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The Council of Australasian Tribunals South Australian Chapter “CHALLENGES AND CHANGES”

The Hon Justice Duncan Kerr Chev LH

A Justice of the Federal Court of Australia and the President of the Administrative Appeals Tribunal

Adelaide, 26 October 2016

1 Thank you. I am grateful to the South Australian Chapter of COAT for sponsoring this evening’s event.

2 It is now close to sixteen months since the amalgamation of the former Migration Review Tribunal - Refugee Review Tribunal (“MRT-RRT”) and Social Security Appeals Tribunal (“SSAT”) with the Administrative Appeals Tribunal (“AAT”).

3 It has been a period of significant change for the Tribunal, and that change is far from over. I intend to use tonight’s address to reflect on those changes and to outline what I see as some of the key challenges for the organisation in the coming years.

4 These challenges are not unique to the AAT. Rather, we are just at the embryonic stages of a process that is well underway in the states and territories, in moving toward larger generalist civil and administrative tribunals.

5 I would like to take this opportunity to outline some of the substantial progress the AAT has made since amalgamation. I will then speak about an issue I see as vital to the success of the AAT looking forward; the legislative harmonisation of practice and procedures within the amalgamated tribunal.

6 But firstly some background. The AAT became a significantly larger entity on 1 July 2015, expanding from an organisation with 155 full-time equivalent members and staff in 2014–15 to one with more than 700 full-time equivalent members and staff.

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7 In the 2015-2016 financial year, the AAT received over 41,000 lodgements and finalised over 38,000 matters. We conducted more than 24,800 hearings and more than 8,000 conferences and other ADR processes.

8 Over the same time we have seen significant changes to our membership.

9 Since amalgamation:

We have welcomed 56 new Members and overseen the re-appointment of 82 serving Members.

We have farewelled 50 Members.

Three Division Heads have been appointed:

Jan Redfern to Migration & Refugee Division

Bernard McCabe to Tax and Commercial Division

Jim Walsh to Social Service and Child Support Division

10 We also settled a new senior executive structure in the Registry that shifted away from a Divisional or siloed approach, to one that encompasses the operations of the entire organisation. This new structure is better aligned with our strategy to integrate services and functions across the Tribunal and to integrate and harmonise processes across divisions where possible.

11 The AAT now has jurisdiction to review decisions made under more than 450 separate Acts and legislative instruments. We organise our work in divisions:

the Migration & Refugee Division reviews decisions previously reviewed by the MRT and RRT

the Social Services & Child Support Division reviews decisions previously reviewed by the SSAT, and

the General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions (collectively referred to as the General & Other Divisions) review decisions previously reviewed by the AAT.

12 The Migration & Refugee Division also includes the Immigration Assessment Authority (IAA). The role of the IAA is to conduct reviews of fast track reviewable decisions. Fast track reviewable decisions are those decisions made by the Minister, or delegate, to refuse to grant a protection visa to a fast track applicant. Fast track applicants are unauthorised maritime arrivals who entered Australia between 13 August 2012 and 31 December 2013 who have not been taken to an offshore processing country and have been permitted by the Minister to make a protection visa application. Fast track applicants are also persons specified by the Minister by instrument.

13 The largest component of the AAT’s workload is applications for review of migration or refugee visa decisions within the Migration & Refugee Division. The second largest component is applications for first review of Centrelink or child support decisions in the Social Services & Child Support Division.

14 The balance of the workload is applications for review of a wide range of decision types within the General & Other Divisions with the bulk relating to second review of Centrelink decisions and decisions about Commonwealth workers’ compensation, taxation and veterans’ affairs. However, the

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Tribunal also deals with many lower volume, but sensitive, complex or high profile matters, such as appeals from adverse security assessments made under the Australian Security Intelligence Organisation Act 1979 and reviews of decisions under the National Vocational Education and Training Regulator Act 2011 to cancel a vocational training provider’s registration.

15 Our first Strategic Plan since amalgamation identifies four major priorities which have focussed our activities to date and will guide our decision making in coming years:

to create an integrated, national Tribunal;

to improve how we work and maximise our use of technology;

to nurture relationships and partnerships, particularly with our members, staff and key stakeholders;

and to make the best use of our resources and build capacity in delivering merits review.

16 I am very pleased to say that we have made very substantial progress towards meeting these priorities in our first 16 months of operations.

