Final sitting of the Administrative Appeals Tribunal
JUSTICE EMILIOS KYROU AO, PRESIDENT
DEPUTY PRESIDENT PETER BRITTEN-JONES
DEPUTY PRESIDENT SIMONE BURFORD
DEPUTY PRESIDENT GINA LAZANAS
DEPUTY PRESIDENT MICHAEL MISCHIN
Ceremonial Sitting
Final Sitting of the Administrative Appeals Tribunal
2.30 PM FRIDAY 11 OCTOBER 2024
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PRESIDENT: I want to thank everyone for attending this ceremonial sitting. In particular, I would like to thank, Mr Tom Brennan SC, Mr Peter Woulfe and Mr Michael Hawkins for agreeing to address the Tribunal. Mr Brennan is well known for his administrative law expertise, particularly in social security law. He is also the son of the distinguished first President of the AAT, Sir Gerard Brennan. Mr Woulfe is the Chair of the Federal Dispute Resolution Section of the Law Council of Australia. Mr Hawkins is, of course, the Registrar of the Tribunal.
I am also pleased to acknowledge the presence of a former President of the AAT, the Honourable Garry Downes. The other former Presidents have asked me to pass on their apologies.
We are honoured by the presence of: Mr Michael Izzo SC, the Junior Vice President of the New South Wales Bar Association; Mr Ronan MacSweeney, the Junior Vice President of the New South Wales Law Society; and Ms Sara Samios, from the Attorney-General’s Department.
Joining me on the Bench today are four of our five division heads: Deputy Presidents Michael Mischin; Peter Britten-Jones; Simone Burford and Gina Lazanas. Deputy President Karen Synon is overseas and sends her apologies.
At the outset, I wish to place on record, my deep respect for all of our First Nations people, and to acknowledge the vital role of their Elders.
Mr Brennan.
MR BRENNAN SC: Mr President, Tribunal Members. Today we meet, and I speak, on the country of the Gadigal people of the Eora Nation. I pay my respects to Gadigal Elders past, present and emerging.
In 1971, the Kerr Committee commented on a:
… substantial increase in the powers and discretions conferred by statute on Ministers of the Crown, officers of the administration and statutory authorities. The exercise of these powers and discretions –
the Committee said –
involves the making of a vast range of decisions and recommendations which affect the individual citizen in nearly all aspects of his –
and we might add ‘her’ or ‘their’ –
daily life.
It was that growth in both public powers and discretions, and the inadequacy of what we have come to know as the Constitutional writs to supervise their exercise as they affect individuals, which led the Committee to recommend the establishment of the general merits review tribunal, this Tribunal, the Administrative Appeals Tribunal.
Since its establishment, its function has been the supervision of the exercise of those government powers and discretions, as they affected individuals and business entities. In performing that function, the Tribunal’s contributions to the Australian public have been extensive and impressive.
Most immediately, thousands of government decisions have been reviewed every year since the mid-1980s, resulting both in review on the merits of each of those individual decisions and, as importantly, the provision to each individual business entity affected by the decision of a hearing: a hearing which in many cases constituted the first and only time that the person affected perceived that they had been able to tell their story and be heard. And in almost every case, the only time that a person affected by a government decision got to tell their story to the actual decision-maker.
As importantly, however, the Tribunal has been at the centre of significant improvements in the quality of primary decision making and respect to the rule of law. In a speech to the Council of Australasian Tribunals in 2007, Sir Anthony Mason, who had been a member of the Kerr Committee, commented that the Committee had not spent much time outlining any reason for reform, because the need for major reform was widely accepted. Notwithstanding the wide acceptance, he recalled that of the reforms when implemented:
The mandarins were irrevocably opposed to external review because it diminished their power.
Sir Anthony went on to recount Ernst Wilheim’s description of his role as the in-house lawyer at the Department of Immigration. And the first thing to note of Sir Anthony’s story was that Ernest Wilheim was ‘the’ in-house lawyer at the Department of Immigration.
Ernst told the story of being asked to sign off a batch of deportation orders, almost all of which, in his opinion, were defective. Having explained his opinion to his superiors, Ernst was counselled, ‘You don’t seem to understand. Your job is to initial these orders because if you don’t, the Minister won’t sign them and we’ – that is, the Department – ‘want these people out’.
As Sir Anthony observed, there was a culture of disrespect for the rule of law.
As AAT review has been implemented across various fields of Commonwealth administration, the scope of a continuance of that culture has been greatly reduced.
Administrators have been required to attend to the detail of both the facts and law in making administrative decisions by the requirement that they provide a statement of reasons, and by the prospect that their decisions will be reviewed, in public, by the Tribunal, which would publish reasons. The work of decision-makers was thereby made available for scrutiny by colleagues, other departments and agencies, Ministers, Parliamentarians and the media.
And to underline the practical significance of that, I recall on one occasion being a decision-maker whose decision was reviewed by this Tribunal. I had not attended to giving feedback to my subordinates who had drafted various bits of the decision which was reviewed. But when the published decision became available, it was one of those subordinates who came to me to give me feedback on what I had ultimately done with their work, and how it is that I fell into error as a result of what I had done with their work.
Across numerous areas of administration, the exercise by individuals of their right to apply for review to this Tribunal has resulted over time, however, in much more than that. It has driven significant law reform substantially informed by reasons given by this Tribunal.
