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Legal and Constitutional Affairs Legislation Committee
28/02/2017
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Administrative Appeals Tribunal

Administrative Appeals Tribunal

[14:49]

CHAIR: I now call the Administrative Appeals Tribunal. I have indications from the Labor Party, Senator Hinch and Senator Lambie that they might have questions.

Senator PRATT: We could let Senator Hinch go first and perhaps put ours on notice.

CHAIR: All right.

Senator McKIM: I have questions as well.

CHAIR: I will add Senator McKim to that.

Welcome. Do any of you have an opening statement of any sort?

Ms Leathem : No, we do not.

CHAIR: Thank you. Senator Hinch, I will go to you first.

Senator HINCH: I know that the AAT does not publish separate reviews of deportation decisions from other reviews, because they sometimes tie up with other cases, but I notice that in 2010 the number of cancellations and forced deportations was 132 and in 2015-16 it is up to 983. Can you give us any indication of what the changes were that have made this such a leap?

Ms Leathem : I think you are referring to the primary decision-making there rather than the reviews by the Administrative Appeals Tribunal.

Senator HINCH: So these are not your ones.

Ms Leathem : That would be a matter for the Department of Immigration and Border Protection.

Senator HINCH: Okay. You cannot break away how many you actually review? If the immigration minister says someone is deported, they then go to the AAT and I wonder what happens then. How many go out of that?

Ms Leathem : It is only if they are appealed that they come to the Administrative Appeals Tribunal. I will have to see if we have that detailed data.

Mr Matthies : There may be a number of decisions made by the immigration department to cancel a visa that might result ultimately, if that decision was upheld, in the person no longer having an entitlement to remain in Australia. I think we would need to take it on notice to consider, because there are various types of visas that can be cancelled and different powers.

Senator HINCH: I am happy for you to do that. At the same time, this might not even have anything to do with you, but I noticed in the last year the number of student visas that have been cancelled from overseas has gone from 5,000 in 2010 to 17,000 in 2015-16. Do they have any manner in which they could make any appeal to you? They could not, because it would have to come through a court in Australia first, wouldn't it?

Ms Leathem : We certainly do have jurisdiction to review a number of those visas.

Senator HINCH: This is for students who apply overseas and are cancelled by the immigration department. Can they somehow get access to you?

Ms Leathem : Yes. There is a right of appeal in relation to a number of visas that may be declined or cancelled by the department. Certainly the numbers that you have quoted, though, I think might relate to primary decisions by the department rather than appeals by the tribunal.

Senator HINCH: Yes, I think so. If you could take those two issues on notice, I would appreciate it.

Ms Leathem : So the number of student visa appeals that we receive?

Senator HINCH: Yes, and the earlier question. That is all from me. Thank you.

Senator McKIM: How many of the AAT's members have terms that will expire this year?

Ms Leathem : I do have that information here. We have 127 members whose terms are due to expire during the course of the year up to 31 December 2017.

Senator McKIM: Okay, so that is the calendar year. Do you provide advice to the Attorney on appointments or reappointments?

Ms Leathem : The president does provide advice to the Attorney-General.

Senator Brandis: Can I explain to you how it works?

Senator McKIM: Briefly, sure.

CHAIR: I think we went through this at great length at last estimates. Perhaps you can send Senator McKim a copy of the Hansard.

Senator Brandis: There is a protocol, the draft of which was developed by the president, Justice Duncan Kerr, who I think you know, and was agreed to with me.

Senator McKIM: Everyone knows everyone in Tasmanian politics, Attorney. It is a small jurisdiction.

Senator Brandis: Justice Kerr is not in politics any longer.

Senator McKIM: That is true.

Senator Brandis: I can actually table it.

Senator McKIM: That would be much appreciated.

Senator Brandis: Rather than go through it, I will just table it so there can be no confusion. It speaks for itself. Basically, the president suggests candidates. I suggest candidates. They are appointed in accordance with this protocol.

Senator McKIM: Thank you. In terms of the 127 members whose terms will expire this year, are you at all advanced in the process for either filling those positions or rolling them over?

Senator Brandis: Yes. It is very important to make this point because it led to some confusion or misrepresentation last year. Most of the people who are appointed are in fact reappointed—to use your term, rolled over. When a member is reappointed, there is a greater degree of automaticity about that than if a vacancy occurs and a new person has to be found.

Senator McKIM: Attorney, you will not agree, but I will have to say that making timely appointments is not one of your fortes as Attorney-General. Will you commit to filling all of these appointments before or at the time of expiry?

