On 20 October 2021, the Senate referred the following matters to the Legal and Constitutional Affairs References Committee (committee) for inquiry and report by 31 March 2022:
The performance and integrity of Australia's administrative review system, with particular reference to:
the Administrative Appeals Tribunal, including the selection process for members;
the importance of transparency and parliamentary accountability in the context of Australia's administrative review system;
whether the Administrative Review Council, which was discontinued in 2015, ought to be re-established; and
This is an interim report. The committee sought an extension of time in which to make a final report, and on 29 March 2022 the Senate agreed to an extension until 30 June 2022.
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to a number of organisations and individual stakeholders, inviting submissions by 24 November 2021.
The committee has to date received 35 public submissions, which are listed at Appendix 1. The committee has at this stage not held a public hearing for the inquiry, and has drawn on the submissions received in order to develop this report and form committee views.
The committee thanks all those who have made submissions. Your contributions provided significant insights into a number of issues and assisted the committee in its deliberations.
Structure of the report
This interim report is comprised of seven chapters.
This chapter sets out the background to the merits review system in Australia and details the findings of reviews which have been completed into the system over a number of decades.
Chapter 2 provides information on the operation of the Administrative Appeals Tribunal (AAT), including its structure, and its performance reporting and results.
Chapter 3 puts forward the general concerns raised in evidence about the functioning of the AAT, such as member remuneration, difficulties in accessing the AAT, and the complaints process.
Chapter 4 explores evidence received in relation to the selection process for AAT members. It examines the protocol for member appointments and outlines the calls from inquiry participants for a more transparent and independent selection process.
Chapter 5 turns to matters relating specifically to the AAT's Migration and Refugee Division (MRD), within which sits the Immigration Assessment Authority. It considers the evidence about the MRD's caseload and backlog, whether there are sufficient members in the MRD and other concerns about the operation of that Division.
Chapter 6 examines the views of submitters in relation to the role and funding of the Administrative Review Council (ARC) and puts forward the calls for its re‑establishment and funding.
Chapter 7 considers the importance of the merits review system. It presents the committee's views on each of the areas examined by the previous chapters and foreshadows further areas of interest for the inquiry. It also puts forward the committee's recommendations.
The merits review system
There are several arms of Australia's administrative review system, including:
internal review undertaken within departments and agencies;
independent merits review by external bodies; and
judicial review by the federal courts.
According to the Attorney-General's Department (AGD), merits review is:
… the process by which a person or body other than the primary decision‑maker reconsiders the facts, law and policy aspects of the original decision and determines the correct and preferable decision. The process of review may be described as 'stepping into the shoes' of the primary decision-maker. If the reviewer considers that the decision was not the correct and preferable decision, the reviewer may remake the decision using the same legislative framework as the original decision-maker.
As part of this system, the AAT plays a vital role in providing merits review of government and agency decisions.
The Law Council of Australia called the AAT 'the cornerstone of Australia's administrative law system', and detailed the key accountability roles of the administrative law system as:
protecting individuals against unfair and arbitrary use of public power;
legitimising and ensuring public confidence in government; and
enabling informed participation in democratic processes.
Similarly, the New South Wales Bar Association noted the significance of the AAT to members of the public, saying:
The AAT conducts a vast amount of work across a range of significant fields, and the decisions its members make can significantly impact upon the rights of those appearing before it. Decisions made in relation to migration and refugee law, citizenship, freedom of information, entitlements under the National Disability Insurance Scheme, and anti‑discrimination legislation will almost invariably have serious consequences for the rights of the affected individuals.
The Australian Lawyers Alliance also observed the importance of the AAT in 'delivering access to justice' for people who may be affected by government decisions, 'by virtue of its relative accessibility and informality'.
The foundations of the Australian merit review system were laid in the mid‑1970s with the formation and establishment of the AAT. Since then, the operation and functioning of the AAT has been reviewed repeatedly. The AAT's founding, and the consequent reviews into it, are detailed below.
