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Administrative Review before the Administrative Appeals Tribunal—A Fresh Approach to Dispute Resolution?

Part I

Published online by Cambridge University Press:  24 January 2025

A. N. Hall
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Type
Review Article
Information
Federal Law Review , Volume 12 , Issue 1 , March 1981 , pp. 71 - 94
Copyright
Copyright © 1981 The Australian National University

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References

1 “Administrative Law within the Australian Federal System” an address presented to the International Association of Law Libraries in Australia on 11 May 1981 in which the President traced the recent changes in federal administrative law (unpublished).

2 But see Wade, Administrative Law (4th ed. 1977) 26; cf. Lawson, “Dicey Revisited” (1959) Vol. 7 Political Studies 109, 207.

3 Lord Hewart, The New Despotism (1945 reprint 1975); Brown and Garner, French Administrative Law (2nd ed. 1973); cf. Schwartz, Administrative Law (4th ed. 1976) 18.

4 Wade, op. cit. 27. For a conspectus of the considerable influence of droit administratif outside France, see Brown and Garner, op. cit. Ch. 10.

5 Brown and Garner, op. cit. 126-142; cf. Commonwealth Administrative Review Committee: Report (1971) (the Kerr Report), Ch. 9 where the French system was considered. The Kerr Committee was not disposed, however, to recommend any attempt to adopt in Australia the extended form of judicial review for which that system is a model.

6 Brown and Garner, op. cit. Ch. 9.

7 Id. Ch. 6.

8 Id. 142.

9 Taylor, “The New Administrative Law” (1977) 51 A.L.J. 804; Kirby, “Administrative Law Reform in Action” (1978) 2 University of New South Wales Law Journal 203.

10 E.g. Ridge v. Baldwin [1964] A.C. 40 which reinvigorated the common law requirements of natural justice and Conway v. Rimmer [1968] A.C. 910 which restored the power of the judiciary to supervise claims of Crown privilege. For a concise conspectus see Wade, op. cit. 19-22.

11 E.g. R. v. Northumberland Compensation Appeal Tribunal: ex parte Shaw [1952] 1 K.B. 338; cf. Baldwin & Francis Ltd v. Patents Appeal Tribunal [1959] A.C. 663.

12 E.g. Roberts v. Hopwood [1925] A.C. 578; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014, but cf. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B.223 and Parramatta City Council v. Pestell (1972) 128 C.L.R. 305.

13 (1977) 13 A.L.R. 1.

14 Id. 11-12.

15 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223; cf. Fawcett Properties Ltd v. Buckingham County Council [1961] A.C. 636; Parramatta City Council v. Pestell (1972) 128 C.L.R. 305.

16 Arthur Yates and Co. Pty Ltd v. Vegetable Seeds Committee (1945) 72 C.L.R. 37.

17 Roberts v. Hopwood [1925] AC. 578; Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223; Prescott v. Birmingham Corporation [1955] 1 Ch. 210; cf. Sullivan v. Department of Transport (1978) 1 A.L.D. 383.

18 (1937) 56 C.L.R. 746, 757-758.

19 E.g. Taxation Boards of Review, Local Government Appeals Tribunals, Land & Valuation Appeals Tribunals. See Wade, op. cit. Ch. 23 for a survey of the position in the United Kingdom; cf. Kerr Report, op. cit. Chs 2, 6.

20 In some cases, where the legislation so permits, decisions of such Tribunals may be taken on appeal, at least on questions of law, to a court of law. But not infrequently no such right of appeal is conferred and, by the use of privative clauses, Parliament has attempted to exclude the supervisory jurisdiction which the courts might otherwise have been able to exert. The difficulties which the courts have encountered with privative clauses are notorious e.g. R. v. Hickman; ex parte Fox (1945) 70 C.L.R. 598; cf. Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147. But see now Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 4.

21 Kerr Report op. cit.; Interim Report of the Committee on Administrative Discretions (1973); Final Report of the Committee on Administrative Discretions (1973) (the Bland Report); Prerogative Writ Procedures, Report of Committee of Review (1973) (the Ellicott Report).

22 For a full account of this legislation see Pearce, The Australian Administrative Law Service Ch. 4. See also the recent decisions of Lockhart J. in Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322 and Hamblin v. Duffy (1981) 34 A.L.R. 333.

23 Administrative Appeals Tribunal Act 1975 (Cth), ss. 28, 37; Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 13; cf. Re Palmer and Minister for Capital Territory (1978) 1 A.L.D. 183; Re Harkins and Minister for' Capital Territory (1978) 1 A.L.D. 537; and Re Frohlich and Minister for Capital Territory (1979) 2 A.L.D.434.

24 Ombudsman Act 1976 (Cth), s. 9.

25 Despite the advances made in cases such as Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 (cf. Giris Pty Ltd v. Commissioner of Taxation (1969) 43 A.L.J.R. 99), the common law has been unable to develop any general requirement that an administrator must give reasons for his decision; cf. R. v. Gaming Board for Great Britain; ex parte Benaim and Khaida [1970] 2 Q.B. 417, 430.

