In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.
The July report of the Callinan Review of Commonwealth administrative law states
1. The objectives of the Tribunals Amalgamation Act 2015 have not yet been achieved.
2. The AAT is not operating as a truly amalgamated body; some separation is dictated by differing legislated regimes. To some extent separation is appropriate.
3. 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, for the various reasons that I have stated, 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. Workloads and backlogs in the AAT are preventing timely and final resolution of matters.
5. The AAT’s operations and efficiency can be improved through further legislative amendments or non-legislative changes. I have suggested some measures for those.
6. Funding arrangements for the operations of the AAT are neither appropriate nor consistent across Divisions.
Callinan comments
The absorption of the Migration Review Tribunal (“MRT”) and the Refugee Review Tribunal (“RRT”), because of their very different legislative regimes and practices, into an amalgamated tribunal, was never going to be an easy task. The difficulties have been immensely compounded by the intimidating backlog of cases in the Migration and Refugee Division (“MRD”) of the AAT. Either or both of two solutions might not be enough to eliminate or even much reduce the backlog, or indeed, cope with its likely increase. The first possible solution, of radical changes to migration law and practice, is a political matter and not within my remit. The second is however, that the deficiency of numbers of Members in the MRD be immediately addressed by the appointment of no fewer than 15 to 30 Members, some only of whom should be part-time Members.
Measure 1 An event has overtaken, in part, the measure that I thought essential: an immediate enlargement of the Membership of the MRD, that is the appointment on the 29th of November 2018, within days of the completion of my Report, of 33 legally qualified, part-time, Members to the Division. Because, however, there were more than 53,282 applications on hand on 30 June 2018, the welcome appointment of those 33 part-time Members is unlikely to bring the backlog of cases into manageable proportions without further appointments of, preferably, full-time, appropriately legally qualified, Members.
1.4 Case management as it is now conducted in the AAT is a matter of concern. Differences in practice and procedure, as well as competencies of Members, complicate the operation of the AAT. There is a clear need for a coordinator and manager of the totality of the AAT’s workload in consultation with, and as a delegate of, the President. An appointment of a person to fill that role is, in my view, urgent and necessary. The person who is to fill the role should be a Federal Circuit Court judge as a persona designata. I have been unimpressed by suggestions that have been made to me that the designated person should not be a Federal Circuit Court judge because Deputy Vice Presidents of the AAT are paid a larger salary than a Federal Circuit Court judge, albeit that a Federal Circuit Court judge is a Chapter III appointment and has tenure and other prerequisites of office. Public service pay scales and the settings of the Remuneration Tribunal should not be allowed to defeat essential reform and administrative efficiency. The person holding the office would be acting as the President’s delegate, that is, with the authority of the President. There are many instances in public affairs of the payment of lower remuneration to those who are in charge than those whose duty it is to carry out his or her wishes. Having regard to the present tensions to which I refer in detail in this report, I think it would be better if the appointment to the office were of a person external to the AAT. In Queensland, for example, and in other States, the President of the relevant Civil and Administrative Tribunal is a Supreme Court judge and the Deputy President is a District or County Court judge. That arrangement works well.
Measure 2 Appoint a suitable and qualified person, a new Federal Circuit Court Judge, to be a full time Judicial Deputy President of all Divisions, to exercise the function of a Senior Case Manager, to arrange and allocate work of the Divisions of the AAT, in consultation with, and as the delegate of, the President, to ensure that the resources of the AAT are used in the most efficient, expeditious and fair performance of the work possible. The Federal Circuit Court judge so appointed would be expected to hear matters in the AAT and cases in the Federal Circuit Court, as available from time to time.
Measure 3 Case management under the direction and supervision of the Federal Circuit Court judge/full-time Judicial Deputy President (Senior Case Manager) in consultation with the Division Heads will, from time to time, have to be done at the State level in the larger Divisions. That management should ordinarily be done by the Senior Member of the relevant Division in each State, or if appropriate, two States and a Territory, under the overall management and direction of such a Member, a practice leader. The National Practice Managers would no longer be required and may be able to be re-deployed as Members to hearing duties in the MRD. The “discount” from the number of cases that national practice managers in the MRD are now afforded by reason of their duties of case management will no longer be justified.
