Administrative Review Reform Issues Paper

From our perspective as the peak for community Legal Centres specialising in social security and family assistance law, fundamental guiding principles for the new body should include:
- Recognition of the profound impacts that tribunal decisions can have on individuals, as Applicant or Respondent, given the powers of the tribunal and the nature of its jurisdiction
- Ensuring accessibility, particularly for people among vulnerable cohorts and especially for cohorts with disproportionately low rates of appeal to the AAT under current arrangements, with a focus on addressing barriers to access for Aboriginal and Torres Strait Islander people
- Ensuring transparency of decision-making, and of practices and procedures
- Monitoring to ensure rigor and consistency in decision-making
- Monitoring to ensure absence of actual or perceived bias, and absence of political influence on interpretation of legislation or the exercise of discretion, and processes to ensure that any bias is identified and addressed

There is a need for rigorous oversight regarding the above the above, by the re-established Administrative Review Council (see recommendation below), and by the Commonwealth Ombudsman pending its re-establishment.

From EJA's perspective as the peak for community Legal Centres specialising in social security and family assistance law, there should be strengthened objectives to ensure the accessibility of the tribunal for people among vulnerable cohorts .
There should be strengthened objectives in relation to identifying and reporting to government and the re-established Administrative Review Council (see below) and/or the Commonwealth Ombudsman on aspects of administration of Commonwealth legislation, and/or its administration, are such that the beneficial purpose of Commonwealth legislation is undermined.
The new review body should be able to ensure correct implementation of a decision made by the new body, or allow recourse back to the review body if Centrelink (or other department / agency) has failed to implement the decision correctly. EJA members observe that often applicants with incorrectly applied AAT decisions need to restart the internal merits review process (i.e., seek review of the implementation decision) when Centrelink has incorrectly implemented an AAT decision.

Yes, the Administrative Review Council (ARC) needs to be re-established in the new legislation, as proposed by Prof Terry carney in his submission to the Senate Legal and Constitutional Affairs References Committee inquiry into the performance and integrity of Australia’s administrative review system. The ARC played an important role as a check on the unchallenged exercise of executive power. Its continued existence may have resulted in earlier insights into the injustices intrinsic to the Robodebt program (see below), and earlier cessation of the program.

The legislation should require that Tier 1 decisions be in writing, and published, as discussed in EJA’s submission to the Robodebt Royal Commission.
The legislation should require monitoring of both tier 1 and tier 2 decisions, potentially be the re-established Administrative Review Council, to identify systemic issues affecting the application of legislation by departments / agencies. Monitoring should aim to identify any inconsistency in interpretation of legislation; application of legislative discretions; and cases highlighting issues affecting access to appeal rights. Monitoring should also aim to identify whether the department / agency is following AAT tier 1 set-aside decisions and concessions in its application of social security law. This would assist in avoiding situations such as occurred with Robodebt Tier 1 appeals where debts were being set aside at Tier 1, with no departmental appeal, yet Services Australia continued to raise and recover debts raised under the automated OCI (Robodebt) system.
We propose that all Tier 1 and 2 decisions should be given pseudonyms. This would have no impact on the decision. EJA members observe that publication of the individual’s name can have significant repercussions, as personal circumstances, especially given publication of decisions online – including mental health issues, family and domestic violence, illicit drug use – can be relevant to many appeals regarding Service Australia matters. The onus should not be on an unrepresented individual to know to request a pseudonym otherwise their personal information is published.

EJA would strongly support the re-establishment of the SSAT, or such like, as an intermediate external review body between internal review by the SA and the AAT, as per the Veterans Review Board. We understand, however, that this option is not on the table.
In the absence of an intermediate review body between internal review and the AAT, it is crucial that the new body retains a two tier structure, with first tier jurisdiction continuing to cover social security and family assistance matters.
We propose that for social security and family assistance matters, Tier 1 tribunals should be multi-member, with up to three members - one member holding legal qualifications, and others holding qualifications in medicine, social work, occupational therapy, as relevant. This would go some way to re-establishing aspects of the SSAT that served to ensure equitable access to external review. We would anticipate that the cost of providing three-member tribunals at the first tier would be balanced by fewer appeals to the GD.
The first tier must be inquisitorial, non-adversarial and as informal and accessible as possible. It must also be responsive to the requirements of applicants both as to the timing and mode of hearings.
Additional supports should be available for unrepresented applicants, with the role of registrars expanded:
o Pre-hearing processes should be enhanced, and should include support services for applicants, including a dedicated contact officer.
o Specialist, appropriately qualified contact officers should be available for particular cohorts, including for Aboriginal and Torres Strait Islander people, people with psycho-social disability, people with cognitive impairment, people who are homeless, victim-survivors of family and domestic violence, refugees and recently arrived migrants.
o Additional supports should be available for unrepresented people in remote and very remote communities, with active referrals to local and specialist legal and community organisations.

