3.1
This chapter outlines the concerns raised during the inquiry thus far about how the Administrative Appeals Tribunal (AAT) is operating against its legislated aims of providing accessible, fair, informal and quick merits review.
3.2
It details the evidence received by the committee about particular areas of operation within the AAT, including case finalisation rates, levels of resourcing, and how AAT members were remunerated and their performance measured.
3.3
Issues regarding the selection of AAT members, and the operation of the Migration and Refugee Division (MRD) specifically—which considers the majority of AAT cases—are discussed later in this report.
AAT finalisation rates and resourcing
3.4
The previous chapter detailed the significant volume of applications on hand before the AAT for the 2021–22 financial year (as at 28 February 2022)—nearly 68 000.
3.5
In order to assess the productivity of the AAT, it is necessary to consider the rates of finalisation of cases, and the time taken in which to do so. Table 3.1 below shows considerable delays in finalisation in areas such as Freedom of Information; migration and refugee matters, and veterans' appeals.
3.6
Also of note is the proportion of matters in which the AAT determined that the original departmental decision was not the correct or preferable decision, and therefore set aside the decision or remitted it to the decision-maker. For matters concerning the National Disability Insurance Scheme (NDIS), more than half of the decisions under review were changed. A significant number of decisions were also changed for small business taxation, migration, and taxation and commercial matters.
Table 3.1: AAT Caseload Report - for the period 1 July 2021 to 28 February 2022 - further information
|
|
|
|
|
|
Freedom of Information
|
44%
|
61
|
22%
|
|
General
|
73%
|
27
|
29%
|
|
Australian citizenship
|
69%
|
34
|
30%
|
|
Centrelink (2nd review)
|
80%
|
24
|
26%
|
|
Visa-related decisions relating to character
|
90%
|
11
|
36%
|
|
Workers' compensation
|
55%
|
48
|
34%
|
|
Other
|
83%
|
14
|
22%
|
|
Migration & Refugee
|
20%
|
108
|
30%
|
|
Migration
|
18%
|
107
|
41%
|
|
Refugee
|
24%
|
116
|
5%
|
|
National Disability Insurance Scheme
|
89%
|
20
|
55%
|
|
Security
|
83%
|
50
|
0%
|
|
Small Business Taxation
|
83%
|
28
|
51%
|
|
Social Services & Child Support
|
>99%
|
8
|
21%
|
|
Centrelink (1st review)
|
>99%
|
7
|
18%
|
|
Child Support
|
>99%
|
11
|
34%
|
|
Paid Parental Leave
|
100%
|
7
|
9%
|
|
Taxation & Commercial
|
63%
|
36
|
41%
|
|
Taxation
|
62%
|
39
|
42%
|
|
Other
|
66%
|
30
|
35%
|
|
Veterans' Appeals
|
55%
|
47
|
30%
|
|
AAT
|
55%
|
34
|
29%
|
The need for more members
3.7
There were calls from submitters for an increase in the number of AAT members and resources in order to address the significant caseload backlog, with particular attention drawn to the considerable backlogs in the MRD.
3.8
The Law Council of Australia (Law Council) asserted that it was critical that additional members are appointed to the AAT in order to address delays and backlogs. It recommended that:
… additional members be appointed to the AAT with a focus on qualified decision-makers across the Divisions with the greatest backlogs, so as to maximise the efficiency and effectiveness of the AAT in achieving its statutory aims.
3.9
The Tax Institute called for a greater resourcing of members, particularly in the Small Business Taxation Division, which would help to address the large number of cases on hand. The Institute suggested greater funding and resourcing for members, as well as additional time for members to write decisions—especially given the increasing complexity of cases before the AAT, including tax cases.
3.10
The AAT itself noted in its 2020–21 Annual Report that it was 'not sufficiently resourced to substantially reduce our significant on hand caseload', and that it would 'continue to engage with Government about additional member appointments, commensurate increases to staffing levels to support members and appropriate funding'.
