeals Tribunal to review decisions under the Ordinance.

Australian Broadcasting Tribunal Procedures (Report No. 12; Fifth Annual Report, paras 165-180)

153. Recommendations: the Council made a large number of recommendations including, inter alia, recommendations on the initiation of inquiries by the ABT; a uniform inquiry procedure; public availability of documents; procedures for conduct of an inquiry involving hearings; conferences and preliminary hearings; and standing.

Postal By-laws (No. 2) 1981 (Fifth Annual Report, paras 211-212)

154. Recommendations: power should be vested in the Chief General Manager to extend time within which a proprietor may seek a reconsideration; and a right of appeal to the Administrative Appeals Tribunal should be available against those decisions.

Land Use in the A.C.T. (Report No. 14; Sixth Annual Report, paras 105-120)

155. Recommendations: there should be conferred upon the Administrative Appeals Tribunal jurisdiction to perform the review functions presently exercised by the Design and Siting Review Committee, the Building Review Committee and the Valuation Review Board; also recommended for transferral to that Tribunal was the jurisdiction presently exercised by the Supreme Court of the A.C.T. under sub-section 28(4) of the City Area Leases Ordinance 1936. Certain decisions under that Ordinance and the Building Ordinance 1972 which at present are not subject to review were also recommended for review by the A AT. Third party rights of review were also recommended in respect of certain decisions. So long as the present statutory framework exists, decision making with respect to applications under sections 10 and 11A of the City Area Leases Ordinance 1936 should remain with the Department of the Territories and Local Government, but the present statutory role of the National Capital Development Commission in connecton with planning should be recognised by a statutory requirement of consultation by the

Department with the Commission in respect of such applications.

Australian Federal Police Act 1979: Sections 38 and 39 (Report No. 15; Sixth Annual Report, paras 121-131)

156. Recommendations: there should be review of decisions made under sections 38(2) and 39 and the appropriate body to conduct such a review is the Promotions Appeals Board. The Board should have power to join officers to a proceeding and to make recommendations to the Commissioner of Police. Hearings before the Board should normally be in public and an officer should be permitted legal representation should he so wish.

Review of Decisions under the Broadcasting and Television Act 1942 (Report No. 16; Sixth Annual Report, paras 132-139)

157. Recommendations: jurisdiction should be conferred upon the Administrative Appeals Tribunal to review most substantive decisions of the Australian Broadcasting Tribunal and to review a decision of the Australian Broadcasting Tribunal not to hold a

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public inquiry or to reach a decision without first holding a public inquiry. Such review should only be available if the leave of the President of the Administrative Appeals Tribunal was first obtained. It was also recommended that specified decisions of the Minister should be subject to determinative review by the Administrative Appeals

Tribunal. Other specified decisions of the Minister were recommended for recommendatory review by the Administrative Appeals Tribunal. The repeal of sub-sections (2) and (3) of section 119A of the Broadcasting and Television Act 1942 was also recommended.

Review of Taxation Decisions by Boards of Review (Report No. 17; Seventh Annual Report, paras 71-82)

158. Recommendations: the existing jurisdiction of the Boards of Review should be vested in the AAT; the legislative provision permitting a taxpayer to request the Commissioner to refer his objection to a Board of Review should be amended to substitute the AAT for the Board; provision should be made for section 28 of the AAT Act not to

apply in relation to review by the AAT of decisions presently reviewable by Boards of Review; the operation of section 37 of the AAT Act should be amended in relation to taxation decisions to provide that the Commissioner of Taxation shall lodge with the AAT the statement and documents mentioned in that section at the time the case is referred to the Tribunal; the Commissioner should be authorised to grant, in his discretion and on specified grounds, an extension of time for lodgment of objections and requests for reference or appeal; a refusal by the Commissioner to grant such an extension of time should be reviewably by the AAT; provision should be made for the taxpayer, when seeking a review of a decision, to be limited to the grounds stated in his objection unless the AAT otherwise orders; and section 41 of the AAT Act should not apply to taxation decisions when the AAT is vested with the current jurisdiction of the Boards of Review.

Compensation (Commonwealth Government Employees) Act 1971 — Amendments (Report No. 18; Seventh Annual Report, paras 83-98)

159. Recommendations: the Act should be amended to provide that the Commissioner for Employees’ Compensation shall determine a claim within sixty days of the lodgment of a claim, shall be deemed to have made a determination adverse to the claimant if a claim has not been determined on expiration of the prescribed time limit, and shall be the respondent in proceedings for the review of his determinations; and if the Commissioner is

made the respondent, then sub-sections 65(6), (7) and (8) of the Act which modify the AAT Act would be unnecessary and should be repealed.

Review of Pension Decisions under Repatriation Legislation (Report No. 20; Eighth Annual Report, paras 85-99)

160. Recommendations: the Council made a large number of recommendations relating to the establishment of a new system of review of pension decisions under repatriation legislation, including recommendations on the establishment, constitution, powers and procedures of (i) the appropriate primary decision makers (delegates of the Repatriation Commission); (ii) a new first-tier review tribunal (the Veterans’ Appeals Board) and (iii) the appropriate final review tribunal (the AAT). Recommendations were also made generally on the appropriate appeal rights of claimants and applicants for Service

Pensions. 161. The Repatriation Legislation Amendment Bill 1984 adopts the Council’s recommendations in large part (see para. 174). As at 30 June 1984 the Bill was before the Parliament.

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The Structure and Form of Social Security Appeals (Report No. 21; Eighth Annual Report, paras 100-109)

162. Recommendations: the Council made a large number of recommendations relating to a two-tiered structure of external review of social security decisions, including comprehensive recommendations in respect of a new first-tier review tribunal (the Social Security Appeals Tribunal). Recommendations were also made concerning the appropriate role of Review Officers of the Department of Social Security and on the need for a national survey of the needs of social security claimants and appellants in terms of advice and assistance.

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CHAPTER 8.

LEGISLATIVE AND RELATED DEVELOPMENTS

163. This chapter is concerned with legislative and related developments which took place during the year and which are of particular significance to administrative review. Some, but not all, of these developments followed upon Council advice. The relationship between legislative developments and relevant Council recommendations is discussed in

more detail elsewhere in this Report (chapter 6).

164. Thirteen pieces of legislation dealt with in the Parliament during the year under report have been identified as having particular significance to administrative review. The relevant legislation is as follows:

• the Acts Interpretation Amendment Act 1984; • the Archives Act 1983; • the Australian Citizenship Amendment Bill 1983; • the Federal Court o f Australia Amendment Act 1984; • the Freedom o f Information Amendment Act 1983; • the Merit Protection (Australian Government Employees) Act 1984; • the National Crime Authority Act 1984; • the Ombudsman Amendment Act 1983; • the Ombudsman (Miscellaneous Amendments) Act 1983; • the Repatriation Legislation Amendment Bill 1984; • the Sex Discrimination Act 1984; • the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983; and • the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984.

The salient features of these proposed and enacted laws are set out below.

Acts Interpretation Amendment Act 1984

165. This Act was assented to on 15 May 1984 and inserts a new section 25D in the Acts Interpretation Act 1901 which provides that whenever legislation refers to the giving of written reasons for a decision, the instrument setting out the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which

those findings are based. The amendment is consistent with the form and detail of reasons which may be requested under section 13 of the Administrative Decisions (Judicial Review) Act 1977 and section 28 of the Administrative Appeals Tribunal Act 1975.

Archives Act 1983

166. The Archives Act 1983 was assented to on 3 November 1983 and together with the Freedom of Information Act establishes a comprehensive system of public access to official information. The Archives Act provides Australian Archives with a statutory basis for its operations and for the disposition of all Government records. The Act establishes a

right of public access to non-exempted records in the open access period, i.e. those more than 30 years old. Section 43(1) of the Act provides that applications may be made to the AAT for the review of a decision refusing to grant access to a record in compliance with a request. As with the Freedom of Information Act, the AAT is given a recommendatory jurisdiction is relation to Ministerial conclusive certificates made pursuant to the Archives

Act. The Ombudsman’s jurisdiction to investigate matters relating to Archives is expressly preserved by section 55 of the Act.

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Australian Citizenship Amendment Bill 1983

167. The Australian Citizenship Amendment Bill 1983 was introduced into the House of Representatives on 7 December 1983 and substantially implements the Council’s Report Citizenship Review and Appeals Systems (see paras 149-150). The Bill provides for review by the AAT of decisions of the Minister for Immigration and Ethnic Affairs refusing applications for grant of certificates of Australian citizenship and other related decisions. Sections 39 and 40 of the Australian Citizenship Act 1948, which were inconsistent with the provision of external appeal, are repealed. The Minister is granted a further discretionary power to defer an application for citizenship for a period or periods of up to 12 months. There is no provision in the Bill for review of the exercise of this discretion.

Federal Court of Australia Amendment Act 1984

168. This Act was assented to on 10 April 1984 and amends the Federal Court o f Australia Act 1976 by removing the right of appeal from the Full Court of the Federal Court to the High Court where the appeal involves subject matter of the value of $20,000 or more. Administrative law cases heard before the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975, under the Administrative Decisions (Judicial Review) Act 1977, and under section 39B of the Judiciary Act 1903 can now only go on

appeal to the High Court by special leave.

Freedom of Information Amendment Act 1983

169. The Freedom o f Information Amendment Act 1983 was assented to on 3 November 1983 and came into operation on 1 January 1984. It widens the scope of the Freedom of Information Act 1982 by:

• allowing a general right of public access to documents up to five, years old at the date of commencement of the 1983 Act; • removing the limitation of retrospectivity in respect of documents containing information relating to the personal affairs of persons requesting access to those

documents; and • introducing an overriding public interest test in respect of three categories of exemption.

170. The Act progressively reduces the time for compliance with requests from the present 60 days to 30 days by 1 December 1986. Provision is made in the Act for the AAT to recommend to the Attorney-General that the Commonwealth pay the costs of successful applicants. The Document Review Tribunal is abolished by the Act and its jurisdiction transferred to the AAT which is empowered to decide whether in its opinion there are reasonable grounds for the issue of a conclusive certificate in respect of a document.

Where a Minister does not adopt the AAT’s recommendations, he or she is required under the Act to table in Parliament a statement of reasons for his or her decision. The Ombudsman is empowered by the Act to represent applicants before the AAT, except where the decision being reviewed was made by a Minister. Section 13 of the Administrative Decisions (Judicial Review) Act is excluded by the Act in relation to decisions under section 26 refusing to grant access to documents.

Merit Protection (Australian Government Employees) Act 1984

171. This Act was assented to on 25 June 1984 and provides for the establishment of an independent body called the Merit Protection and Review Agency. Under the proposed legislation, the Agency will be responsible for the oversight and administration of various

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statutory appeal and review committees (for example, Promotion Appeal Committees, Disciplinary Appeal Committees, Redeployment and Retirement Appeal Committees); reviewing particular decisions where a right of review of those decisions is provided in the terms and conditions of employment of staff; the investigation of staff grievances; conducting investigations at the request of the Minister responsible for the Agency or the Public Service Board; and providing advice to staff in relation to their grievance and appeal rights. The Council reported to the Attorney-General on this matter on 7 June 1984 (see para. 144).

National Crime Authority Act 1984

172. This Act was assented to on 15 June 1984 and establishes the National Crime Authority. Provision is made in the Act for review of the Authority’s functions and operations by the Parliamentary Joint Committee on the National Crime Authority and by I the Federal Court, but there is no provision in the Act for review by the Ombudsman. The

Council reported to the Attorney-General on 4 May 1984 regarding the Report of the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill 1983 (see paras 111-113).

Ombudsman Legislation I 173. The Ombudsman Amendment Act 1983 and the Ombudsman (Miscellaneous Amendments) Act 1983 were assented to on 12 October 1983. The former Act implements the Council’s Working Party Report entitled Jurisdiction of the Ombudsman (see paras 120-122 and 146) and substantially implements the Council’s Report on the Defencel Force Ombudsman (see para. 124). One recommendation made by the Council in the first-mentioned Report, which was implemented by the insertion of section 11A in the I Ombudsman Act, was that the Federal Court be empowered to enforce directions by the Ombudsman to persons to attend and answer questions and to produce documents, and to make orders resolving disputed questions of jurisdiction. The Ombudsman (Miscellaneous Amendments) Act primarily amends the Complaints (Australian Federal Police) Act 1983 to bring it into line with the above amendments to the Ombudsman Act 1976.Repatriation Legislation Amendment Bill 1984174. This Bill was introduced into the Senate on 29 May 1984 and reflects the majority of the Council’s recommendations made in its report. Review of Pension Decisions under Repatriation Legislation (see paras 85-99 and 160-161). Provision is made in the Bill for the abolition of Repatriation Boards and the Repatriation Review Tribunal. The Bill sets up a new two-tiered system of external review consisting of the proposed Veterans’ Review Board and the Administrative Appeals Tribunal.Sex Discrimination Act 1984175. The Sex Discrimination Act 1984 was assented to on 21 March 1984. Its object is to eliminate discrimination on the grounds of sex, marital status or pregnancy in certain specified areas. The Act provides that the Fluman Rights Commission may on application grant exemption from provisions relating to discrimination in employment and other areas such as education, accommodation, clubs and the provision of goods and services. The AAT is given jurisdiction under the Act to review such decisions of the Human Rights Commission. The Federal Court is empowered under the Act to enforce interim45

determinations and determinations made after an inquiry by the Commission. Applicants may apply to the Attorney-General for assistance in such proceedings under the Act.

Statute Law (Miscellaneous Provisions) Act (No. 2) 1983

176. This Act was assented to on 22 November 1983 and provides for:

• amendment of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 by allowing all presidential members of the AAT, including those who are not Federal Court Judges, to exercise the Tribunal’s jurisdiction under sub-section 66E( 1) of the Migration Act 1958 (see paras 80-84 and 129-130); and • amendment of the Judiciary Act 1903 by inserting a new section 39B which extends

the original jurisdiction of the High Court under paragraph 75(v) of the Constitution to the Federal Court (see para. 226). This amendment has the effect of empowering the High Court to remit such matters pending before it to the Federal Court by virtue of section 44 of the Judiciary Act. It also enables judicial review proceedings to be brought in the Federal Court in relation to decisions which are not reviewable in that Court under the AD(JR) Act. The relationship between the two procedures for obtaining judicial review from the Federal Court is one of the matters which the Council is considering as part of its AD(JR) Act project (see para. 70).

Statute Law (Miscellaneous Provisions) Act (No. 1) 1984

177. This Act was assented to on 25 June 1984 and provides for:

• amendment of the Judiciary Act 1903 by inserting a new sub-section 44(2A) which empowers the High Court to remit to the Federal Court any matter where the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party in proceedings pending in the High Court (see para. 227); and • amendment of the Student Assistance Act 1973 by including decisions of Student

Assistance Review Tribunals within the jurisdiction of the Administrative Appeals Tribunal. The Council considered the question of conferral of this jurisdiction on the AAT in its report, Student Assistance Review Tribunals (see paras 125-127).

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CHAPTER 9.

THE ADMINISTRATIVE APPEALS TRIBUNAL

Membership

178. The following persons were appointed to the Tribunal during 1983-84:

• The Hon. Mr Justice A.R. Neaves, as a Presidential Member. His Honour is a Judge of the Federal Court of Australia and formerly a member of the Administrative Review Council and Secretary of the Attorney-General ’ s Department.

• Mr R.C. Jennings Q.C., as a part-time Deputy President. Mr Jennings was formerly Solicitor-General for Tasmania. • Mr R.F. Smart Q.C., as a Deputy President. Mr Smart formerly practised as a barrister at the Sydney Bar.

• Mr I.R. Thompson, as a Deputy President. Mr Thompson was formerly a Senior Member of the Tribunal. • Mrs J.R. Dwyer, as a Senior Member. Mrs Dwyer is also Chairman of the Equal Opportunity Board of Victoria. • Mr W.A.G. Enright, as a part-time Senior Member. Mr Enright is a Sydney

barrister. • Mr B.J. McMahon, as a Senior Member. Mr McMahon formerly practised as a solicitor in Sydney. • Dr N.C. Davis, A .O ., as a part-time Member. Dr Davis is a senior general surgeon

practising in Brisbane. • Mr W.A. De Maria, as a part-time Member. Mr De Maria is a lecturer in social work at the University of Queensland. • Dr C.A. Hughes, as a part-time Member. At the time of his appointment Dr

Hughes was Professorial Fellow in Political Science in the Research School of Social Sciences at the Australian National University. • Mrs J.H. McClintock A .M ., as a part-time Member. Mrs McClintock was formerly Secretary-General of the Australian Council of Social Service.

• Mrs H.M. Pavlin, as a part-time Member. Mrs Pavlin is a Queensland social worker. • Mr A.P. Renouf, O.B.E., as a part-time Member. Mr Renouf is a former diplomat and Secretary of the Department of Foreign Affairs.

179. The following members of the Tribunal were re-appointed during 1983-84:

• Mr E. Smith, O.B.E., as a part-time Senior Member. • Dr J.G. Billings, as a part-time Member. • Mr B.C. Lock, as a part-time Member. • Dr A.H. Marsh, C.B.E., K. St.J., as a part-time Member. • Mr F.A. Pascoe, A.M ., as a part-time Member. • Mr R.A. Sinclair, as a part-time Member.

180. Three members resigned during the year. Mr Justice G.E. Fitzgerald resigned on 30 June 1984 from both the Federal Court of Australia and the Administrative Appeals Tribunal. Mr W. Tickle, a part-time member, resigned on his appointment as Insurance Commissioner. Dr C.A. Hughes resigned on his appointment as Electoral Commissioner.

