2.1
This chapter provides background information on the operating framework of the Administrative Appeals Tribunal (AAT), including its staffing, funding and reporting requirements. It also provides information on the AAT's recent performance results.
Role and structure of the AAT
2.2
The AAT is an independent statutory body. The Administrative Appeals Tribunal Act 1975 (AAT Act) provides the objectives of the AAT, and stipulates that the Tribunal must pursue a mechanism of review that:
(b)
is fair, just, economical, informal and quick;
(c)
is proportionate to the importance and complexity of the matter; and
(d)
promotes public trust and confidence in the decision-making of the Tribunal.
2.3
The Attorney-General's Department (AGD) observed that:
Merits review through the AAT is an integral part of ensuring good governance, accountability and transparency in public administration and contributes more broadly to better administrative decision making.
Membership and staffing
2.4
The AAT is comprised of a President (who must be a judge of the Federal Court), Deputy Presidents (who may also be judges of the Federal Court or Federal Circuit and Family Court), Senior Members and Members. The AAT members are supported by staff who undertake administrative, corporate and enabling support services.
2.5
The AGD explained that AAT members are either:
… experienced in legal matters, have skills in decision-making or are experts on particular subject matter. They undertake merits review of a broad range of administrative decisions, with a view to reaching the correct or preferable decision in each matter.
2.6
In addition to these members, the Registrar of the AAT assists the President in managing the AAT's administrative affairs and is a statutory office holder appointed by the Governor-General on the nomination of the AAT President. The Registrar is the accountable authority of the AAT for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and is the agency head for the purposes of the Public Service Act 1999.
2.7
The AAT detailed the powers of the Registrar, saying that the position has the power to:
… do all things necessary or convenient to be done for the purpose of assisting the President, particularly in relation to the administrative affairs of the Tribunal. The President may give the Registrar directions about the exercise of the Registrar's powers other than in relation to the Public Governance, Performance and Accountability Act 2013 and the Public Service Act 1999. However, the Registrar must consult with the President in relation to the performance of functions or exercise of powers under those Acts.
2.8
As of 24 November 2021, there were 313 members appointed to the AAT, comprising of 112 full-time members and 201 part-time members.
Merits review
2.9
The AAT can undertake reviews of decisions made pursuant to more than 400 Commonwealth Acts and legislative instruments, which confer jurisdiction on the AAT. The AAT advised that its most reviewed decisions relate to:
family assistance and social security entitlements
migration visas, including business, family, skilled, partner, student and visitor visas, and protection (refugee) visas
the National Disability Insurance Scheme
veterans' entitlements, and
workers compensation under Commonwealth law.
2.10
The AAT is organised into divisions, in order to best meet its legislative objectives. The current Divisions are:
Freedom of Information Division
Migration & Refugee Division (MRD) — which includes the Immigration Assessment Authority (IAA)
National Disability Insurance Scheme (NDIS) Division
Small Business Taxation Division
Social Services & Child Support Division
Taxation & Commercial Division
Veterans' Appeals Division.
2.11
Each Division applies different caseload management strategies to monitor the allocation of resources, the constitution of cases, and performance. The AAT explained there were three reasons for this, being:
(1)
the volume and characteristics of cases across the Divisions varies widely;
(2)
the relevant legislation that governs reviews varies; and
(3)
at the time of amalgamation, the AAT inherited three different electronic case management systems that provide different levels and types of information.
2.12
The AAT explained that its role is to review a decision on the merits, which involves 'considering afresh the facts, law and policy relating to that decision', including:
… taking into account additional information that may not have been before the original decision-maker. The AAT must make the legally correct decision or, where there can be more than one correct decision, the preferable decision based on the evidence before it. In doing so, the AAT has the power to affirm a decision that is under review, vary the decision, set it aside and substitute a new decision or remit a decision for reconsideration by the original decision-maker.
2.13
Since 2016–17, the AAT has received approximately 50 000–60 000 applications each year.
2.14
The AAT observed that since amalgamation in 2015, its workload had grown considerably—particularly the volume of applications for review of migration and refugee decisions. This has resulted in 'challenges in finalising' the caseload in a timely manner. However, the AAT argued that it had:
… demonstrated the quality of its review processes – from lodgement through early case management and pre-hearing processes to hearing and decision-making – consistently achieving high levels of user satisfaction along with low rates of appeals upheld in the courts.
