Administrative Law

Contributor: Andrew Klein
DLA Phillips Fox

Currency of information: November 2009

This Chapter on Administrative Law draws upon material in the Victorian 2005 Law Handbook, published by the Fitzroy Legal Centre.

Administrative Law

What is "Administrative Law"?

Administrative law is, broadly, the area of law which enables challenges to be made to administrative decisions or other actions of governments, such as the decision of a public authority to refuse to grant a licence or the decision of a local council not to grant a permit.

Administrative law generally only enables decisions which are "administrative" in nature to be challenged. Decisions by governments which are legislative (such as the passing of Acts, legislative instruments or broad policy decisions) are generally only subject to review by the electorate at election time. A notable exception to this general rule is where the legislative decision is unconstitutional, but this then takes the matter out of the reach of administrative law into constitutional law.

The administrative decisions of governments may be subject to challenge through:

1. judicial review;
2. a specific statutory right to review of the decision on the merits; or
3. complaint to the relevant Ombudsman.

Judicial Review

What is "Judicial Review"?

Judicial review is different from a statutory appeal on the merits or a complaint to the Ombudsman. Through judicial review, a person aggrieved by a decision can seek a review by a court of the legality of that decision. The court will not review the decision to determine whether or not it was the right decision to make (which would be a review on the merits) - the court will only review a decision to determine whether it was a legally proper decision (i.e. whether it was within power, applied the law correctly and was not made improperly or unfairly). If the court finds that the decision was not a proper decision, it may set aside that decision. However, the court will not normally attempt to direct the government body or official on what particular course of action should be followed in future.

Judicial review is a complicated and specialist area of law. You should consider seeking legal advice before commencing any judicial review proceeding.

Administrative Tribunals

Merits Review of Administrative Decisions

People who have been affected by decisions of the Commonwealth or ACT Governments or their agencies may be able to seek review of those decisions in an administrative tribunal. These tribunals have been created to provide an independent forum for review of the original decisions made by agency decision-makers. Administrative tribunals generally aim to provide a quick, fair and low cost review of administrative decisions. Appeals to these tribunals are brought "on their merits" which means that each tribunal can take a fresh look at the relevant facts and the relevant law and make up its own mind as to the exercise of any discretion. Any new evidence or arguments will be taken into account, unless this is excluded by the legislation establishing the role of the particular tribunal.

Some of the administrative tribunals established by the Commonwealth Government include the:

• Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT);
• Social Security Appeals Tribunal (SSAT);
• Veterans' Review Board (VRB); and
• Administrative Appeals Tribunal (AAT).

The principal administrative tribunal established by the ACT Government is the ACT Civil and Administrative Tribunal (ACAT) which commenced operation on 2 February 2009.

Most (but not all) State governments have administrative tribunals authorised to review administrative decisions of that government. These include the:

• NSW Administrative Decisions Tribunal (ADT);
• Queensland Civil and Administrative Tribunal (QCAT);
• Victorian Civil and Administrative Tribunal (VCAT); and
• WA State Administrative Tribunal (SAT).

Migration Review Tribunal and Refugee Review Tribunal

The Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT) provide an independent and final merits review of decisions made in relation to visas to travel to, enter or stay in Australia. The MRT reviews decisions made in respect of general visas (eg. visitor, student, partner, family, business, skilled visas) and the RRT deals with decisions made in respect of protection (refugee) visas.

The Tribunals are established under the Migration Act 1958 (Cth) and the Tribunals' jurisdiction and powers are set out in the Migration Act and in the Migration Regulations 1994. All Members and staff are cross-appointed to both Tribunals and the Tribunals operate as a single agency for the purposes of the Financial Management and Accountability Act 1997 (Cth).

For further discussion of the MRT and the RRT, see ImmigrationRefugeesAndCitizenship.

Social Security Appeals Tribunal

The Social Security Appeals Tribunal (SSAT) is continued in existence by Part 4 and Schedule 3 of the Social Security (Administration) Act 1999 (Cth), with effect from 20 March 2000. It was previously constituted under the repealed Social Security Act 1947 (Cth) (until 30 June 1991) and by former Part 6.2 of the Social Security Act 1991 (Cth) (until 19 March 2000).

The SSAT is the first level of external review of decisions made by Centrelink about social security, family assistance, education or training payments. As of 1 January 2007, the Tribunal is also the first level of external review of most decisions made by the Child Support Agency.

The SSAT's statutory objective is to provide a mechanism of review that is fair, just, economical, informal and quick.

Decisions of the SSAT generally are appellable to the AAT.

For further discussion of the SSAT, see SocialSecurityAndFamilyAssistance.

Veterans' Review Board

The Veterans' Review Board (VRB) is an independent Commonwealth tribunal that exists to review:

• decisions made by the Repatriation Commission under the Veterans' Entitlements Act 1986 (Cth) ('the VEA') on:

claims for acceptance of injury or disease as war-caused or defence-caused;

claims for war widows', war widowers' and orphans' pensions;

assessment of pension rate for incapacity from war-caused or defence-caused injury or disease; and

claims for the grant, or assessment of, attendant allowance; and

• determinations under the Military Rehabilitation and Compensation Act 2004 (Cth) made by:

the Military Rehabilitation & Compensation Commission; and

the Service Chiefs of the Australian Army, the Royal Australian Navy, and the Royal Australian Air Force.

