Activism and NZ Administrative Law

Hammond J in Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385; [2009] 1 NZLR 776 states 

 [348] I agree with the result of this appeal as set out in the judgment of Arnold J and, in general, with the reasoning by which that result was arrived at. 

[349] Because this is an important administrative law case, I propose to add some broad comments on the proper scope of judicial review in a case such as this. I emphasise that they are not intended to detract from the actual resolution of this case as set out in the judgment of Arnold J, to which the entire panel has subscribed. 

[350] As a matter of convenience, I have grouped my comments under four heads, which might be called four “P’s”: the point of entry of judicial review; the purpose of judicial review; the principles of judicial review; and the place of judicial review in New Zealand today. I will then add some brief comments on this particular case. 

The point of entry of judicial review 

[351] The point at which judicial review may be resorted to is a matter of distinct importance. While, in principle, any decision of a public nature is potentially reviewable, there seems to be a growing misconception that just about any decision is amenable to judicial review. However, there are some “no-go” areas, as well as “twilight” contexts which have occasioned real, and still largely unresolved, arguments as to the appropriateness of making judicial review available in those areas. 

[352] One of these twilight areas is public sector contracting, where governmental bodies provide or arrange for the provision of services to the public by means of contractual relations with private sector enterprises. “Government by contract” has had major ramifications for administrative law theory and practice as it has become the dominant paradigm for the provision of public services over the last quarter of a century. See Harlow “Law and New Public Management: Ships that Pass in the Night” in Gordon (ed) Judicial Review in the New Millenium (2003) at 5 – 18; McLean “Contracting in the Corporatised and Privatised Environment” (1996) 7 PLR 223; and Allars “Administrative Law, Government Contracts and the Level Playing Field” [1989] UNSWLawJl 7; (1989) 12 UNSWLJ 114.

[353] Leaving to one side any applicable statutory provisions, the problem for the law, stated in the simplest terms, is whether to apply private law principles, public law principles, or some admixture of the two. See, for example, Oliver Common Values and the Public-Private Divide (1999) and Taggart “‘The Peculiarities of the English’: Resisting the Public/Private Law Distinction” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 107 at 120. Some commentators have suggested that the courts should develop a stand-alone set of “government contract” principles which are to be applied. See, for instance, Davies Accountability: A Public Law Analysis of Government by Contract (2001). For a comparative common law and continental perspective, see Auby “Comparative Approaches to the Rise of Contract in the Public Sphere” (2007) PL 40. 

[354] There has been real ambivalence on the part of both commentators and courts on this issue. Professor Freedland, a prominent commentator on “government by contract”, started out by arguing for the application of public law principles: “Government by Contract and Public Law” (1994) PL 86. Yet more recently, Professor Freedland has oriented his overall approach more firmly in the direction of private law (“Government by Contract Re-examined – Some Functional Issues” in Craig and Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (2003) 123 at 133): My real reason for sketching out an area of public/private enterprise law, which is not specially oriented towards public law, is not so much the view that ‘government by contract’ should be regulated by a body of law which is not specially oriented towards public law, but rather a prediction that English law will on the whole tend to generate a mixed but private law-based body of law for that purpose. Indeed, Professor Freedland now goes so far as to suggest that (at 134): ... we might expect that the techniques of private law in the areas of contract, tort, and restraint of trade will be the tools mainly used to address issues arising from the tension or conflict between the public contracting role and the public/private market-making function, and that our primary concern should be to ensure that these private law-based instruments are tuned to register the sound of public interest. 

[355] A contrary view can be found in Collins Regulating Contracts (1999), which argues that markets do not provide an appropriate mechanism for distributing public services and questions the efficacy of contract law principles in this area. For a critical discussion of Collins’ analysis, see Cane “Administrative Law as Regulation” in Parker and others (eds) Regulating Law (2004) 206 at 210 – 213. 

