Administrative Appeals Tribunal

[09:04]

CHAIR: I call officers representing the Administrative Appeals Tribunal. Would you like to make an opening statement before we go to questions?

Ms Leathem : Thank you, Chair. I do have a short opening statement.

CHAIR: Please deliver it.

Ms Leathem : The Administrative Appeals Tribunal is a small but crucial part of the Australian government's administrative decision-making process. We provide an opportunity for independent merits review of government decisions made under more than 400 pieces of legislation. Our 2018-19 annual report was tabled yesterday and, as you may not have had a chance to read that, I want to highlight a few key statistics. During the reporting period, we received 60,595 applications for review, the highest ever number of lodgements to the AAT. During the same period, we were able to finalise 44,413 applications. While this represents the highest number of finalisations ever achieved, it was just short of our published performance measure of 45,600 applications.

The AAT is a demand-driven organisation. We face ongoing challenges in our ability to meet that demand, largely as a result of increases in the number of applications lodged in the Migration and Refugee Division. These types of applications are now at record levels and have more than doubled over the past three years. These challenges were reflected in other aspects of our performance during 2018-19, including a deterioration in the timeliness of our finalisations. Outside of the Migration and Refugee Division, we continue to meet or exceed our target of resolving more than 75 per cent of applications within 12 months of lodgement. However, due to the increasing backlog and delays in the Migration and Refugee Division, our overall result declined from 77 per cent in 2017-18 year to 66 per cent in 2018-19 year. This trend is set to continue. On a positive note, we met or exceeded all other key performance measures in 2018-19.

The AAT remains committed to transparency as a means of building public trust and confidence. We remain one of the highest volume publishers of decisions amongst all courts and tribunals in Australia. During the reporting year, we published 5,905 decisions, 18 per cent higher than our target. The proportion of appeals against AAT decisions which were allowed by the courts remains low, which is evidence of the quality of our decision-making and there was improvement in our performance measure for the experience of our tribunal users, including applicants and their representatives. Thank you and I invite questions from the committee.

Senator KIM CARR: I appreciate your opening statement. I noticed that you referred to the building of public trust and confidence. Do you think you've got a problem with public trust and confidence?

Ms Leathem : It's one of the key reasons we have put special effort into making sure that we publish as many decisions as possible as well as ensuring that we engage with our stakeholders. We've also recently introduced a couple of additional publications. We think that has very much helped increase the level of understanding of what the AAT does and the types of decisions.

Senator KIM CARR: Why do you think you have a problem with public trust?

Ms Leathem : I didn't say that.

Senator KIM CARR: The point you made was that you are trying to build public trust. How do you measure it?

Ms Leathem : It was simply about trying to increase the level of understanding and knowledge of the decisions that we make.

Senator KIM CARR: Do you think the method of appointment of members to the Administrative Appeals Tribunal might be an issue in regard to building public trust?

Ms Leathem : The appointments to the tribunal are a matter for government.

Senator KIM CARR: Who should I ask about that; is that the minister?

Senator Payne: It's a matter for you, Senator, as to whom you target the question.

Senator KIM CARR: I will start with you, Minister. I'm led to believe that the government has put in place a new method of selection for members of the tribunal; is that correct?

Senator Payne: To the best of my knowledge, a protocol has been developed between the Attorney-General and the President of the Administrative Appeals Tribunal which relates to managing the ongoing appointment needs of the AAT. Ms Leathem has referred to the increase in business, if I can put it that way—the increase in the volume of activity. As I understand it, the Attorney-General in consultation with the president has developed a revised protocol, which was approved by the Prime Minister. That came into being in March of this year. This committee, as I understand it, was provided with a copy of that protocol some months ago.

The process underneath that involves seeking expressions of interest for appointment to the AAT. That was advertised and that process opened on 8 August and closed one month later. I am advised that there were over 800 expressions of interest received for that. Those expressions will be held on a register for up to a year. This process is used to inform the President of the AAT's recommendations to the Attorney-General about any future appointments to the AAT. My understanding is that the number and the level of any appointments that are recommended as a result of that EOI process are a matter for the president.

Senator KIM CARR: Thank you. I have a briefing paper which was produced under FOI. It appears to be dated from 2018. Is it the case that, as of prior to the establishment of this new protocol on 25 March, the merit-based selection process for the AAT had not been conducted by government?

Senator Payne: I don't have particular information on that. You asked about the protocol and I responded in relation to that. If there are further questions you want me to take on notice for the Attorney in relation to historic appointments, I'll do that.

Senator KIM CARR: Perhaps I'll ask the secretary. Mr Moraitis, could you assist me with that? Is that the case?

Mr Moraitis : We've explained several times that the protocol has had various iterations. In the period up to this year, there was a separate protocol in place which was somewhat different in the sense that there were no expressions of interest sought from the broader public. It was essentially a process between the president of the AAT and the Attorney—that is, the minister—who would then go to Executive Council via cabinet decisions. That process was followed until March this year. As the foreign minister has set out, a new protocol sets out a process of public expressions of interest and, as she has described, that process has well and truly commenced and there is a live, as it were, list of potential applicants.

Senator KIM CARR: Why wasn't the merit-based process in place prior to the establishment of this new protocol?

Mr Moraitis : It's before my time, but perhaps that was the view of government at the time that that process was the way to best accommodate the demands of the AAT's needs to fill positions. Let me note that my understanding is that there are no fixed number of positions in the AAT. It depends on demand and requirements of various skill sets. So the discretion of the president was to engage with government. The process now is a bit more—

CHAIR: Is it any different to the process that was in place under Labor?

Mr Moraitis : I would have to ask Mr Anderson. It was before my time.

Mr Anderson : The process under Labor did involve an advertised process with a selection panel. I should add to Mr Moraitis's answer that the previous protocol did also provide for a merit-based selection process. It had three particular steps. The first step was that the President of the AAT wrote to the Attorney and made recommendations about either reappointments or fresh appointments. The second step was that the Attorney would consider that and could add additional names of his or her choosing. If there were positions that the president and the Attorney were desirous of filling that they had not identified between them, people to fill those positions then they were provided through a merit-based process.

Senator KIM CARR: Yes. But the briefing note that was produced under FOI from the department specified that it was a different approach taken by the department than that of previous Labor governments. The department said that, prior to the government introducing its own appointments protocol, 'Appointments to the AAT were made in accordance with the Australian Public Service Commission's merit and transparency guidelines for merit-based selection of APS agency heads and statutory officeholders.' So there was, in fact. quite a specific difference in approach. Is that not the case?

Mr Anderson : It's correct that there was a different process, as I already indicated. The reason the protocols, both current and previous, were approved by the Prime Minister is that that's in accordance with the APSC's rules for the conduct of merit-based selection tests, that they operate as an exception to those rules.

Senator KIM CARR: I see. You would obviously be familiar with the Callinan report into the AAT?

Mr Anderson : Yes.

Senator KIM CARR: It is reported that Ian Callinan recommended that all further appointments be made on the basis of merit; is that correct?

Mr Anderson : It's important to distinguish between a process and then the actual appointment itself. The criteria for appointment, as set out in the AAT Act, have not changed at any stage. It has always been that for different levels of appointment they are required to be a judge for certain levels of presidential positions, a legal practitioner of at least five years standing or a person who has special knowledge or skills in the view of the Governor-General that are relevant to the position.

Senator KIM CARR: I'm always interested when a public servant says you've got to distinguish between the process and the actual outcome, which is the point that you made. It's a Sir Humphrey world. It's a very sharp distinction between the process and the outcome. You've said here the normal criteria is five years of legal training or specialist knowledge.

Mr Anderson : Special knowledge or skills relevant to the position in the opinion of the Governor-General.

Senator KIM CARR: Special knowledge or skills. Let's have a look at a couple of those, will we? But before we do, why do you think—it was Justice Callinan, wasn't it?

Senator Payne: It was. The Hon. Ian Callinan AC.

Senator KIM CARR: So why would you think that he would recommend that all future appointments be made on the basis of merit? Why do you think it would be necessary to recommend that?

Mr Anderson : You'd have to do ask Justice Callinan the basis of this—

Senator KIM CARR: Yes, I know I would. I anticipate your response in that regard. But I'm a newcomer in this field, and I'm just interested to know why a man of his calibre would have to make that recommendation.

Senator Payne: I'm not sure you can expect Mr Anderson to put himself into the mind of Justice Callinan.

Senator KIM CARR: Secretary, would you be able to answer that? Why do you think former chief justice Callinan—was he a chief?

Mr Moraitis : He wasn't a chief justice. He was a judge of the High Court.

CHAIR: He's a former Justice of the High Court.

Senator KIM CARR: Why do you think a High Court judge would have to recommend to the government to make appointments to the AAT on the basis of merit? Why do you think he would need to do that?

Mr Moraitis : I've got nothing further to add to what Mr Iain Anderson said about this. I think it's really a matter for Mr Callinan. He came with a fresh set of eyes, based on his experience as a judge and a barrister. I think his starting premise would be, in these situations, that merit should be a determinative element, but I'm speculating.

CHAIR: It's hard to imagine him recommending anything else.

Mr Moraitis : Exactly. That's a first principles approach for anyone with that experience. Also, if I recall, Justice Callinan also proposed various other things to do with the appointment of members of the AAT, such as that they should all be legally qualified, but, as Mr Iain Anderson pointed out, the act actually provides for other forms of appointment, not necessarily exclusively legal, based on specialist experience. As I alluded to previously, the AAT has a broad spectrum of skill sets required, ranging from health expertise, social security expertise and other forms of expertise that's not necessarily legal.

Senator KIM CARR: So it's either five years or specialist experience, right? So how many of the current AAT members appointed by this government do not have legal experience?

Mr Moraitis : I'd have to take that on notice, unless Dr Smrdel has those details.

Mr Anderson : No. We'd have to take it on notice.

CHAIR: We've just hit almost 11 minutes. I've been sharing the call around, yesterday and today, in 10-minute blocks. Do you want to make a decision on whether you want to bring this to a conclusion or whether you want to continue in another block?

Senator KIM CARR: I won't be bringing it to a conclusion, because there's a fair bit I need to explore here. You might be able to find that out for me, because that wouldn't be too hard to find out, would it? You'd know that. Perhaps the president could tell me. How many of the current—

Ms Leathem : I haven't got that information. We would have to take that on notice.

Mr Anderson : I note the department is scheduled to give evidence later this afternoon, so we'll make our best endeavours to have that answered by this afternoon.

Senator KIM CARR: Thank you for that. That would be helpful. Chair, if you're going to break it up into 10-minute blocks, that's fine.

CHAIR: Thereabouts, yes.

Senator KIM CARR: I'll return to this matter. I want to look at some specific cases of specialist knowledge that the secretary has referred to.

CHAIR: Okay. The witnesses have notice of your interest, which is good.

Senator SIEWERT: Morning. I want to ask some questions. There's a lot of detail in the annual report, but it doesn't go to the level of detail on some issues that I would like, so I would like to follow it up. Looking at the number of cases that you have been dealing with, the caseload, it's quite clear that in terms of the Centrelink cases the number of cases around the DSP has continued to be the bulk of the cases that you have received.