The VRB is constituted under Part IX of the VEA and is a successor to the Repatriation Review Tribunal.

Decisions of the VRB generally are appealable to the AAT.

For further discussion of the VRB, see VeteransEntitlements.

Administrative Appeals Tribunal

Review by the AAT

The Commonwealth Administrative Appeals Tribunal (AAT) is established under the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act")

It is important to note at the outset that the AAT reviews matters de novo, that is, it conducts a fresh merits review of the decision. This means that the Tribunal 'stands in the shoes' of the original decision-maker. The Tribunal can therefore exercise all of the relevant powers afforded to the original decision-maker under the relevant legislation to:

• affirm the decision under review;
• substitute a new decision; or
• send the original decision back to the decision-maker to reconsider.

This also means that the Tribunal often can consider any new evidence that has come to light since the original decision was made, depending on the words of the legislation giving it the power to review.

What Kind of Decisions can the AAT Review?

The AAT has jurisdiction to review any decision made under a Commonwealth enactment that provides for an appeal to the AAT (see s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act')). This is the only way an appeal can find its way to the AAT.

A list of the current Acts that allow for an AAT review can be found on the AAT website at www.aat.gov.au/LegislationAndJurisdiction/JurisdictionList.htm.

The kinds of decision which can be reviewed include decisions about

• a social security pension or a benefit
• a veteran's pension
• Commonwealth workers' compensation
• an environmental issue
• taxation
• visas refused or cancelled on character grounds
• many other Commonwealth issues

The AAT has a number of divisions, that each have responsibility for certain kinds of decisions, for example, the Veterans' Appeals Division is a division of the Tribunal for the purposes of review of decisions regarding veterans' affairs.

The Taxation Appeals Division considers a wide range of taxation issues.

The Small Taxation Claims Tribunal (STCT) is a tribunal set up within the Taxation Division of the AAT. The STCT provides informal and inexpensive review of small taxation disputes (under $5,000). It can also review decisions of the Tax Office refusing a request for an extension of time within which to make a taxation objection.

You should note that decisions made under the social security law (for example, the Social Security Act 1991 (Cth)and the A New Tax System (Family Assistance) Act 1999 (Cth)), that is, the majority of decisions made in connection with welfare benefits by Centrelink, must be first appealed to the Social Security Appeals Tribunal, before an appeal can be brought to the AAT.

The word 'decision' is given an extended meaning under the AAT Act. For the purposes of s 25, a failure to do an act within the prescribed period will amount to a decision (s 25(5)). What constitutes a 'decision' is also defined in s 3(3) of the AAT Act.

Who can Apply to have a Decision Reviewed?

Only those whose interests are affected by the decision or their representatives may apply to the Tribunal for a review of the decision. So, a person who considers a decision is wrong, but whose interests are not affected by the decision, cannot apply to the Tribunal.

Where there is doubt about whether a person's interests are affected, that will be decided by the Tribunal (see ss 27 and 31 of the AAT Act). You should also note that a particular Act may modify the definition of people who may apply, so you should check the Act that the decision was made under, or check with the Tribunal.

Community groups are given a wide right of access to the Tribunal. The AAT Act states that an organisation or association, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter which was included in the objects or purposes of the organisation or association at the time of the decision.

How to Apply

Applications to the Tribunals have to be set out in writing and may be made on the forms that are available from the Registry of the AAT or can be downloaded from the Tribunal's website.

Applications must be made to the Tribunal within 28 days of the day on which the decision was made known to you.

There is a standard application fee of $682 (as at September 2009), however you do not have to pay the fee if you are the holder of a health care card, health benefit card, pensioner concession card, Commonwealth Seniors health care card, or any other card issued by the Department of Families, Housing, Community Services and Indigenous Affairs or the Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions.

You also do not have to pay the fee if

• you have been granted legal aid for your application;
• you are in prison, in immigration detention or otherwise detained in a public institution;
• you are under 18 years of age; or
• you are receiving youth allowance, Austudy payment or ABSTUDY.

You can also apply to have the fee waived if you believe you cannot afford to pay it.

The Tribunal will then notify the authority which made the decision that an application for review has been made.

The time for applying may be extended (see s 29 of the AAT Act). Application for an extension of time should be made on a special form that is available from the Tribunal or can be downloaded from the Tribunal's website.

The Tribunal gives each application a separate reference number, which must be used in all further contact with the Tribunal about the matter. If an applicant decides not to proceed with an application they must notify the Tribunal in writing that they wish to withdraw their request for review.

Does the Application Stop the Decision Taking Effect?

The application for review does not automatically stop the decision being implemented, but the person affected may apply to the AAT to postpone or stay the implementation of the decision. This application should be made on the official form available from the Tribunal (see s 41 of the AAT Act).

Obtaining the Authority's Reasons

If the authority that made the decision did not tell you the facts upon which its decision was based and the reasons for its decision, you may apply to the authority requesting a written statement setting out the facts and reasons, as these may help you identify the grounds for review. The decision-maker must then give you that written material within 28 days.

In certain cases the decision-maker will be entitled not to give reasons for a decision where it is not in the public interest to do so.

Applications for reasons must be in writing.

