CHAPTER 1

Introduction and Background

Referral of the inquiry

1.1        The Tribunals Amalgamation Bill 2014 (Bill) was introduced into the Senate by the Assistant Minister for Social Services, Senator the Hon Mitch Fifield (Minister), at the request of the Attorney-General, Senator the Hon George Brandis QC, on 3 December 2014.[1]

1.2        Pursuant to a recommendation of the Selection of Bills Committee, on 12 February 2015, the Senate referred the Bill to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 16 March 2015.[2]

Conduct of the current inquiry

1.3        In accordance with usual practice, the committee advertised the inquiry on its website and wrote to a number of organisations and individual stakeholders inviting submissions by 25 February 2015. Details of the inquiry were placed on the committee's website at https://www.aph.gov.au/senate_legalcon.

1.4        The committee received 10 submissions in response to this inquiry. The submissions are published on the committee's website and are listed at Appendix 1 to this report. The committee did not hold a public hearing for this inquiry.

Acknowledgement

1.5        The committee thanks the organisations and individuals who made submissions to the inquiry.

Purpose of the bill

1.6        In his second reading speech, the Minister stated that:

The Tribunals Amalgamation Bill will amalgamate key Commonwealth merits review tribunals—the Administrative Appeals Tribunal (AAT), the Migration Review Tribunal–Refugee Review Tribunal (MRT–RRT), and the Social Security Appeals Tribunal (SSAT).

Merging these tribunals into a single tribunal, which will be called the AAT, will support effective, efficient, and independent merits review into the future...The decision to amalgamate the tribunals represents a return to the more coherent merits review framework that was envisaged when the AAT was established.[3]

1.7        The Minister went on to note that, by drawing on and then preserving the best aspects of each of the existing tribunals, the Bill would simplify the Commonwealth merits review system. The Minister stated:

The amalgamated tribunal will be a single point of contact for persons seeking review of administrative decisions. Tribunal users will benefit from an accessible 'one stop shop' for external merits review, better services and a more consistent user experience...The amalgamation will also create opportunities to simplify and streamline tribunal procedures to better serve users.[4]

1.8        The Explanatory Memorandum (EM) to the Bill argued that the Bill would be directed at the establishment, organisation and procedures of the new tribunal and it would not materially affect the substantive rights of end-users.[5] The Minister highlighted that:

The savings from the amalgamation...[would total] $7.2 million over the forward estimates...Better services and better value for the taxpayer will result from the economies of scale that come from a larger amalgamated tribunal...The size of the tribunal will provide members and staff with opportunities for a broader range of work and enhanced career pathways...Members and staff will have new opportunities to...learn from each other and draw on the best aspects of each of the current tribunals for the benefit of all.[6]

The current law pertaining to the existing tribunals

1.9        The Bill proposes to amend the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to affect the governance, structure, membership and procedure of the Administrative Appeals Tribunal (AAT). The Bill would also abolish the Migration Review Tribunal–Refugee Review Tribunal (MRT–RRT) and the Social Security Appeals Tribunal (SSAT). The Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) are both constituted under the Migration Act 1958 (Cth) (Migration Act) and the SSAT is constituted under the Social Security (Administration) Act 1999 (Cth) (SSA Act). Each of these tribunals will be examined in turn.

The AAT

1.10      The AAT falls within the portfolio of the Attorney-General and provides independent merits review of administrative decisions made by Australian government ministers, departments, agencies and some other tribunals.[7] The objective of the tribunal is to provide 'a mechanism of review that is fair, just, economical, informal and quick'.[8]

1.11      The AAT does not have a general power of review; rather, it can only review a decision if an Act or other legislative instrument specifically provides that the decision is subject to its review jurisdiction.[9] However, the AAT is empowered to review decisions made under more than 400 Commonwealth Acts and legislative instruments. The AAT noted that:

The largest part of the Tribunal's workload arises from applications about decisions in the areas of family assistance and social security, taxation, veterans' affairs and workers' compensation. The Tribunal also reviews decisions in areas such as bankruptcy, child support, citizenship and immigration, civil aviation, corporations and financial services regulation, customs, freedom of information, industry assistance, mutual recognition of occupations, passports and security assessments by the Australian Security Intelligence Organisation (ASIO).[10]