3.11
In evidence to the committee, the AAT again reiterated that a 'challenge linked directly to performance' is the number of members who are available to conduct reviews. It explained:
Decisions relating to appointments, including the number, level and location, are ultimately a matter for the Government and impact on the AAT's ability to deliver services and meet case finalisation targets.
3.12
In additional to several measures to increase the number of members appointed to the AAT, the 2018 Callinan Report called for amendments to the arrangements for the assignment of members to Divisions, noting that 'some Divisions are not nearly as busy as others', and that 'flexibility in the deployment of members is desirable and likely to enhance harmonisation'.
Case allocations
3.13
The Callinan Report found that case management at the AAT was 'a matter of concern', arguing that:
Differences in practice and procedure, as well as competencies of Members, complicate the operation of the AAT. There is a clear need for a coordinator and manager of the totality of the AAT's workload in consultation with, and as a delegate of, the President. An appointment of a person to fill that role is, in my view, urgent and necessary.
3.14
Further to this recommendation in the Callinan Report, the AAT's 2020–21 Annual Report advised on the work of case assessment registrars and caseload practice managers, who:
… undertake early case assessment and triage in various types of applications, particularly in the Migration and Refugee Division, Small Business Taxation Division and the Social Services and Child Support Division. At 30 June 2021, dedicated national teams provided caseload support and legal services to the Migration and Refugee Division, the Social Services and Child Support Division and the National Disability Insurance Scheme Division.
3.15
The AAT further noted that it had worked with the Government during 2020–21 to update its governing legislation, to 'make available a more consistent set of case management powers and procedures across divisions'.
Single case management system
3.16
The AAT described the impact of using several electronic case management systems across Divisions—a legacy of the 2015 amalgamation process. The AAT noted that the systems were ageing and had 'limitations in supporting increasing caseloads, enabling changed work practices or supporting effective modern service design and delivery', while limiting the Tribunal's capacity to leverage data capabilities across the AAT.
3.17
The AAT acknowledged the adverse impact of multiple case management systems, and indicated that the development of a single management system was a 'priority project' for the AAT. It observed that this process would have a direct and positive impact on its public reporting capabilities, saying that:
In response to increased interest in the AAT's caseload statistics, new reports with more detailed caseload information for all Divisions, are under development with the intention to publish on the AAT's website in future.
3.18
The new case management system is to be implemented in stages over several years across all AAT Divisions, with completion in 2025. According to the AAT, progressing in stages 'reflects the complexity of moving from a number of systems to a single solution' while addressing the needs of a 'broad, complex user base'. It is hoped that the new system will improve interactions for external users, enhance AAT productivity and provide better data for the monitoring and improvement of performance.
3.19
The AAT's 2021–22 Annual Report said that the discovery phase for the single case management solution had taken place in 2020–21, with the AAT 'well placed to make milestone design decisions as the project continues into 2021–22'.
Member remuneration
3.20
Remuneration of Tribunal members is currently determined by the Remuneration Tribunal (Judicial and Related Offices—Remuneration and Allowances) Determination 2021 (the Determination).
3.21
Section 22 of the Determination provides the total yearly remuneration of the following AAT members as:
Non-judicial Deputy Presidents – $496 560
Senior Members, level 1 – $391 940
Senior Members, level 2 – $329 930
Member, level 1 – $249 420
Member, level 2 – $221 700
Member, level 3 – $193 990
3.22
In 2018, the Callinan Report questioned the need for so many levels of membership in the AAT, with 'Deputy Presidents, two levels of Senior Members and three levels of ordinary membership'. In addition, each level was 'attracting a considerable differential in remuneration'.
3.23
As part of his examination, Justice Callinan was told that 'sometimes the most Senior Members…were allocated less demanding work, rather than complex cases which could be expected to be allocated to those Senior Members enjoying their higher grading and better remuneration'. He concluded that:
The seemingly inexplicable differences in levels of Membership and remuneration are prejudicial to the performance of the AAT and accordingly to the process of amalgamation. Serious consideration ought be given to whether these differentials are unproductive and unjustifiable, and if they are, whether they should be replaced by one or two levels only with a consequential gradual levelling of remuneration.