The 28 day period in which to lodge an application for review then runs from the day on which you receive the authority's reasons, or its refusal to give reasons. Alternatively, you may apply to the Tribunal for review, and you will be given a copy of the reasons.

What Happens Next?

Set out below is a brief overview of the steps that usually occur after an application is lodged.

Filing and serving of relevant documents

After the application for review has been lodged, the Tribunal will ask the authority for a statement of the facts upon which its decision was made and its reasons for the decision.

Also, the authority has to supply you and the Tribunal with every other document in its possession relevant to its decision (see s 37 of the AAT Act). These are commonly called the 'T' documents and must be given to you, and lodged with the Tribunal within 28 days of the authority receiving notice of your application from the Tribunal.

Preliminary conference

After it receives the relevant documents the Tribunal will usually set the matter down for a preliminary conference. The conference is generally scheduled to take place about six weeks after the T documents are served and filed.

The purpose of the conference is to discuss and clarify the issues in dispute (especially any particular disputed facts) and the evidence likely to be presented at hearing. The conference registrar also will explore the possibility of a pre-hearing settlement of the application with the parties.

At the end of the preliminary conference the registrar, if it appears obvious that no resolution to the appeal is possible, will usually set out a timetable by listing a date that the parties need to present a Statement of Facts and Contentions and discuss a likely date for hearing.

Alternative Dispute Resolution

The Administrative Appeals Tribunal Amendment Act 2005 (Cth), which commenced on 16 May 2005, significantly expanded the scope of alternative dispute resolution (ADR) processes available to the Tribunal.

Section 3(1) defines "alternative dispute resolution processes" as including:

• Conferencing
• Mediation
• Neutral evaluation
• Case appraisal
• Conciliation

If, during the preliminary conference, the registrar considers that the matter may be resolved without the need for a hearing, the parties may be directed to engage in ADR, for example, a mediation or a conciliation conference may be arranged. During a mediation or conciliation conference the registrar will explore with both parties whether any common ground exists and whether a settlement can be reached that both parties agree on.

The Tribunal considers that all disputes are potentially suitable for referral to ADR and prefers to resolve matters by this method if at all possible.

The Tribunal may also direct that a 'neutral evaluation' of the matter be conducted. A neutral evaluation involves a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, provides a non binding opinion on the likely outcomes of the matter if it were to go to a hearing. Neutral Evaluation is used when the resolution of the conflict requires an evaluation of both the facts and the law. The opinion is usually issued in the form of a written report which is given to both parties. Reviewing a neutral evaluation allows both parties to become more aware of the pertinent issues in the matter and the strengths or deficiencies in their positions.

Statement of Facts and Contentions

Before hearing (usually at least 14 days before the hearing date) the AAT also requires the parties to lodge a Statement of Facts and Contentions (if the applicant is unrepresented they may not be required to lodge this document unless they wish to). This document, as the name suggests, sets out the relevant facts of the matter and the 'contentions', that is, the arguments (including legal arguments) that are being put forward.

Hearing

Hearings are conducted in public unless the Tribunal directs otherwise; for example, that a directions hearing be held by telephone.

All parties to the hearing are notified well in advance of the hearing date.

The Tribunal has the power to proceed in the absence of a party who has had reasonable notice of the hearing date.

Hearings can be conducted by phone, video conference, or in person and the Tribunal may be made up of a single member or of multiple members.

At the start of a hearing the Tribunal will take the 'T' documents into evidence along with any other additional documents or other evidence that the parties may wish to produce.

Each side then calls witnesses (if there are witnesses involved - often there are not) and takes evidence via examination in chief, followed by cross-examination of the witness by the other side. Where an applicant is unrepresented and there are no other witnesses the Tribunal will often take evidence in chief from them and then invite the Respondent to cross examine.

The proceedings generally conclude, again like court proceedings, with each side making closing submissions to the Tribunal.

The Tribunal may then issue an ex-tempore (on-the-spot verbal) decision immediately or, more commonly, will reserve judgment and deliver a written decision at a later date.

The Tribunal is not strictly bound by the rules of evidence, however evidence will be given more or less weight depending on its source, for example, answers to leading questions or hearsay evidence (whilst allowed) may be given less credibility/weight than evidence that is adduced in line with accepted principles.

What Remedy can the Tribunal Grant?

The AAT has the power to

(1) affirm a decision under review;

(2) vary the decision under review;

(3) set aside the decision under review and make a new decision or compel the authority to make a new decision in accordance with directions given by the Tribunal; or

(4) dismiss the application for review.

For example, the AAT has power to waive a social security debt (in certain limited circumstances).

The AAT is under an obligation to give reasons for its decisions and findings of fact, subject to specified exceptions in the relevant Act. If requested it must give written reasons (see s 43 of the AAT Act).

Costs

The general rule is that parties to a proceeding before the AAT bear their own costs. The AAT has no power under the AAT Act to award costs (apart from witness costs), but does have power to make an order for costs in respect of appeals brought under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the SRC Act') (see s 67). Also, under the Freedom of Information Act 1982 (Cth) ('the FOI Act'), the AAT may in certain circumstances recommend to the Attorney-General that the Commonwealth pay the costs of the applicant (see s 66 of the FOI Act).

Right of Appeal

There is a right of appeal from the AAT to the Federal Court of Australia.

