Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| DOI | 10.1177/0067205X9402200308 |
| Subject Matter | Article |
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POWER, THE DUALITY OF FUNCTIONS
AND
THE
ADMINISTRATIVE APPEALS TRIBUNAL
AllanNHalt
r~,,;"''""'~'nve
Appeals
Tribunal (the AAT), which
was
established
by
the
Appeals Tribunal Act 1975 (Cth) (the AAT Act),
has
now
been
for more
than
16
years. From very
modest
beginnings (see
the
25
conferred
pursuant
to the Schedule to the original AAT Act), the Tribunal
conferred
upon
it
an
increasingly
wide
range of review jurisdictions (presently
of 240), encompassing major areas of governmental decision-making.1
Many
, decisions
were
previously unreviewable
on
the merits. Others
were
reviewable
' separate specialist tribunals operating independently of each other,2
or
before
Court
(and
other
courts exercising federal jurisdiction)
in
procedures
by
way
appeal or collateral attack
that
were little utilised.3
AAT
was
obviously modelled closely,
but
not
slavishly,
on
the former Taxation
, of Review, the constitutional validity of which
was
upheld
by
the
High
Court
in
Commissioner
of
Taxation v Munro,4 a decision which
was
affirmed
on
appeal
bt
Council sub nom Shell
Co
of
Australia Ltd v
Federal
Commissioner
of
Taxation.
purpose
of reviewing a decision, the Tribunal is invested
with
all the
powers
c::rr•P~'"'""
that
are conferred
by
any
relevant enactment on the
primary
decision-
43(1)).
It
is
empowered
to conduct a hearing
(s
35) and, for
that
purpose,
has
the
procedural
powers
appropriate to curial proceedings (see ss 32, 33, 39,
40((1)
and
41).
In
the conduct of a proceeding, the Tribunal is
bound
to observe
LLB.
Formerly a Deputy President of the Administrative Appeals Tribunal (Cth)
and
Fellow, Faculty
of
Law,Australian National University.
a creature of statute,
the
AAT has jurisdiction only
where
it is conferred
by
or
pursuant
an
"enactment"; see ss
25
and
26
AAT Act; cf
Re
Qantas
Airways Ltd
and
Deputy
om1nzsim·
mer
of
Taxation
(1979) 2 ALD
291.
<=Aotuq>n:::, the former Taxation Boards
of
Review
and
the former Commonwealth
Compensation Tribunal.
example,
the
now
repealed s
78
of
the Superannuation Act 1922 (Cth); cf
the
former
of the Defence Force Retirement Benefits Act 1948 (Cth), considered
by
the
High
in
Steele
v
Defence
Forces
Retirement
Benefits
Board
(1955)
92
CLR 177; and, as to
-
..
u
....
.,,
..
attack,
sees
167
of
the Customs Act
1901
(Cth).
CLR 153
per
Isaacs, Higgins, Gavan-Duffy, Rich
and
Starke
JJ;
Knox
CJ
14
Federal
Law
Review
Volume22
the
rules of
natural
justice6 or, as those rules are
now
commonly referred to, the
requirements
of
procedural fairness. 7 The function of the Tribunal is to review the
decision
on
the merits and to determine,
by
a fresh exercise of administrative power,
whether
that
decision is the correct
or
preferable one
on
the material before it. 8 For this
purpose,
it
is
said
to "stand
in
the shoes" of the
primary
administrator.9 Decisions of the
Tribunal
on
questions of law are reviewable on appeal to the Federal
Court
(s
44). The
"appeal" falls
within
the original,
not
the appellate, jurisdiction of the Court.10
So far as
the
intention of Parliament is relevant,ll the AAT was clearly constituted
as a tribunal
intended
to exercise administrative powers
and
functions
pursuant
to
Chapter
IT
of the Constitution,
not
as a court exercising the judicial
power
of the
Commonwealth
pursuant
to
Chapter
m.12
It
is, of course, well settled
that
the exercise
of
such
power
is the exclusive preserve of the
High
Court
and
of such other courts as
are created
or
as
are
invested with federal jurisdiction
pursuant
to
that
Chapter.13 Thus
if,
in
any
of
its jurisdictions, the
AA
T was found to
be
exercising
part
of the judicial
power
of
the Commonwealth, the Tribunal would,
at
least to
that
extent,
be
acting
unconstitutionally.14
To date,
no
one
has
mounted
a comprehensive challenge to the constitutionality of
the
AAT,
and
it
ma~
well be
that
this reflects a widely
held
perception
that
the
AAT is
validly constituted. 5 Such attacks as
have
been
mounted, so far without success,
have
been
confined to essentially peripheral issues
such
as the constitutionality of
appointing Federal Court Judges as presidential members of the
AAT,16
and
the
validity of s 44 of the AAT Act insofar as
it
provides for
an
appeal
on
a question of
law
6
7
8
9
10
11
12
13
14
15
16
Sees
39 AAT Act; cf Sullivan v
Department
of
Transport
(1978) 1 ALD 383
at
402-403.
Fletcher
v
Federal
Commissioner
of
Taxation
(1988) 84 ALR 295
at
307; Australian
Broadcasting
Tribunal
v
Bond
(1990) 170 CLR 321
at
365-367.
Drake
v Minister
for
Immigration
and
Ethnic Affairs (1979) 2
ALD
60
at
68
per
Bowen
C]
and
Deane
J;
at
77
per
Smithers
J.
Minister
for
Immigration
and
Ethnic Affairs v
Pochi
(1980) 4 ALD 139
at
143
per
Smithers
J.
