Appeals from the AAT to Federal Court of Australia

adminSocial security rights review

Angie Wong & Ajsela Siskovic, Victoria Legal Aid

In general, a decision of an officer under the social security law is reviewable internally and by the Administrative Appeals Tribunal (the ‘AAT’).  Decisions of the AAT may be appealed to the Federal Court, and further appeals to the Full Federal Court and High Court are available if leave is given to appeal. 

The work of the AAT is invaluable.  It is largely an effective and cost-efficient way to review government decisions, especially in social security matters. However, the AAT is a human institution, and it is not immune from error. That is why, in our view, it is important for decisions of the AAT to be scrutinised and appeals to the Federal Court of Australia more regularly considered.

Under section 44 of the Administrative Tribunal Act 1975 (Cth), social security decisions of the AAT may be appealed to the Federal Court on a question of law.  The Federal Court has the power to make any order it thinks appropriate by reason of its decision, including an order to affirm or set aside the decision of the AAT or remit the matter to the AAT for rehearing.  Section 44 provides an appeal mechanism that allows the Federal Court to provide authoritative guidance on social security law, but the court has no jurisdiction to conduct merits review.   Accordingly, the questions of law that form the basis of an appeal must be framed carefully and avoid inviting the court to carry out a de facto merits review.    

What, in this context, is a question of law and how can they be identified from the AAT’s reasons? These are perhaps the most difficult and pertinent questions when considering appealing to the Federal Court.  Our presentation at the EJA conference 2021 will cover some of the issues that advocates and lawyers should consider and what we have learned through our practise. We will consider the current case law, including consideration of the Full Court of the Federal Court of Australia decision in Haritos v Federal Commissioner of Taxation (Haritos). Haritos was clearly intended to end debate and disagreement as to how the question of law should be construed.  Our presentation will consider some of the practical barriers and challenges as to why appeals to the Federal Court are not more prevalent in social security matters.  We will draw from our experience and provide some examples of the challenges we encountered when running our social security appeals in the Federal Court including the issue of costs that our clients have to consider when pursuing appeals in this jurisdiction. It is hoped that participants will gain confidence in assessing whether a social security decision of the AAT should be appealed, and in conducting those appeals.