However the right of appeal is restricted to:

(1) questions of law; and

(2) refusals to grant standing.

AAT contact details - Canberra Registry

Links to the website, contact details and opening hours of the AAT in the ACT are provided at Contacts, Links and Resources.

ACT Civil and Administrative Tribunal

Review by the ACAT

On 2 February 2009, the ACT Administrative Appeals Tribunal was consolidated into the new ACT Civil and Administrative Tribunal ('the ACAT') upon the commencement of the operative provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act') and the repeal of the ACT AAT Act. Transitional provisions for uncompleted matters are found in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, available at www.legislation.act.gov.au/sl/2009-2/default.asp.

The ACAT consolidates 16 jurisdictions and tribunals including:

• the administrative appeals tribunal;
• the discrimination tribunal;
• the guardianship and management of property tribunal;
• mental health tribunal;
• residential tenancies tribunal;
• the liquor licensing board;
• and civil dispute (small claims) matters under $10,000.

It also takes on responsibility for discipline of various occupations including motor vehicle dealers and finance brokers, constructions occupations, surveyors and architects as well as the health and legal professions.

What Kind of Decisions can the ACAT Review?

Examples of disputes that can be heard by the Tribunal

• disputes between neighbours;
• argument over a finance agreement;
• damages to property;
• tenancy issues including disputes between landlords and tenants and a tenant's dispute with strata management in which the tenancy is located;
• common boundaries;
• trespass and nuisance applications;
• contractual disputes;
• any administrative decision made under an ACT law;
• application for a mental health order;
• discrimination matters; and
• disputes with utility service providers.

There is a $10,000 limit on civil dispute applications although there are provisions for some exceptions. In the case of Residential Tenancy disputes the limit is $25,000 and up to $50,000 with the consent of the parties.

Applications cannot include claims for interest charges or lump sums in lieu of interest charges.

The Tribunal cannot hear any application made under a Commonwealth law. In addition, the Tribunal cannot be used for:

• disputes over parenting or the custody of children;
• disputes over child support;
• disputes about wills and probate;
• disputes about taxes or social welfare benefits;
• decisions pertaining to recruitment issues;
• civil claims in excess of $10,000; or
• criminal matters.

Who can Apply to have a Decision Reviewed?

Applicants may only bring a matter before the Tribunal if an authorising law gives the Tribunal the power to make a decision about that matter (see s 9 of the ACAT Act). There are over 160 authorising laws. The ACAT Act is the authorising law for civil disputes.

Generally the ACAT Act and the rules, regulation and procedural directions made under that Act set out the procedure that should be followed for any application. Sometimes however, an authorising law contains provisions about procedures or powers specifically about the particular subject matter it deals with. Where the provisions of an authorising law conflict with those in the ACAT Act, the authorising law prevails.

An applicant must check that there is an authorising law that provides ACAT with the power to deal with the application.

How to Apply

Applications to the Tribunal must be set out in writing and may be made on the forms that are available from the Registry of the Tribunal or can be downloaded from the Tribunal's website. The Registrar is able to assist with applications to the Tribunal (see s 13 of the ACAT Act).

If the application is for the review of a decision, applications must be made to the Tribunal within 28 days after the day the decision to be reviewed is made (see s 10(2) of the ACAT Act).

Does the Application Stop the Decision Taking Effect?

The application for review does not operate as an automatic stop to the decision being implemented; however the Tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order (see s 53 of the ACAT Act).

Obtaining an Authority's Reasons

If an authority that made the decision did not tell you the facts upon which its decision was based and the reasons for its decision, you may apply to the authority to request a written reasons statement which sets out the facts and reasons for the decision. This information may assist you identify grounds for review. The decision-maker must then give you that written material within 28 days (see s 22B of the ACAT Act).

In certain cases the decision-maker will be entitled not to give reasons for a decision where the matter involves the public interest.

Applications for reasons must be in writing.

The 28 day period in which to lodge an application for review then runs from the day on which you receive the authority's reasons, or its refusal to give reasons. Alternatively, you may apply to the Tribunal for review, and you will be given a copy of the reasons.

What Happens Next?

It is the policy of the Tribunal to manage all applications from the moment an application is lodged. The Tribunal will facilitate the resolution of applications in the first instance by listing applications for conference, directions, a preliminary conference under s 33 of the Act or mediation where appropriate. The Tribunal may also refer parties to other dispute resolution services at any time.

If need be the Tribunal can also set time limits for case preparation and monitor the progress of an application against these time limits as well as varying or enforcing compliance with the time limits so that applications are dealt with as quickly as is consistent with achieving justice.

Set out below is a brief overview of the steps that usually occur after an application is lodged.

Filing and serving of relevant documents

A. Civil Disputes

After an application has been lodged, the Tribunal will notify the other party (a respondent) and ask for a response to the claims made in the application.

B. Administrative Review

If the ACAT declares that the reasons statement is insufficient, the decision maker must, within 28 days of the Tribunal's declaration give the applicant an additional statement containing information, materials and anything else required to make the reasons statement sufficient (see s 22D of the ACAT Act).

Preliminary conference

After it receives the relevant documents the Tribunal will usually set the matter down for a preliminary conference. The conference is generally scheduled to take place about six weeks after the application was filed.