181. Dr M. Click and Messrs L.G. Oxby and B.E. Fleming retired as part-time Members.

182. As at 30 June 1984 the Tribunal had 51 members. A full list of the members appears at Appendix 3.

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Jurisdiction

183. In the Council’s Seventh Annual Report, reference was made to the fact that the Tribunal had acquired more of a character of a general administrative tribunal as envisaged in the Kerr and Bland Reports of 1971 and 1973 respectively. This trend continued during 1983-84. The following legislation conferred jurisdiction upon the Tribunal during the year:

• Archives Act 1983 • Australian National Railways Commission Act 1983 • Bounty (High Alloy Steel Products) Act 1983 • Bounty (Injection Moulding Equipment) Amendment Act 1983 • Bounty (Steel Mill Products) Act 1983 • Bounty (Tractor Cabs) Act 1983 • Bounty (Two-Stroke) Engines Act 1984 • Casino Control Ordinance 1983 (ACT) (subsequently disallowed by the Senate on

6 December 1983) • Chiropractors Registration Ordinance 1983 (ACT) • Commonwealth Electorial Legislation Amendment Act 1983 • Dairy Industry Legislation Amendment Act 1983 • Dangerous Goods Ordinance 1984 (ACT) • First Home Owners Act 1983 • Fishing Legislation Amendment Act 1984 • Freedom o f Information Amendment Act 1983 • Great Barrier Reef Marine Park Regulations • Health Legislation Amendment Act 1983 • Health Legislation Amendment Act (No. 2) 1983 • Insurance (Agents and Brokers) Act 1984 • Insurance Amendment Act 1983 • Life Insurance Amendment Act 1983 • Liquid Fuel Emergency Act 1984 • Management and Investment Companies Act 1983 • Medical Practitioners Registration (Amendment) Ordinance 1984 (ACT) • Mental Health Ordinance 1983 (ACT) • Quarantine Animals Regulations (Amendment) 1983 • Radiation Ordinance 1983 (ACT) • Radiocommunications Act 1983 • Sex Discrimination Act 1984 • Shipping Registration Amendment Act 1984 • Statute Law (Miscellaneous Amendments) (Patents) Regulations • Statute Law (Miscellanous Provisions) Act (No. 1) 1984 • Veterinary Surgeons Registration (Amendment) Ordinance 1984 (ACT)

184. Several of the above confer noteworthy jurisdictions on the A AT. The Great Barrier Reef Marine Park Regulations give the Tribunal a substantial jurisdiction in environmental matters. The Sex Discrimination Act 1984 confers jurisdiction upon the Tribunal to review a descision of the Human Rights Commission to refuse to exempt a person from the requirements of the Act. The Commonwealth Electoral Legislation Amendment Act 1983 confers jurisdiction on the Tribunal to review certain decisions of

the newly formed Electoral Commission relating to the registration of electoral parties, and decisions of electoral officials relating to enrolment of voters. An interesting feature of the legislation is that it provides that jurisdiction shall be exercised by the AAT constituted by three presidential members who are Judges of the Federal Court of Australia. Presumably, this requirement was inserted because the Chairman of the Electoral Commission is required to be a Judge of the Federal Court.

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185. The F ree d o m o f In fo rm a tio n A m e n d m e n t A c t 1983 abolishes the Document Review Tribunal which had been established under the F reedom o f In fo rm a tio n A c t 1982 to review decisions of Ministers to give conclusive certificates under that Act. The Amendment Act confers the jurisdiction referred to upon the A AT, to be exercised by the Tribunal constituted by a presidential member. The Amendment Act also confers authority upon the Ombudsman to represent applicants before the AAT in freedom of information cases. During 1983-84, the Ombudsman did so in one case. T h e A rc h iv e s A c t

1983 extends the Tribunal’s jurisdiction in regard to public access to official information.

186. The Tribunal’s commercial jurisdiction is widened considerably by various Bounty Acts, the M a n a g e m e n t a n d In v e stm e n t C o m p a n ie s A c t 1983, and the In su ra n ce (A g e n ts a n d B ro k e rs) A c t 1984.

187. The Tribunal is to provide a second tier of review in the student assistance area. The S ta tu e L a w (M isce lla n eo u s P ro visio n s) A c t (N o. 1) 1984 provides for review by the Tribunal of decisions of Student Assistance Review Tribunals.

188. The Tribunal’s ACT jurisdiction was again increased by several ordinances and is now extensive.

189. A summary of the Tribunal’s jurisdiction as at 30 June 1984 has been provided by the Registrar of the AAT and is set out at Appendix 4 to this Report. The Council is grateful to the Registrar for again supplying this list.

190. The Repatriation Legislation Amendment Bill 1984, if enacted, will confer significant jurisdiction on the AAT. The Bill provides for the review of decisions of the Veterans’ Review Board. Thus, the AAT will provide a second level of review, the first level being provided by a specialist administrative tribunal. The repatriation jurisdiction referred to, if conferred upon the Tribunal, is not expected to bring to the Tribunal, in the long-term, as many applications as have been received by the existing Repatriation Review Tribunal. It is expected that, although the numbers may be high in the first few years, the normative effect of the Tribunal’s decisions will lead to a reduction in the number of disputes which have to be litigated.

Statistics on Operation of the Tribunal

191. Statistics on the operation of the Tribunal during the year have been compiled by the AAT Registry and are presented in Appendix 5. The Appendix also includes a table setting out the number of applications received in the various jurisdictions from the commencement of the Tribunal’s operation.

192. As can be seen from Appendix 5, the workload in the Tribunal’s minor jurisdictions has stabilised or increased only slowly. The figures for air navigation, customs, export grants, home savings grants and superannuation cases show little variation from year to year. The workload in the Tribunal’s major jurisdictions has tended

to fall. Applications received with respect to A.C.T. rates, social security, Commonwealth employees’ compensation and deportation of criminals under the M ig ra tio n A c t 1958 are gradually reducing.

193. After the large number of cases received with respect to ACT rating in the 1978 and 1979 years, the number has reduced to a minimal amount. This drop no doubt reflects the different procedures which the decision maker has adopted in this area and the steps which are now taken to explain to ratepayers the basis upon which assessments are made.

194. The number of social security applications received is falling. From 1 January 1984 to 30 June 1984, the Tribunal received only 335 applications in this jurisdiction. It is expected that applications will continue to fall and that the backlog in this jurisdiction will be overcome during 1984. Most areas of difficulty under the So cia l S ec u rity A c t 1 9 4 7 have now been examined in decisions of the Tribunal.

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195. The number of applications received in FOI cases in the year ended 30 June 1984 (201), was less than was anticipated. However, as few of the principal issues have yet been resolved, the applications are proving slow to process.

196. One jurisdiction to increase substantially during the year was the jurisdiction with respect to the Isolated Patients’ Travel Accomodation and Assistance Scheme. However, the S ta tu te L a w (M isce lla n eo u s P ro v isio n s) A c t (N o. 1) 1984 has provided for a

reconsideration process to take place prior to the lodging of an application with the Tribunal. This reconsideration and the normative effect of the Tribunal’s decisions should substantially reduce the number of applications lodged.

197. The tendency for areas of jurisdiction to settle after an initial flurry was commented upon in Appendix 4 to the Council’s Sixth A n n u a l R ep o rt. The expectation there expressed, that the social security jurisdiction would follow this pattern, was not fulfilled in the following year, but that jurisdiction is now also following the observed pattern. It may be confidently expected that the isolated patients’ jurisdiction will also do so.

A AT Review: Emerging Trends

Im p o rta n c e o f A c c e ss ib ility

198. The opportunity provided by the new administrative law was not the first opportunity available to aggrieved persons to challenge administrative decisions, such as a revocation of an invalid pension. On the contrary, there was always the possibility of challenging the legality of a decision via the prerogative writ or other traditional judicial remedies. But in many cases, including social security decisions, that procedure was rarely used.

199. The advent of administrative review on the merits, assisted by the wider availability of legal aid, has changed this. Merits review affords aggrieved citizens a further opportunity to challenge an administrative decision. Most importantly, it enables a challenge to be made for the first time to the merits of a decision. It is also significant, in the context of accessibility, that applicants to the Tribunal are not required to have legal representation, although the Tribunal encourages applicants to seek legal aid whenever it appears in their interests to do so.

200. The normative effect of A AT rulings (described in more detail in paras 192-197) also means that in the medium to long term there should be fewer disputes. Thus, administrative justice will increasingly be achieved without resort to the review process. The accessibility of independent review is expected to ensure this.

S u p e rv iso ry R o le

201. As stated in Appendix 4 to the Council’s Sixth A n n u a l R ep o rt, the Tribunal has not sought to act as a mere extension of the administration, but rather has sought, by analysing with care the cases which come before it and by enunciating principles, to establish a body of precedent which may guide both persons affected by relevant decisions and the decision makers themselves. The pattern that has emerged shows that the Tribunal has been successful in this aim and that it has not acted merely as an external body making an administrative decision at the behest of an aggrieved person but that it has also served to clarify and expound legislative provisions and their application in relation to differing factual circumstances. In this respect, the Tribunal has carried out the task set for it by its first President, Sir Gerard Brennan:

The thought that administrative review is a task for administrators alone, and not for lawyers, would have validity only if the processes and purposes of the review were intended to be similar to the processes and purposes of primary administration. But if the review process is intended to be normative, improving primary administration by defining the nature and extent of the

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administrator’s function, the lawyer’s contribution is indispensible and salutary ((1980) 9 Sydney L a w R eview 1, 10).

P r o c e d u r e s

202. One consequence of the Tribunal’s supervisory approach is that the Tribunal’s procedures for resolving disputes are labour-intensive, costly and relatively slow. Furthermore, the process leads occasionally to the criticism that the Tribunal is too judicial and too court-like. The Tribunal endeavours to eliminate procedures and formalities that are either inconsistent with its function or unnecessary for its fulfilment. Some degree of formality is necessary to emphasise that the Tribunal’s role is not that of a departmental administrator. The Tribunal is an external body for the resolution of disputes between aggrieved persons and the bureaucracy. By laying down principles it also provides a framework by which other persons and the bureaucracy may guide their affairs.

203. Many of the procedures of the Tribunal are in any case not procedures of a court. The Tribunal holds at least one, and in some cases several, preliminary conferences prior to the hearing of a review. During 1983-84, the Tribunal held 1292 hearings and 3688 preliminary conferences. The preliminary conferences are in each case chaired by the general members of the Tribunal, few of whom have legal training but all of whom have expertise in a relevant area such as management, social welfare, medicine or the like. In

1983-84, most cases were in fact resolved without the necessity of there being a hearing. If, as a result of these informal preliminary conferences, which incidentally are held in private and are confidential to the parties, there remains a dispute which has to be resolved by a hearing, the Tribunal takes the view that a certain degree of formality and a structured hearing is necessary, for such a hearing provides the only acceptable means of resolving a

dispute which could not be resolved by the prior informal administrative procedures.

204. During the final six months of 1983-84, a greater proportion of hearings than for the comparable period in the previous year were hearings in which a presidential or senior member sat with two of the general members of the Tribunal. The Council has been informed that this increase has resulted from a view of the President that three-member Tribunals should sit whenever it is practicable for that to be arranged. Nevertheless, it has to be kept in mind that the number of hearings are of a different dimension to the number of applications which come before the Tribunal. During 1983-84, two-thirds of the

applications which came to the Tribunal were disposed of without a hearing. In these latter cases, the parties will inevitably have attended one or more preliminary conferences presided over by a general member of the Tribunal. In the result, the general members of the Tribunal have, in recent years, become much more actively involved in the disposition of the case load than they were in the early days of the Tribunal when the proportion of

three-member Tribunals was somewhat higher but fewer preliminary conferences were held.

Freedom of Information Requests

205. During the year the Tribunal received one request for access to documents held by it. The request had not been determined as at 30 June 1984.

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CHAPTER 10.

COMMONWEALTH OMBUDSMAN

The Council and the Ombudsman

206. Since the Ombudsman, Professor Jack Richardson, A.O., is a member of the Council by virtue of his office, there is ample opportunity for fruitful, informed discussion at Council meetings of matters relating to the Ombudman’s powers, jurisdiction and procedures. Where issues of substance arise, the Council can examine them in detail and, if necessary, report in the usual manner to the Attorney-General. An example is the report. R e v ie w o f the O m b u d sm a n A c t 1976, which is summarised in paragraphs 120-126 of the Council’s T h ird A n n u a l R ep o rt.

Project on Relationship between the Ombudsman and the AAT

207. In its S ev en th A n n u a l R ep o rt, the Council mentioned (at para. 160) that it had undertaken a project on the relationship between the Ombudsman and the AAT. The major aim of the project is to develop a framework for considering whether particular classes of administrative decisions should be subject to either AAT or Ombudsman review, or to review by both bodies. In the year under report a Discussion Paper on the topic was prepared and distributed to a variety of individuals and community organisations, whose responses have now been received. The Council expects this project to be completed in 1984-85.

FOI Developments

In v e stig a to r o f C o m p la in ts

208. The Council’s S ev en th A n n u a l R e p o rt noted that the F ree d o m o f In fo rm a tio n A c t 1982 extended the Ombudsman’s jurisdiction by empowering him to investigate complaints concerning decisions and actions taken under that Act. After considerable debate at political and parliamentary levels (but, it should be noted, without the advice of the Council), the F reed o m o f In fo rm a tio n A m e n d m e n t A c t 1983 modified and significantly extended the FOI role of the Ombudsman. He may now represent, or arrange representation for, persons who have applied to the AAT for the review of decisions concerning access to information under the FOI Act. In deciding whether to grant requests for assistance, the Ombudsman is not limited by a narrow set of constraints. He must consider, among other things, the importance of the principle involved in the matter under review, the likelihood that the proceedings will establish a precedent, the applicant’s prospects of success and financial means, and the reasonableness of the decision under review.

209. The Ombudsman's office was not provided with extra resources with which to perform this new role. However, the Ombudsman has so far arranged representation of one applicant to the AAT, and at the close of the year was considering arranging for representation in a further three cases. He has arranged for Mr Hugh Selby, a member of his staff who formerly practised at the Sydney Bar, to perform the representational role. Since Mr Selby is also the head of a team of investigators of complaints under the Ombudsman and Complaints (Australian Federal Police) Acts, the added strain on the resources of the Ombudsman’s office has been considerable.

210. The Ombudsman’s office has also been hampered in carrying out its representational role by the lack of provision in the FOI Act for access to contested documents. Parliament provided that the Ombudsman should, before deciding whether to

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represent members of the public, consider matters such as the importance of the issue at stake. Clearly, this task is made more difficult without any right to inspect the relevant documents.

S u b je ct-A g en c y

211. As well as being a review authority under the FOI Act, the Ombudsman’s office is an agency subject to the Act. In performing this role, the Ombudsman has experienced some difficulty during the year under report. It had been the view of the Ombudsman’s

office (and others) that the secrecy provisions of the O m b u d sm a n A c t 1 9 7 6 (s. 35) were intended to give absolute protection to the privacy and confidentiality of Ombudsman investigations, and that all documents relating to such investigationss held on his office’s files would be exempted under section 38 of the FOI Act from release pursuant to that Act. Section 38 provides in effect, that documents are ‘exempt’ from disclosure if certain

secrecy provisions apply.

212. The Federal Court of Australia, however, in K a vva d ia s v. C o m m o n w ea lth O m b u d sm a n (23 March 1984) has ruled that section 35 of the Ombudsman Act is not a provision of a kind attracting exemption under section 38 of the FOI Act. At 30 June 1984 the Court had yet to decide whether a draft section 15 report at issue in the case was an exempt document under section 36 (exemption in relation to internal working documents).

213. The result of the K a v va d ia s case has been that the Ombudsman now considers FOI access requests made to his office in the context of the full range of exemption categories laid down in the FOI Act, and has in recent months adopted a policy of granting access widely to complainants seeking documents relating to investigation of their own complaints. Protection to complainants against the scrutiny of others has been continued

largely through reliance on section 41 of the FOI Act (‘documents affecting personal privacy’), and persons giving information to the Ombudsman during an investigation have been protected through reliance largely on section 45 (‘documents containing material obtained in confidence’). There is, however, a concern that release to complainants of certain documents furnished by authorities under investigation could prejudice future co-operation by such authorities with Ombudsman investigations, and it is likely that from time to time the Ombudsman will need to use the exemption provided in paragraph 40( 1 )(d) relating to the protection of staff management interests in this and possibly other

contexts.

214. During the year under report, Mr C.T. Hunt was designated Deputy Ombudsman for freedom of information matters, pursuant to section 52C of the FOI Act. In this role, he has the authority to exercise all the functions of the Ombudsman in relation to actions taken by agencies in the exercise of their powers and functions under the FOI Act, except

that he may not report to the Parliament.

Complaints Against Police

215. The year 1983-84 was the second full year of operation of the C o m p la in ts (A ustralian F e d e ra l P o lic e) A c t 1981. As with the Ombudsman’s primary jurisdiction, legislative changes have been made during the year to improve the efficiency with which both the office of the Ombudsman and the Internal Investigation Division of the AFP discharge their functions. These related especially to more informal treatment of

complaints agreed to be ‘minor’. These changes have allowed speedier resolution of such complaints with less demand being made upon the resources both of the Ombudsman’s office and the AFP’s Internal Investigaton Division.

216. As a consequence, the number of complaints awaiting resolution began to drop and has continued to do so.

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Defence Force Ombudsman

217. Following the commencement of the O m b u d sm a n A m e n d m e n t A c t 1983, Mr J.C. Jordan, A.O., took up duty in January 1984 as the first Deputy Ombudsman (Defence Force). (The office of Defence Force Ombudsman is always held by the Ombudsman of the day). Mr Jordan, formerly an air force officer with the rank of Air Vice Marshal, is empowered to investigate complaints from serving Defence Force personnel about matters relating to their service. The DFO jurisdiction also includes complaints previously within the jurisdiction of the Commonwealth Ombudsman, such as complaints about the administration by the Department of Veterans’ Affairs of benefits for ex-servicemen.

National Crime Authority

218. The National Crime Authority Bill 1983, by clause 44, initially proposed that the actions of the Authority would be within the jurisdiction of the Ombudsman. The Bill was considered by the Senate Standing Committee on Constitutional and Legal Affairs, which was informed by the Ombudsman that in view of the presence of clause 44 there were no comments he wished to have it consider. However, after hearing submissions that the Authority should be excluded from the Ombudsman’s jurisdiction and without hearing the Ombudsman’s views, the Committee recommended that clause 44 be deleted. The matter was subsequently discussed by the Council, which at its meeting on 4 May 1984 agreed that the reasons advanced by the Committee did not warrant deletion of clause 44. In so advising the Attorney-General, the Council pointed out that the Ombudsman already exercises review of actions of a number of bodies concerned in criminal-type investigation.

219. As passed, as a result of an Opposition initiative, the N a tio n a l C rim e A u th o rity A c t 1984 does not provide for investigation by the Ombudsman.

Office Organisation

220. During the year under review, the Ombudsman obtained approval for the appointment of seven new Directors of Investigation (officers at class 11 in the Public Service Third Division structure). Approval was also given in respect of a number of extra staff to enable the discharge of the new Defence Force function, as well as for the satisfactory discharge of the police and standard Ombudsman jurisdictions. These staff were made necessary by continuing significant increases in workload.