I give two examples to illustrate it. Among the first jurisdiction conferred on the Tribunal was the review of civil aviation safety licensing decisions. In the first two decisions of the Tribunal in that area, the facts seemed to indicate that there had been very hasty suspensions as a result of a perception of an imminent risk to aviation safety.
In Tobin v Department of Transport [1977] AATA 7, Mr Tobin’s licence as an aircraft maintenance engineer was suspended on 16 May 1977, and a Tribunal of three commenced a full review of that decision four weeks later on 14 June 1977. On day 2 of the hearing, the Tribunal suspended the hearing and set aside the primary decision, having determined that the delegate had decided to suspend the licence without having complied with the statutory requirement to give notice to show cause as to why the licence should not be suspended. The Tribunal found there was no power to do that and that they need not go any further.
Two days later, in Upton v Department of Transport [1977] AATA 8, Mr Upton, a pilot, who had flown from Adelaide to Port Augusta in very poor weather when he was licensed only to fly in visual meteorological conditions, was found to have failed to comply with his duty to fly safely, but like in Tobin, the delegate had made the decision before giving notice to show cause as to why the decision should not be made. The Tribunal in this case decided that, had they made the decision themselves, they would have upheld the suspension, but given that the suspension itself was beyond power, they would set it aside and then take no further action.
Now, for those of us who practise in the aviation safety area, we have become very familiar with the way that the Regulator in that area works, but one of the consequences of cases such as that, is that there is now, in Part III, Division 3A of the Civil Aviation Act 1988, special provision for immediate cancellation and suspension of licences where there is an imminent risk to aviation safety, with special provision for supervision by the Federal Court of those urgent decisions.
A very clear example of the rule of law being brought to bear as a result of the experiences and reasoning of this Tribunal.
Social security administration is the second example and probably a starker example. Jurisdiction was first conferred in that area in 1980. One of the very first decisions was the decision in an application for review by Mrs Harris concerning the lawful method for the calculation of overpayments of age pension: Harris v Director General of Social Security [1981] AATA 97. The Department regarded that question as determined by Departmental policy which, of course, in those days before the FOI Act, were not published.
A Tribunal of three, while divided as to what the law required, was very clear that the questions were to be answered by reference to the application of law to the facts, and that policy had nothing to do with it. The matter went on appeal to the Full Court of the Federal Court and then to the High Court. Both Courts were, as one would imagine, very clear that it was a question of applying law to facts, that policy had nothing to do with it, albeit the Courts differed as to what constituted law and what constituted facts in the particular case.
But what is of importance, is that in a very short period Australia went from the entitlements of our age pensioners being determined by unpublished Departmental policy, to being calculated according to principles articulated in published judgment of the High Court after public argument and reasoning.
Within a decade, the intensity of the Tribunal’s review of social security decision-making resulted in the complete rewriting of the Social Security Act. With that rewriting, and with subsequent amendment to that Act, there can be no question that entitlements to social security, the calculation of rates to be paid and of overpayments, are all matters governed by the terms of that Act and to be decided in accordance with its provisions. And we have all seen through the experiences of Robodebt in recent years, the consequences of some in government forgetting those fundamental propositions.
But that observation reflects the singular achievement of this Tribunal in bringing the rule of law to fields of administration supervised by it; and doing so in a way which coheres very tightly with Australia’s democratic institutions. No longer are the entitlements of age pensioners the subject of merely private deliberation within a Canberra department. The excoriating detail of them are now matters which generations of Parliamentarians have grappled with as they have been required to consider and enact amendments after amendments to assets tests, income tests and entitlements in the Social Security Act.
Now, the benefits I have described are benefits, of course, which have only been available in those areas of administration which have been subject to this Tribunal’s jurisdiction, and that has never been a general jurisdiction. Rather, one needs to look at the range of decisions the Tribunal has been authorised to review. And in considering that range, as I went through the history, it struck me it was useful to look at three distinct phases, which I will call ‘Before Davies,’ ‘Before Kerr,’ and ‘After Kerr’.
Looking at the ‘Before Davies’ period, that is before President Davies, when the AAT Act was passed there was a schedule listing its initial jurisdiction. By today’s standards it was remarkably narrow. There was no jurisdiction to review social security, veterans’ affairs, Commonwealth compensation or income tax decisions. The Freedom of Information Act was not yet in force and the only migration decisions that could be reviewed were criminal deportations. From today’s perspective the question must be asked, what did they do in the Before Davies era?
The answer is that, Before Davies, the Tribunal was a very niche general administrative tribunal. Its registry and all of its members were based in Canberra, and its caseload was modest, peaking at about 250 applications for review in 1978; and eclectic: covering topics such as tax agents registration, customs classifications, criminal deportations, civil aviation safety licensing, Defence Force retirement and death benefits, and the Tribunal’s most important jurisdiction, numerically, the review of land valuations in Canberra for the purposes of ACT rating decisions.
The first President of the Tribunal was, as the President just mentioned, my father, Justice Brennan, then of the Industrial Court, and from its inception in 1977, the Federal Court. In that period the Tribunal’s principal contribution was to lay down foundational principles for merits review of continuing relevance today both through the Tribunal and on review to the Courts.