Constitution

1.12      In order to facilitate its workload, the AAT is broken up into various divisions, including the General Administrative Division, the Medical Appeals Division, the National Disability Insurance Scheme Division, the Security Appeals Division, Taxation Appeals Division, the Valuation and Compensation Division and the Veterans' Appeals Division.[11]

1.13      The AAT is made up of the President, other presidential members (who may be judges or Deputy Presidents), the Registrar, Senior Members and Members. The President must be a judge of the Federal Court. The Deputy Presidents must have been enrolled as a legal practitioner for at least five years, while a senior member need not have legal expertise but be able to show special knowledge or skills relevant to his or her duties.[12] Tribunal members may currently hold office for a maximum of seven years, but a serving officer may seek re-appointment.[13] Finally, the AAT Act provides that the Governor-General may only remove a member from office after a request for the removal from both Houses of the Parliament on grounds of proved misbehaviour or incapacity.[14]

Procedure

1.14      Interested parties have a right to be heard by the AAT, and they may appear in person or may be represented by some other person.[15] However, the tribunal may decide to determine a matter on the papers if the tribunal is satisfied that the issues could be adequately determined in the absence of the parties and all parties consent to the decision.[16]

The MRT–RRT

1.15      The MRT–RRT falls within the portfolio of the Minister for Immigration and Border Protection. The tribunals conduct merit reviews of visa and visa-related decisions made by the Department of Immigration and Border Protection. The tribunals make decisions within the legislative framework of the Migration Act, in the same way as the primary decision maker would have done, and may exercise all the powers and discretions conferred on the primary decision-maker by the Migration Act. The RRT reviews decisions relating to protection visas, while the MRT reviews decisions relating to other types of visa. The MRT and the RRT are expected to conduct reviews that are 'independent, fair, just, economical, informal and quick'.[17]

Constitution

1.16      The MRT and RRT are comprised of a Principal Member, Deputy Principal Members, a Registrar, senior members, and members.[18] Members may be appointed by the Governor-General for a period of no more than five years, but a member is eligible for re-appointment.[19] The Governor-General may remove a member from office on the ground of proved misbehaviour, physical or mental incapacity, bankruptcy and related grounds, being absent without leave, engaging in outside employment without permission, failing to disclose interests or having specified interests.[20]

Procedure

1.17      An affected party who has a right to review under the Migration Act, may apply for review to the MRT-RRT in the prescribed form and within the prescribed period.[21] Both the MRT and the RRT must invite the applicant to appear at a review hearing.[22] Should the applicant fail to appear, the relevant tribunal may determine the review without taking any further action to allow or enable the applicant to appear before it.[23] In the MRT, generally, oral testimony is to be given in public;[24] whereas, hearings for the RRT must be conducted in private.[25] Examination or cross-examination is not permitted in either tribunal.[26] In the MRT, the applicant may have another person present at the hearing, to assist him or her, but that assistant may not present arguments to the tribunal.[27] In the RRT, a person appearing before the tribunal may not be represented before the tribunal by any other person.[28] Finally, the Principal Member of the MRT or the RRT may, if the Principal Member considers that the case involves an important principle, or issue, of general application, refer the matter to the President of the AAT.[29]

The SSAT

1.18      The SSAT falls within the portfolio of the Minister for Social Services. The role of the SSAT is to provide independent merits review of administrative decisions using a mechanism of review that is 'fair, just, economical, informal and quick'.[30] The SSAT can only review a decision if an Act or regulation or other legislative instrument specifically provides that a decision is subject to review by the SSAT. As noted by SSAT:

The SSAT reviews decisions made under twelve Commonwealth Acts including the Social Security Act 1991, Social Security (Administration) Act 1999, A New Tax System (Family Assistance) Act 1999, A New Tax System (Family Assistance) (Administration) Act 1999, Paid Parental Leave Act 2010, Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.[31]

