THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
2023 Council of Australasian Tribunals National Conference
Wesley Conference Centre Sydney and Online
I would like to acknowledge the traditional owners of the lands on which we meet, and pay my respects to their elders past and present. I extend that respect to any Aboriginal or Torres Strait Islander persons attending the conference today and to those who are joining from remote locations.
I thank the Council of Australasian Tribunals for hosting this important conference on the theme of ‘independence, integrity and impartiality in a changing world’.
In December last year, I announced that the Government would abolish the Administrative Appeals Tribunal and establish – in its place – a new federal administrative review body.
Not so long ago, parliamentarians of all political persuasions, members of the community and even High Court judges would use words like ‘independence, integrity and impartiality’ to describe the AAT.
In 2006, the former Commonwealth Attorney-General Philip Ruddock said that the AAT led the world ‘in administrative law innovation and best practice’.
Regrettably, it is inconceivable that any Commonwealth Attorney-General, from any major Australian political party, would make remotely similar comments now.
It is not my practice to sound a partisan tone at an event like this, but the truth of the matter is that the AAT’s public standing was damaged irreversibly by the actions of the former government over 9 years. I regard that as a straightforward statement of fact.
The previous government’s record of appointing dozens and dozens of individuals from the same political party, many of whom possessed no relevant qualifications or expertise and some of whom were active lobbyists, is well-known.
Those appointments were not made pursuant to a transparent process – let alone an independent merits-based process.
In 2019, the then-President of the Law Council of Australia, Arthur Moses SC, delivered a speech to this Conference about the importance of an independent tribunal appointment process – with a particular focus on the Administrative Appeals Tribunal. In that speech, Mr Moses said:
The independence and integrity of our tribunals depends on an apolitical, open and merit-based appointment system.
There is a real risk that continuing to keep the AAT appointment process behind closed doors will compromise the reputation of the tribunal and will only serve to provide ammunition to those who may not be impressed with later decisions of the tribunal to allege political bias.
Mr Moses went on to say that:
It is critical those appointed [to the AAT] have the necessary skills to discharge its functions according to law and community expectations, and the confidence of the community to do so.
I doubt there are many people here today that would disagree with that.
Against that background, it should surprise no one that a central feature of the administrative review body that will replace the AAT will be a transparent and merit-based selection process for the appointment of non-judicial members.
However, the problems at the AAT extend beyond the absence of a merit-based selection process under the former government.
Our government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and a large and growing backlog of applications, and an AAT that is operating multiple and ageing electronic case management systems – a legacy of the poorly executed amalgamation of the AAT with the Social Security Appeals Tribunal and the Migration Review Tribunal and Refugee Review Tribunal in 2015.
We also inherited an AAT that is no longer taken seriously – or, at least, seriously enough – by government departments and agencies. How can it be that members of the AAT could say – over and over and over again – that the Robodebt scheme was unlawful only for those decisions, and the obvious implications of those decisions, to be ignored and ultimately buried?
The Government is alive to these broader issues and we are working to address them in the process of designing the body that will replace the AAT. Some of that work will undoubtedly be informed by findings and recommendations of the Robodebt Royal Commission, which will hand its final report to government early next month. But work is already well underway.
The Government has established an Expert Advisory Group to provide advice on the design of a new administrative review body. The Advisory Group is chaired by former Justice of the High Court of Australia, the Honourable Patrick Keane AC KC. The other members are Ms Rachel Amamoo, Professor Anna Cody, Emeritus Professor Robin Creyke AO, Emeritus Professor Ron McCallum AO, Former Federal Court Justice, the Honourable Alan Robertson SC and Emeritus Professor Cheryl Saunders AO.
This exceptional group of experts bring a wealth of experience across the justice system and in administrative review. The Advisory Group is providing support to a dedicated taskforce in my department which is tasked with implementing this important reform.