Ms Leathem : I might invite Chris Matthies, our Executive Director of Strategy and Policy, up.

Mr Matthies : That's correct. The applications relating to disability support pension would constitute the largest set of particular applications about payment types. That's correct.

Senator SIEWERT: And they have continued to increase? And there are more cases still to be resolved in terms of on-hand caseload?

Mr Matthies : In terms of lodgements in relation to the disability support pension, they increased from 3,610 in 2017-18 to 5,348 in 2018-19. That was an increase of 48 per cent. In terms of the on-hand applications, as at 30 June 2018 it was 707. As at 30 2019 it was 1,114, which relates to that increase in lodgements.

Senator SIEWERT: That's a significant increase on hand.

Mr Matthies : Although I note in relation to the current financial year in the period from 1 July to 30 September there's been a decrease of 27 per cent in disability support pension applications compared to the same period in the previous year.

Senator SIEWERT: A decrease?

Mr Matthies : Yes.

Senator SIEWERT: That's over the quarter for that same period?

Mr Matthies : From 1 July to 30 September, comparing the current year to the previous year.

Senator SIEWERT: But, overall, last year it was up 48 per cent?

Mr Matthies : Correct.

Senator SIEWERT: Can you tell me the nature of the appeals or the applications? I understand they were not getting it, but on what grounds?

Mr Matthies : For 2018-19, I have some figures relating to the disability support pension applications that were finalised. Actually, no. All I've got is some information breaking down the number of applications where the decision under review was set aside. That would give some indication of the overall make-up of the caseload. Certainly the majority would be refusal of a disability support pension claim. A much smaller proportion would be cancellations. Then there would be some other types of decisions. But the actual breakdown for the full set of applications either lodged or finalised I'd need to take on notice.

Senator SIEWERT: If you could take that on notice that would be appreciated. Thank you. In terms of the DSP in particular, how often do you require further medical advice?

Mr Matthies : I don't have that information with me. I'm not sure that we would necessarily record that information in our case management system. In cases for which either we have suggested that to the applicant or the applicant has provided some additional medical evidence, I don't think we would record that information.

Senator SIEWERT: If somebody were then seeking a review, if you don't record it, how do you then take that into consideration in second review?

Mr Matthies : Certainly we provide information to applicants about the nature of the case and the kind of information that they should provide to the AAT in relation to their matter. If the party then does provide further medical evidence, obviously that is taken into account by the tribunal. Then that material would be available on second review if the person then was unsuccessful at first review and applied for a second review.

Senator SIEWERT: But do the AAT require any further medical advice?

Ms Leathem : I think it entirely depends on the particular circumstances of that case. If it went to a second review, there would in almost all instances be a conference conducted during which they would explore whether or not there was any further evidence that might assist in the resolution of the matter.

Senator SIEWERT: When you require that, do you look at the feasibility of any of the decisions that you make in relation to that further medical advice?

Ms Leathem : What do you mean by 'feasibility'?

Senator SIEWERT: I'm trying to draw out some of the details of a particular case without going to the particular case. But in some instances—and this isn't the only instance—the advice that's been found through the AAT has been infeasible, because they can't afford to undertake what's recommended. Do you look at that?

Ms Leathem : A conference registrar on second review would be having a conversation with both of the parties—the applicant and the respondent agency—about what might be needed to be able to resolve that matter. That would be considered as part of all of the material.

Senator SIEWERT: That's under a second review?

Ms Leathem : That's right.

Senator SIEWERT: What about when the case first comes to you?

Ms Leathem : If it's first review then, as Mr Matthies said, we do try to provide as much information as possible through our website. We also have fact sheets available to people to let them know the sorts of information that would be useful. It's not possible for us to evaluate affordability at that point in time.

Senator SIEWERT: So you don't take that into account?

Ms Leathem : It wouldn't be something we could possibly take into account.

Senator SIEWERT: Affordability or feasibility aren't taken into account when you make your decisions?

Ms Leathem : What I was saying is that we provide information to the applicants about what is helpful in being able to consider and determine their application. It's then a matter for parties to our proceedings to be able to put forward information. Obviously we're not in a position to be able to make evaluations about affordability in that regard.

Senator SIEWERT: Or feasibility. When you make a decision, you don't take into account the feasibility of the decision that you make?

Mr Matthies : In terms of actually making the decision, it must be based on the information that is available to the tribunal. I'm not sure that, in that context, whether or not particular evidence was able to be provided would be a relevant consideration at the point of deciding whether or not the particular criteria had been met.

Senator SIEWERT: Do you seek further medical advice? Do you require people to seek further medical advice or do you work on the department? Sorry—I realise that's a three-pointed question.

Mr Matthies : We don't require parties to provide medical information. We would certainly suggest the kind of information that might be relevant and potentially look at ways in which that may be able to be gathered, including by the tribunal making a request for information or the party, for example—those kinds of options. But we wouldn't require somebody, for example, to seek an expert medical opinion, as far as I'm aware.

Senator SIEWERT: Or suggest that people undertake treatment?

Ms Leathem : I think it's very difficult without further information about the specifics to venture an opinion.

Senator SIEWERT: Sorry—that's a very general question. In your decisions, do you ever then recommend that someone seek further treatment?

Mr Matthies : I'm not sure. I think we'd have to take that on notice.

Senator SIEWERT: Could you take that on notice, please? And the next question is, does the department sometimes provide further medical advice?

Mr Matthies : At first review?

Senator SIEWERT: Through your process, during either the first or the second review, does DSS provide any further medical advice?

Mr Matthies : I'm certainly aware that it may occur at the second review stage. But I think we'd need to take that on notice in relation to first review.

Senator SIEWERT: If you could take that on notice, that would be appreciated. Of the case load for DSP—and you may need to take this on notice—how many of the applicants had been put on a program of support?

Ms Leathem : I think we'd definitely have to take that on notice.

Mr Matthies : Although I'm not sure that we would necessarily, again—

Ms Leathem : Have that data.

Mr Matthies : have that information recorded in our case management system—that level of detail.

Senator SIEWERT: Why is that? If they're on Newstart, for example, and they're on a program of support, why would that not be recorded?

Ms Leathem : Because we record the type of payment, not necessarily some of the underlying factors in relation to that. That's a level of granularity that I suspect our case management system would not go to. Obviously if we did individual audits of matters you would find some that did and some that didn't involve programs of support. But I'm fairly confident that's not part of the case management data collection.

Senator SIEWERT: Can I be really clear: you've just said you'd take on more information. During both the first review and the second review, you had the capacity and do take on the provision of further information by the applicants.

Ms Leathem : Yes.

Senator SIEWERT: And by the department?

Ms Leathem : In first tier, they generally don't appear, but in second tier that would be not an unusual situation.

Senator SIEWERT: Thank you.

Senator KENEALLY: Thank you all for being here today. I have some questions regarding the Migration and Refugee Division. The AAT's performance target in the Migration and Refugee Division, as I understand it, is to finalise 75 per cent of all applications within 12 months; is that correct?

Ms Leathem : Yes, that's correct.

Senator KENEALLY: In 2016-17, I understand that 66 per cent of migration or refugee matters were finalised within 12 months. In 2018-19, that had fallen to 36 per cent and it is now 27 per cent for 2019-20. Do you have a target that you anticipate you will hit in this financial year or do you expect that number to drop further?

Ms Leathem : We do maintain our published performance target of 75 per cent for all matters within the AAT. As the senator has noted, obviously we've had a deteriorating finalisation timeliness in the Migration and Refugee Division in particular. We're not proposing to change the published target but we acknowledge, obviously, we've been struggling to meet it, particularly in that division. In the 2018-19 year, the clearance ratio was 58 per cent. I am able to report that for the first quarter of this financial year that's increased to 62 per cent, but obviously we're not keeping pace with the volume of lodgements.

Senator KENEALLY: I want to ask about that because it's my understanding that between 1 July 2019 and 30 September 2019, the Migration and Refugee Division received 10,144 new applications and only finalised 6,281. As you've just said, you're not keeping pace. That means you are receiving 60 per cent more applications than you are managing to finalise. How many members currently hear applications in the Migration and Refugee Division?

Ms Leathem : If you bear with me, I'll see if I can find that number. We do have a total at the moment of 353 members, but obviously not all of those are assigned to the Migration and Refugee Division. We have the equivalent to 105 full-time members currently servicing the Migration and Refugee Division.

Senator KENEALLY: What is the current case load in the Migration and Refugee Division? How many cases are currently before it?

Ms Leathem : Mr Matthies, have you got the on-hand?

Mr Matthies : As at 30 September 2019, 63,576.

Senator KENEALLY: How many of those are in the refugee division and how many are in the migration?

Mr Matthies : Applications relating to protection visas is 23,063 and other migration decisions is 40,513.

Senator KENEALLY: What is the average processing time for refugee and migration appeals?

Mr Matthies : That was all applications finalised in 2018-19 relating to protection visas. The median time from lodgement to finalisation was 72 weeks.

Senator KENEALLY: This might be a difficult question to answer but is there a high-water mark for appeals? Have you seen it blowout? Is this a high-water mark as a median figure?

Ms Leathem : This is the record level, if you like, of applications in terms of both lodgements and matters on hand.

Senator KENEALLY: Of this appeal case load, what percentage are people appealing failed protection claims?

Mr Matthies : Are you referring to the proportion of people who when they get an adverse decision from the department are appealing to the AAT?

Senator KENEALLY: Yes, for failed protection claims.

Mr Matthies : We don't have those figures. That's really a matter for the Department of Home Affairs.

Senator KENEALLY: Thank you. Are you able to provide the nationalities of the individuals appealing in the refugee division?

Mr Matthies : Yes.

Ms Haddad : I'm not sure what order you want them in.

Senator KENEALLY: Why don't we take them from the highest? Maybe give me the top five.

Ms Haddad : Okay. Just bear with me, because I have them in alphabetical order rather than numerical order. Would you like this financial year so far or last?

Senator KENEALLY: If you could do both. I'm happy to take the last year on notice.

Ms Haddad : I can do last year to begin with.

Senator KENEALLY: Okay, if that's easier then.

Ms Haddad : I've now got a table that's much more straightforward. Last year the top country was Malaysia with 5,825. The next country was China with 2,821. That was followed by Vietnam with 562.

Senator KENEALLY: So Vietnam is only 562?

Ms Haddad : Yes. My apologies, Senator, this is for 2017-18. I'll come to 2018-19 in a minute. Pakistan was 345, Indonesia was 294 and Sri Lanka was 234. Would you like to drill down further, Senator?

Senator KENEALLY: No, that's fine. You have the figures for 2018-19 as well?

Ms Haddad : I do.

Senator KENEALLY: That would be great.

Ms Haddad : Again Malaysia was the top country with 5,858. That was followed by China with 1,561. That was followed by Vietnam with 465. Then there was India with 227 and Pakistan with 178.

Senator KENEALLY: Have you seen over the last five years any trends emerge? Is there any consistency in those numbers? Have they increased from certain countries?