Video hearings such as Webex should be made more available as an option where an in-person hearing is not possible. Phone hearings can be difficult for vulnerable applicants to effectively participate in, including where they have legal representation.

Issues can arise where AAT members hearing social security or family assistance cases lack the requisite knowledge of relevant social security / family assistance law; and / or where AAT members lack an understanding of socio-cultural factors that can be fundamental to the application of legislative discretion in individual cases; and / or where members hearing Disability Support Pension or compensation preclusion matters do not have sufficient knowledge of the impacts of the medical or psychiatric conditions relevant to the decision under review.
Assignment of members should have regard to members’ background and non-legal specialist expertise (including for legally qualified members), especially for matters involving the exercise of discretion. Having AAT members without the requisite skills, experience and expertise hearing complex social security and family law matters can lead to serious injustice, and actual or perceived bias.
EJA member solicitors who appear regularly before the AAT advise that they are able to identify individual members who are less likely to conduct hearings in a manner that is conducive to procedural fairness given the appellant’s background and any vulnerabilities; and / or consistently fail to exercise the full breadth of available discretion in their decision-making; and / or are likely to make errors in their application of law and policy.
A senior solicitor from one of our member centres observes:
“We have an inexplicably low success rate with certain members of the Tribunal and can predict, almost irrespective of the merits of the case, that we will need to appeal to the General Division. While we always prepare our matters with great care, with some members we know the first hearing is a merely the step to getting to the General Division so the matter can get a proper hearing or be settled.”
Such inevitability of the need for a General Division appeal is frustrating and resource-intensive for legal services. For unrepresented applicants unable or loathe to appeal to the General Division, this represents a denial of justice.

Another practice’s senior solicitor outlines the problems addressing perceived bias:
“Once you know which member has been appointed to a matter you will sometimes have an instant, and rightful, sense that an unsuccessful outcome is a foregone conclusion. This is particularly concerning when it is extremely difficult to successfully advocate for recusal or reconstitution. This issue is further compounded by the lack of opportunity to ventilate bias or apprehended bias arguments in the Federal Court, given our clients' general hesitancy and fear of a costs order being made against them if they choose to seek judicial review. Even in the face of advice that there are arguable grounds for success, without being able to guarantee that an unsuccessful judicial review application will not result in a costs order, clients just don't want to take the chance.”

EJA also supports Prof Terry Carney’s proposal in his submission to the Senate Legal and Constitutional Affairs References Committee’s inquiry into the performance and integrity of Australia’s administrative review system, that no appointment to the AAT should be able to be made unless the proposed member’s tribunal relevant skill set is confirmed by a positive recommendation from an independent selection committee overseen by the AAT President.

The legislation should ideally specify categories of matter that by definition indicate the need for prioritisation. For social security and family assistance matters, the wording of the legislation should ensure that the following categories be subject to different procedures:
- Decisions resulting in the refusal or cancellation of income support payments, including NARWP decisions, DSP rejections
- Large debts (of say, $5,000 or over), particularly where the person is in a vulnerable cohort (see above), especially where the person is mentally ill and is unrepresented

Legal qualifications should not be required for Tier 1 appointments. As proposed above, Tier 1 tribunals should be multi-member, up to three members, with one member holding legal qualifications, and others holding qualifications in medicine, social work, occupational therapy, for example, as relevant.

Tier 2 members should be legally qualified.

AAT applicants in social security and family assistance matters inevitably come from diverse, often intersecting, backgrounds - including:
o people with physical or cognitive disability
o people with psychiatric disability
o Aboriginal and Torres Strait Islander people
o recently arrived migrants
o refugees and asylum seekers, including survivors of torture and trauma
o people recently released from custodial settings, including young people of diverse backgrounds
o people experiencing family and domestic violence - including physical violence, coercion and financial control.