221. The Ombudsman’s office has been organised into six operational groups, each under the direction of a Senior Executive with delegation to finalise most routine investigations. Each team deals with complaints falling into discrete subject groups such as law enforcement, communications, commercial and ACT matters. The Council has been informed that the re-organisation should eventually assist in reducing in the backlog of work.

Statistics

222. During the year, the Ombudsman received a total of 19,827 written and oral complaints. Of these, 350 were complaints under the C o m p la in ts (A u stra lia n F ed e ra l P o lic e ) A c t 1 9 8 1 , and 96 in the new Defence Force Ombudsman jurisdiction (25 of the last group were inherited from the previous non-statutory Office of the Defence Force Ombudsman). Significantly, 16,519 of these complaints were received orally — 83.3% of the total received, and an increase of some 22% on the number of oral complaints in

1982-83 — adding weight to the Ombudsman’s contention that speedy, informal resolution of complaints is the aspect of his office’s work making the most dramatic public contribution.

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223. In respect of the Complaints {Australian Federal Police) Act, the 350 complaints received represented a 30% increase on 1982-83 figures. The backlog of police complaints on hand, after rising to a peak of 260 at the end of February 1984, had been reduced to 211 at the end of June, as new working arrangements began to take effect. On the other hand, the number of Ombudsman Act complaints on hand grew from 1,293 in July 1983 to 1,806 at the end of the year. There were 2,751 complaints finalised during the year.

224. In 1983 the Ombudsman received 51 requests for access under the Freedom of Information Act, mainly from former complainants, compared with 9 in the first seven months of the Act’s operation. He also received about 100 complaints about FOl actions of departments and authorities.

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CHAPTER 11. REVIEW BY THE COURTS

225. This chapter describes significant developments during the year concerning judicial review of Commonwealth administrative action. Attention is given not only to the operation and development of the A d m in istr a tiv e D e c isio n s (J u d ic ia l R ev iew ) A c t 1 9 7 7 but also to other procedures by which such action may be reviewed by courts.

Legislative Developments

T he P ro b le m o f R e lie v in g the H ig h C o u r t’s B u rd en

226. In the Council’s S even th A n n u a l R e p o r t (para. 178), reference was made to the fact that judicial review proceedings were being commenced in the High Court’s original jurisdiction because of the limited ambit of the AD(JR) Act. Such proceedings could not be remitted to State courts because their jurisdiction to review Commonwealth

administrative action was severely curtailed by section 9 of the AD(JR) Act. Nor was it possible to remit such proceedings to the Federal Court in view of the limited ambit of the AD(JR) Act created by the Act’s definition of a decision to which the Act applies and Schedule 1 exemptions. The problem of the consequent burden which fell on the High Court prompted legislative action during the year. The S ta tu te L a w (M iscella n eo u s P ro visio n s) A c t (N o. 2 ) 1983 amended the Ju d icia ry A c t 1903 by inserting into that Act section 39B which vests in the Federal Court a jurisdiction similar to that of the High Court under paragraph 75(v) of the Constitution to grant mandamus, prohibition or an injunction against a Commonwealth officer. The effect of vesting this jurisdiction in the Federal Court is not only to enable the High Court to remit matters arising under its paragraph 75(v) jurisdition but also to create an alternative procedure to the AD(JR) Act for commencing judicial review proceedings in the Federal Court. Accordingly, a decision which is exempted from AD(JR) Act review because it appears in Schedule 1 to that Act might be reviewable at common law by the Federal Court acting under section 39B of the Judiciary Act.

227. The jurisdiction of the High Court to review Commonwealth administrative action is not confined to paragraph 75(v) of the Constitution. The High Court also has original jurisdiction under paragraph 75(iii) of the Constitution concerning matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party. Under this jurisdiction, proceedings could be commenced in the High Court seeking a declaration in respect of Commonwealth administrative action. Indeed, the number of such proceedings commenced in the High Court during 1983-84, usually involving the Commissioner of Taxation, was such as to revive concern about the High Court’s burdens. Accordingly, with the primary objective of protecting the High Court, the Judiciary Act was amended by the S ta tu te L a w (M iscella n eo u s P ro visio n s) A c t (N o. 1) 1984. Under this amendment, sub-section 44(2A) was added to the Judiciary Act and its effect is to enable the High Court to remit to the Federal Court cases arising in the High Court’s jurisdiction under paragraph 75(iii). In contrast with the section 39B procedure, proceedings cannot be commenced in the Federal Court under this procedure: they may only be remitted to that Court from the High Court. The relationship between, and compatibility of, these new procedures and the AD(JR) Act is a matter which will be considered by the Council as part of its current project reviewing the operation of the AD(JR) Act (para. 70).

R e q u ire m e n t o f L e a v e to A p p e a l in In te rlo c u to r y M a tters

228. The S ta tu te L a w (M isce lla n eo u s P ro visio n s) A c t (N o. 1) 1984 contains another provision of particular relevance to judicial review of Commonwealth administrative

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action. The Act amends the F e d e ra l C o u rt o f A u stra lia A c t 1976 by inserting a sub-section 24(1 A) which requires that leave be obtained for an appeal to be taken to the Full Court of the Federal Court from a decision at first instance on an interlocutory matter. This provision is designed to ensure that appeals from interlocutory rulings are not brought simply to cause delay or to harass administrators. The requirement of leave applies to all the jurisdictions of the Federal Court, including the AD(JR) Act.

P riva tive C la u ses

229. Four legislative provisions were enacted during the year which purport to restrict judicial review of Commonwealth administrative action. Schedule 1 of the AD(JR) Act, which lists certain classes of decision that are exempted from review under that Act, was amended by section 155 of the C o m m o n w e a lth E le cto ra l L eg isla tio n A m e n d m e n t A c t

1983. Schedule 1 was amended by the addition to that Schedule of decisions of the Electoral Commission concerning the determination of the numbers of members of the House of Representatives to be chosen in various States, as well as decisions relating to Electoral Divisions under Part IIIA of the C o m m o n w ea lth E le c to ra l A c t 1918. The Commonwealth Electoral Legislation Amendment Act also removed from Schedule 2 of the AD(JR) Act decisions of Distribution Commissioners.

230. Both the M a n a g e m e n t a n d In v e stm e n t C o m p a n ies A c t 1983 and the D ire c to r o f P u b lic P ro se c u tio n s A c t 1983 contain provisions which purport to prevent judicial review on particular grounds. It is provided in sub-section 17(4) of the former Act that a decision of the Management and Investment Companies Licensing Board ‘is not invalidated, and

shall not be called in question, upon the ground that the Board has limited the exercise of its discretion in a particular case by reference to any general policy or practice adopted or announced by the Board’. Sub-sections 6(6) and (7) of the Director of Public Prosecutions Act provide that action taken by the Director to recover a pecuniary penalty or to take a

civil remedy ‘shall not be challenged or called in question in any court’ on the ground that such action did not relate to a particular matter defined in the Act as being part of the Director’s functions.

231. The T e le c o m m u n ic a tio n s (In te rc ep tio n ) A m en d m en t A c t 1983 contains a privative clause of a wider ambit in the sense that it purports to exclude, subject to the Constitution, review by any court or other tribunal without limitation to a particular ground (sub-section 7A( 11)). This provision applies to a decision of the Attorney-General taken under section 7 A of the Act which deals with the forwarding of information regarding the interception of telecommunications to the so-called ‘Cross Inquiry’.

Judicial Developments

232. Previous Annual Reports of the Council have briefly noted significant decisions of the Federal Court relating to the AD(JR) Act. However, in view of recent developments involving the establishment of additional procedures by which Commonwealth administrative action may be reviewed in the courts, it seems desirable that the scope of

this section be extended to include reference to significant judicial decisions affecting review of Commonwealth administrative action arising under any procedure. For convenience, this section is divided into two parts. The first part deals with the AD(JR) Act and the second with other procedures for obtaining judicial review.

A D (J R )A c t

Scope of Reviewable Decisions (s.3) 233. M e a n in g o f ‘d ec isio n . Some of the uncertainty that has surrounded the question of the ambit of the Act has been removed by a leading decision of the Full Court in L a m b v

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M o ss (1983) 49 ALR 533. That case involved use of the AD(JR) Act to review decisions or conduct of a stipendiary magistrate in committal proceedings regarding alleged offences under the C rim es A c t 1914. One issue was whether the AD(JR) Act, like the AAT Act, applies only to decisions which finally determine rights or obligations or which might be said to have an ultimate and operative effect. The Full Court preferred a wider definition of ‘decision’ which, the Court said, was not only consistent with the evident legislative policy but was also more likely to result in a ‘consistent and logical relationship’ between the Federal Court and State courts and to ‘reduce the grey area of jurisdictional uncertainty’ arising from the operation of section 9 of the Act.

Consequently, different meanings apply to the word ‘decision’ under the AD(JR) and AAT Acts.

234. M e a n in g o f ‘a d m in istra tiv e c h a r a c te r .’ L a m b v M oss, su p ra is also an important decision on this troublesome aspect of the Act. The Full Court held that notwithstanding that a magistrate in committal proceedings was obliged to act judicially, decisions made by him in the course of such proceedings were of an administrative character for the purposes of the Act and were therefore re viewable.

235. A similar approach was adopted by Mr Justice Beaumont in B rew er v C astles (1984) 52 FCR 89 where it was held that a decision to issue a search warrant under section 10 of the Crimes Act was a decision of an administrative character reviewable under the AD(JR) Act. An earlier decision to the contrary in B a k e r v C a m p b e ll (1982) 44 ALR 431 would no longer appear to be authoritative on this issue.

236. M e a n in g o f ‘m a d e . ... u n d er an e n a c tm e n t’. Three separate decisions of the Full Court of the Federal Court handed down during the year under report are relevant to this aspect of the Act and in each case an expansive meaning was adopted. In L a m b v M oss, su p ra it was held that the decisions or conduct of a State magistrate exercising Federal jurisdiction were under the Ju d ic ia r y A c t 1903 and, accordingly, were “ under an

enactment” for the purposes of AD(JR) Act review.

237. A complex interaction between Commonwealth and State legislation was considered by the Full Court in P a rk e s R u ra l D istrib u to rs P ty L td v G lasson (1983) 48 ALR 601. It was held, by majority, that a certificate issued by an officer of the Australian Public Service was reviewable under the AD(JR) Act as it involved a decision made under a Commonwealth Act and a Scheme which had been formulated pursuant to that Act. The fact that the officer was authorised to act by an appointment under a State Act was described as being ‘beside the point’. An appeal from this decision has been taken to the High Court.

238. A different aspect of the problem of defining ‘made . . . under an enactment’ arose in C h ittic k v A c k la n d (1984) 53 ALR 143. The primary question was whether certain personnel management decisions were reviewable under the Act as having been made either directly under an enactment, namely the H ea lth C om m issio n A c t 1973, or under an instrument made under the Act. A majority of the Court (Justices Lockhart and Morling) held that, in the circumstances, a determination of terms and conditions of employment made under the parent Act was an ‘instrument’ for the purposes of the AD(JR) Act and that decisions taken under that instrument were accordingly reviewable. Mr Justice Jenkinson did not regard it as necessary to determine this question since he was of the view that the decisions were reviewable as having been made directly under the parent Act.

239. The Act’s restriction to review of decisions made under an enactment was highlighted in two other decisions handed down during the year relating to administrative decisions taken in the exercise of non-statutory powers. In H a w k e r P a cific P ty L td v F re e la n d (1984) 52 FCR 96, Mr Justice Fox held that the Commonwealth’s power to contract was an inherent prerogative or governmental power which, although regulated by

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the Finance Regulations, was not derived from a statutory source. Accordingly the exercise of that power was not reviewable under the AD(JR) Act. Similarly, in N . M a c D o n a ld P ry L td v H a m e n c e (1984) 51 FCR 70 it was held by Mr Justice Neaves that the AD(JR) Act did not apply to review of a decision of the Canberra Tourist

Commissioner to remove the name of a motel from a Canberra Tourist Bureau brochure because the Bureau’s powers and duties were not legislatively defined.

Grounds of Review (ss 5-6) 240. There have been many decisions of the Court elaborating upon the various grounds of review available under the Act; however, two decisions in particular warrant mention. First, the Full Court of the Federal Court has affirmed the view expressed in several earlier decisions that paragraph 5(l)(a) of the Act does not itself import into other Commonwealth law, including statutes, a requirement that the rules of natural justice must be observed in connecton with the making of relevant decisions. Thus the paragraph does not itself provide a source of that legal obligation, rather the obligation must be established in accordance with common law principles (see S m ith v M in is te r f o r Im m ig ra tio n a n d E th n ic A ffa irs, supra).

241. Secondly, there was an extensive discussion of the various heads of review for abuse of discretion in the judgment of Mr Justice McGregor in W illara P ty L td v M cV eig h (unreported, 17 May 1984), including the heads of relevant and irrelevant factors, and unreasonableness. The case is most significant as it represents one of only a handful of

decisions in which a review court has set aside an administrative decision as unreasonable in the sense that no reasonable person could have reached it.

Limitation of Jurisdiction of State Courts (s. 9) 242. Section 9 of the AD(JR) Act severely restricts the jurisdiction of State courts to review Commonwealth administrative action. Indeed, the ouster of State courts’ jurisdiction is wider than the ambit of the Act itself and, the implications thereof for prospective litigants have been critically commented upon in several State decisions (see, for example, N o m a d In d u strie s o f A u stra lia P ty L td v F e d e ra l C o m m issio n er o f T a xa tio n (1983) 83 ATC 4480 and C lyn e v D e p u ty C o m m issio n er o f T a xa tio n [1983] 1 NSWLR

110).

Extension of Time (s. 11) 243. There have been many judicial decisions handed down regarding the principles to be applied in considering whether to permit an application for an order of review to be lodged out of time. The relevant case law was recently considered by Mr Justice Wilcox in H u n te r V a lle y D e v e lo p m e n ts P ty L td v C ohen (unreported, 4 July 1984) and his Honour’s judgement sets out the following general principles which were distilled from previous

decisions:

(a) Although there is no onus of proof on an applicant seeking an extension, he must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time. (b) Action taken by the applicant, other than by commencing proceedings under the

Act, is relevant to the issue whether an adequate explanation for the delay has been provided. (c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the

grant of an extension. (d) However, the mere absence of prejudice on the part of the respondent is not enough to justify the granting of an extension as the wider public interest has to

be considered. (e) The merits of the substantial application for review are a relevant consideration.

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(f) Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the exercise of the Court’s discretion.

Statement of Reasons (s. 13)

244. While it is established that the AD(JR) Act itself may be used to enforce the duty under section 13 to provide a statement of reasons, at least where proceedings for review of a decision in respect of which the statements have been requested have been commenced (see L lo y d v C o stig a n , unreported 9 May 1983), it is uncertain whether an order may be made under the Act in relation to a request for reasons made prior to the commencement of proceedings. In these circumstances it is significant to note the decision of Mr Justice Fitzgerald in C la n w illia m P ty L td v B a rtle tt (unreported, 8 May

1984) which arose not under the AD(JR) Act but under section 39B of the Judiciary Act. His Honour held that mandamus was available under this procedure to enforce the duty to furnish reasons under section 13 of the AD(JR) Act. However, in the circumstances of the particular case, no such order was made.

245. The obligation to provide a statement of reasons upon request is one of the primary features of the AD(JR) Act. It overcomes a major deficiency of the common law where litigants were sometimes confronted with the inscrutable face of a sphinx when it came to establishing the reasons for an administrative decision. It is apparent, however, that the Federal Court is anxious to retain some degree of self-restraint in scrutinising reasons furnished in accordance with section 13. In S m ith v M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa irs (1984) 55 FCR 140, the Full Court of the Federal Court reaffirmed that it is not legitimate for the Court to subject such reasons to too fine or precise a scrutiny. It was stated that reasons should be studied carefully but sensibly, and not zealously in the pursuit of error.

246. It is equally apparent, however, that the Court will not allow administrators to avoid the obligation to provide reasons by reliance on minor technical points which subvert the clear legislative policy underlying section 13. In A n se tt T ra n sp o rt In d u strie s (O p e ra tio n s) P ty L td v W raith (1983) 39 FCR 282, Mr Justice Woodward insisted that a request for reasons be construed benevolently. Hence, the request did not need to refer the decision maker to the AD(JR) Act and, indeed, it made no difference that the request erroneously referred to other legislation. His Honour’s judgment is also helpful in providing a general description of the sort of statement which is required to comply with

section 13. A decision maker is required to describe his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if disputed facts are involved), and the reasoning processes which led him to those conclusions. His Honour indicated that the decision maker should use clear and unambiguous language, not vague generalities or the formal language of legislation. He added that the appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement.

The AD(JR) Act and Commonwealth Administration 247. It is apparent that some areas of Commonwealth administration have been exposed more than others to the Act’s operation. Significant decisions affecting individual areas of Commonwealth administrative activity are highlighted immediately below.

248. P u b lic S e rv ic e E m p lo y m e n t A p p e a ls. Use of the Act by officers of the Australian Public Service to test the legality of various personnel management decisions continues on a significant scale but there is some evidence that the number of applications for orders of review in this area is declining (see para. 9). Leading decisions handed down during the year include the High Court’s decision in lo a n n o u v F o w e ll (1984) 52 ALR 460, involving the application of the rules of natural justice to the termination of employment

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of a temporary employee; H u r t v R o s s a ll (1983) 38 FCR 264, involving natural justice and proceedings of a Promotion Appeals Committee; C ole v C u n n in g h a m (1983) 49 ALR 123, involving natural justice and the failure to reappoint a former officer of the Australian Public Service; and B e r c o v e v H e rm e s (1983) 51 ALR 109, involving the principles of natural justice and the use in disciplinary proceedings of evidence given in cam era before a Royal Commission.

249. M ig ra tio n . Migration decisions continue to constitute one of the major areas being challenged under the Act. Its extensive use in this area may reflect the absence of a developed system of review on the merits in relation to migration decision making. Significant judicial decisions during the year were M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa irs v G a illa r d (1983) 49 ALR 277 (cancellation of a temporary entry permit); M in is te r f o r Im m ig r a tio n a n d E th n ic A ffa ir s v T a g le (1983) 48 ALR 566 (deportation of a

prohibited immigrant); S e zd irm e zo g lu v A c tin g M in iste r f o r Im m ig ra tio n a n d E th n ic A ffa irs (1983) 51 ALR 575, which contains a useful discussion of the relevance of human rights considerations in a deportation decision, and F a in g o ld v Z a m m it (unreported decision of the Full Court of the Federal Court, 22 January 1984), involving allegations of denial of natural justice and abuse of discretion regarding a refusal to grant entry permits.