The purpose of the conference is to discuss and clarify the issues in dispute (especially any particular disputed facts) and the evidence likely to be presented at hearing. The conference registrar also will explore the possibility of a pre-hearing settlement of the application with the parties.

At the end of the preliminary conference the registrar, if it appears obvious that no resolution to the appeal is possible, will usually order an inquiry to take place as soon as practicable.

If the issues in dispute are resolved between the parties before the conference, the parties may sign and file with the ACAT, a consent judgment in accordance with the Consent Judgement order form provided by the Tribunal.

Alternative Dispute Resolution

If, before a hearing of an application the Tribunal considers that the matter is reasonably likely to be resolved through mediation, the Tribunal may refer the parties to a registered mediator and order the parties to attend.

During a mediation or conciliation conference the registered mediator will explore with both parties whether any common ground exists and whether a settlement can be reached that both parties agree on.

Hearing

Hearings are conducted in public unless the Tribunal directs otherwise; for example, that a directions hearing be held by telephone.

All parties to the hearing are notified well in advance of the hearing date.

The Tribunal has the power to proceed in the absence of a party who has had reasonable notice of the hearing date. Alternatively, the Tribunal may set a date for another hearing, order certain steps be taken, adjourn the hearing or dismiss the application.

Each side may call witnesses and take evidence via examination in chief, followed by cross-examination of the witness by the other side. Where an applicant is unrepresented and there are no other witnesses the Tribunal will often take evidence in chief from them and then invite the Respondent to cross examine.

The Tribunal may, by summons require a person to attend a hearing or produce a document. Failure to comply with such a summons may result in arrest of the person.

The proceedings generally conclude, again like court proceedings, with each side making closing submissions to the Tribunal.

The Tribunal may then issue an ex-tempore (on-the-spot verbal) decision immediately or, more commonly, will reserve judgment and deliver a written decision at a later date.

The Tribunal is not strictly bound by the rules of evidence, however evidence will be given more or less weight depending on its source, for example, answers to leading questions or hearsay evidence (whilst allowed) may be given less credibility / weight than evidence that is adduced in line with accepted principles.

What Remedy can the Tribunal Grant?

The remedies available in the Tribunal depend on the type of matter that has been heard. Generally, the authorising law will set out the powers of the Tribunal and the decisions it may make on an application. Some of the orders the Tribunal may make include:

• Interim orders to protect the position of the party that applied for the order;
• Reprimand a person and require them to give a written undertaking;
• Require a person to undergo training;
• Cancel, suspend or make conditional a person's licence or registration;
• Order an internal review of an administrative decision; or
• Confirm, vary, substitute or set aside an administrative decision.

Costs

The parties to an application must bear their own costs unless the ACAT Act otherwise provides or the Tribunal otherwise orders. If the Tribunal decides in the favour of the applicant, the Tribunal may order the other party to pay the applicant for the filing fee for the application.

Where one party to an application causes unreasonable delay, the Tribunal may order that party to pay the costs incurred by the other party arising from the delay.

Review by the ACT Administrative Appeals Tribunal (repealed 2 February 2009)

The ACT Administrative Appeals Tribunal (ACT AAT) was established under the Administrative Appeals Tribunal Act 1989 (ACT) (the "ACT AAT Act"). Section 3A stated that the main objects of the Act were:

(a) to establish an independent administrative appeals tribunal;

(b) to review decisions made by decision-makers under enactments if authorised by enactments; and

(c) to ensure that the AAT is accessible; and

(d) to ensure that proceedings in the AAT are efficient, effective and as informal as possible; and

(e) to ensure decisions of the AAT are fair; and

(f) to foster an atmosphere in which administrative review is viewed positively as a way of enhancing the delivery of services and programs; and

(g) to encourage, and bring about, compliance by administrators with territory laws.

In the early days of ACT Self-Government, the ACT AAT was co-located with the Commonwealth AAT, and AAT Deputy President Todd also held office as President of the ACT AAT. Subsequently, the ACT AAT became completely separate from the Commonwealth AAT, however there was still some similarities in the manner of operation of each tribunal.

The Tribunal comprised two divisions, the General Division and the Land and Planning Division. The Land and Planning Division dealt with decisions made under the Land (Planning and Environment) Act 1991 (ACT), the Tree Protection Act 2005 (ACT) and the Heritage Act 2004 (ACT).

On 2 February 2009, the ACT AAT was consolidated into the new ACT Civil and Administrative Tribunal upon the commencement of the operative provisions of the ACT Civil and Administrative Tribunal Act 2008 and the repeal of the ACT AAT Act. Transitional provisions for uncompleted matters are found in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, available at www.legislation.act.gov.au/sl/2009-2/default.asp.

Commonwealth and ACT Ombudsman

Roles and Powers of the Ombudsman

The office of Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth) ('the Ombudsman Act') and began operation in July 1977. The Commonwealth Ombudsman also holds office (created under Part IIA of the Ombudsman Act) as Defence Force Ombudsman.

The Commonwealth Ombudsman is also the Ombudsman for the Australian Capital Territory exercising powers under the Ombudsman Act 1989 (ACT) by a contract arrangement with the ACT Government.