As argued in EJA’s and others’ submission to the Senate Legal and Constitutional Affairs References Committee’s inquiry into the performance and integrity of Australia’s administrative review system, members need to have requisite knowledge of relevant social security / family assistance law, and an understanding of socio-cultural factors experienced by individual applicants. The EJA submission included the following case study:

o One of our member centres has recently had two cases at the AAT Tier 1 where the member made an error in the application of family assistance law. One of the decisions was in favour of the client; in the other decision, the member considered ‘severe financial hardship’, however, this was not a relevant consideration due to the timing of when the debt was raised and the existence of administrative error. The error led to recovery of only part of the debt being waived and not the whole debt. This mistake was disappointing as our member centre had represented the client at the Tier 1 hearing and provided written submissions. The client decided not to appeal further to the AAT General Division.

For people among vulnerable cohorts, equitable access to procedural fairness and justice in AAT appeals requires that nuanced regard is had to a wide range of issues, all within the context of relevant legislative discretions. This is particularly crucial in certain matters – such as appeals regarding Disability Support Pension eligibility for people with episodic mental illness; whether there are “special circumstances” to waive recovery of a debt or a compensation preclusion period; whether a recently arrived migrant is eligible for Special Benefit; or whether a domestic violence victim-survivor should be assessed as single rather than as a member of a couple.

One of our members represented a client at the SSCSD in an appeal against a decision to treat him as a member of a couple (same sex relationship). The applicant had been subject to extensive physical violence, financial abuse and emotional abuse by his partner over the course of the relationship. The solicitor who represented the applicant says that the AAT member’s behaviour during the hearing was characterised by her cross-examining the applicant (he was on the phone in a regional town and the solicitor was on the phone at her office in the city). The member also cross-examined the client about the Centrelink “review of living arrangements” form the alleged partner had completed, saying ‘you said X on your form he said Y, why did he say Y?’ The solicitor interrupted to point out that it was unfair to ask the applicant about why someone else had written something on a form. The solicitor advises that the member told her not to speak– ‘that can wait for the General Division’. When the solicitor made submissions about the FDV the member said that ‘there was no evidence of family violence’. The solicitor referred to statements by the applicant that the police had been called on at least six occasions in the past year; the member said ‘there’s no evidence of that’. The solicitor said she would like to ask the applicant questions to elicit further information about these incidents but the member would not allow it. The member also asked the applicant on three occasions ‘you have said that he’s violent so why do you keep letting him come back to the house?’ The applicant was on DSP for mental health conditions and at one point when a witness referred to his mental health condition the member said ‘there is no evidence that he has a mental health condition’.

EJA members’ casework experience demonstrates that if AAT members lack the knowledge, expertise and experience to elicit all the relevant information from vulnerable cohorts at a hearing, and appropriately exercise discretion in the application of relevant law and policy, decisions can be made which cause further harm.
EJA recently facilitated sessions for EJA member centre clients to discuss their experience of appealing to the AAT, as part of this consultation. These sessions particularly highlighted the need for litigation guardians for people with cognitive impairment and/or psycho-social disability. Participants were prompted to speak generally about their AAT experience, the issues they faced, and what they thought could be improved. The feedback they gave pointed to the following issues:
• Some AAT members are ill equipped to manage vulnerable clients. Members were variously described as impatient, rude or dismissive when questioning applicants. In one case, the member did not hear out both members of a couple when they appeared together, despite each having a separate appeal against a debt, and each wanting to speak to get across all the issues. Others felt frustrated that the member did not take into account relevant documents and facts; or did not have an adequate understanding of disability/medical issues.
• Timeliness of the process was a repeated concern – participants noting the stress associated with long waits for decisions.
• The need to deal with and keep track of high numbers of documents was also a source of stress for participants.
• Two participants explained that the stress of the AAT process and their preceding interactions with Centrelink led them to suicidal ideation. Participants also noted that Centrelink’s dealings with them, and the AAT hearing, made them feel like ‘criminals’ even though they had done nothing wrong.
• Feedback was given that the AAT needs to be cognisant that applicants are very stressed / traumatised by their experience of Centrelink and this needs to be taken into account.
• One participant had a positive experience with the General Division of the AAT, others had generally negative experiences with the General Division. Participants generally had better experiences with the SSCD compared to the General Division; they saw the former as a more a more compassionate / less intimidating process.
• Some participants commented on the room set-up of the AAT. One participant had an issue where he could not hear the member speaking – he is older and believes that this had something to do with the use of microphones/layout of room.
• Participants emphasised the importance of AAT members being caring / compassionate to their issues/concerns. They also noted the need for a more streamlined administrative process that is easier to navigate, with support / access to help along the way.
• Participants agreed that they would not have had been able to understand the issues or navigate the AAT without legal advice – and highlighted the importance of having access to legal support / representation.
• One participant had a good experience with the AAT. She is Aboriginal and noted that many First Nations people do not go to the AAT – either because they do not know that it is an option, or they do not think appealing would be useful. She suggested that Government conduct public outreach / awareness campaigns to explain the role of the AAT to First Nations communities.
• One participant had a brain injury and did not have cognitive capacity to understand what Centrelink was telling her and what she needed to do with regard to her appeal to the AAT. She had access to legal advice from an EJA member but not legal representation. The matter related to compensation she received for her acquired brain injury, so the AAT would have known that she had a brain injury. She appeared alone at her hearing and was not offered any support despite clearly struggling to understand the proceedings, or articulate the issues relevant to her appeal. She was not given a written decision, so her legal advisor could not subsequently explain the reasons for the decision to her. This participant’s experience highlights both the need for powers for the AAT to appoint a litigation guardian, and the need to boost funding to enhance EJA members’ capacity to provide legal representation.

