Administrative Appeals Tribunal Research Articles

The Nature of Merits Review: A Bold Vision Realised in the Administrative Appeals Tribunal

This article examines the nature of merits review, focusing upon the Administrative Appeals Tribunal. Some forms of merits review are less than full merits review and some are hybrid merits review. It is contended that a proper appreciation of merits review may expose misperceptions concealed in some claims that judicial review resembles merits review.

The Nature of Merits Review: A Bold Vision Realised in the Administrative Appeals Tribunal

The Nature of Merits Review: A Bold Vision Realised in the Administrative Appeals Tribunal

Apportionment of Dual-Purpose Expenses

This article examines a particular type of dual-purpose expense – one which can be linked both to the derivation of assessable income and to the generation of a private benefit. On what basis should a taxpayer be able to claim a deduction for such an expense? Significant difficulty and uncertainty underlie the apportionment process that is applied to such an expense by the courts, the Administrative Appeals Tribunal and the Australian Taxation Office. The process provides little practical guidance to taxpayers on how to apportion dual-purpose expenses. In addition, a tension exists between the apportionment process and the threshold issue of characterisation or ‘relevance’ of dual-purpose expenses. This article examines these issues and suggests some clear principles that should be applied to the task of deducting dual-purpose expenses of this kind.

Editorial introductions

Editorial introductions

Right to Privacy: Telephone Interception and Access in Australia

In its first thirty years of operation, the 1979 Australian Telecommunications (Interception and Access) Act moved from providing a strict prohibition on telephone interception (wiretapping), to legislating rights of access for law enforcement and revenue protection agencies [5], [6], [12][14], [18]. Currently, Australian legislation permits access to call content through the use of a warrant issued by a member of the Administrative Appeals Tribunal [5]. The legislation also allows bureaucratic authorization for access to a suspect's location information [13]. Here we consider whether the impacts of this regime are appropriate for Australians in terms of financial costs and in term of impositions on privacy rights.

Eat, Swim, Pray

Eat, Swim, Pray

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

The Merits of “Merits” Review: A Comparative Look at the Australian Administrative Appeals Tribunal

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal [AAT], a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation [the Tribunals, Courts and Enforcement Act] merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. An upper tribunal hears appeals from the first tier and largely supplants judicial review. The article concludes by asking whether the U.S. could learn anything from the Australian and U.K. experience and suggests that a single tribunal to adjudicate federal benefits cases might be a significant improvement over the existing model.Cet article compare un certain nombre de systèmes de règlement judiciaire de différends dans le domaine administratif. Aux Etats-Unis, typiquement, le règlement de différends est effectué par la même agence qui établit les règles et qui les met en application. Toutefois, en Australie, presque tous ces règlements sont effectués par le Administrative Appeals Tribunal [AAT], une agence non-spécialisée de règlement de différends, ainsi qu‟un certain nombre d‟autres tribunaux spécialisés qui sont indépendants de l‟agence qui met les règles en application. Ces tribunaux (qui émanent de préoccupations au sujet de la séparation des pouvoirs) ont atteint un niveau élevé de légitimité. Au Royaume-Uni, une loi récente [la Tribunals, Courts and Enforcement Act] a fusionné plusieurs tribunaux spécialisés en un seul tribunal de première instance ayant des garanties d‟indépendance bien plus fortes qu‟auparavant. Un tribunal supérieur juge les appels des décisions du tribunal de première instance et supplante largement la révision judiciaire. L‟article se termine en posant la question à savoir si les Etats-Unis pourraient apprendre quelque chose de l‟expérience australienne et britannique et suggère qu‟un seul tribunal pour juger les cas de bénéfices fédéraux pourrait constituer une amélioration importante par rapport au modèle existant.

Conference Speech: Does Structural Dependence Affect the Decision-Making of the Immigration Tribunals?

This paper examines the structural relationship between the immigration tribunals (Refugee Review Tribunal and Migration Review Tribunal) and the Immigration Department and Minister compared to other tribunals, utilising the Administrative Appeals Tribunal (AAT) as a point of comparison. The author examines whether the structural dependence of the immigration tribunals affects their decision-making in normal circumstances as well as in situations of Executive abuse.

Roche Products Case: Increasing Role of Transfer Pricing

In Australia, there had not been many judicial challenges to revenue determinations of arm’s length considerations until the case of Roche Products Pty Ltd v. Commissioner of Taxation, which was heard by the Administrative Appeals Tribunal in the middle of 2008. The author considers this significant case, along with the relationship between Australian income tax treaties, domestic law and OECD principles.

The Impact of External Administrative Law Review: Tribunals

External review of administrative decisions on the merits is an accepted part of the Australian administrative law landscape. Reforms made in the Commonwealth sphere during the 1970s included the establishment of the Administrative Appeals Tribunal, and lead to the creation and development of generalist and specialist review tribunals both in the Commonwealth and the States. Review of administrative decisions by an external, independent, tribunal which would have the power to substitute the or decision was seen by the Kerr Committee in 1971 as the key to correcting error or impropriety in the making of administrative decisions affecting a citizen's rights. The focus was on redressing individual grievances, and only incidentally in playing a role in improving administrative decision-making. By the time of the ARC Better Decisions report in 1995, improving the quality and consistency of agency decision-making was seen as one of four specific objectives of the merits review system, the others being providing the correct and preferable decision in individual cases, providing an accessible mechanism for merits review, and enhancing the openness and accountability of government. This paper raises three questions for consideration. First, why are we concerned about the impact of external tribunal review, whether on an individual level or on administration more generally? Second, what do we mean by impact, and how might we measure it? Third, what do we know about how agencies respond to tribunal review decisions?