Senator Brandis: No, I will not. I am in discussions with Justice Kerr about this at the moment. I will concede that last year the process fell behind. I do concede that. There were a number of large tranches of appointments because at one stage the process fell behind. I discussed that with Justice Kerr. I am not going to give a commitment that every appointment will be filled the moment the vacancy arises, but certainly I do not intend to allow it to fall behind the way it did last year.

Senator McKIM: Will you commit to best efforts to ensure that those positions are filled?

Senator Brandis: Yes. There are a lot of these appointments. One of the reasons it fell behind was that the former Prime Minister, Mr Abbott, had a very strong view that people who had served a term in a statutory office should not be reappointed unless there was a powerful reason to reappoint them. So the presumption under the previous Prime Minister was that every vacancy was to be filled by a new person. For that reason, a lot more new people had to be identified. Prime Minister Turnbull does not have that view. Since Mr Turnbull became Prime Minister, there has been a greater proportion of sitting members of the AAT reappointed, and therefore fewer new people have had to be found.

Senator McKIM: I appreciate that. Thank you. I wanted to ask some specific questions about the Immigration Assessment Authority and case loads that relate to that. Firstly, what are the funding arrangements for the IAA? Is that funded through the global AAT budget, or is that a separate funding arrangement?

Ms Leathem : It is a separate appropriation. Initially, the Department of Immigration and Border Protection received $14.1 million for the function of the IAA.

Senator McKIM: That was on its establishment in 2015?

Ms Leathem : The funds were then effectively transferred at amalgamation so that they are managed by the AAT, but they are effectively a separate appropriation for that purpose. So there has been, if you like, terminating funding provided for the years 2014-15, 2015-16 and 2016-17.

Senator McKIM: What did you describe that as?

Ms Leathem : It is not ongoing funding. It is terminating appropriation.

Senator McKIM: When does it terminate?

Ms Leathem : At this stage, the funding is due to end this financial year, 2016-17.

Senator McKIM: So at the end of this financial year.

Ms Leathem : Correct.

Senator McKIM: Basically, if that funding is not extended in this year's budget, the funding will end.

Ms Leathem : I might just add to that answer. Because of the way in which the timing of the IAA commenced, we do have some unexpended funds as a result of that. We have calculated that there is about $8.6 million remaining of that pool of money that was allocated. We are trying to seek to be able to use that funding for operating beyond this financial year.

Senator McKIM: The operation of the IAA.

Ms Leathem : Correct. That requires us to seek approval for a deficit, next year, to be able to use those funds.

Senator McKIM: From who?

Ms Leathem : From the Department of Finance.

Senator McKIM: Attorney, that just knocks the ball into your court, if you don't mind me saying, or at least—

Senator Brandis: Whether for better or for worse, I am not the Minister for Finance.

Senator McKIM: No, you are not, but you are the Attorney-General and I am sure you would have an interest in ensuring that the fast-track assessments that the IAA deals with, that were created under legislation put forward by your government, are dealt with in a timely way.

Senator Brandis: You may be reassured that I always try and secure the best financial outcomes for my agencies.

Senator McKIM: What have you done to ensure that?

Senator Brandis: In relation to this particular agency, this is all part of the budget process.

Ms Leathem : The department has been working closely with both the AAT and the Department of Finance to resolve this.

Senator McKIM: The Attorney-General's Department.

Ms Leathem : Correct.

Senator McKIM: At current expenditure rates, how long would that $8 million provide funding for the IAA to continue?

Ms Leathem : We are comfortable that we could continue to perform the function, at current activity levels, at least until the end of 2017-18, but we are in discussions with departments of immigration, border protection and finance about any activity beyond that date.

Senator McKIM: What are the clearance rates of the IAA, if that is a reasonable term?

Ms Leathem : I think that is a reasonable term. I can tell you that at 31 December 2016 we had received, in the IAA, a total of 1,568 referrals. Of those, 791 decisions had been made, about 50 per cent of the case load to date.

Senator McKIM: Over what period was that?

Ms Leathem : We started receiving the applications from October 2015. So from October 2015, effectively, until 31 December 2016 we had got the 1,568.

Senator McKIM: So that is 14 or 15 months.

Ms Leathem : We finalised, effectively, 50 per cent of those. There have been 791 decisions. We have 777 on hand, at the moment.

Senator McKIM: Are you aware of the letters that have been sent out by the Department of Immigration to a number of people who would be classified as fast track, asking them to make an application for particular visa classes within 60 days?

Ms Leathem : Only what I have read in the newspaper.