In 1968, Attorney-General Sir Nigel Brown formed the Commonwealth Administrative Review Committee, led by Sir John Kerr. Known as the Kerr Committee, it was tasked with reviewing the Australian administrative law system.
In 1971, the Kerr Committee presented the Report of the Commonwealth Administrative Review Committee (the Kerr Report). The Report outlined the 'inadequacy of parliamentary and judicial action as the primary means of reviewing decisions', and the inadequacy of the processes then in place where numerous bodies reviewed decisions under various pieces of legislation.
The AGD advised that the Kerr Report:
… recommended the establishment of a general administrative review tribunal to provide external merits review of government decisions. In part as a result of these recommendations, legislation was passed in 1975 establishing the AAT.
The AAT commenced operation on 1 July 1976, and was intended to provide a 'direct pathway for individuals and organisations to have administrative decisions of government independently reviewed'.
Melbourne Law School observed that upon its establishment the AAT was a 'world first experiment in merits review' which 'grew quickly into a national asset'.
ARC review – Federal Merits Review System
In December 1993, the ARC was tasked with inquiring into the effectiveness of the federal system of external merits review tribunals, given that the operation of the AAT for two decades had provided a 'substantial body of practical experience in the operation of the system', alongside a 'number of significant changes and developments' since the AAT had commenced.
The ARC delivered its final report in September 1995, titled 'Better Decisions: Review of Commonwealth Merits Review Tribunals' (the ARC Review). It made 102 recommendations for improvement.
The ARC Review found that while the Australian system of administrative law and its merits review process was 'world leading' at the time, it could 'no longer accurately be described as a coherent system'. Stakeholders told the ARC they were generally supportive of the merits review system and its ability to meet its objectives, with noted improvements to the quality of decision‑making since the reforms of the mid-1970s.
However, the ARC Review stated that, 'without sacrificing the valued features of the individual tribunals', the challenge was to make improvements in the following areas:
consistency and speed of review tribunal decision making;
improving the effect of review tribunal decisions on the quality of government decision making;
making the system more cost-effective; and
improving the overall credibility of the system.
Importantly, the ARC noted 'concerns about perceptions about review tribunals' [lacking] independence from the agency or agencies whose decisions they review'. The ARC further posited that:
… review tribunals must be (and be seen to be) free of any undue pressure or incentive to favour the position of the agency whose decisions they review.
Unless this is achieved, there is a danger that potential applicants will lose confidence in the system's capacity to provide fair and objective merits review of their case, and for this reason might not seek review at all.
As will be shown in the following chapters, several of the ARC's 1995 recommendations continue to remain relevant. Of particular importance to the current inquiry are the following recommendations:
Review tribunals should monitor continuously the ways in which their review processes and other characteristics are perceived by applicants, so as to ensure that applicants feel as comfortable in their dealings with tribunals as is consistent with the proper exercise of the review function of tribunals (Recommendation 4).
Training of review tribunal members should include a component on how to adopt an appropriate active investigative approach in hearings: members should always be aware of how their actions may affect the way their tribunal is perceived by its users (Recommendation 6).
Review tribunals should cooperate in the development of a minimum set of core skills and abilities required of an effective tribunal member, for use in organising professional development of members and in the process of developing selection criteria (Recommendation 31).
All prospective review tribunal members should be assessed against selection criteria that relate to the tribunal's review functions and statutory objectives; and selection criteria for review tribunal member positions should be made publicly available, as should information about the nature of the selection process to be followed (Recommendations 33 & 34).
Assessment of applicants for review tribunal membership against selection criteria should be undertaken by a broad-based panel established by the minister responsible for the proposed appointments (Recommendation 35).
Appointments of members of review tribunals should be made only from within a pool of people who have been assessed by the assessment panel as suitable for appointment (Recommendation 36).
Appointments to review tribunals should be staggered so that the terms of a large proportion of a tribunal's members do not expire at the one time; and review tribunal members should be appointed for terms of between three and five years (Recommendations 40 & 41).