1.5 There is in the MRD a “Dashboard”, a display of the numbers of matters finalised by each Member from time to time, a target in effect disguised as a “benchmark”. It has proved to be a distraction of the Members from their work. The work of a Member, as with that of a judge, is not to be evaluated exclusively on a quantitative basis. The complexity of matters is variable. Quantitative evaluation can only be a partial and not always reliable measure of performance. The adoption of the benchmark is driven to some extent by the system of funding of the MRD. I do not think that it serves any practical purpose.
Measure 4 Consideration should be given to the removal of the “Dashboard” in the MRD.
1.6 Case management should include the holding of conferences, directions hearings, alternative dispute resolution (“ADR”) of all kinds, including mediations (adjudicative or evaluative), conciliations, and like procedures. All of these should be done by Members, and not by Registry staff. The distinction between the work that the Registry may do, and the work that the Members should do, has become blurred. Conferencing, particularly in an administrative tribunal, can much more readily and fluidly evolve, and productively so, into a conciliation or a mediation, even an adjudicative mediation if agreed. The Members have made an affirmation or oath of office. The expectation of the community would be that a Member and not a Public Servant conduct every episode (event) of an applicant’s application.
1.7 Training is not enough to make a competent practitioner of ADR. An effective mediator needs to have the trust and confidence of the parties. An effective mediator engages in a process of gaining the confidence of the parties, gentle testing and coaching of parties in their cases, and needs to have a good knowledge of the applicable law and the relevant facts. It is wrong to think that a person who possesses merely training and formal qualification will for those reasons enjoy the confidence of the parties and possess the knowledge and versatility required to conduct ADR. The role of registry staff in conferencing should be restricted to conferences for the purpose of ensuring that the formal requirements of a valid application have been and are being met.
Measure 5 All conferences (except as to purely formal matters of compliances) and forms of ADR should be done by Members, and not by Registry staff.
1.8 Much of the work of the AAT is difficult, factually and legally. Capacity to undertake forensic analysis and write reasoned judgments is essential. The better qualified, legally and otherwise, an appointee is, the more opportunity there will be for that appointee to sit in a number of Divisions and, therefore, to facilitate the amalgamation. Application of the 2015 Appointments Protocol to the Administrative Appeals Tribunal is desirable, with the qualification that the appointee must have the legal qualification and the capacity to which I have referred, and be appointed on merit. That Protocol at point 3 states: “… for ... positions, the Attorney-General will seek expressions of interest by public advertisement. The Attorney-General’s Department (AGD) will establish a register to receive applications that address selection criteria developed specifically for the AAT.”
Measure 6 All further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia, and on the basis of merit (a possible exception is appointment to the Taxation and Commercial Division to which competent accountants might be appointed). This may happen without repeal of s 7(3)(b) of the AAT Act, although repeal is, for certainty, desirable.
1.9 Subject to s 17F of the AAT Act, henceforth all appointees (Members) to the AAT should be appointed to and available to sit in all or any Divisions of the AAT as directed by the President from time to time. Before making appointments, the Minister would be free to make such consultations as the Minister sees fit. If the Minister were not to delegate the power of assignment to the President pursuant to s 10A of the AAT Act, the consultation required by ss 17C to 17J should take place in a timely way so that the Member appointed can take up his or her duties immediately upon appointment to the AAT.
Measure 7 Amendments to the arrangements for the assignment of Members to the Divisions, according to workload, is desirable. At present, some Divisions are not nearly as busy as others. The MRD and the Social Security and Child Support Division (“SSCSD”) are always hard pressed. Others have decisions outstanding for long times. The MRD also will become busier. Flexibility in the deployment of Members is desirable and likely to enhance harmonisation.
1.10 Each full-time Deputy President and full-time Senior Member of the AAT needs to be assisted by a “Clerk Assistant”. That is the title appropriate to the position and not the one presently, but not universally, of “Associate” used within the AAT. Inflation of job title should be avoided. “Member Support Officer” or “Associate” is an unnecessarily grand title for the mainly clerical job to be done and which should be done at the lowest reasonable cost to the public.