[356] Unsurprisingly, courts have had the same sort of difficulties as to what approach the law should adopt. As a general proposition, which I can only sketch here, the early cases around the British Commonwealth and in New Zealand did not favour judicial review. But some courts then began to adopt a stance that judicial review is available if there is a sufficient “public” component. The high water-mark of that approach is R v Panel on Take-overs and Mergers, ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815 (CA) which evidenced a shift from a “source of the power” test for reviewability to a “nature of the function” approach: Hunt “Constitutionalism and the Contractualisation of Government in the United Kingdom” in Taggart (ed) The Province of Administrative Law (1997) 21 at 29. In the “government by contract” context, that kind of thinking rests on a market contract paradigm which somehow becomes sufficiently suffused with public characteristics, or has a sufficient impact on the public, so as to render events attendant on it reviewable. 

[357] With respect, this analysis is much too simplistic. The stereotype of the market contract involves a purchaser going into a market, which offers many opportunities (or service providers) for the transaction in question. That purchaser then has the option of purchasing the services in question either in a single transaction or a number of distinct transactions. 

[358] There are, however, two characteristics which differentiate “government by contract” from the market orthodoxy. The first is that government contracting arrangements are functionally a form of regulation. (This conclusion is shared by Walsh and others Contracting for Change: Contracts in Health, Social Care, and Other Local Government Services (1997).) The second is that these kinds of agreements are a classic example of what I have referred to elsewhere as “relational” contracts: Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 8 TCLR 612 at [93] (HC). The contracting parties routinely provide that the contract will run for some time, involving ongoing evolutionary elements, and obligations of good faith and the like. In short, they are not closed market contracts. Moreover, the government has a powerful interest in ensuring that goods or services are supplied in accordance with a contract. If a contractor defaults, the continuity of essential public services may be jeopardised. Thus, these contracts involve what we could loosely call wider public interests. 

[359] The characteristics I have noted might suggest that, as with any other government activity, government contracting should ultimately take place within a framework of public law precepts, modified to the particular contractual and statutory context, but nonetheless underpinned by constitutional values such as respect for the rule of law and democratic principles. But the pull in favour of private law still remains strong. 

[360] My purpose in making these general points is not to attempt to resolve the present case in an abstract way. Each case will have its own complexities, as Arnold J has convincingly demonstrated, and the statutory and contractual context will be of the greatest importance. My concern is that I would not want it to be thought in other cases that, on the basis of what has happened in the case in front of us at this time, counsel can automatically assume reviewability in this subject area. 

[361] In this case, we are faced with a somewhat unusual position. Typically a case of the kind which is before us would have attracted strenuous debate as to its amenability to judicial review in the first place. Here, both Diagnostic Medlab Limited (DML) and Lab Tests Auckland Limited (Lab Tests) have accepted that judicial review is appropriate. But they are poles apart as to why and how reviewability should come into play. For Lab Tests, Mr Curry takes a very narrow line. He contends that the wider arguments as to reviewability do not really matter very much in this case because the only possible ground for review is the admittedly narrow statement of Lord Templeman, for the Judicial Committee of the Privy Council, in Mercury Energy Ltd v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385 at 391 that “[i]t does not seem likely that a decision by a [SOE] to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.” Mr Hodder, on the other hand, doubtless delighted to have got over the preliminary hurdle of reviewability without opposition, has advanced a far-reaching basis for judicial review: namely an ability in the High Court to constrain, at least in some respects, decisions “tainted by a serious lack of integrity, i.e., fraud, corruption, bad faith or any other material departure from accepted public sector ethical standards which requires judicial intervention” (emphasis added). I will enlarge on what Mr Hodder meant by that later in this judgment. 

The purpose of judicial review 

[362] Broadly, there are two schools of thought about the Judge’s task when engaged in judicial review. 

[363] The traditional stance is that the Judge’s predominant task is to ensure that administrative authorities remain within the powers granted to them by law. Whatever the Court may do by way of judicial intervention, that intervention must be linked, in one way or another, to the legal powers of the relevant public authority. This orthodox approach to administrative law has been defended, most magisterially, by Sir William Wade: Wade and Forsyth Administrative Law (9ed 2004) at 4-5. There can hardly be any argument that the legality principle is the first and most important limb of judicial review. While cases decided under the legality rubric routinely throw up difficult issues of statutory construction, that is nevertheless a “comfortable” task for a court, which can set about it without any disconcerting suggestion that the court is outside its proper bailiwick. 