Yes.

For example, where consideration of a social security or family assistance matter requires understanding of IT and automated decision making. Expert witnesses would have been of great benefit in decision-making regarding Robodebt cases.

Understanding of IT is also increasingly relevant to understanding decision-making in a range of social security and family assistance decisions, including debts (especially for SS-FA debts, where data matching with the ATO has prompted raising of a debt); and automated decisions to suspend or cancel activity-tested payments, with blurring of the roles of Services Australia, DEWR and employment service providers in decision-making, and lack of clarity regarding the automation of steps in processes leading to the decision to suspend or cancel.

There is also a need in many debt cases to understand the impacts of digitisation of servicing by Services Australia in respect of applicants’ efforts to meet reporting requirements (in respect of earnings, and changes in circumstance), and the access barriers faced by many social security recipients as a result of increasing requirements to engage with MyGov portals to claim and maintain payments, and avoid overpayments – including via the Single Touch Payroll earnings confirmation (where social security recipients need to verify, via a myGov portal, fortnightly earnings data submitted to the ATO by their employer, to generate their income-tested fortnightly payment), and reporting activities under the Points Based Activation System (which involves automated assessment of compliance with Job Plan requirements via allocation of points based on reported job searches and other activities, as reported by the person monthly, via an app, with potential suspension of payment if required PBAS points have not been accrued). These processes are complex and challenging to understand, including for Services Australia delegates and tribunal members, with various automated steps in decision-making (e.g. for the imposition of a penalty for not meeting PBAS the points requirement) potentially affecting the making of a decision under review.

Yes, availability of sessional members would enable timely hearings where there is a shortage of available members, as was the case during the height of COVID restrictions; or to provide specialist expertise in particular matters (as per above comments).

Yes – see responses to other questions

See responses below

For individual applicants there should be no requirements, other than indicating to the new body that they have been affected by an adverse decision, they disagree with it and wish to have the decision reviewed. Individuals should not be required to submit a statement of reasons – this would completely undermine efforts to, e.g., increase Indigenous appeal rates, and to enhance access for people with cognitive impairment or psycho-social disability.

It would not be possible to apply different requirements to different cohorts with fairness and equity, especially as vulnerability by virtue of, say, mental illness or domestic violence, may not be on-the-record.

In the social security jurisdiction, applicants among any cohort - ostensibly vulnerable or otherwise - can be subject to adverse decisions that are by nature not easily understood (such as complex debts, DSP refusals, or refusal to waive a four-year newly arrived residents waiting period). Requiring a statement of reasons from individual applicants would be a barrier to individuals accessing their right to appeal and the benefit of a correct and preferable decision.

Departmental / agency applicants should be required to lodge a detailed statement of reasons. Where the statement is inadequate, the AAT should have power to require an adequate statement.

In our view current time limits are sufficient for social security and family assistance matters, including for making an application to appeal out of time. These provisions need to be retained but with broadened discretion.