I mention only a few matters. In the first decision of the Tribunal, one of two in its first seven months, the result was the Tribunal did not have power, and that was Adams v Tax Agents Board [1976] AATA 1. The Tribunal did not have power to consider the constitutionality of the provision under which a decision was made.
The second, Lady Bird Children’s Wear Pty Ltd, an important principle that in applications for review, absent specific statutory provision, there is no onus of proof, albeit the subject matter—a camisole and undergarment for the purposes of customs—was hardly earth-shattering: [1976] AATA 2.
The third, Brian Lawlor Automotive Pty Ltd v Collector of Customs, that the Tribunal has power to review a purported decision made without statutory power: [1978] AATA 49; [1979] FCA 21.
The fourth, Drake v Minister for Immigration and Ethnic Affairs, both No. 1 and 2 in this Tribunal and in the Full Court, setting down the role of ministerial policy in merits review and the occasions upon which the Tribunal will be prepared to depart from ministerial policy: [1978] AATA 71; FCAFC, 3 May 1979.
And the fifth, a decision of great importance, which I failed to adequately persuade Deputy President Britten-Jones of recently, Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; [1981] HCA 58. The role of hearsay in the rational proving of facts in the Tribunal, and the relationship of section 35 orders to the admission of evidence.
In those early days, a recurring theme, and one which has dogged the Tribunal throughout its life, has been urgency. I was able personally to observe some of that in the Christmas week of 1977. I was holidaying with my parents at their holiday house at Mollymook on the New South Wales south coast that week. On 5 December that year, the combined Hospital Contribution Funds applied to the Tribunal to review a decision of the Minister for Health to refuse it permission to raise its premiums: Hospital Contribution Fund of Australia v Minister for Health [1977] AATA 36. Following the application for review, the Minister had prepared and filed a section 37 statement, as best I can tell from the record, I think on 23 December.
The result was that, on Boxing Day, the then-President was informed by the then Registrar, Ron Mills, that if there was to be utility in the review it needed to be conducted before the New Year, and that there was a great deal of media interest in the matter.
I argued to my father that if he was to be required to interrupt his and my holidays he ought insist that the Tribunal would sit in the courthouse in Milton or, if not in Milton, then in Braidwood: both of them were much more picturesque and much closer to Mollymook than the three hour drive back to Canberra, and it would be rather fun to see which journalists from the press gallery made the trip.
As I recall it, it was Mills’ advice that if there was to be a transcript, the hearing would occur in Canberra. That was sufficient to demonstrate to the then-President, and certainly to his son, the complete absence of Presidential authority when it came to anything that mattered – at least to me.
The Tribunal sat in Canberra on New Year’s Eve in 1977 and on that day set aside the decision of the Minister, thereby enabling HCF to increase its premiums. If the evidence accepted by the Tribunal was correct, the HCF funds thereby avoided insolvency. So we can thank this Tribunal and its responsiveness for the continuation in business of our second biggest private health insurer.
Going then to the second period, ‘Before Kerr’. In 1979, Justice Brennan resigned as President of the AAT and of the Administrative Review Council, and Justice Davies, who had served as Deputy President of the AAT, was appointed President of the AAT.
Justice Davies served as President until 1987, a period I think only exceeded by that of Justice Downes, who is with us today. And during his time as President of the Tribunal, the jurisdiction was greatly expanded. In 1980, there was the social security jurisdiction. In 1981, the jurisdiction of the former Commonwealth Employees Compensation Tribunal was conferred at the time that the Comcare scheme came into being.
In 1982 the FOI Act was enacted, and it was the first volume jurisdiction which was conferred on this Tribunal anew, that is that no one else had ever conducted the reviews because there had never been an FOI decision before that Act. In 1985 the veterans’ affairs reviews that had been the subject of review by the Veterans’ Review Board came here, and in 1986 the Taxation Boards of Review jurisdiction was conferred along with their 75,000 case backlog.
By 30 June 1987, so eight years into Justice Davies’ period, there were 85 members of the Tribunal. There was jurisdiction conferred by 240 separate enactments and there were 27,000 applications for review.
It was during Justice Davies’ presidency that the foundations of the modern AAT were laid. Each of the volume jurisdictions of social security, veterans’ affairs, Commonwealth compensation, tax and FOI were conferred in that period, leaving really only the customs classification jurisdiction as one of any volume from the original period.
In a very helpful 1992 paper, Deputy President Ian Thompson, writing with Moira Patterson, identified the four benefits to the public from the period of AAT operation; benefits which, I suggest, really flowed from the early 1980s through to today: first, causing statutes to be administered in accordance with their terms; secondly, contributing towards consistency of the administration of statutes; thirdly, providing an opportunity for full and open consideration of issues of major importance; and, fourthly, increasing the accountability of decision‑makers.
Each of those benefits was directly a consequence of the performance by the Tribunal of the core function I have spoken of: the supervision of the exercise of government powers and discretions as they affect individuals and businesses.
But there were other clear benefits delivered by the Tribunal from that period. I just wish to identify a couple.
First was with the social security, Commonwealth employees’ compensation, and veterans’ review jurisdictions exercised by the Tribunal. The Tribunal developed a concentrated expertise in matters concerning disability and impairment. Particularly through the rapid structural changes to the economy and labour markets in the late 1980s and early 1990s, this Tribunal did much to inform policy-makers and legal systems on relationships between impairment, disability and economic engagement.
