Administrative decision-makers are generally not bound by the rules of evidence, but this “procedural flexibility” does not mean that all rules of evidence may be ignored. It also does not absolve the decision-maker from the obligation to make findings of fact based upon material that is logically probative. Rather, the reasons standing behind these rules of evidence may guide an administrative decision-maker in the procedure that best facilitates the discharge of its statutory functions.
The interplay of the above general principles was recently put squarely before the Full Court of the Federal Court in the matter of Sullivan v Civil Aviation Safety Authority  FCAFC 93 (Sullivan). As discussed below, the Full Court rejected the appellant’s arguments that the AAT had erred due to its alleged non-compliance with the common law rules in Briginshaw and Browne v Dunn.
The decision is applicable to proceedings in other administrative tribunals, given that provisions comparable to s 33(1)(c) of the AAT Act can be found in numerous other pieces of Commonwealth legislation, including the Migration Act 1958, the National Health Act 1953, the Quarantine Act 1908, the Defence Force Discipline Act 1982, and the Australian Securities and Investments Commission Act 2001.
The burden and standard of proof in administrative proceedings
The general rule in administrative proceedings is that nobody need persuade the decision-maker (positively or otherwise) to make a particular decision due to the inquisitorial nature of administrative proceedings.The reality, however, is that the practical burden of proof will usually fall to the applicant because they are generally the best source of information on which an application is to be based.This is encapsulated in the adage, “he who asserts, or seeks a result, must prove”. Such proof must make it possible for the decision-maker to find, from the whole of the evidence and on the balance of probabilities, the facts that are fundamental to a claim.
The standard of proof is the barometer by which the decision-maker must decide whether or not the evidence or material before them supports their finding that a fact has, or has not, occurred. At common law, the standard varies according to whether the finding of fact is to be made in the context of a criminal charge or in the context of civil litigation. In criminal proceedings the standard is that of proof beyond reasonable doubt. In the civil proceedings, proof on the balance of probabilities is required.
The standard of proof in administrative proceedings is determined by the statute under which the decision is made. For example, a statute may prescribe a standard of “satisfaction”, “reasonable satisfaction” or a requirement for the decision-maker to be “satisfied”.
At common law, the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are relevant to deciding whether a matter is proved on the balance of probabilities.
Does the Briginshaw rule apply in proceedings before administrative tribunals?
The ‘rule’ in Briginshaw is derived from the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 and concerns the quality of persuasion required when a decision-maker makes findings of fact. The case concerned the standard of proof to be applied in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic). The Court held that these were issues not to be considered lightly and were not matters to be resolved by “inexact proofs, indefinite testimony, or indirect inferences”. Although the rule has been given legislative recognition in s 140 of the Evidence Act 1995 (Cth), that provision does not apply to proceedings before the AAT.
In Sullivan, the appellant contended that the AAT was bound to take into account the Briginshaw principle in applying the standard of proof in making findings on material questions of fact adverse to him. The majority (Flick and Perry JJ) found that this argument suffered from at least two fundamental difficulties:
Whilst the AAT was not “bound” by the rules of evidence, the majority found that it was not prohibited from applying those rules if it saw fit.
The majority also found that, in any event, the AAT had in fact applied the caution required by Briginshaw to the facts of the case, which involved loss of an ability to carry on a commercial activity. In making its relevant findings, the AAT was fully conscious of the need to ensure that those findings were soundly based upon evidence having probative weight. The reasons given by the AAT for preferring other evidence over that of Mr Sullivan demonstrated that it had approached the finding with the required degree of caution.
The rule in Browne v Dunn also does not apply to administrative tribunals
The rule in “Browne v Dunn” derives from observations made by Lord Herschell in Browne v Dunn (1894) 6 R 67 at 70-71. Although it is subject to “numerous qualifications and exceptions”, the rule essentially requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.
In Sullivan, the Full Court found that any submission that the Tribunal was generally required to apply the rule in Browne v Dunn in the conduct of its hearings was “doomed to failure”. This approach is consistent with:
As explained by Gummow and Heydon JJ in Re Ruddock; Ex parte Applicant S154/2002, administrative decision-making is of a different nature to decisions made in civil litigation conducted under common law procedures. In civil litigation, the court has to decide, on the balance of probabilities, where the truth lies between the evidence that the parties have decided to adduce at trial. By contrast, administrative proceedings are inquisitorial not adversarial; the decision-maker has no “client” or “case” and would risk being perceived as being biased if it sought to damage the credibility of a witness in the manner done in adversarial proceedings. Nor is an administrative tribunal obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
Justice Logan correctly recognised in Sullivan that there may be circumstances where it would be procedurally unfair for an administrative tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version. In such cases, the content of procedural fairness may resemble that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn. This is akin to the well-established administrative law principle that a person likely to be affected by an administrative decision should be given the opportunity to respond to information that is “credible, relevant and significant”to the decision. However, as warned by the majority, any reliance on the rule in Browne v Dunn in this regard (as opposed to established principles of administrative law) is “apt to mislead and to give proceedings in the tribunal an unwarranted curial gloss.”
The majority in Sullivan found that as the rules of procedural fairness do not require that cross-examination be permitted in all circumstances, it necessarily followed that there is no general requirement that a witness be cross-examined in such a manner as to permit an opportunity to answer particular submissions or findings that might be subsequently made or advanced. On the facts before it, the Court was satisfied that the appellant was not denied the opportunity to present his case and, as a result, no denial of procedural fairness occurred.
The decision of the Full Court in Sullivan provides a useful reminder that whilst the content of procedural fairness may resemble rules of evidence or other common law rules used in curial proceedings, the rules have different origins and are applied in different contexts. It is therefore preferable to refer to ordinary principles of administrative law when seeking to establish an error of law in judicial review proceedings.
 See, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth)
 R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256
 Sullivan v Civil Aviation Safety Authority  FCAFC 93at 
 Ibid at 
 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Re Holbrook and Australian Postal Commission (1983) 5 ALN N146
 Repatriation Commission v Smith (1987) 74 ALR 537, 546
 See, for example, the Australian Citizenship Act 2007 (Cth), Bankruptcy Act 1966 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
 See, for example, s 65 of the Migration Act 1958 (Cth)
 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
 See also: Unsted v Unsted (1947) 47 SR (NSW) 495, 500
 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 60 at 
  FCAFC 93at 
 For example, s 420 of the Migration Act specifies that when reviewing a decision the Refugee Review Tribunal is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case
 (2003) 201 ALR 437
 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at -
  FCAFC 93at -
 Kioa v West (1985) 159 CLR 550, 629; VN Railway Pty Ltd v Federal Commissioner of Taxation (2013) 211 FCR 188
  FCAFC 93at , citing Calvista Australia Pty Ltd v Administrative Appeals Tribunal (2013) 216 FCR 32, 56
 Ibidat -
 Ibid at - per Logan J, - per Flick and Perry JJ