There should be no application fees for individual applicants in the social security and family assistance jurisdiction, or in any merits review matter. Applicants should not have to bear cost of a department / agency making an incorrect decision, or a decision that failed to properly apply legislative discretions.

Also, ‘success’ cannot be easily judged in merits review. Decisions can be varied and remitted to original decision maker in favour or not in favour of the Applicant. Remittal or variation does not necessarily mean success for the Applicant.

There is a current anomaly that needs to be addressed: Paid Parental Leave appeals to the General Division have a $1000 filing fee. This is very high when what is at stake is around $14,000.

As proposed above, there is a need to ensure that lodgement methods are as flexible as possible – regarding the form of applications, enabling the making of directions to amend non-compliant applications, and developing registry procedures to assist unrepresented applicants to comply. Applications from individuals should not be rejected on technical grounds.

Individuals should be able to lodge in-person, over the phone, or online - for both Tier 1 and Tier 2 applications. Online applications can work well but not all potential applicants have internet access, or capacity to engage digitally. Given the short appeal time limits, oral applications are particularly important for people unable to lodge online as post is unreliable and often delayed – especially for people outside metropolitan areas.

As outlined above, people affected by social security and family assistance decisions should be able to lodge orally. The process of making an application should not be a barrier to pursuing review.

Apart from the preponderance of vulnerability in the above general social security and family assistance appellant cohorts, processes for determining whether an applicant should be allowed to lodge by phone would be fraught with difficulty, and bound to exclude people who cannot articulate their inability to lodge by other means. We propose that it would be more time-consuming to decide whether to accept a phone application, than merely accept it. In our experience, people appealing to the AAT who have the capacity to lodge online and set out there reasons for appealing are keen and happy to do so.
Matters in Tier 1 should have different procedures, as they do now, such as being able to apply over the telephone, informal hearings, no Departmental participation at Tier 1, the potential for pre-hearing conferences, the ability for the Tribunal member to actively seek further evidence when a party is not represented

Case conferencing should be available at Tier 1 upon request by the Applicant, Respondent or Registrar / Member, with free duty lawyer services made available for unrepresented individual Applicants. This would substantially enhance the Tier 1 experience for unrepresented Applicants; and potentially result in settlement of appeals that would otherwise have proceeded to hearing, and withdrawal of appeals with no intrinsic merit.

Yes – as was proposed at the Sydney consultation meeting of 20 April, 9.00AM session, the role of conference registrars should be expanded.

Social security matters where the person has no income should be subject to expedited review processes e.g. appeals against compensation preclusion periods, and rejection of Special Benefit.

Appeals lodged by people with serious medical or psychiatric conditions should also be expedited where expeditious resolution is sought.

The Department / agency should be required to provide all documents relevant to the making of the reviewable decision, in chronological order with a contents page.

Without such requirements, the supplied documents can at times be hundreds of pages in a nonsensical order. Such documentation can make it impossible to identify relevant documents, especially for unrepresented individuals. For example, social security rate of payment and debt calculations can be very difficult, sometimes impossible, for an individual - or Member - to understand. This can effectively hide valuable information. If it is clear that the documents are not capable of being readily understood at face value, the department / agency should be required to include an explainer.

The AAT currently has powers to compel production of documents from Services Australia if the Applicant identifies there are missing relevant documents. This process has worked well and should be retained.

Any documents considered by the Tribunal should be shared with applicant.

As proposed above, Tier 1 and 2 decisions should be published and automatically given a pseudonym.

Conferences which allow dispute resolution are valuable for social security matters. In our view, conferences should be available on request at Tier 1 (if approved, the Respondent should be requested to attend), and be a mandatory part of processes at Tier 2. Disability Support Pension claim rejection matters would potentially benefit from a mediation process, to allow proper discussion and consideration of medical evidence and discussion of eligibility, but only if this does not prolong the process (as we understand can be the case in NDIS matters).

Departmental / agency representation at Tier 2, often by private law firms, does not lend to an informal process, and in practice makes the Tier 2 process adversarial and daunting, especially for unrepresented individuals.

In our view, it is not necessary for the Secretary to be represented at a Tier 2 hearing given the nature of merits review, and the process being the Member finding the correct and preferable decision. Instead, the standard process could be for the Secretary to be represented at conferences and represented in the form of written submissions/ hearing papers at a Tier 2 hearing. This would address the current adversarial approach of Tier 2, and increase accessibility, informality, and reduce costs incurred by departments / agencies in sending private solicitors to Tier 2 hearings.