Senator McKIM: So you have not been contacted by the department about that?

Ms Leathem : No.

Senator McKIM: I can indicate to you that the committee raised this yesterday with the immigration department and they have put some numbers on the record, in terms of the number of people who have been contacted. On the basis that those reports are true, it would not be unreasonable to suggest that your case load—or, at least, the matters you have on hand—might significantly increase within the foreseeable future. Do you think that would be a reasonable statement?

Ms Leathem : My understanding is there are about 25,000 people in total who are, potentially, part of the fast-track cohort.

Senator McKIM: I should be clear that the letters have not been sent out to anywhere near the entire cohort. That is information we were provided with yesterday.

Ms Leathem : We certainly have conversations regularly with the department about the timing of that case load and, obviously, they are working their way through those 25,000.

Senator McKIM: When would the last conversation have been with the immigration department?

Ms Leathem : I think we had a liaison meeting with them only the week before last.

Senator McKIM: And they gave you no indication that they intended to send those letters out.

Ms Leathem : No.

Senator McKIM: That surprises me, I must say—no adverse reflection on you, Miss Leathem, or the AAT. Are there any plans for further—I guess 'mergers' is not quite the right word—joinings of currently separate units within the AAT to bring any of the currently separate units within the AAT together?

Ms Leathem : By that you might be referring to the different divisions within the AAT.

Senator McKIM: Yes.

Ms Leathem : We do have a quite ambitious program of integration, in terms of our registry services. At the moment they are all operating quite separately because of system and legacy arrangements. We have identified a desire to try to bring those registries together in a more harmonised way so that we can have staff working across the different divisions and offering services to all clients.

Senator McKIM: That is the sort of back end, if you like, the support services that you provide to the different divisions.

Ms Leathem : We have already integrated our corporate services. That happened upon amalgamation in July 2015. I am talking more about our registry who actually interface with the public and who process the cases, manage the files, that are being reviewed. At the moment they are still operating on division bases and we are looking to integrate that more in the future.

Senator McKIM: So there are certain functions of the separate divisions that you are moving to integrate but for the divisions themselves you have no plans to integrate the entirety of the currently separate divisions?

Ms Leathem : The divisions are effectively created through the legislation so in a sense they will always maintain some differences. There is also, I might mention, a legislation harmonisation project happening at the moment that is involving the Attorney-General's Department, the department of immigration, the department of social services, and human services and, of course, the tribunal. That is also looking at opportunities where we might be able to address any of the areas in the legislation that would assist more harmonised or streamlined procedures in the tribunal.

Senator Brandis: The integration of these various merits review tribunals into the AAT, which commenced on 1 July 2015, was a very, very substantial piece of institutional reform.

Senator McKIM: Yes, I am aware of that.

Senator Brandis: Justice Kerr, as president, and the division heads and the staff have achieved, with remarkable smoothness and harmony, a major piece of reform in fusing these, what were hitherto quite separate merits review tribunals, into an organic body. The great success stories of government often go unremarked because they are uncontroversial but this has been a huge success. It is the most important reform to administrative law in Australia in 40 years.

Senator McKIM: A tale of two Kerrs, I seem to recall you describing it.

Senator Brandis: A tale of two Kerrs, that is right, Sir John Kerr and Duncan Kerr.

Senator McKIM: Thank you, Attorney, for that. Ms Leathem, just so my understanding is correct, the IAA deals specifically with a cohort that is described as fast-track. Is the other migration the MRT?

Ms Leathem : It is now called the migration and refugee division.

Senator McKIM: Okay, MRD. We spoke about this during previous estimates. How is the clearance rate going there given that I base my questions on Justice Kerr's annual report? Obviously we have not had a further annual report from Justice Kerr since then. Do you mind me asking how the clearance rate or the settlement rate, or whatever you describe it as, is going in the MRD?

Ms Leathem : I might begin by saying that in the six months to the end of the last calendar year, so July to December 2016, we have actually seen an increase in applications to the MRD. I think it has been, overall in the AAT, a 25 per cent increase in lodgements compared to the same period in the previous year, but in fact 39 per cent in the migration and refugee division. While we have in fact been finalising more matters than we had been compared to the same period last year we have not been able to keep up with that level of new lodgements.

Senator McKIM: Do you work on projections for demand, if I can use that term?

Ms Leathem : To the extent that we possibly can. In the other divisions we deal with the matters as they come in, but with the migration and refugee division, which already had a substantial backlog when it came into the AAT, it is more a case of trying to manage your caseload and get through that in as timely a way as possible. We certainly do have a caseload strategy to try to address both backlog and manage work as it is coming in but it has simply been the case at the moment that the lodgements have been far in excess of our ability to actually manage. We are working through a range of strategies to address that.

