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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Administrative Appeals Tribunal

Administrative Appeals Tribunal

CHAIR: The committee will now resume with officers from the Administrative Appeals Tribunal. Would you like to make a very brief opening statement before we go to questions?

Ms Leathem : I do have a short opening statement. The AAT delivers an essential service. We provide people with access to an independent review of decisions made under more than 400 pieces of legislation, including matters relating to child support, family assistance and social security, migration and refugee visas, the National Disability Insurance Scheme, taxation, and veterans' support. Maintaining access to tribunal services remains important in a time of crisis. The AAT's leadership responded quickly to the COVID pandemic with a focus on ensuring a safe environment for members, staff and visitors to our registries. We made the difficult decision to close our registries to visitors and took urgent steps to enable our services to be able to be conducted through remote services. We redirected our people towards activities which would best support our response to the crisis.

The AAT's infrastructure wasn't well placed to support the needs of a remote workforce when the pandemic began, so we had to accelerate elements of our digital transformation program. To ensure our people could work effectively from home, we modernised our operating environment and the devices we use, including setting up and distributing around 700 additional laptops and desktop computers. As these enabling technologies were being deployed, we refined our processes for conducting more hearings and ADR processes without people physically attending registries. We rolled out enhanced audio and video hearings and more than doubled the proportion of those proceedings held by phone or video to almost 90 per cent for the seven months from March to September. We encouraged and enabled people to lodge more documents in digital form and we moved to electronic files and materials for all of our divisions. We also consulted with stakeholders and developed five special measures practice directions which set out how the AAT would operate when COVID was impacting our services. The steps we took at an early stage meant we were in a strong position to continue to progress cases as far as possible. Importantly, we identified and triaged those matters that could be progressed most readily in the changed environment and engaged with parties about how individual reviews could progress, particularly those requiring urgent determination or involving vulnerable people, recognising the diverse circumstances of our users.

Our 2019-20 annual report was recently tabled in parliament, and it includes information about our COVID response. In recent months, we've begun reflecting on what we've learnt during this period and have begun the process of deciding which changes we might retain or adapt to ensure the AAT is a tribunal fit for the future. Where possible, we aim to leverage developments which increase accessibility and informality of proceedings. We're also taking part in initiatives such as the Australian Online Hearings Practice Group to share information and experiences with other courts and tribunals.

In terms of our performance in 2019-20, I'm pleased to report that the AAT improved its pre-COVID clearance levels and we exceeded our overall finalisation targets. Despite the challenges of pivoting to remote hearings and other work, the AAT finalised more than 51,000 applications in the year, which is the greatest ever number of finalisations. That was due to the sustained efforts of our members and staff, and I wish to thank them for their flexibility and willingness to adapt to new ways of working. We continue to closely monitor the effects of the pandemic on our incoming workload. We have been receiving fewer applications overall, particularly for review of migration decisions, but this hasn't been the case in the protection caseload. While the reduction in lodgements has enabled us to start making inroads into our backlog, our legacy caseload will present future challenges as they represent older and more complex matters that cannot readily be progressed during the pandemic.

In line with our COVID-safe plan, most of our people are now working partly in offices and partly from home, save for those in Melbourne. Significantly, we are gradually resuming in-person hearings. Across all locations except Melbourne, we undertook more than 100 onsite hearings in each of the months of August and September, and this will gradually increase over coming months. The AAT continues to work with the government on workload and resource issues, including by providing information about our needs in terms of the appointment of members and the recruitment of staff to support them in their work.

Finally, I would like to take the opportunity to acknowledge that the ATT received many questions on notice around the time of when the pandemic response began in earnest. Due to volume of work involved and the urgent demands on our workforce at that time, we were unable to answer all the questions that were put to us by the committee. We are now in a position to consider previously unanswered questions and are willing to discuss these in detail during the hearing today. Thank you, and I invite questions from the committee.

Senator KIM CARR: You've indicated to the committee that your performance has improved. How many questions—

Ms Leathem : I've indicated—

Senator KIM CARR: I beg your pardon?

Ms Leathem : Sorry, Senator; I'll wait for you to ask the question.

Senator KIM CARR: How many questions on notice remain outstanding?

Ms Leathem : I understand we received a total of more than 110 separate questions on notice, but, of course, there are many other subsets of questions in relation to ones that you've provided. We also answered 25 questions on notice. For the remaining 86 questions [inaudible] we've provided a partial response.

Senator KIM CARR: I'll put it to you that there are in fact 1,025 questions that I've put to you.

CHAIR: Is that including subquestions, so it's breaking those 100 or so—

Senator KIM CARR: I've put to you 1,025 written questions on notice, and none of them have been answered. Can you confirm that?

Ms Leathem : It is the case that there were questions—I think questions Nos 129 to 212—that included many subquestions that amounted to over 1,000 individual questions.

Senator KIM CARR: That's right.

Ms Leathem : We did provide a response that it would be an unreasonable diversion of resources, particularly in the time frame of the COVID pandemic, for us to respond to all of those questions. We did, however, respond to some 25 questions on notice that we had received in that time frame as well.

Senator KIM CARR: Are you familiar with the order of continuing effect No. 49?