Additional powers were conferred on the office under the Complaints (Australian Federal Police) Act 1981 (Cth), and the Freedom of Information Act 1982 (Cth) ('the FOI Act (Cth)'). Under the Ombudsman Act, the Commonwealth Ombudsman is also the Taxation Ombudsman.

The Ombudsman is responsible, under the Telecommunications (Interception and Access) Act 1979 (Cth) and the Crimes Act 1914 (Cth), for monitoring the integrity of the records of telecommunications interceptions and controlled operations conducted by the Australian Federal Police and the Australian Crime Commission.

In 2006 legislation was passed to create a separate office of Postal Industry Ombudsman within the office of the Commonwealth Ombudsman.

What can be Investigated

The Commonwealth Ombudsman investigates impartially, independently and free of charge complaints about the administrative actions or decisions of Commonwealth government departments, prescribed authorities (including the Australian Crime Commission), certain Commonwealth controlled companies and some private contractors working for government.

The Ombudsman also has a role in the investigation of complaints about the Australian Federal Police.

The Postal Industry Ombudsman can investigate complaints about Australia Post, or about any other postal or courier operators that register with the scheme. The Postal Industry Ombudsman's website ( www.pio.gov.au) contains full details of its role and functions and a list of all operators registered with the scheme.

As Defence Force Ombudsman, the Commonwealth Ombudsman investigates complaints from members or former members of the Australian Defence Force relating to or arising out of their service in the Forces and, as ACT Ombudsman, deals with complaints about departments and agencies set up under the ACT Government.

Investigations may be undertaken as a result of a complaint or may be instigated by the Commonwealth Ombudsman. These latter complaints are known as 'own motion investigations'.

Complaints can be made in writing, by phone, in person or by using an online complaints form. (See Contacts, Links and Resources for relevant phone numbers and the Ombudsman's web address).

The Ombudsman's Workload

The Ombudsman receives some 30,000 complaints per year, about one third of which are investigated. (In most of the other cases, the Ombudsman suggests the complainant use a department or agency internal complaint system first, and come back if dissatisfied). The Ombudsman also receives many thousands of other inquiries.

The agencies most frequently complained about are those that have the most dealings with the public -- Centrelink, the Child Support Agency, the Australian Taxation Office and the Department of Immigration and Citizenship. The Australian Federal Police, Australia Post and the various elements of the Defence portfolio also provide significant parts of the caseload.

What cannot be Investigated

Expressly excluded from the Commonwealth Ombudsman's jurisdiction are:

• actions of Commonwealth ministers (but recommendations to ministers and actions of ministerial delegates are not excluded);
• actions of judges and magistrates (but non judicial actions of Federal Court registries are not excluded);
• actions of State or local governments (except the ACT Government, in the role of ACT Ombudsman);
• actions of a few Commonwealth authorities specifically placed by law outside jurisdiction; and
• most Commonwealth public sector employment matters (except for Defence Force personnel).

Discretion not to Investigate

The Commonwealth Ombudsman may exercise the discretion not to investigate a matter or to discontinue an investigation in a range of circumstances, including where:

• there has been undue delay (12 months or more) in lodging the complaint;
• the complaint is vexatious or frivolous or not made in good faith;
• the person making the complaint does not have a sufficient 'interest' in the matter;
• the agency concerned has not been given a reasonable opportunity to resolve the matter;
• the action relates to a commercial activity of an agency;
• more appropriate alternative review or appeal processes are available; or
• in the Ombudsman's opinion investigation is not warranted.

The Ombudsman will not generally investigate a complaint unless the complainant has first raised the matter with the agency. This is because most agencies now have dedicated internal complaint handling systems which operate as part of their client service charters. The Ombudsman periodically reviews the effectiveness of these systems. However, if people with complaints are uncertain about who to contact, they should always contact the Ombudsman's office.

For matters outside the Ombudsman's jurisdiction, complainants may be advised to take their complaint to an industry ombudsman, if this is a more appropriate body to deal with the matter.

Investigations

Investigations are conducted on a confidential basis. The complainant's name is only given to the agency for the purposes of the complaint investigation. The Ombudsman also accepts anonymous or 'whistleblower' complaints, but is less able to communicate the outcome of such investigations. Complainants should note that as an Australian government agency, the Ombudsman's office is subject to the requirements of the Freedom of Information Act 1982 (Cth).

Investigative Powers

The Commonwealth Ombudsman has extensive powers to require the production of documents and information and can require people to appear and give evidence. The coercive powers are used only where a person or agency is unwilling or unable to provide information voluntarily.

During an investigation, the department or authority is asked to comment on the complaint and to give reasons for its action or decision. The complainant is advised of the agency's explanation and of the Commonwealth Ombudsman's opinion, and is given the opportunity to provide more information or raise any further matters.

At various stages of an investigation involving serious matters, the Commonwealth Ombudsman must inform the head of the department or authority concerned and may inform the responsible minister of any action that is being taken. The Ombudsman must inform the minister if he or she intends to exercise coercive powers to obtain information, or if he or she invites a person or agency to make submissions in relation to a possible criticism.

Usually the Commonwealth Ombudsman will not publicly disclose information obtained during the course of an investigation but he or she has the power to make public statements in special circumstances involving important public interest matters. The Ombudsman has the power to provide to an agency head evidence of misconduct by an official.