17 In the immediate aftermath of the amalgamation, working groups were established to develop recommendations for harmonising and enhancing our operations in three critical areas: the client service group considered front-line services for parties and representatives and some case-related administrative functions; the member support group looked at the provision of high-quality administrative, legal and decision-preparation support to members; and the listings and proceedings

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group considered issues relating to case pathways, the allocation of cases to members and conference registrars, and the scheduling of proceedings.

18 Over the same period, we implemented an integrated intranet for the organisation and a single payroll system. We undertook further work on the integration of our IT networks, enhanced our IT systems to improve network management activities and security compliance, continued to improve the effectiveness of our electronic case management systems, and pursued projects to improve the digital management of our administrative records. We also explored ways to consolidate information from our different case management systems, building tools that manage room bookings and allow case searches across divisions.

19 At amalgamation, applicants were able to lodge applications online in the Migration and Refugee Division and the Social Services and Child Support Division. In April 2016, we launched a portal that allows users to make online applications in each of the other divisions. The convenience of being able to apply online is now available for any type of decision that we can review.

20 Following amalgamation, the AAT was operating nationally in 14 commercial premises with two tenancies in Commonwealth Law Courts buildings. A primary rationale for the amalgamation was to achieve savings in property costs through the consolidation of multiple registries in capital cities.

21 A long-term accommodation plan was developed for the amalgamated AAT and progress has been made on planning for co-location of our offices over coming years. Our current position is:

A single AAT registry was established in Hobart in September 2015 in the Hobart Commonwealth Law Courts;

A single AAT registry commenced operation in Sydney in May 2016;

The move to a single AAT registry here in Adelaide at 1 King William Street was completed this week;

Single registries in Brisbane and Perth are expected to be in operation by early 2017; and

A search for suitable premises for a single AAT registry in Melbourne is still in progress.

22 We have also been working on a strategy for moving to a more digital way of working over coming years.

23 The amalgamated AAT uses a number of different systems to manage cases. We have three case management systems and three online lodgement systems. While we’re continuing to develop our systems and we’ve done some work to build connections between them, these are interim solutions.

24 There are challenges for external users in their interactions with the AAT and for members and staff in doing their work.

25 We want to be able to offer parties, representatives and decision-makers a range of online services that make it easy to deal with the AAT in addition to other ways of dealing with us. We want to offer members and staff a range of digital tools that help us do our work effectively and efficiently.

26 A digital strategy is currently in development. It will propose how to sequence initiatives over a 3–5 year timeframe. These initiatives which provide significant value, enable better integration and improve the user experience, include:

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making the website more accessible and the application process easier

increasing our ability to exchange electronic data with departments

a scalable, flexible case management system and e-case file facilities

better ways to manage case related events between the Tribunal and users, including online Alternative Dispute Resolution (ADR).

27 To date, registry services have largely continued to be delivered along divisional lines in accordance with the practices that were in place in the tribunals that merged to form the amalgamated AAT.

28 We plan to move from the divisional management and delivery of registry services to a single, integrated registry service that will facilitate the effective provision of service to internal and external users in all divisions and in all locations.

29 We recently engaged an external consultant to review the current registry environment and develop a strategy to assist the AAT transition to integrated registry services over a 12–18 month period.

30 We are currently awaiting the consultant’s final report and intend to respond to its recommendations as soon as possible.

31 Generally speaking, we have also made excellent progress in reframing the relationships that existed between the separate former tribunals and various government agencies and establishing a new framework for engagement and information sharing.

32 Myself, the Registrar and other members of the Executive embarked on a systematic program of liaison meetings with key government agencies in late 2015, including the Australian Securities and Investments Commission, Department of Finance, Australian Taxation Office, Commonwealth Ombudsman, Department of Veterans’ Affairs, Comcare, Department of Human Services and Department of Immigration and Border Protection. The meetings provided a valuable forum to discuss strategic operational issues and to agree on future liaison arrangements. Those arrangements have been further developed and embedded during the course of 2016.

33 An AAT Stakeholder Engagement Framework has been created to provide high-level guidance on how the Tribunal will engage with stakeholders. Effective engagement with stakeholders is one of the key elements identified in COATs International Framework for Tribunal Excellence, a document which has guided much of our thinking and early work in building an integrated tribunal.1

34 The changes I have described so far relate in general terms to the corporate side of the Tribunal’s business. That is, these are changes that have been more or less necessary to give physical effect to the amalgamation.