Federal
Court
of
Australia
Act
1976 (Cth), s 19(2); cf
Drake
(1979) 2
ALD
60
at
61-62.
R v Quinn;
ex
parte
Consolidated
Food
Corporation
(1977) 138 CLR 1
at
5
per
Barwick
C]
and
at
9
per
Jacobs
J.
Re Adams
and
Tax
Agents
Board
(1976) 1
ALD
251
at
253;
Drake
(1979) 2 ALD 60
at
64
and
67;
Bogaards
v
McMahon
(1988) 80 ALR 342
at
349.
Huddart
Parker
&
Co
Pty
Ltd
v
Moorehead
(1909) 8 CLR 330;
New
South
Wales
v
The
Commonwealth
(the
Wheat
case) (1915) 20 CLR 54;
Waterside
Workers'
Federation
of Australia v
J W Alexander
Ltd
(1918) 25 CLR 24;
British
Imperial
Oil
Co
Ltd
v
Federal
Commissioner
of
Taxation
(1925) 35 CLR 422 (the
BIO
case); R v
Kirby;
ex
parte
Boilermakers'
Society
of Australia
(1957) 95 CLR 529:
and
see
L Zines,
The
High
Court
and
the
Constitution (3rd
ed
1992)
at
147-
150
and
179-184; cf
PH
Lane, "The Decline
of
the
Separation
of
Powers
Doctrine" (1981) 55
AL/6.
See
the
BIO
case (1925) 35 CLR 422; cf
Re
Cram;
ex
parte
The
Newcastle
Wallsend
Coal
Co
Pty
Ltd (1987) 163 CLR 140.
Cf
Drake
(1979) 2 ALD 60
at
64
per
Bowen
C]
and
Deane
J:
"The
general
functions
conferred
upon
the
Tribunal
are
plainly
administrative
in
character".
In
Drake
(1979) 2 ALD 60
it
was
held
that
there
was
no
constitutional objection to
appointing
a
Federal
Court
Judge
in
his
"personal
capacity"
to
the
AAT (cf
Hilton
v
Wells
(1985) 157 CLR
57
at.68
and
83)
and
that
the
quasi-judicial functions
discharged
by
the
Tribunal
do
not
lose
their
administrative
character
when
performed
by
a
Judge
(at 63-65).
See also
Commonwealth
of Australia v
Jones
(1987)
71
ALR 497.
Judicial
Power,
the
Duality of Functions
and
the
AAT
15
cases where the Tribunal's
power
may
only
be
recommendatory.17 More
doubts have
been
expressed
by
Gummow
J as to the validity of s 44
in
its
to in taxation matters
on
the
ground
(inter
alia)
that
it
may
preclude the Federal
Court
from itself deciding
disputed
questions
in such cases.
18
Doubts persist as to whether
an
administrative tribunal
can
usurping
judicial power) make conclusive findings of fact.
19
There are also
as to the limits of the Tribunal's
power
to form
an
opinion
on
(or to "decide")
of law.
be
denied
that, particularly in those jurisdictions where the issues raised
'U'-L"-U'L"'
such
as in taxation, customs, employees' compensation
and
pension
matters, there are
many
similarities between the powers
and
functions of
and
those of a
court
exercising the judicial
power
of the Commonwealth.
Not
of these is that,
in
practical terms, the Tribunal's
main
function is to decide
between the Federal Government (or its agencies)
and
citizens
with
to rights, privileges
and
liabilities arising
under
laws
made
by
Parliament, for
the Tribunal is invested
with
many
court-like attributes. Indeed, these
led one presidential
member
of the AAT to conclude that,
in
determining
arising in its employees' compensation jurisdiction, the Tribunal was,
, exercising
part
of the judicial
power
of the Commonwealth.20
article will consider the constitutional status of the AAT in the light of
current
of judicial
power
and
of the duality of functions doctrine.
In
my
opinion, the orthodox view of judicial
power
has
been
dominated
by
what
as "the
primary
or
private law aspect" of
that
power, the origins of which
found
in
the widely quoted dictum of Griffith
CJ
in Huddart
Parker
&
Co
Pty
llnn,rPh'Pan
21
As a consequence, there has
been
inadequate recognition that,
in
its
. or public
law
aspect" (exemplified
by
the supervisory jurisdiction of the
over the legislative
and
executive arms of government), judicial
power
· quite different characteristics. The
nature
of these differences will
be
as will the interrelationship
between
the public
law
aspect of judicial
power
duality of functions doctrine.
issues
that
are also addressed
in
this article include the following:
is the availability of
an
alternative right of review before a
Chapter
ill
court
arp'""~ITU
in
order
to
SUStain
the constitutionality of administrative revtew?
a federal administrative tribunal make conclusive findings of fact?
such a tribunal conclusively "decide" questions of law?
44
of the AAT Act 1975 (which limits appeals to the Federal
Court
to "questions
valid?
v Minister
for
Immigration
and
Ethnic Affairs
(1982)
42 ALR 209.
Skypak
Ltd v
Federal
Commissioner
of
Taxation
(1988)
82
ALR
175
at
178. ,
Co
(Aust) Pty
Ltd
v
Commonwealth
(1945)
69
CLR
185
at 217-219
per
Williams
J;
cf
above n
13
at
153-169.
Bank
of Australia
and
Comcare
(1989)
17 ALD 682.
It
may
be
noted, however,
that
had
sought
to argue the question
and
that
neither of
them
sought
to test
the
opinion before
the
Federal Court.
8 CLR 330
at
357.
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