Ms Haddad : The overall numbers have increased considerably, so they doubled in the last couple of years and quadrupled over the last 10 years. In the last three years certainly Malaysia has been the dominant country.

Ms Leathem : It has represented more than half of the protection lodgements in the last couple of years.

Senator KENEALLY: Do you have any insight as to whether the length of appeal time has a honeypot effect—that is, do you have any analysis or insight that people are appealing for the simple reason that it will give them more opportunity to extend their time in Australia?

Ms Leathem : We deal with the applications. It's probably for others on the policy front to be considering some of the other factors that might be in play here. We have to deal with the matters that come before us.

Senator KENEALLY: Have you had any requests from other departments in terms of analysis or advice?

Ms Leathem : There are certainly discussions happening, and the Attorney-General's Department are involved in those.

Senator KENEALLY: I might put some questions to them. Similarly, do you have any evidence or insight as to whether these individuals are coming here of their own choosing? Are people or intermediaries coercing, encouraging or, quite frankly, trafficking them here?

Ms Leathem : Again, I don't think that's something that we could reach any conclusions on or speculate about.

Senator KENEALLY: Are there discussions with Attorney-General's or Home Affairs about that?

Ms Leathem : I'll leave it to the Attorney-General's Department if they wish to say anything in relation to those discussions.

Senator KENEALLY: In the time remaining I have a few more questions. You said that there are 105 full-time equivalents in the Migration and Refugee Division. The Migration Act is fairly complicated. Most lawyers tell me that they find it difficult to navigate. How many members with no legal qualifications currently work in the Migration and Refugee Division?

Ms Leathem : I don't have that number. I would need to take that on notice.

Senator KENEALLY: Would you have that information?

Ms Leathem : We would need to go back and see what records we hold in relation to particular members and qualifications, but of course the appointment of members is a matter for government. We don't have a specific role in terms of the appointment of the members.

Senator KENEALLY: I'm asking you if you have the information.

Ms Leathem : We receive a CV. That should give you some information, but we would need to drill down into that information to be able to come up with an accurate figure for you.

Senator KENEALLY: Similarly, can I put on notice to advise whether there is a noticeable difference in the performance of members with legal qualifications as against those with no legal qualifications in the Migration and Refugee Division. Is there any significant difference in the time frames taken to finalise their decisions?

Ms Leathem : All members are effectively subject to the same professional development framework and evaluation process. Within the Migration and Refugee Division there is a case load strategy. Depending on the mix of work that they do, members are set a specific target for the work to be able to be undertaken. There is no distinction for particular qualifications, although of course for newer members there is a recognition that it takes some time for training and development and there may be some discount to that target while they are getting up to speed.

Senator KENEALLY: That is very helpful. Can I make two observations? One, can you tell me—you may need to take this on notice—of the 105 full-time equivalents in the Migration and Refugee Division, how many have been appointed in the last 12 months? They are newer members, that is. Secondly, given your answer that they each have performance targets, if I can characterise your answer in that way, once you know which ones have legal qualifications and which ones don't it shouldn't be too hard to answer the question I just put on notice as to whether people with legal qualifications are meeting their targets in a different way to the people who don't have legal qualifications.

Ms Leathem : I will take that on notice.

Senator HANSON: Just to follow on from those questions, what is the average time to process this, with regard to these migration and immigration cases?

Ms Leathem : There are different results depending on the type of case. There is migration and protection. I think Mr Matthies has some median time frames for resolution of each of those particular case loads.

Mr Matthies : Overall for the Migration and Refugee Division, in 2018-19, the median time from lodgement to finalisation was 68 weeks. It was also 68 weeks for the migration component of the case load and 72 weeks for the protection component of the case load.

Senator HANSON: How much does it cost them for their application—the fees that they actually have to pay for this?

Ms Leathem : I think for a migration and refugee matter the standard fee is $1,787.

Senator HANSON: That has increased over the years. What was that last year or the year before?

Ms Leathem : It is indexed.

Mr Matthies : I don't think we have that figure for the previous year with us. I just add, though, if you are a applying for review of a protection visa decision, there is no fee payable at the time of lodgement, but if the applicant is unsuccessful, then that $1,787 fee is payable.

Senator HANSON: You've got 68 weeks for finalisation of migration, 72 weeks for visa. What happens? Just guide me through it. They put in an application. There is an interim hearing, is that correct? It's heard, and then they have to wait for a decision? What happens in between? Are they given bridging visas; are they given work visas? What happens in between?

Ms Leathem : That is a really question for Home Affairs. We are not involved in any of the granting of the visas. By and large the position would be that most applicants would have a bridging visa for the duration of the matter being before the tribunal.

Senator HANSON: Once you are waiting for a decision to come down—you've got quite a number here. This year 5,858 Malaysians have applied for this. How many go before you again, 68 or 72 weeks later? How many go before you again for the final decision? Or do they leave the country before a final decision is handed down?

Ms Leathem : No, I wouldn't have those figures.

Senator HANSON: You don't have those figures for finalisation. You know how many are putting in applications, but you don't know how many you actually finalise the cases on?

Ms Leathem : Certainly we can tell you the number of finalisations. I wasn't clear what you are asking in terms of people turning up.

Senator HANSON: The people who put in their applications.

Ms Leathem : Yes.

Senator HANSON: You wait the 68 or 72 weeks, depending on the department or what area. How many of those people will then finally turn up for that final review?

Ms Leathem : For an appearance at the hearing?

Senator HANSON: For the final review, for the decision?

Ms Leathem : It's probably worthwhile saying that we have a range of different case management strategies for different case loads. One of the ways in which we have handled the Malaysian matters has been using multiple applicant hearing lists, which helps us to get through some of those matters in a more timely way. I think we probably would record things such as the non-appearance rate in relation to those matters.

Senator HANSON: You don't record that? The non-appearance rate?

Ms Leathem : No, we do. I don't think I have that information here, but we could take it on notice and give some information about the non-appearance rate for Malaysian applicants.

Senator HANSON: I'd be interested in that. You do have the visas that they arrive under—as you said, the protection visas. What visas do they appear in the AAT under?

Ms Haddad : We don't keep that data. We don't store what visas they are currently on when they appear before us.

Senator HANSON: When you come down with a decision, those ones that do turn up for the final decision—and by these figures it takes at least a year and a quarter to a year and a half—under that process, are those ones that are denied their application to stay in the country? What happens then? How are they informed?

Ms Haddad : Typically an applicant will be invited to attend the hearing. Depending on whether they turn up or not, it may be dismissed shortly thereafter if they do not turn up. If they do, typically the member will prepare a decision. They will receive a written record of that decision and the reasons for that. That will be sent to them by post or email. What happens to them afterwards is a matter for the Department of Home Affairs.

CHAIR: I've got a couple of questions. Can you provide some numbers on the percentage of AAT rulings that are related to ASQA?

Ms Leathem : That's part of our tax and commercial division. We have some statistics. I'm not sure whether we have broken it down for ASQA matters for the purpose of today's statistics, but we could take that on notice.

CHAIR: If you could take it on notice I'd appreciate that. I'd also like to know how those numbers compare to the volume of cases that are faced by some of the other key subject areas in that commercial division.

Ms Leathem : Sure.

CHAIR: I am interested in hearing about any changes there have been in the number and nature of ASQA related cases that have been presented before the AAT in recent years. Do you have any sense of whether there has been any change in the content or the substance?

Ms Leathem : I would need to take that on notice. We'd probably need to talk to the division head, who I'm sure would have some insights into that.

CHAIR: That would be great. I'm interested in whether there is any observation of conduct by ASQA that could be regarded as anything less than model, and any sense that the regulator may be using the AAT in a way that might itself amount to unfairness.

Ms Leathem : I would expect that if there were concerns of that nature it would likely be contained in the decisions of a member there. I'm not aware of any, but we will take your questions on notice.

Senator KIM CARR: I was asking about former Justice Callinan's report. Could advise me as to your response to that report?

Ms Leathem : We received a copy of the report around the time it was tabled in late July this year. We have been in the process of considering the various recommendations. There are obviously a range of those that are more specifically a matter for government or would involve legislative change. We will be working to provide our response so that the government can ultimately determine what response it would like.

Senator KIM CARR: When do you anticipate that response going to government?

Ms Leathem : We would certainly be looking to provide our response before the end of this year.

Senator KIM CARR: The review made a number of suggestions in regard to legal advice from staff members. The review suggested there were a number of legal issues, suggesting for instance that the editing of draft decisions and reasons for decisions had to be made in the context of templates being provided for decisions to members. Is that correct?

Ms Leathem : Our starting point would be that we absolutely agree with the reviewer's recommendations that decisions and reasons for decisions are very much a matter for individual members. Having said that, we do have a legally qualified staff who provide information to members about the appropriate legislations that might apply. They certainly do maintain resource materials, including, for example, templates that would assist members, particularly in high-volume decisions. But it is always the case that the members must be the ones who reach the conclusions, consider the evidence and settle any decisions.

Senator KIM CARR: Can I explore that for a moment? You are saying it's not unreasonable that a member of a tribunal seek advice.

Ms Leathem : We certainly believe that in the context of the Migration and Refugee Division, which is an extremely complex area, it is helpful for members to have recourse to specialist staff who are able to ensure that they are giving attention to the right provisions.

Senator KIM CARR: Fair enough. I just want to be clear as to what you are saying—that members get advice from legal practitioners.

Ms Leathem : It's entirely a matter for the members whether they choose to accept the information that is put before them by the staff.

Senator KIM CARR: That's not what I asked you. That's the proposition you are putting before this committee.

Ms Leathem : Part of their role is to provide some information and direct them to relevant legislation.

Senator KIM CARR: But the templates were provided to members of the AAT?

Ms Leathem : There are a range of templates that are available to members.

Senator KIM CARR: How often have they been provided?

Ms Leathem : They are available on our case management systems and through our intranet. I couldn't give you an answer on how often they are utilised, but it's very common for members across a range of different case loads to be able to use some of those templates as a starting point.

Senator KIM CARR: So ready-made answers to problems—is that right?

Ms Leathem : No. For example, for a particular visa they are being asked to review, there are often a range of criteria that need to be taken into account. The templates simply guide the members through the relevant considerations or factors that need to be taken into account. They don't look at the individual evidence that would be presented in each of those cases. There are no conclusions that can be reached through the templates. They are really just there to help the members make sure they are taking into account the factors or provisions that need to be considered.

Senator KIM CARR: They are there for guidance, are they?

Ms Leathem : Correct.

Senator KIM CARR: Mr Callinan suggested that all these practices should cease, because '… they have a real capacity to affect the independence of the AAT and to fall short of reasonable community expectations.' Ms Leathem, would you agree with that?

Ms Leathem : That is the reviewer's recommendation. As I said, we are yet to provide our response to that.

Senator KIM CARR: That's not my question. Would you agree with the assertion that they have the capacity to affect the independence of the AAT and to fall short of reasonable community expectations?