Ms Leathem : If you wouldn't mind reminding me about it, that would be good.

Senator KIM CARR: That's fair enough. It is a procedural order of the Senate which says:

…that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees, unless the Parliament has expressly provided otherwise.

So the argument that it is too much trouble for you to answer a parliamentary question doesn't wash.

Ms Leathem : We remain now very willing to be able to provide as much information as we can in answer to those questions.

Senator KIM CARR: Yes, but you should have provided that before these hearings. That's the point of estimates. That's the point of me asking the questions on notice so that you have the opportunity to respond before these committee proceedings are actually underway.

Ms Leathem : If I might explain, it is not a straightforward matter to be able to provide responses to those more than 1,000 questions. If you would like an explanation as to the amount of work that would be involved in, basically, interrogating and verifying the data, I'm very happy to take you through that.

Senator KIM CARR: Guess what? You're going to get the opportunity to take me through it, because those questions are going to be presented to you again, and I'll continue to ask the questions until I get some answers.

Ms Leathem : Can I just say that we are very prepared and now in a position to be able to take the time to work through each of those questions and to collect and to provide that information to you.But we do not have the answers with us at Senate estimates for the very reason that that information is not available just through pressing a button to print a report; it must be collated from many different sources.

Senator KIM CARR: Then I will give you the opportunity to explain why it is you're now prepared to answer the questions but you weren't prepared to answer them prior to these hearings.

Ms Leathem : It's very simple, Senator. We were asked those questions at almost precisely the time that the COVID pandemic really became an urgent matter. We at that time were diverting all of our personnel to being able to ensure that we could continue to deliver critical tribunal services to the community. In that circumstance, we had to make difficult choices about what work could be performed immediately and [inaudible]. I believe we made the right decision in relation to providing services to the community at that time, but please let me emphasise that does not mean we are not prepared to answer those questions. Of course we will provide those.

Senator KIM CARR: Thank you for that. I take it that you are ready to answer them tonight, are you? Is that the case?

Ms Leathem : No, Senator. We do not have the information in relation to that. As I explained, we will need to take some time to interrogate four legacy database systems, as well as our human resource system, to be able to collate and validate that information and to put it in a format suitable for the committee. We're certainly prepared to answer it, but I'm not in a position to answer it tonight.

Senator KIM CARR: Do I assume that you spoke to the Attorney's office about your responses?

Ms Leathem : To the extent that we always provide information to both the Attorney-General's Department and the office about what our response is, yes, of course they will be aware of our tabled responses.

Senator KIM CARR: To the department or to the minister's office?

Ms Leathem : We provide all of our answers to the department, and they provide portfolio answers to the office. You might have to address that question to the department.

Senator KIM CARR: I will ask the secretary. Mr Secretary, were you consulted about the failure to answer these questions?

Mr Moraitis : I was made aware of it in the lead-up to these estimates, that's all. I will ask Mr Anderson to—

Senator KIM CARR: Mr Anderson, can you assist me? Were you consulted about the failure to answer these questions?

Mr Anderson : My recollection is that there were some discussions that I had with the registrar about the volume of the questions and what would be involved in answering the questions, but ultimately it is a matter for any agency as to how they approach it.

Senator KIM CARR: Mr Anderson, I take it you would have advised the registrar of the consequences of failing to answer questions.

Mr Anderson : The discussion certainly recognised the importance of the estimates process and the obligations that public servants have with respect to answering questions. But, as the registrar has said, the timing was particularly challenging for the AAT, and these were very, very granular questions. As the registrar has pointed out, they had to go to different legacy databases because, of course, the tribunal grew very significantly from 1 July 2015; it came together from various portfolios at that stage. So it's not as though these are questions that can be readily answered by pushing buttons.

Senator KIM CARR: When will you be able to answer them, Ms Leathem? When will you able to respond to the questions?

Ms Leathem : Well, we have done some estimates of the time that would be involved, and we would certainly need several weeks to be able to provide answers to those questions.

Senator KIM CARR: We will have a look and see what happens if we don't deal tonight—

Senator HENDERSON: Sorry to interrupt, but what sort of staff resources would be required to address those questions?

Ms Leathem : I can't quantify that with precision, but it's certainly the case that several officers would need to focus on this online for several weeks. Mr Matthies, would you add anything to that?

Mr Matthies : No, I haven't got anything to add to that.

Senator HENDERSON: Thanks. Sorry, Senator Carr.

Senator KIM CARR: I just want to be clear: did you consult the Attorney-General or his office in reviewing those responses before they were provided to the committee?

Ms Leathem : The information we provided to the office was the reasons why we would be saying it was an unreasonable diversion of resources. There was no further discussion about—

Senator KIM CARR: On what date did you do that?

Ms Leathem : I would have to check my records, Senator. Can I say that your question 126 asked for specifics about any contact with the Attorney-General's Department or the Attorney-General's office, so perhaps it would be most instructive for you if we were to take the time to fully respond to question 126.

