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25 Jun 2020

Appearing in the Administrative Appeals Tribunal during COVID-19

By Caroline Bush, Deborah Mak

The COVID-19 pandemic has led to the introduction of Special Measures Practice Directions in the Administrative Appeals Tribunal, shifting the hearing process to a virtual setting and introducing temporary changes to practice and procedure.

The Administrative Appeals Tribunal (AAT) has introduced COVID‑19 Special Measures Practice Directions in each of its Divisions.  The Practice Directions, made on 29 April 2020, apply to all applications before the AAT (including those lodged before the introduction of the Practice Directions).  The purpose of the measures introduced in the Practice Directions is to ensure that the AAT can continue to review decisions during the COVID-19 pandemic. 

In short, the Practice Directions:

  • provide that in-person hearings will only be conducted in exceptional circumstances;
  • introduce a series of additional procedural processes to facilitate arrangements for hearings conducted by telephone or video‑link; and
  • shift document production in the Tribunal online, including the production of T‑documents and the issue, receipt and production of documents in accordance with summonses.

Although the other existing Practice Directions relating to Tribunal procedures in each Division continue to apply, where the terms of those existing Directions are inconsistent with the COVID‑19 Practice Directions, the terms of the COVID‑19 Practice Directions will prevail.

Key takeaways from the Practice Directions

  1. Know your preferred remote platform:  Before the hearing, the AAT will confirm whether the hearing is to be conducted by phone or video‑link, including what platform the hearing will take place on, including any arrangements for witnesses to give evidence remotely.  Depending on the Division, this may occur at a directions hearing.  If you have a preferred platform, know what that platform is in advance of this directions hearing, or at the time that hearing certificates are provided.  It is also useful to have a clear understanding from your organisation's IT Department as to what is possible for you, and in particular whether your video‑conferencing facilities can support Skype for Business and/or Microsoft Teams (which are the main methods being used by the Tribunal). 
  2. Documents to be tendered into evidence must be provided in advance:  Handing up documents on the day of the hearing with ease is a casualty of the COVID-19 world.  The Practice Directions require, subject to any other direction made by the presiding Member, that parties must lodge documents which are not included in the T‑documents that they intend to tender into evidence in the hearing between 2 and 7 days in advance of the hearing (depending on the Division).  Those documents should be indexed, numbered according to the party proposing to tender them into evidence, paginated, and sent to the Tribunal electronically.  We suggest that you speak to a lawyer or barrister with experience in AAT proceedings well before this, as it is increasingly necessary to plan for and anticipate the evidence given in cross-examination to ensure that key documents are before the witness prior to the hearing commencing.
  3. 2 working days in advance – list of legislation and case law:  for all Divisions except the Migration and Refugee Division, the list of legislation and case law relied upon by each party should be provided to the Tribunal and each other party 2 working days before the first day of the final hearing.

  4. Other things to keep in mind for virtual hearings

  5. Video‑link logistics:  Different registries are using different platforms, although the usual suspects for hearings by video‑link are Microsoft Teams and Skype for Business.  Both platforms can easily connect hearing participants who are working remotely, or who otherwise may not have access to in‑office video‑conferencing.
  6. Test in advance:  Especially if trying a new platform or technology set-up for the first time, you should test in advance.  Testing should extend not only to checking that the connection with the Tribunal works, but ensuring that it works using the same network setting you intend to use at the hearing.  This means the device you are using (laptop, mobile device or video‑conferencing room), the network you are using (local workplace network connection, workplace Wi-Fi, or home internet with VPN), and the way that you are dialling into the call (using an application installed on your device, or by accessing the platform through a web browser).
  7. Think about how you will communicate during the hearing:  The advantages of being physically close to your colleagues and instructors during a hearing may be lost if every participant is dialling in remotely.  Consider strategic alternatives, such as setting up another secure form of web‑based communication for instructors, lawyers and barristers to discuss issues that may arise in the course of a hearing, or having multiple attendees dial in from the one location (which is contemplated, and permitted, under the Practice Directions).
  8. Requests for adjournments or deferrals of virtual hearings: For matters in the Freedom of Information, General and Veterans' Appeal Divisions, the Practice Direction prescribes how requests for deferrals of hearings should be requested.  It is important to keep in mind that the purpose of the measures introduced in the Practice Direction is to ensure that matters before the Tribunal can continue to progress during the pandemic.  Accordingly, requests for deferral made solely on the basis that an in person hearing would be preferred are unlikely to succeed.  Requests for deferral should be made in writing, following consultation with the other parties.

Adapting to the new normal

With preparation, hearings conducted remotely in the AAT – especially by video‑link – can be as effective as hearings conducted in person. Parties who are prepared to adapt flexibly to the changing logistics of appearance work in courts and tribunals will reap the benefits for the remainder of the pandemic, and will be prepared to continue to adapt to further changes in practice and procedure should aspects of these virtual litigation procedures remain.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.