Close attention to the Administrative Appeals Tribunal’s layered history has been, and will continue to be, a crucial part of this reform process – from the work of the Commonwealth Administrative Review Committee in 1968, later known as the Kerr Committee, to the Senate Legal and Constitutional Committee’s 2022 report on the administrative review system, there is a lot of material we can draw on and a lot of lessons to be learned. Our purpose is not to re-invent the wheel but rather to design a body that, like the AAT of old, leads the world in administrative law innovation and best practice.
HISTORY OF THE AAT AND ADMINISTRATIVE REVIEW
As you will all be aware, the Administrative Appeals Tribunal commenced on 1 July 1976, following reports by the Commonwealth Administrative Review Committee (widely known as the Kerr Committee) in 1971 and the Committee on Administrative Directions in 1973. The Kerr Committee report recognised the need for individuals to be able to challenge a growing range of government decisions, and recommended the creation of a comprehensive and ‘essentially Australian’ system of administrative law.
In the second reading speech for the Administrative Appeals Tribunal Bill 1975, then Attorney-General, the Honourable Kep Enderby QC, outlined the intention of the Bill to establish a single independent tribunal and a vision of the AAT as the main tribunal for Commonwealth administrative review. Despite this intention, a number of new tribunals were created between 1975 and the early 1990s to review decisions in high volume areas, including migration, social security and veterans’ benefits. In 2015, Parliament passed legislation to merge the Social Security Appeals Tribunal, the Migration Review Tribunal and Refugee Review Tribunal, and the AAT.
Following a rich and complex history, we now have an opportunity to restore public confidence in the federal administrative review system, informed by the original vision for the AAT. The design of the new body will draw on the objectives of the AAT, when it was established, and will also be informed by everything we have learned about administrative review and tribunals over the past 50 years.
My department is engaging with the AAT, tribunal users, experts and peak bodies to ensure that the reform retains the best elements of the existing model, while dealing with its shortcomings. The valuable insights offered by these stakeholders will be critical to the design of the new body.
The foundational principles of administrative review, so clearly articulated in the Kerr Committee’s report, remain as relevant now as they were at the inception of this system. The principles of an independent person ‘stepping into the shoes’ of the original decision-maker, considering the facts, law and policy of the original decision anew, and making a new decision – either affirming, varying or setting aside the original – still lies at the core of merits review. The core objective of ensuring that government reaches decisions that are correct and preferable is, and remains, the goal.
And much of the original Administrative Appeals Tribunal Act, as it was passed in 1975, retains relevance today – the importance of operating with ‘as little formality and technicality’ as possible, ensuring that decisions are made swiftly, making sure that the AAT is not bound by the rules of evidence and is empowered to inform itself ‘as it thinks appropriate’.
However, the difficulty of redesigning a complex institution with jurisdiction across over 400 Commonwealth Acts and Instruments, and a significant caseload, should not be understated. As I said at last year’s Inaugural Michael Kirby Lecture:
Law reform is hard because it changes the country. Law reform is hard because it sparks heated debate. Law reform is hard because it really matters. These are reasons to pursue it, not to abandon it.
Many of you are likely aware that the Administrative Review Taskforce in the Attorney-General’s Department recently finished a consultation period on an Issues Paper. The paper invited views across 67 questions about the design, structure, membership, powers and procedures of the new body. The Department received 120 submissions in response to the Issues Paper.
The department also created a short, simple survey, to allow a wide range of people to have their say on the design of the new body. There were 287 responses to that survey.
The department has undertaken significant consultation to inform the design of the new body. Throughout April and May, the taskforce met with over 400 AAT staff and over 160 AAT members, heard directly from several tribunal users about their experience, met with 125 other stakeholders, including relevant peak bodies, legal assistance providers, other legal practitioners, advocates and academics.
In total, the department conducted 80 consultation sessions.
With the volume of interest in this consultation process, it will take time to consider and reflect on all of the input received and perspectives shared. Some early themes have emerged around design, membership and appointments, and mechanisms to support improved administrative decision-making across government.