3.24
In addition to members receiving varying levels of pay, the Attorney-General's Department (AGD) also noted that AAT members can work part-time and are not precluded from holding outside employment, 'unless, in the President's opinion, it conflicts or may conflict with their duties'. It further advised that:
… section 14 [of the AAT Act] sets out disclosure requirements for members in relation to a proceeding before the Tribunal, and how identified conflicts may be managed. In this context, the onus is on individual members to declare any potential conflicts of interest. It is then a matter for the President of the AAT to consider and manage disclosures.
Payment of part-time members
3.25
The matter of AAT member remuneration has been the subject of ongoing commentary for some time, particularly the payment of part-time members.
3.26
In early 2021, the AAT advised that part-time members are generally paid a daily fee for undertaking official business of seven hours duration, 'regardless of the day or days on which that work is done', meaning:
… a member may be paid a daily fee for work that has been undertaken across a number of days: for example, they may have prepared for a hearing on one day, conducted the hearing on a second day and written the reasons for decision on a third day.
3.27
On 21 May 2021, the Shadow Attorney-General, the Hon Mark Dreyfus QC MP, wrote to the Australian National Audit Office (ANAO) expressing concerns about the remuneration of part-time AAT members, in particular in the Social Services and Child Support Division and the MRD. Mr Dreyfus expressed concerns about the AAT providing value for money to taxpayers, and was of the view that, based on evidence before the Senate Legal and Constitutional Affairs Legislation Committee (Legislation committee):
… it appears that the amounts paid to a number of part-time members could only be justified if those members had completed at least 7 hours of Tribunal work a day for more than five days per week – sometimes for years on end.
I am not suggesting that those members, or any other member of the Tribunal, have been overcharging or over-claiming. Rather, based on the evidence the Tribunal has given to the Committee, it appears that the Tribunal has adopted confused and inconsistent remuneration policies that give rise to the serious possibility that part-time members in the Social Services & Child Support and Migration & Refugee divisions are being paid for more days and hours than they actually work.
The appropriateness and legal basis of key aspects of those policies are unclear.
3.28
Prior to engaging with the ANAO, Mr Dreyfus sought clarification on these issues from then‑President of the AAT, Justice David Thomas. As part of the process, Justice Thomas explained that the applicable remuneration determination 'does not prohibit part-time members from being paid more than the base salary of the equivalent full-time office in respect of any financial year.' Mr Dreyfus was of the view, however, that 'it does not follow that paying some part-time members as much as $70,000 more than full-time equivalents is appropriate or represents value for money'.
3.29
Mr Dreyfus continued and noted that:
… the President does not identify a legal basis for part-time members being paid for more hours or days than they actually work – and, specifically, more than one daily fee for one day's, or less than one day's, work.
I understand from [a briefing provided by the President] on 10 May 2021 that the Tribunal does not believe that any parttime members are – in fact – being paid for more hours or days than they actually work. I do not share, and nor do I understand the basis of, the Tribunal's confidence.
3.30
In outlining his concerns to Justice Thomas, Mr Dreyfus noted that the AAT had provided the Legislation committee with internal policy documents relating to the payment of members. Mr Dreyfus expressed the view that these policy documents 'raise serious concerns' about:
… the confused and inconsistent way in which part-time members in different divisions are remunerated. Given that those documents appear to be based on old and long-superseded determinations by the Remuneration Tribunal, I am also concerned that members in some divisions of the Tribunal … are being remunerated in a manner that is inconsistent with the Remuneration Tribunal determinations that are currently in force. That is, I am concerned that, as a matter of policy, members of the Tribunal are being remunerated in a manner that is inconsistent with the law.
3.31
Mr Dreyfus called on the ANAO to conduct a 'tightly scoped performance audit' or assurance audit on how part-time members of the Social Services and Child Support Division and sessional part-time members of the MRD were being renumerated.