250. T a xa tio n . There has been a noticeable increase in the use of the Act to challenge various taxation decisions. Key decisions are C la rke v K a h n (unreported decision of the Full Court of the Federal Court, 11 April 1984); A h ern v D ep u ty C o m m issio n e r o f T a xa tio n (1984) 50 ALR 177; and T h u rec h t v D e p u ty C o m m issio n er o f T a xa tio n

(unreported, 19 June 1984).

251. C o m m itta l P ro c e e d in g s. Another area where the Act is being used to a significant extent concerns review of committal proceedings. Leading decisions handed down during the year are L a m b v M o s s , su p ra ; C lyn e v S c o tt (1984) 52 ALR 405; E d w a rd s v V on E in e m (unreported, 8 June 1984); S e y m o u r v A tto rn e y -G e n e ra l (unreported, 8 May 1984); and S o u te r v W eb b (unreported, 11 July 1984).

AD(JR) Act Statistics 252. Statistics concerning requests during the calendar year 1983 pursuant to section 13 of the AD(JR) Act are set out in Appendix 6 (Table 1). They were provided by the Attorney-General ’ s Department following responses made by Government departments and authorities specified in the Table. The total number of requests for reasons made to those bodies during 1983 was 1832, compared with 911 in 1982. For the first time,

statistics are available regarding the reasons why requests for reasons were refused; however, these statistics only cover the last 6 months of 1983. They are set out in Table 2 of Appendix 6. Detailed information is also available for the first time in relation to the resources expended by departments and authorities in dealing with section 13 requests;

however, again, they only cover the last 6 months of 1983. Information regarding resources was provided to the Attorney-General ’ s Department by individual departments and authorities as set out in Table 3 of Appendix 6. There is a wide variation in the resources used. For example, 50 man-hours were required to deal with the one request received by the Commonwealth Banking Corporation, compared with an average of 1.21

man-hours for the large number of requests dealt with by the Public Service Board.

253. Statistics relating to applications for orders of review lodged during the calendar year 1983 have also been compiled by the Attorney-General’s Department on the basis of information supplied by individual departments and authorities as set out in Table 4 of Appendix 6. A total of 180 applications were lodged during that year. This figure compares with a total of 152 applications lodged during the previous year (see Council’s S ev en th A n n u a l R ep o rt, para. 191).

254. The Attorney-General ’s Department has experienced considerable difficulties in compiling accurate statistics relating to the operation of the AD(JR) Act. It is apparent, for

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example, that information supplied to the Department relating to the number of applications lodged during 1982 which is included in Table 4 does not tally with information supplied last year which was included in the Council’s Seventh Annual Report. The Department has advised the Council that action is being taken with a view to

improving the accuracy of statistical information concerning the use of the AD(JR) Act. Ultimate responsibility rests, however, with individual departments and authorities to ensure that the information they supply is accurate and comprehensive.

255. It is apparent from Table 4 that the number of applications for review received during 1983 in relation to some agencies remained fairly constant with 1982 figures (for example, the Departments of Immigration and Ethnic Affairs and Industry and Commerce). In other cases, the number declined (for example, the Public Service Board and the Department of Health). Finally, it is evident that some other agencies were exposed to greater use of the Act during 1983 (for example, the Australian Taxation Office, the Departments of Aviation and Attorney-General’s, the Australian Federal Police and the Australian Telecommunications Commission).

ARC Review of AD(JR) Act

256. As noted in last year’s Annual Report (para. 189), the Council has commenced a project reviewing the operation of the Act at the invitation of the Attorney-General. An Issues Paper was prepared during the year in connection with the project for distribution to interested groups and persons with an invitation to comment. Public seminars were also arranged with a view to promoting discussion and debate on the operation of the Act in general and the Issues Paper in particular.

257. The following key issues were identified in the Issues Paper for the purposes of discussion:

• In view of the existence and relevance of alternative procedures by which Commonwealth administrative action might be judicially reviewed, is it desirable and practicable for any of those procedures to be consolidated in some way with the AD(JR) Act?

• Should the ambit of the Act be clarified and/or extended in terms of: — The adequacy of the current definition of ‘a decision to which the Act applies’? Should the Act also apply to decisions other than those of an administrative character made under an enactment? For example, should decisions in the

exercise of prerogative or other non-statutory powers (such as the power to contract) be brought within the Act’s ambit? — Should decisions of the Governor-General continue to be excluded from review? • Should Schedule 1 of the Act be reviewed both in terms of the principle of retaining

such a Schedule and its contents?

• Should Schedule 2 of the Act be reviewed both in terms of the principle of retaining such a Schedule and its contents?

• Is there a need to revise any other aspects of the Act relating to such matters as: — the grounds of review; — the requirements and operation of the definition to provide a statement of reasons; — the powers of the Federal Court to grant relief; — standing to seek review; — review of conduct relating to the taking of a reviewable decision; — the absence of a requirement to obtain leave before applying for review; and — time limits concerning applications for review and requests for reasons?

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O th er J u d ic ia l R e v ie w P ro c e d u re s

258. This part deals with significant judicial decisions handed down during the year under report which arose under a procedure other than the AD(JR) Act.

259. Reference was made above (para. 227), to an increase in review proceedings being brought in the High Court involving, in particular, the Australian Taxation Office. An example of such a case is R e F e d e ra l C o m m issio n er o f T axation: E x p a r te A u stra len a In v e stm e n ts P ty L td (1983) 50 ALR 577 in which mandamus was sought to compel the Commissioner to perform his statutory duty of dealing with objections to an income tax assessment within a reasonable time. Justice Murphy held that, while mandamus was an appropriate remedy, the applicant failed to establish that the Commissioner had failed to perform his duty in this particular case.

260. A similar proceeding could now be remitted to the Federal Court under section 44 of the Judiciary Act. An example of a case where the new remitter procedure was used is C o w a rd v A lle n (1984) 52 ALR 320. In this case, proceedings were commenced in the High Court for certiorari and prohibition in relation to the issue of search warrants under section 10 of the C rim es A c t 1914 and the execution of those warrants. Actions were also

brought seeking orders for the return of documents seized, injunctions and damages. All the proceedings were remitted to the Federal Court under section 44 of the Ju d ic ia ry A c t 1903, the orders for remitter taking effect after the coming into force of section 39B of that Act. Mr Justice Northrop’s judgment canvasses several issues, including some technical issues of a jurisdictional character on such matters as who is a Commonwealth officer for the purposes of review in prerogative writ proceedings.

261. It was emphasised above (paras 226-227), that the combined effect of sectons 39B and 44 of the Judiciary Act is to enable proceedings for prohibition, mandamus and an injunction against a Commonwealth officer to be remitted to the Federal Court from the High Court, and such proceedings may also be commenced directly in the Federal Court. An example of an action being brought directly in the Federal Court under the section 39B procedure is C la n w illia m P ty . L td . v B a rtlett, supra in which mandamus was sought to enforce the duty under section 13 of the AD(JR) Act to provide a statement of reasons upon request. The application was dismissed on the ground that the statement was furnished after the application was made.

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CHAPTER 12.

OTHER REVIEW TRIBUNALS

262. This chapter reviews some significant developments during 1983-84 concerning Commonwealth administrative review tribunals other than the AAT and the Ombudsman, which are dealt with in chapters 9 and 10 respectively.

263. The Council itself considered and reported on the following review tribunals during 1983-84:

• the Repatriation Commission; • the Repatriation Review Tribunal; and • Social Security Appeals Tribunals.

The Repatriation Commission and the Repatriation Review Tribunal were reported on as part of the Council's Report, R e v ie w o f P en sio n D ecisio n s U nder R ep a tria tio n L eg isla tio n (see paras 85-99). The recommendations of the Council have been substantially adopted in the Repatriation Legislation Amendment Bill 1984, the contents of which are summarised above (para. 174). Consistent with the Council’s report, the Bill proposes to abolish the Repatriation Review Tribunal and establish instead a new first-tier review tribunal (the Veteran’s Review Board), with the AAT being the final review tribunal.

264. Social Security Appeals Tribunals were dealt with in the Council’s Report, The S tru c tu re a n d F o rm o f S o c ia l S e c u rity A p p ea ls (see paras 100-109).

265. Other review tribunals considered by the Council during 1983-84 were:

• Immigration Review Panels; and • the Minister for Health (review powers under the Customs (Prohibited Imports) Regulations).

Immigration Review Panels were considered as part of the Council’s project on Rights of Review of Decisions under the Migration Act 1958 and Related Legislation, progress on which is reported at para. 67. The review powers of the Minister for Health referred to were considered as part of the Council’s project on Customs and Excise Appeals, progress on which is reported at paras 68-69.

266. The review tribunals considered by the Council form part of a continuing project involving the consideration of all Commonwealth administrative review tribunals with a view to reporting on:

• those whose jurisdictions should be transferred to the AAT; • the appropriate AAT procedures for handling those jurisdictions; and • the appropriate procedures of those tribunals not absorbed by the AAT including the applicability of a code of procedures and further rights of review by the AAT.

A regular feature of this project is the compilation of a list of Commonwealth review tribunals. This list, published every second year, is next due for publication in the Council's Annual Report for 1984-85. The Council will again be seeking the assistance of Commonwealth departments and authorities in compiling the list.

267. The Council also monitors developments concerning review tribunals generally. Significant developments during 1983-84 in this regard were:

• The abolition of the Document Review Tribunal by the F reed o m o f In fo rm a tio n A m e n d m e n t A c t 1983. • The establishment of the Merit Protection and Review Agency by the M e rit P ro te ctio n (A u stra lia n G o ve rn m en t E m p lo yees) A c t 1984. The functions of the

Agency are described above (para. 171).

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APPENDIX 1

ADMINISTRATIVE REVIEW COUNCIL APPROPRIATION AND EXPENDITURE 1983-84

ITEM APPROPRIATION EXPENDITURE

$ $

1. S a la rie s a n d P a y m e n ts in th e N a tu r e o f S a la ry

— Salaries and Allowances 168 600 185 403

— Overtime 1300 158

A d m in is tra tiv e E x p e n se s 01 — Travelling and Subsistence 71 300 56 290

Fares 42 173

Travelling Allowance 3050

Car Hire 10 248

Other 819

02 — Incidental and Other Expenditure 28 400 26 707

Library 1958

Office Requisites 24 749

03 — Postage and Telephones 4000 1985

273 600 270 543

The figures above do not include the Travelling Allowance payable to members of the Council ($17,446), nor the sitting fees which are payable to members of the Council other than the Chairman and those members who are full-time office holders of the Commonwealth ($33,295). The Chairman of the Council receives an annual fee (at the rate of $23,507 as at 30 June 1984) as fixed by the Remuneration Tribunal. These amounts are paid under special appropriation pursuant to the Remuneration Tribunal Act 1973.

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APPENDIX 2

BIBLIOGRAPHY OF PUBLICATIONS RELATING TO ADMINISTRATIVE LAW AND PUBLIC ADMINISTRATION

ADMINISTRATIVE LAW

AMERICAN BAR ASSOCIATION Section of Administrative Law, Annual Reports of Committees, Vol. 20, 1983 BRIETZKE, P.H. ‘Administrative Law and Development: the American ‘model’ evaluated’ (1983) 26 Howard

Law Journal 645-698

BROWN, L. Neville & GARNER, J.F. French Administrative Law, 3rded., Butterworths, 1983 CRAIG, P. Administrative Law, Sweet & Maxwell, 1984 DAVEY, R.C.

‘The New Administrative Law; A Comment on Cost’ (1983) 42 Australian Journal o f Public Administration 261-265

DAVIS, Kenneth Culp Administrative Law Treatise, 2nded., Vol. 3, K.C. Davis Publishing Co., 1983 DIVER, ColinS. ‘The Optimal Precision of Administrative Rules ’ (1983) 93 Yale Law Journal 65-109 GINNANE, T.J.

‘The Pattern of Reform in Administrative Law’ (1984) 58 Law Institute Journal 786-791 GOLDRING, John ‘Administrative Law — Proposals for Reform’ (1983) 8 Legal Service Bulletin 289 GREY, J.H.

‘Ideology of Administrative Law’ (1983) 13 Manitoba Law Journal 35-52 GRIFFITHS, John ‘The Administrative Review Council' (1984) 58 Law Institute Journal 822-825 GRUBB, A.

‘Two Steps Towards a Unified Administrative Law Procedure’ [1983] Public Law 190-202 GYLES, Roger ‘Impact of Administrative Review’, Paper delivered at 22nd Australian Legal Convention, Brisbane, 3-8 July 1983

HARRINGTON, J.T. & FRICK, B.A. Opportunities for Public Participation in Administrative Rulemaking’ (1983) 15 Natural Resources Law 537-567 HOTOP, S.D.

Cases and Materials on Review of Administrative Action, 2nd ed., Law Book Co., 1983 KENNAN, J. ‘Administrative Law: Developments in Victoria’ (1984) 58 Law Institute Journal 826-829 KIRBY, The Hon. Justice M.D.

‘Administrative Reform Again’ [1983] Reform 75-78 KIRBY, The Hon. Justice M.D. ‘Administrative Turnabout’ [1984] Reform 71-74 LAW REFORM COMMISSION — AUSTRALIA

Privacy, Vols. 1,2 and 3, A.G.P.S., 1983

LAW REFORM COMMISSION — AUSTRALIA Reform of Contempt Law, Issues Paper No. 4, January 1984

66

LEVINE, S.

‘How to Review an Administrative Rule’ (1983) 56 Wisconsin Bar Bulletin 40-42

McAUSLAN, Patrick 'Administrative Law, Collective Consumption and Judicial Policy’ (1983) 46 Modern Law Review 1-20

McELROY, R.G. A Remedy in Damages for Administrative Wrongdoing?’ (1983) 15 New Zealand Law Journal 9-13

MIDDLETON, John & CAVANOUGH, Tony Review of Tribunal Decisions: An Introduction to Administrative Law, Leo Cussen Institute, 1983

PEIRIS, G.L. ‘Natural Justice and Degrees of Invalidity of Administrative Action' (1983) 35 Administrative Law Review 255-362

PEIRIS, G.L. ‘The Doctrine of Locus Standi in Commonwealth Administrative Law’ (1983) Public Law, 52-90

POPPER, A.F. ‘An Administrative Law Perspective on Consensual Decision Making’ (1983) 35 Administrative Law Review 255-362

RODGERS, W .H ., jr. ‘Natural Law of Administrative Law’ (1983) 48 Modern Law Review 101-111

SAMUEL, G. ‘Public and Private Law: a Private Lawyer’s Response’ (1983) 46 Modern Law Review 558-583

SANTAMARIA, J.G. ‘Administrative Law: the Literature" (1984) 58 Law Institute Journal 830-832

SCHWARTZ, Bernard Administrative Law, 2nd ed.. Little Brown & Co., 1984

SKOLER, D.J. ‘The Changing Role of Administrative Law Judges: Time to Shift Gears’ (1983) 22 Judges 24-28

STEVENS, R.E. ‘Preservation of the Right of Appeal from Administrative Agencies’ (1983) 46 Texas Bar Journal 671-679

SYKES, E .I., LANHAM, D .J.. and TRACEY, R.R.S. General Principles of Administrative Law, 2nd ed., Butterworths, 1984

TAYLOR, G.D.S. ‘Individual Standing and The Public Interest: Australian Developments’ (1983) Civil Justice Quarterly 353-376

VOLKER, D. ‘A Departmental Head’s Perspective of Administrative Law’, Address Given at Administrative Law Seminar for Departmental Heads, 7 February 1984

W ILENSKI, Peter ‘Impact of Administrative Law on Public Administration — An Interim View’, Address Given at Administrative Law Seminar for Department Heads, 7 February 1984

WILLIAMS, D.G.T. ‘Is Administrative Law Fair to Government?’, Paper Delivered at 7th Commonwealth Law Conference, Hong Kong, 20 September 1983

WILLIAMS, D.G.T. ‘The Council on Tribunals: The First Twenty-One Years' (1984) Public Law 73-88

67

ADMINISTRATIVE TRIBUNALS

BALMFORD, Rosemary ‘The Administrative Appeals Tribunal in Practice’ (1984) 58 Law Institute Journal 799-810 ENRIGHT, Christopher The Administrative Appeals Tribunal, Macquarie University, 1983 FORREST, Martin

‘Reporting and Review of Quangos’ (1983) 42 Australian Journal o f Public Administration 82-103

HALL, Allan N. ‘Aspects of Federal Jurisdiction: The Administrative Appeals Tribunal (Cth)’ (1983) 57 Australian Law Journal 389-406 LUCIRE, Yolande

‘Two New Laws: The Administrative Appeals Tribunal and Freedom of Information Act’ (1983) 13 Australian Social Welfare: Impact 47-49 MAGINN, Paul T. ‘The Administrative Appeals Tribunal and Accident Compensation’ (1984) 58 Law Institute

Journal 394-398

NEW ZEALAND PUBLIC AND ADMINISTRATIVE LAW REFORM COMMITTEE Report on Appeals on Questions o f Law from Administrative Tribunals, March 1982.

PIDGEON, C.R. ‘Bias and Administrative Tribunals’ (1983) New Zealand Law Journal 355-357 REPATRIATION REVIEW TRIBUNAL Procedure Manual, 1983 ROBBINS, A.J.

‘Representation Before Tribunals’ (1983) 8 Legal Service Bulletin 128-130 ROBBINS, A.J. ‘Administrative Tribunals in Victoria’ (1983) 2 Civil Justice Quarterly 23-27 THOMPSON, Linda L. and RODRIGUEZ, Selma

‘International Administrative Tribunals: Current Status & Related Bibliography’ (1983) 11 International Journal o f Legal Information 130-142

DEPORTATION

HUMAN RIGHTS COMMISSION — AUSTRALIA Human Rights and the Deportation of Convicted Aliens and Immigrants, A.G.P.S., 1983 LANE, Bill ‘The Pochi Decision’ (1983) 1 Human Rights 1-5 MACDONALD, Ian

‘Illegal Entry by Deception in Immigration Law’ (1983) 133 New Law Journal 475-476, 477-478

WEST, The Hon. S. ‘Criminal Deportation Policy’ (1983) 54 Australian Foreign Affairs Record 179-181

FREEDOM OF INFORMATION

ADLER, A. and HALPERIN, M. Litigation under the Federal F.O.I. and Privacy Acts, 9th ed., Centre for National Security Studies, 1983

ATTORNEY-GENERAL Freedom of Information Act 1982: Annual Report for the period 1 December 1982 to 30 June 1983, A .G .P.S., 1983

68

BAYNE, Peter ‘Freedom of Information: What You Can’t and Can Get and How to Get It’ (1984) 9 Legal Service Bulletin 121-126

BAZILLION, Richard,!. ‘Freedom of Information’ (1983) 15 Commercial Law Association Bulletin BAZILLION, Richard, J. ‘Freedom of Information: a Canadian Dilemma’ (1983) The Round Table 382-394 CANDLER, B.J.