26 (1980) 31 A.L.R. 666.

27 Id. 685-686.

28 E.g. the ground of review “that the decision involved an error of law, whether or not the error appears on the record of the decision” in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s. 6(1)(f).

29 As at the date of preparation of this paper (June 1981) there was a total of 104 enactments conferring review jurisdiction on the Tribunal. There were also some 16 Bills before Parliament conferring further jurisdiction on the Tribunal in 23 new areas, including Commonwealth Government Employees Compensation. The main areas of review jurisdiction invoked by applicants before the Tribunal up to date have been Customs, Air Navigation, Superannuation, Defence Force Retirement and Death Benefits, Deportation, Insurance, Home Savings Grants, Export Development Grants, Land Valuation, Postal, Patents, Repatriation, Book Bounty, National Health and (increasingly) Social Security.

30 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60, 68.

31 Commonwealth Administrative Review Committee (the Kerr Report) (1971).

32 Administrative Appeals Tribunal Act 197S (Cth), s. 43.

33 Supra p. 72.

34 Kirby, “Administrative Review on the Merits: Tlte Right or Preferable Decision” (1980) 6 Monash University Law Review 171.

35 (1977) 1 A.L.D. 1S8, 162-163.

36 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60, 68-69.

37 Ibid.

38 Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 A.L.D. 227.

39 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60, 64.

40 Neal v. Secretary, Department of Transport (1980) 29 A.L.R. 350.

41 Re Berick and Secretary, Department of Housing and Construction (Administrative Appeals Tribunal, 6 March 1981, unreported decision).

42 Re Jeans and Secretary, Department of Housing and Construction (1979) 2 A.L.D. 337.

43 Re Adams and the Tax Agents Board (1976) 1 A.L.D. 251; cf. Re Zimmax Trading Co. Pty Ltd and Collector of Customs (N.S.W.) (1979) 2 A.L.D. 120.

44 Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 41 F.L.R. 338, 345; 2 A.L.D. 1, 7; cf. Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571, 585.

45 (1979) 41 F.L.R. 338.

46 For the converse position where the Tribunal reviewed a decision wherein the decision-maker had refused to decide a question on the ground that he lacked the power to do so, see Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1979) 2 A.L.D. 711.

47 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60, 64.

48 Ibid.

49 Id. 65.

50 Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R. 666,671, 686.

51 (1979) 2 A.L.D. 60.

52 Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (N.S.W.) (No. 2) (1980) 3 A.L.D. 38; Neal v. Secretary, Department of Transport (1980) 29 A.L.R. 350 and May v. Secretary, Department of Transport (Federal Court of Australia, 12 May 1981, unreported decision of Ellicott J.).

53 Sullivan v. Department of Transport (1978) 1 A.L.D. 383, 410.

54 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 A.L.D. 158.

55 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60, 68.

56 Id. 77.

57 (1981) 35 A.L.R. 186.

58 Id. 195; cf. Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 41 F.L.R. 338; 2 A.L.D. 1.

59 Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 A.L.R.186.

60 Kirby, supra n. 34, where he discusses this aspect of the Tribunal's functions.

61 Cf. Brown and Garner, French Administrative Law (2nd ed. 1973) 136.

62 E.g. Customs Tariff classification cases, and land valuation cases where the issues are primarily factual.

63 E.g. applications for review under the Superannuation Act 1976 (Cth), Defence Force Retirement and Death Benefits Act 1973 (Cth), Home Savings Grant Act 1976 (Cth) and Social Services Act 1947 (Cth).

64 E.g. Migration Act 1958 (Cth); cf. Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 60.

65 Id. 70.

66 (1979) 2 A.L.D. 634.

67 Id. 639; cf. Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 34 A.LR. 639, 647.

68 Commonwealth Ombudsman, Third Annual Report (1979-1980) 76.

69 Id. 18.

70 Ombudsman Act 1976 (Cth), s. 5(1).

71 The Ombudsman's Reports disclose very few instances of his recommendations not being accepted. See Second Annual Report (1979) 4 and Third Annual Report (1979-1980) 20-21.

72 Ch. 5.

73 (1980) 31 A.LR. 666.

74 S. 43(1) (c) (ii).

75 E.g. Re Taylor and Department of Transport (1978) 1 A.L.D. 312-a recommendation that further action be instituted against the applicant; Re Hollands and Commissioner of Police and Registrar of Gun Licences (Administrative Appeals Tribunal, 22 May 1981, unreported decision)-a recommendation that a licence be granted, subject to certain conditions.

76 E.g. Re Hood and Minister for Immigration and Ethnic Affairs (1977) 1 A.L.N. No. 5-a recommendation that there should be a short delay in deportation to enable the applicant to organise medical evidence relevant to a claim for damages; Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 A.L.D. 227-a recommendation of an ex gratia payment on account of misleading advice given to the applicant on which he acted to his detriment; Re Lazarevic and Minister for Immigration and Ethnic Affairs (1979) 2 A.L.N. No. 62-a recommendation that the applicant be given a further opportunity to establish himself in Australia under supervision-recommendation not accepted; and Re Billeci and Secretary, Department of Housing and Construction (1980) 2 A.L.N. No. 126-a recommendation of an ex gratia payment of home savings grant where the applicant's failure to qualify for the grant was due to delays by another department of Government.