2.15
The AAT supports its members by providing 'administrative, research and case management assistance as well as a comprehensive professional development program', and reviews and adjusts its case management strategies to 'ensure they are efficient and appropriate to each caseload and its users'.
Role of the Attorney-General's Department
2.16
The AGD explained its role alongside the AAT, as undertaking the following functions in support of the Attorney-General in his or her portfolio responsibility for the AAT:
facilitating the appointment of AAT members;
providing advice on the resourcing needs of the AAT;
progressing policy and legislative reforms to 'ultimately provide users with the best experience possible';
supporting the development of best practice decision making by reviewing and providing advice on all draft legislation which raises administrative law issues, via the Office of Parliamentary Counsel;
providing policy advice on administrative law to agencies on an ad hoc basis as part of the policy development process; and
considering proposed policy and legislative reforms across government which may impact on the AAT's functions, jurisdiction and processes, and progressing—where necessary and appropriate—legislative change to support the AAT in the conduct of its business.
Funding for the AAT
2.17
The AAT (and the associated Immigration Assessment Authority (IAA)) is funded through an annual appropriation, with an adjustable component in response to variations in the number of cases finalised in the MRD. The annual appropriation for the AAT in 2021–22 was $227.12 million.
2.18
The AAT advised that its funding arrangements are largely based on the funding models in place prior to the 2015 amalgamation process, and that the funding model for cases in the MRD is a 'significant component of the AAT's funding arrangements'.
2.19
Justice Callinan in his 2018 report found that the funding models in place prior to amalgamation, were effectively 'flat' models that were 'demand driven and based on a pre-determined annual appropriation calculated on expected numbers of applications' in Divisions. Because of this, the funding models do not 'provide for adjustment, either by way of increase or decrease to meet actual changes of numbers within the period of the budget'. The Callinan Report drew specific attention to the MRD, saying that:
The MRD is the Division that is most in need of further funding. It is now funded by a demand-driven model inherited from the former MRT-IRT that varied from year to year depending on the number of applications finalised.
…
There is a real and pressing need for further Members and resources in this Division. Whilst there is such a deficit in it, reviews to be made will multiply, deserving applicants will continue to live in uncertainty, and dishonest or ineligible applicants will be able to remain within the country.
2.20
The AAT noted that how it performs is 'influenced by the legislative and resourcing environment within which it operates', along with other external factors. The AAT submitted that its budget and the appointment of members were 'ultimately a matter for Government'.
Performance and transparency
2.21
The AAT submitted that it must comply with the PGPA Act (including publication of an annual Corporate Plan, and details on performance measurement). The AAT also noted that its operations were subject to scrutiny by government oversight frameworks and bodies, 'including requests made under the Freedom of Information Act 1982 and complaints to the Commonwealth Ombudsman, as well as through external audits, reviews and parliamentary scrutiny'.
2.22
The AAT continued that regarding transparency and in addition to the general public sector accountability framework, it also has a Service Charter which sets out the standards of service people can expect when dealing with the AAT (including a complaints and complaint response framework), and further, it has:
… specific accountability and transparency arrangements that arise from being a tribunal, including the requirement to hold many hearings in public and to give reasons for its decisions, the practice of publishing its decisions and oversight provided by the courts.
2.23
The AAT's submission made the point that 'consistent with a culture of continuous improvement', it regularly reviewed its risk review processes, responded to issues identified in internal and external audit activities and facilitated the implementation of audit recommendations.
Performance results
2.24
The AAT and the IAA have several performance indicators against which they report, as follows:
the number of AAT applications and IAA referrals finalised;
the clearance ratio: the ratio of AAT applications and IAA referrals finalised to applications and referrals received;
the proportion of AAT applications and IAA referrals finalised within 12 months of lodgement;
the number of AAT and IAA decisions published;
AAT user experience ratings derived from the results of an annual user feedback survey (the survey asks parties and representatives to rate their experience of different aspects of the review process, including the application process, dealing with staff and perceptions of overall fairness); and
the proportion of appeals against AAT and IAA decisions allowed by the courts.