For example, the series of cases commencing with Re Panke v Director General of Social Services (1981) 4 ALD 179 showed that an assessment of ‘incapacity for work’ caused by impairment was a different and much broader inquiry than assessment of the impairment: an insight which, I do not think it is overstating it, transformed Australia’s approach to supporting those excluded from the labour market by disability—a transformation which carries through to today.
In a remarkable number of cases and articles published by members of the Tribunal at the time, detailed attention was given to how best to obtain and use complex medical expert evidence in applications for review conducted by unrepresented applicants. One article merits particular mention because of its significance not just to this Tribunal but to the operation of the Australian legal system generally.
At the time, Australian lawyers understood there to be a dichotomy between adversarial and inquisitorial methods of hearing. In a 1979 essay, for example, based upon his three years of experience with the Tribunal, Justice Brennan, as President, said this:
Suggestions have been made that a change from ‘adversarial’ to ‘inquisitorial’ procedures would improve the Tribunal’s functioning.
Now, his Honour did not go on and reject those suggestions outright, but he did say:
The Tribunal does not have field officers or research assistants to pursue enquiries … The process of fact finding before the Tribunal is in substance the same process of fact finding as that undertaken by a Court. Rules of evidence do not apply, but the seeming liberty of this dispensation is tempered by the requirement that the material should be logically probative of a relevant fact.
Justice Brennan concluded that essay with a quote from Lord Denning’s comment on merits tribunals:
These tribunals are not part of the administrative machinery of government under the control of departments; they are part of the judicial system of the land under the rule of law.
Now, Mrs Joan Dwyer was appointed as a Senior Member of the Tribunal in Melbourne in 1994. She served in that role until 2015. In 1991, drawing on her then seven years of experience she published a detailed analysis of the Tribunal’s procedures in an article entitled ‘Overcoming the Adversarial Bias in Tribunal Procedures’.
In the article, Mrs Dwyer made the case that the Tribunal was, in many of its jurisdictions required to enquire as to the truth of the facts. She identified difficulties in assessing complex questions of impairment and disability when medical evidence was inadequate, the applicant unrepresented and the Departmental assessment had been conducted by insufficiently expert officers.
She postulated that the adversarial model which had, to that time, controlled the Tribunal’s procedure was a matter of adversarial bias rather than legal requirement, and she concluded with a very clear statement that in her experience the Tribunal was able to exercise inquisitorial powers without any offence to any requirement of natural justice or any other provision of the Act.
While the record does not disclose whether that paper had a direct effect, the following year when the High Court came to decide the case of Bushell v Repatriation Commission (1992) 175 CLR 408, Sir Gerard Brennan’s views on the appropriate procedure to be adopted in the Tribunal had clearly developed:. He said of an application to review a decision of the Veterans’ Review Board:
Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.
Those comments in Bushell are now accepted as law. Since the High Court’s decisions in SZBEL (2006) 228 CLR 152 and Uelese v Minister for Immigration (2015) 256 CLR 203, it has been beyond question that, except in reviewing those decisions where legislation imposes a formal onus of proof, it is a mistake to ‘transpose the language and mindset of adversarial litigation to inquisitorial decision-making of the kind’ undertaken by the Tribunal.
As importantly, across the full spectrum of Australian Courts and Tribunals it would be difficult to identify any modern Australian lawyer who would seriously contend that there exists a dichotomy between adversarial and inquisitorial procedures, such that procedures could not be moulded according to the exigencies of individual cases including by the deployment of inquisitorial methods.
The ‘After Kerr’ period. The Honourable Duncan Kerr was appointed as President of the Tribunal and a Judge of the Federal Court of Australia on 10 May 2012.
A quarter of a century earlier, in 1988, as a ministerial staffer, I was negotiating through the government caucus legislation to confer determinative powers on the Social Security Appeals Tribunal. Mr Kerr was a young, ambitious backbencher. He was opposed, impeccably as I recall, to the legislation because he saw it as undermining the Kerr Committee’s vision for a general merits review tribunal constituted by this Tribunal. He was passionately committed to that vision, for this Tribunal.
In 1993, Mr Kerr was appointed Minister for Justice and in that role commissioned the Administrative Review Council to produce what became its Better Decisions Report. In the report, the ARC recommended the amalgamation of the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal into this Tribunal.
For over 20 years, the amalgamations did not proceed. Undoubtedly, with the appointment of Justice Kerr, the Tribunal had as President a firm advocate for further expansion of the Tribunal’s jurisdiction.
In 2013, the year after his appointment, the National Disability Insurance Scheme Act 2013 commenced and with it, the jurisdiction to review decisions under the National Disability Insurance Scheme was conferred. Remarkably, that was the first high volume jurisdiction conferred on the Tribunal since Justice Davies had been President.
In the following year’s budget, the government announced the implementation of the Tribunals amalgamation recommended in the Better Decisions Report. The amalgamation was implemented with effect from 1 July 2015 and with it the Migration and Refugee Review Tribunals, together with their systems and caseloads, transferred to become the Migration and Refugee Division of the Tribunal, and the Social Security Appeals Tribunal transferred with its systems and case load, to become the Social Security and Child Support Division.