'Implementation of the Australian Freedom of Information Act: A Personal View’, Paper delivered to the New Zealand Institute of Public Administration Annual Convention, 24-26 August 1983

CCH AUSTRALIA LTD. Guidebook to Commonwealth Freedom of Information, CCH Australia Ltd, 1984 DURIE, Robin ‘The Australian Broadcasting Tribunal and The Freedom of Information Act 1982’ (1983) 3

Communications Law Bulletin 12-13 HARRISON, Kate Documents, Dossiers and the Inside Dope, Australian Consumers Associations and the Public Interest Advocacy Centre, 1984

HARTNELL, A.G. ‘Freedom of Information’ (1983) 15 Commercial Law Association Bulletin 71-81 KIRBY, The Hon, Justice M.D. ‘Information and Freedom’, Paper delivered to Education Department of Victoria, School

Library Association of Victoria, The Housden Lecture 1983, Melbourne, 6 September 1983 LEPPER, Stephen J. ‘Developments Under the Freedom of Information Act — 1983’ (1983) 2 Duke Law Journal 390-422 OFFICE OF INFORMATION AND PRIVACY, U.S. Department of Justice, Freedom of

Information Case List, September 1983

RANKIN, T.M. 'The New Access to Information and Privacy Act: A Critical Annotation" (1983) 15 Ottawa Law Review 1-37

RILEY, T. and RELYEA, H.C. Freedom of Information Trends in the Information Age, Frank Cass, 1983 SEMINAR ON ACCESS TO GOVERNMENT INFORMATION. Australian National University, Faculty of Law, 27-29 May 1983, Papers Delivered by:

BAYNE, Peter ‘Exemptions Under the Freedom of Information Act’ BURNETT, Robin ‘The Giving of Reasons'

CURTIS, L.J. ‘Freedom of Information in Australia’

KIRBY, The Hon. Justice M.D. ‘Summing Up: FOI in Australia — First Term Report’

PROUST, Elizabeth ‘Exemptions Under the Freedom of Information Act — the Victorian Freedom of Information Act’

ROBINSON, G.O. ‘The United States Experience: Lessons for Australia'

ROSE, Alan ‘Exemptions Under The Freedom of Information Act: An Official’s Viewpoint’

STEPHEN, The Rt Hon, Sir Ninian ‘The Problems of Modem Government-Responsibility in Relation to Open Government’

69

[These papers have now been published in (1984) 14 Federal Law Review. ] TEAGUE, Bernie and EMILIOS, Kyron ‘Taking Advantage of the New Freedom of Information Act’ (1983)57 Law Institute Journal 965-969

TRACEY, Richard ‘Freedom of Information: The First Cases’ (1984) 58 Law Institute Journal SI 1-813 WATERFORD, Jack ‘Fighting for EOT (1983) 2 Australian Society 6-10

WATERFORD, Jack ‘The Inside Story — Freedom of Information’ Australian Social Welfare: Impact 8-10 WILLIAMS, D.J. ‘The Freedom of Information Act 1982’ (1984) 18 Taxation in Australia 766-817

JUDICIAL REVIEW

CALDWELL, J.L. ‘Judicial Review of Administrative Authorities’ (1983) New Zealand Law Journal 294-295 CAVANOUGH, Tony ‘The Progress of Statutory Judicial Review Through the Cases’ (1984) 58 Law Institute Journal

792-798

ENRIGHT, Christopher The Administrative Decisions (Judicial Review) Act 1977, Macquarie University, 1984 INDGREN, J.S. ‘Beyond Cases: Reconsidering Judicial Review’ (1983) Wisconsin Law Review 583-638 SUNKIN, M.

‘Judicial Review Rights and Discretion in Public Law’ (1983) 46 Modern Law Review 645-653

OMBUDSMAN

CAIDEN, Gerald E. International Handbook of the Ombudsman, Vols. 1 & 2, Greenwood Press, 1983.

ENRIGHT, Christopher Ombudsmen, Macquarie University, 1983

RICHARDSON, J.E. ‘The Ombudsman’ (1984) 58 Law Institute Journal 814-821

YARDLEY, D.C.M. ‘Local Ombudsman in England: Recent Trends and Developments’ (1983) Public Law 522-531

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APPENDIX 3

ADMINISTRATIVE APPEALS TRIBUNAL MEMBERSHIP

As at 30 June 1984, the members of the Administrative Appeals Tribunal were as follows:

A u stra lia n C a p ita l T e r r ito r y

Judges The Hon. Mr Justice J.D. Davies (President)

The Hon. Mr Justice J.F. Gallop The Hon. Mr Justice A.R. Neaves

Deputy Presidents Mr A.N. Hall

M rR.K. Todd

Senior Members Mr J.O. Ballard

M rE. Smith, O.B.E.

Members Mr D.R.S. Craik, C .B ., O.B.E.

Mr J.D. Horrigan Dr A.H. M arshC.B.E., K.St.J.

N ew S o u th W a le s

Judges The Hon. Mr Justice D.G.P. McGregor

The Hon. Mr Justice T.R. Morling The Hon. Mr Justice B.A. Beaumont

Deputy President

Senior Members

Mr R.F. Smart, Q.C.

Mr B.J. McMahon The Hon. Sir William Prentice, M.B .E. Miss C.E. Backhouse

Mr W.A.G. Enright

Members Dr E.L. Davis

Mr G.D. Grant Dr D.J. Howell Mrs J.H. McClintock, A.M. Miss M.S. McLelland Mr I. Prowse, O.B.E. Mr A.P. Renouf, O.B.E. M rC.A. Woodley

Q u e e n sla n d

Judge The Hon. Mr Justice G.E. Fitzgerald

(resigned 30 June 1984)

Senior Member

Members

The Hon. J.B.K. Williams, C.B.E.

Dr N.C. Davis Mr W.A. De Maria Mrs H.M. Pavlin

S o u th A u s tra lia

Judge Members

The Hon. Mr Justice F.R. Fisher D rJ.T.B . Linn Mr B.C. Lock Mr F.A. Pascoe, A.M.

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T a s m a n ia

Deputy President M rR.C. Jennings, Q.C.

V ic to ria

Judge

Deputy President

Senior Members

The Hon. Mr Justice K.J. Jenkinson

Mr I.R. Thompson

Mrs R.A. Balmford Mrs J.R. Dwyer

Members Sir Ernest Coates, C.M.G.

M rL .J. Cohn Dr R.G. Downes, C.B. D rH .W . Garlick Captain P.J. Gibbes, M.V.O., D.F.C., A.F.C. Mrs H.E. Hallowes Mr R.A. Sinclair

W e s te rn A u s tra lia

Judge

Senior Member

Members

The Hon. Mr Justice J.L. Toohey The Hon. G.D. Clarkson, Q.C.

D rJ.G . Billings Mr I.A. Wilkins

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APPENDIX 4

ADMINISTRATIVE APPEALS TRIBUNAL JURISDICTION

D E C IS IO N S S U B J E C T T O R E V IE W

The following list is a summary of the particular provisions under which decisions may be made that are subject to review by the Tribunal as at 30 June 1984. The list has been supplied by the Registrar of the Tribunal, Mr P.D. Massie.

It should be noted that as new jurisdictions are vested in the Tribunal from time to time it is likely that further jurisdictions have been vested since 30 June 1984. Advice on this aspect can be obtained from the Tribunal Registries.

D E S C R IP T IO N

The list is arranged alphabetically by short title of enactment and gives the following information:

1. The principle enactment under which the AAT has jurisdiction in bold type.

2. The provision(s) which vests jurisdiction in the AAT in italics. The number and year of the enactment(s) which introduced and amended this provision(s) in brackets.

3. The provision(s) under which a reviewable decision may be made.

4. A brief description of the reviewable decision(s).

A d m in is tra tiv e A p p e a ls T r ib u n a l A ct 1975 Sections 36(3) and 36A(2)(b) (26 o f 1982) Sections 36(3), 36A(2)(b) Certification that disclosure of information, or of matter contained in a document, or the

answering of a question would be contrary to the public interest

A ir N a v ig a tio n R e g u la tio n s Administrative Appeals Tribunal Act 1975 Sched Pt III (91 of 1975) Regulation 254 Decisions refusing, suspending, varying or cancelling certificates or licences, otherwise than

under regs 256 or 257

A n ta rc tic M a r in e L iv in g R e so u rc e s C o n s e rv a tio n A c t 1981 Section 23 (30 o f 1981) Sections 9, 11, 12 Refusal to grant permit, suspension of permit and cancellation of permit

A n ta rc tic T re a ty (E n v iro n m e n t P ro te c tio n ) A ct 1980 Section 28 (103 of 1980) Sections 9, 10, 11, 12 Refusal to grant or to renew permits to do acts which would otherwise be offences; restrictions

on permits; suspension and revocation of permits; variation and revocation of conditions

A pple a n d P e a r (C o n d itio n s o f E x p o rt) R e g u la tio n s Regulations 15A (SR 222 o f 1979) Regulations 5(3), 6(3), 7, 15 Refusal and revocation of export license; refusal to grant permit for export to licensee;

suspension and cancellation of export licence

A rc h iv es A c t 1983 Section 43 (79 o f 1983) Section 43 Refusal to grant access, or partial access, to a record

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A u d it A ct 1901 Section 70AC(4) (8 o f 1979) Section 70AC(1) Determinations of liability for loss of or deficiency in public moneys or damage or loss of public

property

A u s tra lia n C a p ita l T e r r ito r y T a x a tio n A d m in is tra tio n A c t 1969 Section 21 (61 o f 1981) Section 20 Revocation of authority to banker relating to stamp duty on cheques

A u s tra lia n F ilm C o m m issio n A c t 1975 Section 10(8) (61 o f 1981) Section 10 Requirement of proportion of Australian short films to be exhibited

A u s tra lia n M e a t a n d L iv e sto c k C o rp o ra tio n A ct 1977 Sections 16E(2), 16N(2), 16Q(8), 16R(10), 16S(4) (46 o f 1982) Section 46A (57 o f 1984) [(57 of 1984) not yet in operation] Sections 16E(2), 16H(2), 16Q(2), 16R(7), 16S(1), 30J(7), 30K(2)

Refusal to grant application for licence; refusal to grant application for export licence; orders and directions to be complied with by a holder of an export licence; grant of an extension of period for seeking a renewal of an export licence; suspension of an export licence under s. 16R; cancellation, non-renewal, suspension or reprimand of the holder of an export licence under S.16S; refusal to enter particulars of a person upon a register; removal of particulars

A u s tra lia n M ilita r y R e g u la tio n s Regulation 816A(2) (SR 60 o f 1981) Regulation 816A(2) Amount of compensation to be made for damage or loss sustained by an owner or occupier of

land

A u s tra lia n N a tio n a l R ailw ay s C o m m issio n A ct 1983 Section 76(6) (140 o f 1983) Section 76(2) Declaration closing a road for a specifed period

A u s tra lia n W in e a n d B ra n d y C o r p o r a tio n (E x p o rt) R eg u latio n s Regulation 10 (SR 156 o f 1981) Regulations 5(1), 7(2), 9(2), 9(3) Refusal to grant a licence; refusal to grant a certificate of compliance; suspension or cancellation

of a licence

A u to m a tic D a ta P ro c e ssin g E q u ip m e n t B o u n ty A ct 1977 Section 22 (28 o f 1977) Sections 5(1), 9, 10(1), 12(3), 12(4), 12(6), 12(7), 12(8), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B a rle y R e s e a rc h A c t 1980 Section 36 (168 o f 1980) Sections 6(5), 7(3) Decisions on release from liability to pay levy; remission of penalty for non-payment

B o u n ty (A g ric u ltu ra l T ra c to rs ) A c t 1966 Section 18A (30 o f 1977) Sections 6(5), 6(6), 8, 9(1), 11(3), 11(4), 11(5), 11(6), 11(8), 17 Decisions on eligibility for bounty, registration of premises and amount of security

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B ounty (B ed S h e e tin g ) A c t 1977 Section 21 (29 o f 1977) Sections 9, 10. 11(3), 11(4), 11(6), 11(7), 11(8), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (B e rry F ru its ) A c t 1982 Section 23 (132 o f 1982) Sections 9, 12, 13(2), 13(7), 15 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (B ooks) A c t 1969 Section 20A (109 o f 1978) (69 of 1979) Sections 3A(2), 3A(3), 4(2), 4(2A), 4(3), 4AA(2), 4AA(3), 9, 9A, 11(3), 11(4), 11(5), 11(6), 11(7), 16

Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (C o m m e rc ia l M o to r V ehicles) A ct 1978 Section 22 (208 o f 1978) Sections 4(4), 5, 8(3), 9, 10, 12(3), 12(4), 12(5), 12(6), 12(7), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (D rillin g B its) A ct 1980 Section 22 (33 o f 1980) Sections 5(1), 10, 11, 12(3), 12(4), 12(6), 12(7). 12(8), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (H ig h A lloy S te el P ro d u c ts ) A c t 1983 Section 23 (126 of 1983) Sections 8(l)(b), 11(3), 12(2), 12(3). 12(4), 12(7), 12(8), 12(9). 12(10), 12(11), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (In je c tio n M o u ld in g E q u ip m e n t) A ct 1979 Section 22 (78 o f 1979) (77 o f 1983) Sections 5(1), 8A(1), 8A(8), 9. 10, 12(3), 12(4). 12(5), 12(6), 12(7), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (M e ta l-W o rk in g M a c h in e T o o ls) A ct 1978 Section 21 (154 o f 1978) Sections 4(1), 8, 9. 11(3), 11(4), 11(5), 11(6), 11(7), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (N o n -a d ju s ta b le W re n c h e s) A c t 1981 Section 23 (18 o f 1981) Sections 5(1), 11, 12, 13(3), 13(4), 13(5), 13(6), 13(7), 15 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (P a p e r) A ct 1979 Section 22 (72 o f 1979) Sections 10, 11. 12(3), 12(4), 12(6), 12(7), 12(8), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (P en icillin ) A ct 1980 Section 24 (47 o f 1980) Sections 10, 11, 12(3), 12(4), 12(6), 12(7), 12(8), 13(3), 13(4), 13(7), 13(8), 16 Decisions on eligibility for bounty, registration of premises and amount of security

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B o u n ty (P o ly e s te r-C o tto n Y a rn ) A ct 1978 Section 22 (7 o f 1978) Sections 9, 10, 12(3), 12(4), 12(6), 12(7), 12(8), 14 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (P rin te d F a b ric s ) A ct 1981 Section 21 (102 o f 1981) Sections 2(1), 3(1), 9, 10, 11(3), 11(4), 11(5), 11(6), 11(7), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (R e fin e d T in ) A ct 1980 Section 22 (46 o f 1980) Sections 4(3), 7, 10, 11, 12(3), 12(4), 12(7), 12(8). 14 Decisions on eligibility for bounty, substitution of concentrates, registration of premises and

amount of security

B o u n ty (R o o m A ir C o n d itio n e rs ) A ct 1983 Section 21 (10 o f 1983) Sections 4(1), 10(1), 11(3), 11(4), 11(7), 11(9), 11(10), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (R o ta ry C u ltiv a to rs ) A c t 1979 Section 24 (70 o f 1979) Sections 5(1), 12, 13, 14(3), 14(4), 14(6), 14(7), 14(8), 16 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (S h ip s) A c t 1980 Section 20 (48 o f 1980) Sections 3(2)(b), 4(1), 9, 10(3), 10(4), 10(5), 10(6), 10(7), 12 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (S teel M ill P ro d u c ts ) A c t 1983 Section 24 (125 o f 1983) Sections 6, 12(3), 13(3), 13(4), 13(7), 13(8), 13(9), 13(10), 13(11), 15 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (S teel P ro d u c ts ) A ct 1983 Section 21 (11 o f 1983) Sections 7(l)(b), 10, 11(3), 11(4), 11(7), 11(9), 11(10), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (T e x tile Y a rn s ) A c t 1981 Section 21 (103 o f 1981) Sections 2(1), 3(1), 9, 10, 11(3), 11(4), 11(5), 11(6), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty ( T r a c to r C a b s) A ct 1983 Section 20 (78 o f 1983) Sections 4(1), 9, 10(3), 10(4), 10(7), 10(9), 10(10), 12 Decisions on eligibility for bounty, registration of premises and amount of security

B o u n ty (T w o -S tro k e E n g in e s) A ct 1984 Section 21 (66 o f 1984) Sections 4(1), 10(3)(a), 10(3)(b), 11(7), 11(9), 11(11), 13 Decisions on eligibility for bounty, registration of premises and amount of security

B ro a d c a s tin g a n d T elev isio n A ct 1942 Section 119A (160 o f 1977) (210 o f 1978) (113 o f 1981) (154 o f 1982) Sections 85, 86, 86(6A), 87(2), 88, 89A, 90JA, 92FAA, 105AB, 105B, 119(2) Various decisions, determinations and directions

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C a n b e rra S e w e ra g e a n d W a te r S u p p ly R e g u la tio n s (A .C .T .) Regulation 117 (R 14 o f 1978) (R 11 o f 1980) (R 44 o f 1982) Regulations 6, 7, 15AB, 98, 103, 117 Suspending, cancelling or refusal to grant plumbing and drainage permits; requirement that

occupier connect water circulation apparatus; refusal to permit connection of water pumping appliance or only on certain conditions

C a n n e d F r u its L evy A c t 1979 Section 12 (162 o f 1979) Section 5(2) Refusal to issue certificate that canned fruits be destroyed, are unfit for consumption or for

domestic requirements

C a n n e d F r u its L evy C o lle c tio n A ct 1979 Section 12 (162 o f 1979) Section 5(4) Remission of part only of a penalty; refusal to remit penalty

C h iro p ra c to rs R e g is tra tio n O rd in a n c e 1983 (A .C .T .) Section 56 (28 o f 1983) Sections 23(1), 32, 56(l)(a), 56(l)(c), 56(l)(d), 56(1 )(e), 56(2) Refusal to terminate the suspension of a person or to set aside an order suspending registration

on health grounds; refusal to permit an extension of the period during which an executor, administrator or trustee may carry on the business of a deceased chiropractor; refusal to authorize the registration, or order the re-registration, of a person; cancellation of the registration of a person; suspension of the registration of a person otherwise than under s.24(2); reprimanding a person; refusal to grant temporary registration to a person or refusing to renew a temporary registration

C ity A re a L ea ses O r d in a n c e 1936 (A .C .T .) Sections 11B, 18B(7) (56 o f 1982) Sections 11 A(9), 18B Decisions determining the capital sum that the lease might be expected to have realized on

variation of purposes for which the land is leased; decisions on rent variations reconsidered by the Minister

C o al E xcise A c t 1949 Section 27A (19 o f 1981) Sections 10, 12, 14, 15, 16, 17 Determination of licence fee and security; requirement of fresh security; refusal to grant or

renew licence; transfer or cancellation of licence.