Senator McKIM: Thank you. To what do you attribute the increase in demand for MRD matters?

Ms Leathem : I would have to say that it is spread across a range of different visa groups, although it is fair to say that there has been a significant increase in some particular categories of applicants. There is a big cohort of applicants from Malaysia seeking protection visas at the moment, which has largely driven the numbers in that particular area. But there have also been, I think, increases in both partner visas and, to a lesser extent, some of the student visa categories as well.

Senator SIEWERT: Please tell me if someone has already asked these questions. If so, I will just go to the Hansard. I apologise; I have been caught up elsewhere. My questions relate to the disability support pension. How many applicants have you had over the last 12 months?

Ms Leathem : If you bear with me, I will find those figures for you. I am afraid that we have global figures in relation to Centrelink matters, but we do not have them broken down further—into disability support pensions, for example—simply because in the amalgamated AAT we have so many categories of work that it would be very difficult to get down to that level of detail. But we can certainly take that on notice and get you that information.

Senator SIEWERT: Perhaps I can go to that higher level of Centrelink. What I am interested in looking at are issues relating to the last couple of years, so maybe you can give me numbers for the last four years specifically relating to Centrelink?

Ms Leathem : If you are just interested in the numbers of lodgements—

Senator SIEWERT: For the time being, yes.

Ms Leathem : relating to Centrelink matters, I can tell you that for the 2014-15 calendar year we had 12,989 applications. That compares with 13,201 for 2015-16, so that was a two per cent change.

Senator SIEWERT: How are you going for the first half of this year?

Ms Leathem : My understanding is that for the first six months we have had a six per cent increase in disability support pensions.

Senator SIEWERT: So you do have some figures on DSP?

Ms Leathem : I have in my detailed brief. It simply says that there was an overall increase of 22 per cent in the social services and child support division—

Mr Matthies : which also includes child support cases and paid parental leave.

Ms Leathem : It is a global figure, so it includes child support matters as well as Centrelink appeals.

Senator SIEWERT: That is for this year.

Ms Leathem : Yes, so it is a 22 per cent increase overall in that particular cohort.

Senator SIEWERT: I am not trying to be pedantic, but the figures you gave me for the two previous years as 'Centrelink' include child support?

Mr Matthies : No.

Senator SIEWERT: So the figure you have just given me, the 22 per cent increase—why is that a bit different? I just ask so that I can understand the numbers.

Ms Leathem : Because there are many different types of payment that make up the Centrelink jurisdiction, there are variations in how much the case load has increased in those areas. I have some information here that says that in the year to date, for the 2016-17 financial year, we have had 6,525 applications specifically about disability support pensions.

Senator SIEWERT: And that is the six per cent increase?

Ms Leathem : That was the six per cent increase I referred to before.

Senator SIEWERT: That in fact makes up almost half of the Centrelink overall cases for last year already, just for DSP.

Ms Leathem : Because I have not got them listed in the way that you have expressed them, we would probably want to take that on notice. We could give you a year-to-year comparison about the disability support pension.

Senator SIEWERT: If you could, but I was not just comparing then. If you could, take that on notice over those three years specifically about disability support pension, but could you break it down for each of the payments? Is that possible?

Ms Leathem : Yes, we can certainly—

Senator SIEWERT: Yes, if you could, I would—

Ms Leathem : The aspects of Centrelink we can break down.

Senator SIEWERT: That would be appreciated. I am particularly interested in the disability support pension, obviously because there has been a change in policy. If I understand what you have just told me in terms of the figures for DSP, they are nearly half of the figures that you gave me for Centrelink for last year.

Ms Leathem : That sounds right.

Senator SIEWERT: Thank you. Could you give me the other figures for this year, then, please, against the payments that you have got?

Ms Leathem : I do not have them broken down by payments. There was just a reference in the brief here specifically to the disability support pension.

Senator SIEWERT: The social programs, did you say? How did you classify that, sorry?

Ms Leathem : We have them in Centrelink and the Social Services & Child Support Division, which is the whole area that does all of those types of matters. They have had a 22 per cent increase overall.

Senator SIEWERT: Out of that, though, you are not able to tell me, for those figures, what percentage of that increase is child support and social services? I am trying to look at, in particular, the Centrelink payments for this year as opposed to child support.

Mr Matthies : In terms of Centrelink applications in the period to 31 December 2016, it was 7,877.