Senator KIM CARR: Sure. I'm happy for you to do that but I don't think you should try to pretend that this is something that I've just sprung on you. Some of these questions I put to you at the beginning of this year—10 months ago, before the COVID-19 issue. This argument that suddenly this department and all its agencies have been paralysed is something I cannot accept. These are propositions that have been around for quite a while. So I want to be clear about this. You put to the Attorney-General's office that it would be too difficult to answer to answer the questions. And what was the response?

Ms Leathem : I don't recall any specific response, Senator. There were many questions that we did answer and there were some questions on which we argued that it was an unreasonable diversion of resources. That information was provided in the ordinary course.

Senator KIM CARR: Do you think this would have anything to do with the fact that there have been 70 Liberal appointments to your tribunal, and that the detail of those appointments were wanted to be kept secret?

CHAIR: Oh, Senator Carr: calm down!

Senator KIM CARR: Do you think that might have been some consideration?

CHAIR: There's no need for the theatrics, Senator Carr!

Senator KIM CARR: I haven't started yet!

Senator HENDERSON: That's a worry.

Senator KIM CARR: This answer is totally inadequate—totally and completely inadequate! It's been 10 months and we're going to get this sort of nonsense! I've been here long enough to know when I've been fed complete nonsense by officers, and this is a case in point.

CHAIR: For the record, COVID was identified in January.

Senator KIM CARR: Oh, I see—we were still running around in this country arguing that it didn't matter! This officer has had plenty of time to answer these questions. When did you put to the Attorney that you couldn't answer the questions? Can you repeat that date?

Ms Leathem : Senator, I think we received most of your questions on 17 March. We then assessed all the questions—I'm just trying to resolve my timetable here—and I think we indicated on 9 April that we had evaluated a range of questions that we thought we were able to respond to and those which we thought were an unreasonable diversion of resources. That was provided to the Senate estimates team.

Senator KIM CARR: Right you are. Let's just go through a few things and maybe we can clarify a few other matters then. The membership of the AAT is well paid and it's secure employment. Would you agree?

Ms Leathem : The positions are set out in the legislation and the remuneration is set by the Remuneration Tribunal. I can't add anything to that.

Senator KIM CARR: What's the dismissal process for a non-judicial member of the AAT?

Ms Leathem : Are you referring to the dismissal of a member?

Senator KIM CARR: Yes.

Ms Leathem : The legislation requires that termination or dismissal of a member can only happen on a vote of both houses of parliament. I understand that's set out in the AAT Act.

Senator KIM CARR: Isn't it the case that only the Governor-General can fire an AAT member? Isn't that the case?

Ms Leathem : That's correct. Of course, the appointments are a matter for the department. It might be better perhaps to refer direct questions around that to the department.

Senator KIM CARR: Yes. So, in reality, the Attorney-General makes recommendations to terminate someone's appointment. That would be a more accurate description, wouldn't it?

Mr Anderson : That's not correct, Senator.

Senator KIM CARR: Sorry? Mr Anderson, correct my layman's approach to these little things.

Mr Anderson : It mirrors the provisions for terminating the appointment of a judge. It's an address by both houses of parliament, again.

Senator KIM CARR: I see: both houses of parliament.

Mr Anderson : That's in section 13 of the AAT Act.

Senator KIM CARR: Right, okay—thank you. It gets better all the time! So both houses of the parliament are the only method other than the Governor-General—is that right?

Mr Anderson : The Governor-General can terminate the appointment if there's an address to the Governor-General by both houses of parliament on grounds of misbehaviour.

Senator KIM CARR: Oh, I see. I've got it now. So both houses of parliament have to recommend it to the Governor-General?

Mr Anderson : That's correct.

Senator KIM CARR: Well, I guess that's why no-one ever gets the sack.

Mr Anderson : It's a very high bar.

Senator KIM CARR: Whether or not they're turning up for work, no matter what they're actually doing?

Mr Anderson : I think section 13 picks up proved misbehaviour. I think it also picks up bankruptcy, incapacity to perform function, and things like that.

Senator KIM CARR: Has anyone ever been terminated?

Mr Anderson : I'm not aware of anyone having been terminated, but I'd have to take that on notice to be sure.

Senator KIM CARR: Thank you; I'm sure it won't take long to find that out. How long has the AAT been around?

Mr Moraitis : Mid-seventies.

Mr Matthies : The AAT commenced operations on 1 July 1976.

Senator KIM CARR: So it's had a few people through the doors in that time. Is there a system in place to alert the tribunal if a member engages in conduct that makes them eligible for termination under section 13 of the AAT Act?

Mr Anderson : Again a bit like judges, the conduct of members is, in the first instance, a matter for the president of the tribunal. If the president has concerns about the conduct of members—and there is a guide for members, in terms of conduct, issued by the president—then the president can carry out an investigation and can make a recommendation to the Attorney, who can refer the matter to parliament for investigation.

Senator KIM CARR: Since the 7 September 2013, for instance, has a member of the AAT, to your knowledge, been engaged in conduct that made them eligible for termination under section 13 of the AAT Act? Perhaps that's a matter for the registrar.

Ms Leathem : Senator, I'm not aware of any situation that you're referencing there.

Senator KIM CARR: So the answer to that is: not to your knowledge?

Ms Leathem : What was the question, sorry, Senator?