Response from the ANAO
3.32
On 17 June 2021, the ANAO confirmed to Mr Dreyfus that during its 2020–21 financial statements audit, it would conduct 'additional measures' in response to the issues raised. On 21 December 2021, the ANAO confirmed to Mr Dreyfus that it had conducted a review of AAT member remuneration, focusing on sessional members in the MRD. Its findings were included in its report on Audits of the Financial Statements of Australian Government Entities for the Period Ended 30 June 2021.
that a small number of members were paid more than the equivalent full‑time salary, but these payments were within the AAT's guidelines and procedures, and the payments were consistent with the number of cases finalised by the member;
in some instances, members' fortnightly paid remuneration was for more than 14 days, but there was limited documentation to evidence compliance with the requirements of the Remuneration Tribunal Determination;
the amount paid to sessional members on case finalisation, which is based on the case weighting, may not be consistent with actual time spent on the case, with the number of case weighting days paid for the members reviewed being above those of full-time staff days available; and
as MRD sessional members do not keep time records the ANAO could not readily verify the validity of weightings applied, with the AAT advising that it would move to time spent (timesheets) rather than case finalisation basis for all divisions in December 2021, for all part-time members.
3.34
The AAT advised the ANAO at the time that it was seeking legal advice on the 'appropriateness of the guidelines and procedures employed by the AAT to remunerate members'.
Response of the AAT
3.35
Mr Jamie Crew, as Acting Registrar of the AAT, confirmed during Additional Budget Estimates in February 2022 that part-time members were previously paid based on case finalisations, meaning that payments depended on how many finalisations were submitted in the 14-day pay period.
3.36
Mr Crew further noted that, in addition to awaiting the final legal advice about the AAT remuneration (referred to by the ANAO), the AAT was progressing with moving to time-based payments across all divisions. Mr Crew advised that the AAT had commenced a:
… trial arrangement where part-time members were inputting their daily payment fees on a time related arrangement rather than a case finalisation arrangement. That trial of that system occurred early in the 2021-22 financial year … and was successful, and they began implementation [on] 21 December, so we almost have it completed. … We've almost finalised implementation of the time related arrangements for payment.
Performance reporting and outcomes
3.37
The AAT's 2021–22 Corporate Plan details its performance targets for the reporting year, as follows:
the number of AAT applications and Immigration Assessment Authority (IAA) referrals finalised: 47 944
clearance ratio: at least 100 per cent (in each financial year);
proportion of applications and referrals finalised within 12 months of lodgements or receipt: 75 per cent (in each financial year);
number of decisions published: at least 5000 (in each financial year);
AAT user experience rating: at least 70 per cent (in each financial year); and
proportion of appeals against decisions allowed by the courts: less than five per cent of all AAT and IAA decisions made in the previous year that could have been appealed.
3.38
The MRD is the only division of the AAT which sets yearly benchmarks for members. Yearly benchmarks are not set for:
part-time members who undertake work on a sessional basis as required by the AAT and who are remunerated based on case finalisation; and
members who may only occasionally undertake work for the division.
3.39
For the MRD, from 2018–19 onwards it developed new benchmarking and case weighting systems within the Division:
Weightings for all caseloads were reviewed and complexity weightings were established for a broader range of cases, which are now reflected in what is known as 'case days'. The case days represent how many days it is expected a case of a particular category should take to finalise, including pre-hearing work, conducting a hearing and making a decision … The benchmark for each member is expressed as the number of case days the member is available to hear and decide cases with progress measured based on the finalisation of their individual case allocations.
… The maximum possible number of case days for benchmark purposes in a year is 230.
3.40
In effect, depending on the weighting and the time allocated for cases, the benchmarks for members will vary.
3.41
In relation to the benchmarking which only applies to the MRD, the previous Registrar, Ms Sian Leathem, suggested that it was a planning tool and not necessarily a performance mechanism. Further, the benchmarking was 'based on an indicative timeframe for particular types of cases', but that there 'could be cases that are different, unique or particularly complex, in which the benchmarking may need to be adjusted to be able to address that'.