Measure 8 Each full-time Deputy President and full-time Senior Member of the AAT needs to be assisted by a “Clerk Assistant”. The term “Associate” that Members of the General and other Divisions tend to use for their assistants is an unnecessarily grand title for the largely clerical job to be done and which should be done at low cost to the public. There should be appointed a further group of Clerk Assistants in each State Registry to provide a pool of Clerk Assistants available for assignment to full-time Members especially in, but not confined to the MRD, and part-time Members as sought and approved by the Vice President or Executive Member of the relevant State Registry after consultation with the President or the President’s delegate. These “non-assigned” Clerk Assistants should have the qualifications and be selected and engaged in the same way as assigned Clerk Assistants. The “non-assigned” Clerk Assistants will support the full-time Members and part-time Members to whom they are assigned from time to time.
Measure 9 The Clerk Assistants should be: (a) engaged for two years at Level 4 of the Australian Public Service; (b) selected, after advertisement for applicants, by a selection panel consisting of the Federal Circuit Court judge referred to earlier, the President as Chair, if he or she wishes, a non-judicial Deputy Presidential Member, another Senior Member and a Registry Official nominated by the President; (c) answerable and reporting to the Member to whom he or she is assigned as Clerk Assistant, in the performance of his or her work of assisting and supporting that Member; and a person who has successfully completed no fewer than ¾ of the subjects required for a degree in law by a recognised Australian University.
1.11 Members may and should discuss in a collegiate way the legislation and decisions relevant to their work. There is no need for, and it is not appropriate that Registry staff, whether by preparing “templates” for decisions, or giving “legal advice” to Members, participate in making or writing, or assisting in writing, decisions by Members. The role of the Registry is to support the Members by obtaining and providing to the Members, all necessary resources to enable them to decide cases. Those resources should include a non-intrusive but responsive library, staffed by legal librarians, who collate and publish to the Members, on a regular basis, relevant legislation, decisions of Members and of the Courts. The expectation of the Community is, surely, that the whole of the decision making process is undertaken by the Members and not staff of the Public Service, however well-intentioned that staff may be. I have no doubt that the expectation of the community is that decisions of the AAT are truly and exclusively the work of Members.
Measure 10 The practice of seeking advice from staff by Members should be restricted to requests for the provision of relevant material from the library. Any request by a Member, for the review of or advice on the drafting of decisions is not acceptable.
1.12 The Registry’s whole purpose should be reinforced in the minds of its staff, that it is to support the Members. Registry staff should be courteous and appropriately respectful to Members, especially during hearings or in the presence of applicants and other parties to matters in the AAT. Members, too, need to be courteous and respectful to the Registry.
Measure 11 The new Federal Circuit Court judge (Senior Case Manager) should be able to take all such measures as are appropriate to instil in the staff of the Registry and the Members a practice of courtesy and reciprocal support.
1.13 Engagement of external contractors should be reduced. A deal of the work done by external contractors in the last three years is properly the work of Registry staff. I have learnt that, even by the time of my discussion with the Registrar on the 13th of November 2018, the AAT had engaged a further external consultant at an unstated cost. This engagement is, to say the least, premature, and I think entirely unnecessary, being undertaken, as it is, before even the Parliament and the Attorney-General have considered and decided which, if any of the measures I suggest, might be adopted. Routine work of the Registry is not a “project”. Nor in general does the Registry require logos or designations of a “programme” or “project”, even if one were to assume that either is something more than the performance of the Registry’s ordinary functions. Unnecessary time and money should not be spent on travel, meetings and discussions between Registry staff, for example, in furtherance of the “Registry Transformation Program” initiated at a time when this review was imminent or undertaken. There are five people in the Registry who are Senior Executive Staff in the Public Service. Their profession is administration. It is for them not external consultants to administer the AAT and its amalgamation.
Measure 12 The AAT should not engage external consultants to do or assist it to do administration. Notwithstanding the Registrar’s statutory power to enter into contracts and the delegation to the Registrar of authority to expend money, as a general practice, external consultants should not be engaged to do administrative work without prior consultation with and approval of the Attorney-General.