Senator KIM CARR: To your knowledge, since 7 September 2013, has a member of the AAT ever engaged in conduct that made them eligible for termination under section 13 of the AAT Act?

Ms Leathem : The first point I would make is: that predates my time with the AAT. But, certainly, to my knowledge, I'm not aware of any reference that you've referred to there about termination of a member.

Senator KIM CARR: But the answer is surely 'not to your knowledge'? Is that correct?

Ms Leathem : Correct; not to my knowledge.

Senator KIM CARR: Can I ask you, Mr Anderson: is it in the department's knowledge? Is there anyone who can assist me with that question?

Mr Anderson : I'll turn to one of my colleagues—I believe the answer is not to the department's knowledge, but I'll seek confirmation of that. Mr Gifford?

Mr Gifford : Not to my knowledge, Senator.

Senator KIM CARR: So if a member is unavailable—except for the fact that they were on leave of absence—to perform their duties, for instance, for a period of three months, would that be an event that would make them ineligible or make them subject to termination?

Mr Anderson : The first question—

Ms Leathem : Sorry, I understand there is provision for the Governor-General to terminate an appointment if the member is absent without approved leave, but, of course, that would apply presumably to full-time members. I think Mr Matthies has the provision.

Senator KIM CARR: So the Governor-General can sack someone without a petition from both houses of the parliament. Is that correct, Mr Anderson?

Mr Anderson : The first part of section 13 is:

(1) The Governor-General may terminate the appointment of a member if an address … on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session:

   (a) proved misbehaviour;

   (b) the member is unable to perform the duties of his or her office because of physical or mental incapacity.

Then the second part, subsection (2), says the Governor-General may terminate the appointment of a member if the member becomes bankrupt or compounds with creditors—basically, insolvency—or, if they're a full-time member, is unavailable except on leave of absence for 14 consecutive days or 28 days in any 12 months; or, if the member is a part-time member, is unavailable except on leave of absence to perform the duties of his or her office for more than three months; or if they have outside employment without permission; or if they fail without reasonable excuse to comply with the requirements around disclosure of interests.

Senator KIM CARR: Outside employment is another reason, and that doesn't require a petition from both houses of parliament?

Mr Anderson : Those don't require it, no.

Senator KIM CARR: I see; thank you. Is that for a part-time member or a full-time member?

Mr Anderson : There are slightly different requirements in terms of termination of a full-time member or a part-time member under this provision. Subsection 2 of section 13 reads:

(b) the member is a full-time member and is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the member is a part-time member and is unavailable, except on leave of absence, to perform the duties of his or her office for more than 3 months …

Senator KIM CARR: Does it have to be 14 consecutive days?

Mr Anderson : That's what the statute requires.

Senator KIM CARR: Or 28 consecutive days?

Mr Anderson : No, it's 14 consecutive days or 28 days in a 12-month period.

Senator KIM CARR: That's in total. Thank you. Is there any description of outside employment?

Mr Anderson : Outside employment is under section 11 of the act. It reads:

(1) A full-time member must not engage in paid employment outside the duties of his or her office without the President's approval.

(2) A part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of his or her duties …

unless, of course, they hold an appointment in the Defence Force. That's a separate thing.

Senator KIM CARR: So the military is separate from that. Registrar, in the president's opinion, have there been any members of the tribunal that have met any of those conditions?

Ms Leathem : I don't believe there have been any members that have met those conditions, certainly not to my knowledge.

Senator KIM CARR: Not to your knowledge, but what about the president's opinion?

Ms Leathem : I would have to ask the president, but, of course, he's not here this evening.

Senator KIM CARR: Do you want to take that on notice? You've asked in regard to yourself to take it on notice as to the president's knowledge.

Ms Leathem : Yes.

Senator KIM CARR: Thank you. One of the members that I want to speak to you about tonight is Mr Tony Barry. Are you aware of Mr Tony Barry?

Ms Leathem : I believe he's a part-time member in Melbourne.

Senator KIM CARR: I have referred to him before in proceedings.

Ms Leathem : Yes.

Senator KIM CARR: He was a former media adviser within the Liberal government. He was a staffer, donor and so on and so forth. Is he a part-time member?

Ms Leathem : Yes, he is.

Senator KIM CARR: In response to one of the questions on notice that I presented on 3 March, it went to the issue of a five-month gap between the date of his appointment and the date of his first hearing. That's LCC-AE20-64. Are you able to assist me with this matter?

Ms Leathem : I'll see if we can find the answer.

Senator KIM CARR: If it's necessary, I can give you a copy. The committee secretary could probably assist you, if necessary.

Ms Leathem : I've got a copy now. Thank you.

Senator KIM CARR: You're not able to help me with the answer here, because you said there would be an unreasonable diversion of resources. I was interested to know about this five-month gap between the date of his appointment and his first hearing. You also said that new members may require a period of time between their appointment to be made and to finalise work or personal commitments before they start at AAT; new members may participate in induction and training before they are allocated cases. Mr Barry's appointment to the AAT formally commenced on 25 February 2019, and his induction and training occurred between June and August 2019. So between 25 February 2019 and June 2019, Mr Barry was not available. Is that correct?