By that process, the Tribunal inherited not only a substantial backlog of cases in the Migration Review Division, but year on year its new applications for review doubled.
As the review by the Honourable Ian Callinan AC into the Tribunals amalgamation showed, that process, followed by budgetary decisions which deprived the Tribunal of essential membership, imposed unmanageable tensions and rigidities on the management and operation of the Tribunal.
While, in the period since 2015, some of the stresses and strains on members and the registry have been all too apparent to those of us who practise with any frequency in the Tribunal, the essential function of the supervision of the exercise of government power and discretion as it affects individuals and businesses has continued to be performed, albeit with longer delays than in the past and with members who may have seemed either stretched too thinly across too many areas of jurisdiction or otherwise without the time to devote to cases assigned to them, given the overwhelming and crushing burden of the caseload of the Tribunal.
Ultimately, the errors made in implementation of the Tribunal’s amalgamation resulted in the decision of government to abolish this Tribunal and to establish, on a different basis, the Administrative Review Tribunal.
While those moves are necessary and welcome, it is appropriate to acknowledge the enormous debt owed by the Australian public and government to this Tribunal and its members in banishing from many parts of government the culture of disrespect for the rule of law to which Sir Anthony Mason spoke, and providing to hundreds of thousands of people – both Australians and, since 2015, those who seek to join our community – an opportunity to tell their story and have it heard and considered in detail by the person responsible for making the decisions dependant upon it.
May it please the Tribunal.
PRESIDENT: Thank you, Mr Brennan. Mr Woulfe.
MR WOULFE: On behalf of the Law Council of Australia, I echo the acknowledgments made of the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation. I also acknowledge the presence of: the Honourable Justice Emilios Kyrou AO, President of the Administrative Appeals Tribunal; Mr Michael Hawkins AM, Registrar of the Administrative Appeals Tribunal; present and past members of the Tribunal; Mr Tom Brennan SC; learned friends and colleagues; and guests.
Australia’s administrative review system is designed to provide a critical layer of accountability that protects individuals against the unfair and arbitrary use of public power, ensure public confidence in government and similar decision-making, and enable informed and accessible participation in legal process.
The Administrative Appeals Tribunal was established after significant reviews recognised that Australia needed a mechanism of external merits review of government decisions that would be accessible, informal and relatively affordable. That objective, although expressed in slightly different language over time, has guided the Administrative Appeals Tribunal throughout its nearly five decades of operation, and I am very pleased that its successor the Administrative Review Tribunal has been designed with essentially the same ultimate, albeit updated, critical objective in mind.
My role this afternoon is not to talk about the Administrative Review Tribunal which commences next Monday. Instead, my role is to talk about the relationship between the Administrative Appeals Tribunal and the legal profession. I do so primarily from the perspective of the Law Council’s Federal Dispute Resolution Section, and as such it is appropriate that I first mention just a little about the Law Council.
As a peak national representative body of the Australian legal profession, the Law Council has a long history of engaging with the Commonwealth Parliament and various courts and tribunals on matters relating to Australia’s administrative review system. Of relevance to today, I am pleased to say that the relationship between the Administrative Appeals Tribunal and the Law Council and the broader legal profession has been very strong and productive.
In that regard, a good point to start is the Law Council’s AAT Liaison Committee. The AAT Liaison Committee was formed in November 2004 as a result of practitioners wanting to collaborate and share information with the Tribunal more effectively. The original purpose of the Committee was to provide a national forum for the discussion of significant policy and procedural issues affecting the Law Council membership’s engagement with the Tribunal.
The AAT Liaison Committee held its first meeting on 14 December 2004. The Committee’s founding members comprised the Honourable Garry Downes AM KC, who was the President of the Tribunal from 2002 to 2012, then Deputy President Geoffrey Walker, four members of the Tribunal and four members of the Law Council’s Federal Litigation section as it was then known. Mr Christopher Cunningham was the Law Council’s Committee convenor and there was strong engagement from and collaboration between members from the outset.
The AAT Liaison Committee has existed for almost 20 years and the forum it has provided has enabled a productive and ongoing dialogue between the Tribunal and the Law Council, and by extension the broader legal profession. Based on my experience as a member of that Committee, the relationship has been one characterised by openness, mutual respect and trust, and constructive feedback. The Tribunal has responded to and, where appropriate, acted on such constructive feedback.
With the Tribunal’s input and guidance, the Committee has effected changes which have been valuable for the profession and users of the Tribunal alike. It is hoped, of course, that the Liaison Committee will continue in the Administrative Review Tribunal as productively as the AAT Liaison Committee has historically worked with the AAT.
I will now give some examples of how the Tribunal has addressed significant policy and procedural issues affecting the legal profession and the people its serves through its relationship with the Law Council and the broader legal profession. I will group those examples into three broad categories.
The first category of the Tribunal’s relationship with the legal profession concerns the Tribunal’s continuous engagement in relation to substantive law, practice and procedure. I will share just three examples. First, on many occasions over the years, division heads and certain other executive level members have held regular and ad hoc liaison meetings with the profession in relation to the amendment of practices and procedures to ensure that merits review is conducted in accordance with the objective of providing a mechanism that is fair, just, economical, informal and quick. Such liaison meetings have promoted greater understanding of the Tribunal within the legal profession and the community.
