Justice David ThomasThe Administrative Appeals Tribunal continued to face a challenging operating environment in 2018–19 as a result of the significant increases in our workload over recent years. The appointment of more members and our ongoing efforts to implement innovative strategies for dealing with our caseload enabled us to finalise the largest number of cases in any year since the AAT was created. This is an achievement of which we can be proud. We remain concerned, however, about the growing number of cases we have on hand and the increasing age of those cases. With the number of members and staff and the financial resourcing currently available to us, we are unable to keep pace with the level of demand for our services.
The Tribunal is a key feature of Australia’s system of administrative review. The Kerr Committee, whose recommendations led to our establishment, made the observation that ‘a person aggrieved by a decision of a Commonwealth official… will generally feel that the decision was wrong on the facts or merits of the matter’. This goes to the heart of the significance of the AAT’s role. Whereas the courts provide an opportunity for review of decisions on the grounds of legal error, the AAT’s function is to look at the merits and determine what is the correct or preferable decision based on all of the available evidence before it, the applicable law and lawful policy. During the 43 years since the AAT was established, the ability for individuals and organisations to seek independent merits review of administrative decisions has become a concept that underpins the democratic functioning of our society.
The proper operation of the system is weakened, however, when there is undue delay in reviewing decisions.
In the 2018–19 reporting year, we received just over 60,000 new applications, the highest ever number of lodgements in a single year. While this was only three per cent more than the previous year, it is 46 per cent more than were lodged in 2015–16. The largest volume of applications was lodged in the Migration and Refugee Division, which has also seen the largest increases over time with applications doubling since 2015–16 to more than 36,000 in both 2017–18 and 2018–19. Lodgements in the Social Services and Child Support Division were the next highest caseload, increasing by 24 per cent in this reporting year and bringing us close to the high number of lodgements we received in 2016–17 in that division.
The concerted effort of our members and staff enabled us to finalise more than 44,000 cases in the reporting year, 11 per cent more than in 2017–18. Finalisations in the Migration and Refugee Division increased by 16 per cent. The number of cases on hand has continued to grow, however, reaching almost 69,500 at 30 June 2019, a 30 per cent increase from 30 June 2018. While we were able to meet our performance target of finalising 75 per cent of applications within 12 months of lodgement in most divisions, the aging caseload in the Migration and Refugee Division meant that the AAT as a whole was only able to finalise 66 per cent of applications within 12 months of lodgement.
In relation to the quality of AAT reviews, I am pleased to report that we performed well against our judicial review performance measure in 2018–19. The number of appeals allowed should be less than five per cent of all AAT decisions that could have been appealed. The result for the reporting year was 2.3 per cent.
In 2018–19 the Immigration Assessment Authority maintained its strong performance in the context of a 31 per cent drop in the number of referrals to review fast track protection visa decisions to approximately 1,500. With almost 2,400 decisions made, the number of referrals on hand at the end of the reporting period reduced to 92. The average time to finalise referrals was 12 weeks.
We welcomed the appointment of 85 new members this year, including more than 30 sessional members assigned to assist with the workload in the Migration and Refugee Division. Forty‑five of our existing members were reappointed, with some promoted to a higher membership category. We also welcomed the assignment of Deputy President Peter Britten‑Jones as the Head of the General Division. The appointments of 23 members ended in 2018–19 and I thank them all for their steadfast commitment to the AAT. I particularly thank Deputy President Jim Walsh, the inaugural Division Head of the Social Services and Child Support Division, for his dedicated service and his leadership, especially throughout periods of significant change faced by the division.
Member professional development remained a focus during the reporting year. Given the number of new members, we held four induction sessions in December, February and May, during which they received legal and practical training relevant to their role, including observing hearings. Our Division Heads, along with some of our most experienced members, staff and external speakers, shared their expertise with the groups on undertaking alternative dispute resolution processes, conducting a hearing, procedural fairness and the art of decision-making. We also offered professional development for our existing members, including training for members seeking to develop their alternative dispute resolution skills and those cross‑assigned to undertake new areas of work during 2018–19.
With 362 members at 30 June 2019, we now have 14 more members than the total combined membership of the former tribunals just prior to amalgamation and the highest number of members since amalgamation. The increase in our membership has shown immediate benefits in terms of our output in this reporting period and we expect this to increase even further in the year to come. Almost 24 per cent of our current members commenced with the AAT within the last 12 months and they will increase their capacity as they develop knowledge and experience in their new roles.