Ms Leathem : I'm not going to venture a view as to what the final position of the tribunal will be, but, as I said, we absolutely agree with the proposition that members should be solely responsible for determining and deciding cases before the courts.

Senator KIM CARR: So has the tribunal not reached a decision as to whether or not this practice affects the independence of the AAT and falls short of reasonable community expectations?

Ms Leathem : As I've already said, we are still in the course of considering all of the recommendations, and we will provide that.

Senator KIM CARR: So has this practice ceased?

Ms Leathem : As I said, we believe there's a whole range of useful guidance materials, information, training and assistance that our staff provide.

Senator KIM CARR: No, that's not my question. Has this practice ceased?

Ms Leathem : We have not changed practices within the tribunal. We maintain that the support those people are providing is appropriate and useful in the context.

Senator KIM CARR: Mr Secretary, what do you say to the proposition that this practice has the capacity to affect the independence of the AAT and falls short of reasonable community expectations?

Mr Moraitis : As was alluded to, it's the view of the reviewer. It's something we'll take into account when we assess the government's response to the report. We will also take into account the views of the AAT and the tribunal as a body as to what is the most efficient, effective and proper way to handle this issue.

Senator KIM CARR: So you're not surprised that the practice has not ceased?

Mr Moraitis : No, I'm not surprised. If you ask me personally, I'm not surprised, no, because, as outlined to me this morning by the AAT, the way it's utilised makes reasonable sense to me.

Senator KIM CARR: Mr Callinan also said that it was in fairness to some of the staff members that they were provided with this assistance because they lacked legal qualifications. He said:

… the lack of legal qualifications of a number of Members of the AAT provides some justification for its existence.

It does seem to be suggesting, as I've raised before, that it would appear that some members of the AAT who have been appointed in recent years are incapable of doing the work for themselves. Would that be a fair conclusion to draw?

Ms Leathem : I'm not drawing that conclusion. I wouldn't express that view.

Senator KIM CARR: I am surprised that people would need this type of assistance when it comes to making decisions about these matters. Effectively, these are judicial decisions, are they not?

Ms Leathem : No, they're executive decisions.

Senator KIM CARR: They have effect, though, at law.

Ms Leathem : They are reviews de novo of executive decisions. In that context, we believe there is real value in members being able to have access to information and support, including targeted advice, and certainly that support is not confined to non-legally-qualified members; it's accessed by all members and it's been available for many years.

Senator KIM CARR: How many members would you say are able to perform without this assistance?

Ms Leathem : I couldn't give you any figure about that. Obviously the support services are used by very many members in a range of different ways, but I certainly haven't got any detailed statistics about that.

Senator KIM CARR: So you have no review mechanism within the authority itself?

Ms Leathem : No, we do. I don't have the information at hand. We would be able to tell you, for example, if you wanted me to take on notice how many instances there had been of information provided or how many—

Senator KIM CARR: Perhaps you could help me. As you can see, I'm new to this, so I'm just trying to come to grips with this proposition that people are having quite serious decisions made about them by people who don't have legal training and are relying on advice by way of template. You have no review mechanism within the AAT as to how they're going on that?

Ms Leathem : No, we do. We have a very comprehensive appraisal system, but I might say that, of course, the decisions of the tribunal are subject to supervision of the courts, so there is always, if somebody has concerns about a decision, the ability to appeal to the Federal Circuit Court, in the case of the Migration and Refugee Division. Do you want to add something?

Ms Haddad : I would probably just add, in terms of the templates themselves, that, as I think Senator Keneally pointed out earlier, the Migration Act and regulations are extremely detailed and complex and subject to frequent change. One of the things that the templates do is, I suppose, set out the law of a particular criterion issue in that case. That will change depending upon a range of factors, such as when the applicant applied for the visa and what time it is now. There are a lot of variables. So what these templates will do is just ensure that the applicable criteria for that particular point in time are there. They don't have any reasons or factual findings or anything like that.

CHAIR: Senator Carr, just so I understand what's going on here: you just used the language 'advice by way of template'. Are you suggesting that the template itself is the advice, or that there is a distinction and in fact two steps—that there are templates that are used to help, for instance, in the drafting of a judgement, such as providing formatting and some references to key legislation and so forth? And then separately from that: if there is a non-legally trained person who is an AAT member, they have the ability—much as we parliamentarians have the right to go and use the library—to go and seek additional advice and support if there are matters with which they need help. Are they separate? Or are they—

Senator KIM CARR: I'm told that the reviewer—

CHAIR: I'd just like that clarified by the witnesses, please.

Senator KIM CARR: I'm just relying on what the reviewer himself has said—that there is a practice—

CHAIR: Senator Carr, can I ask the witnesses to clarify that so that—

Senator KIM CARR: I thought you were asking me the question.

CHAIR: Well, I'd like the witnesses to clarify whether it is in fact a single process, as the question from Senator Carr suggested, or whether it is those two separate steps, so that the entirety of the committee understands what's going on so that Senator Carr can continue his questions.

Ms Haddad : My apologies, Senator: could I ask you to repeat the question?

Ms Leathem : I think I followed it. Yes, there are templates, and yes, they provide guidance to members when they are considering and writing a decision. There may also be reference to a pool of staff to, for example, look at things such as the procedural code under the Migration Act and to be able to assist if they have a view about whether or not they've approached things in the right way. That would simply be something that the member would then be invited to consider. But it is ultimately up to them to determine what they believe are the findings, the key evidence and the decision that they make.

CHAIR: Thank you for that—two separate things. I will adjust your time accordingly, Senator Carr.

Senator KIM CARR: Well, that's fine, but I just want to know whether or not the AAT has a mechanism to establish whether or not members are able to do their job. Are they performing the job at a high standard? Are you able to tell me that? How many of your members are performing their job at a high standard?

Ms Leathem : It's probably helpful to know that there is a comprehensive professional development framework for members. When they are appointed there is obviously a comprehensive induction that's provided. They would then be given some specialist training in the particular case load. In some cases they might be assigned a mentor who's a more experienced member. They might co-sit. But then of course they are given their own workload in allocations to do, and there is a cycle that applies within the tribunal. There's recently been significant work to refresh the performance evaluation and appraisal process, and that will be commencing if not before the end of this year then very early in the new year. That will be a process whereby there is a comprehensive evaluation of members in terms of looking at how they're managing workload, timeliness and so on. Somebody may observe some hearings, read some decisions—looking at appeal rates, reflecting on a whole range of measures that are likely to give a comprehensive picture about how a member is performing.

Senator KIM CARR: You have a ranking system, do you?

Ms Leathem : Not a ranking system, no.

Senator KIM CARR: So you can't tell me how many people are performing at a high standard?

Ms Leathem : I couldn't do that at the moment, no.

Senator KIM CARR: Why not?

Ms Leathem : Because, as I said, we're about to commence the new appraisal system. Many of the members before us have been appointed within the past couple of years, so we are at an earlier point in the cycle.

Senator KIM CARR: How long does it take to get a ranking system going in the AAT?

Ms Leathem : Well, it's a very comprehensive process to be able to appraise individual members. It involves a whole range of—

Senator KIM CARR: You've had a couple of years.

Ms Leathem : But, as I said, we're only just in the process now of finalising that, and it will be implemented very shortly.

Senator KIM CARR: You don't move quickly there, do you?—a couple of years.

CHAIR: Senator Carr, we are looking at the time well and truly expiring for you.

Senator KIM CARR: I've still got a few questions, on this particular matter, because I want to go to some specific cases. But I would just like to get it clear in my own mind. If you can't tell me how many are operating at a high standard, how many are at an acceptable standard?

Ms Leathem : I'm not sure what criteria you're using in relation to that.

Senator KIM CARR: Well, your criteria. You mentioned a whole list of things. On your own criteria, how many are operating at an acceptable standard?

Ms Leathem : We are in a situation now where we will be commencing individual appraisals and evaluations of members. I haven't got information of that nature now.

Senator KIM CARR: Has the President of the AAT ever complained or spoken to the Attorney-General or his office or the department about the capacity of certain members to do their job that they've been appointed to?

Ms Leathem : I'm not in a position to disclose confidential discussions between the president and—

CHAIR: Thank you, Senator Carr. That's your time expired.

Senator KIM CARR: But I'd like an answer. Has there been any complaint put to the government—through the department, through the minister's office or through the minister himself—about the performance of AAT members?

Ms Leathem : I'm not in a position to disclose confidential information.

Senator KIM CARR: This is not individuals. This is about the performance of members of the tribunal collectively. Has there been any complaint registered?

Ms Leathem : I'm just trying to clarify what you're asking.

Senator KIM CARR: On their performance.

CHAIR: Senator Carr, this question has been asked and answered.

Senator KIM CARR: You say you can't reveal confidential information—

CHAIR: Senator Carr, the question has been asked and answered. Let's keep this civil. The call is with Senator Siewert.

Senator SIEWERT: Thank you. I want to go back to the series of questions I was asking previously. On DSP, and you might need to take this on notice, you said that the applications for the first quarter this year have gone down by 27 per cent. Are you able to give us the figures for the previous quarter in 2016-17?

Mr Matthies : No, I don't have those figures with me.

Senator SIEWERT: If you could take that on notice, that would be appreciated. Can I go then to the table on page 42, chart and table 310. I just want to clarify a figure for Newstart first. It says here, if I understand it correctly, that the numbers have gone up by 36 per cent for the applications over Newstart.

Mr Matthies : Correct.

Senator SIEWERT: Could I just take you to the paragraph on page 41, where it says:

When applications finalised on the basis that the division could not review the decisions are excluded, the number of applications lodged seeking review of … decisions rejecting a claim increased by 45 per cent …

Does that mean that if you looked at the overall total there was a certain number last year but when you take out the excluded for both years it gives a 45 per cent increase?

Mr Matthies : That's correct.

Senator SIEWERT: So there has been a 45 per cent increase in the number of applications on Newstart and youth allowance.

Mr Matthies : No, I think that relates specifically, in that paragraph, if I understand it correctly, to the proportion of applications that relate to a decision rejecting a claim of any type—for any payment type.

Senator SIEWERT: Of any type?

Mr Matthies : Yes. That paragraph just relates to what the types of decisions are that are coming for first review at the tribunal.

Senator SIEWERT: Thank you. Then: 'while applications seeking review one or more decisions about a debt increased by 16 per cent.' What nature of debts are those? Are those just Centrelink debts? Or are they debts in other areas?

Mr Matthies : That specific figure there relates to Centrelink decisions.

Senator SIEWERT: Okay, so there's been a 16 per cent increase in debts. Is that correct?

Mr Matthies : In applications relating to debt.

Senator SIEWERT: Thank you. From memory, in the past, you haven't been able to tell us whether they're the online compliance debts. Is that still the same? Have you changed your process?

Mr Matthies : No, that is still the same.

Senator SIEWERT: That is across all forms of debts?

Mr Matthies : Correct.

Senator SIEWERT: Thank you. Are you able to tell us the amount of debt that we're talking about? What's the volume in that 16 per cent?

Mr Matthies : I don't think we record the amount of the debt in the case management system but we can take that on notice, just to confirm that. I'm pretty certain that we don't collect that information.