77 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 A.L.D. 158, 161.

78 E.g. Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 A.L.D. 227; Re Billeci and Secretary, Department of Housing and Construction (1980) 2 A.L.N. No. 126; cf. Re Lazarevic and Minister for Immigration and Ethnic Affairs (1979) 2 A.L.N. No. 62.

79 Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 A.L.D. 227; Re Bundy and Secretary, Department of Housing and Construction (1980) 2 A.L.D. 735; Re Blakemore and Acting Commissioner for Superannuation (1980) 3 A.L.D. 124 and Re Rennie and Defence Force Retirement and Death Benefits Authority (1979) 2 A.L.D. 424. Similar problems confront the Ombudsman-see Commonwealth Ombudsman Third Annual Report Chs 7, 8. Of course, where negligence is involved there may be a remedy in damages at law-e.g. Johnson v. South Australia Vol. 89 S.A. Law Society Judgment Scheme, 462; [1980] Australian Legal Monthly Digest S5620, 5643.

80 Maritime Electric Co. Ltd v. General Dairies Ltd [1937] A.C. 610.

81 (1980) 2 A.L.D. 735.

82 Id. 151.

83 Wade, Administrative Law (4th ed. 1977) 330.

84 (1978) 1 A.L.D. 227.

85 Supra n. 76.

86 Supra n. 68, 27-28.

87 Supra p. 77.

88 See Re Palmer and Minister for the Capital Territory (1978) 1 A.L.D. 183; Re Harkins and Minister for the Capital Territory (1979) 1 A.L.D. 537 and Re Frohlich and Minister for the Capital Territory (1979) 2 A.L.D. 434.

89 (1978) 1 A.L.D. 183, 193.

90 Re Greenham and Minister for the Capital Territory (1979) 2 A.L.D. 137.

91 Re Jeans and the Department of Housing and Construction (1979) 2 A.L.D. 337.

92 Re Palmer and Minister for the Capital Territory (1978) 1 A.L.D. 183.

93 Re UK Family Reunion and Australian Postal Commission (1979) 2 A.L.D. 383.

94 E.g. in deportation cases or in matters on appeal from The Australian Broadcasting Tribunal.

95 Administrative Appeals Tribunal Act 1975 (Cth), s. 33(2).

96 Particularly in the deportation, insurance and broadcasting tribunal review cases. For an example of the type of directions necessary in a complex case, see Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No. 2) (1981) 3 A.L.D. 88.

97 Administrative Appeals Tribunal Act 1975 (Cth), ss. 27, 28, 30.

98 Re Phillips and Secretary, Department of Transport (1978) 1 A.L.D. 341; Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No. 2) (1981) 3 A.L.D. 88; Re Saint James and Defence Force Retirement and Death Benefits Authority (Administrative Appeals Tribunal, 30 April 1981, unreported decision), and Re Maunsell and Partners Pty Ltd and Maunsell Consultants and Export Development Grants Board (1980) 2 A.L.D. 813.

99 Supra p. 78.

1 Re Georges and the Mim'ster for Immigration and Ethnic Affairs (1978) 1 A.L.D. 331, 334; cf. Re Wedgwood and Australian Postal Commission (1978) 1 A.L.N. No. 6.

2 Supra p. 78.

3 (1981) 35 A.L.R. 186.

4 Id. 199.

5 (1979) 2 A.L.D. 634.

6 Id. 652-653.

7 (1978) 1 A.L.D. 383.

8 Id. 402-403.

9 Administrative Appeals Tribunal, 25 November 1980, unreported decision.

10 Re Gissing and Collector of Customs (1977) 1 A.L.D. 144.

11 Cf. Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (N.S.W.) (1978) 1 A.L.D. 167, where the Tribunal itself felt obliged to raise with the parties its doubts as to the legality of the action taken by the Collector to cancel the applicant's warehouse licence.

12 Re Carey and Collector of Customs (1978) 1 A.L.D. 455.

13 (1980) 3 A.L.D. 18; a decision which was commented on in (1980) 54 A.L.J. 152.

14 Administrative Appeals Tribunal, 31 October 1980, unreported decision.

15 Re Dundon and Director-General of Social Services (unreported).

16 See Corsi, “Attitudes Toward the Use of the Telephone in Administrative Fair Hearings: The California Experience” (1979) 31 Administrative Law Review 247, 256-258; cf. Corsi, “Pilot Study Report on the Use of the Telephone in Administrative Fair Hearings” (1979) 31 Administrative Law Review 485.

17 (1976) 60 Cal. App. 3d 245, 250-251; 131 Cal. Rptr 422, 425.