Benchmarking results
3.42
The AAT advised that it expects MRD members to be able to meet, or be within 10 per cent of their benchmark. In 2018–19, full-time and part-time members working in the MRD were given benchmarks—76 members did not meet their benchmark, and 61 met or exceeded their benchmark (due to COVID-19, benchmarking was suspended in March 2020).
3.43
Taking other factors into consideration, of the 76 members who did not meet their benchmarks, 40 failed to meet their expected targets without reasonable explanation. Some members reported progress against their allocated benchmarks as low as 20 per cent, with 11 of the 40 achieving 50 per cent or less.
3.44
The Asylum Seeker Resource Centre (ASRC) called for a performance review of all current sitting members of the AAT using standardised performance criteria, in order to 'bring an end to appointments of underperforming members'.
Performance reporting issues
3.45
Concerns have been expressed that indicators of underperformance of AAT members, may in fact be a result of fundamental issues with the performance data presented about each member—and a lack of context around that data.
3.46
During a recent Senate Estimates hearing, there was discussion of media reports which suggested that several AAT members were underperforming. However, it was put to the AAT that this was instead a result of AAT benchmarking being 'fundamentally flawed', and perhaps the AAT could look at how it could 'better reflect the work performed' by members:
… For instance, in one case there was a report that a member did no work in a financial year when in fact he was not even sworn in. There have been numerous cases where members have been reflected on, saying that they have been underperforming due to the low number of finalisations of cases in a given year, when in fact in a number of cases they did not even start work until late in that financial year. There is also the failure of the AAT to categorise cases. The migration division, for instance, has a category of complexity of cases [and] the social security division is moving to categorising cases. Other divisions are not, and that means that it is a very unsophisticated way in which you are reflecting on the work performed by your members.
3.47
Mr Crew, Acting Registrar of the AAT, acknowledged these concerns and advised that the AAT was taking steps to address the lack of context and additional information around the case completion statistics for members. Mr Crew noted that information to date reflected only the total number of finalisations of matters by members, and to that end the AAT was looking to 'change what we are doing or review how we might better provide such information so it is clearer in relation to the different types of work' being completed, including the length of time it took to complete each case.
3.48
At the same Estimates hearing, it was suggested that the AAT had—especially recently—displayed some major administrative flaws, including 'not even understanding whether a member has been sworn in'. Mr Crew noted that while the AAT was supportive of major reform, as of February 2022 the AAT had both an acting President and acting Registrar and appointments to both those roles at the earliest opportunity would help to progress reform.
Access to the AAT
3.49
Some submitters remarked on the lack of access to adequate legal representation for applicants before the AAT.
3.50
For instance, Legal Aid NSW explained it was becoming 'increasingly problematic for both lawyers and Tribunal members' that applicants before the AAT may lack capacity to understand the nature of proceedings, or be able to issue competent instructions—especially for matters concerning the National Disability Insurance Scheme (NDIS), visa cancellation cases and protection visa matters. Legal Aid NSW therefore recommended that:
… urgent consideration should be given to providing the AAT with statutory powers to appoint a litigation guardian … or a tutor for applicants who lack capacity.
3.51
Legal Aid NSW noted that the Administrative Appeals Tribunal Act 1975 (AAT Act) does not contain specific provisions for the appointment of a litigation guardian or tutor, unlike other comparable jurisdictions like New South Wales. The organisation suggested that the AAT was therefore 'often left not knowing what to do where the applicant is unrepresented and appears to lack capacity'.
3.52
Social Security Rights Victoria (SSRV) said that despite the significant number of people affected by social security and family assistance decisions—many of whom are in vulnerable cohorts—there was no specific funds for social security legal services. SSRV posited that lack of representation caused applicants to feel 'intimidated by the process and unclear about the role of the Tribunal'.
3.53
The SSRV called for substantial increases in government funding, and concluded that the 'gross lack' of legal representation resulted in:
… an almost complete stifling of the progression of Tribunal precedent to advance the interpretation of social security and family assistance legislation, and ensure it is applied fairly and accurately in all cases.