Constitution

1.19      The Tribunal consists of a Principal Member, Deputy Principal Members, the Registar, senior members and members.[32] Members may be appointed by the Governor-General for a period of no more than five years, but a member is eligible for re-appointment.[33] The Governor-General may remove a member from office on the ground of proved misbehaviour, physical or mental incapacity, bankruptcy and related grounds, being absent without leave, engaging in outside employment without permission or failing to disclose interests.[34]

Procedure

1.20      The SSA Act provides that a person whose interests are affected by a decision of the Secretary, if that decision is a reviewable decision, may apply to the SSAT for a review of that decision.[35] A party may make oral and/or written submissions to the SSAT, or, with the permission of the Principal Member, may have another person make submissions to the SSAT on his or her behalf.[36] The Principal Member may direct that a hearing be determined on the papers if satisfied that the issues could be adequately determined on the basis of written submissions and all parties consent to the decision.[37] The SSAT hears matters in private and the Principle Member may give directions as to who may be present at any particular hearing.[38]

1.21      The SSA Act provides a second tier of review, allowing an interested party to apply to the AAT for review of a decision of the SSAT to affirm, vary or set aside an earlier decision of the Secretary of the Department of Human Services.[39]

Structure and key aspects of the Bill

1.22      The Bill is comprised of nine schedules. Schedule 1 proposes to amend provisions of the AAT Act, Schedule 2 proposes to amend Migration Act and other Acts in relation to migration, Schedules 3 to 7 propose to amend the relevant social security legislation, Schedule 8 proposes to make other consequential amendments and Schedule 9 proposes to provide for transitional and savings provisions.

Key provisions of the Bill

1.23      The EM provides that the Bill was developed in close consultation with key stakeholders to produce an amalgamated tribunal (amalgamated AAT) that adopts the key features and procedures of each of the existing tribunals. According to the EM, the Bill would aim to promote a governance structure to maximise knowledge and skill sharing across the new specialist divisions of the amalgamated AAT and provide better informed decisions without the need for duplication of processes, so as to make the amalgamated AAT simpler and more accessible to stakeholders than the existing tribunals.[40]

New objective

1.24      The Bill proposes to update the objective of the amalgamated AAT, requiring the amalgamated AAT to provide a mechanism of merits review that is: accessible; fair, just, economical, informal and quick; proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision-making of the amalgamated AAT.[41]

Governance, membership and structure

1.25      The Bill proposes that the amalgamated AAT would consist of a President, Deputy Presidents, two levels of senior members and three levels of members together with a Registrar and other officers.[42] The President would have to be a Judge of the Federal Court, a Deputy President would have to be a Judge of the Federal Court or Family Court, or enrolled as a legal practitioner in an Australian jurisdiction for at least five years or have the special knowledge or skills required to act in the office. Other members of the amalgamated AAT would have to have been enrolled as a legal practitioner in an Australian jurisdiction for at least five years or have the special knowledge or skills required to act as a senior member or member respectively.[43] All members would be eligible for appointment for a maximum period of five years but could be re-appointed.[44] The Bill would also create the positions of division heads and deputy division heads. The division head would have the function of assisting the President, by directing the business of the amalgamated AAT in the division to which he or she is assigned, while the deputy division heads would assist the relevant division head in performing his or her role. Only Deputy Presidents could be assigned as division heads, while Deputy Presidents or senior members could be assigned as deputy division heads.[45]

1.26      The Bill would prohibit a full-time member from engaging in paid employment outside his or her role without the approval of the President. Further, a part-time member could not engage in paid employment outside his or her role if, in the opinion of the President, that employment conflicts or may conflict with the proper performance of his or her duties. Under the provisions of the Bill, a member's appointment could be terminated by the Governor-General on grounds of misbehaviour, physical or mental incapacity, bankruptcy and related grounds, being absent without leave, engaging in outside employment without relevant approvals, failing to disclose interests or holding specified interests.[46]

