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Published online by Cambridge University Press: 24 January 2025
Although the Administrative Appeals Tribunal (hereafter referred to as the AAT) does not enjoy an express power to review policy considerations taken into account in reaching a decision under review, such a power has been taken to have been impliedly conferred by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter referred to as the AAT Act).
Section 43(1) empowers the Trjbunal to exercise all the powers and discretions conferred on the decision-maker whose decision is subject to review. It empowers the Tribunal to affirm, vary or set aside the decision under review, and to make a decision in substitution for the decision so set aside or to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Section 43(6) provides that the decision made by the AAT in substitution for the decision made by the original decision-maker shall be deemed to be a decision of the original decision-maker.
My thanks are due to Professor D C Pearce and Dr M Aronson for their helpful comments as examiners of the thesis from which this article has been drawn. Responsibility for any shortcomings is my own.
1 Re Becker and Minister for Immigration and Ethnic Affairs (hereafter cited as Re Becker) (1977) I ALD 158, 162; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577,589.
2 Re Becker (1977) l ALD 158, 162.
3 (1979) 2 ALD 634 (hereafter cited as Re Drake (No 2)).
4 Ibid 642. Of course whether the Tribunal should, as a matter of practice, frequently depart from ministerial policy is another matter. See Re Drake (No. 2) (1979) 2 ALD 634, 642-645; F G, Brennan, “New Growth in the Law - The Judicial Contribution” (1979) 6 Mon U LR 1, 17-18Google Scholar.
5 (1979) 24 ALR 577.
6 Ibid 589.
7 See generally O C, Pearce, “Courts, Tribunals and Government Policy” (1980) II FL Rev 203, 216-220Google Scholar.
8 Re Becker (1977) I ALO 158, 161-162; Re Drake (No. 2) (1979) 2 ALO 634, 645; Re Bundy and Secretary, Department of Housing and Construction (1980) 2 ALO 735.
9 Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALO 126.
10 Camacho and Sons Ltd v Collector of Customs (1971) 18 WIR 159; McLouglin v Minister for Social Welfare (1958) IR 1; Sernack v McTavish (1970) 15 FLR 381; see also (ed) J M, Evans de Smith's Judicial Review of Administrative Action (4th ed 1980) 309-311Google Scholar; H, Whitmore and M, Aronson, Review of Administrative Action (1978) 229-230Google Scholar.
11 See Carltona Ltd v Commissioners of Works (1943) 2 All ER 560, 563.
12 Although a direction to reach a particular decision may not be a lawful direction. See Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215, 230-231.
13 (1971) 18 WIR 159.
14 Ibid 164. See also R v Mahony; Ex parte Johnson (1931) 46 CLR 131, 145; Bosnjak's Bus Service Pty. Ltd v Commissioner for Motor Transport (1970) 92 WN (NSW) 1003.
15 (1979) 24 ALR 577 (Hereafter cited as Drake's case.).
16 Sections 12 and 13 of the Migration Act 1958 have since been repealed and a news 12 substituted by the Migration Amendment Act 1983.
17 (1979) 24 ALR 577, 590.
18 Ibid 591.
19 Ibid.
20 Ibid.
21 Ibid 602.
22 Ibid 590-591.
23 Ibid 591, 599-607.
24 Re Drake (No 2) (1979) 2 ALO 634.
25 Ibid 645.
26 Ibid. Similarly, in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal the Tribunal indicated that if the Australian Broadcasting Tribunal (whose decision was being reviewed by the AAT) held a settled and reasoned policy which governed its decision, the Tribunal would have afforded that policy considerable weight. See (1981) 39 ALR 281, 317.
27 See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 602. See also Pearce, supra n 7, 219.
28 (1980) 3 ALN No 7.
29 Ibid.
30 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639, 648.
31 Ibid 645, per Franki J.
32 Ibid 652, per Lockhart J.
33 See supra n 16.
34 Above p 110.
35 This issue will also arise when the original decision–maker has exercised ministerial powers in the Minister's name. See above p 110.
36 See eg Re Te Velde and Director–General of Social Services (1981) 3 ALN No 75; Re Beames and Director–General of Social Services (1981) 3 ALN No 50; Re Blackburn and Director–General of Social Services (1982) 4 ALN No 46; Re de Graaf and Director-General of Social Services (1981) 3 ALN No 63.
37 See above pp 109-110.
38 Examples of statutory directions of this kind may be found in ss I IA and 24A of the Dairy Industry Stabilization Act 1977 (Cth).
39 This view is supported by the Federal Court in Drake's case. See Drake v Ministerfor Immigration and Ethnic Affairs (1979) 24 ALR 577, 590.
40 See eg Re Callaghan and DFRDBA (hereafter cited as Re Callaghan) (1978) I ALO 227; Re Lane and Department of Transport (1978) I ALN No 32.
41 Re Callaghan (1978) I ALO 227, 230.
42 It is suggested that such a general provision does not empower the Minister to compel the Director-General to exercise his discretion to reach a particular decision. See Social Security Commission v Macfarlane [1979] 2 NZLR 34, 42.
43 (1979) 2 ALO 246.
44 Ibid 248-249.
45 Ibid 249.
46 Ibid 250.
47 Ibid 251.
48 Ibid 251-252.
49 Ibid 251. The Tribunal referred to Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 with approval.
50 Re Metherall and Minister for Capital Territory (1979) 2 ALD 246, 251.
51 Ibid.
52 (1965) 113 CLR 177.
53 (1977) 139 CLR 54.
54 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 192, 202.
55 Ibid 193.
56 Ibid 204.
57 (1977) 139 CLR 54.
56 Ibid 82. See also Campbell, E, “Ministers, Public Servants and the Executive Branch” in Evans, G (ed) Labor and the Constitution 1972-1975 (1977) 136, 147-150Google Scholar.
59 (1977) 139 CLR 54, 82-83.
60 Ibid 62.
61 Ibid 115-116.
62 Ibid 61-62.
63 Ibid 87.
64 See Pearce, supra n 7, 214; John Goldring & Roger Wettenhall, “Three Perspectives on the Responsibility of Statutory Authorities” in Patrick Weller and Dean Jaensch (eds), Responsible Government in Australia (1980) 136, 141; Kirby, M D, “Administrative Review: Beyond the Frontier Marked 'Policy-Lawyers Keep Out'” (1981) 12 FL Rev 121Google Scholar.
65 Kirby, supra n 64, 148.
66 Willheim, E, “Commentaries” (1981) 12 FL Rev 62Google Scholar.
67 Ibid 64. See also Goldring, J, “Responsible Government and the Administrative Appeals Tribunal” (1982) 13 FL Rev 90Google Scholar.
68 E, Campbell, “Ministers and Permanent Heads” Unpublished Paper para 18Google Scholar.
69 Re Becker (1977) 1 ALD 158, 162; Drake's case (1979) 24 ALR 577,602.
70 Re Drake (No 2) (1979) 2 ALO 634, 644.
71 Ibid 642, 645.
72 (1977) 1 ALD 209.
73 S 78(2) National Health Act 1953 (Cth).
74 Held on 10 December 1977.