1.14 The Second Review by the General Division of the decisions of the SSCSD should be removed. The provision of a Second Tier of review comes at an expense of time and money. It is discordant with the opportunities for review of decisions in other Divisions. Its existence is a legacy of the absorption of the Social Security Appeals Tribunal (“SSAT”) by the AAT. The existence of a second review may discourage careful attention to the making of decisions within the Department and in the First Tier of the AAT. In suggesting this measure, I have taken into account the Department’s as well as other submissions to the contrary, and relevant statistics.
Measure 13 The Second Tier of review by the General Division of the SSCSD should be removed.
1.15 Elements of the support staff of the AAT appear to be unnecessarily and expensively numerous. The Registry should be restructured. That restructure should occur generally in accordance with the organisation chart below to enable redeployment and a reduction of staff to occur, as appropriate, in an orderly manner. External consultants need not be engaged to do this. It would best be done by a small standing committee consisting of the President, the Federal Circuit Court Judge/Senior Case Manager, the Registrar, and such other officials as the President may nominates from time to time.
1.16 The role of the Executive Deputy Presidents, presently Deputy Presidents assigned by the President to manage the state registries, provides the necessary local focus and point of contact between the President and Division Heads with respect to the conduct of AAT business in each state. There are, however, substantial variations between the registries as to numbers of Members, their levels of appointment, the proportion of full-time and part-time Members, and caseloads.
Measure 15 The role of the Executive Member (State Manager) appointed by the President should be retained, but not restricted to Deputy Presidents, and could possibly be filled by a Senior Member in the smaller State registries, with non-judicial Deputy Presidents appointed in the larger registries of Sydney, Melbourne and possibly Brisbane.
1.17 The appointment of Division Heads and Deputy Division Heads should be by the President by way of delegation from the Minister or amendment to the AAT Act. Equally dependent upon the volume of applications and complexity of the matters within a Division the role of Division Head should not be restricted to non-judicial Deputy Presidents. Equally the appointment of a non-judicial Deputy President or Senior Member as a Division Head by the President should be a term as determined by the President from time to time.
Measure 16 The appointment of all future Division Heads and Deputy Division Heads as such should be made by the President, by way of a delegation of the Minister’s powers by instrument (s 10A of the AAT Act) or amendment to the AAT Act. These roles could be filled by a Deputy President or Senior Member dependent upon the volume of applications and complexity of matters within the respective Division. The term of any such appointment would be at the discretion of the President.
1.18 As noted in this Report, hearing rooms tend to be allocated to respective Divisions within the AAT throughout the Registries. The larger more formal rooms have generally been retained for the exclusive use of the General and Other Divisions and not available for use by Members hearing applications in the SSCSD or MRD, even when the matter may involve multiple parties, witnesses or a large volume of material.
Measure 17 Hearing rooms should not be assigned to Divisions but rather be available to all Divisions dependent upon the nature of the hearing and the need for a specific size of hearing room.
1.19 A strong case has been made for measured limitations upon the often changing material upon which an applicant to the MRD may presently rely. Why this is so is explained in more detail elsewhere in this Report. I was told by several Members of the MRD that during delays in hearings not a small number of applicants contrived situations to support a favourable decision, or ground for appeal to the courts. In Shi v Migration Agents Registration Authority, the High Court said at [99]: “Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.”
Measure 18 Consideration should be given to legislation for a new information rule conferring a wide discretion upon the AAT to receive or refuse evidence not before the original decision-maker.
1.20 Presently the manner and form in which documents are received by the AAT varies between the Divisions. The MRD is conducting a trial of electronic lodgement of documents with the Department of Home Affairs (“DHA”). Only files for matters within the jurisdiction of the General Division, however, are regularly prepared properly and in accordance with s 37 of the AAT Act. All files should be in conformity with the section, complete, paginated, and in chronological order when they reach the AAT.
Measure 19 All files and documents provided to the AAT should be prepared and organised by the respective Departments generally in accordance with s 37 of the AAT Act.
1.21 The next measure is self-explanatory.
Measure 20 The power of the AAT to remit matters as provided in s 42D (Power to remit matters to decision-maker for further consideration) should be conferred upon all Divisions. This measure could be achieved by amendment to s 42D by way of, for example: amend sub-s (1) by removing “other than a proceeding in the Social Services and Child Support Division”.
