Administrative Review

Administrative Review

Council

REPATRIATION APPEALS

REPORT No 2

This report has been retyped 11 July 1997

ADMINISTRATIVE REVIEW COUNCIL

G.P.O. Box 9955

CANBERRA. 2600.

Telephone: 475100

26 February 1979

My dear Attorney,

I refer to your letter of December 1978 transmitting to the Council a scheme for the reference of matters from the proposed Repatriation Review Tribunal to the Administrative Appeals Tribunal and giving the Council an opportunity to consider the details of the scheme. At its 18th Meeting on 15 December 1978 the Council instructed a sub-committee, consisting of Messrs Daniels, Keys and Kolts, to consider the scheme and report back to the Council at its 19th Meeting on 9 February 1979.

The Council adopted the sub-committee's report subject to a number of amendments. I enclose the report as amended by the Council. The recommendations made to you by the Council appear at paragraph 19.

Yours sincerely,

(President)

Senator the Hon. P. D. Durack, Q.C.,

AttorneyGeneral,

Parliament House,

CANBERRA. A.C.T. 2600

ADMINISTRATIVE REVIEW COUNCIL

REPATRIATION APPEALS

REPORT AND RECOMMENDATIONS

1.At its 13th Meeting on 31 March 1978 the Council established a Sub-Committee to consider then forthcoming proposals for a revised repatriation appeals system. In December 1978, the Attorney-General forwarded to the Council draft proposals to establish a Repatriation Review Tribunal (RRT) and to provide a link with the Administrative Appeals Tribunal (AAT) by way of the referral of cases from the RRT to the AAT. In informing the Council of these proposals, the Attorney explained that he wished to give the Council an opportunity of commenting on the details of the scheme.

2.At its 18th Meeting, this Sub-Committee was reconstituted to consist of Messrs Daniels, Keys and Kolts. The council referred to the Sub-Committee the proposals forwarded by the Attorney and asked it to report to the Council's 19th Meeting. The Sub-Committee met on 20 December 1978 and consulted with Mr J.A. Costello of the Department of Veterans' Affairs. Comments were received from the Department of Veterans' Affairs and have been taken into account by the Council.

The Scheme Proposed

3.The scheme proposed is that a party in proceeding before the RRT may seek the reference of the proceeding to the AAT. Where a matter has not been considered by the Repatriation Commission at the time when a reference to the AAT is sought, it is proposed that the Commission may first review the matter, and the request for a reference is then deemed to refer to the matter as reconsidered by the Commission. The President of the RRT may decide to refer a proceeding to the AAT where, in his opinion, a matter to which the proceeding relates is of such public importance as to justify him in doing so. The President of the RRT will then refer the proceedings to the President of the AAT along with the submissions of the parties in support of the reference. If the President of the AAT is of opinion that there. are matters of public importance arising out of the proceeding which justify the AAT accepting the reference, he may direct that the matter be dealt with by a presidential Tribunal of the AAT.

All documents in the proceeding will be transferred to the AAT and the AAT may have regard to the evidence before the RRT. All relevant procedural and decision-making powers of the AAT will be applicable to AAT proceedings on the reference and additionally, the AAT will be empowered to refer the proceeding to the RRT with directions. These procedures parallel those of section 21A of the AAT Act relating to the reconstitution of Tribunals in the course of hearing applications for review.

4.It is proposed that the AAT should be constituted by a presidential member and two others, though no qualifications are to be provided for the two non-presidential members. It is suggested as a possibility that the President of the RRT should be qualified to sit as a non-presidential member of the AAT. The draft proposals regard it as essential that the Commission should be represented before the AAT. Drafting instructions state that there is to be no legal representation before the AAT unless the President of the AAT consents.

The Nature of the Link

5.The Council considered whether there should be a link between the proposed RRT and the AAT and what should the nature of the link [be]. On the issue whether there should be a link, the Council considers that the RRT, while intended to be an independent tribunal external to the Department of Veterans' Affairs, will be a specialised tribunal with membership drawn partly from persons continuously identified with repatriation administration or appeals. Provision for review in important cases is desirable, and the AAT, as the central tribunal in the Commonwealth tribunal review structure, is the appropriate body to conduct that review.

6.The proposal transmitted to the Council is for the transfer of proceedings from the RRT to the AAT, that is, the AAT is substituted for the RRT and may make the substantive decision. This does not involve the addition of a further level of appeal, nor does it provide for situations where the public importance of a matter arising in a proceeding appears only when the case is decided. Failure to provide for such situations is a defect in the proposal. Further, the influence of the AAT as the central administrative tribunal of the Commonwealth is not adequately assured by a power to receive proceedings upon transfer from another Commonwealth Tribunal.