Stakeholders emphasised the value and importance of simple and accessible design – ensuring that all people, regardless of their background or circumstances, are able to access high-quality review.
The success of the new body will rely on the quality and independence of members and the leadership. A transparent, merit-based process to appoint (and reappoint) qualified individuals is essential.
My department has also heard about the importance of the new administrative review body’s membership reflecting the diversity of the community it serves.
There must also be better processes in place to identify and respond to systemic issues in government decision-making. This includes ensuring that decisions made by members of the new body are being fed back to, and are being taken seriously by, departments and other agencies – with a view to improving the overall quality of decision-making across government.
Reflecting on the conference theme ‘independence, integrity and impartiality in a changing world’, my department has heard a lot about the impact of the digital shift (partially driven by COVID) on access to administrative review. On the one hand, a significant expansion of tele and video hearings may improve access for people who would otherwise not be able or willing to attend a hearing in person. On the other, some applicants may prefer to be heard in person, and are concerned about the impact of virtual hearings on how they might present their case.
The Government is considering how to design a new federal administrative review body that reflects the original vision of the Kerr Committee, upholds best-practice in administrative review and adapts to the changing needs of a modern society.
APPOINTMENTS
At the same time as the Government is designing a new administrative review body, the work of the Administrative Appeals Tribunal continues.
Most of you will be aware that on 24 May the Government announced that it was proposing to recommend to the Governor-General that he appoint the Honourable Justice Emilios Kyrou AO as a Judge of the Federal Court of Australia and as President of the Administrative Appeals Tribunal.
The term of appointment is five years and Justice Kyrou would become the inaugural President of the new administrative review body, once established, for the remainder of the appointment term. Justice Kyrou’s term of appointment as President of the AAT would commence on Friday 9 June, the final day of this conference.
Justice Kyrou is widely recognised for his integrity, legal excellence, independence and intellectual capacity. He is an experienced leader and administrator, and is an expert in administrative law. On Australia Day this year Justice Kyrou was appointed an Officer of the Order of Australia ‘for distinguished service to the judiciary and to the law, to professional associations and to the community’.
On behalf of the Australian Government, I congratulate Justice Kyrou.
I would also like to thank the outgoing Acting President, the Honourable Justice Berna Collier, as well as her predecessor, the Honourable Justice Susan Kenny. Their service as Acting Presidents over the past 6 months has provided vital leadership during the early stages of the reform. I would also like to acknowledge Michael Hawkins, the Registrar of the Tribunal, for the sure hand he has provided over the course of this period of transition.
In addition to the new President, the Government has committed $63.4 million to appoint 75 additional members, for a period of two years, to address the current backlog of cases in the AAT. These appointments will be made in line with the new AAT Appointment Guidelines, published at the time of the reform announcement, to support the functioning of the AAT and the transition to a new review body. The Guidelines are informed by key principles in this Council’s Best Practice Guide to Tribunal Independence in Appointments. As that Guide notes:
…public faith in our tribunals depends upon integrity in the appointments process. If a perception arises that members are appointed because of ‘who they know’, public trust in the integrity of tribunals will erode.
The additional member roles were advertised earlier in the year and a merit-based selection process in accordance with the Guidelines is underway. The high level of interest in those roles during this period of reform is reassuring and uplifting.
Recognising the experience of many existing members of the AAT, as well as the need to provide continuity and maintain timely decision-making, the Government has reappointed two Deputy Presidents and 32 AAT members until December 2023. These short-term reappointments will ensure the AAT retains capacity to hear matters and avoid unnecessary delays for applicants while the recruitment process for members and transition to the new body is undertaken.
The Government has also announced the appointment of two new judicial Deputy Presidents to provide additional capacity and expertise in taxation issues. The Honourable Justice Lisa Hespe and the Honourable Justice Geoffrey Kennett have each been appointed for a two-year term and are expected to undertake work in the Taxation and Commercial Division.