1.27      In order to facilitate the proposed tribunal's workload, the Bill would establish six divisions of the amalgamated AAT and allow for other divisions to be prescribed. The specified divisions would be the General Division, the Migration and Refugee Division, the National Disability Insurance Scheme Division, the Security Division, the Social Services and Child Support Division, and the Taxation and Commercial Division. The Attorney‑General would have to assign division heads, deputy division heads and other non-presidential members to one or more divisions of the amalgamated AAT, after consulting with the President. Before assigning any member to the Migration and Refugee Division, the National Disability Insurance Scheme Division, the Social Services and Child Support Division, or the Taxation and Commercial Division, the Attorney-General would also have to consult with the relevant Minister administering the portfolio. Moreover, a member who is or has been an employee of ASIO or an affiliate or acted as the Director-General of Security could not be assigned to the Security Division. Finally, the Bill proposes to allow proceedings in all divisions to be constituted by up to three members, but only one of those members could be a Judge.[47]

Procedures

1.28      The EM notes that:

...the Bill does not seek to make significant changes to procedures that currently apply in the AAT, MRT-RRT and the SSAT. Instead, recognising that distinctions in procedure across the tribunals are appropriate to their particular cohorts of applicants and caseloads, the Bill seeks to preserve successful processes and features of the existing tribunals.[48]

1.29      However, the Bill proposes to make a number of minor amendments to the existing legislative framework. For example, the Bill would create a new rule that would exonerate the tribunal from a failure to comply with the written directions of the President, as such a failure would not invalidate the reasoning or determination of the tribunal.[49]

1.30      Another example of a proposed amendment in the Bill is that the Bill would allow for any party to be represented by another person before the amalgamated AAT, unless the matter is to be heard in the Social Services and Child Support Division. If the matter were heard in the Social Services and Child Support Division, a party could only be represented by another person with the permission of the tribunal. The Bill would also allow any person who is compelled to appear, with the permission of the tribunal, to be represented by another person.[50]

1.31      The Bill also proposes to add a provision that would allow the amalgamated AAT to conduct a second tier review of a social services matter on the papers without the consent of the parties if the tribunal deems that the matter can be adequately determined in the absence of the parties.[51]

Penalties

1.32      The Bill would make the penalty for committing any offence under the amended Act imprisonment for 12 months or a fine of 60 penalty units, or both. Offences could include failing to comply with an order or summons of the amalgamated AAT, refusing to be sworn or to answer questions, breaching a non‑disclosure order, obstructing or hindering the work of the amalgamated AAT or engaging in conduct that would constitute a contempt, if the amalgamated AAT were a court of record.[52]

Migration-specific amendments

1.33      The EM notes that the migration-specific amendments in Schedule 2 of the Bill would abolish the MRT and the RRT and transfer the jurisdiction of these tribunals to the amalgamated AAT. The EM also states that the existing codes of procedure in Parts 5 and 7 of the Migration Act would be preserved by the Bill.[53] However, the Bill proposes to remove provisions that allow for the referral of decisions involving an important principle, or issue, of general application to the President of the AAT.[54] The Bill also proposes to repeal a provision related to visa applications made prior to 30 June 1993, where the member of the RRT makes a decision in the capacity of a delegate of the Minister.[55]

Amendments to social security legislation

1.34      Schedule 3 to Schedule 7 of the Bill would make amendments to the relevant legislation on social security, child support, family assistance, paid parental leave and student assistance. More specifically:

• Schedule 3 proposes to amend the Social Security Act 1991 (Cth) and the SSA Act;
• Schedule 4 proposes to amend the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) and the Child Support (Assessment) Act 1989 (Cth);
• Schedule 5 proposes to amend the A New Tax System (Family Assistance) Act 1999 (Cth) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth);
• Schedule 6 proposes to amend the Paid Parental Leave Act 2010 (Cth); and
• Schedule 7 proposes to amend the Student Assistance Act 1973 (Cth).

1.35      As noted in the EM, the effect of these amendments would be to abolish the SSAT and transfer the SSAT's jurisdiction to the amalgamated AAT, ensuring that the key procedural rules affecting these matters would be preserved.[56] However, the proposed repeal of Division 3 of Part VIII of the CSRC Act would also have the effect of removing the jurisdiction of the Family Court to hear appeals from the Federal Circuit Court on a first review of a child support matter. The jurisdiction to hear these appeals would be moved to the Federal Court of Australia.[57]

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