The Council therefore recommends that there be vested, in addition to the reference of proceedings from the RRT to the AAT, a limited jurisdiction in the AAT to review decisions of the RRT. This right to seek review would be open to both the veteran and the Commission. A right to seek review by the AAT does not derogate from the status of the RRT. The Council's proposal is for a very limited right of appeal. While within the specified limits this constitutes a fourth level of appeal, the limits proposed avoid the generally undesirable consequences of an unrestricted further level of appeal in repatriation matters.

7.It is noted that the Government's proposal deliberately chooses a link with the AAT other than that of appeal. Reasons which have been advanced for this include:

(a)the procedure of the AAT which would not be fully effective without the appearance and submissions of the Repatriation Commission;

(b)the undesirability of a fourtier appellate structure; and

(c)the propensity of veterans to use all available appeal right with the consequence that the AAT would be flooded.

Reason (a) is considered in paragraph 15 of this Report. In relation to reason (b), the Council's proposal does not create an unqualified fourth level of appeal; the grounds are restricted but are considered essential to provide for cases where the existence of the criterion for appeal appears only after the decision is made. It would be a relevant consideration, when deciding whether to grant leave to appeal, to consider why no application was made to the RRT for a reference under the proposal transmitted to the Council. Reason (c) is based on the speculation that the AAT would provide free access by regarding the criterion for appeal as easily satisfied. There is no basis for the speculation that the AAT would so act.

The Council's proposal vests in the AAT the novel jurisdiction for review of the decision of another tribunal. Certain provisions of the AAT Act require modification to deal with this type of jurisdiction. These are:

(a)paragraph 30(1)(b) prescribes that one of the parties to the appeal is "the person who made the decision", that is, here, the RRT. In accordance with normal principles governing appeal from tribunals, it is appropriate to make the successful party below the respondent on appeal.

(b)paragraph 37(1)(b) provides for the lodgement of copies of all relevant documents in the possession of the decision-maker, that is, here, the RRT. Provision should be made for the Commission to lodge with the AAT those documents relevant to the appeal which are in its possession but which have not been lodged with the RRT.

Situs of Provisions to Implement Scheme

9.In accordance with the normal practice, the Council's proposed jurisdiction to review RRT decisions should be provided for in the Repatriation Act.

10.The provisions governing the reference of cases from the RRT to the AAT should also appear in the Repatriation Act. No other proposals for jurisdiction of a similar nature have been drawn to the attention of the Council. Should there be other similar proposals, consideration should be given to transferring to the AAT Act those provisions which relate to the AAT's exercise of jurisdiction. The Council has not considered the present proposal in terms of its appropriateness to other jurisdictions. Accordingly, it would not be appropriate for amendments to be made to the AAT Act at this stage. The Council has considered the scheme solely as a repatriation one and not the first instance of other similar jurisdictions.

Extent and Procedures for Access to AAT

11.The extent of access to the AAT has been considered by the Council. The proposal transmitted to the Council that the criterion governing access to the AAT should be that the proceedings involves a matter of public importance. Various possible criteria have been reviewed by the Council. The Council is of the view that the criterion adopted should provide for only a very limited number of major issues to be brought to the AAT and should be the same both for the reference of cases and appeals. The criterion proposed may, in the view of the Council, give rise to a rather wider access to the AAT than the Council considers desirable. It is recommended that the criterion governing both the referral of cases and the granting of leave to apply for the review of RRT decisions should be that "the matter involves an important principle of general application".

12.The Council is of the view that access to the AAT should not be as of right. The decision whether to refer a proceeding to another tribunal or court is properly that of the referring tribunal or court. Given the character of the RRT it is not anticipated that there may need to be a reserve power in the AAT to refuse to accept references. Power to refer proceedings to the AAT should, therefore, reside in the President of the RRT alone, and Council would modify the scheme proposed by Government by removing the power of the President of the AAT to refuse to accept a reference. The Council also recommends that the President of the RRT should be empowered of his own motion to refer a case to the AAT. Applications to review decisions of the RRT should be lodged only by leave. The Council recommends that it be provided that leave should be sought from the President of the RRT, who should be empowered to grant leave for lodging an application for review with the AAT. Where the President of the RRTrefuses leave, it is recommended that the application for leave may be renewed before the President of the AAT. As with referral of proceedings, the Council recommends against there being a power in the President of the AAT to refuse to accept an application for review where the President of the RRT has granted leave.