Results

The Ombudsman usually concludes investigations by deciding no further investigation is needed. This occurs when, for example, an agency agrees it has erred and provides a remedy or when the Ombudsman considers that an agency's action was reasonable. In other cases, the Ombudsman reaches an opinion that there has been defective administration, which means that he or she considers that the action was

• apparently contrary to law;
• unreasonable, unjust or oppressive;
• in accordance with a law or practice which was unreasonable, unjust or oppressive;
• improperly discriminatory;
• based on a mistake of law or fact;
• based on irrelevant factors or did not take into account relevant factors; and/or
• in all the circumstances, wrong.

In these cases, the Ombudsman may issue a report with recommendations. However, this occurs comparatively rarely; more commonly, the Ombudsman's office will express a view that there has been some agency error and suggest a remedy.

Enforcement

The Commonwealth Ombudsman cannot overturn an agency's decision. Should the Ombudsman consider remedial action necessary but an agency does not agree to provide a remedy, the Ombudsman reports to the department or authority concerned and includes any appropriate recommendations.

If the agency fails to comply with a formal recommendation, the Commonwealth Ombudsman may inform the Prime Minister and the Commonwealth Parliament. The Ombudsman may also decide to make public information about the investigation (usually without any identifying details).

Recommendations

Recommendations that can be made by the Commonwealth Ombudsman include:

• reconsideration by the department or authority to change its action or decision;
• change in a law, rule or procedure used by the agency, and
• any other action considered right in the circumstances, for example, an apology or, in limited circumstances, compensation for any financial loss.

Whatever the outcome of an investigation, the Commonwealth Ombudsman will tell the complainant the results of the investigation and give reasons for the decision.

The Defence Force

Current Defence Force members may complain to the Defence Force Ombudsman (DFO) about most actions taken during their service. These include assessments, promotions and demotions, postings, discharges and housing allowances.

The main exceptions are complaints relating to discipline or to the grant of some honours and awards to individuals. In addition, the DFO cannot investigate a complaint about any action undertaken in relation to a Minister, a Judge, a Magistrate or a Coroner.

The DFO cannot usually investigate a complaint from a serving member until internal redress or grievance procedures established under Defence Force regulations have been exhausted. A period of at least 28 days from a request for redress is usually required to elapse before the DFO considers investigation; in practice, a longer period is often allowed due to the complexity of these matters and the nature of the Defence command system.

Current and former members of the Defence Force, their spouses and dependants can complain to the DFO about service-related actions of Commonwealth agencies, for example, repatriation benefits, Defence Service home loans, military superannuation, compensation and service or campaign medals.

In most other respects, Defence Force complaints are dealt with in a similar way to other complaints under the Ombudsman Act.

The Australian Federal Police

Under the Ombudsman Act 1976 (Cth) and Division 5 of the Australian Federal Police Act 1979 (Cth), the Ombudsman may investigate matters relating to corruption within the AFP, AFP practices and procedures, and some other actions. However, the Ombdusman cannot investigate complaints relating to AFP employment matters.

In the first instance, complaints about police are almost always investigated by AFP Internal Investigations. The Internal Investigations report is examined by the Ombudsman who, if not satisfied, may:

• conduct his or her own investigation;
• require the AFP to investigate further;
• ask the AFP to reconsider its recommendations; or
• make some other suggestion.

The Ombudsman monitors the progress of all AFP Internal Investigations, and can make comments or suggestions and seek progress reports during the investigation. The Ombudsman can issue a report recommending particular action.

Freedom of Information

The Ombudsman's powers and responsibilities relating to freedom of information are set out in s 57 of the Freedom of Information Act 1982 (Cth). As ACT Ombudsman, he or she has a similar role under the Freedom of Information Act 1989 (ACT).

Any aspect of an agency's handling of a person's freedom of information request, such as delay, charges, or refusal of access, can be the subject of complaint to the Ombudsman. Recently, amendments have been proposed to the legislation that would make it harder for the Federal Government to issue a certificate exempting information from the reach of the Freedom of Information Legislation. These amendments remain, at the time of writing (September 2009) before the Parliament.

Both the Commonwealth and the ACT Freedom of Information Acts provide for a formal review process within an agency of any adverse decisions the agency may have made. A person dissatisfied with a decision is normally expected to seek internal review first.

After completion of an internal review, external review is available through the Commonwealth Ombudsman, the Administrative Appeals Tribunal or the ACT Administrative Appeals Tribunal. (The Administrative Appeals tribunals are more formal bodies of review which, unlike the Commonwealth Ombudsman, have the power to overturn an agency's decision except where a conclusive certificate has been issued). The right to seek review by a tribunal is suspended while the Commonwealth Ombudsman is investigating a complaint.

The ACT Ombudsman

The Commonwealth Ombudsman is the Ombudsman for the Australian Capital Territory exercising powers under the Ombudsman Act 1989 (ACT) by a contract arrangement with the ACT Government. Section 4 of the Act provides that the ACT Ombudsman has the following functions

(a) to investigate complaints made under the Act;

(b) to exercise other functions given to the Ombudsman under the Act;

(c) to exercise other functions given to the Ombudsman under the Public Interest Disclosure Act 1994 (ACT); and

(d) to monitor compliance with the Crimes (Child Sex Offenders) Act 2005 (ACT), chapter 4 (Child sex offenders register) by the Chief Police Officer and other people authorised by the Chief Police officer to have access to the child sex offenders register.