Ms Leathem : My understanding is that he didn't participate in the induction and training until June and August. We require members to do that before they commence undertaking work for us.

Senator KIM CARR: If I put it to you that Mr Barry was not available, on the basis of the evidence that you have provided, that would be correct, wouldn't it?

Ms Leathem : It's fair to say that it is not unusual for members who are appointed, whether full- or part-time, to sometimes not commence being an active member of the AAT, for a variety of reasons. It's certainly not unusual that there would be a period between when a member's appointment might happen and when they actively start taking on work.

Senator KIM CARR: Let me be clear about this: was Mr Barry on leave?

Ms Leathem : As he was a part-time member, there wouldn't have been the requirement. There are no leave entitlements for members. They get paid only for the work they undertake.

Senator KIM CARR: So he was not on leave and he was not available.

Senator HENDERSON: No, I don't think that was the evidence. To correct, the provision of the act is that under 'part-time member' it says 'and is unavailable'. There's no evidence that Mr Barry—and, of course, we're talking about him—was unavailable.

Senator KIM CARR: I think you'll find that that's what the officer has just said.

Senator HENDERSON: No.

CHAIR: Why don't we just ask the officer?

Senator KIM CARR: Well, was he available or not?

Ms Leathem : I have no knowledge except that I understand the member undertook his induction and training in June and, as I've said, it is not uncommon for there to be a period between when their appointment is made and when they undertake induction training and become an active member of the tribunal.

Senator HENDERSON: I'm just putting out that there was no evidence that he was unavailable. That's the only point I'm making.

Senator KIM CARR: Thank you for your assistance, but let's be clear about this.

Senator HENDERSON: My pleasure. We have to be very precise.

Senator KIM CARR: Between 25 February 2019 and June 2019—we just want to be clear—what was Mr Barry doing? It's clearly longer than three months. I'm putting it to the registrar that, under the act, that means that he—and he didn't have a leave of absence; he was, you say, not required. I want to know what he was doing. He clearly wasn't taking cases.

Ms Leathem : I have no knowledge of what Mr Barry was doing. As I've said, for a part-time member, there is sometimes a delay between an appointment and when they undertake their induction. We would not allocate any work to a member before they had participated in an induction and undertaken training.

Senator KIM CARR: Well, did your systems alert you to the fact that Mr Barry had actually satisfied the criteria for termination under section 13(2)(c)?

Ms Leathem : No, because part-time members are allocated work only as and when needed. There are many times when part-time members would not undertake any work for the AAT for periods of more than three months. That does not mean they're unavailable; it simply means we haven't allocated any work to them.

Senator HENDERSON: They're actually sessional. Is that the word that's used—'sessional' members?

CHAIR: Senator Carr, it's like a casual worker. Labor likes those. You understand.

Senator KIM CARR: It's actually not. We haven't established that that's what he was doing.

Senator HENDERSON: We haven't established that he was unavailable, Senator Carr.

CHAIR: Alright, everybody! One person at a time.

Senator KIM CARR: The registrar, of course, will be able to tell me what he was doing, won't they? Is that right, Registrar? Can you tell me what he was doing?

Ms Leathem : I can only tell you whether he was doing work for us, and he was not undertaking, nor were we allocating—

Senator KIM CARR: That's clear. He wasn't doing work for you, but I'll tell you what he was doing: he was a lobbyist, wasn't he? He was a registered lobbyist. He's on the register of lobbyists as a consultant for Next Level Strategic Services. That's correct, isn't it?

Ms Leathem : I don't know if that's the case or not.

Senator KIM CARR: I see. If need be, I can provide you with a copy of the registration. Wouldn't that satisfy the 'outside employment' provisions, which also put him in breach of his undertakings and therefore make him liable for termination?

Ms Leathem : It's only full-time members who require approval for paid employment outside the tribunal.

CHAIR: Senator Carr, I thought you'd be very concerned about the potentially unlawful dismissal of a part-time employee. That's something that we hear the union movement talk about a lot.

Senator KIM CARR: I'll tell you what: there are 70 Liberal appointments here, and I want to know what they're doing.

CHAIR: So you're allowed to unlawfully dismiss them if they're Liberals—is that right?

Senator KIM CARR: No, I just want to know what they're doing down at the AAT, and I'm having difficulty establishing that, because it's said it would be an unreasonable diversion of resources to find out.

Senator HENDERSON: They are probably doing a better job of reading legislation than you are at the moment, Senator Carr—

Senator KIM CARR: I don't think I have any trouble reading legislation—

Senator HENDERSON: because you are not correctly reading section 13 of the Administrative Appeals Tribunal Act.

Senator KIM CARR: I'm wondering why it is that Mr Barry still has a job at the tribunal. How is it that he has a job there? Why has he not been terminated under the act?

Senator HENDERSON: You have not even made the case. The facts that you're trying to serve you're getting completely—

Senator KIM CARR: That's very good of you, Madam Chair! Have you looked at this matter, Madam Registrar, or is that too much of a diversion of resources?

