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Chapter 2 – Overview of the AAT
Contents
The AAT was established by the Administrative Appeals Tribunal Act 1975 and commenced operations on 1 July 1976. On 1 July 2015, the Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal were amalgamated with the AAT.
Our role and function
The AAT conducts independent merits review of administrative decisions made under Commonwealth laws. We review decisions made by Australian Government ministers, departments and agencies and, in limited circumstances, decisions made by state and territory government and non-government bodies. We also review decisions made under Norfolk Island laws.
The AAT’s functions, powers and procedures are set out primarily in the Administrative Appeals Tribunal Act, Parts 5 and 7 of the Migration Act 1958 and in social services legislation that confers jurisdiction on us.
Our jurisdiction
The AAT can review decisions made under more than 400 Commonwealth Acts and legislative instruments. A person can only apply to us for a review of a decision if a law states that we can review the decision. We do not have a general power to review decisions.
The types of decisions that we most commonly review relate to:
- child support
- family assistance and social security
- migration and refugee visas
- taxation
- veterans’ entitlements, and
- workers’ compensation under Commonwealth laws.
We also review a wide range of other decisions, such as decisions about Australian citizenship, bankruptcy, civil aviation, corporations and financial services regulation, customs, freedom of information, the National Disability Insurance Scheme, paid parental leave, passports, and security assessments by the Australian Security Intelligence Organisation.
We can review decisions made under 34 Norfolk Island laws, including decisions about building, land valuation and planning.
The list of Commonwealth and Norfolk Island laws, under which decisions may be made that can be reviewed by the AAT, is on our website.
Our powers
Merits review of an administrative decision involves taking a fresh look at the facts, law and policy relating to that decision. In most cases, the AAT can look at new information that was not available to the original decision-maker. We consider all the material before us, and decide what the legally correct decision is or, if there can be more than one correct decision, the preferable decision. We can exercise all the powers and discretions available to the original decision-maker. We have the power to:
- affirm a decision
- vary a decision
- set aside a decision and substitute a new decision, or
- remit a decision to the decision-maker for reconsideration.
Our outcome, program and purpose
The AAT has a single outcome specified in the 2016–17 Portfolio Budget Statements:
Provide correct or preferable decisions through a mechanism of independent review of administrative decisions that is accessible, fair, just, economical, informal, quick and proportionate.
We are a single-program agency.
The AAT’s objective is set out in section 2A of the Administrative Appeals Tribunal Act. In carrying out our functions, the AAT must pursue the objective of providing a mechanism of review that:
- is accessible
- is fair, just, economical, informal and quick
- is proportionate to the importance and complexity of a matter, and
- promotes public trust and confidence in the decision-making of the AAT.
The AAT provides administrative justice for individuals and organisations seeking to challenge decisions that affect their interests and, more broadly, contributes to improving the quality of government decision-making.
Our organisation
The AAT consists of the President and other members who may be appointed as Deputy Presidents, Senior Members or Members. Their primary role is to hear and decide applications for review of decisions.
Applications made to the AAT are managed in one of eight divisions:
- Freedom of Information Division
- General Division
- Migration and Refugee Division
- National Disability Insurance Scheme Division
- Security Division
- Social Services and Child Support Division
- Taxation and Commercial Division, and
- Veterans’ Appeals Division.
A Deputy President may be assigned as the Head of one or more divisions. A Deputy President or Senior Member may be assigned as the Deputy Head of one or more divisions.
The President is responsible for the overall management of the Tribunal with the assistance of the Division Heads and the Registrar. Staff assist the AAT to carry out our functions.
The AAT also hosts the Immigration Assessment Authority, a separate office within the Migration and Refugee Division. More information about the Immigration Assessment Authority is in Chapter 5.
Figure 2.1 shows our organisational structure.
Members of the AAT
AAT members are appointed by the Governor-General on a full-time or part-time basis for a term of up to
seven years. Members may be reappointed.
Qualification requirements for the various member categories are in the Administrative Appeals Tribunal Act. The President of the AAT must be a judge of the Federal Court of Australia. The other members may be:
- judges of the Federal Court or Family Court of Australia
- lawyers of at least five years' standing, or
- persons with relevant knowledge or skills.
Members of the AAT come from a variety of backgrounds with expertise in areas such as accountancy, aviation, disability, law, medicine, migration, military affairs, public administration, science, social welfare and taxation.
The President and Deputy Presidents can exercise powers in any of the AAT’s divisions. Senior Members
and Members may only exercise powers in the division or divisions to which they are assigned.
