This report has summarised the evidence of submissions made to this inquiry, while also considering findings from other sources about the shortcomings in the operations and integrity of the Administrative Appeals Tribunal (AAT).
The evidence received thus far shows that the status quo is not working—this is of serious concern to the committee, and the current operation of the AAT undermines public trust in both the AAT and in effective public administration.
This chapter puts forward the views of stakeholders on the importance of the merits review system to accountability, transparency and public confidence in government decision-making.
It then presents the committee's views on the matters raised in this report, followed by the committee's recommendations.
Merits review and effective public administration
The significance of merits review was reiterated by many stakeholders in their evidence to the committee. For example, Professor Greg Weeks asserted that 'the significance of the interest that the Commonwealth and the nation have in the AAT being a productive and effective body can hardly be overstated'. The Australian Lawyers Alliance likewise noted that the AAT was a 'vital mechanism for ensuring accountability for government decision-making'.
Similarly, Dr Bruce Baer Arnold drew attention to the importance of transparency in public administration and observed that the 'community at large is more likely to trust Governments if the administrative review system is seen to be fair', rather than politically driven.
Legal Aid NSW stressed that any system of administrative review must deliver the right balance of:
… economical, quick, informal review, which is accessible, fair and just. A rigorous system which reviews decisions on the merits of the case and is transparent, is essential to provide administrative justice to individuals and to engender public confidence in decision‑making by government departments.
The Grattan Institute recognised the critical role of the AAT in Australia's democracy and legal framework, as well as its role in facilitating access to justice by members of the public. The Institute observed that the AAT was 'a key mechanism for government accountability' and that the:
… availability of independent review increases public confidence in government decision‑making because it enables transparency. It is important for public trust that the government is seen to be supporting and upholding the independence of the AAT.
Melbourne Law School also reinforced that merits review is a 'form of executive accountability that enhances openness, good government and public trust in public administration', but made the important point that 'because the AAT is a creature of statute, its functions can be easily degraded structurally and culturally' and further, that the AAT 'is only as effective as its membership'.
The Defence Force Welfare Association made the point that:
… transparency in the context of the administrative review system, and more broadly the administrative law system, is of paramount importance to public confidence.
DFWA is of the view that any measures that improved transparency of administrative decisions [of the Commissions], would have consequential improvements to the administrative review system more broadly.
Despite raising concerns with some elements of the AAT's operation, Carina Ford Immigration Lawyers acknowledged that the AAT and its administrative and support staff:
… continue to offer a service that is accessible, professional and efficient and [the] majority of members are professional, competent and take their role as being a member very seriously and we fully recognise that members make decisions that can be life changing. It operates a user-friendly website which has useful information for lawyers and unrepresented applicants and it has increasingly improved its publication of decisions.
… The majority of members conduct hearings in a fair, informal and efficient manner and many have a sound knowledge of the area of migration law and the complexities of the caseload.
Concerns of the committee
It has become clear to the committee throughout this inquiry that the AAT has not been functioning in the 'fair, just, economical, informal and quick' way that the Administrative Appeals Tribunal Act 1975 (AAT Act) provides it should.
These views have been reinforced by the evidence received, over several years, by the Legal and Constitutional Affairs Legislation Committee (Legislation committee) through the Senate Estimates process, where the testimony of the AAT has consistently given rise to concerns about its administrative processes, transparency and productivity.
Some specific issues are discussed below, before turning to concerns with the AAT more broadly.
Migration and Refugee Division
The Migration and Refugee Division (MRD) is the largest AAT Division by some margin, and it is clear that the AAT cannot address both the significant volume of legacy cases and the continuing number of new applications, without better resourcing and case management.
It is of considerable concern to the committee that the MRD has such a backlog of cases, and that it is taking years to finalise matters. These delays have a real‑world impact on applicants, who have no certainty about the future for them and their families.
It is also having a negative impact on legal representatives, non‑government organisations who advocate for applicants, and on AAT staff who are under increasing pressure to facilitate better and quicker decision‑making.
The piecemeal allocation of funding on a yearly basis does not allow the AAT to make long-terms plan to address the MRD caseload. The committee is concerned that without significant and sustained funding increases, the MRD will not be able to appoint new members to it, and therefore it will not be able to improve its rates of completion.
The committee echoes the calls of the Callinan Report, that at least 15 to 30 members be appointed to the MRD as soon as possible, with relevant experience in migration and refugee matters as that might allow them to make inroads into the caseload in an expedient yet fair manner.