Senator SIEWERT: Thank you. Can I then go to the nature of the increase of the 36 per cent for Newstart allowance. What is the nature of the appeals? Are they access to Newstart or about also being thrown off Newstart, for example?

Mr Matthies : We don't have that detailed information with us, but we can take that on notice.

Senator SIEWERT: Thank you. That would be appreciated. I also want to go to parenting payment. According to the table there's been a 30 per cent increase in the number of applications for a parenting payment. Could you take that on notice, if you don't have the 2016-17 figures, so I can compare it, other than—

Mr Matthies : I do have that.

Senator SIEWERT: You do have that?

Mr Matthies : No, actually. I don't have that, sorry.

Senator SIEWERT: Could you take that on notice? It doesn't show up in the bar chart with the wiggly line. It only shows Centrelink on that. What is the nature of those appeals?

Mr Matthies : Again, I will have to take that on notice.

Senator SIEWERT: Can I go back to the point we were talking about before. You talked about the applications finalised on the basis that you could not review the decision. Could you just explain that point to me, if there's a quick explanation?

Mr Matthies : In some cases when we receive an application we don't actually have the power to review the decision. Most often the reason for that is that the person hasn't applied for an internal review, so they don't have an ARO decision or a specialist decision in order to come to the tribunal. That's the most common reason.

Senator SIEWERT: That's where I wanted to go: the internal review. Are you saying you have to dismiss anything, if they haven't gone to an internal? I'm thinking for debts, for example. You can get it reviewed and then you have to go to the ARO process. If they come to you before that, do you have to send them back?

Mr Matthies : Correct.

Senator SIEWERT: How many of those were there, or do you need to take that on notice?

Mr Matthies : I do have the overall figure for Centrelink. In 2018-19 we didn't have jurisdiction to review 3,592 applications.

Senator SIEWERT: And the bulk of that was about not having done the internal review?

Mr Matthies : I expect that that is correct. Yes.

Senator SIEWERT: Could you take that on notice, just to confirm it. And they are purely Centrelink ones, aren't they?

Mr Matthies : Correct.

Senator SIEWERT: On page 44 in your report, you talk about the fast-tracked process. Can you just very quickly take me through that. On all those figures, if there's an agreement reached before the final review, does that get counted in the 'resolved' caseload?

Mr Matthies : That's in the child-support area where there would be an agreement.

Senator SIEWERT: Yes. Does that still get counted?

Mr Matthies : Absolutely.

Senator SIEWERT: What is the fast-tracked process?

Mr Matthies : When we do a triaging process to identify the application and the types of issues, if it's a more straightforward type of case and something that can be dealt with relatively quickly, it may be listed for a fast-tracked hearing. It's the timing and the particular pathway it follows. It's about the hearing process and the time within which that is listed, depending on the features of the case.

Senator SIEWERT: Do I understand from that that, if they're straightforward, they get fast tracked?

Mr Matthies : Yes. That may be the pathway that it goes down.

Senator SIEWERT: What percentage of applications were fast tracked the last financial year?

Mr Matthies : I think I'd want to take that on notice.

Senator SIEWERT: When you talk in the report about the decision delivered and how reasons for the decision were given orally at the end of a hearing and how 15 per cent of all applications for Centrelink decisions were finalised, does that just mean that's given on the day?

Mr Matthies : That's correct. The tribunal's decision, and importantly the reasons for the decision, are given to the applicant orally on the day.

Senator SIEWERT: So 15 per cent get resolved that way?

Mr Matthies : Once that occurs, we obviously inform them in writing of what the formal decision is, and then the person is able to request those reasons in writing within 14 days.

Senator SIEWERT: So they just get the decision. But they get the reasons on the day?

Mr Matthies : They get the reasons on the day. They're given orally and explained to the person, but they can subsequently ask for them in writing.

Senator SIEWERT: Can I just go to the debt. In the number for debts, not just the 16 per cent, there was an increase. Are you able to provide information on those debts, specifically on how many debts were affirmed and how many debts were set aside?

Mr Matthies : I think we can take that on notice.

Senator SIEWERT: Are you able to give me a figure on the number of applications? It says there was an increase of 16 per cent. Can you give us a number for the Centrelink debt cases? There's been an increase of 16 per cent. Are you able to give us, today, if not on notice, the number of actual applications around debt that there were?

Mr Matthies : In terms of the total number—but that doesn't exclude the no jurisdiction, those that were excluded—

Senator SIEWERT: Because they hadn't been to review?

Mr Matthies : That's correct. I have the total numbers. In 2017-18, in relation to Centrelink specifically, there were 4,366 applications. In 2018-19 it was 5,699 applications. That was an increase of 31 per cent. But when you exclude those matters that we couldn't actually review, then that's 16 per cent. But I don't have the figures when you exclude the cases that we weren't able to deal with from those particular figures in terms of raw numbers.

Senator SIEWERT: It would be difficult working back from the 16 per cent. If you could take that on notice, that would be fantastic. Thank you. On page 45 you talk about: 'of Centrelink decisions, 42 were lodged by the secretary of the department'. Can you take on notice how many were challenged by the secretary for the last five financial years?

Mr Matthies : Certainly.

Senator SIEWERT: And the nature of the applications—how many were against Centrelink or disability? You're looking at me a bit as if that might not be possible.

Mr Matthies : We have just made some changes over that period in relation to the way that we categorise at the second review. I'll certainly be able to give you information, but I'll then caveat anything that is unclear.

Senator SIEWERT: Can you give it to me for the period of time where there is consistency in how you categorise things?

Mr Matthies : We'll provide the information with some explanations around how it works. The particular issue is that the changing categorisation—if it were an application about a refusal of a claim for a payment or cancellation of a payment, for example, we would categorise it by the payment. But if it were a debt matter we would categorise it first as a debt matter. That's just the distinction. That will be clear from the information we provide.

Senator SIEWERT: Can I then go to the average length of decision-making up to review 1 and then review 2 against payment types.

Mr Matthies : In terms of the average time from lodgement to finalisation, first and second review by payment type, we'd have to take that on notice.

Senator SIEWERT: Can you give it to me for DSP? Do you have that already?

Mr Matthies : No. I've only got the overall Centrelink, child support—

Senator SIEWERT: Can you remind me what that is?

Mr Matthies : In 2018-19, the median time to finalisation from lodgement to finalisation in first review was nine weeks, and for second review it was 20 weeks.

Senator SIEWERT: That's the average for all the Centrelink payments?

Mr Matthies : That's correct.

Senator SIEWERT: Could you give that against payment type?

Mr Matthies : And maybe the top five payment types?

Senator SIEWERT: Yes, please. I go back to parenting payment. You've already taken on notice looking at the types of issues that people were appealing over. Could you also include, in the payment types, how long they take, even if it's not in the top—it should be in the top five anyway, shouldn't it? For the parenting payment, can you include that in the breakdown of the payments that you give me, please?

Mr Matthies : I can.

Senator SIEWERT: Does that make sense?

Mr Matthies : Yes.

CHAIR: Thank you, Senator Siewert. I appreciate your efficiency there. Senator Carr, we will go to you. As I understand it, the only other set of questions we have is from Senator Henderson. I'll give you about 10 minutes, give her a go and then go back to you to get you to the point where you're finished so that we can move on to the next session.

Senator KIM CARR: We'll do our best. Secretary, have you had any complaints from any members of the tribunal, from the president in particular, about the performance of members of the AAT?

Mr Moraitis : No.

Senator KIM CARR: None at all?

Mr Moraitis : Not that I'm aware of, no.

Senator KIM CARR: Minister, could you take on notice whether the minister's office or the minister had any complaints?

Senator Payne: I'll take that on notice.

Senator KIM CARR: Before the appointment process changed on the 25th, it was the practice for the Attorney-General's office to advise the department of candidates that had been nominated for appointment—that's correct, isn't it

Mr Moraitis : In the previous protocol I think that was correct.

Mr Anderson : That's correct.

Senator KIM CARR: And that the department received nomination from anyone else apart from the ministers—MPs? Senators? Anyone else that was able to nominate?

Mr Anderson : I don't believe that we did receive any nominations from anyone else.

Senator KIM CARR: The Attorney-General's office received nominations from ministers, MPs or senators—are you aware of that?

Mr Anderson : I'm not aware of that. There was a process under the previous protocol where the president first wrote to the Attorney and proposed reappointments or appointments. The Attorney then considered either those reappointments or recommended appointees. The Attorney could come up with other names. I'm not sure how the Attorney might have received suggestions from other parties. We don't have visibility of that.

Senator KIM CARR: You have no knowledge of that, so you won't be able to tell me, of the 34 new appointments of the AAT nominated by the Attorney-General on 22 February, how many were nominated by current or former Liberal parliamentarians?

Mr Anderson : In the most recent appointments it's highly likely that some of those involved recommendations from the Treasurer. I'd need to confirm that. But that's because five of the appointments were actually for the small taxation claims division of the AAT. It's highly likely that there was advice from the Treasury portfolio. I'll see if I can confirm that.

Senator KIM CARR: I'm talking about members of parliament nominating members of the AAT.

CHAIR: I understand that the Treasurer is a member of parliament.

Senator KIM CARR: I take the point. Other than the Treasurer, cabinet ministers—is that right?

Mr Anderson : Because the AAT's jurisdiction is so broad in terms of social security, migration, veterans' affairs et cetera there may be suggestions by ministers in those areas, but that's not something I'm aware of.

Senator KIM CARR: I see. So you're saying another cabinet minister might be able to nominate persons in their policy area?

Mr Anderson : I'm saying another cabinet minister may choose to make a recommendation to the Attorney with respect to a particular policy area. But I'm not aware of whether those recommendations are in fact being made.

Senator KIM CARR: I understand that, of the 34 appointments, 16 had Liberal Party associations. This is after Mr Callinan delivered his report to the Attorney-General—is that correct?

Dr Smrdel : In terms of timing, the announcements were made in February 2019. Mr Callinan provided his report to the Attorney in December 2018. It clearly looks like there's an overlap of time there. In terms of how quickly the Attorney processed Mr Callinan's report versus when the decisions were made, which were announced in February 2019, there's an overlap of time but we don't have clarity as to the precise overlapping of time.

Senator KIM CARR: I see. Of those 34, how many would you say did not have legal qualifications?

Dr Smrdel : We've taken that on notice. We're working through that during the course of today and will hopefully get back to you this evening.

Senator KIM CARR: Maybe you will be able to help me later on in the evening. It was put to me that 65 of the current 333 AAT members are former Liberal Party staffers, former Liberals or National Party politicians, party donors, Liberal party members or unsuccessful Liberal candidates for Liberal governments; that 64 of the 65 were appointed to their roles in the last six years; and that 24 of the 65 appointments had no legal qualifications, including seven of the AAT senior members. Would you be able to confirm those figures for me by this evening?

Mr Moraitis : Senator, we wouldn't know political affiliations as a matter of process, unless it's a matter of public record or something. That's not something that's recorded when we went through this. As Dr Smrdel said, we're also seeking during the next few hours to get you details on the legal and non-legal statistics.