Expressions of interest for membership of the new administrative review body will be advertised later this year. Those interested in appointment to the new body, including current non-judicial members, will be invited to apply through this process, which will also be conducted in accordance with the new guidelines.
This is a great opportunity for members of the legal profession, and other Australians with relevant experience, to make a significant public contribution to this major reform of Australia’s system of administrative review.
I encourage you to consider whether you, or someone you know, would be well-suited to making such a contribution. More information about these opportunities will be available on my department’s website in the coming months.
A SAFE AND RESPECTFUL WORKPLACE
It is vital that the new body is underpinned by a legislative framework that meets community expectations. It is equally important that the legislation be implemented in a way that matches this expectation.
For example, a key concern that has been emphasised through the public consultation process is the need to establish a robust process for addressing concerns about performance and conduct within the Tribunal.
A successful reform will take an important step in building a positive workplace culture and promote safety, respect, diversity and inclusion at the new review body. While the leaders of the new body will build organisational culture in practice, an improved legislative framework can better equip the organisation to respond to any concerns about performance or conduct.
As the Attorney-General’s Department develops advice to government, one of its focuses is on creating a new body that fosters a safe and supportive working environment, both through the legislation and through the practical implementation of the reform.
A SINGLE CASE MANAGEMENT SYSTEM
As I identified when I first announced the reform, the current AAT is operating on multiple separate and ageing case management systems. A modern, effective tribunal needs the technology to support its operation. This includes seamless engagement for tribunal users, staff and members, and the ability to collect meaningful data to inform a culture of continuous improvement. In the 2023 24 Budget, the government committed to an additional $11.7 million in funding to develop and implement a single and updated case management system for the new review body.
The case management system is an important component of the reform. It offers the opportunity to collect better data on caseload and users of the new body, as well as the performance of members. This has the two-fold advantage of allowing the new body to better target its case management to, for example, particular cohorts of vulnerable individuals.
The foundational work for the new case management system has already commenced and will be informed by the structure of the new review body.
BROADER REFORM
The creation of a new administrative review body is the primary focus of a broader reform agenda when it comes to the administrative review system.
However, the original vision for the system of administrative law that was created in the 1970s also included other components, including an Administrative Review Council to ‘carry on continuous research’ into administrative decision-making.
The Administrative Review Council was established by the same legislation that established the Administrative Appeals Tribunal. However, it is worth remembering that the Council was not included in the original version of the Administrative Appeals Tribunal Bill. The Whitlam Government agreed to the establishment of the Council, which was a recommendation of the Kerr Committee, in response to amendments moved by Liberal MP and future Prime Minister John Howard. In other words, the creation of the Administrative Review Council was, in the truest sense, a bipartisan reform.
The same cannot be said for the Council’s effective abolition, which was a unilateral decision made by the Abbott Government in 2014 with no consultation and no clear rationale – other than to achieve what the then-Attorney-General George Brandis described as a ‘relatively small saving’.
The part of the Administrative Appeals Tribunal Act that establishes the Administrative Review Council was not formally repealed. Instead, its effective abolition was achieved by not renewing the appointments of Members after their terms expired and by starving the Council of funding.
One year after the Abbott Government decided to abolish the Administrative Review Council, Federal Court Justice Susan Kenny, who I mentioned earlier, wrote that:
Without an effective [Administrative Review Council] one may anticipate greater fragmentation and more failures in the administrative law system, with the accompanying costs, delays, and other inefficiencies that these entail.
Justice Kenny, a former President of the Administrative Review Council, wrote those words in 2015 – the same year that the former government introduced the first iteration of the Robodebt scheme. That unlawful and grossly immoral scheme continued for over four years and was rightly described by Federal Court Justice Bernard Murphy in June 2021 as ‘a shameful chapter in the administration of the Commonwealth social security system and a massive failure of public administration’.