1.22 The AAT Act by s 43C “purports” to limit appeals in relation to certain migration decisions that the Migration Act 1958 (Cth) (“Migration Act”) describe as being a privative clause or purported privative clause decision and an AAT migration decision. It serves no practical purpose.
Measure 21 Repeal s 43C of the AAT Act.
1.23 I have explained the need for the following measure in the chapters concerning Migration and the MRD. In doing that, I have not disregarded the strongly argued support of DHA (and others) for the retention of the Codes of Procedure.
Measure 22 Repeal the “Codes of Procedure”, an aspirationally exhaustive statement of natural justice, now legislated by the Migration Act 1958 (Cth) (“Migration Act”) in various places in terms generally similar.
1.24 The identification of a discrete question of law can be problematic. Fact and law are sometimes inextricably mixed. For clarity, appeals should be for errors of law rather than on a question of law.
Measure 23 Amend s 44 of the AAT Act to provide for appeals from decisions of the AAT, for error of law in lieu of a question of law.
1.25 Migration interest groups have criticised the Immigration Assessment Authority (“IAA”) and its processes. My inquiries however, have satisfied me that it is an effective and fair decision-maker in the cases with which it deals. It is an appropriate forum for expedition and fair disposition of cases involving similar and relatively simple facts. It is also an appropriate kind of forum to deal with “surges” of cases of these kinds.
Measure 24 The IAA should be retained and utilised as may be appropriate for time to time.
1.26 The AAT’s review of small business taxation decisions was the subject of discussions and correspondence with the Commissioner and Second Commissioner of Taxation. There was agreement that there would be utility in the creation of a decision-maker to review, in a relatively informal process, the disputes of taxpayers with the ATO.
Measure 25 A taxpayer in dispute with the ATO, where the amount in dispute is not more than $100,000 for any one year, or the turnover of the business is not more than $5,000,000 per annum, may, unless the ATO satisfies the AAT that the amount, novelty, or complexity of the dispute or the likely duration of a conference to resolve it, make it inappropriate for the matter to be so determined, by the AAT, elect to have the dispute determined in an informal but adjudicated conference, or other agreed informal adjudicative process, without prejudice to the taxpayer’s rights of appeal for error of law. The Member making the decision may make it in brief form but must make it in writing. All Members of all levels in the Division should be available to conduct conferences as required.
1.27 It was the view of many of those consulted that the decision in 2015 of the Commonwealth, effectively, to terminate the operation of the former Administrative Review Council (“ARC”) and, instead, transfer its functions to the Attorney-General’s Department (“AGD”), was an imprudent one. There is, in my view, doubt whether “a transfer” is legally possible without legislation. Part V of the AAT Act sets out provisions for the composition (s 49) and appointment of members (s 50), its functions (s 51) and meetings (s 56). The AAT Act clearly assumes the existence of the ARC. It is the duty of the Executive under s 61 of the Constitution to execute and maintain the laws of the Commonwealth. Whether a “transfer” of the functions and powers conferred on the ARC by s 51 of the AAT Act is legally possible or not, it is in my view contrary to the intention and spirit of that Act that any section of any department of government might have a role of overseeing or inquiring into the work of the AAT, that is the reviewer of decisions made by officials of many other departments of government. At the first meeting of the ARC on the 15th of December 1976, the Attorney-General, then Mr Robert Ellicott QC, said that the role of the ARC was “… to ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be”. The work done by the ARC in the preceding 40 years was useful. There is, in my opinion, a present need for its reinstatement to ensure the implementation of such measures as the Executive and the Parliament may adopt for reform of the AAT in furtherance of the TA Act. The Attorney-General may find it useful to advise the Governor-General to appoint a person, pursuant to s 52(2) of the AAT Act, as a member of the ARC to oversee the implementation of the measures suggested in this Report.
Measure 26 The ARC should be reinstated and constituted in accordance with Part V of the AAT Act.
1.28 Its effect is that public servants (in the AGD) would have the role of overseeing the AAT, whose purpose and role is to review the decisions of public servants.
