Mr Grant Hehir
Auditor-General for Australia
Australian National Audit Office
GPO Box 707CANBERRA ACT 2601

By email only: grant.hehir@anao.gov.au

21 May 2021

Dear Mr Hehir

I refer to the Administrative Appeals Tribunal (“the Tribunal”).

Over the last several months, the Legal and Constitutional Affairs Legislation Committee (“the Committee”) has received concerning evidence about the remuneration of part-time members in the Social Services & Child Support and Migration & Refugee divisions of the Tribunal.

Based on the material provided to the Committee, it appears that the amounts paid to a number of part-time members could only be justified if those members had completed at least 7 hours of Tribunal work a day for more than five days per week – sometimes for years on end.

I am not suggesting that those members, or any other member of the Tribunal, have been over-charging or over-claiming. Rather, based on the evidence the Tribunal has given to the Committee, it appears that the Tribunal has adopted confused and inconsistent remuneration policies that give rise to the serious possibility that part-time members in the Social Services & Child Support and Migration & Refugee divisions are being paid for more days and hours than they actually work.

The appropriateness and legal basis of key aspects of those policies are unclear.

At the very least, it is apparent that multiple part-time members are being paid many tens of thousands of dollars more than their full-time equivalents, despite those part-time members also being engaged in other forms of paid employment.

This alone raises serious questions about how those members are being remunerated and whether Australian taxpayers are receiving value for money from part-time members of the Tribunal and the Tribunal more generally.

I ask that you please conduct a tightly scoped performance audit – or, alternatively, an assurance audit – of how part-time members of the Social Services & Child Support division and “sessional part-time members” in the Migration & Refugee division are being remunerated.

Correspondence with the Administrative Appeals Tribunal

As a courtesy, and to address any possible misunderstanding, I wrote to the President of the Tribunal, Justice Thomas, on 16 April 2021 to express my concerns about the issues raised in this letter. I also indicated to the President that, subject to his response, I intended to ask you to investigate the way in which part-time members of the Tribunal are being remunerated (noting that whether such an investigation actually takes place is entirely a matter for you).

A copy of my letter to the President is attached.

Justice Thomas responded to my letter on 23 April 2021 and subsequently provided me with a detailed briefing about the Tribunal’s operations and remuneration policies on 10 May 2021. The briefing took place in Canberra and, in addition to the President, members of my staff and me, it was attended by Deputy President Jan Redfern, the Registrar of the Tribunal, Sian Leathem, and two staff members from the Attorney-General’s office.

While I acknowledge and appreciate the Tribunal’s genuine willingness and effort to engage with me, I do not believe that my concerns have been addressed – either in the President’s letter or in the subsequent briefing.

Specifically, I remain concerned that:

• under the current remuneration policies of the Tribunal, part-time members of the Social Services & Child Support division and “sessional part-time members” in the Migration & Refugee division can be – and are, in fact, being – paid for more days and hours than they actually work;
• having regard to the relevant Remuneration Tribunal Determination, there is no legal basis for paying part-time members for more days and hours than they actually work; and
• in any event, as a result of the policies adopted by the Tribunal, taxpayers are not receiving value for money from part-time members of the Social Services & Child Support division or from “sessional part-time members” in the Migration & Refugee division.

I note that part-time members who have, in fact, been paid more than they are entitled to receive under the applicable Remuneration Tribunal Determination may owe debts to the Commonwealth (irrespective of the reason(s) for the overpayment).

In his letter of 23 April 2021, the President explains (correctly) that the applicable Remuneration Tribunal determination does not prohibit part-time members from being paid more than the base salary of the equivalent full-time office in respect of any financial year. However, it does not follow that paying some part-time members as much as $70,000 more than full-time equivalents is appropriate or represents value for money.

Moreover, I note that the President does not identify a legal basis for part-time members being paid for more hours or days than they actually work – and, specifically, more than one daily fee for one day’s, or less than one day’s, work.¹

I understand from the briefing on 10 May 2021 that the Tribunal does not believe that any part- time members are – in fact – being paid for more hours or days than they actually work. I do not share, and nor do I understand the basis of, the Tribunal’s confidence, particularly because:

• under the remuneration policies in respect of the Social Services & Child Support division and of “sessional part-time members” in the Migration & Refugee division, the Tribunal simply assumes that members have worked a certain number of days or hours in specified circumstances; and
• unlike members who work in other divisions of the Tribunal, part-time members in the Social Services & Child Support division and “sessional part-time members” in the Migration & Refugee division are not required to submit timesheets.

Timing of any potential audit

In his letter of 23 April 2021 (see attached), Justice Thomas acknowledges that the Tribunal’s arrangements for administering part-time member remuneration are out-of-date. His Honour goes on to say that the Tribunal is in the process of updating the way in which part-time members are remunerated and, for that reason, any potential audit by the Auditor-General may be most beneficial after the new arrangements have been in place for a reasonable period of time.

With respect, I do not agree with the President. In my view, if you decide to undertake an audit, I think it would be most beneficial if it took place as soon as practicable. As well as determining whether members are being paid appropriately under the Tribunal’s existing policies, this would enable you to assess the appropriateness, and inform the development of, the Tribunal’s new remuneration policies.

Further detail

In considering whether to conduct an audit, I ask that you have regard to the information set out in my letter to the President of the Tribunal (including the attachments to that letter).

In that letter I set out:

1. four examples of individual part-time members being paid significantly more than they would have received had they been appointed as full-time members of the Tribunal, including:
   
   1. Member Jason Harkess who (among other things) appears to have been paid over $70,000 more than a full-time equivalent in 2019/20 – despite Mr Harkess claiming to hold four other jobs over the same period;
   2. Member Vanessa Plain who (among other things) appears to have been paid for working the equivalent of 117 days over the course of a 123-day period – despite Ms Plain also performing a significant amount of work as a barrister over the same period;
   3. Member Tony Barry who (among other things) appears to have been paid over $57,000 more than a full-time equivalent in 2019/20 – despite Mr Barry claiming to hold at least one other job over the same period; and
   4. Member Louise Bygrave who appears to have been paid more than $67,000 in 2018/19, and more than $70,000 more in 2019/20, than she would have been paid as a full-time member; and
2. a brief analysis of the Tribunal’s remuneration policies in respect of the Social Services & Child Support division and of “sessional part-time members” in the Migration & Refugee division, which appear to be inconsistent with the relevant Remuneration Tribunal Determination (noting that the four members referred to above work in those divisions).

The Administrative Appeals Tribunal is tasked with conducting independent review of administrative decisions by Commonwealth ministers and public servants. The Australian people are entitled to expect that a Tribunal which is tasked with reviewing the appropriateness of decisions made by others is conducting itself in accordance with the highest possible standards and is providing value for money to taxpayers.

I have copied this correspondence to the President of the Tribunal, Justice Thomas, and Mr Iain Anderson, the Acting Secretary of the Attorney-General’s Department.

Thank you for considering this matter.

Yours sincerely

Mark Dreyfus QC
MP Shadow Attorney General
Shadow Minister for Constitutional Reform

Attached:

• Attachment 1: Letter to the President of the Administrative Appeals Tribunal dated 16 April 2021 (including various attachments)
• Attachment 2: Response from the President of the Tribunal dated 23 April 2021.

Footnotes