The AAT itself has noted that several factors are stopping it from achieving its performance targets, including the 'growing and ageing on-hand caseload' in the MRD. It also noted insufficient resources and members, and issues with the legacy case management systems since amalgamation in 2015.
In addition, the fact that the AAT is setting aside the decisions of departments at consistently high levels indicates problems with the decision‑making process in departments themselves. This is exemplified by the National Disability Insurance Scheme (NDIS) Division, where more than half of the relevant agency's decisions have been changed by the Tribunal.
The caseload at the AAT will not diminish while departments and agencies continue to make decisions which are not the correct or preferred ones.
The committee will take a keen interest moving forward in the implementation of time-related arrangements for the payment of part-time members, and will be interested to note whether this change has any impact on productivity—for better or worse.
The committee encourages the AAT to make improvements to its case completion statistics, to ensure that proper context is provided—for example, if a member is sworn in and commences case work only late in the financial year.
Re-establishment of the Administrative Review Council
The committee is of the strong view that the Administrative Review Council (ARC) should be re-funded and re‑constituted as matter of priority. It is wholly unsatisfactory for the ARC to continue to exist as a matter of law, while being prevented from exercising its statutory functions in fact by the deliberate removal of funding by the Government.
Simply put, Part V of the AAT Act requires the ARC to exist and operate, and this legislative obligation must be upheld.
It is clear to the committee that the ARC remains the most appropriate mechanism for the facilitation of ongoing, objective and apolitical review of the performance of the federal administrative law system.
The committee agrees with the Australian Human Rights Commission that the kind of scrutiny and expert analysis provided by the ARC is vital to ensuring the continued integrity of the merits review system and protecting individual freedoms.
It is the committee's view that the Attorney-General's Department appears unable to replicate the work of the ARC, despite the 'transfer' of functions. The unique role and composition of the ARC makes it best placed to provide the robust, independent, and expert advice required to uphold the integrity of the Australian administrative review system.
Additionally, it is the committee's view that a properly funded and resourced ARC has an intrinsic role to play in creating and maintaining public trust and confidence in the decision-making of the AAT. To that end, the re-funding of the ARC will be vital in order for it to provide guidance and instruction in fulsome and wholesale changes to the operations of the AAT.
The committee recommends that, as a matter of urgency, the Commonwealth Government re-fund the Administrative Review Council and allow it to fulfil its statutory duties in accordance with Part V of the Administrative Appeals Tribunal Act 1975.
Trust in public administration
As has been shown throughout this report, the role of the administrative review process in instilling confidence and trust in public administration and the functions of government cannot be minimised. To this end, the AAT should be playing a key role in developing and maintaining this confidence and trust, and in supporting the integrity of the merits review process—but it is not.
As this and many other inquiries have shown, the AAT is not working, and the merits review system in Australia is being failed by a Tribunal which does not function effectively, efficiently or transparently.
Selection and remuneration of members
The AAT has become politicised, with the awarding of lucrative, long-term appointments to those who are in favour with the Coalition—regardless of whether these individuals have any relevant qualifications or legal expertise. Nearly a third of appointees to the AAT have been found to have a direct political party affiliation with the Coalition Government, and these appointees are taking the money without any proper accounting of their productivity.
This politicisation is having a direct impact on the ability of the AAT to perform its legislated functions in a manner that supports proper public administration and effective expenditure of taxpayer funds.
It also brings into serious doubt whether the AAT can be fully independent, and its decisions trusted by applicants, the legal profession, or the public more broadly. As was noted during the inquiry, whether appointments are made on the basis of political connection or not, what ultimately matters is the perception of the Australian community.
This politicisation is a danger to those who rely on the merits review system to provide fair and timely decisions on often very personal matters. It also represents a very poor use of public money, given there is a significant proportion of part-time members who are not achieving their required targets, with some members only achieving well under 50 per cent of their benchmark performance indicators—without reasonable explanation.
Ministerial discretion has been used as a blunt weapon in the politicisation of the AAT.
It is clear that the Attorney-General holds too much discretionary power in the selection process for members, and this is having a direct and detrimental impact on public trust in the institution. The 2019 protocols allow the Minister to appoint members on the basis of political patronage, rather than on merit. The evidence also suggests that there is no real basis for the duration of any given appointment to the AAT.
Political appointees may be seen to be making decisions in favour of the government, or upholding the status quo, thus calling into question the independence of the AAT more broadly.
Ministerial discretion also represents time lost to AAT staff, if the AAT is to go through the expression of interest process, assess applicants and make recommendations—only for the Minister to reject out of hand the recommendations put forward.
The evidence to the committee reinforced the view that the member selection process was not open, rigorous or fair, with an ever-present risk of political patronage being the basis of appointments. The process as it currently stands is consistently undermining the public credibility of the Tribunal.
The committee is therefore persuaded by the evidence that a transparent, independent process is needed for the appointment of AAT members, against a clear and well-advertised selection criteria. This should be supported by an independent panel which is able to properly consider each applicant's suitability for the role, and their qualifications.
This process should be implemented as part of the broader, wholesale changes recommended by the committee around the disassembling and re‑establishment of the review system's structures and functions (see below). Doing so will ensure that once re-structured, the system has adequately qualified and experienced members who are ready to perform the duties of the identified roles. Importantly, it will eliminate the politicisation of the appointment process.
The committee recommends that the Attorney-General develop and legislate a process for the appointment of members to the Administrative Appeals Tribunal that:
incorporates clear selection criteria;
advertises the selection criteria broadly;
establishes and supports an independent panel to properly consider each applicant's suitability for the role and their qualifications, and recommend appointments against the selection criteria;
limits the discretionary powers of the Attorney-General to make appointments not in accordance with the recommendations of the independent panel;
imposes a uniform approach to the duration of appointments; and
promotes transparency and makes public the outcome of each application and selection round.
The need to start again
Over several decades now, the administrative review system has been continually examined and found wanting—with a significant number of recommendations put forward for reform of the merits review system.
Review after review has outlined how the AAT needs to enact significant reforms to its functions and processes, and importantly to its member selection processes, to no avail. Something is fundamentally broken in the way the AAT currently operates.
As things currently stand, it is clear that the road to reform of the merits review system would be far too slow—not helped by the significant number of cases which the AAT has on hand, particularly in the MRD. Such slow progress does not help to maintain public confidence in the merits review system.
For example, the Callinan Report was completed in 2018. In 2020, the government advised it was still 'carefully reviewing the report'. Legislative amendment, apparently taken as a 'first step' in implementing some of Justice Callinan's measures, did not take effect until February of this year.
It is clear to the committee that wholesale changes are needed to the AAT. These small, piecemeal approaches to change are not working—and even if reforms are progressed, they are taking too long to develop and roll out as applications for review continue to pour in.
All of the evidence comes together to show only one thing—that the current AAT system is not fit for purpose, is not working as it should, and it impedes the proper consideration of merits review in this country.
The committee therefore recommends that the AAT be disassembled. In its place, a new federal merits review system should be implemented which re‑aligns the merits review process with the AAT's currently legislated obligation to be accessible, proportionate, fair, economic, informal and quick, while promoting public trust and confidence in the decision-making of the review body.
This new system should be in place no later than 1 July 2023. In progressing with its implementation, the Attorney-General and the AAT should be mindful to not unduly impede or disrupt those matters currently before the AAT, and allow procedural fairness in all cases.
Further, as part of this wholesale reform, the ARC—once re-funded—should be used to develop policies and provide guidance on best practice approaches to a new administrative review system in Australia.
In addition, noting the views of the Callinan Report and the evidence before this committee, any restructure of the AAT should ensure that sufficient membership is allocated to consider migration and refugee matters. This area of merits review will continue to have a large caseload—both legacy and new—and there needs to be adequate processes in place to deal with this upfront.
The committee recommends that the Attorney-General disassemble the current Administrative Appeals Tribunal (AAT) and re-establish a new, federal administrative review system, by no later than 1 July 2023. The structure of the new tribunal system should re-align the merits review process with the AAT's legislated objectives of being accessible, proportionate, fair, economic, informal and quick, while promoting public trust and confidence in the decision-making of the review body.
In restructuring and reforming the merits review system, consideration should be given to the Administrative Appeals Tribunal Act 1975, and the Divisional structure, membership, case management practices, practice directions, President's directions, guides and guidelines of the AAT as currently constituted. Appointments to the system should be made in line with Recommendation 2 of this report.
The re-establishment process should also determine:
the relevant stakeholders to consult (including the Law Council of Australia and the Council of Australian Tribunals)
the preferred functions, processes and structures for a fit‑for‑purpose tribunal system;
ways in which to establish a new system with improved case management and procedural fairness; and
ways to ensure that current matters before the AAT are afforded procedural fairness, and are not impeded or disrupted by the disassembling of the AAT.
Future work of the committee
Following on from the recommendations made in this report, the committee will continue its oversight role of the administrative review system as it is revised and reformed.
To this end, the committee has sought an extension of time in which to make a final report, to 30 June 2022.
Senator the Hon Kim Carr