1.29 It is not for the Members of the MRD who are hearing an application to act as a contradictor of the applicant. Rather, the AAT is to act inquisitorially, not adversarially. In discussions with both Members and practitioners, I found strong support for the establishment of a position of a Counsel Assisting in the MRD, who as a qualified and experienced lawyer, could appear as an advocate, as required, in the public interest. I do not think that a Counsel Assisting would be required in every case. The presence in different and complex cases of such a counsel would relieve the Member of the onerous duties that the Members now have and assist unrepresented applicants. Counsel would not be there as a contradictor but as a vigilant lawyer whose presence and purpose would be of value to both parties as well as the Member. (If a tier of review in the SSCSD is removed it may be useful to have Council Assisting in that Division also as required.)
Measure 27 A pool of experienced lawyers should be appointed to act as Counsel Assisting in the MRD (and possibly also the SSCSD).
1.30 I have drawn attention to the serious delays in the Veterans’ Appeals Division.
Measure 28 Appoint new Members or assign other Members to decide cases in the Veterans’ Appeals Division.
1.31 It is anomalous that the only migration matters which are not heard within the MRD are those in relation to cancellations of visas or refusals of applications for citizenship on character grounds. If appointees to the Membership of the AAT were appointed to sit in all Divisions, as I suggest, the anomaly would, in time, effectively disappear. It is quite obvious that the MRD is the repository of experience and knowledge in migration matters. A reason why these matters are directed to the General Division seems to be that the Department may have a contradictor in that Division. Logic would, therefore, have all migration matters, including those to which I have just referred, dealt with by the MRD, where there should be a counsel assisting available, as required, and, in particular, in these matters. Despite a perception on the part of some, the General Division is not superior to other Divisions and does not, in my view, have any better ability to deal with any particular matters.
Measure 29 Consideration should be given to the routing of applications in all migration matters to the MRD. As I have said, Counsel Assisting should be available there and would perform a function in character matters of impartially assisting the Member in the fair resolution of matters according to law.
1.32 ADR and case conferencing have proved useful within the AAT and have provided a forum to explain to applicants the requirements and material that they require for their applications and whether the material is sufficient to support an application. Presently this process is not available in all Divisions. Either with the consent of the applicant and the department or by Direction of the AAT it should be available across all Divisions of the AAT. The AAT has previously requested that pre-hearing conferences be available in the MRD and SSCSD as recommended in the Metcalfe Report.
Measure 30 Amendment to the AAT Act to enable access to ADR, case conferencing, conciliation and pre-hearing conferences, either by consent of the applicant and the Department or by direction of the AAT, across all Divisions of the AAT.
1.33 There are three separate models for the funding of the AAT: one that applied before the amalgamation of the AAT as it was then, and one that applied to each of the former MRT, RRT and the former SSAT.
1.34 The pre-amalgamation funding of the AAT which now applies to the General and other Divisions (six Divisions) is effectively a “flat” model that is demand driven and based on a pre-determined annual appropriation calculated on expected numbers of applications recoverable in these Divisions. It does not provide for adjustment, either by way of increase or decrease to meet actual changes of numbers within the period of the budget.
1.35 The funding model of the SSCSD is the model inherited from the former SSAT. It is for an annual appropriation calculated by reference to historical caseload information. The model does however allow for adjustment for changes in Policy. Because the model is not a demand-driven model no adjustments can generally be made during an appropriation period. 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 an appropriation which has a “baseline” of 18,000 applications. Of the 40,040 applications finalised by the AAT in the 2017-2018 reporting period 17,960 were by the MRD. A further 37,933 applications were filed during this most recent reporting period of 30 June 2018 leaving 44,436 applications on hand to be reviewed. Adjustments are made at a fixed cost per review for matters finalised in excess of the baseline appropriation of 18,000. The first 2000 finalisations above or below the baseline are “valued” at $2,137 per review, and $3,036 per review for finalisations over the first 2000 matters above or below the baseline. 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.
Measure 31 Funding of the MRD needs to be changed. A new model for that should be agreed between the relevant Departments and the AAT.