Secondly, on 29 October 2019, the President and some members and staff of the Tribunal attended a specially convened forum in Sydney to hear the legal profession’s response to recommendations made in the report which was prepared by the Honourable Ian Callinan AC KC, following a statutory review of the Tribunal. Through that process, members and staff of the Tribunal obtained first-hand feedback on the review report from the legal profession, with a view to assisting the Tribunal to manage its own response to that report.
Thirdly, in 2022 the Canberra registry of the Tribunal conducted a workers’ compensation pilot program with a view to updating the procedures used to resolve and determine workers’ compensation matters where both parties were represented. The pilot program ran over several months and it included engagement with local legal professionals as to proposed procedural changes.
The second category of the Tribunal’s relationship with the legal profession concerns its engagement in relation to emergent issues. Perhaps the best example started in the week immediately before Australia’s first coronavirus lockdown in 2020. In that fateful week I received an urgent telephone call from the then President of the Tribunal, the Honourable David Thomas, asking for the Law Council’s position in relation to how the Tribunal and the profession could ensure that merits review would occur during coronavirus lockdowns.
The Law Council’s position was urgently prepared and shared with the Tribunal. The Tribunal took the Law Council’s position and the position of the broader legal profession into account, in designing and updating its various COVID-19 special measures practice directions. And now hopefully coming full circle, the Tribunal is working with the legal profession to support a return to in-person hearings, and it understands why in many matters such hearings remain important.
The third category of the Tribunal’s relationship with the legal profession concerns the Tribunal’s assistance with continuing professional development of lawyers and related professionals. In that regard, it is very pleasing that the Tribunal has consistently contributed to many seminars and conferences held by the Law Council and other bodies, and it has invested in the future of the legal profession by its support of law students.
In terms of the Tribunal’s contribution to seminars and conferences, we have been fortunate to have the current President, Justice Kyrou, speak at this year’s Commonwealth Law Conference. Deputy President Jan Redfern and other members have presented at and contributed greatly to the Immigration Law Conference, and the Hot Topics in Commonwealth Compensation Seminar has kindly been chaired by three former Presidents of the Tribunal and Deputy Presidents Peter Britten-Jones and Damien O’Donovan.
As to the Tribunal investing in the future of the legal profession, the Tribunal has over many years conducted mooting and negotiation skills competitions which were held for teams of law students. Additionally, the Tribunal has given law students the opportunity to undertake work experience in various registries. Such investment in the future of the legal profession, in my respectful submission, demonstrates sound judgment on the part of the Tribunal.
The examples I have discussed illustrate the broad categories of the relationship I wanted to mention today, and of course there are others which time will not permit me to address. But to recap, the relationship between the Tribunal and the legal profession has included: first, engagement with the profession in relation to substantive law, practice and procedure; secondly, engagement with the profession in relation to emergent issues; and, thirdly, assistance with the continuing professional development of lawyers and related professions.
It should go without saying that the broad categories of engagement with the profession that I have just discussed, have all occurred in addition to the burden of the Tribunal’s usual function of providing external merits review of government and government-like decisions in a Tribunal with a large caseload and one exemplifying standards for Tribunals operating nationally, but I will say it anyway, in the interests of completeness.
The examples show that the Tribunal has been very committed to engaging with civil society in relation to the performance of its functions or matters that are incidental to those functions. As one of the functions in the Administrative Review Tribunal Act 2024 (Cth), includes engagement with civil society in a similar way to that which I have just described, I look forward to the legal profession sharing positive engagement with the Administrative Review Tribunal in a similar way in the future.
But, for now, may I commend the Administrative Appeals Tribunal from its leadership to its members and staff, for working so closely with the profession and for being receptive to our feedback and input over so many years and in so many ways. The constructive dialogue and openness have been greatly appreciated and form part of the legacy that has been built and will be left by the Tribunal.
On behalf of the Law Council, its Federal Dispute Resolution Section, our constituent bodies and the legal community more broadly, I thank the Tribunal and its members and staff, past and present, for the important role they have played in the delivery of justice in Australia’s administrative law system. I thank the Tribunal for its open and constructive relationship with the legal profession. Farewell and thank you to the AAT.
PRESIDENT: Thank you, Mr Woulfe. Mr Hawkins.
MR HAWKINS: President, Deputy Presidents, the AAT has been in existence for nearly half a century. It has evolved in many ways over that time, but what has been a constant is the collective sense of mission. Never have I witnessed such a strong belief in the purpose and objectives of an organisation than I have of the AAT, and it is for good reason.
The work the Tribunal does is fundamental to a healthy democracy, yet many people do not know what merits review means until they come to us. We offer people an opportunity to be heard when they feel someone in authority, be it a departmental official or a government minister, is wrong.
Many decisions we deal with are life-changing and can have major impacts or consequences for those involved. Whether you are members making the decisions, the staff supporting those making the decisions, helping people participate in the review process, or ensuring the Tribunal operates as it should, every person who works here understands the gravitas of the work that we do.
We see this in our annual census results. Nine out of 10 staff say that they believe strongly in the purpose and objectives of the Tribunal and that they are happy to go the extra mile, when required, because of that. And have we not accumulated some extra miles in the past two years! It is this powerful sense of mission that has gotten us up to this point, and it is a legacy that we must carry on into the new Administrative Review Tribunal.