[364] On this traditional approach, the only long stop for challenging the decision itself, as opposed to what led to it, was so-called Wednesbury review for unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (CA). The primary decision is that of the first instance decision maker and courts have a highly constrained ability to interfere with respect to the decision actually taken. 

[365] Wednesbury review is logically circular, distinctly indeterminate and functions as a “cloak” which, on the one hand, has the potential to seduce lawyers and courts into the merits rather than legality of decisions and, on the other hand, can lead to abject caution. See Le Sueur “The Rise and Ruin of Unreasonableness?” (2005) JR 32 at 32 and, more generally, Taggart “Reinventing Administrative Law” in Bamforth and Leyland (eds) Public Law in a Multi-layered Constitution (2003) at 311 – 335. Famously, Lord Cooke of Thorndon in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 (HL) regarded Wednesbury as (at 549): ... an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd. 

[366] Instances of successful intervention on the basis of Wednesbury unreasonableness appear to be much more common in the United Kingdom than in New Zealand. In “The Rise and Ruin of Unreasonableness?” (above at [365]), Le Sueur observes that close to half of the Wednesbury unreasonableness/irrationality cases (some 40 cases) heard between January 2000 and July 2003 in the UK succeeded on those grounds (at 44 – 51). Even then, Lord Woolf has suggested extra-judicially that judicial review is still excessively executive-friendly in the UK: “Judicial Review – The Tensions Between the Executive and the Judiciary” in Campbell-Holt (ed) The Pursuit of Justice (2008) 131 at 142. In New Zealand, success under this head is a distinct rarity. I am reminded of an observation by Bauer CJ in the United States of America: the decision must “strike us [as] wrong with the force of a five-week old dead, unrefrigerated fish [to attract review]” (Parts and Electric Motors Inc v Sterling Electrical Inc 866 F2d 228 at 233 (7th Cir. 1988; cert. denied, 493 US 847 (1989)). 

[367] The second, and more modern, school of thought challenges the traditional orthodoxy. At heart it holds that High Court judges have always had, and still have, an independent capacity to intervene by way of judicial review to restrain the abuse of power and to secure good administration. Protagonists of this school of thought include, amongst commentators, Professors Oliver and Craig in the United Kingdom, and Professor Cane in Australia. Amongst the senior judiciary its adherents include Sir John Laws and Sir Stephen Sedley. At rock bottom the broad concern is to identify what might be termed “core public law values” and secure better governance. 

[368] Again, these two schools of thought are reflected in the position of the parties before us: Mr Curry stands firmly on what I have called the “traditional” orthodoxy while Mr Hodder on this occasion advances a thoroughly “modernist” argument. 

[369] As a matter of fairness, to exercise a putative right of reply for Mr Curry, there are a number of decisions in courts of the highest authority (particularly the High Court of Australia) to the effect that judicial review should not allow courts to impose ideas about “good administration” or “good governance” on the executive or other governmental bodies. Historically, or so the argument runs, judicial review involved a “power grab” by the courts which is bearable and even beneficial, so long as it is kept within its traditional bounds and goes no further than it already has. 

[370] In light of this division, it is obvious that one of the fundamental difficulties which afflicts judicial review is that there is a widespread disagreement about the fundamental task of the reviewing judge. It is true that all basic building blocks of the law attract some measure of disagreement about “purposes”, but none have the difficulties, or the “edge” that judicial review attracts, given its impact on government and governance. And when fundamental disputes about “purpose” are leavened with confusion as to the principles on which courts will intervene (often called the “grounds for review”), the state of the law is rendered distinctly problematic. 

The principles of judicial review 

[371] The Chief Justice of New Zealand, writing extra-judicially, has suggested that “the Courts are largely adrift” in dealing with cases where the decision maker has (to put it broadly) got the decision wrong: Elias “The Impact of International Conventions on Domestic Law” (Address to the Conference of International Association of Refugee Law Judges, March 2000) at 8. 