C o m m e rc e (T r a d e D e sc rip tio n s) A ct 1905 Section 15 (61 o f 1981) (48 o f 1982) Sections 7(3), 10, 11(3), 13

Permission for goods otherwise forfeitable to be delivered or exported; forfeiture of goods with false trade description; permission for goods otherwise forfeitable to be delivered; prohibition of export of goods with false trade descriptions

C o m m o n w e a lth E le c to ra l A c t 1918 Sections 58AA, 58U(5) (144 o f 1983) Sections 39C(1), 58(6), 58M(1), 58Q(6), 58U(2), 58U(4), Part IXA Registration, change of registration and de-registration of a political party; refusal to be treated

as an itinerant elector; a decision made by the Electoral Officer reviewing certain decisions made by a Divisional Returning Officer under ss.39B(l), 40, 43, 46A(1), 46A(2), 52, 55, 56 and 86 and in relation to such other information as the Divisional Officer thinks relevant to the review of the claim or objection, as the case may be

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C o m p e n s a tio n (C o m m o n w e a lth G o v e rn m e n t E m p lo y ees) A ct 1971 Section 63 (74 o f 1981) Section 63 All determinations by the Commissioner granting, cancelling or varying compensation

C o m p la in ts (A u s tra lia n F e d e ra l P olice) A ct 1981 Section 28 (21 o f 1981) (62 o f 1983) Section 28 Ombudsman may recommend that Commissioner of Police refer specified question to AAT for

advisory opinion

C o n s u m e r A ffa irs O rd in a n c e 1973 (A .C .T .) Section 15FK (100 o f 1982) Sections 15FK(1), 15FK(2) Decision of Minister making, varying, revoking or amending a consumer product safety order;

decision by the Director making, varying or revoking a consumer product safety order

C o p y rig h t A c t 1968 Section 135(10) (19 o f 1979) (80 o f 1982) Section 203G(7) (154 o f 1980) Sections 135(10), 203G(6)

Delivery upon security of copies of a work liable to be forfeited; requirement that body administering central records authority return copying records

C o tto n R e s e a rc h A ct 1982 Section 29 (146 o f 1982) Section 7(3) Decision to remit whole or part of levy

C u sto m s A c t 1901 Section 273GA (110 o f 1980) (157 o f 1981) (81 o f 1982) (108 o f 1982) (19 o f 1983) (72 o f 1984) 1(72 of 1984) not yet in operation)] Sections 35A, 119, 126, 132B, 132C, 151 A, 16IB(4) 164. 164B, 167(etc ), 269N(4), 269N(5), Parts V, VA*, XI

Various decisions and directions * Decisions under Part VA become reviewable when s. 66 of (81 of 1982) is proclaimed

C u sto m s R e g u la tio n s Administrative Appeals Tribunal Act 1975 Sched Pt XIII (91 o f 1975) Regulations 128B, 129, 131, 132(2), 133, 134 Refund, rebate or remission of duty and various decisions in relation to drawback of duty

C u sto m s (C in e m a to g ra p h Film s) R e g u la tio n s Regulation 34(2) (SR 38 o f 1983) Regulation 34(1) Refusal by the Minister to approve an organisation or event; revocation of approval

C u sto m s (P ro h ib ite d Im p o rt) R e g u la tio n s Regulation 5(18A) (SR 44 o f 1982) Regulations 5(5), 5(17) Refusal to grant and revocation of licence to import drugs

C u sto m s T a r if f A ct 1982 Section 273H Customs Act 1901 (115 o f 1982) Section 11 Direction of the Minister as to the value of a part, component or ingredient of any goods

C u sto m s T a r if f (C o al E x p o rt D uty) A ct 1975 Section 133 (3) (107 o f 1975) (177 o f 1979) Section 273J Customs Act 1901 (72 o f 1984)

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[(72 of 1984) not yet in operation] Sections 4, 6, 7, 8 Decision as to rate of duty; exemptions from duty; declarations as to new mines and major new extensions to existing mines; decisions as to ash content of coking coal

D a iry In d u s tr y S ta b iliz a tio n A ct 1977 Section 24A <94 o f 1978) (64 o f 1983) Section 11A Remission of penalty for non-payment of levy; determination of quota or review of a variation of

a quota

D a iry P ro d u c ts (E x p o rt In s p e c tio n C h a rg e ) C o lle ctio n A ct 1982 Section 10 (11 o f 1982) Section 7(2) Refusal to remit penalty for non-payment of levy

D a n g e ro u s G o o d s O rd in a n c e 1984 (A .C .T .) Items 26 and 82 o f Schedule (4 of 1984) This Ordinance modifies the Dangerous Goods Act 1975 (NSW) and the Dangerous Goods Regulations (NSW) in their application to the ACT

Items 26, 82 Decisions in relation to the issue, renewal, cancellation or suspension of licences or permits for the keeping, carriage, importation, manufacture or sale of explosives; certain decisions under the Dangerous Goods Regulations for example, refusal to permit the use of premises for keeping explosives, refusing to issue shot firers’, collector’s or fireworks display permits etc.

D efence A c t 1903 — D e te rm in a tio n u n d e r S ection 58B (Del 1 o f 1982) Clause 12 Decision specifying an amount of additional compensation to members of Defence Force

Reserve

D efence F o rc e s R e tire m e n t a n d D e a th B en efits A c t 1973 Section 99 (33 o f 1976) Section 99 ■

All decisions of the Authority

D entists R e g is tra tio n O rd in a n c e 1931 (A .C .T .) Section 38B (47 o f 1981) (29 o f 1982) Sections 20, 23AC, 23AD, 30 Refusal to register or re-register; cancellation or registration; reprimanding a person; suspension

of registration otherwise than under s.3 1 (2); refusal to grant or renew special registration; refusal to extend time practice can continue to allow administration of estate of deceased dentist

D esigns A c t 1906 Section 40K (42 o f 1981) Sections 25B, 27B(2), 27C Directions and refusal to give directions to co-owners; application for restoration of the

registration of a design; dismissal and other decisions of the Registrar under S.27C

D iesel F u e l T a x a tio n (A d m in is tra tio n ) A ct 1957 Section 21A (63 o f 1980) Sections 12(2), 12(3A) Refusal to consent to sale of diesel fuel purchased by certificate holder at lower rate; extension

of time for notification of use of fuel

D istillatio n A c t 1901 Section 82B (61 of 1981) Sections 20, 22, 23, 24 Refusal to grant or renew licence to distil; cancellation of licence; requirement of fresh security

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D rie d F r u its E x p o r t C o n tro l (L ice n ces) R e g u la tio n s Regulation 10A (SR 331 o f 1980) Regulations 5(2), 5(3), 8(2), 8(3) Refusal to grant a licence or certificate; cancellation or suspension of a licence, revocation of a

certificate

D rie d V in e F r u its E q u a liz a tio n A c t 1978 Section 31 (195 o f 1978) Sections 11(5), 12(3), 19(3) Release from liability; remission of penalty; direction of no further payments

D rie d V in e F r u its E q u a liz a tio n L evy A c t 1978 Section 31 (195 o f 1978) Section 5(2) Failure to issue certificate resulting in imposition of levy in respect of certain dried fruits

E d ib le O ils (E x p o r t In sp e c tio n C h a rg e ) C o lle ctio n A ct 1982 Section 10 (13 o f 1982) Section 7(2) Refusal to remit penalty for non-payment of levy

E g g I n d u s tr y O r d in a n c e 1975 (A .C .T .) Section 19 (43 o f 1979) Sections 19(a), 20(2) Refusal to grant, cancellation or variation of licence otherwise than under s.20; giving or

refusing to give a direction varying a licence

E g g s ( E x p o r t In sp e c tio n C h a rg e ) C o lle c tio n A ct 1982 Section 10 (15 o f 1982) Section 7(2) Refusal to remit penalty for non-payment of levy

E n v iro n m e n t P ro te c tio n (S ea D u m p in g ) A c t 1981 Section 24 (101 o f 1981) Sections 19, 20, 21, 23 Refusal to grant permit; suspension and revocation of permit; imposition of and refusal to revoke

or vary conditions on permit

E x cise A c t 1901 Section 162C (61 o f 1981) ( 81 o f 1982) (108 o f 1982) Sections 5A, 40, 43, 59A, 59B, 60, 61D*, 78A, 154 Refusal of Collector to pay a rebate; demand for duty; declaration of an approved place; grant

and cancellation of licence to manufacture; quota orders and variation of quota orders; demand for payment of excise where goods not safely kept or satisfactorily accounted for; decision of the Collector relating to exemption to travellers purchasing excisable goods purchased at duty free shops; refusal of Collector to pay a rebate; demand for duty

* Decisions under S. 61D become reviewable when s. 76 of (81 of 1982) as amended by (39 of 1983) comes into operation

E x cise R e g u la tio n s Administrative Appeals Tribunal Act 1975 Sched Pt XVIII (91 o f 1975) Regulations 58, 76, 77, 78, 78A, 78B Refunds, remission and drawback of excise duty

E x p o rt E x p a n s io n G r a n ts A c t 1978 Section 17(6) (162 o f 1978) Section 17 Decisions of the Board re a claim

E x p o rt M a r k e t D e v e lo p m e n t G r a n ts A c t 1974 Section 40AAA(2) (157 o f 1982)

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Section 40A(6) (192 o f 1978) Sections 6(2), 40A Decision of the Secretary of Department of Trade and Resources re a recognized tourism promotion; decisions of the Board re a claim

F irst H o m e O w n e rs A c t 1983 Section 27(5) (46 o f 1983) Section 27(3) All decisions of the Secretary except under s.20

F ish e rie s A c t 1952 Section 12S(6) (30 of 1984) Sections 6B, 9(1), 9(2), 9(3), 9(4), 9(4A), 9(4B), 9(5), 9(5B), 9(6), 9(7), 9A(1), 9A(4), 12P(4), 12S(2)

Various decisions reconsidered by Joint Authority under s,12S(4) as follows: refusal to grant or revocation of fishing (scientific) permit; imposition, variation or revocation of conditions on such a permit; refusal to grant, endorse or transfer a licence; refusal to revoke an endorsement; imposition, variation or revocation of conditions on a licence; refusal to remit a licence fee; cancellation or suspension of a licence; refusal to endorse, suspension or cancellation of an endorsement by Joint Authority; refusal to allow an extension of time for reconsideration by Joint Authority

F re e d o m o f In f o rm a tio n A c t 1982 Sections 51, 55, 59 (3 o f 1982) Section 58F (81 o f 1983) Sections 29, 51(1), 54(1), 59(1)

Refusal to grant access or deferring the provision of access to a document; refusal to allow a further period for making an application for internal review; questions re conclusive certificates; refusal to amend personal record; liability to pay a charge in respect of a request for access to a document; decision that a document is not exempt under S. 33A (application by a State); decision that a document is not exempt under s.43 (application by person who made submissions)

G r e a t B a r r ie r R e e f M a r in e P a r k R e g u la tio n s Regulation 22(6) (SR 262 o f 1983) Regulation 22(4) ■

Refusal to grant suspension or revocation of a permission to discharge or deposit waste

G u n L ice n ce O rd in a n c e 1937 (A .C .T .) Section 7P (3 o f 1979) Section 7P Refusal to grant or renew a gun licence, a pistol licence or dealer’s licence; refusal to approve a

pistol club, cancellation of approval; refusal to approve persons or cancellation of approval; police objections to licences

H a w k e rs O r d in a n c e 1936 (A .C .T .) Section 27A (5 o f 1978) Section 27 Refusal to grant or vary a licence, cancellation or suspension of a licence; refusal to grant a

permit, revocation of a permit or imposition of conditions

H e a lth In s u ra n c e A ct 1973 Section 5F (61 o f 1981) (118 o f 1981) Section 19E (49 o f 1982) Section 38(6) (54 o f 1983)

Sections 5, 5A, 5B, 5C, 5D, 5E, 19B(8), 19B(9), 19ΒΠ9), 23J(1), 24(1), 24(2), 24(5), 29(1), 29(2), 29A(1). 29A(2), 29B(1), 29B(2), 29B(4), 29B(5), 38(l)(b) Refusal by Director-General of Social Security to declare a person disadvantaged, or revocation of such a declaration; various decisions relating to the period during which a practitioner is

disqualified. Various decisions affirmed or varied by the Minister under s.38(4) as follows:

81

grant or variation of a certificate approving in principle of a private hospital; approval of premises with or without conditions as a private hospital or, alteration or additions to the premises of a private hospital; approval of premises with or without conditions as a private hospital; revocation of approval of premises as a private hospital; variation of categorization of particular private hospitals; variation of conditions to which an approval is subject; determination under s.32(4) of the Health Legislation Amendment Act 1983 of the category of private hospital to which premises belong

H om e D e p o sit A ssistan ce A ct 1982 Section 49 (40 o f 1982) Section 47 All decisions except under s.34

H om e S av in g s G r a n t A ct 1976 Section 40 (183 o f 1976) Section 39 All decisions of the Director-General

H oney L ev y C o lle ctio n A ct 1962 Section 12A (80 o f 1982) Section 8(3) Remission of penalty for non-payment of levy

In c o m e T a x A ssessm en t A ct 1936 Section 251K(5) (57 o f 1977) Section 25IK Cancellation of registration as a tax agent

In d u s tria l R e s e a rc h a n d D e v e lo p m e n t In c e n tiv e s A ct 1976 Section 41(6) (85 o f 1976) Section 41(4) Decisions by the Board re application for a commencement grant

In s u ra n c e A c t 1973 Section 63(7) (31 o f 1977) Sections 27, 29, 30(2), 30(3), 30(4), 30(5), 33(3), 36(1), 36(4), 37(1), 37(2), 41(2), 46(1), 51(1 )(b), 62, 93(3), 105(8), 105(12), 105G2A), 109, 113

Various decisions confirmed or varied by the Treasurer or Commissioner under s.63(4)

In s u ra n c e A m e n d m e n t A ct 1983 Section 48(6) (129 o f 1983) Section 48(1) Directions given to a body corporate with respect to the carrying on of its insurance business

In s u ra n c e (A g en ts a n d B ro k e rs) A ct 1984 Section 42 (75 o f 1984) Section 42(1) Any decision of a Commissioner under the Act except under s.47

In s u ra n c e (D eposits) A ct 1932 Section 17(2) (19 o f 1979) Section 17(1) Decisions of the Treasurer as to the net liability or premium income of persons carrying on

insurance business; value of securities deposited; amount of deposit

J u d g e s ’ P en sio n s A ct 1968 Section 17A (158 o f 1981) Sections 6(2AA), 13, 15(1), 15(3)

82

Refusal of Attorney-General to certify that retirement of a Judge due to permanent disability or infirmity; eligibility of children for orphan’s pension and apportionment; refusal to direct that payment of children’s pension be to specified person or that pension be expended in specified manner

L a k e s O rd in a n c e 1976 (A .C .T .) Section 51 (65 o f 1976) Sections 14(2), 26, 34 Determination of compensation for damage; revocation of authority to use a power boat;

cancellation of licence to sell or hire goods etc. in a lake area

L a n d R e n t a n d R a te s (D e fe rm e n t a n d R em issio n ) O rd in a n c e 1970 (A .C .T .) Sections 10(5), 21D (5 o f 1981) Section 21FB (70 o f 1976)

Sections 10(2), 21C, 21F Decision that prescribed ground for revocation of determinations to defer rates of pensioner exists; refusal to rebate land, sewerage and water rates in cases of hardship; determination of notional unimproved value of prescribed land

L a n d V a lu a tio n O rd in a n c e 1936 (A .C .T .) Section 7 (106 o f 1982) Section 7 Decisions of the Minister affirming or varying a recommendation of the Land Commissioner

concerning the rent payable under a Crown Lease

L e a se s O rd in a n c e 1918 (A .C .T .) Section 3AAA (107 o f 1982) Sections 3AAA(7)(a), 3AAA(7)(b) Decision of Minister affirming or varying offer to grant a lease upon the expiration of, or his

substitution for, existing lease; determination by Minister in relation to rent payable under lease

L ea ses (S p ec ia l P u rp o s e s ) O r d in a n c e 1925 (A .C .T .) Section 5B (42 o f 1981) Section 5A Re-appraisement of unimproved value of land

L ife I n s u r a n c e A c t 1945 Section 138(8) (32 o f 1977) (143 of 1983) Sections 4A(3), 16A(1), 19(1), 20, 23A(2), 39(2), 40(8), 40(10), 40(11), 47. 52(3), 52(4), 52(5), 58(1), 58(3), 58(4)

Various decisions and determinations confirmed or varied by the Commissioner under s. 138(4)

L iq u e fie d P e tro le u m G a s (G ra n ts ) A c t 1980 Section 15 (37 o f 1980) (173 of 1980) (97 of 1982) Sections 6(l)(a), 6(l)(b), 6(1 )(c), 6(3)(a), 6(3)(b), 6(3)(c), 6(6), 6(6A)(a), 6(6A)(b), 7(l)(a),

7(1 )(b), 7(l)(c), 7(4), 7(5), 7(6A)(a), 7(6A)(b), 7A(7) Various decisions and determinations and refusals to determine or decide

L iq u id F u e l E m e rg e n c y A c t 1984 Section 44(6) (5 o f 1984) Sections 10(3), 11(3), 12(2), 12(6). 13(3), 44(2) Various decisions

L iv e -S to c k S la u g h te r L evy C o lle ctio n A ct 1964 Section 15A (80 o f 1982) Section 9(3) Remission of penalty for non-payment of levy