35 There has also been considerable progress in areas that may be less tangible to the casual observer.

36 In my first speech as President of the AAT I noted that ‘the collective strength of the AAT resides with its extraordinary team of skilled and independent minded decision makers and with the experienced staff who support them’.

37 While this is of course true of any organisation, in my four years as AAT President I have come to

recognise the great degree to which merits review decision-making is vocation in its own right.

1 See Council of Australasian Tribunals, International Framework for Tribunal Excellence (April 2014)

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38 The expertise acquired by an experienced tribunal member cannot easily be substituted. 39 The commitment for professional development and the time and experience that must be devoted to

acquire the skillsets and professionalism required of members is often underappreciated. 40 The AAT can exercise quasi-inquisitorial powers across the range of its jurisdictions to enable effective

review of primary decisions made by Commonwealth agencies. Additionally, in a number of its Divisions our members must manage vigorously contested proceedings involving legally represented parties. In some areas of jurisdiction the AAT also requires members with specialised expertise that they can bring to bear on decision-making.

41 Since the amalgamation was announced I have worked with the Attorney-General to establish a

protocol to apply to appointments to the now greatly enlarged Tribunal. Our focus was to create a protocol that is transparent and recognises the value of, and retains expertise relevant to, each of our Divisions to the extent possible, consistently with the constitutional entitlement of government to select appointees. That protocol is now in place.

42 As I have already mentioned, in the first year following amalgamation there were 138 appointments

made to the AAT. A further 111 members’ terms will expire by 30 June 2017 and I anticipate that open recruitment exercises will be held to fill a number of vacancies arising, in line with the protocol settled by the Attorney-General.

43 Building a membership capable of fulfilling the Tribunal’s statutory objectives in a manner that

upholds the confidence of the community is not simply a matter of attracting and appointing talented people.

44 With that in mind one my first priorities since amalgamation has been to establish a comprehensive

Professional Development Program that reflects the scale and diversity of skillsets of our membership.

45 Our Members’ Professional Development Program has, as its centrepiece, a Framework of Competencies. That Framework aims to describe the essential core attributes required by members to perform their functions competently.

46 The Development Program recognises that continued compliance with these essential competencies

and the development and maintenance of members’ professional skills and acuity require a well-supported scheme to support members in their professional development.

47 With this supportive aim in mind, the Program features a range of schemes and opportunities for

members’ learning and development.

48 All newly appointed members take part in the Tribunal’s Induction Program which includes an orientation seminar and an induction course and practical training, both in the generic tribunal craft as well as jurisdiction-based skills specific to the Division or Divisions to which different members are assigned.

49 The Tribunal also offers tutorials, collaborative learning, e-learning materials and other professional

development options to allow members to continually develop their expertise and knowledge of new developments in the law and in our practice.

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50 We also provide support for members to take part in external communities of learning by attending conferences, seminars, programs and workshops.

51 A key aspect of the program is the Tribunal’s Appraisal Scheme, by which we help members identify

their areas of competence and any areas where they might benefit from some support in further development.

52 It also seeks to ensure consistency and standards across all divisions, jurisdictions and registries of the

AAT. 53 The amalgamated Tribunal launched its first round of the scheme last month.

54 Appraisals will be conducted across all divisions by Divisions Heads and senior members in each

division.

55 The appraisal process involves a mixture of self-assessment and peer review, with appraisers observing hearings, reviewing selected hearing transcripts (and possibly, hearing recordings) and reviewing written decisions.

56 Creating effective integrated organisations after bringing together a collection of smaller former

tribunals, as has been the case with the establishment of state and territory civil and administrative tribunals and the amalgamated AAT, is not merely a question of legislation—it is also a matter of building a new common culture.

57 When humans create organisations, inevitably we also build and reinforce cultural norms. Such

cultural norms have much positive work to do. They are essential in transmitting and reinforcing values. They allow tribunals to build teamwork and their members and staff to share common commitments. Yet those same cultural norms, too often, can also create invisible barriers to repel outsiders and their ideas.

58 Achieving the full benefits of integration in such organisations requires time, coupled with a positive

strategy, before it is possible to bring down the invisible internal barriers preventing former outsiders from becoming colleagues.

59 In May this year the amalgamated Tribunal held its first National Members’ Conference.

60 The Attorney-General spoke at our conference dinner, acknowledging the event as an historic

moment since the Tribunal’s amalgamation.