[372] The nautical metaphor can be pressed further. William Prosser, the doyen of American torts scholars, once recounted something said by a West Coast North American Indian sitting on a rock and looking out to sea: Lighthouse, him no good for fog. Lighthouse, him whistle, him blow, him ring bell, him flash light, him raise hell; but fog come in just the same. Prosser went on: That quotation has been haunting me. I have the feeling that it has some application to something connected with the law, but I do not know exactly what. I have shown it to a number of lawyers, and some of them have told me that it summarizes for them a lifetime of argument before the courts. Some of the judges seem to think that it describes the thankless task of writing opinions for the bar to read. To some morose and melancholy attorneys it calls at once to mind their relations with their clients. One man was sure that it must have something to do with the income-tax regulations, although he was by no means clear as to precisely how. Among only one group have I found general and enthusiastic agreement. I have yet to show that quotation to any professor of law who did not immediately say, with a lofty disregard of the laws of English grammar, “That’s me!” See “Lighthouse No Good” (1948) 1 J Leg Ed 257 at 257. 

[373] The public law practitioner could also say: “That’s me!” The reason is that judicial review is a critically important beacon and guard against abuses of power. But it does presently stand in something of a fog of mushy dogma. And lighthouses do not work by themselves. They function effectively only in concert with complete and precise charts. It is a pressing task for the courts to ameliorate the problem of fog in judicial review. 

[374] There is one possibility I can get out of the way at the outset. Every so often a senior judge attempts to formulate a unified theory of judicial review, by reducing everything to one theorem. 

[375] One example was the extra-judicial suggestion by Sir Robin Cooke (as he then was) that “it might not be an altogether absurd over-simplification to say that the day might come when the whole of administrative law could be summed up in the proposition that the administrator must act fairly and reasonably”: “The Struggle for Simplicity in Administrative Law” in Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 1 at 5. 

[376] More recently, in “Administrative law in Australia: Themes and values” in Groves and Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 15, the newly appointed Chief Justice of Australia, Robert French, has suggested that (at 23): ... [A]dministrative justice in the sense administered by the courts may be identified as follows: Lawfulness – that official decisions are authorised by statute, prerogative or constitution. Good faith – that official decisions are made honestly and conscientiously. Rationality – that official decisions comply with the logical framework created by the grant of power under which they are made. Fairness – that official decisions are reached fairly, that is impartially in fact and appearance and with a proper opportunity to persons affected to be heard. The learned Chief Justice explicitly gives his “grand theory” objective (and background in physics) away, when he goes on to note that “the identification of these elements of administrative justice is a little like the identification of ‘fundamental’ particles in physics” (at 24). 

[377] Even senior appellate courts are not immune from this sort of approach. Recently, the Supreme Court of Canada opted for a dual standard of review, “correctness” and “reasonableness”, which one suspects will bring its own very real share of difficulties: Dunsmuir v New Brunswick 2008 SCC 9 at [34]. 

[378] Both practitioners and representatives of governmental bodies will rightly state the obvious: that grand theorem approaches fail to drill down far enough to enable respectable advice to be given to parties who are supposed to abide by the law. In short, better charts are needed, without simply exchanging one shibboleth for another. 

[379] Another concern is that things like spectrums of response and “deference” in this subject area are ultimately quite unhelpful, and even unworkable. To say that something rests somewhere on a “continuum” is a conclusion, not a principle; it does not tell us how that point in a spectrum is reached. And courts do not defer to anything or anybody: the job of courts is to decide what is lawful and what is not. 

[380] As far as the grounds of review are concerned, the difficulty stems partly from the lack of an agreed classification or taxonomy, accompanied by properly developed substantive principles as to when a court will intervene by way of judicial review, particularly in “merits” cases. Then too, there will always be problems of application in the law, but when the underlying principles are obfuscated, there is cause for real concern. The costs of litigation are extremely high in this area, and “uncertainty” is, I think, a major contributing factor to those costs. This in turn restricts access to the courts, which is most undesirable in judicial review. 