Ms Leathem : Senator, I think you may be under a misapprehension as to the nature of our part-time members. They only work when we allocate it to them and many of them may not do work for extended periods of time. When we do allocate work to them, we require them to undertake that work, but as a part-time member there is no expectation and indeed no guarantee of work at all. So there are very diverse patterns of work that our part-time members undertake.

CHAIR: They're just regular participants in the gig economy, Senator Carr.

Senator KIM CARR: I see. How much is Mr Barry being paid?

Ms Leathem : As a part-time member, he would be getting a daily rate for work that he undertakes for the tribunal—

Senator KIM CARR: How much has he been paid?

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

Senator KIM CARR: He obviously wasn't paid very much for the first three months, was he?

Ms Leathem : He would be paid nothing if he hadn't undertaken any work for us.

Senator KIM CARR: And can you confirm what actually he was doing for those first three months that he was engaged at the tribunal?

Ms Leathem : Senator, there is no obligation on part-time members to disclose other employment. Most of our part-time members are doing multiple jobs with other organisations and tribunals. It's when a conflict arises that they have an obligation to disclose them.

Senator KIM CARR: Right. You'll come back to me on the amount he's been paid since that time?

Ms Leathem : Yes.

Senator KIM CARR: Thank you very much. As to the other questions, do I need to resubmit them or will you take them as read—that they have been automatically—

Ms Leathem : Absolutely. We will take those questions and do our utmost to respond to you.

Senator KIM CARR: Thank you. I'll leave it there for the moment. I might just have a look through my folder to see if there are any other matters.

Senator HENDERSON: I wanted to clarify a couple of things. Is it the case that the AAT is responsible for its own operations and management?

Ms Leathem : Yes, that's correct.

Senator HENDERSON: So the matters raised by Senator Carr in relation to remuneration are matters for the administration of the AAT?

Ms Leathem : No. The remuneration of members is set by the Remuneration Tribunal, independently of the AAT.

Senator HENDERSON: But the administration in relation to remuneration—when someone is paid and those sorts of matters—

Ms Leathem : Yes.

Senator HENDERSON: The operational matters are matters for the AAT. There's been the issue in relation to the diversion of resources. Could you explain it in more detail. Being asked more than 1,000 questions is obviously a very, very onerous workload. Can you just provide in more detail what is required to address the questions that Senator Carr has put to you on notice?

Ms Leathem : Yes, I can. We, as was referred to by Mr Anderson earlier, went through a very large consolidation of the former tribunals. As a result of that, we have four legacy case management systems. What that means is, for members who undertake work in different divisions, to actually extract information about work that they have undertaken—finalisation et cetera—would require us to interrogate those systems. And, for some members who work across divisions, we would have to do that across all of the case management systems. Also, each of them has a different database, so there's not necessarily consistent information. There has to be quite a lot of manual validation and checking of that as well as presenting it in a form that's absolutely constructive. There are also a lot of questions in relation to leave entitlements and pay, and of course those will involve separate interrogation of our Aurion database system, which HR is on, as well as payroll records about what people may have been paid over periods of time. So I really just wanted to emphasise that it isn't a simple report that we can simply generate; there's actually a lot involved in extracting, collating and validating that information, particularly when there are so many members with sub questions. That's going to be considerable effort on the tribunal's part.

Senator HENDERSON: No doubt, you've been under considerable pressure during the coronavirus pandemic?

Ms Leathem : Like all organisations, we did absolutely everything we could to try and ensure that we could keep delivering services, and that meant for an extended period of time—a good couple of months—it was literally all hands on deck getting staff to do whatever they could to assist in the deployment of new infrastructure, developing new policies, rolling out training, providing HR and support to people. I'm sure, like all organisations, it was a situation where we were working absolutely flat out to try and make sure we were offering [inaudible]

Senator HENDERSON: Minister, if I could ask a question of you: are there any other examples of ministers previously claiming that answering questions on notice would be an unreasonable diversion of resources?

Senator Duniam: As a matter of fact, there are. It is an oft used expression in response to questions on notice, and there are a couple of responses here that I have that refer to that exact reasoning as to a department's inability to provide answers. On 27 February 2013, Senator Bernardi asked a question of the Minister for School Education, Early Childhood and Youth. A response was given which said:

Given the very broad nature of the question and the diverse range of information collected by DEEWR, attempting to answer this question would cause an unreasonable diversion of resources.

That answer was provided on behalf of that minister by Senator Carr. In February of that year, 2013, again Senator Bernardi asked a question of the Minister for Infrastructure and Transport. The answer forthcoming was given: 'The very broad nature of the question and the diverse range of information collected by the Australian government agencies, attempting to answer this question would cause an unreasonable diversion of resources.' Again, the same month, February, 2013, this time Senator Bushby asked questions of the minister representing the Minister for Infrastructure and Transport. Senator Carr responded to parts 1 and 2 of that question: 'Given the very broad nature of the question, attempting to answer this question would cause an unreasonable diversion of resources,' and pointed the senator to a different portfolio and then to the department's website for the other answers to the question. Again, February 2013, Senator Bushby asked a question to the school education, early childhood and youth minister. Senator Carr, on behalf of that minister, answered parts 1 and 2 of the question: 'Given the very broad nature of the question, attempting to answer this question would cause an unreasonable diversion of resources,' again pointing the senator to a website to find further information. In February 2013, Senator Carr again answered to Senator Bushby, who was asking a question of the Minister for Human Services: 'Given the very broad nature of the question, attempting to answer this question would cause unreasonable diversion of resources.' We have another question here in May 2010. Senator Cormann asked the Minister for Resources and Energy and Minister for Tourism a very brief question, but, again, the same answer was given: 'This would require manual examination of a large number of diary and meeting records, which would be an unreasonable diversion of government resources.' And then finally we have another example here, which I think just gives a good range of citations that this is not something that is unheard of or unprecedented. In October 2009, Senator Abetz asked questions of the minister representing the Minister of Education, and, again, the minister responded on behalf of the minister—