Senator SIEWERT: That is Centrelink?

Ms Leathem : Yes.

Mr Matthies : First review in the Social Services & Child Support Division.

Senator SIEWERT: In other words, DSP is making up the vast bulk of those numbers; is that correct?

Mr Matthies : Perhaps just by way of comparison, in the 2015-16 financial year, of the 13,201 lodgements for Centrelink first review, 6,525 were disability support pension cases—

Ms Leathem : It is usually around 50.

Mr Matthies : so that is about the 50 per cent mark.

Senator SIEWERT: Sorry, I am not trying to be pedantic; I am trying to get my head around these figures. The 7,877 you gave me for Centrelink I can directly compare to the figures you just gave me for DSP for that year?

Ms Leathem : I must apologise, Senator. That number, 6,525, was for the whole calendar year of 2015-16.

Senator SIEWERT: I beg your pardon.

Ms Leathem : That was where the confusion arose.

Senator SIEWERT: That figure you gave me is from DSP for last year?

Mr Matthies : For the 2015-16 year.

Ms Leathem : 2015-16, yes.

Senator SIEWERT: So Centrelink for this year to 31 December—Centrelink per se—is 7,877?

Ms Leathem : Correct.

Senator SIEWERT: How much of that is DSP?

Mr Matthies : That is what we will need to take on notice.

Senator SIEWERT: Okay. But you can tell me that there has been a six per cent increase?

Ms Leathem : No. Sorry, that was then related to—

Senator SIEWERT: You meant from year to year?

Ms Leathem : That was the 2015-16 year.

Senator SIEWERT: There has been a two per cent increase in Centrelink per se, with a six per cent increase between 2014-15 and 2015-16 for DSP?

Ms Leathem : That is correct.

Senator SIEWERT: So you have seen that that has grown.

Ms Leathem : Proportionate to the rest of the case load.

Senator SIEWERT: Those figures that you gave me of 7,877 were specifically for Centrelink?

Mr Matthies : That is first review of Centrelink decisions in the Social Services & Child Support Division.

Senator SIEWERT: Overall, if you include Centrelink and child support, there has been a 22 per cent increase?

Mr Matthies : Correct.

Senator SIEWERT: I know that we are trying to make up some time, so I will try to be quick. I understand that you do not usually have legal representation in the process.

Ms Leathem : It really depends on the type of review that is being undertaken, but certainly many people represent themselves in proceedings.

Senator SIEWERT: Do you keep figures on that?

Mr Matthies : We do.

Ms Leathem : We do have some representation data. In the 2015-16 year, 59 per cent of applicants were self-represented. And if you look at the year to date—July to December 2016—that is slightly higher, at 60 per cent of applicants.

Senator SIEWERT: I may need to put some more questions on notice; I am aware of time. But in the provision of those figures, are you able to give me a breakdown state by state? When you are going back to the figures that I asked for, can you—on notice—give me a breakdown state by state?

Mr Matthies : We should be able to do that.

Senator SIEWERT: Could you also provide a state-by-state breakdown of where people are self-represented?

Ms Leathem : Effectively what we could do in the representation data is tell you the proportion of applicants who were self-represented.

Senator SIEWERT: Yes. That would be really appreciated. I am particularly interested in DSP, again, in terms of self-representation. I have been told that there is some concern about the increasing numbers of people with DSP who are applying and are needing help in order to navigate their way through the system. So, I am particularly interested in any information you can give me on the number of people on DSP who self-represent. Can you tell me how many of the applicants—and maybe take it on notice; I am sure you do not have all the information at your fingertips anyway—are on DSP, the proportion who are on DSP, particularly for the year to date and the last financial year, for which you have made a determination one way or the other for the applicant?

Ms Leathem : So, outcome.

Senator SIEWERT: Outcomes, yes, under the various determinations that you make, particularly DSP, but I would be interested in any other information you can give me on the other payment types. Thank you.

Mr Matthies : The figures that we just provided, the 59 and 60 per cent, are across all of the tribunal's jurisdictions, but you are particularly interested in the Centrelink jurisdiction—

Senator SIEWERT: Yes.

Mr Matthies : In terms of representation and the outcome data?

Senator SIEWERT: Yes. Apologies: I was not clear. Yes, I am particularly interested in the Centrelink jurisdiction, and, if possible, broken down for the payment types that you review. Thank you.

CHAIR: There are no more questions for the AAT, so, thank you very much for your attendance, and we will catch you next time.

Proceedings suspended from 15 : 23 to 15 : 41