The ACT Ombudsman is not authorised to investigate action taken by:

• a Minister (s 5(2)(a));
• a judge or master of the Supreme Court, or a registrar performing a function of a judicial nature (s 5(2)(b);
• a magistrate or a coroner for the ACT (s 5(2)(c));
• a tribunal, a tribunal member, or tribunal staff, in the exercise of the tribunal's deliberative functions (s 5(2)(d));
• a royal commission under the Royal Commissions Act 1991 (ACT) or a board of inquiry under the Inquiries Act 1991 (ACT) (s 5(2)(e),(f));
• the Commissioner for the Environment (s 5(2)(g);
• any agency in relation to the employment, promotion, termination of employment, etc of public servants or employees of a prescribed authorities (s 5(2)(k),(l));
• (or action not taken) under the Legislation Act 2001 (ACT) part 5.2 (Requirements for regulatory impact statements) (s 5(2)(m));
• an agency in providing a disability service, a health service, service for children or young people or for older people (s 5(2)(n)).

the Territory or a territory authority for the management of the environment (not including action taken under the Utilities Act 2000, part 14 (Streetlighting and stormwater) (s 5(2)(h));

the Human Right Commission, a member of the Commission or a staff member, in the exercise of the deliberative functions of the Commission (s 5(2)(i));

a judicial commission under the Judicial Commissions Act 1994 (ACT) (s 5(2)(j));

Offices

The Commonwealth Ombudsman has offices in all States and Territories. For the cost of a local call, people from country areas can call the Ombudsman's National Complaints Line on 1300 362 072.

The Ombudsman's website has detailed information about the Ombudsman's services, an online complaints service, details of legislation and copies of Ombudsman reports and publications, including the Ombudsman's Service Charter. It also contains particularly useful information, such as providing tips and advice about the best way to handle and progress complaints with government agencies.

For a link to the Ombudsmanà ƒ ƒ ƒ ¢Â€Â™s website and to further contact information, see Contacts, Links and Resources. The contact details for the ACT Ombudsman are the same as those for the Commonwealth Ombudsman.

Freedom of Information

Freedom of Information Act 1982 (Cth)

Information held by Commonwealth government departments and agencies may be obtained by relying on the rights contained in the Freedom of Information Act 1982 (Cth) as amended (FOI Act (Cth)). Under the FOI Act (Cth) any individual, regardless of whether they are a party to a dispute or affected by a Commonwealth government decision, may obtain access to any document held by a Commonwealth government agency, unless the document or part of the document falls into one of the exemptions or exclusions contained in the FOI Act (Cth). It is not necessary to have "standing" of the kind required to succeed with a request under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In general, an applicant's identity or reasons for seeking access to documents are considerations irrelevant to an access decision (although there are some exceptions to this proposition).

For further information see FreedomOfInformation, in particular Freedom of Information at Commonwealth Level.

General enquiries

Under the Administrative Arrangements Order of 3 December 2007, responsibility for privacy and freedom of information, including administration of the Privacy Act 1988 and the Freedom of Information Act 1982, was transferred from the Attorney-General's portfolio to the portfolio of the Prime Minister and Cabinet, Privacy and FOI Branch. For contact details, see Contacts, Links and Resources.

Contacts, Links and Resources

Commonwealth

Administrative Appeals Tribunal (AAT) www.aat.gov.au

Administrative Review Council (ARC) www.ag.gov.au/arc

ATOlaw: the ATO Legal Data Base law.ato.gov.au/atolaw

Attorney-General's Department (Cth) www.ag.gov.au

Australian Institute of Administrative Law (AIAL) http://law.anu.edu.au/aial

Australian Human Rights Commission www.hreoc.gov.au

Australian Taxation Office www.ato.gov.au

Commonwealth Ombudsman www.ombudsman.gov.au

Department of the Prime Minister and Cabinet, Privacy and FOI Branch www.pmc.gov.au/foi/index.cfm

Department of Veterans' Affairs www.dva.gov.au

Federal Court of Australia www.fedcourt.gov.au

Federal Magistrates Court www.fmc.gov.au

High Court of Australia www.hcourt.gov.au

Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) www.mrt-rrt.gov.au

Postal Industry Ombudsman www.pio.gov.au

Social Security Appeals Tribunal (SSAT) www.ssat.gov.au

Veterans' Review Board (VRB) www.vrb.gov.au

ACT

ACT Civil and Administrative Appeals Tribunal www.acat.act.gov.au

ACT Department of Justice and Community Safety (JACS) www.jcs.act.gov.au

ACT Ombudsman www.ombudsman.act.gov.au

ACT Planning and Land Authority (ACTPLA) www.actpla.act.gov.au

ACT Supreme Court www.courts.act.gov.au/supreme

Canberra Connect www.canberraconnect.act.gov.au

Other States and Territories

NSW Administrative Decisions Tribunal (ADT) www.lawlink.nsw.gov.au/adt

Victorian Civil and Administrative Tribunal (VCAT) www.vcat.vic.gov.au

WA State Administrative Tribunal (SAT) www.sat.justice.wa.gov.au