Members of review tribunals seeking reappointment on expiry of their terms should be required to apply for appointment in a competitive selection process and be assessed for suitability for reappointment against the same selection criteria as new applicants (Recommendation 43).
Review tribunals should continue to develop performance appraisal schemes for their members, covering all aspects of the work of members other than outcomes in particular cases; and all review tribunal members should participate in the setting of appropriate standards against which their performance is to be appraised (Recommendations 46 & 47).
There should be a statutory entitlement to an interpreter in review tribunal proceedings, where the tribunal considers an interpreter's services are required. Interpreters who participate in these proceedings should be adequately briefed on review tribunal functions and processes (Recommendation 64).
Amalgamation of merits review tribunals
As part of its recommendations in 1995, the ARC Review called for the establishment of a single tribunal to address migration matters, by merging the Immigration Review Tribunal (later the Migration Review Tribunal) and the Refugee Review Tribunal which were then in operation (but not as part of the AAT). Between 2002 and 2005, the functions of the Migration Review Tribunal and the Refugee Review Tribunal were progressively consolidated into a single agency (but again, this agency was not associated with the AAT).
The Abbott Government announced as part of the 2014–15 Budget that the merits review system would be 'streamlined and simplified'. From 1 July 2015, the Migration Review Tribunal, Refugee Review Tribunal and the Social Security Appeals Tribunal were merged and incorporated into the AAT. As a result, decisions which could be reviewed in the former Migration and Refugee Review Tribunals are now considered in the AAT's MRD, and Social Security matters considered by the AAT's Social Services and Child Support Division (SSCSD).
In announcing the changes, the then Attorney-General, Senator the Hon George Brandis QC argued that:
The reforms will remove unnecessary layers of bureaucracy and deliver an improved and simplified merits review system for all Australians. This is in line with the Coalition's commitment to streamline government and reduce duplication to deliver efficient, effective government. The measure is expected to save $20.2 million over four years.
The merger of merits review agencies will provide an accessible "one stop shop" for external merits review and will ensure that end-users have a review option that is fair, less confusing, just, economical, informal and quick.
While many processes were to remain as they were prior to the amalgamation, the AAT would 'introduce new practice directions, guides, guidelines and forms as part of implementing the new arrangements' to incorporate legislative and procedural changes.
The AGD submitted that the consolidation of the tribunals had:
simplified engagement with the system for AAT users;
allowed for greater flexibility in the members' availability to hear matters across the AAT; and
resulted in the standardisation of member entitlements.
In 2018, the Hon Ian Callinan AC QC, a former Justice of the High Court, completed a statutory review of the AAT following the amalgamation process of 2015. The resulting report, 'Report on the Statutory Review on the Tribunals Amalgamation Act 2015' (the Callinan Report) was tabled in Parliament on 23 July 2019 and put forward 37 recommended measures for further legislative reform to accommodate the amalgamation of the tribunals within the AAT.
As of May 2020, there had been little progress in implementing the recommendations of the Callinan Report, with the Commonwealth Government advising it was 'carefully reviewing the report' and that it had 'partially responded' by appointing additional members. However, the AGD said that the AAT, as an independent authority, was 'responsible for its own operation and management'.
The AGD advised that as a 'first step' in responding to the legislative recommendations of the Callinan Report, it introduced the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 on 23 June 2021. The bill passed and took effect from 17 February 2022, making a number of changes to the operations of the SSCSD, and in relation to the AAT allowed for the:
… updating [of] provisions relating to the appointment and assignment of members on an acting basis, the constitution and reconstitution of the AAT, the appointment and authorisation of officers of the AAT to perform functions in relation to proceedings, the dismissal and reinstatement of proceedings, the correction of errors in the text of a decision, and the taxation of costs.
A number of submitters considered that the findings and measures recommended by the Callinan Report continued to be relevant and urged for their implementation. Specific recommendations of the Callinan Report are discussed in subsequent chapters of this report.