At 30 June 2017, there were 322 members of the AAT. Table 2.2 shows the breakdown of the membership by category. Appendix 1 lists all AAT members at 30 June 2017, including the divisions to which each Senior Member and Member was assigned.
| CATEGORY OF MEMBER | JUDGE (WOMEN) |
FULL-TIME (WOMEN) |
PART-TIME (WOMEN) |
TOTAL (WOMEN) |
|---|---|---|---|---|
| President | 1 (0) | 1 (0) | ||
| Deputy Presidents: | ||||
|
Federal Court judges Family Court judges Non-judicial |
13 (4) 5 (2) |
9 (3) | 6 (1) |
13 (4) 5 (2) 15 (4) |
| Senior Members | 23 (12) | 19 (6) | 42 (18) | |
| Members | 62 (31) | 184 (104) | 246 (135) | |
| TOTAL | 19 (6) | 94 (46) | 209 (111) | 322 (163) |
a These figures include 52 members whose terms of appointment expired on 30 June 2017 and do not include 30 new members whose terms of appointment commence in 2017–18.
President, Division Heads and Deputy Division Heads
The President of the AAT during the reporting year until 15 May 2017 was Justice Duncan Kerr Chev LH. Justice John Logan RFD was the acting President from 16 May until 26 June 2017. On 27 June 2017, Justice David Thomas was appointed as a Judge of the Federal Court and as President of the AAT for a
term of seven years.
Table 2.3 lists the AAT’s Division Heads and Deputy Division Heads at 30 June 2017.
| DIVISION | NAME |
|---|---|
| Division Heads | |
| Migration and Refugee Division | Deputy President Jan Redfern PSM |
| Social Services and Child Support Division | Deputy President Jim Walsh |
| Taxation and Commercial Division | Deputy President Bernard McCabe |
| Deputy Division Heads | |
| Migration and Refugee Division | Senior Member Dr Irene O’Connell |
| Social Services and Child Support Division | Senior Member Suellen Bullock |
| Social Services and Child Support Division | Senior Member Irene Tsiakas |
See Appendix 1 for profiles of the President, Division Heads and Deputy Division Heads.
Staff of the AAT
The Registrar is a statutory office holder appointed by the Governor-General on the nomination of the President. In addition to assisting the President in managing the AAT’s administrative affairs, the Registrar undertakes functions relating to the management of applications that are conferred by the Administrative Appeals Tribunal Act and other enactments. The Registrar is Sian Leathem who began a five-year appointment on 7 April 2015.
During 2016–17, the President, the Division Heads and the Registrar were assisted by five officers in Senior Executive Service positions. Table 2.4 lists the SES employees at 30 June 2017. For information on their areas of responsibility, see Figure 2.1.
| POSITION | NAME |
|---|---|
| Executive Director, Corporate Services | Jacqueline Fredman |
| Executive Director, Registry Operations | Elizabeth Connolly |
| Executive Director, Review Support | Bernadette Ryan |
| Executive Director, Strategy and Policy | Christopher Matthies |
| Senior Reviewer, Immigration Assessment Authority | Sobet Haddad |
Other staff are employed under the Public Service Act 1999 as ongoing, non-ongoing or intermittent employees. At 30 June 2017, there were 573 staff. See Chapter 4 and Appendix 2 for more detailed staffing information.
Registries
District Registries
Applicants and other users of the AAT are able to access the Tribunal through registries in each state capital city and in the Australian Capital Territory, as well as through arrangements for the provision of registry services on Norfolk Island. We provide services to users in the Northern Territory from our other registries.
Staff in AAT registries:
- process applications and facilitate the listing and conduct of alternative dispute resolution processes and hearings
- liaise with parties and representatives about their cases and give them information about the AAT’s operations and procedures, and
- provide administrative and other support services to conference registrars and members.
Conference registrars conduct the majority of the alternative dispute resolution processes which are held by the AAT in certain divisions. At 30 June 2017, dedicated national teams provided caseload support and legal services for the Migration and Refugee Division and member support services for the Social Services and
Child Support Division.
Principal Registry
Principal Registry staff advise and assist the President and the Registrar in managing the AAT’s administrative affairs, and provide services to members and staff. They are responsible for business support, corporate legal and policy support, financial and human resource management, library and information services, strategy, communications and governance support and technology services.
Our processes
The AAT’s processes vary according to the type of decision we are reviewing. The differences reflect procedural requirements set out in the Administrative Appeals Tribunal Act, Migration Act and social services legislation as well as particular case management approaches we have developed to deal with the broad range of decisions we review. The main features of our procedures are outlined below.
Our procedures are intended to give an applicant, and any other party to a review, a reasonable opportunity to present their case. While parties may elect to be represented or assisted by a lawyer or other person, a significant proportion of parties represent themselves and we have designed our procedures to facilitate their participation in the review. Details of the accessibility measures we employ, including the use of interpreters, are in Chapter 3.
Steps in a review
When we receive a valid application, we notify the decision-maker who must give us a copy of the decision and all of the documents they hold that are relevant to the review. In divisions other than the Migration and Refugee Division, the decision-maker must also give a copy of these documents to the applicant and any other party at the same time. In the Migration and Refugee Division, the applicant may request a copy of the documents we hold in relation to their review.
In the Migration and Refugee Division and the Social Services and Child Support Division, the decision-maker does not take part in the review. In the other divisions, the decision-maker is an active party.