It is not difficult to draw the connection between the abolition of the Administrative Review Council in 2014 and the creation, expansion and continuation of the unlawful Robodebt scheme from mid-2015 until late 2019. In a submission to the Senate inquiry into the performance and integrity of Australia's administrative review system in late 2021, Melbourne Law School highlighted that:
Robodebt occurred during the period in which the ARC was functionally obsolete. The factors leading to it were matters squarely within the remit of the Council’s oversight functions. In our submission, it is highly likely that a properly functioning ARC would have kept close watch on the relevant debt recovery processes and would very likely have undertaken inquiries and issued strong letters of advice with respect to it. The Robodebt experience provides among the strongest of arguments for why we need to re-establish the ARC.
That and other submissions led to a majority of the Senate Legal and Constitutional Affairs Committee recommending the immediate re-establishment of the Administrative Review Council – a recommendation that was expressly, and strongly, rejected by Coalition Senators without explanation.
Suffice it to say that, as part of our commitment to reforming the administrative review system, the Government is giving careful consideration to the re-creation of the Administrative Review Council or similar body.
CONCLUSION
I would like to conclude by quoting from a speech delivered by the late Sir Gerard Brennan to the Administrative Appeals Tribunal's 30th Anniversary Dinner in 2006.
Sir Gerard was, of course, the inaugural President of the Tribunal and with the benefit of that experience – and having observed the Tribunal over its first 30 years – his comments carry immense weight. He said:
An essential characteristic of the AAT is that it is independent of the Executive branch of government. It must be independent in its thinking, independent in its procedure, independent in its interpretation of the law. Not only does independence give authority to the AAT and its decisions; independence is essential to the AAT’s very survival. If it were not, and were not seen to be, independent of sponsoring departments, its existence would be a costly charade. Unless the resources that are expended in maintaining the AAT produce a better quality of administrative justice than primary decision-making, those resources would be much better devoted to decision-making at the primary level. The independence, competence and expertise of the members of the AAT, its powers and processes are designed to produce better administrative justice for individuals and corporations. So it is to be hoped that the level of competence and expertise will be maintained, and that the independence of the members is assured. Those are the essentials if the AAT is to perform the function for which it was designed.
Sir Gerard went on to speak about the primary and secondary benefit of AAT review. He said:
The primary benefit of AAT review is, of course, the doing of individual justice. It is to secure administrative justice for those affected by the exercise of power and for those for whose benefit power is conferred on a repository. Administrative justice is, of course, justice according to law but it is also justice according to lawful and reasonable policy.
The secondary benefit which the AAT confers is the exposing of policy to critical review. The AAT ensures that policy conforms with the law and that it is reasonable in its application to concrete situations. The requirement to state reasons for decisions, both at the primary and at the review level, ensures openness and legitimacy in the exercise of executive power. These are tremendous benefits in a modern complex democracy - benefits that would not be available but for an institution vested with power to review decisions on their merits.
The Government is committed to establishing an administrative review body that embodies the essentials that Sir Gerard referred to in 2006 – a body that reflects Sir Gerard’s original vision for the AAT.
Each year, tens of thousands of people rely on the Administrative Appeals Tribunal to independently review decisions made by Commonwealth ministers and public servants that have major and sometimes life-altering impacts on their lives – decisions such as whether an older Australian receives an age pension or whether a participant of the NDIS receives funding for essential support.
Those Australians, and all Australians, deserve an administrative review system that delivers individual justice and a system which ensures that government policy conforms with the law and is reasonable in its application.
The reform to Australia’s system of administrative review is ambitious and it is necessary.
Administrative review of government decision-making is key to Australia’s system of government. We now have an opportunity to design a new administrative review body that will deliver, and build, on the promise of the Administrative Appeals Tribunal when it was first established almost fifty years ago.
Thank you for the opportunity to address you.