The research is undeniable: when you are inspired by the purpose of the work you do, your productivity and job satisfaction increase. And who benefits from that? Our people, of course, but so do the people who engage with the Tribunal, our users, the people whom we are here to provide a service to.
The President has spoken at length about his vision for a Tribunal of excellence as we enter this new era. The foundation for this has been laid by the thousands of members and staff who have proudly come through the doors to work at the AAT since 1976, including those here today and watching the ceremony remotely.
It is remarkable to note the number of staff who have been with the Tribunal for 10, 20, 30 and even 40 years, especially at a time when changing jobs is more common than it used to be. The commitment to our users, to our colleagues and to our purpose, is critical to us being an effective, efficient and excellent Tribunal.
Since 1976, our records show that at least 880,000 applications for a review have been lodged. We have finalised upwards of 800,000 cases in that time. The number is probably closer to 1 million if we take into account matters that are no longer in our case management systems. This is an extraordinary achievement, and while it does not paint the full picture of the extraordinary work that has been done by this Tribunal, it is a profound reminder of how many people we have helped and the impact we have had over the years.
I want to acknowledge the enormous and important contribution every member and employee has made to the AAT, whether that be the AAT in its original form, with the SSAT or the MRT-RRT prior to amalgamation, or as we are now. I want to express my gratitude to them for the role they have played over the course of the Tribunal’s history and the role they will continue to play into the new Tribunal.
It is not often you get the opportunity to see out the end of an agency and be part of the establishment of a new body. This is a once in a lifetime opportunity. It has been an opportunity for every staff member to contribute to a major piece of reform at almost every level, whether that be through the AGD Taskforce, the many internal consultations, or the transition work itself.
This is not your average machinery of government change. This is a major reform of an integral component of the Australian administrative justice system. It undoubtedly has been a challenging two years for the Tribunal, since the announcement that the AAT will be abolished and be replaced.
With the backdrop of an ever-growing caseload and systems struggling under pressure, the task for transitioning seemed almost impossible at times, but we all see the many opportunities that come with this reform. Part of the challenge has been managing our passion and our ideals to make things perfect for the new Administrative Review Tribunal, for our users. And that is the great thing about our people and what we do. I am, and everyone should be, proud of the work that the Tribunal has done to date, and excited by the opportunities that lay ahead of us. Great things take time. We have laid the foundations and now we will build on those.
Your Honour, the staff of the AAT transitioning to the ART and I, embrace your vision for a Tribunal of excellence, and commit to supporting you and the members of the ART to realise that vision.
Today is a day for us, our members and staff, to reflect on and acknowledge what has come before us and to, together, remind ourselves of why we are here and how that will continue to drive us come Monday, the start of a new era.
PRESIDENT: Thank you, Mr Hawkins, and thank you also Mr Brennan and Mr Woulfe for your kind words.
On what is effectively the final day of operation of the AAT, it is instructive to look back at the AAT’s first day of operation on 1 July 1976. In his speech at the AAT’s 20th anniversary conference in July 1996, Sir Gerard Brennan recounted the day the AAT opened its doors. He descried the AAT’s initial premises as ‘bare space’ which was ‘interrupted by the occasional desk and powerpoint’.
The AAT started with a single member, namely Sir Gerard. He was supported by a Registrar and two other staff. Today, the AAT has over 350 members and in excess of 800 staff. In 1976, the AAT had only one registry, located in Canberra, which remained the Tribunal’s principal registry until 1989. Between 1977 and 1980, the Tribunal established joint registries with the Federal Court of Australia in all capital cities except Darwin. Today the AAT has seven separate registries in all capital cities, other than Hobart where the registry remains in the same premises as the Federal Court, and Darwin where a registry has not yet been established but we do have a member and some staff working there.
In the 1970s, the AAT did not have any female members. The first female member, Mary McClelland, joined the AAT in 1980. As at 30 June 2024, the AAT had 168 female members, representing 51 per cent of all members. In the 1970s, the Tribunal tended to sit in panels of three members, presided over by the President or a judicial Deputy President. Back then, the AAT did not have any non-judicial Deputy Presidents.
The first Senior Member, Keith Edmonds, was appointed in 1977. The first non-judicial Deputy Presidents, Alan Hall and Robert Todd, were appointed in 1982. The amendments to the AAT Act in that year also included a requirement that the President be Judge of the Federal Court. Today, the AAT has 10 judicial Deputy Presidents, 16 non-judicial Deputy Presidents, 56 Senior Members, and 264 other Members. Judicial Deputy Presidents sit as members of the AAT infrequently, and multi-member panels are much less common.
In the 1976/77 financial year, the AAT had jurisdiction under 27 legislative instruments. Today, it has jurisdiction under more than 400 legislative instruments. In its first year of operation, 49 applications were lodged with the AAT. In the financial year 2023/2024, over 50,000 applications were lodged with the Tribunal. According to AustLII, in calendar year 1977, the AAT published 36 decisions. In calendar year 2023, it published 4860 decisions. However, we know that the AAT finalises over 40,000 cases per year.
The brief comparison that I have provided between the early years of the AAT and its present position shows the AAT has grown spectacularly in the last 48 years. One of the key milestones in that spectacular growth was the 2015 amalgamation of the AAT with the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal. The amalgamation resulted in dramatic changes to the caseload of the combined Tribunal in terms of the nature, diversity and bulk of its jurisdiction, as well as the composition and breadth of experience of its membership.