[381] Perhaps the best way to understand the concerns which judicial review endeavours to reach is to consider the various grounds in functional rather than doctrinal terms. One good reason for a functional rather than doctrinal analysis is that it helps to transcend unhelpful semantic or terminological quibbles. 

[382] First, there are procedural grounds of review. These focus on the conduct of the decision maker and include procedural fairness requirements, fair hearing rules, and rules against bias. These sort of rules are well enough settled. 

[383] Secondly, there may be concern over the decision maker’s reasoning processes. This is where the vast majority of judicial review cases fit given that it includes things like misappreciation of the law; unauthorised delegation; and the perennial problem of control of the exercise of a discretion. All of this is the stuff of legality and everyday lawyering and, in fairness, the principles “fog” is not at its densest here. 

[384] Thirdly, there are grounds which in one sense or another relate to the decision itself, rather than the procedures adopted or the reasoning process. This is easily the most contentious functionalist category of the grounds for judicial review. The argument here is that there should be substantive grounds of review, even where a decision maker has assiduously followed all required procedures and has made no errors of reasoning. But here the fog is presently a “pea souper”. 

[385] One thing should be said at the outset. Every so often some commentator suggests that “activist” judges are somehow intent on taking over and making “merits” decisions for themselves. However, in my experience, judges do not like making merit decisions. They are relieved when “government” makes a clear or at least workable decision. Knowing – or purporting to know – what is best for somebody or something else is a dangerous enterprise; judges, of all people, see in their daily work instances of ill or insufficiently considered actions which can cause great difficulties in the lives of others. And they appreciate that judicial review is not an appeal: it is a “review” of what has occurred, but with an emphasis upon principles which ought, in terms of Prosser’s fog metaphor, to be respectably well defined. 

[386] If, therefore, judges are going to approach the merits of a decision, the analysis has to be undergirded by something other than concern about the decision as such. That is, there has to be something or some things in a sense standing “outside” the particular decision which rightly attracts judicial concern. The most obvious candidate is the concept of abuse of power, which lies at the very heart of administrative law. See Sedley LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498; [2008] QB 365 at [60] (CA): “[Abuse of power] is what the courts of public law are there to identify and, in proper cases, to correct ...”. The French would say that abuse of power is a stand-alone type of illegality: see Auby “The Abuse of Power in French Administrative Law” (1970) 18 Am. J. Comp. L. 549. The term “abuse of power” should not be understood as necessarily pejorative: to act outside one’s powers, in genuine error, is still an abuse of power and the traditional “four-corners” doctrine reels in the large majority of abuses of power. The central issue is, what beyond that orthodoxy ought to be addressed, and how? 

[387] There is here a preliminary issue which has vexed pre-eminent social and political philosophers worldwide, and is an issue for lawyers: the very nature of power. There are broadly two possible responses. 

[388] The continental school tends to see power as a thing in itself. De Tocqueville suggested that it is men who build up institutions and enslave themselves in a universally tragic way. M de Jouvenal in Du Pouvoir treated power as if it is a morbid pathology, rather like a terrible god with deterministic outcomes. The notion of power as a thing in itself can be seen in the writings of Kant and Nietzsche. [389] The English school is more pragmatic: it does not see power as a thing in itself. Lord Radcliffe of Werneth put it wonderfully well in Lecture VII of his 1951 Reith Lectures (published as The Problem of Power (1952) at 99 – 100): Take away the abstract idea and there remains nothing but the conduct of men, human beings, who occupy in their turn the seats of authority. It does not seem to me that there is only one possible attitude towards authority or one inevitable set of rules that govern its exercise. Attitudes change with the social conditions which surround authority and, as we have seen, men in their turn exalt and denigrate power under the impulse of their general attitude towards life itself. You can see it your own way, so long as you know what that way is. It reminds me of an old saying: ‘Take what you want’, said God; ‘take it, and pay for it.’ 

[390] If Lord Radcliffe is right, and I think he is, it would follow that it ought to be possible to do something practical about the problem of abuse of power through the development of distinct substantive principles in relation to merit decisions. 