Constitution of the AAT

13.In accordance with its resolution concerning the prescription of Presidential Tribunals of the AAT (see the President's letter to the Attorney-General of
23 December 1978), the Council recommends that the proposal that the AAT include a presidential member in all cases should not be proceeded with. There appears to the Council to be no strong reason to depart from the principle set out in that resolution. The Council envisages that there will be cases where flexibility in constituting Tribunals will be advantageous. The advantages of flexibility also lead the Council to recommend that the proposal that the Tribunal be constituted by three members should not be proceeded with. The Council approves the proposal that no qualifications for non-presidential members should be required by legislation. There appears to be no reason to depart from the principles embodied in the Council's resolution on this latter question (see the President's letter to the Attorney-General of 23 December 1978).

14.The Council considered whether the president of the RRT should be eligible to be a non-presidential member of the AAT. It is recommended that he should be eligible to sit on cases referred from the RRT, irrespective of whether he has previously sat in the proceeding, and that he should be eligible to sit as a member of the AAT in applications to review decisions of the RRT other that those where he has sat as a member of the RRT whose decision is being reviewed.

Procedures and Powers of the AAT

15.The Council endorses the proposition that the Commission should be represented before the AAT. However, it is of opinion that legislation should do no more that provide that Commission is to be a party to proceedings. The ordinary powers of the Tribunal will enable it to ensure that the Commission places all relevant material before the Tribunal. It is the view of the Council that it would not be proper to require any party to make submissions to the AAT, though the Commission should be encouraged to do so. The fact that issues coming before the AAT will necessarily be major issues of principle is likely to ensure that the Commission will make submissions.

Those submissions may not be adversarial, in the sense of opposing the applicant at all costs, but the presentation of submissions aimed at reaching the right of preferable decision (even if that favours the applicant) are encouraged by the character of the AAT's jurisdiction and procedures.

16.The Council does not support the proposal in the drafting instructions that there be no legal representation before the AAT without the President's consent. The normal AAT rule is that legal representation should be allowed (section 32). The purpose of permitting a reference of major cases to the Tribunal suggests that there will often be occasions in which legal representation would be desirable.

17.The Council supports the proposal that, where it is proposed to refer a case to the AAT, there should be provision for the Commission to consider any appeal before the RRT which the Commission has not hitherto had an opportunity to consider, and that on reference to the AAT, the AAT should have all its normal decision-making powers and also the power to refer the case back to the RRT with directions.

Appeals to the Federal Court

18.Given that there are proposed to be provisions both for appeals on questions of law and references of questions of law to the Federal Court by both the AAT and the RRT, the Council is of the view that the provisions for appeal and reference from the RRT should be materially identical as to the rights, procedures, and powers provided with those from the AAT. However, it was not intended to suggest that the Federal Court be constituted by a Full Court whenever a presidential member of the RRT has sat on the case subject to appeal.

Council's Recommendations

19.The Council supports the draft proposals for reference of matters from the RRT to the AAT which have been transmitted to the Council by the Attorney with the following exceptions:

(a)Applications for referral of cases to the AAT should be made to the President of the RRT who should have power to make the reference, and acceptance of the reference should not be subject to the consent of the President of the AAT;

(b)the President of the RRT should have power of his own motion to refer a proceeding to the AAT;

(c)the criterion for referral should be that the matter involves an important principle of general application;

(d)no provision should be made as to the constitution of the AAT in hearing cases referred from the RRT;

(e)the President of the RRT should be eligible to be a member of the AAT when hearing cases referred from the RRT; and

(f)section 32 of the AAT Act relating to legal representation should not be varied in respect of hearings under the Repatriation Act.

In tendering this advice, the Council has considered the proposed jurisdiction solely in the context of repatriation and wishes to reserve the question whether similar jurisdiction should be conferred in other areas.

20.The Council recommends that jurisdiction should be vested in the AAT to review decisions of the RRT where:

(a)the decision involves a matter of important principle of general application, and

(b)leave for lodgement of an application to review the decision is granted by the President of the RRT, or, where leave is refused by him, by the President of the AAT.

The Council notes that paragraphs 30(1)(b) and 37(1)(b) of the AAT Act should be amended in consequence to make the person in whose favour the decision being reviewed was made, a party to the proceedings before the Tribunal, and to provide for the lodgement with the AAT of documents in the possession of the Repatriation Commission which are not in the possession of the RRT. The President of the RRT should be eligible to sit as a non-presidential member of the AAT except where he has sat as a member of the RRT whose decision is being reviewed.

21.The provisions for appeals on questions of law and the reference of questions of law to the Federal Court from the RTT should be materially identical with sections 45 and 46 of the Administrative Appeals Tribunal Act.