61 The program included plenary sessions on subjects such as “Statutory interpretation” and “Managing Change and Stress in a Tribunal Environment”, as well as specific interest and specialisation areas including: “Oral decisions versus written decisions”, “Assessing credibility”, “Fair and reasoned decision-making” and “Understanding diversity in administrative law reviews”. These sessions allowed members to discuss their own experiences in relation to the subject matter and possible solutions to certain common problems.

62 Bringing together such a large membership from across the country is a significant undertaking

relative to Tribunal resources. 63 But it is an essential investment. Such occasions provide an invaluable opportunity for our members

from various specialties and locations to collaborate together and to build a common culture.

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64 The AAT has traditionally organised its business within state-based registries.

65 Over time, practice and procedure in these registries has evolved to best match the circumstances and

particular needs of stakeholders in different locations. 66 Such differences inherently have costs in terms of efficiency and community confidence in the

consistency of Tribunal proceedings. 67 Part of the ongoing transformation to a unified tribunal has been, wherever possible, to develop

nationally consistent practice and procedures while recognising that a one size fits all approach will not be appropriate in all circumstances.

68 The benefits of a more standardised national approach are many but will assist the tribunal to:

address the needs of stakeholders who seek highly skilled, expeditious and inexpensive dispute resolution;

position the Tribunal to meet the increasing demand for a truly national Tribunal;

assist in modernising Tribunal operations;

develop the confidence of the profession and the community in areas requiring a degree of specialised skill and knowledge; and

assist in organising limited Tribunal resources to meet the demands of an increasing workload. 69 In the lead up to amalgamation in early 2015 the AAT adopted nationally consistent procedures,

promulgated in the form of a Practice Direction, for its tax and commercial list. 70 That Direction has been welcomed in user groups that we have held around Australia and I view it as a

model that can be replicated across the Tribunal’s more high-volume jurisdictions in time. 71 We have continued a nationally consistent practice model for the Migration and Refugee Division and

the Social Security and Child Support Division. 72 I am cognisant, however, that flexibility in procedure is part of what makes independent merits review

tribunals such a unique and valuable part of Australia’s legal landscape. I am also aware that our Executive Deputy Presidents in each state and territory have better visibility on member workload and availability in other divisions.

73 The model we have adopted for our Tax and Commercial list may not be suitable in all jurisdictions

and change needs to take into account those factors. 74 I note that the Tax and Commercial Division’s practice direction will be reviewed in September this

year. As always, we welcome feedback and submissions from practitioners as part of that process.

75 These milestones sum to a momentous achievement of which all of those involved should be proud.

76 Pleasingly, a user feedback survey conducted earlier this year found that overall, parties and representative were favourable in their assessment of the Tribunal’s services.

77 There are many, I want to acknowledge within the organisation for the work they have done to realise those outcomes.

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78 Despite the progress we have made so far in our merger with the former MRT-RRT and the former SSAT, significant constraints continue to limit the AAT’s capacity to utilise its resources most effectively.

79 Many of those constraints are the legacy of differences in statutory procedures left untouched in the

translation of the former stand-alone tribunals to divisions of the AAT.

80 The initial legislative changes introduced to give effect to the amalgamation were, understandably, limited in scope to ensure that change could be achieved in the timeframe available and that the amalgamated tribunal commence effective operation from 1 July 2015. Putting aside some of those issues for later attention was a sensible application of the principle of not letting the perfect become the enemy of the good.

81 With the goal of amalgamation achieved the AAT has identified the task of harmonising its procedures

to the greatest degree possible as its highest priority. 82 I have likened the existing reality at this stage of the AAT’s amalgamation to the government’s

bringing together different state rail systems while leaving for future consideration inefficiencies due to different heritage rail gauges, different systems for managing freight consignment and different rules for engine drivers operating the system’s freight and passenger trains.2

83 With that in mind, earlier in the year I began discussions with the secretaries of relevant government

Departments with proposals to further harmonise the legislation governing procedures in the AAT. 84 For users of the AAT, including parties and representatives, eliminating inconsistencies between

divisions will enhance access to justice and service quality, particularly by making review processes simpler and as fair and informal as possible.

85 Specifically, it is my hope that harmonisation will:

enhance our flexibility to determine the procedures that should be adopted for the review of particular types of decisions through practice directions;

enhance our ability to manage cases effectively and as consistently as possible across divisions which will enable the AAT to make better decisions more quickly;

enable us to make the most effective use of our members and staff by making it easier to work across divisions leading to improvements in the AAT’s efficiency and output; and

reduce the complexity and associated costs of developing business processes and a single set of digital systems to support the review process.