3.54
The Refugee Council of Australia (RCA) similarly voiced concerns about a lack of government-funded legal representation for visa-related applications having a direct impact on the fairness, accessibility and efficiency of the system. The RCA advised that 'unprecedented demand has meant that there are fewer legal representatives attending hearings of the IAA or AAT, leaving many vulnerable people to navigate these systems without help'. The RCA said that this was:
… almost certainly having an impact on the efficiency and quality of decision-making within the tribunals, and is making it extremely difficult to identify jurisdictional errors which may lead to a person being wrongly returned to torture or other serious harm.
We therefore recommend that [legal representation] funding be reinstated for all people seeking asylum at all stages of the process.
3.55
The sentiments expressed by the RCA were echoed by the ASRC, which said that publicly funded assistance was negligible, and that it was seeing 'on a daily basis the impact of how the lack of access to quality legal representation prevents underrepresented protection visa applicants from properly articulating their claims'.
3.56
The ASRC called for:
… free, high quality, independent legal representation available to people seeking asylum or facing visa cancellation or refusal, at all stages of the process.
… Provision of adequate state funded legal assistance could also enable processes to be sped up without compromising fairness or quality of decision making.
3.57
Refugee Legal likewise recommended that the AAT be granted legislative capacity to refer an unrepresented applicant for pro bono legal assistance, as legal assistance and representation was 'critical' for matters before the MRD in order to ensure a fair hearing.
Impact of COVID-19
3.58
Some concerns were raised about the approach of the AAT in adapting to the COVID‑19 pandemic and ensuring its ongoing productivity and fair access to all applicants and their representatives.
3.59
For example, the Law Institute of Victoria (LIV) informed the Law Council that in Victoria, there was a 'degree of inconsistency in the productivity of members and the way they have adapted to changes' necessitated by the pandemic. By way of example, the LIV highlighted the following concerns (particular in relation to the MRD):
members not using video or only choosing to do telephone hearings;
members not putting their cameras on;
interpreters not being authorised to view applicants' faces, making interpreting difficult at times;
inconsistency in how hearings are run;
inconsistent practices regarding invitations to attend hearings;
refusing to accommodate the vulnerability of an applicant in a more preferable method of hearing; and
failing to turn up to allocated hearings.
3.60
Carina Ford Immigration Lawyers made similar points, suggesting applicants were restricted in their rights to access the merits review system during the pandemic. They advised that a 'number of members refused to hold video hearings, despite the AAT having functionality' to do so, and that during COVID-19, the MRD was slow to move to alternative ways of conducting hearings. They also raised concerns over hearings conducted via telephones, saying:
One of the biggest issues of telephone hearings is the lack of transparency or ability to assess credibility. None of the parties to the proceeding can see each other which we feel is vital in a hearing involving such serious matters but also ensuring the applicant feels they have been heard.
Complaints process
3.61
The AAT's Service Charter includes information on how to make complaints about the AAT's service (as opposed to an AAT decision), and details how to contact the Ombudsman in the event a complainant is not satisfied with the AAT's investigation of the original complaint.
3.62
The AAT advised that it received a 'relatively low' number of complaints each year, as a proportion of all applications finalised. During 2020–21, the AAT finalised 233 complaints:
Some complaints involved a finding that the Tribunal could have handled matters differently. They related to issues such as administrative error, how members and staff communicated with users, privacy, procedural issues and timeliness. Where the Tribunal formed a view it could have acted more appropriately, an apology was offered and steps taken to address the issue with the relevant areas and personnel.
3.63
It was suggested to the committee that the AAT's complaints mechanism could be strengthened.
3.64
For example, the Law Council's members noted that concerns raised by practitioners with the AAT were not always addressed, that 'AAT members are seldom removed from cases if a complaint has been made', and that the IAA does not have a formalised complaints process. The Law Council proposed an improved complaints process which would ensure both practitioners and other clients could raise complaints through a Federal Judicial Commission. Such a Commission could provide a:
… separate, standalone mechanism to deal with any allegation of lack of competency, serious misconduct or corruption amongst the federal judiciary, and has the potential to extend to complaints about AAT members.