The Limits of the Great Barrier Reef Marine Park: Defining Bays and Redefining Regulatory Control

The Administrative Appeals Tribunal (AAT) in December 2007 decided that Horseshoe Bay is not part of the Great Barrier Reef Marine Park (GBRMP) and is beyond the decision-making jurisdiction of GBR...

VARIATION OF VIEW ON ENGLISH LEGAL DISTINCTIONS BETWEEN PUBLIC AND PRIVATE

The debate about distinguishing public law and private law has been wide-ranging and variously focused. It has contributed to a paradox (or contradiction) in legal thinking, described by Peter Cane in his contribution to Public Law in a Multi-Layered Constitution. On the one hand, Cane stresses that the distinction between public and private “seems alive and well”––manifest, inter alia, in judicial review procedure and the establishment of an Administrative Court in England, in EC law (demarcating the scope of directives with direct effect), in the provisions applicable to public authorities in the Human Rights Act 1998, in the “state action” doctrine of the US Supreme Court, and in the statutory demarcation of the Administrative Appeals Tribunal's jurisdiction in Australia. On the other hand, he stresses the extent of scholarly criticism of the distinction––that it is outmoded, descriptively inaccurate or normatively undesirable. In his view, the resolution of the paradox lies in recognition that “the supporters and the opponents of the public/private distinction are talking about different things”. He concludes that, for its opponents, as a result of institutional and functional hybridisation, “the distinction misrepresents the way power is distributed and exercised” but that, for its supporters, “it embodies an attractive normative theory of the way power ought to be distributed and its exercise controlled”. In his presentation of the paradox and its resolution, Cane thus brings together various views and distinctions––English, American and Australian––and suggests that a contrast between descriptive criticism and normative evaluation is crucial to understanding the public/private debate. By the breadth and inclusivity of his analysis, however, he also brings into question the desirability of unitary analytical treatment of various distinctions in various contexts, supported and opposed by people talking about “different things”.

Outcome, Process and the Rule of Law

In this address, marking the 30th anniversary of the establishment of the Administrative Appeals Tribunal, Chief Justice Gleeson of the High Court speaks about several matters bearing upon decision-making in administration and the role of administrative review. These include the impact of policy in individual decisions, and the relationship of merits review tribunals to courts. He notes that ‘one of the characteristic features of the context in which modern administrative law functions is a change in emphasis from the duties of public officials to the rights of citizens.

Agricultural Adaptation to Real Regulation on the Urban Fringe: The Chicken Meat Industry's Response to Land‐use Conflict in the Western Port Region of Victoria, Australia

Research theorising the rural‐urban fringe has not focussed in detail on the regulatory system managing land‐use conflict, including disputes arising between agricultural enterprises and residential property owners. To explore local forms of regulation the need to identify relevant actors, their interrelationships and the way that they compete to influence decision‐makers is widely recognised in the literature. Moran et al.'s (1996) conceptualisation of ‘real regulation’, with its emphasis on lobbying by social actors and the (re)formulation of legislation, is identified as a theoretical perspective that can help to explain local forms of regulation. The understanding of patterns of regulation on the urban fringe requires a more detailed conceptualisation of non‐legislative forms of policy, and a greater appreciation of the different strategies adopted by farmers to influence government. This paper investigates how urban fringe agricultural industries have attempted to influence decision‐making within the development approval process. Evidence is presented from the Western Port region in the urban fringe of Melbourne, Victoria, where refusal for the construction of broiler sheds by the Administrative Appeals Tribunal has resulted in the chicken meat industry adopting a more scientific siting strategy. It is concluded that, whilst this provides an example of agricultural adaptation and reinforces the importance of adopting a temporal dimension to investigate the land development process, the possibility that government will assess environmental harm differently in the future leaves urban fringe broiler farming in a precarious position.

Rewriting the Social Contract? the Ssat, the Aat and the Contracting Out of Employment Services

The way in which the contracting out of employment services has affected the ability of unemployed people to seek merits review of adverse decisions is explored and a brief overview of the debate surrounding the contracting out of government services is provided. This debate often assumes that the retention of administrative review mechanisms will ensure some measure of accountability in a deregulated environment and examining the role of the Social Security Appeals Tribunal (SSAT) and Administrative Appeals Tribunal (AAT) in conducting external merits review challenges these assumptions.

Trichloroethylene and cancer: a carcinogen on trial.

The organic solvent trichloroethylene has been used in dry cleaning, as an industrial degreasing agent and as a solvent for oils and resins; large numbers of workers have been exposed to trichloroethylene, mainly by inhalation. Trichloroethylene has been categorised as a Group 2A carcinogen (probably carcinogenic to humans) by the International Agency for Research on Cancer (World Health Organization) and a Category 2 carcinogen (to be regarded as carcinogenic to humans) by the Australian National Industrial Chemicals Notification and Assessment Scheme. The Administrative Appeals Tribunal was asked to determine the validity of classifying trichloroethylene as a Category 2 rather than a Category 3 (data inadequate for making a satisfactory assessment) carcinogen. In the AAT's determination, relevant epidemiological evidence was not taken into account because such evidence concerned tumour sites apart from the kidney (the site of tumour induction by trichloroethylene in rats). This mode of evaluation is fundamentally different from that used by the International Agency for Research on Cancer. The precedent set by the consideration of carcinogenicity data in this case could have significant implications for classification of other putative carcinogens

Too Many Words

[Extract]We are all pleased to see a writer of skill on any Bench. To find such a writer in the taxation courts is a greater pleasure. BJ McCabe has recently joined the Administrative Appeals Tribunal and threatens to produce the sort of clarity, precision and liveliness brought to that Tribunal’s tax decisions by Dr Paul Gerber.

Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal

Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal

Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal

Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal