In a media release on 23 July 2019, the Attorney-General, Christian Porter (the Attorney-General) announced that the Government had tabled in Parliament the Statutory Review of the amalgamated Administrative Appeals Tribunal. The review was undertaken as a statutory requirement under section 4 of the Tribunals Amalgamation Act 2015 (Cth) (the TA Act) and was conducted by the former High Court Justice, the Honorable Ian Callinan AC.
The review of the TA Act was tabled more than six months after it was delivered to the government and contains 37 measures to improve the amalgamated Administrative Appeals Tribunal's (the AAT) performance.
The review was announced by the Attorney-General on 27 July 2018. The review followed from the amalgamation the AAT with three other tribunals on 1 July 2015: the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.
Section 4 of the TA Act provides that the Attorney-General is required to cause a review of the operations of the amendments made under the TA Act, commencing "as soon as practicable three years after the commencement of the TA Act". The review was to also consider any other related matter that the Attorney-General specified.
During the course of the review, the timeframe for Mr Callinan to provide the report to the Attorney-General was extended to 31 December 2018, a date consistent with the timeframe prescribed in the TA Act.
The Statutory Reviews Terms of Reference are set out at paragraph 2.5 of the report and the brief responses are at paragraph 1.42. Combined they are as follows:
Response: The objectives of the TA Act have not yet been achieved.
Response: The AAT is not operating as a truly amalgamated body; some separation is dictated by differing legislated regimes. To some extent separation is appropriate.
Response: Opinions about decisions often depend upon the philosophy or perspectives of people considering them. There is reason to believe that the AAT is genuinely attempting to promote public trust and confidence:
(a) the AAT is . . . not always meeting community expectations; and
(b) in some respects, differing legislation, practice directions, ministerial directions, guidelines and policies of the AAT do not interact efficiently or effectively.
4. The degree to which legislation, processes, grounds, scope, and levels of review in, and from, the AAT promote timely and final resolution of matters.
Response: Workloads and backlogs in the AAT are preventing timely and final resolution of matters.
5. Whether the AAT’s operations and efficiency can be improved through further legislative amendments or through non-legislative changes.
Response: The AAT’s operations and efficiency can be improved through further legislative amendments or non-legislative changes. These are suggestedin the review.
6. Whether the arrangements for funding the operations of the AAT are appropriate, including ensuring consistent funding models across divisions.
Response: Funding arrangements for the operations of the AAT are neither appropriate nor consistent across Divisions.
The handling of migration cases by the AAT was found to be in need of overhaul to stop applicants ".gaming the system". The shortage of members and resources meant:
Another area of criticism was as to the quality of appointments and it was suggested that all further appointments should be "qualified lawyers appointed on merit”. The review noted frequent criticism by the opposition and the legal profession over the appointment of a large number of former staffers and MPs to the tribunal in recent times. The practice of members seeking advice from staff on the drafting of decisions was considered "not acceptable” and it was suggested that a pool of experienced lawyers should be appointed to act as counsel assisting for migration cases in particular where the law is complex and the volume large.
In the area of taxation matters, the review indicated that more taxpayer disputes should be handled away from court hearings and that the Administrative Review Council (ARC) should be restored after having been discarded in 2015.
In terms of processes, the review suggests that hearings be conducted by telephone and that the AAT should be able to refuse evidence that was not presented before the original decision-maker.
Further recommendations are a restructure of the tribunal’s registry, the reduction of a large number of support staff and the appointment of a Federal Circuit Court judge to manage the lists and review procedures in the AAT.
In his media release, the Attorney-General stated that the Government:
Further, the Attorney-General indicated that "he looked forward to continuing to work with his colleagues and the Tribunal to ensure the amalgamated Tribunal's success", and said that the government would formally respond to the report "in due course."
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