Senator KIM CARR: Thank you. Would you be able to tell me about the employment process for a Mr William Frost?

Mr Moraitis : Yes, we could.

Senator KIM CARR: It is true that he was a former senior adviser to the Attorney-General when he was appointed to the AAT?

Mr Anderson : That's correct.

Senator KIM CARR: Minister, are you able to tell me whether or not Minister Porter recused himself from the Cabinet deliberations on that matter?

Senator Payne: I'll take that on notice, Senator.

Senator KIM CARR: Immediately prior to the appointment—and we're talking immediately prior to that appointment—Mr Frost was in fact the Attorney-General's adviser. That's correct, is it?

Mr Moraitis : I'd have to take that on notice, Senator. He was senior adviser for the Attorney-General. He resigned. I'm not sure about the—I'll have to check the timing of the resignation with respect to the—

Senator KIM CARR: Just refresh my memory: what was the date of the announcement of his appointment?

Mr Moraitis : I'd have to take that on notice.

Senator KIM CARR: You'll be able to tell me by tonight—that won't be too hard to find. And you'd be able to confirm for me whether or not on 21 February he was a senior adviser to the Attorney-General.

CHAIR: Senator Carr, I can tell you that he was one of the most brilliant lawyers I dealt with in the Attorney's office. You will be pleased to know: he was quite meritorious.

Senator KIM CARR: I'm pleased to hear that he was a brilliant lawyer, but what I am interested to know is: did he move from the Attorney-General's office to the AAT almost overnight?

Mr Anderson : My recollection is that he didn't, that he resigned and there was an interregnum in between, but we'll take that on notice.

Senator KIM CARR: Thank you, and tell me what that period of interregnum was, if you could please—that'd be terrific. Correct me if I'm wrong, but he was one of the 34 appointments that were announced in February 2019.

Mr Anderson : That's correct.

Senator KIM CARR: Is it a fact that his nomination would have been sent to the Attorney-General's Department on 21 December 2018?

Mr Anderson : I'll have to take that on notice.

Senator KIM CARR: Are you able to tell me who actually nominated Mr Frost?

Mr Anderson : I'm not sure we would know that. We receive the names from the Attorney.

Senator KIM CARR: At the 21 December, he was in fact working in Mr Porter's office.

Mr Anderson : I'll have to take that on notice.

Senator KIM CARR: Would you be able to advise me: was the nomination sent to the Attorney-General's Department via email?

Mr Anderson : I'll have to take that on notice.

Senator KIM CARR: Would you be able to tell me who sent the email? Was it Mr Frost?

Mr Anderson : I doubt very much that it was, but we'll take that on notice, Senator.

Senator KIM CARR: That would be an easy thing to check, though—it won't be too hard to find that out. The Attorney-General provided a reference, I presume. Was he a referee?

Mr Anderson : I don't know that; I'll have to take that on notice as well.

Senator KIM CARR: Was he a referee for Mr Frost—I'll be more precise?

Mr Anderson : I understood that to be the question.

Senator KIM CARR: Just to be clear: I've been doing this for a while and I know that sometimes I'll get an answer back and, when I ask a question like that, someone will be trying to tell me that I didn't quite mean was he a referee for Mr Frost. So we are clear?

Mr Anderson : Very clear, Senator, thank you.

Senator KIM CARR: Thank you very much. He wouldn't be providing himself with a reference, would he?

Mr Anderson : I'd be happy to take that on notice if you'd like us to, Senator.

Senator KIM CARR: And is it the case that the cabinet did approve that appointment?

Mr Anderson : All appointments are actually made by the Governor-General.

Senator KIM CARR: But on recommendation of the cabinet, surely.

Mr Anderson : I believe they go through cabinet before going to exco.

Senator KIM CARR: So it's normal process, Madam Minister, that the cabinet list of appointments would go up to the cabinet for the AAT? That practice hasn't changed, has it? No, so he would have been presented to cabinet. Can you tell me the date on which he was presented to cabinet for approval?

Mr Anderson : We will see if we can ascertain that and take it on notice.

Senator KIM CARR: Thank you. I've already sought this advice, but I will be very clear about this: I'd like to know whether Mr Porter recused himself from cabinet consideration on that appointment.

Senator Payne: I said I'd take that on notice, Senator.

Senator KIM CARR: Take it up from there. The other one I was interested to know is Mr Tony Barry. Are we familiar with Mr Tony Barry?

Mr Anderson : We know the name.

Senator KIM CARR: Immediately prior to his appointment as a part-time member he was the communications director of the Victorian Liberal opposition leader. Is that correct?

Dr Smrdel : We could only go by media reporting. As Mr Anderson explained, we would have obtained a list of appointments from the Attorney-General 's office, for following appointments to be worked up, which include CVs et cetera.

Senator KIM CARR: And the Attorney-General's office would have made it clear that he was also a former press secretary to Mr Christopher Pyne, Mr Malcolm Turnbull and Mr Matthew Guy. Is that correct?

Mr Anderson : As Dr Smrdel said, we receive a CV for the proposed candidate. If it's stated on the CV, we're aware of it; if it's not stated on the CV, we might not be aware of it.

Senator KIM CARR: You can check that for me, then, can you? Was it stated on the CV that he'd worked for those other politicians? He'd also worked for big tobacco, reportedly at $20,000 a month, lobbying for big tobacco.

Mr Anderson : We wouldn't know his salary.

Senator KIM CARR: You wouldn't have noticed that, even if it's been reported?

CHAIR: Senator Carr, I note that we're at 10.30 and we're due for a break now. Do you have much to go on this case study or would you prefer to resume after the break?

Senator KIM CARR: I could probably finish off these case studies in about five minutes, because I can see the officers are going to take these on notice.

CHAIR: Let's knock them over in the next five and we will take a break.

Senator KIM CARR: Can you confirm from the curriculum vitae that Mr Barry had no qualifications, apart from his communications?

Mr Anderson : We will take that on notice.

Senator KIM CARR: You did say to me before that there were two criteria for appointment: legal qualifications or specialist ones. What were the specialist skills he had?

Mr Anderson : That's a matter for the Attorney in making a recommendation to cabinet, and for the government in making a recommendation to the Governor-General, as to: 'Does a person possess special knowledge or skills relevant to the position?' They are not required to specifically identify particular skills or knowledge, but they are required to form the opinion that the person has special knowledge or skills that will equip them to be an AAT member.

Senator KIM CARR: The Attorney-General, surely, would have specified what the specialist skills were. Apart from understanding it was moved on from the opposition leader, at the time—Malcolm Turnbull's office—because of his aggressive attitude towards journalists, is there a particular skill you have in this—

Senator Payne: I do think a—

Senator KIM CARR: I'm just relying on a media report, that's all.

Senator Payne: reflection of that nature on the Hansard record, in relation to an individual who's not in a position to respond, is unfair and—

Senator KIM CARR: Terribly unfair. I'm just wondering what the specialist skills were, for making life and death decisions about other people, in terms of the role at the AAT, demonstrated by this candidate. What were those specialist skills that would make this person suitable for appointment?

CHAIR: It's been taken on notice; it's time to move on.

Senator KIM CARR: Who nominated Mr Barry?

Mr Anderson : I'll take it on notice but we might not be able to answer that. As I said, the department is advised by the Attorney or the Attorney's office of the proposed appointments.

Senator KIM CARR: It's a part-time appointment. How many days a week does Mr Barry work at the AAT?

Mr Anderson : That's a matter for the tribunal.

Senator KIM CARR: Can the tribunal help me with that?

Ms Leathem : I'd have to check whether he's a full- or part-time or sessional appointment. I'm happy to take that on notice.

Senator KIM CARR: And has he met his targets?

Ms Leathem : We can certainly tell you what the case load mix is that he is working on.

Senator KIM CARR: Has he met them?

Ms Leathem : I haven't got information about that individual member, but certainly we'll take it on notice.

Senator KIM CARR: How many applications has he heard since he became a member of the AAT? Don't you have any information at all?

Ms Leathem : We have 353 members so, yes—

CHAIR: You're entitled to take it on notice.

Senator KIM CARR: And how many matters has Mr Barry finalised, if you wouldn't mind.

Ms Leathem : Yes.

Senator KIM CARR: What pay schedule is he on?

Ms Leathem : I can certainly confirm what level of membership the member is appointed at, but I don't have that individual information—

Senator KIM CARR: And has Mr Barry ever asked a staff member at the AAT to draft a decision for him or to provide him with legal advice? Thank you.

The last one I want to ask is in regard to Mr Terry Carney. Are you familiar with his situation?

Ms Leathem : He's a former member of the AAT.

Senator KIM CARR: Yes. He lost his job at the AAT in late 2017. Media reports suggest that he lost his job via a short blunt email in September 2017. Is that correct?

Ms Leathem : I couldn't comment; we haven't received a copy of that.

CHAIR: Do you have a copy of that media report?

Senator KIM CARR: I've got it here somewhere. We'll get you it, if you feel that's necessary.

CHAIR: If you are going to refer to media reports, yes, please provide those for the witness.

Senator KIM CARR: We will. But given that we've only got a few minutes, let's just say that the Crikey report says Mr Carney had a long career at the AAT and together he had—

CHAIR: Particularly given it is a Crikey report!

Senator KIM CARR: Do you mean to say that that's, what, illegitimate? Is that the suggestion?

CHAIR: I mean to suggest that it's very important we ensure reliability.

Senator KIM CARR: It's reported that Mr Carney had worked at AAT and, with his work on the Social Security Appeals Tribunal, had put in 40 years of service. Is that correct?

Ms Leathem : I would have to check his record of service, but he certainly was a longstanding member of the former SSAT as well as the AAT.

Senator KIM CARR: I understand that he is an emeritus professor of law at the University of Sydney. Is that correct?

Ms Leathem : I believe that's true.

Senator KIM CARR: Is it the case that Mr Carney's appointment came up for renewal in 2017?

Ms Leathem : His term came to an end, as I understand it, during that year.

Senator KIM CARR: Is it the case that the President of the AAT recommended to the Attorney-General that Mr Carney be reappointed?

Ms Leathem : I would have to take that on notice.

Senator KIM CARR: Mr Secretary, can you advise me? Did the—

Mr Moraitis : We will take that on notice.

CHAIR: Senator Carr, we are more than five minutes over. Are you far away?

Senator KIM CARR: I am not far away at all, as the officers, I trust, are able to help me here. Five months before he lost his job, Mr Carney delivered a decision in which he declared the Centrelink robo-debt scheme to be unlawful. Did that happen?

Ms Leathem : I would say he would have made many decisions. I would have to take on notice whether there was a specific decision of that nature.

Senator KIM CARR: Mr Carney also told the Community Affairs References Committee he handed down about six behind-closed-doors AAT decisions which found that the robo-debt scheme was illegal. In relation to those decisions Mr Carney said that Centrelink never appeals those decisions to second level, where the decision would become public. Are you familiar with any of those decisions?

