The Full Court of the Federal Court clarifies what constitutes a ‘question of law’ for appeals under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

In two decisions handed down on 30 June 2015, the Full Court of the Federal Court of Australia has provided important clarification on the vexed issue of what constitutes a ‘question of law’ for appeals from the Administrative Appeals Tribunal (AAT) under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

These decisions are of critical importance for decision-makers and review bodies whose decisions are subject of review in the AAT, and for government departments and authorities either responding to or bringing appeals from decisions of the AAT in the Federal Court.

The Full Court decisions expressly overrule previous decisions of the Court and have expanded the scope of what might constitute a question of law for section 44 appeals. These are important decisions for government decision-makers and review bodies whose decisions are the subject of merit reviews in the AAT and subsequent appeal to the Federal Court.

Consideration of section 44 of the AAT Act

Under section 44 of the AAT Act a decision of the AAT may be appealed to the Federal Court ‘on a question of law’. What constitutes a ‘question of law’, in particular whether a question of ‘mixed fact and law’ can be a question of law, has been a much considered and vexed issue in the Federal Court, since the AAT Act came into force.

The first case, Haritos v Commissioner of Taxation [2015] FCAFC 92 (Haritos), involved an appeal from an AAT decision concerning income tax assessments under the Income Tax Assessment Act 1936 (Cth). The second case, May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (May), involved an appeal from an AAT decision concerning entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Both appeals were heard by the Full Court sequentially in February, by the same bench of five judges (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). The decision in Haritos, delivered first, forms much of the basis of the decision in May, and is the focus of this article.

Key questions considered in Haritos

In Haritos, the primary judge had dismissed the applicants’ proceeding as incompetent for failing to identify a ‘question of law’ as is required by section 44 of the AAT Act. The applicants sought leave to appeal to the Full Court of the Federal Court. The application for leave to appeal and the appeal itself were heard together.

The key questions considered by the Full Court were:

1. Can a new question of law, not considered by the primary judge, be raised on appeal to the Full Court?
2. At what point does the Federal Court have jurisdiction in an appeal said to be brought under section 44?
3. What may be a ‘question of law’ within the meaning of section 44 of the AAT Act?

On the first question, the Full Court, cited the decision in Summers v Repatriation Commission [2015] FCAFC 36, finding that an appellate court may in its discretion allow a party to raise a new question of law before a Full Court, where it would be in the interests of justice to do so, and where it would not cause injustice to the other party¹.

On the second question, the Full Court rejected the respondent's submission that the Full Court has no jurisdiction to decide whether a notice of appeal that a primary judge has determined fails to assert questions of law with sufficient precision. The Court accepted that the subject-matter of a proceeding that invokes the jurisdiction conferred by section 44 is limited by the questions of law articulated in the notice of appeal. But, the Court held that the form of a question of law is a matter of procedure, not of jurisdiction, and where in substance a question of law exists, there is a procedural discretion, to be exercised judicially, to direct its amendment.

The principal focus of the Full Court’s reasons was consideration of the third question of what constitutes a question of law within the meaning of section 44 of the AAT Act.

What may be a ‘question of law’

In particular, the Full Court considered whether a question of ‘mixed fact and law’, as distinct from a ‘pure question of law’, could be a ‘question of law’ as contemplated by section 44.

In its reasons, the Full Court cited 192 cases, scaled the history and the development of relevant AAT Act provisions, the history of judicial consideration of section 44 and its legislative context and purpose, and determined that the right of appeal it confers is not limited to ‘pure’ questions of law and does not exclude ‘mixed questions of fact and law’.

The Full Court accepted that the right of appeal does not extend to mere questions of fact, nor to those kinds of mixed questions of fact and law where the Court must ‘positively determine a question of fact for itself, rather than judicially review the Tribunal’s fact finding’.

The Full Court observed that the purpose of limiting an appeal to a ‘question of law’ is to prevent the Federal Court from dealing with the merits of a case. But, the Federal Court does have a role in evaluating the fact-finding process of the Tribunal (as fact-finder) to determine its legality.

The correct approach, the Full Court said, is to ‘identify whether the administrative decision-maker is said to have made an error of law or an error of fact’.

The Full Court confirmed² that the review of the fact-finding process of the Tribunal, such as that undertaken in an assessment of whether a person has been afforded procedural fairness, must constitute a question of law:

'No textual aspect of section 44 denies the conclusion that, as a contextually understood judicial review provision, it encompasses the authority in this Court to undertake any relevant process to assess the answer to a question of law such as whether a person was denied procedural fairness by the Tribunal. Any answer to that legal question of jurisdiction may require factual evaluation and determination of what occurred before the Tribunal. Such is not to usurp the function of the Tribunal of fact finding, but to ensure that the Tribunal acts lawfully and with authority.'

What does this mean for you?

Decision-makers and review bodies whose decisions are subject of review in the AAT, and for government departments and authorities either responding to or bringing appeals from decisions of the AAT in the Federal Court will need to consider the decision in Haritos, and the accompanying decision of May, where the Full Court has clarified (and, some may say, expanded) the scope of the right of appeal conferred by section 44 of the AAT Act.

Helpfully, in Haritos the Full Court neatly summarised its findings in relation to a ‘question of law’ under section 44 of the AAT Act³ as follows:

1. The subject-matter of the Court’s jurisdiction under section 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
2. The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
3. The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under section 44.
4. Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by section 44(3) to hear and determine appeals instituted in the Court in accordance with section 44(1), but to the exercise of that jurisdiction.
5. In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
6. Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
7. A question of law within section 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
8. The expression 'may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal' in section 44 should not be read as if the words 'pure' or 'only' qualified 'question of law'. Not all so-called 'mixed questions of fact and law' stand outside an appeal on a question of law.
9. In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an 'error of law' in the failure in the Tribunal to make a finding first urged in this Court.
10. Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

¹Haritos v Commissioner of Taxation [2015] FCAFC 92 at [79].
²At [202].
³At [62].