2.25
The AAT provided the committee with some information regarding its recent performance and advised that in the period from 1 July 2015 to 30 June 2021, it had 'received more than 300 000 applications and finalised more than 260 000 applications'. In addition, the IAA had 'received and finalised more than 9000 referrals' over the same period. The AAT was of the view that while there have been challenges in meeting its performance targets annually, it has 'performed well against a majority of them over time'.
Caseload report
2.26
Public information on the AAT's caseload shows that for the period 1 July 2021 to 28 February 2022, there were a total of 29 769 applications lodged and 27 269 applications finalised. Additionally, there were 67 909 applications on hand at the end of that time period.
2.27
A breakdown of this caseload information, as published by the AAT, is reproduced in the following table.
Table 2.1: AAT Caseload Report - for the period 1 July 2021 to 28 February 2022
|
|
|
|
|
|
Freedom of Information
|
50
|
54
|
106
|
|
General
|
2485
|
3231
|
2822
|
|
Australian citizenship
|
314
|
495
|
407
|
|
Centrelink (2nd review)
|
775
|
1193
|
673
|
|
Visa-related decisions relating to character
|
232
|
250
|
106
|
|
Workers' compensation
|
759
|
870
|
1277
|
|
Other
|
405
|
423
|
359
|
|
Migration & Refugee
|
14 242
|
13 446
|
56 845
|
|
Migration
|
7070
|
9301
|
21 745
|
|
Refugee
|
7172
|
4145
|
35 100
|
|
National Disability Insurance Scheme
|
4117
|
1818
|
3925
|
|
Security
|
5
|
6
|
26
|
|
Small Business Taxation
|
227
|
213
|
463
|
|
Social Services & Child Support
|
8069
|
7827
|
2441
|
|
Centrelink (1st review)
|
6467
|
6208
|
1751
|
|
Child Support
|
1490
|
1502
|
669
|
|
Paid Parental Leave
|
112
|
117
|
21
|
|
Taxation & Commercial
|
472
|
530
|
1104
|
|
Taxation
|
408
|
426
|
995
|
|
Other
|
64
|
104
|
109
|
|
Veterans' Appeals
|
102
|
144
|
177
|
|
AAT
|
29 769
|
27 269
|
67 909
|
Source: Administrative Appeals Tribunal, Statistics - Caseload reports 2021–2022, https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/AAT-Whole-of-Tribunal-Statistics-2021-22.pdf (accessed 15 March 2022).
The increasing workload
2.28
The AAT remarked that its workload had increased significantly in the period 2015–16 to 2019–20, particularly within the MRD where lodgements in 2017–18 and 2018–19 exceeded 36 000, 'approximately double the number lodged in 2015–16'. The AAT contended that:
… the number of members and staff available to deal with cases did not keep pace with the higher volume of lodgements, resulting in a growing on-hand caseload over time.
2.29
Despite meeting its finalisation target in 2019–20, the AAT suggested that various factors prevented it reaching the projected number of finalisations in other years, including 'lower than anticipated numbers of applications and referrals in some areas of work and lower membership levels'. In addition, the overall timeliness result had been impacted since 2018–19 by 'the growing and ageing on‑hand caseload' in the MRD.
2.30
A decrease of lodgements in 2020–21 occurred largely due to COVID-19, which also allowed the AAT to reach its 100 per cent clearance target 'for the first time since the amalgamated AAT was established, resulting in a decrease in the on-hand caseload'.
2.31
With regard to the number of published written statements of reasons for decisions, the AAT said that:
… the AAT and IAA has exceeded the target since this measure was introduced in 2017–18. Initially set as a target of at least 4,000 decisions, this was increased to at least 5,000 decisions from 2018–19. More than 5,860 decisions made in 2020–21 have been published. The AAT is one of the highest volume publishers of decisions amongst all Australian courts and tribunals.
2.32
The AAT also noted that it had exceeded its 70 per cent user experience rating since the measure was introduced in 2018–19, with a 77 per cent result in 2021. Turning to court appeal results, the AAT observed that the number of appeals 'allowed by the courts in a year should be less than 5% of all AAT and IAA decisions that could have been appealed'. The AAT advised that:
For 2020–21, 2,751 court appeals were finalised with the number of appeals allowed representing 2.3% of all decisions made by the AAT and the IAA in the previous year that could have been appealed: this becomes 1.8% when decisions from the IAA are excluded.