Ms Leathem : We would certainly have a range of decisions in relation to debts. We don't record specifically what is referred to as robo-debt.

Senator KIM CARR: What would you call it?

Ms Leathem : We call them debts to the Commonwealth. So they're within our Centrelink caseload.

Senator KIM CARR: Within the technical definition I am using, he made a decision in regard to debts to the Commonwealth. Can you tell me categorically that the government is not aware that Mr Carney delivered a decision in which he declared Centrelink's debt scheme to be illegal?

Ms Leathem : The only thing I could confirm is whether or not the former member made a decision of the nature that is described.

Senator KIM CARR: What is the answer to the question?

Ms Leathem : We will take that on notice to determine when he made decisions and what the nature of those decisions were.

Senator KIM CARR: Can I have a copy of that decision?

Ms Leathem : Yes. If we can identify that, we can certainly provide that. I would say, though, it may have to be de-identified. It's probably not one that would be published, because of the— provisions.

Senator KIM CARR: I understand if you need to de-identify it, but I would like a copy of the decision. He's made a statement to the Community Affairs References Committee, and I'd like to see the decision, which I understand has not been published.

Ms Leathem : Yes.

Senator KIM CARR: Mr Porter was the Minister for Social Services at the time. I'm wondering if Mr Porter or his office ever contacted the then Attorney-General or the Attorney-General's Department about Mr Carney or any decision Mr Carney had made while a member of the AAT.

Mr Moraitis : I will have to take that on notice—

Senator KIM CARR: Thank you. Does the Attorney-General or the department have records of those decisions of Mr Carney? Do you have any of those?

Mr Moraitis : I'm not sure of that, but I'll take it on notice.

Mr Anderson : These are decisions made when Mr Carney was a member of the Social Security Appeals Tribunal before it actually was amalgamated with the AAT in 2015?

Senator KIM CARR: Yes.

Mr Anderson : That was actually in another portfolio.

Senator KIM CARR: So you don't have records of those?

Mr Anderson : We wouldn't generally—

Senator KIM CARR: Well, I'd like copies from the tribunal of any of those decisions that are available that are the subject of this controversy.

Minister Dutton said:

We have a problem with the AAT and there's no sense pretending otherwise.

Minister Dutton says that the appeals tribunal is failing to uphold community standards. Is this what you meant by building public trust and confidence?

Ms Leathem : What we meant is making sure that we can provide as much information to the public as possible about the decisions we make and the role that we perform. We do publish 100 per cent of matters that involve 501 cancellations, which are the ones that often attract media attention. That's one of the ways that we try and ensure that we're as transparent as possible.

Senator KIM CARR: Have there been occasions where decisions have had to be taken down as a result of being incorrect?

Ms Leathem : The only occasions we would take a decision down would be if we had identified that there had been some breach of confidentiality or potentially provisions in the legislation that prevented us from disclosing certain information. On all those occasions, we would seek to try and redact and republish that decision as soon as possible.

Senator KIM CARR: On notice, can you provide us with the indices that you use in regard to public trust and confidence, because you must measure those things?

Ms Leathem : We certainly do have what we call a user survey that we run periodically, and there is, if you like, a published satisfaction benchmark of 70 per cent that we look to meet or exceed. We received 73 per cent in the last user survey.

Senator KIM CARR: I've just been advised there are other questions. I will need to ask that you come back after the break.

CHAIR: We will suspend.

Proceedi ngs suspended from 10:41 to 11:01

CHAIR: The Legal and Constitutional Affairs Legislation Committee will now resume its examination of the Administrative Appeals Tribunal. Senator Carr had one matter he wanted to clarify.

Senator KIM CARR: Madam Registrar, I want to be clear that I was looking for the full six decisions of Mr Carney. There were six decisions. I asked two sets of questions, and I wasn't sure, from your response to me, that you appreciated that I was looking for the six.

Ms Leathem : Thank you, Senator.

Senator HENDERSON: I wanted, by way of clarification, to pick up a few points in relation, first of all, to appointments on the AAT. I want to confirm, Mr Anderson, that it is the case that, under the previous Labor government, high-profile Labor figures were appointed to the AAT, such as Duncan Kerr, who is a former Labor member of parliament. He was appointed as president. Is that correct?

Mr Anderson : That's correct.

Senator KIM CARR: And reappointed by a Liberal government!

CHAIR: That's quite the point, I think.

Senator HENDERSON: Can I reiterate that and take the interjection to say that he was reappointed by our government. I assume that's because the government recognises the values and skills of people who work on both sides of politics.

Mr Anderson : There have been a number of people with an ALP background who've been appointed to the AAT. Former member of parliament Anna Burke is another, and also former member of parliament David Cox. It's always a question of: does the person meet the statutory criteria—

Senator KIM CARR: So we've got 333, and three are Labor.

Senator HENDERSON: Senator Carr, could you not interject while I'm asking my questions. So, Mr Anderson, you're making the point that, on both sides of politics, the government has been very robust in recognising the skills and values of people appointed to the AAT. Could I also clarify and confirm that they also include: Ms Moira Brophy, a former Labor senator for Queensland appointed in June 2016 and reappointed by the Attorney-General in 2019; Ms Linda Kirk, a former South Australian Labor Party senator appointed in January 2017; Mr John Black, a former Queensland Labor senator appointed in 2017; David Cox, as you mentioned, a former federal Labor MP appointed in February 2019; Anna Burke, a former Labor House of Representatives Speaker; and Mr Shane Lucas, appointed in 2017, a staffer who served under Premiers Bracks and Brumby and, I believe, also under the Andrews Labor government. Is that correct?

Mr Anderson : I can confirm the appointment of Linda Kirk, but the others we'll have to take on notice.

Senator HENDERSON: I think it's fair to say that Senator Carr has rather unwisely opened a can of worms in relation to people appointed to the AAT who have political affiliations. To keep this very even-handed—we've just talked about a number of Labor appointments made by our government—would you be able to provide a list of all people appointed to the AAT who are associated with the Labor Party so that we can get a proper perspective on what has occurred under both the previous government and our government.

Mr Anderson : As I think I indicated earlier, the department doesn't necessarily have details about whether someone has an affiliation to a political party, unless it's declared in a CV or we're otherwise aware of it.

Senator HENDERSON: Could you do your very best.

Mr Anderson : We'll take that on notice. I should try and caveat that—how far back do you want us to go? The AAT has been around for a long time.

Senator HENDERSON: I think we should maybe go back to 2007.

Senator PATRICK: What does 'associated' mean?

Senator Payne: I'm not chair, of course, Senator Patrick, but this is a long discussion which you haven't been present for. I think the officials understand the implication of the question.

Senator HENDERSON: Yes. Mr Anderson, I also want to clarify and confirm with you that any Commonwealth Attorney-General, whether Liberal or Labor, under whichever government, always endeavours to engage the various highest calibre staff to advise him or her. Is that the case?

Mr Anderson : We don't have visibility of the processes for appointment of staff to ministerial offices. It's not a matter that we could comment on.

Senator HENDERSON: You're not able to make any sort of assessment as to the Attorney-General's motivations in engaging his or her staff?

Mr Anderson : I can speculate that any minister will want to attract and appoint the best possible staff, but—

CHAIR: Please don't.

Mr Moraitis : We're not going to speculate on that.

CHAIR: That's right.

Senator HENDERSON: Thank you, Mr Anderson. Madam Registrar, I also want to return to the issue of the role of registry staff. You made some comments in relation to the use of templates—that the use of templates is not unusual. I want to draw your attention to paragraph 1.11 in Mr Callinan's report, in which he said:

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.

Is it the case that the registry staff are involved in supporting members in that way?

Ms Leathem : They certainly support members by providing them with resources to assist the members in their statutory function.

Senator HENDERSON: In your view, does the use of the templates, and the way in which you use your templates—or precedents, as they are sometimes known in the legal game—constitute the giving of legal advice?

Ms Leathem : We believe that they do not constitute the giving of legal advice. They provided a framework to guide members in their decision-making.

Senator HENDERSON: Thank you very much. I have no further questions.

Senator KIM CARR: Given that line of questioning—

CHAIR: Senator Carr, you don't get an automatic opportunity. Senator Patrick has the call now.

Senator KIM CARR: Sure. I just indicate to you that I'll need to respond to that.

Senator Payne: Madam Chair, may I provide a response, please?

CHAIR: To what, Minister?

Senator Payne: To a question I took on notice prior to the morning break.

CHAIR: Yes, of course.

Senator Payne: This is in response to a question from Senator Carr relating to the Attorney-General's presence at a cabinet meeting. I am advised that the Attorney-General did not attend the cabinet meeting in question, when the relevant appointments to the AAT were presented to and approved by cabinet. The Attorney-General was on leave at this time.

CHAIR: Thank you. I appreciate the clarification.

Senator KIM CARR: Would you be able to tell us the date of that, please?

Senator Payne: I don't have it in front of me, but I'll come back to the committee.

Senator PATRICK: As a crossbencher, I don't have any dog in this fight, other than a concern about confidence in the AAT as a result of matters arising from articles in places like Crikey. I would just ask—and I don't know who at the table to ask, perhaps Mr Anderson—when did the Attorney receive the Callinan review?

Mr Anderson : I believe it was 19 December 2018.

Senator PATRICK: It's now been publicly released. Is the government intending to respond to that review?

Mr Anderson : The government is certainly considering in detail the recommendations and the best way to take the various recommendations forward.

Senator PATRICK: What process is involved in government deciding how to respond to that review? That's just a general question of process.

Mr Anderson : Because the AAT's jurisdiction covers a number of different portfolios, there's a discussion happening with a number of other portfolios as to possible reforms that could be made. But there are also some discussions involving the AAT and the federal courts in terms of observations from them about the case load and things like that. So the department has been having a range of meetings with other agencies, including the AAT and the courts, over the course of this calendar year.

Senator PATRICK: Do you have an expectation as to when a government response might be forthcoming?

Mr Anderson : That's a matter for government.

Senator PATRICK: I understand it's a matter for government. Do you have any indication? Has the minister talked to you about what his aim is? It would be irresponsible to say, 'Let's just respond to this.' The minister would typically say: 'We need to respond to this. We should do this by a particular time.'

CHAIR: Senator Patrick, you're inviting speculation.

Senator PATRICK: No. I'm asking, as a question of fact: has that discussion occurred? Has the minister indicated to the Attorney-General's Department a target date for responding to the Callinan review?

Mr Anderson : We've had a number of discussions with the Attorney, indicating that he's certainly seized of the desirability of making some reforms with respect to the AAT. But we haven't got a target date as such, because these are complicated matters, and many of them go back to policy leaders in other portfolios.

Senator PATRICK: Ms Leathem, in respect of the AAT, what tasks have you been asked to undertake in respect of the Callinan review, and what time frames have you been given in respect of those tasks?

Ms Leathem : There are a number of recommendations which, as Mr Anderson has indicated, go outside of the scope of just the AAT. So, to the extent that we're involved, it's as part of a broader interdepartmental group. But there are some that are more specific to the AAT, and we are at the moment considering those, evaluating those, with a view to providing our input to government by the end of the year.