From its inception, the AAT has been accepted as an essential institution in our democracy. Its role in providing redress against wrong or unjust government decisions through merits review, has become an entrenched and indispensable feature of our system of government. Today, it is fitting that we acknowledge and celebrate the fact that the AAT has had a positive impact on the lives of tens of thousands of people, and has made an invaluable contribution to the community.
In his 1996 speech, Sir Gerard recalled that he remained in constant telephone contact with his staff in case the AAT received applications for urgent orders such as a stay. He would tell his wife, ‘It would be wrong … if an elephant were destroyed on a wharf because of an administrative error by the quarantine service!’ He noted that, as far as he was aware, ‘no elephant was ever at risk.’
Little was he to know that in 2005, in the case of Re International Fund for Animal Welfare (Australia) Pty Ltd v Minister for Environment and Heritage [2005] AATA 1210; [2006] AATA 94, the AAT would be called upon to decide whether not one but eight elephants should be imported from Thailand. The Tribunal granted an interim order preventing the importation of the elephants, and the parties agreed to keep the elephants in quarantine in Thailand until the matter was heard by the Tribunal.
The Tribunal, constituted by President Garry Downes, who as I said is with us today, Senior Member Geri Ettinger, and Member Ion Alexander, was required to review a decision of the Minister for Environment and Heritage to grant permits to the Taronga and Melbourne zoos to import the elephants. The Tribunal published two decisions. It allowed the elephants to be imported but imposed conditions to protect their welfare.
This case received enormous publicity in 2005 and 2006. The Tribunal’s two decisions exemplify excellence in merits review decision-making. The Tribunal closely analysed conflicting expert evidence and detailed submissions from three animal rights groups, the Minister and the two zoos. It found a common-sense middle ground between the parties’ competing contentions, and explained its reasons for doing so clearly and succinctly.
The three animal welfare groups were disappointed that they were not able to prevent the elephants from being imported, but publicly acknowledged that the welfare of the elephants would be enhanced as a result of the Tribunal’s decisions.
Cases liked this demonstrated the Tribunal’s independence, impartiality and skills in arriving at the correct or preferable decision in each case. They also contributed to the Tribunal’s strong reputation in the community. They were decided by members at all levels who were diligent, conscientious and fair-minded.
On this final sitting of the AAT, I would like to thank all current and past members of the Tribunal for their service. Those members number in the thousands. Many of them are or have been prominent members of the legal and other professions, and have made significant contributions to the community, apart from their roles as members of the Tribunal.
Whilst it is impossible for me to identify by name the many members who have left their mark on the Tribunal, I would like to place on record my gratitude for the contribution of my predecessors.
It is not necessary for me to say much about the first President, Sir Gerard Brennan, who held office between July 1976 and November 1979. As has been said by Mr Brennan SC today, Sir Gerard established the foundational jurisprudence of the Tribunal, which in endures to this day. As is well known, he served on the Federal Court and later the High Court. He was the Chief Justice between 1995 and 1998.
Justice Daryl Davies served as President between December 1979 and August 1987. He was the AAT’s first judicial Deputy President, serving in that role between 1976 and 1979. He worked closely with Sir Gerard Brennan during that period, before succeeding him as President.
Justice Trevor Hartigan served as President between August 1987 and June 1990. Tragically, he died at the age of 50 while still in office.
Justice Deidre O’Connor served as President between June 1990 and March 1994, and again between March 1999 and March 2002. She was a trailblazer. She was not only the first female President of the AAT, but also the first female Judge of the Federal Court. She is the only President who served two non-consecutive terms.
Justice Jane Matthews served as President from July 1994 until March 1999, in between the two terms of Justice O’Connor. She was the first female Judge of the New South Wales District Court, and later of the New South Wales Supreme Court.
Justice Garry Downes served as Acting President between April 2002 and May 2005, and as President between May 2005 and May 2012. He was Acting President for three years while the government contemplated replacing the AAT with a new body. He is also the longest-serving President of the Tribunal when his acting and substantive terms are combined.
Justice Duncan Kerr served as President between May 2012 and May 2017. He oversaw the amalgamation of the AAT with the Refugee Review Tribunal, the Migration Review Tribunal and the Social Security Appeals Tribunal. Many of the instruments that he signed as President in 2015 remain in force today, and will do so for another couple of days.
Justice David Thomas served as President between June 2017 and January 2022. He successfully led the Tribunal during the challenges of the COVID‑19 pandemic.
Justice Fiona Meagher served as President between April 2022 and November 2022. She is the only President who has served as a non-judicial member of the Tribunal prior to her appointment as President.
Prior to my appointment in June 2023, Justices Susan Kenny and Berna Collier led the Tribunal as Acting Presidents. I was the beneficiary of their able stewardship.
During my term as President, I have been well supported by members and staff across the Tribunal, particularly the Division Heads and the Registrar. I am very grateful for that support.
For the members and staff of the AAT who are not continuing with the ART, I wish them the very best for the future. For the members and staff of the AAT who are transitioning to the AAT, I look forward to working with you and the new members and staff who are joining the Tribunal, as we embark upon a new chapter in merits review in Australia.