Senator HENDERSON: Many examples, Minister.

Senator Duniam: ' The provision of further information beyond what is already publicly available would represent an unreasonable diversion of resources'—'beyond what is already publicly available'—and that was, of course, Senator Carr.

Senator HENDERSON: Thank you very much.

Senator KIM CARR: Did you find one of those where I actually claimed it on behalf of my own department?

Senator HENDERSON: I've still got the call.

Senator KIM CARR: Did you find one of those? I would have thought that, with all the worldwide resources of the department—

Senator Duniam: I also didn't see a packet of 1,000 questions either.

Senator HENDERSON: That's obviously hit a bit of a raw nerve, Minister.

Senator KIM CARR: You've not found one—not one.

CHAIR: Order, everybody!

Senator Duniam: I might also just add to that answer—

Senator KIM CARR: Isn't that interesting?

Senator PATRICK: I can't hear what—

CHAIR: I can't either. Order!

Senator Duniam: I might also just add—

CHAIR: Hang on.

Senator PATRICK: One at a time, maybe, Chair.

CHAIR: As we like to say, calm the farm. One at a time.

Senator Duniam: If I could just add, there is not one of these that consisted of anywhere near 1,000 questions. Most of them consisted of one or two—

Senator KIM CARR: Because your people don't work hard enough. That's your problem. It demonstrates what a pack of bludgers—

Senator Duniam: The point is it's a quite reasonable explanation for answers not being provided in answer to questions.

Senator HENDERSON: Thank you very much, Minister. I appreciate that. I want to put on the record—and obviously Senator Carr is attempting to reflect poorly on some of the appointments that have been made with people who have got connections with the Liberal Party—

Senator KIM CARR: Seventy.

Senator HENDERSON: Sorry, Senator Carr. I have the call. I put to you, Minister, that it is the case that previous Labor governments have regularly appointed people with connections to the Labor Party—MPs, former staff and union officials—to a whole range of positions, including to the AAT. I note that the Hon. Ian Callinan AC has said that previous experience in a political role is no more a disentitling factor than someone having been a public servant. Some of the eminent Labor appointments include Duncan Kerr, a former federal Labor MP—

Senator KIM CARR: Yes. Wasn't he president of the tribunal?

Senator HENDERSON: as President of the AAT; Linda Kirk, a former South Australian Labor senator; and Don Russell, a former chief of staff to Paul Keating, appointed to the CSIRO board in 2011. Also our government has appointed several very notable former Labor politicians to the AAT because of their qualifications, including David Cox, a former federal Labor MP. I just wanted to put that to you as well, Minister.

Senator Duniam: Thank you for that clarification. I will just clarify something for Senator Carr. I think, Senator Carr, you indicated that none of these were to you as minister of your department, but this one here from February 2013 was to you as the Minister for Human Services and you did indicate—

Senator KIM CARR: I see. That's all you can find from all those years?

Senator Duniam: that answering the questions would cause an unreasonable diversion of resources. I just wanted the record to be accurate.

Senator KIM CARR: Thank you very much.

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

Senator KIM CARR: That's very good. All of that's irrelevant because the registrar has indicated that they will actually answer the questions.

CHAIR: Senator Carr, Senator Patrick has the call.

Senator PATRICK: I have a brief question in relation to part-time roles and the evidence you've provided. You'd be aware that in the Constitution the principle of tenure in the courts is associated with independence in terms of decision-making. I think the terms are five years for permanent members. I wonder how you manage that issue in respect of part-time members, particularly if they're not receiving salaries or payment on a regular basis.

Ms Leathem : I'm not sure I understand the question.

Senator PATRICK: A Federal Court judge, for example, has tenure—the period in which they sit is indefinite until they reach retirement. That guarantees absolute independence and fearless and frank judgements not affected by government. In the AAT I think the normal appointment period is five years.

Ms Leathem : It's a maximum of seven years under the legislation. It is the maximum [inaudible] variation [inaudible].

Senator PATRICK: The evidence you provided before about a part-time member that doesn't conduct work on a regular basis raises some concerns in relation to that principle. I wonder how you handle that.

Ms Leathem : It is the standard model for tribunals that people don't have tenure—that they're appointed for terms and, in most tribunals, with a mixture of full- and part-time roles. Many of the part-time members might practice as a doctor, for example, as well as working part-time as a member. They might be an accountant and work part-time for a tribunal. The critical thing is to ensure that any conflicts are managed effectively so that any other role that a member might have does not impede their ability to impartially decide a matter before the tribunal. I don't believe there are any tribunals anymore that have tenured members. That model was departed from quite a long time ago in the legislation.