C3

L o n g S e rv ic e L e a v e (B u ild in g a n d C o n s tru c tio n In d u s try ) O rd in a n c e 1981 (A .C .T .) Section 59 (23 o f 1981) Sections 36(4), 37(1), 37(4), 38(1), 41, 48, 52, 55, 56, 63 Various decisions

M a n a g e m e n t a n d In v e s tm e n t C o m p a n ie s A ct 1983 Section 47 (123 o f 1983) Section 47 Decisions to revoke or to refuse to renew a management and investment company licence

M a r r ia g e A c t 1961 Section 34(1) (209 o f 1976) Div 1 Pt IV, Section 33 Refusal to register a Minister of religion as marriage celebrant; removal from register

M e a t C h ic k e n L evy C o lle ctio n A ct 1969 Section 10A (80 o f 1982) Section 5(2) Remission of penalty for non-payment of levy

M e d ica l P r a c titio n e r s R e g is tra tio n O rd in a n c e 1930 (A .C .T .) Section 39C (48 o f 1981) (30 o f 1982) (13 o f 1984) Sections 28, 28A, 29A, 30, 30A, 38A, 39BA Refusal to register or re-register; cancelling the registration of a person; reprimand; suspension

of registration otherwise than under s.31(2); refusal to grant or renew special registration; refusal to grant or renew temporary registration; refusal to approve, or withdrawal of approval of, a qualified person as a medical officer; suspension of registration of medical practitioner on health grounds; order restricting performance of medical services on health grounds; refusal to extend period during which executor, administrator or trustees may carry on the business of deceased medical practitioner

M e n ta l H e a lth O r d in a n c e 1983 (A .C .T .) Section 69 (52 o f 1983) Sections 69(a), 69(b), 69(c). 69(d), 69(e) Refusal to grant a licence under Pt. VIII of the Ordinance relating to the control of private health

facilities; cancellation of a licence under Pt. VIII; refusal to restore a licence under Pt. VIII; variation or revocation, or refusal under s.63(l) to vary or revoke a condition specified in a licence under Pt. VIII; making or refusing under s.63(l) to make a licence under Pt. VIII subject to a condition

M ig ra tio n A c t 1958 Section 66E (61 o f 1981) (112 o f 1983) Sections 12, 48 Order for deportation of a non-citizen convicted of certain crimes; direction that a person is not

to act as migration agent

M o to r T ra ffic O rd in a n c e 1936 (A .C .T .) Sections 150B(8), 150C(5) (50 o f 1982) Section 164G (32 o f 1979) Section 150B, 150C, I64E(l)(a)

Refusal by Registrar to grant or his cancellation of a label allowing specific classes of persons to park in restricted locations; refusal to give and revocation of certificate of exemption from wearing a seat belt

N a rc o tic D ru g s A c t 1967 Section 14A (176 o f 1976) Sections 9, 10, 12, 13 Refusal to grant or revocation of licence; specification of particular conditions of licence;

directions in relation to the handling and labelling of drugs

84

N a tio n a l H e a lth A c t 1953 Section 105AB (60 o f 1976) (99 o f 1976) (189 o f 1978) (112 o f 1982) (54 of 1983) Section 105AAA (88 o f 1978) (131 o f 1980) (72 o f 1984) Section 105AAB(7) (139 o f 1983)

[(72 of 1984) not yet in operation] Sections 13, 14, 20, 39A(1), 39A(2), 39A(3), 39A(4), 40AA(2), 40AA(3), 40AA(3A), 40AA(4), 40AA(5), 40AA(6), 40AA(8), 40AB, 40AD, 41(2), 43A(4), 44, 45A, 68A(b), 73, 73B, 73BE, 73BF(4), 73BFA(4), 73BFB(4), 73D(1), 78, 90, 92, 94, 95, 105AAA(4)

Various decisions and determinations some of which must have been reconsidered by the Minister under s. 105AAB(4) [Note: Decisions under S.40AF become reviewable when s.54(3) of (139 of 1983) is proclaimed]

N a tio n a l H e a lth R e g u la tio n s Regulation 12 (SR 59 o f 1979) Section 105AAA(1 )(c) National Health Act 1953 (76 of 1984) [(72 of 1984) not yet in operation]

Pt II Decisions on payment of accommodation allowances for patients and approved escorts who live in isolated areas and are referred to consulting physicians at distant towns

N a tio n a l P a r k s a n d W ild life R e g u la tio n s Regulation 20D(8) (SR 94 o f 1982) Regulation 20D Decision of Director under regulations not being a decision under reg 8B or a deemed decision

under s.43(6) of AAT Act 1975

N a tu r e C o n s e rv a tio n O rd in a n c e 1980 (A .C .T .) Section 74 (20 o f 1980) (22 o f 1982) Sections 36(2), 38(1), 39(1), 48, 49, 53, 56(1), 56(2), 56(3), 57(1), 62(1), 63(1), 69 Decisions on the grant, refusal to grant, grant subject to condition or cancellation of permit or

licence; refusal to consent to release of a captive animal or prohibited activities; directions of Conservator re insecticides etc. and diseased wildlife; restriction or prohibition of access to reserved area; refusal to issue certificate of compliance

N a v ig a tio n A c t 1912 Sections 424A and 424B (40 of 1983) Sections 267B, 267C, 267D(5), 267K(1), 267Q, 267R, 267S(5), 267Y(1) Refusal to issue or cancellation of various certificates; direction re foreign ships

N a v ig a tio n (O rd e rs ) R e g u la tio n s Regulation 3A(7) (SR 399 o f 1982) Regulation 3A(4) Decision relating to the issue, variation, suspension or cancellation of a certificate

N itro g e n o u s F e rtiliz e rs S u b sid y A ct 1966 Section 23A (114 o f 1977) Sections 5(2), 5(2A), 6, 11, 13, 14(1), 16(6), 16(7), 22 Decisions on eligibility for subsidy, registration of premises and amount of security

N u rse s R e g is tra tio n O r d in a n c e 1933 (A .C .T .) Section 42A (49 o f 1981) Section 42A Refusal to register, or to re-register; refusal to enrol person as a nursing aide; removal of nurse’s

name from Register; removal of nurse’s aide’s name from Roll; caution or censure of Board; suspension of registration; refusal to issue or to renew a temporary registration

N u rs in g H o m e s A ssista n c e A c t 1974 Section 11A(7) (139 o f 1983) Sections 4, 6, 8, 9, 11, 11A(2)

85

Various decisions by the Minister concerning approval of a nursing home approved or varied under s. 11A(4)

O m b u d s m a n A c t 1976 Sections 10, 11 (181 o f 1976) The Ombudsman may certify that unreasonable delay in decision making having occurred, a decision shall, for the purposes of enabling an application to be made to the A AT, be deemed to

have been made; the Ombudsman may refer certain questions to the AAT for an advisory opinion

O p to m e tris ts O r d in a n c e 1936 (A .C .T .) Section 26 (50 o f 1981) (31 o f 1982) Sections 16, 21, 22, 23, 31 Refusal to register or restore registration; cancellation or suspension of registration; refusal to

extend time practice can continue to allow administration of estate of deceased optometrist; refusal to grant or renew special registration

P a p u a N ew G u in e a (S ta ffin g A ssistan ce ) A ct 1973 Section 54 (69 o f 1976) Section 54 All decisions of the Commissioner Superannuation made under the Act

P a p u a N ew G u in e a S ta ffin g A ssistan ce (S u p e ra n n u a tio n ) R eg u latio n s Regulation 8B (SR 65 o f 1977) Regulation 8B(4) All decisions of the Commissioner made under the Regulations

P a r lia m e n ta r y C o n trib u to r y S u p e ra n n u a tio n A ct 1948 Section 25 (19 o f 1979) (37 o f 1981) Section 25 All decisions of the Trust made under the Act and Regulations

P a te n t A tto rn e y R e g u la tio n s Administrative Appeals Tribunal Act 1975 Sched Pt XXIV (91 of 1975) Regulation 27 Order to remove name of patent attorney from register

P a te n ts A c t 1952 Section 151 (162 o f 1976) Section 159C (19 o f 1979) (26 o f 1982) Sections 47E, 59(1), 66, 77(4), 82, 98, 106(1), 154, 159C, 160, Part XV

Restoration of lapsed application for patent; various extensions of time; direction that consent of mortgagee or licensee to amendment of complete specification shall not be necessary; restoration of a patent; acceptance of offer to surrender patent; directions to co-owners; grant of a licence; refusal to register a patent attorney

P a te n ts R e g u la tio n s Regulation 92 (SR 177 o f 1977) Regulations 7B(8), 7B(12), 16F(6), 44, 52 Hearing by Commissioner on notice of opposition to restoration of lapsed applications are

restored; application; grant or dismissal of application for licence where lapsed determination of application for restoration of a patent which has ceased; determination of application for licence

P e tro le u m P ro d u c ts S u b sid y A c t (N .T .) Section 5(3A) (NT Ord 13 o f 1978) Section 5 Direction as to treatment of goods for purposes of a scheme; refusal of registration as a

distributor of eligible petroleum products

86

P h a rm a c y O r d in a n c e 1931 (A .C .T .) Section 33A (51 o f 1981) (32 o f 1982) Sections 24, 30, 31, 32 Refusal to register or re-register; refusal to issue or renew temporary registration; refusal to grant

or renew special registration; cancellation of registration of a person under ss.21 and 22

P h o s p h a te F e rtiliz e rs S u b sid y A c t 1963 Section 20A (66 o f 1977) Sections 7, 10, 11(1), 13(3), 13(4), 13(6), 13(7), 19 Decisions on eligibility for bounty, registration of premises and amount of security

P h y s io th e ra p is ts R e g is tra tio n O rd in a n c e 1977 (A .C .T .) Section 35 (60 o f 1977) (72 o f 1982) Sections 14, 23, 26, 27, 34 Refusal of certificate; cancellation of registration, suspension of registration other than under

s.29(5). reprimand; order not to perform specified services; refusal to extend period for executor to continue business; refusal to grant or renew provisional or temporary registration; refusing to register or re-register, to grant or review provisional or temporary or special registration

P lu m b e rs , D ra in e rs & G a s fltte rs B o a rd O rd in a n c e 1982 (A .C .T .) Section 44 (74 o f 1982) Section 44 Refusal to issue or cancellation of a certificate of competency; refusal to issue a licence;

cancelling or suspending a licence, other than under s.32

P oisons a n d N a rc o tic D ru g s O rd in a n c e 1978 (A .C .T .) Section 29J (19 o f 1981) Section 49 (38 o f 1978) Sections 10, 29J

Authorizations to have in possession a substance for research purposes; refusal to grant licence to manufacture psychotropic substance, grant subject to conditions or cancellation of licences

P ostal B y -L aw s By-law 126(2) (Amd 2 o f 1977) By-law 222(7) (Amd 6 o f 1976) By-law 296(1) (Amd 3 o f 1977)

By-laws 126, 222, 296 A decision re registration of a publication; retention of articles posted abroad for transmission to Australia; decision re payment of compensation for articles lost, damaged or delayed

P o u ltry I n d u s tr y L evy C o lle ctio n A c t 1965 Section 11A(1) (80 o f 1982) Section 8(2) Remission of penalty for non-payment of levy

P ro te c tio n o f th e S ea (C iv il L ia b ility ) A c t 1981 Section 19 (31 o f 1981) Sections 16, 17(3) Refusal to issue an insurance certificate; cancellation of certificate

P u b lic H e a lth (P ro h ib ite d D ru g s) O rd in a n c e 1957 (A .C .T .) Section 6B (23 o f 1978) Section 6A(1) Refusal to authorize possession of prohibited drug for research purposes; conditions or

restrictions of authority revocation; amendment or variation of an authority

Q u a r a n tin e (A n im als) R e g u la tio n s Regulation 86G (SR 70 o f 1983) Regulations 86B(1), 86B(3), 86C(1), 86F(8)

87

Refusal to approve or revoking approval of person as recognized exporter; refusal to grant exempt exporter status; refusal to waive payment of part of fee

R a d ia tio n O r d in a n c e 1983 ( A .C .T .) Section 72 {58 o f 1983) Sections 6, 51, 54, 68. 72(b), 72(c), 72(d), 72(e), 72(f), 72(h), 72(1) Various decisions

R a d io c o m m u n ic a tio n s A ct 1983 Section 86(6) (130 o f 1983) Sections 10, ll(2)(b), 12(1), 12(3), 12(6), 14, 21(1), 21(9), 24, 25. 26(5), 29, 31(1), 31(2), 33, 34(2), 35, 38, 65(5)(a), 65(12)(a), 86(2)

Refusal to grant various permits, licences and certificates cancellation and revocation of various certificates and licences; permission to supply a sub-standard device; compliance statements and compliance statement certificates; conditions to which transmitter licence is subject; permitted use of a transmitter; refusal to grant an extension of time

R a te s O r d in a n c e 1926 (A .C .T .) Section 30 (21 o f 1977) Section 29 Variation or confirmation of a determination of unimproved value

R e p a tria tio n A c t 1920 Section 107VZZB (18 o f 1979) Section 107VZZB The President of the Repatriation Review Tribunal may refer to the Tribunal a decision of the

Commission which involves an important principle of general application with respect to entitlement or assessment of pension

R o a d s a n d P u b lic P la c e s O r d in a n c e 1937 (A .C .T .) Section 15G (72 o f 1976) Section 15G Refusal to grant a permit, cancellation of a permit, or imposition of condition

S ale o f M o to r V eh icles O rd in a n c e 1977 (A .C .T .) Section 57 (29 o f 1977) Sections 48(2), 57 Specification of a period to re-apply; refusal or revocation of a licence

S chools A u th o rity R e g u la tio n s (A .C .T .) Regulation 61 (R 11 o f 1978) Regulation 61 Decisions of the Authority declaring an election to be void and directing a new election; refusal

to make such a declaration and direction

Sex D is c rim in a tio n A c t 1984 [not yet in operation] Section 45 (4 o f 1984) Section 44

Refusal to grant an exemption or further exemption from the operation of a provision in Divisions 1 or 2 of Part II of the Act (in relation to discrimination in work and in other areas including education, provision of goods and services, accommodation, land, clubs and the administration of Commonwealth laws and programs)

S h ip p in g R e g is tra tio n A c t 1981 Section 78 (8 o f 1981) (39 o f 1983) (16 o f 1984) [(16 of 1984) not yet in operation] Sections 10(2), 21(5), 22(1), 22(4), 22(6), 22A(1), 22A(2), 22A(4), 22A(6), 23(1), 27(3), 58(2A), 65(4), 87(1), 88(3), 89, 92(4)

Various decisions

88

S ocial S e c u rity A c t 1947 Section 15A (61 of 1981) (69 o f 1983) Sections 14, 15, 15A All determinations, directions, decisions and approvals re entitlement to benefits, payment and

cancellation of benefits, overpayment of benefits, of an officer which have been reviewed by the Social Security Appeals Tribunal (or if the Director-General has certified that a principle of general application is involved) and affirmed, varied or annulled by the Director-General on or after 9 September 1980

S p irits A c t 1906 Section 20(2) (61 o f 1981) Section 20(1) Refusal to grant licence to make or sell methylated spirits

S ta te G r a n ts (P e tro le u m P ro d u c ts ) A c t 1965 Section 5(3A) (12 o f 1978) Section 5(2), 5(3)(a) Direction by Minister as to treatment of goods as motor spirit, power kerosene, automotive

distillate, aviation gasoline or aviation turbine fuel for purpose of a scheme in relation to a State; refusal of, or revocation of registration as a distributor of eligible petroleum products under a scheme

S ta tu te L a w (M isc e lla n e o u s A m e n d m e n ts) (P a te n ts ) R e g u la tio n s Regulation 4 (SR 49 o f 1983) Regulation 3(6) Decision relating to the grant of a licence to make, use, exercise and vend an invention the

subject of an application under s. 191(3) of the Statute Law (Miscellaneous Amendments) (No. 1) Act 1982

S tu d e n t A ssista n c e A c t 1973 Section 30AB (72 o f 1984) [not yet in operation] Section 26

Decisions reviewed by a Student Assistance Review Tribunal

S u p e ra n n u a tio n A c t 1976 Section 154(6) (17 o f 1978) Section 154(4) All decisions of the Commissioner or his delegate, or the Superannuation Board or its delegate,

under this Act or the Superannuation Act 1922 or under regulations made under either Act confirmed or varied under s. 154(4) (Note: A decision of the Superannuation Board under s. 141 Superannuation Act 1922 need not have been confirmed or varied under s. 154(4))

S u rv e y o rs O rd in a n c e 1967 (A .C .T .) Section 49A (19 o f 1977) Section 49A(2) Decisions as to fees and charges

T e le c o m m u n ic a tio n s (G e n e ra l) B y-law s By-law 32(3) (Amd No 18) By-Law 45(4) (Amd No 6) By-laws 32(1), 45

Requirement to rent additional services due to overloading; notice to alter, remove or re-erect portion of a telecommunications installation because of interference

T h e r a p e u tic G o o d s A c t 1966 Section 29A (80 o f 1982) Sections 23D(2)(b), 23D(5), 23E(5)(a), 23E(7)(a), 23E(7)(b), 23E(8), 23E(9) Refusal to authorize continued manufacture or supply of a biological production, revocation of

authorization; after general preventative notice refusal to authorize supply of batch of biological

89

product, or the taking of further steps in production; revocation of authority; refusal to revoke general preventative notice

T r a d e M a r k s A c t 1955 Section 116 (163 o f 1976) (43 o f 1981) Sections 70(2), 71(1), 127(1), 131(1) Removal of trade mark from register on non-compliance of conditions for renewal of

registration; restoration of trade mark to register after removal for non-payment of renewal fee; refusal to permit goods otherwise forfeitable to be delivered subject to reasonable security being given that offended marks will be removed or suitably amended or that the goods will be forthwith re-exported; correction of application for registration, etc., or certificate of registration for clerical errors or obvious mistakes; refusal to extend time for doing an act or taking a step

U n it T itle s O rd in a n c e 1970 (A .C .T .) Section 16 (2 o f 1983) Section 16 Determination of Minister in relation to rent of a sub-division

V e te rin a ry S u rg e o n s R e g is tra tio n O rd in a n c e 1965 (A .C .T .) Section 28 (53 o f 1981) (14 o f 1984) Sections 12, 20, 23(1), 23(2), 34 Refusal to authorise registration or to order re-registration; removal of name from Register;

reprimand; suspension of registration of a person otherwise than under s.22(2); suspension of registration of veterinary surgeon on health grounds; order restricting performance of veterinary services on health grounds; refusal to extend period during which executor, administrator or trustee may carry on the business of deceased veterinary surgeon