Senator PATRICK: The question went to what the tasks are.

Ms Leathem : We haven't been allocated any specific tasks, but there have been discussions with both the Attorney's office and the Attorney-General's Department about our intention to provide them with some information and analysis about a range of the recommendations.

Senator PATRICK: In responses to questions on notice, you provided me with details of lodgements, finalisations and decisions affirmed, varied or remitted. This is question No. 21 BE 19-20. I want to be clear in understanding this: when you say decisions 'affirmed or 'varied', they are decisions related to the AAT, not on appeal from the AAT?

Mr Matthies : That's correct. Those figures relate to the finalisation of applications at the AAT.

Senator PATRICK: Do you keep a record of decisions that are then appealed to the Federal Court?

Mr Matthies : We do keep information about that.

Senator PATRICK: Could you provide me with some details, perhaps in the same format, of decisions that were then appealed to the Federal Court, and whether they were affirmed or set aside?

Mr Matthies : That's in relation to this particular subclass of visa?

Senator PATRICK: Yes.

Mr Matthies : I'll check whether we keep it down to that level of granularity. If we do, we can certainly provide that on notice.

Senator PATRICK: To save the committee's time, could the AAT provide—this might involve a bit of work, but I presume you track these things anyway—the number of cases that each member has finalised over the last two years, and could you describe what division they're in.

Ms Leathem : The difficulty with that is that we have a mix of full-time, part-time and sessional, so some members may have only have worked very infrequently.

Senator PATRICK: Let's stick with full-time to make sure we compare apples with apples. I understand there are different complexities with different matters, and I will be mindful of that when I review the answers. But, of course, I note that that's an approach that has been taken by the Attorney-General's Department in relation to the family courts.

Ms Leathem : That was finalised matters?

Senator PATRICK: Yes. And could you indicate the division in some sense? That also would possibly give some indication as to the complexity of matters.

Ms Leathem : Yes.

Senator PATRICK: So, only full-time and indicate whether they are a senior member or a judicial member—just some details that would help analyse, in some sense, performance or KPIs.

Ms Leathem : We'll take that on notice.

CHAIR: Thank you, Senator Patrick. That is all—

Senator KIM CARR: No, that's not quite right.

CHAIR: I beg your pardon?

Senator KIM CARR: That's not all.

CHAIR: What is your estimate of what you further require?

Senator KIM CARR: Since the government sought to ask—

CHAIR: No, you've had your opportunity, Senator Carr. You asked all the questions you wished to. Other senators are entitled to ask matters in response—

Senator KIM CARR: They are entitled to, Chair.

CHAIR: so I'm asking you: what is your further requirement? How much time do you need?

Senator KIM CARR: It depends on the answers. I don't expect I'll need very long at all, because—

CHAIR: Is that five minutes or two?

Senator KIM CARR: I don't know. It will depend on the answers that I get. And you'll know that, under the standing orders, I can ask questions as we see fit.

CHAIR: Provided we don't extend into repetition. You have the call.

Senator KIM CARR: This is not repetition. This is—

CHAIR: You have the call, Senator Carr. Get on with it.

Senator KIM CARR: Ms Leathem, you made some comments before about the nature of the advice that members get. I just want to be clear about the process by which legally qualified staff members provide advice on these templates that have been mentioned. Can you confirm that there have been occasions when there have been poorly drafted decisions which are then provided to the legal team at the AAT for review?

Ms Leathem : What I can comment on is the process whereby we have an optional internal service. There are legally qualified staff there, and the members can seek advice about the correct law, including procedural requirements and whether those have been applied. I must emphasise that staff don't provide advice or comment on the merits, facts or outcomes of the case, and it's a matter for the member whether they accept the advice on the legislation or the procedural requirements.

Senator KIM CARR: You have said this—and the chair has indicated that she doesn't like repetition—

CHAIR: I don't!

Senator KIM CARR: You've said this several times. Have there been occasions on which the legal team has sought to review a decision by a member and suggested amendments to the decisions to ensure that those decisions will stand up to appeal?

Ms Leathem : I have no specific knowledge of that happening, but I would say it's not uncommon for a member of the legal team to return a decision to a member with the suggestion that they may have missed some part of the legislation or one of the criteria, and it's a matter for the member then to determine whether they wish to make any changes.

Senator KIM CARR: I'm advised the legal team will often go so far as to propose particular drafting. Can you comment on that?

CHAIR: Do you have a source, Senator Carr? Is it from a press article?

Senator KIM CARR: I have a source, and that's a matter for me to reveal. I'm putting it to you that there are members of the legal team that will often go as far as proposing particular drafting.

Ms Leathem : I'd be concerned by that, and that is not the terms upon which my understanding—

Senator KIM CARR: That's not my question. Are you aware of that?

Ms Leathem : I am not aware of that.

Senator KIM CARR: Are any other members of the tribunal here today aware of that practice being currently underway?

Mr Matthies : No, Senator, I'm not aware of it.

Senator KIM CARR: No-one is aware of it? Never heard of it before? This is a revelation to you?

CHAIR: They've given their answer, Senator Carr.

Senator KIM CARR: When Mr Callinan referred to this matter, was he referring to this practice?

Ms Leathem : I don't know what the reviewer was referring to. I can only read what's in the report.

Senator KIM CARR: Is it, in fact, common practice that unqualified members are producing very poorly drafted decisions which are not able to stand up, in the view of the legal team, to a possible challenge and had to be fixed by staff members who are legally trained?

CHAIR: That's been asked and answered. You've asked it. It's been answered. Move on.

Senator KIM CARR: Could you take that on notice and ask the legal team within the AAT whether or not that event has occurred.

Ms Leathem : Just to be clear, Senator, what are you asking me to ask them?

Senator KIM CARR: I'm asking you to take on notice whether or not unqualified members have produced poorly drafted decisions and provided them to the legal team, which has suggested amendments and gone as far as proposing redrafting so the decisions would be able to withstand challenge.

Senator HENDERSON: Can I just ask you to clarify what 'unqualified members' means.

Senator KIM CARR: Unqualified legally.

Senator HENDERSON: So the question that you're asking is in relation to members who have no legal qualifications? That's a very different question to saying that people are unqualified members.

Senator KIM CARR: We've already been through this all morning, Senator, if you'd been listening.

CHAIR: Senator Carr and Senator Henderson, the question is clear in the context of the discussions that have been had this morning. He's referring to people who are not legally qualified. The question has been asked and answered. I'm giving you an awful lot of indulgence. You've put it on notice.

Senator KIM CARR: Yes, thank you, and the officers have taken it on notice. Hansard will not respond to a nod.

Ms Leathem : Thank you. In regard to the appointments—

CHAIR: Senator Carr, this is not an infinite exercise. I hope you're not going to be repetitive.

Senator KIM CARR: No, it's not. It's a very straightforward question. Former Senator Kirk was appointed by a Labor government, and Duncan Kerr—

Dr Smrdel : Not a former senator.

Senator KIM CARR: No, Duncan Kerr, a justice. They were the two. The rest have all been appointed by Liberal governments. That's correct, isn't it—the others that have been named today that are Labor Party associates?

CHAIR: It's already been taken on notice.

Senator KIM CARR: That's the case, is it not?

CHAIR: It's been taken on notice. It's been asked and answered, in the sense that it has been taken on notice.

Senator KIM CARR: Then take this on notice: isn't it the case that 70 per cent of the 330 members of the tribunal have been turned over by this government?

CHAIR: I expect that's a factor of the normal tenure process, in any event.

Senator KIM CARR: Seventy per cent have been appointed by the Liberal government since the election in 2013—is that the case?

Mr Anderson : 2015 saw the amalgamation of a number of other merits review tribunals with the AAT, so the total number of members expanded very dramatically in 2015. So it would not be possible to do a meaningful comparison before 2015.

Senator KIM CARR: I see. All right. The Minister for Home Affairs has said, 'We have a problem with the AAT,' and he's said that they don't meet community standards. The secretary of the department has said he's had no complaints about the members of the tribunal. Are you able to advise the committee: has the Attorney-General's Department had any complaints put to it from Mr Dutton as to the operations of the AAT?

Mr Anderson : I'm not aware of any complaints made by Minister Dutton to the department.

Senator KIM CARR: I'm just wondering if you've had any discussions with the home affairs department as to how community standards are measured.

Mr Anderson : I don't believe we've had any discussions with the department about how community standards are measured. We certainly have discussions with the Department of Home Affairs about the migration caseload and about policy settings related to migration.

Senator KIM CARR: I see. Ms Leathem, have you had any conversations with the Department of Home Affairs as to how community standards are measured?

Ms Leathem : No, we have not.

Senator KIM CARR: Have you had any complaint directly to you from the Minister for Home Affairs about the performance of members of the AAT?

Ms Leathem : No, we have not.

Senator KIM CARR: Thank you very much.

CHAIR: Senator Siewert has the call, after which—she's given me an undertaking that it will take two minutes—we will move on.

Senator SIEWERT: Can I clarify your policy for publishing decisions. I've had a look at the decision from 2 July that's on the website. Are you able to publish Social Services decisions other than child support decisions? If so, how do you do it? How do you make the decision?

Mr Matthies : At the moment we don't publish any Centrelink or paid parental leave decisions in the first review, and that's a function of the way in which the legislation operates. The Social Services and Child Support Division generally operates in private. There is a specific exception in the child support legislation for us to publish de-identified child support decisions, but a similar provision is not contained in the social services legislation relating to Centrelink and paid parental leave—

Senator SIEWERT: So you can't publish any of the decisions on debt, for example, under the rules?

Mr Matthies : That's our current understanding.

Senator SIEWERT: If the legislation is silent though, does that mean you can't?

Mr Matthies : All the sets of the child support and the social services legislation have very tight secrecy and confidentiality provisions. The child support legislation provides for a specific exception to those very tight standards in order to publish decisions, but that doesn't exist currently in the social services legislation.

Senator SIEWERT: What about second reviews?

Mr Matthies : The second review operates differently because that operates in public. It follows from that that, in general, decisions are made public unless there is a specific confidentiality order made to either de-identify or not publish at all.

Senator SIEWERT: Thank you.

CHAIR: Thank you, Senator Siewert, for your efficiency.

Senator KIM CARR: Chair, you indicated that you wanted to see some articles. I would like to table those articles from Crikey.

CHAIR: Thank you, Senator Carr. That's consistent with the practice that we had yesterday of tabling the articles we refer to. Officers of the Administrative Appeals Tribunal are excused. I now call officers from the Australian Law Reform Commission.

It being almost 11.30 am, I take this opportunity to put on the record that at 11.30 am there will be a commemoration of the one-year anniversary of the national apology to victims and survivors of institutional child sexual abuse. I know that many members of the committee would have liked to have been part of that. It's not something that we're able to participate in, because we're here; nevertheless, we acknowledge the significance of that moment.

Senator Payne: Madam Chair, I indicate that that does not go just for members of the committee. It goes for both the minister and I'm sure the officials who are part of this morning's proceedings.

CHAIR: Quite right. Thank you.