Senator PATRICK: In relation to what you just said, I think there are two types of appointments—those that have legal qualifications and those that have special qualifications. I presume the latter is the one where it might be a doctor or an accountant. Are there any in that first category that are appointed on the basis of their legal qualifications that operate on a part-time basis?

Ms Leathem : Yes, we have quite a number of part-time members who are legally qualified. Some of them may also undertake work for one of the civil or administrative tribunals in one of the states, so they may perform roles for other tribunals as well as for the AAT. It's certainly not the case that we only have specialist members; we also have legally qualified members.

Senator PATRICK: Alright. Thank you. Thank you, Chair.

CHAIR: Thank you very much. Senator Carr, do you have more?

Senator KIM CARR: I've got a few more on that matter. If we go back to Tony Barry, can the department confirm that under section 13(2)(c) of the AAT Act, a part-time member is eligible for termination if the member engages in any paid employment that in the president's opinion conflicts or may conflict with a proper performance of his or her duties on the AAT? Can you confirm that?

Mr Anderson : Section 11(2) states:

A part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of his or her duties.

Then, under 13(2)(d), the Governor-General may terminate the appointment of a member if the member contravenes that section 11 requirement in terms of outside employment.

Senator KIM CARR: Can you confirm that being a lobbyist on the register administered by your department constitutes outside employment? Can you confirm the assertion that I made?

Mr Anderson : I can't comment on that without seeing whether it's paid or unpaid.

Senator KIM CARR: Has there been any effort made to establish whether or not the lobbying work is paid?

Mr Anderson : You've got to go back to section 11(2). In order to be able to be considered for termination by the Governor-General under 13(2)(d), first of all a part-time member has to engage in paid employment that in the president's opinion conflicts or may conflict with the proper performance of his or her duties. Simply engaging in external paid employment as a part-time member in itself doesn't bring you within 13(2)(d).

Senator KIM CARR: Okay. Is there a requirement to make a declaration of a conflict of interest?

Mr Anderson : The registrar referred earlier to the AAT's practices for managing conflicts of interest with respect to part-time members and employment that they may or may not engage in. I suggest that the registrar is the best person to answer that question.

Senator KIM CARR: I'll ask the registrar: has there been a declaration of a conflict of interest in regard to this particular case?

Ms Leathem : The only requirement is that a member discloses a conflict of interest in relation to any proceeding that they're dealing with. There isn't a requirement on part-time members to declare any employment, unless there is the possibility of conflict in the work that they're undertaking for the tribunal. That is the point at which the president would turn their mind to whether or not that might impact on the proper performance of his or her duties.

Senator KIM CARR: Can you confirm that Mr Barry is, in fact, a paid lobbyist?

Ms Leathem : I do not know whether he is a paid lobbyist.

Senator KIM CARR: Were you aware of this matter before these proceedings tonight?

Ms Leathem : No, I was not.

Senator KIM CARR: It was put to you in the form of a question some months ago. Did you not think to inquire into that matter when those questions were put to you?

Ms Leathem : I haven't looked in detail at those questions. If it was one of the ones that we said was an unreasonable diversion of resources, that might be the reason we haven't taken additional steps.

Senator KIM CARR: Do you think it would be unreasonable for you to look?

Ms Leathem : As I said, there's an obligation on the member, if they believe any work that they're undertaking would come into conflict with their duties at the tribunal. I'm not aware there has been any declaration to the president or myself.

CHAIR: In any event, she's taken it on notice.

Senator KIM CARR: Thank you. Section 13(2)(c) of the act, in regard to 'Termination of appointment (not Judges)' states:

the member is a part-time member and is unavailable, except on leave of absence, to perform the duties of his or her office for more than 3 months;

Is that correct?

Mr Anderson : It's correct that section 13(2)(c) provides:

the member is a part-time member and is unavailable, except on leave of absence, to perform the duties of his or her office for more than 3 months;

Senator KIM CARR: I understood from what we were being told before that this provision didn't apply to part-time members.

Senator HENDERSON: No. That wasn't the evidence.

Senator KIM CARR: So I misunderstood that, did I? Has the president been made aware of Mr Barry's employment as a paid lobbyist?

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

Senator KIM CARR: Has the Attorney-General been made aware?

Mr Anderson : Certainly I'm not aware of my part of the department having communicated that to the Attorney-General. As I said, this particular provision is conditioned upon the president having formed the opinion that some paid employment of a part-time member is in some way causing conflict with their duties as a member.

Senator KIM CARR: So, in your assessment, it's the tribunal's responsibility to establish whether or not there's a conflict of interest in terms of the requirements of the Administrative Appeals Tribunal Act.

Mr Anderson : That's the test that parliament has provided.

Senator KIM CARR: I just want to be clear that that is what you're saying. The rest of my questions, as we've indicated, are on notice. Thank you very much.

CHAIR: I thank officers from the Administrative Appeals Tribunal for their attendance and their assistance today. You are excused with our thanks.