Administrative Appeals Tribunal.
Dennis Pearce (3rd ed., 2013) LexisNexis Butterworths, Sydney. I.S.B.N.
Professor Pearce is the leading authority on the Administrative Appeals Tribunal (AAT). In this third edition he has provided another useful guide to the jurisdiction and procedures of the AAT. The third edition is also in an ebook format which makes it useful for practitioners who are seeking quick guidance on a particular point. The author has noted a number of important developments that have occurred since when the second edition of this work was published in 2007.
The Administrative Appeals Tribunal Act 1975 ('the AAT Act) was extensively amended in 2005. One important development was the insertion into the AAT Act of a statement of objectives. Section 2A of the AAT Act provides that in carrying out its functions, the Tribunal must peruse the objective of providing a mechanism of review that is 'fair, just, economical and quick'. In this edition the author discusses a number of leading decisions which give guidance on the interpretation of this statement of objectives. Not only is the Tribunal bound by this statement of objectives, but the author points out that the comments of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at  AND  are pertinent to the management of AAT applications and were applied in Re May and Military, Rehabilitation and Compensation Commission (2011) 126 ALD 600.
Another important development that was noted by the author [7.95, pp. 180-1] is the issue of the Guidelines for the Use of Concurrent Evidence that were issued in 2011 by Justice Downes, the President of the AAT. Prior to these guidelines the AAT has heard concurrent evidence from expert witnesses in a number of cases. The taking of concurrent evidence has shortened the time for the hearing of an application. By the use of concurrent evidence in Re Coonawarra Penola Wine Industry Association Inc and Geographical Indications Committee  AATA 844, a hearing was completed in five weeks rather than the initial estimate of six months. There was also concurrent evidence in Re International Fund for Animal Welfare (Australia) Pty Ltd v Minister for Environment and Heritage (2005) 93 ALD 594 (noted elsewhere at [7.1}) which concerned a proposal by Australian zoos to import Asian elephants. In that case the evidence of 16 witnesses was concluded within four hearing days. A recent case where there was concurrent evidence of scientific experts is Aspen Pharmacare Australia Pty Ltd and Minister for Health and Ageing  AATA 362.
Another important development that was noted by the author ([7.32], pp. 114-115) is the issue of the Guidelines for Persons Giving Expert and Opinion Evidence that were issued in 2011. These guidelines emphasise that it is the duty of expert witnesses to provide impartial assistance to the tribunal and not be an advocate for a party. These guidelines were recently discussed in Confidential and Commissioner of Taxation  AATA 112.
The author (at [10.15], p 298) notes that in Phillips v Australian Girls' Choir Pty Ltd  FMCA 109 the then Federal Magistrates Court applied a modified version of the test enunciated by Wilcox J in the Hunter Valley Developments case in relation to an application under s 44(2A)(a) of the AAT Act for an extension of time in which to seek an extension of time for judicial review of a decision. It is suggested that the decision in Phillips v Australian Girls' Choir Pty Ltd  FMCA 109 could also be included in the commentary in ([5.7], p 66) on the jurisdiction of the AAT under s 29(7) of the AAT Act to grant an extension of time to make an application to the AAT.
The author has quite correctly pointed out that Hill J in Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 mentioned that 'too slavish adherence' to those guidelines should be avoided. In this respect in Phillips v Australian Girls' Choir Pty Ltd  FMCA 109 Federal Magistrate Mclnnis pointed out that the principles referred to by Wilcox J in the Hunter Valley Developments case needed to be modified in a number of respects, he pointed out that 'it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client'. Federal Magistrate Mclnnis also remarked: 'nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time' This modification of the principles were recently followed in Re Becek and Department of Immigration and Citizenship  AATA 237 at  in relation to an application under s 29(7) of the AAT Act to grant an extension of time to make an application for review of a decision.
The publication of the third edition of this work is timely as the answer to many queries of practitioners can be found within the pages of this work. This reviewer has very few suggestions for any future edition of this work; one suggestion is that the utility of the work would be enhanced if important practice directions were included in the appendix of any future edition (as in the second edition).
Reader in Law,
University of Queensland.
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|Author:||McDermott, Peter M.|
|Publication:||University of Queensland Law Journal|
|Article Type:||Book review|
|Date:||Jul 1, 2013|
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