3.65
Carina Ford Immigration Lawyers similarly argued that where complaints were made about the conduct of members in the MRD, 'the responses invariably do not address the substance of the complaints or deal meaningfully with complaints to create change'. Further, it appeared to them that the AAT 'is a consequence‑free environment for members which is not the fault of those who consider complaints but rather due to the way members are appointed', and called for a complaints process which was transparent.
3.66
The ASRC also called for a 'revamp' of the complaints process, to ensure that 'appropriate action is taken to discipline members whose conduct is unprofessional, inappropriate, or raises questions of apprehension of bias/actual bias'.
3.67
At the time of making its submission in November 2021, the AAT said it continued to work with the AGD on several matters, including a statutory framework for handling complaints about its members.
Case study: the NDIS and AAT applications
3.68
Evidence was provided to the committee detailing the significant volume of applications and associated lengthy delays in AAT matters involving people with disability, and the negative impacts these processes were having on applicants and their advocates.
National Disability Insurance Scheme applications
3.69
During Additional Budget Estimates 2021–22, the AAT provided an update on the number of applications made to it by participants in the NDIS, as follows:
1780 applications from 1 July 2019 to 30 June 2020, with 1527 matters resolved, in a median time of 18 weeks; and
2160 applications from 1 July 2020 to 30 June 2021, with 1448 matters resolved and 54 hearings held, in a median time of 23 weeks.
3.70
However, in just the six-month period from 1 July 2021 to 31 December 2021, there were 3140 applications (with 1356 matters resolved). As of February 2022, the median time to finalisation in this period was 19 weeks.
3.71
Evidence from People with Disability Australia (PWDA) detailed the real‑
world impacts of such high case numbers, and explained that there were 'unprecedented numbers' of people with disability appealing to the AAT. PWDA said that for matters for which its advocates have carriage of, there was a 629 per cent increases in NDIS appeals this financial year in Queensland alone, often arising from decisions made by the National Disability Insurance Agency (NDIA).
3.72
PWDA further argued that while people were appealing to the AAT, 'they shouldn't be there in the first place', with 95 per cent of its Queensland AAT appeals being settled in conciliation. PWDA said this outcome showed the 'decisions the NDIA has made internally were wrong', and argued that the 'AAT should not replace a robust NDIA internal review process'.
3.73
PWDA advised that in the experience of its advocates, AAT appeals involving NDIA decisions were taking an average of seven months to resolve, directly impacting on people with disability and their access to NDIS supports. The PWDA made clear its concerns that the AAT was:
… becoming an unnecessary battleground for people with disability to get the supports we are legally entitled to and are funded to receive through the NDIS.
In the closed chambers of the AAT, what happens to people with disability is being decided with the input of often junior lawyers and tribunal registrars and members.
… Allowing increasing numbers of unfair decisions to be made by the NDIA and then expecting the AAT to reverse them in large‑scale numbers is a traumatic waste of public funds, an improper process and not consistent with truly accountable government.
3.74
Speaking to applicants in social security and family assistance matters more broadly—including for people with cognitive or physical disability—Economic Justice Australia suggested that AAT members be appointed to these areas only if regard had been given to the member's 'background and specialist, non‑legal expertise'. It explained that:
Our members' casework experience demonstrates that if AAT members lack the knowledge, expertise and experience to elicit all the relevant information from vulnerable cohorts at a hearing, and appropriately exercise discretion in the application of the relevant law or policy, decisions can be made which cause further harm.
3.75
The AAT's Annual Report for 2020–21 pointed to the appointment of Deputy President Fiona Meagher as the NDIS Division Head on 17 December 2020. Following this, the Division had:
… developed a caseload strategy which encourages responsiveness, flexibility and timely case management by utilising members and conference registrars nationally and leveraging the Tribunal's recent digital transformation.