1.36 The AAT wrote to the Attorney-General, Senator the Honourable George Brandis QC on 22 December 2017 seeking that priority be given to the implementation of a series of recommendations arising from the Metcalfe Report. Of these requested “Priority recommendations”, the AAT sought the full implementation of recommendations: “Powers to hold directions hearings, make directions, dismiss applications for failure to comply with a direction and reinstate applications should be made available in the Migration and Refugee Division (MRD).”
Measure 32 Power to hold directions hearing, make directions, dismiss applications for failure to comply with a direction and reinstate applications should be made available in the Migration and Refugee Division (MRD).
Measure 33 A standardised power for the AAT to compel persons to give the AAT information or evidence by issuing a notice or summons should be introduced. Sanction for non-compliance with the notice or summons should also be available.
Measure 34 The power to make oral decisions should be extended to decisions to vary or set aside a Centrelink decision in the SSCSD.
1.37 The AAT in July 2016 formulated a document, “Further Potential Legislative Amendments”, which included the following measures with which I agree. The first proposal relates to s 33(1AB) of the AAT Act, which provides that a party to a proceeding before the AAT, and any person representing such a person, must use his or her best endeavours to assist the Tribunal to fulfil the objective in s 2A. Thus, parties and their representatives must act in a way that assists the Tribunal to meets its obligations under the Act. Section 24Z of the AAT Act however provides that s 33 does not apply to the Migration and Refugee Division. As such those appearing as applicants or their representatives do not have a duty as in the other divisions to assist the Tribunal.
Measure 35 Legislative change should be made to apply s 33 of the AAT Act to applications in the MRD.
1.38 Section 43AA of the AAT Act allows the AAT to correct obvious errors in the text of a decision or written statement of reasons for the decision, including, obvious clerical or typographical errors, or inconsistencies between the decision and statement of reasons. However, by virtue of the current wording of s 24Z of the AAT Act these provisions for correction do not apply to the MRD. Amendment as proposed would not be inconsistent with the ss 368(2A) and 430(2A) of the Migration Act as those provisions provide that the AAT has no power to vary or revoke a decision after the day and time the written statement setting out the Tribunal’s decision and reasons is made. Extending s 43AA of the AAT Act to apply to the MRD would not be inconsistent with the Migration Act as the corrections would not be a change to the substantive decision that has been made.
Measure 36 Amend s 24Z of the AAT Act so that s 43AA will apply to the MRD.
1.39 The AAT has also pointed out that s 33A(1) provides that the AAT may allow or require a person to participate in an ADR process, directions hearing or hearing by telephone or by means of other electronic communications equipment. Section 33A(2) provides that this is not permitted in proceedings to which s 39A of the AAT Act applies; that is, applications relating to adverse or qualified security assessments made by ASIO. The prohibition on allowing a party to participate by telephone or other electronic means currently applies regardless of the type of case “event” to be held and what will be discussed. As such, it therefore includes directions hearings dealing with only procedural matters. The AAT has been informed that the Director-General of Security and his representatives that they have no concerns about participating in directions hearings by telephone when the hearings do not involve discussions of the substantive material in the application. The AAT has proposed that s 33A(2) of the AAT Act be repealed. Whether a party or other person, including a witness, would be allowed or required to participate in a hearing be it by telephone or other electronic means could be then be decided on a case-by-case basis in consultation with the parties. Security considerations would always be paramount.
Measure 37 Repeal s 33A(2) of the AAT Act or amend to permit directions hearings of a procedural nature and not touching the substantive material in the application to be conducted by telephone or other electronic means.
1.40 As discussed in my Report, a number of Members and other well-informed persons whom I consulted said there were many instances in which applicants (including many on bridging visas) contrived or deliberately altered their circumstances in Australia for the principal purpose of renewing their visas or establishing a new pathway to a different visa. Whether provisions should be made to disqualify applicants from having automatic access to bridging visas or otherwise deriving rights of residence by these practices is a matter of policy about which it is not for me to make recommendations. Given that s 33A of the AAT Act provides for the participation in hearing by telephone, consideration might however be given to discontinuing an automatic entitlement to bridging visas in relatively simple and straightforward applications such as student visa applications. Hearings of these could be conducted by telephone.