Improving our review processes
The establishment of the Small Business Taxation Division was a key development for the Tribunal in 2018–19. Commencing on 1 March 2019, the new division has been introduced as one of a number of measures to make it easier for small businesses to seek review of decisions of the Australian Taxation Office. We take seriously our commitment to developing processes that are adapted to those who are seeking review of decisions and we developed a bespoke case management model for this division. In addition to assigning a dedicated case manager for each case, we are aiming to finalise the cases in an economical, informal and timely manner. In particular, we will use ADR to encourage the parties to reach an agreed resolution and avoid a hearing where possible, including trialling conciliation by way of webconferencing to seek to accommodate the needs of busy small business people. The assignment to the division of members with relevant expertise who can participate in ADR processes and conduct hearings strengthens the capacity of the division to achieve its aims.
Given the size of our workload, we continued to explore and implement in relation to our other areas of work case management and other strategies that aim to deliver more effective and efficient review processes and make best use of our resources. In the Migration and Refugee Division and the Social Services and Child Support Division, divisional leaders worked with staff to identify further opportunities to help with triaging cases to identify the most appropriate case pathway, improve the preparation of cases for hearing and, where possible and appropriate, assist to resolve cases without the need to conduct a hearing. The development of a smart form enabling applicants in certain student visa cases to submit relevant information online demonstrates one of the ways in which technology can be used to support our review processes. In our other divisions, conference registrars, who hold legal qualifications and accreditation as mediators, used ADR processes to resolve a sizeable portion of cases without the need for a substantive hearing and ensure those cases that are not resolved are prepared for hearing. Employing these various strategies enabled our members to focus on hearing and deciding the large number of cases that require formal determination.
While we remain somewhat constrained by the current legislative framework to introduce additional case management strategies, particularly in the Migration and Refugee Division, I am heartened by what we have achieved to date.
During the reporting year, we participated actively in the review of the amalgamated AAT required by the Tribunals Amalgamation Act 2015 and carried out by the Hon Ian Callinan AC. In addition to our formal submission to the review, we met with Mr Callinan and provided further information about our operations. Following the tabling of the report in Parliament on 23 July 2019, we have been carefully reviewing the report’s content and recommendations. We will seek to work closely with Government in 2019–20 in relation to the development of its response to the report and to progress reforms that strengthen our capacity to perform to the best of our ability the critical role the Parliament has conferred on us.
As both the former President and I have noted in previous annual reports, the AAT is keen to pursue legislative reforms, particularly those that would reduce legacy differences between divisions, to maximise our flexibility to tailor our procedures to best suit the requirements of particular cohorts of cases. The statutory review report includes recommendations for changes of this kind. Our caseload ranges between cases that require an assessment of straightforward and objective criteria through to other matters that involve the exercise of discretion in complex factual settings or the resolution of very complex factual and legal questions. Reforms which would support appropriate pathways for those more straightforward cases, which are often in high-volume areas, would contribute to the AAT’s ability to meet that part of our statutory objective which requires us to seek to provide a mechanism of review that is proportionate to the importance and complexity of matters.
While we will continue to develop new ways in which to manage our workload and increase the number of cases we finalise with the resources available to us, the size of our backlog and the incoming workload, particularly in the Migration and Refugee Division, will require the appointment of additional members. We will engage further with Government in relation to this in 2019–20. The appointment processes for any new members will be undertaken in accordance with the protocol agreed between the Attorney-General and I during the reporting year which involves, as a first step, a publicly advertised call for expressions of interest. We have started working with the Attorney‑General’s Department on creating a register of those people who express interest and other processes associated with the protocol.
In relation to existing members, the protocol outlines the processes regarding reappointment. A key focus for 2019–20 which is related to this will be the reinvigoration of our member evaluation and appraisal processes which, in addition to being relevant to my reappointment recommendations for those members approaching the end of their term, will assist members, and particularly newer members, to assess their progress and identify areas for further development. These processes, along with other professional development activities, will support members to conduct fair processes and produce quality decisions. We will also continue to work towards standardising members’ terms and conditions of office, including harmonising part-time member remuneration arrangements where possible, to facilitate members working more easily across the AAT’s divisions.
While the scale of the task is not insignificant, I look forward to working collaboratively with members and staff, as well as with the Government, in the year ahead to address the challenges we face, identifying and implementing changes to our way of operating that will help us deliver on our statutory objective.