[391] It is not possible in a judgment to describe what a full scheme of principles based on that fundamental objective might look like. But the law is already moving slowly in the direction of building on that concept. For instance, one area which is now relatively well recognised by the Anglo-New Zealand judiciary is that, in the area of human rights, an otherwise lawful response must still be a proportionate one. 

[392] Another possible doctrine is that of substantive unfairness, to be deployed in situations where a result is arrived at which is within the powers of the particular authority but which is so grossly unfair that it ought to be impugned. That is what I effectively held in NZFP Pulp and Paper Ltd v Thames Valley Electric Power Board HC HAM CP35/93 1 November 1993. Although that approach was not favoured by this Court on appeal (see Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641), in Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58, this Court held that (at 66): The concept of substantive fairness ... also requires further consideration. The law in this country applicable to situations of that kind will no doubt be developed on a case by case basis. 

[393] In this instance, I did not understand Mr Hodder to be arguing for an incremental gloss on the well-known Mercury Energy “fraud, corruption or bad faith” test. His argument, at least as I apprehended it before us, was that there should be a distinct substantive principle on which the merits of a decision can be attacked. Mr Hodder put it this way in oral argument: Public powers and resources under our system are to be used in the public interest, and they are misused or abused if they are used and diverted to private advantage, obviously, apart from statutory authorised grants or where there is contract for mutual benefit. But that’s the essence of the responsibility of public power. It has to be used in the public interest not for private interests. 

[394] I will deal with this proposition of a “no-conflict” principle in government contracts later in this judgment. I mention it at this point only because, as I apprehended it, this is where Mr Hodder’s principle would fit in the sort of taxonomy I have been discussing. It must be at least implicit, if not explicit, in Mr Hodder’s proposition that this is a substantive principle which we need in New Zealand today. That brings me to the next subset of comment. 

Place 

[395] Francis Cooke QC has recently noted that in New Zealand administrative law, “we still take our lead from the United Kingdom”: “Relief at Last” in Administrative Law (New Zealand Law Society Intensive, August 2008) 31 at 31. Whilst a respectful eye will doubtless continue to be cast on judicial review developments in England, I agree that New Zealand has to develop its own solutions in terms of its own needs and aspirations. There are some difficulties which ought to be made explicit here. 

[396] One is the question of “opportunity”. Professor Burrows has remarked that case-made law “scores its runs in singles”. That is a real difficulty in a small country like New Zealand, with only an irregular supply of cases (“the bowling”), and consequently the run accumulation technique becomes highly problematic. Commentators in New Zealand routinely fail to focus sufficiently on the “supply” side of bowling from which a respectable innings may be fashioned. It is difficult for senior judges to work at the problem systematically. There is instead an intermittent and somewhat mad-headed chase after the “latest case” on the part of the bar and commentators, and seminars sprout up as if there has been a seismic shift when one case is decided. 

[397] A second and related problem is, if I may resort to Willis Airey’s splendid phrase of a “Small Democracy”, that single judicial review decisions in New Zealand have a disproportionate impact. In recent years in the United Kingdom, Lord Woolf, then Lord Bingham, have had to deal with the tensions which arise between the judiciary and the executive when the judiciary exercises a firmer hand. The English judiciary has survived, and many may think it has undertaken its task admirably across a real run of cases. But quite how things would go in a much smaller and more visible “Small Democracy”, where a pebble in a pond has the effect of a boulder, is more problematic. 

[398] Thirdly, we should not overlook the problem that if the goal of administrative law is to be defined partly in terms of somewhat broader objectives – such as, for instance, the promotion of good governance – one would normally pay close regard to the empirical evidence that administrative law can actually achieve that end. Regrettably, there is little in the way of empirical evidence in the New Zealand context as to whether administrative law as a behaviour modification mechanism in government actually works. Such empirical evidence as there is in other jurisdictions tends to suggest that administrative law is likely to be able to make only a modest contribution to the promotion of external goals. If that is right, it may suggest that such substantive doctrines as are developed for merit review should go only to what might be termed “true excesses”.

Hague and AAT Review

"The Hague Judgments Convention in Australian Law' by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen in (2019) 47(3) Federal Law Review 420 comments

 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.