20 September 2007
Key Points:
Review by the Administrative Appeals Tribunal offers a potentially useful avenue for companies aggrieved by a Commonwealth Government decision to either seek a review of that decision or to at least obtain information about the decision-making process.
Government decisions affect every product and its manufacturing. These decisions can relate to importation, labelling, its taxation status, whether it requires licensing, its safety, registration of trade marks, environmental protection and a multitude of other issues.
The law recognises that sometimes these decisions need to be reviewed. A manufacturer or retailer that disagrees with a decision of a federal, state or even local government has a number of options.
In NSW, for example, the Administrative Decisions Tribunal reviews decisions made under various state Acts. In Victoria, Victorian Civil and Administrative Tribunal has a similar role. Similar to the procedure under Federal law, the State Supreme Court also provide an avenue for judicial review on a question of law.
In many instances, decisions affecting a product will be made by Commonwealth Minister, a Commonwealth Government department or agency, or an employee of a Commonwealth Government Department. If so, it may be reviewed by the Commonwealth Administrative Appeals Tribunal ("AAT") or the Federal Court in some circumstances.
The AAT
The AAT provides an independent and impartial review of decisions made by Australian Government bodies under Commonwealth legislation.
This power of review is not a general power; the AAT can only review a decision if allowed to do so by statute. Examples of some of the Acts affecting products and that provide for review of decisions by the AAT are:
Depending upon the Act, the AAT has either discretionary powers or acts more like a court. The role of the AAT in all cases is to substitute its decision for the decision of the original decision-maker. The AAT stands in the shoes of the original decision-maker and must arrive at the correct or preferable decision on the application before it: correct if only one decision is available, preferable when it is choosing from a range of equally satisfactory decisions. This is called merits review.
What decisions can be reviewed
The AAT receives approximately 8000 applications for review per year. Many of these applications concern decisions affecting products. Approximately 80 percent of all applications before the AAT are resolved prior to hearing. The AAT attributes this rate of success, in part, to the use of alternative dispute resolution procedures.
To give an idea of the types of applications that can be brought, we have chosen five recent cases for their interest value. They comprise a number of sorry tales with the applicants enjoying not too much success. They illustrate, however, that notwithstanding the aim that proceedings be conducted with as little formality and technicality, it remains a legal process.
Decision to cancel licence: Power and Civil Aviation Authority [2007] AATA 1328 (17 May 2007)
Power sought a review of a decision to cancel his private pilot's licence. Although he was classified as medically deaf he held a private pilot’s license issued by the United States Federal Aviation Authority and had been issued with an Australian restricted private pilot’s licence. There was, however, a record of serial breaches of the conditions of licence. In these circumstances,the CAA decided that Power had failed in his duty of safe navigation and operation, and was not to be a fit and proper person to hold a private pilot's licence within Australia.
Power sought a review of that decision. The AAT affirmed the CAA's decision, mainly because Power was found to have contravened aviation legislation on several occasions, and on two occasions knowingly.
Decision refusing permission to import a non-standard vehicle: Davidson and Minister for Transport and Regional Services [2007] AATA 1268 (30 April 2007)
Davidson sought a review of a decision to refusing him permission to import a non-standard vehicle into Australia. Permission was refused on the basis that the Act required that the vehicle must have been owned and used overseas by the applicant for a continuous period of at least 12 months, but that this had not been met. Davidson used the vehicle for a continuous period of only some four and a half months on one occasion and a period of two months on another occasion.
Although the legislation provided for a discretionary power to approve an application, previous case law had held that that power should only be exercised in exceptional circumstances and then only in such a way as would not service to undermine or frustrate the policy and objects of the Act. The AAT found that the reasons given by the applicant for the exercise of that discretion were not exceptional, and affirmed the decision under review.
Application to amend records held by Government authority: Zacek and Australian Postal Corporation [2007] AATA 1380 (29 May 2007)
Zacek obtained certain documents via the Freedom of Information Act from the Australian Postal Corporation which she then sought to have amended. The Australian Postal Corporation said that the documents concerned historical records and opinions relating to her employment and declined to amend them on the basis that it was inappropriate to tamper with records where the applicant had failed to show that the records were based on incomplete, incorrect, out of date or misleading information or the author was biased or had acted improperly.
The AAT upheld the Australian Postal Corporation's decision. An opinion cannot be amended except where the amendment relates to a record of an opinion which was based on a mistake of fact or the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. The AAT also noted that some of the amendments sought by the applicant were defamatory of other persons.
Access to documents: Bell and Commonwealth Scientific and Research Organisation (CSIRO) [2007] AATA 1569 (20 July 2007)
Bell asked the CSIRO for access to a range of documents concerning wireless or LAN networks dated between 1 January 1976 and 27 November 1993. He made his request under the Freedom of Information Act. CSIRO identified eight documents as coming within his request but refused it on the basis that it was exempt from the operation of the FOI Act as they were documents in respect of its commercial affairs. Having regard to the CSIRO's activities, the AAT confirmed CSIRO's decision.
Freedom of Information and third party notification: Andrews and Australian Research Council [2007] AATA 1026 (25 January 2007)
Andrews sought access to documents pursuant to the Freedom of Information Act relating to an application for financial assistance for a project under the National Competitive Grants Program for 2004 and 2005. Access was denied to these documents on the basis of their being exempt from production under the Act.
Before the substantive hearing of the merits of this case, however, an issue arose as to whether the Australian Research Council was required to notify third parties about the application in circumstances where the documents contained information about the third party's personal or business affairs. In this particular case, the AAT deferred review of the merits of the decision until the Australian Research Council had notified or had at least taken reasonable steps to notify the third parties.
Conclusion
Review by the AAT offers a potentially useful avenue for companies aggrieved by a Government decision to either seek a review of that decision or to at least obtain information or documentation from the decision-maker that sheds light on how and why the decision was made.
It is important to understand the reasoning behind a decision to determine whether a review by the AAT is worth proceeding with. As there are statutory time limits for applying to the AAT, a delay in acting may preclude the option for review. Like any other legal process, companies should seek practically based legal advice that considers the reasoning on which the decision was made and the avenues, if any, for review of that decision.
