The Administrative Appeals Tribunal (AAT) is a system of last resort. Those who disagree with decisions made by ministers and public servants on anything — such as migration status, National Disability Insurance Scheme (NDIS) funding, freedom of information disclosures and child support — can have their appeal heard by a tribunal member.
It’s a crucial pillar to allow a second opinion on life-changing rulings, with more than 60,000 Australians requesting reviews from the tribunal last year.
But the AAT is plagued with problems. It’s hardly independent, following years of stacking by the Liberal Party. There’s a huge backlog of cases, with many waiting months to years for decisions on important matters. Unfair power dynamics see applicants front high-profile agency lawyers, leading to a huge number dropping their cases and walking away without a hearing.
As revealed in Senate estimates yesterday, 17 current tribunal members have had bullying or harassment complaints made against them since 2016. One member has five complaints. The allegations have not been proven and no one has been named.
It raises hairy questions on the suitability of the AAT and its presiding members. If the allegations are true, and members contribute to a toxic workplace by failing to treat their colleagues ethically, how can they be relied upon to make rulings on such important decisions?
Importantly, the AAT has been under pressure for some time now. It receives tens of thousands of cases a year and has consistently failed to meet targets for finalising AAT applications and Immigration Assessment Authority referrals.
But the number of applications lodged with the AAT has been on the decline since 2018. Last year, there was a 31% decrease compared with the year prior (though this might have been impacted by COVID-19). The process is arduous, taking a median of 26 weeks to finalise a case.
At 86%, the vast majority of cases on hand at the end of 2020-21 related to migration and refugee decisions, followed by social services and child support. While cases relating to the NDIS only made up 2% of cases, there’s been a steady rise in the number of people contesting decisions, with a 400% increase between July 2021 to January 2022.
The AAT takes a number of steps to avoid having a case heard by the tribunal member. Parties enter conciliation meetings to see if they can come to an agreement. In child support cases, 27% were resolved without the need for a hearing.
But this isn’t the success story it sounds like. Of the 44,565 applications finalised last year, just 7% had legal representation. In the case of NDIS participants, a tiny fraction are legally represented and forced to meet with high-profile lawyers that the National Disability Insurance Agency (NDIA) spends millions on every year.
This means that around a third of all applicants withdraw their cases, walking away without challenging the original decision. For those who continue with the process, 29% have the original ruling varied or set aside, while in 39% of cases the decision is affirmed.
The AAT is stacked with Liberal Party affiliates too. A 2019 Crikey investigation uncovered how the Liberal Party stacked the AAT, awarding mates with prized, high-salaried roles — regardless of whether they had legal qualifications or not. Prior to losing the election, it rushed through several other Liberal mates. Up to 40% of AAT appointments had political ties under the Morrison government.
The bullying allegations are just the tip of the iceberg. The high backlog of NDIS cases in the AAT has led NDIS Minister Bill Shorten to implement a new oversight committee to help review disputes faster.
The government has considered abolishing the AAT, and Attorney-General Mark Dreyfus has committed to a transparent and merits-based appointment system following a damning Senate inquiry report. He has also sought a meeting with the AAT over the bullying and harassment complaints.
In the meantime, tens of thousands of Australians face a stacked, unfair and potentially unethical review of important decisions that could see them leave the country, be refused disability therapies or be denied access to crucial funding.