86 Key agencies have now committed to participating in a process to review these issues and develop recommendations for harmonisation.

87 That review is being led by a consultant, Mr Andrew Metcalfe AO, currently a Partner at Ernst & Young and a former Secretary of the Department of Immigration.

88 Mr Metcalfe has been engaged to oversee the examination of the expected efficiencies, costs, and process implications for agencies of adopting different harmonisation measures and to recommend legislative solutions.

2 See Summary of Procedural Differences below

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89 Supported by a small secretariat in the Attorney-General’s Department, Mr Metcalfe has already begun information gathering, which I understand will include consultation and visits with the key agencies as well as other affected stakeholders.

90 I am keen for the outcome of the review to result in a package of legislative measures to tidy up those left-over unnecessary inconsistencies of practice and procedure that logically should be eliminated to complete implementation of the government’s overarching policy decision to amalgamate Commonwealth merits review tribunals.

91 I emphasise that jurisdiction specific practice directions and guidelines must be retained. Those are essential to ensure that our case management processes are best adapted to the nature of the case and the jurisdiction invoked.

92 However, maintaining flexibility and ensuring that the AAT is not a ‘one size fits all’ organisation is not inconsistent with removing unnecessary statutory impediments to harmonisation.

Conclusion 93 The legislative harmonisation project is illustrative of the broader challenge the AAT now faces as an

organisation. But I am optimistic.

94 Much of the work to bring about the physical changes necessary to function effectively have been done or are well on track. We have moved into shared accommodation in Canberra, Sydney, Hobart and Adelaide. We are on track to complete relocation in Brisbane and Perth within a short period and I am increasingly confident that we will be able to achieve co-location for Melbourne in the not distant future.

95 I am proud of what the AAT has achieved in the short time since its amalgamation. 96 I want to again acknowledge the hard work of our staff and the good will and cooperation of our

members that have enabled us, notwithstanding many challenges, to be in such a strong position to move forward into the future. Thank you all.

Duncan Kerr

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G&OD MRD SSCSD

Application must be in writing Application form must be used Application may be oral or in writing

Fee payable within 6 weeks to lodge some types of applications

Migration – fee payable at time of lodgment Refugee – fee payable if unsuccessful

No application fees

Power to extend time limit for making application

No extension of time power Social Security – no time limits (effectively limited by rules for payments) Child support - Power to extend time

Power to stay implementation of decision under review

No stay power No stay power

Decision-maker participates Other parties may apply to be joined

Decision-maker does not participate

Decision-maker does not usually participate Child support applications multi-party

Decision-maker gives T-documents to AAT and parties

Decision-maker gives file to AAT only

Decision-maker gives T-documents to AAT and parties

Statutory ADR/case management processes available

No statutory ADR/case management processes

No statutory ADR/case management processes

AAT can give directions with sanctions for non-compliance

No power to give directions AAT can give directions with sanctions for non-compliance

No power to compel decision-maker to get information

AAT can require Secretary to arrange for examination/investigation

AAT can require decision-maker to exercise information-gathering powers

Summons to give documents, or appear and give evidence (AAT Act)

Summons to give documents, or appear and give evidence (Migration Act)

Notice to give information and documents (various acts) or attend and answer questions (child support/parental leave)

Common law procedural fairness Codified procedural fairness obligations

Common law procedural fairness

Summary of Procedural Differences

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Hearings in public unless confidentiality order made

Migration – hearings in public unless tribunal directs otherwise Refugee – in private

Hearings in private

Representation permitted Representative may speak with leave of member

Representative may speak with leave of member

Can remit to primary decision-maker during the review

No remittal during the review No remittal during the review

Oral decisions always available Can request written statement within 28 days, provided within 28 days

Oral decisions always available Can request written statement within 14 days, provided within 14 days

Oral decisions only available if affirming (except child support) Can request written statement within 14 days, provided within 14 days

Slip rule for correcting obvious errors

No slip rule Slip rule for correcting obvious errors

Giving documents governed by AAT Act, Regulation & Practice Direction Receipt generally governed by Acts Interpretation Act and Evidence Act No specific rules about correspondence recipients or other nominated persons

Giving documents governed by Migration Act, Regulations & Practice Direction Deemed receipt under Migration Act Specific rules about authorised recipients

Giving documents governed by AAT Act, Regulation & Practice Direction Receipt generally governed by Acts Interpretation Act and Evidence Act No specific rules about correspondence recipients or other nominated persons