W h a le P ro te c tio n A c t 1980 Section 35 (92 o f 1980) Sections 11, 12, 15, 16, 17 Refusal to grant or transfer permit; suspension, cancellation and conditions imposed

W ild life P ro te c tio n (R e g u la tio n o f E x p o rts a n d Im p o rts ) A c t 1982 Section 80 (149 o f 1982) Sections 10(1), 11(1), 11(3), 12(1), 12(3), 23(5), 24(5)(b), 24(6), 25-38, 40(5), 40(7), 41(4), 41(8), 42(3), 42(4), 42(5), 42(6)(c), 43(5), 43(6), 43(9)(b), 44(1), 44(2), 44(3)(c), 46(1), 46(2), 46(3), 47, 49(1), 49(2), 50(1), 50(2), 57(5), 80(6)

Various decisions and declarations

W in e G ra p e s L ev y C o lle ctio n A c t 1979 Section 13 (66 o f 1979) Section 5(2) Remission of penalties for non-payment of levy

W ool I n d u s tr y A c t 1972 Section 42W (50 o f 1980) Section 42N(5) Decisions on eligibility of persons for refund and amount of refund

W ool I n d u s tr y (S a m p lin g S ites) R e g u la tio n s Regulation 14 (SR 102 o f 1979) Regulation 14 Refusal to register, cancellation of registration of sampling site; refusal to approve amendment

of statement of methods relating to a registered sampling site

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APPENDIX 5

ADMINISTRATIVE APPEALS TRIBUNAL STATISTICS OF BUSINESS FOR THE YEAR ENDED 30 JUNE 1984

R a te o f L o d g e m e n ts fo r R eview (a) Lodgements fo r review (by month)

Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Total

1981-82 272 107 133 146 112 110 100 131 162 128 148 1471696

1982-83 124 96 138 121 140 125 130 157 198 165 176 1511721

1983-84 253 185 174 147 159 191 165 157 185 136 193 1752120

(b) Applications fo r extension o f time to apply fo r review 1981-82 = 121 1982-83 = 148 1983-84 = 174 (c) Applications to be made a party 1981-82 = 2 1982-83 = 4 1983-84 = 10 (d) Applications fo r stay o f decision reviewed

1981-82 = 72 1982-83 = 69 1983-84 = 25

P la ce o f L o d g e m e n t o f A p p lic a tio n s fo r R eview

Place 1981-82

No. %

1982-83 No. %

1983-84 No. %

Sydney 430 25.4 798 46.4 753 35.5

Melbourne 626 36.9 380 22.1 542 25.6

Brisbane 305 18.0 179 10.4 250 11.8

Adelaide 121 7.1 135 7.8 179 8.5

Perth 73 4.3 78 4.5 203 9.6

Hobart 41 2.4 54 3.1 53 2.5

Darwin 9 0.5 9 0.5 14 0.7

Canberra 91 5.4 88 5.1 126 5.9

1696 1721 2120

P re lim in a ry C o n fe re n c e s

1981-82 1982-83 1983-84

842 2482 3688

C o n s titu tio n o f T rib u n a l H e a rin g s

1981-82 1982-83 1983-84

Presidential Member alone 88 219 243

Presidential Member plus two 34 85 147

Senior Member alone 362 679 706

Senior Member plus two 111 87 196

595 1070 1292

91

V en u e fo r H e a rin g s

1981-82 1982-83 1983-84

Canberra 32 62 59

Sydney 173 372 618

Melbourne 240 339 310

Brisbane 41 113 98

Adelaide 59 88 101

Perth 29 32 70

Hobart 17 57 29

Darwin 4

595

___7

1070

___7

1292

N ote: The Tribunal frequently sits in regional centres. Such sittings have been included in the capital city figures.

R a n g e o f J u ris d ic tio n

E nactm ent 1981-82 19 8 2 -8 3 1983-84

A.C.T. Rates Ordinance 24 1.4% (6) 1 0.1% (6) 18 0.8% (12)

Air Navigation Regs 13 0.8% (9) 9 0.5% (12) 19 0.9% (11)

Bounty Acts (Various) 3 0.2% (14) 1 0.1% (14) 3 0.1% (14

Compensation (C’wlth Emp) 558 32.9% (2) 298 17.3% (2) 305 14.4% (3)

Customs Act 54 3.2% (3) 68 4.0% (3) 57 2.7% (5)

Defence Force Retirement & Death Benefits Act 8 0.5% (12) 11 0.6% (11) 10 0.5% (13)

Export Grants 27 1.6% (5) 26 1.5% (7) 33 1.6% (7)

Freedom of Information — 59 3.4% (4) 210 9.9% (4)

Home Savings Grant 9 0.5% (11) 13 0.8% (10) 21 1.0% (10)

Isolated Patient Travel & & Assistance Scheme 9 0.5% (11) 21 1.2% (9) 386 18.2% (2)

(Income) Tax Agents 6 0.3% (13) 13 0.8% (10) 37 1.7% (6)

Insurance Act 1 0.1% (15) 1 0.1% (14) —

Migration Act 47 2.8% (14) 31 1.8% (5) 23 1.1% (8)

Patents Act — — 1 0.1% (15)

Postal By-laws 16 0.9% (8) 27 1.6% (6) 22 1.0% (9)

Repatriation Act 1 0.1% (15) 2 0.1% (13) 3 0.1% (14)

Social Security Act 891 52.5% (1) 1104 64.1% (1) 931 43.9% (1)

Superannuation Act 18 1.1% (7) 25 1.4% (8) 22 1.0% (9)

Other 11 0.6% (10) 11 0.6% (11) 19 0.9% (11)

TOTAL 1696 1721 2120

N ote: Figures in brackets in each column indicate the ranking of jurisdiction in terms of volume.

92

A p p lic a tio n s F in a lise d

1981-82 Total %

1982-83 Total %

1983-84 Total %

1. Decision altered by decision-maker 229 28.6 454 33.2 814 40.0

2. Set aside and new decision substituted 89 11.1 124 9.1 182 8.9

3. Varied 18 2.2 15 1.1 24 1.2

4. Remitted to decision maker 93 11.6 89 6.5 79 3.9

Sub-total 1-4 429 53.5 682 49.9 1099 54.0

5. Applicant withdrew on own initiative 177 22.1 355 26.0 451 22.1

6. Affirmed 125 15.6 236 17.3 239 11.7

7. Decision that proceeding continue only if the parties request 38 4.7 10 0.7 171 8.4

Sub total 5-7 340 42.4 601 44.1 861 42.2

8. Outside jurisdiction 33 4.1 83 6.1 77 3.8

TOTAL 802 1366 2037

A p p lic a tio n s U n d e te rm in e d

at 30.6.82 at 30.6.83 at 30.6.84

Deferred at parties request 38 47 12

Awaiting dismissal or direction to take out of list 28 44 80

In preparation (mainly awaiting s.37 documents) 735 372 316

Set down for hearing or preliminary conference 351 1079 1059

Part heard 147 44 102

Heard and awaiting decision 32 82 181

Awaiting rehearing — 10 8

Other — 8 5

TOTAL 1331 1686 1763

A p p e als to th e F e d e ra l C o u r t o f A u s tra lia F ro m D ecisio n s o f th e A d m in is tra tiv e A p p e a ls T rib u n a l

1977-78 1978-79 1979-80 1980-81 1981-82 1982-83 1983-84 Total

Discontinued 1 1 4 1 5 8 4 24

Struck out — — — 1 3 — 1 5

Dismissed — 9 4 6 7 16 17 59

Allowed — — — — 1 1 2 4

Allowed and remitted to AAT 1 1 1 2 5 2 9 21

Total 2 11 9 10 21 27 33 113

Notes (i) Two further cases have been heard by the Court (in 1981-82) by way of case stated.

(ii) Where a matter has been further appealed to the Full Court only the result of Full Court decision is counted for the purpose of these statistics.

93

Australian War Memorial Aviation Commissioner for Superannuation Commonwealth Banking

Corporation Commonwealth Tertiary Education Commission (a) Defence Defence Support Employment & Industrial

Relations Export Development Grants Board Finance Foreign Affairs Great Barrier Reef

Marine Park Authority Health Home Affairs & Environment Housing & Construction Immigration & Ethnic Affairs Industries Assistance

Commission Industry & Commerce National Companies and Securities Commission National Library of Australia Office of the Insurance

Commissioner Office of National Assessment Petroleum Products

Pricing Authority Primary Industry Prime Minister & Cabinet Public Service Board Reserve Bank of Australia Resources & Energy

1 I

121(36) 117

— (8) —

12(2) 10

1

75(3)

1

33

23(8) 21

101(67) 96

4(1) 4

33(3) 3

34(25) 30

1 1

54(13) 39

9 0 0 ) 8

39 37

123(44) 78

1(2) 1

32(14) 20

K D 1

1 1

1 2

1 2

2 2

17(2) 14

4(4) 4

579(401) 552

14(2) 12

15 15

1

1

1

1 119

1 — 11

— 1

80

— — 21

1 1 98

— — 4

— — 33

1 1 33

3 1

1

43

1 — 9

2 — 40

19 — 107

1 2

1

29

— 1

1 2

1

1

— 2

15

8 — 560

— — 12

— — 15

Department!Authority

Pending at commence­ ment of period

Received (1982)

Complied with in full

Complied with in part Refused

Science & Technology — 15( 12) 14 — —

Social Security 5 9 ( 10) 9 — 2

Special Broadcasting Service (a) — 2( 1) 2 — —

Special Minister of State 1 9 8 — —

Sport, Recreation & Tourism — 6 — — —

Supervising Scientist — 2 2 — —

Territories & Local Government — 33 (4 1 ) 18 — 5

Trade 1 10( 12) 11 — —

Transport (b) — 12( 11) 13 — —

Veterans’ Affairs (b) 3 4 6 (33 ) 48 — _

TOTAL 31 1832 1617 9 67

W ithdraw n

4

16

(a) Figures were submitted in respect of only the period 1.1.83-30.6.83. (b) Figures supplied contain error. The Department concerned was not able to clarify the matter. N il R eturns f o r the p e rio d 1 .1 .8 3 - 3 0 .6 .8 3 only were subm itted in respect of: Communications

Education and Youth Affairs

F in a lised

15 11 2 8

6 2

30 11 13

47

1776

P ending at end o f

p e rio d

3

2

3

J_ 88

T a b le 2: R e fu sa ls o f R e q u e s ts fo r S ta te m e n ts o f R easo n s 1 J u ly 1983 — 31 D e c e m b e r 1983

K ey (a) Denotes request refused because the decision is not subject to section 13 (b) Denotes request refused because a statement of reasons had already been given (c) Denotes request refused because the request was out of time

(d) Denotes request refused because the applicant was not a person ‘aggrieved’ by the decision

Department! Authority (a) (b) (c) (d)

Administrative Services 2

Australian Bureau of Statistics — — — 1

Australian Capital Territory Schools Authority 3 — — —

Australian Taxation Office — — 4 —

Aviation — 1 — —

Commonwealth Banking Corporation P. A.C. — 1 — —

Employment & Industrial Relations 1 — — —

Health 1 — 1 —

Home Affairs & Environment — 1 — —

Housing & Construction — — 1 1

Immigration & Ethnic Affairs 4 5 5 2

Industry & Commerce — 1 — —

Primary Industry — 1 — —

Public Service Board 1 — 2 3

Territories & Local Government _2 — _ [

TOTALS 14 12 13 8

97

T a b le 3: R eso u rc es In v o lv e d in R esp o n ses to R e q u e sts fo r S ta te m e n ts o f R easo n s 1 J u ly 1983 — 31 D e c e m b e r 1983

Key

- 14 days denotes num ber o f requests fin a lise d w ithin 14 days o f the date the request was received 1 4 - 2 8 days denotes n um ber o f requests fin a lise d m ore than 14 days after, but w ithin 2 8 d ays of, the date the request w as received 28 - 42 days denotes n u m b er o f requests fin a lise d m ore than 2 8 days after, but w ithin 42 days of, the d ate o f the request 42 - 5 6 days denotes num ber o f requests fin a lise d m ore than 42 days after, but within 5 6 d ays of, the d a te o f the request

5 6 + days denotes num ber o f requests fin a lise d m ore than 56 days after the date o f the request

-1 4 1 4 -2 8 2 8 -4 2 4 2 -5 6 5 6 +

D epartm ent! A uthority days days days days d ays

A boriginal A ffairs 3 6 1 — —

A dm inistrative Services 11 32 3 — 1

A ttorney-G eneral ’ s 1 4 — — —

A ustralian B ureau o f S tatistics 14 14 6 — —

A ustralian C apital T erritory Schools A uthority 3 13 2

A ustralian E lectoral C om m ission — 1 — — — 2 .0 0

A ustralian N ational G allery 1 — — — —

A ustralian T axation O ffice 15 28 20 7 3

A ustralian W ar M em orial — 1 — — —

A viation 20 27 3 — —

C om m onw ealth B anking C orporation 1

C om m onw ealth B anking C orporation P .A .C . 5 5

D efence 6 37 3 1 —

D efence Support 5 10 — — —

E m ploym ent & Industrial R elations 16 49

Finance 1 29 — — —

Foreign A ffairs 5 7 2 1 —

Health 4 11 3 2 1

H om e A ffairs & E nvironm ent 2 6 1 16.00

W riting responses (m a n ­ hours)

O ther W ork (m a n ­ hours)

Total m a n ­ hours used

A verage m an- hrs p e r

request

26 .5 0 0 .0 0 26 .5 0 2.65

161.50 62 .0 0 22 3 .5 0 4 .7 6

8.0 0 3.0 0 11.00 1.57

163.00 0 .0 0 163.00 4.7 9

4 7 .5 0 58 .0 0 105.50 4 .8 0

1.00 3 .00 3.0 0

1.00 0 .5 0 1.50 1.50

302.50 148.00 35 0 .5 0 4 .7 4

4 .0 0 3 .0 0 7 .0 0 7 .0 0

112.00 87 .0 0 199.00 3.68

15.00 35.00 50 .0 0 50 .0 0

22 .0 0 11.00 33 .0 0 3.0 0

89 .0 0 39 .5 0 128.50 2.67

52 .5 0 16.00 68 .5 0 4 .03

279.00 218.75 49 7 .7 5 7 .3 2

105.33 0.6 7 106.00 3.53

27 .5 0 0 .0 0 27 .5 0 1.72

146.00 2.75 148.75 4.65

22.00 38 .0 0 4 .2 2

Housing & Construction 7 10 3 —

Immigration & Ethnic Affairs — — 43 18

Industries Assistance Commission — 1 — —

National Library of Australia Office of the Insurance

1

Commissioner — — — —

Office of National Assessment — 2 — —

Primary Industry 3 3 2 —

Prime Minister & Cabinet 1 3 — —

Public Service Board 117 164 17 3

Reserve Bank of Australia — 8 — —

Resources & Energy 6 4 1 2

Science & Technology 1 5 1 —

Social Security — — — 3

Special Minister of State — 2 — —

Territories & Local Government — 13 5 —

Trade 5 2 1 —

Veterans’ Affairs 14 12 — —

TOTALS 262 508 115 37

— 86.00 30.50 116.50 5 .30

1 1600.00 250.00 1850.00 17.45

— 4 .00 0 .0 0 4 .0 0 4 .0 0

— 3 .00 2.00 5 .00 5 .00

1 3.00 LOO 4 .0 0 4 .0 0

— 4 .0 0 2 .00 6.00 3 .00

1 57.33 41.0 0 98.33 8.94

— 6 .00 10.00 16.00 4 .00

1 389.00 0.00 389.00 1.21

— 219.00 8.00 227.00 20.64

1 8.00 0.00 8.00 00.57

1 20.00 10.00 30.00 3.75

3 204.00 0 .0 0 204.00 22.67

— 7 .00 4.00 11.00 2.75

1 54.00 79.0 0 133.00 6.65

— 28.00 0.00 28.00 3.50

— 39.00 54.00 93.0 0 3.44

16 4283.66 1199.67 5383.33 5.00

(A verage)

T a b le 4: A p p lic a tio n s to th e F e d e ra l C o u rt o f A u s tra lia fo r a n O r d e r o f R eview

Pending at commence­ ment of

Department!Authority period Received Granted Refused

(1982)

Aboriginal Affairs K—)

Aboriginal Development Commission 1 — (1) — —

Administration Services — KD — —

Attorney-General ’ s — 17(—) — 10

Australian Broadcasting Commission — K—) 1 —

Australian Broadcasting Tribunal — 4(2) 1 2

Australian Capital Territory Schools Authority — 3(—) — 2

Australian Federal Police (a) 1 10(1) 1 3

Australian Federal Police Promotions Appeals Board — 1 — —

Australian National Railways Commission — 2 — —

Australian Postal Commission 1 3(1) 1 —

Australian Taxation Office (a) 2 27(1) 1 8

Australian Tele-communications Commission — 10(1) — —

Aviation 2 42(2) — 1

Commissioner for Commonwealth Employees’ Compensation 1 4(3) — —

Commonwealth Banking Corporation — HD — —

Defence — KD — —

Education & Youth Affairs — 1(2) — 1

Foreign Affairs — 2(2) — 1

Health 5 5(12) 1 1

Health Insurance Commission — 2 1

Immigration and Ethnic Affairs (a) 1 31(30) 7 6

Withdrawn

4 2

4

1

1 2

1

Pending at end of

Finalised period

10

1 3

2 4

1 9

4 3

4

1

1 2 4 1

14

1

1 1 7

1

1 2

1

2 3

17

6 3

1

1

6 1

16

Independent Airfares Committee 3 5 1 2

Industry and Commerce 5 9(10) 2 3

Life Insurance Commissioner 1 — (i) _

National Companies & Securities Commission K—) 1

Public Service Board 1 14(19) 3 4

Repatriation Commission — 4

Science and Technology — K—)

Social Security — 3(—) 1

Special Broadcasting Service 1 - ( - )

1

1

Special Minister of State — _

Sport, Recreation and Tourism — 1

Territories and Local Government — 2(— ) _

Trade Practices Commission 1 7 3 5

Transport 1 —(1) 1

Veteran's Affairs — 1(4) —

TOTALS 27 180 23 52

(a) Figures supplied by the responsible Department contain error. The Department concerned was unable to clarify the N il R eturns f o r 1983 Subm itted by: Communications Defence Support

Employment and Industrial Relations Finance Home Affairs and Environment

Housing and Construction Primary Industry Prime Minister and Cabinet Resources and Energy Trade

Treasury