A key feature of merits review is the opportunity for the applicant and any other party to give us new information to consider in the review. At different stages of the review process, we may invite or direct a party to give us information that will be relevant to the case. The AAT also has the power to require non-parties to give us documents that are relevant to a review.
In some types of reviews, we hold conferences or directions hearings to talk to the parties about the issues and give directions about what the parties must do and by when to progress the case. When a review involves more than one party, we help them try to reach an agreed outcome without the need for a hearing while ensuring steps are taken to prepare for a hearing in the event it cannot be resolved by agreement. As well as conferences, we use other types of alternative dispute resolution processes to try to resolve cases by agreement, including conciliation, mediation, case appraisal and neutral evaluation. In some types of reviews, the case is listed directly for a hearing.
The hearing gives an applicant, and any other party, an opportunity to provide evidence and present arguments about the decision under review. It also allows the AAT to ensure that all issues arising in the review are addressed. A hearing is conducted by the member or members directed by the President to constitute the Tribunal for the purposes of the review. The Tribunal may be constituted by one, two or three members but most reviews are conducted by a single member. The Tribunal is not bound by the rules of evidence and aims to conduct hearings with as little formality and technicality as is appropriate in the circumstances.
Hearings are held in person, by telephone and by video. They are conducted in public, unless the Tribunal directs that a hearing be held in private or legislation requires a private hearing. Hearings must be held in private in refugee cases in the Migration and Refugee Division, in applications for review of ASIO security assessments, and in all cases in the Social Services and Child Support Division.
Following the hearing, the Tribunal makes a decision on the review and must give reasons for that decision. The decision and reasons may be given orally on the day or they may be sent in writing at a later date.
Directions, guides and guidelines
We prepare and publish a range of policy and procedure documents, designed to help parties and their representatives understand our processes and what is expected of them during a review.
The President issues practice directions and jurisdictional guides which explain the procedures that apply for particular types of applications. Other presidential directions and guidelines deal with particular aspects of our operations such as the allocation of cases to divisions, how the Tribunal is constituted for a review and the use of expert evidence. We have also developed process models that describe each stage of our alternative dispute resolution processes. Fact sheets are prepared to provide more targeted information in relation to particular types of cases.
The full suite of practice documents is on the AAT website.
Additional functions conferred on AAT members
As well as performing their role under the Administrative Appeals Tribunal Act, AAT members may, in their personal capacity, exercise powers under a range of other Acts.
Warrants, controlled operations and other functions
Members of the AAT who meet the qualification requirements set out in the relevant legislation may be nominated by the responsible Minister to:
- issue telecommunications interception warrants, stored communications warrants and journalist information warrants under the Telecommunications (Interception and Access) Act 1979
- issue warrants and exercise related powers under the Surveillance Devices Act 2004
- issue delayed notification search warrants and vary controlled operations authorities under the
Crimes Act 1914 - issue examination notices under the Building and Construction Industry (Improving Productivity) Act 2016
- make continued preventative detention orders under the Criminal Code Act 1995
- make orders allowing information given to the Inspector of Transport Security to be disclosed to another government agency under the Inspector of Transport Security Act 2006
- issue monitoring warrants and exercise other powers in relation to the Narcotic Drugs Act 1967, and
- issue search warrants and exercise related powers under the Tobacco Plain Packaging Act 2011.
For some of these functions, only the President and Deputy Presidents may be nominated to exercise the power. For other functions, Senior Members and Members enrolled as a legal practitioner for at least five years may also be nominated.
All AAT members are authorised to exercise a range of powers relating to monitoring providers and compliance with student visa conditions under the Education Services for Overseas Students Act 2000 and the Migration Act.
Table 2.5 shows the number of occasions on which AAT members considered applications under any of the above Acts over the past three years. There was a slight decrease in 2016–17.
| 2014–15 | 2015–16 | 2016–17 | |
|---|---|---|---|
| Number of occasions on which applications considered | 2,786 | 2,849 | 2,751 |
The AAT is flexible in performing these functions and members are available outside standard business hours. In the reporting period, 137 out-of-hours appointments were held.
In a proportion of applications, the issue of a warrant or other authorisation is only granted after further information is provided at the request of the authorised member. A small number of warrant applications are refused, and some are only granted after conditions are imposed, including conditions in relation to privacy. In some instances, the warrant is issued for a lesser period of time than that sought by the law enforcement agency.
Proceeds of crime examinations
The President, any Deputy President, and any Senior Member or Member enrolled as a legal practitioner for at least five years, may be appointed by the responsible Minister as an approved examiner under the Proceeds of Crime Act 2002 or the Proceeds of Crime Regulations 2002. Approved examiners are authorised to issue examination notices at the request of the Australian Federal Police and to oversee compulsory examinations in connection with confiscation proceedings.
Table 2.6 shows the number of examination sessions conducted by AAT members in the last three years. There has been a large increase in the number of examination sessions conducted in 2016–17.
| 2014–15 | 2015–16 | 2016–17 | |
|---|---|---|---|
| Number of examination sessions held | 57 | 49 | 114 |