Where Tier 2 appeals are brought by the department / agency and the Respondent is unrepresented, the embedding of free duty lawyer services by specialist centres within the new review body would increase efficiency and fairness.

The legislation should require that departments / agencies adhere to model litigant principles, as set out in Legal Services Directions 2017, with the legislation providing the AAT with a general power to make directions where the principles are not complied with.

Written reasons should be required for all social security and family assistance matters.

There should be a clear timeframe, and a clear process to pursue if a decision is not received within timeframe.

It should be mandatory for Tier 1 and Tier 2 decisions and reasons to be written; there should not be an option for a Member to provide oral reasons only. Giving Members the option of providing solely oral decisions can place the onus on (often unrepresented) individuals to know to request written reasons. It is very difficult, almost impossible, to provide comprehensive legal advice to individuals on an Tier 1 decision and the merits of further review, where they have received oral reasons and had not known to request written reasons, or had felt unable to do so.

Appeal timeframes are currently adequate (13 weeks from internal review to Tier 1, and 28 days from Tier 1 to Tier 2). However, we agree with the recommendation on page 80 of the Issues papers, that the Tier 2 appeal should be lodged within 28 days of a party receiving the written statement of reasons, rather than 28 days after receiving the decision – this is supported by the AAT and presumably by Services Australia (given that the DHS previously expressed support). The change would allow more time for the potential Applicant to seek legal advice.

A process in which the review body could refer questions of law to the Federal Court for decision would take the onus off of individuals to appeal Tier 2 decision on the grounds of an error of law.

In many instances, individuals do not want to risk costs and are understandably intimidated by the prospect of a Federal Court appeal. This means that few questions / errors of law are appealed to the Federal Court by individuals, as only the department / agency has the resources to do so. This can result in narrow and stagnant administration of social security and family assistance law, with missed opportunities for reform.

The President should not be empowered to refer a matter directly to the second tier of their own motion. Applicants should not be denied the opportunity afforded by a less formal Tier 1 hearing.

No. Such a referral creates a risk that unrepresented individuals are denied a valuable stage of merits review without understanding the implications of doing so.

A requirement for the Secretary to seek leave to appear with representation in Tier 2, would increase the informality and accessibility of Tier 2, where most individuals are unrepresented. In our view, an option for the Secretary to be represented (and removing the current practice where the Secretary is always represented) would increase fairness and informality, and address how (inappropriately) adversarial Tier 2 currently is.

Applicants should be entitled to have a representative as of right in social security and family assistance matters.

With adequate funding, EJA members would potentially be able to provide assistance to applicants as either clients of member services, and/or as 'duty advocates' embedded within the structure of the new review body.
Providing for duty advocates would go a long way to enhancing efficiency and fairness in the administrative review, and allow independent advice on the merits of pursuing further review. This would increase efficiency of the hearing process, where the individual has been guided on the points to present, the scope of what can be reviewed etc, and in some cases would lead to early withdrawals where individuals have heeded advice on low merit or being in the wrong forum to address what they are seeking.
There is an urgent need for specialist social security legal services to be adequately resourced to meet unmet demand for legal assistance. There are currently no specific funds for social security legal help provided under the National Legal Assistance Partnership, despite the number of people affected by adverse social security and family assistance decisions daily – many of whom in vulnerable cohorts, unable to self-represent in appeals. Unmet need is most pronounced in regional and remote Australia. Some regional and remote areas of Australia have no funded specialist on-the-ground services providing social security legal advice and assistance. This leaves people without access to accessible information, advice and advocacy on social security and family assistance issues. The Northern Territory (NT) is the prime example: none of the non-profit legal services in the NT – neither Aboriginal Legal Services, Community Legal Centres nor the Legal Aid Commission - receives specific funding to provide social security legal help. There has been no needs assessment relating to social security legal need in the Northern Territory. The Kimberley is another example. Twice the size of Victoria, the region is thousands of kilometres from the closest community legal centres providing specialist social security legal advice and assistance, these being in Darwin and Perth. Whilst the Kimberley Community Legal Service (KCLS) is a generalist Community Legal Service, neither KCLS nor any of the other non-profit legal services in the Kimberley receive dedicated funding to provide social security legal help.
Access to appeal rights is particularly problematic for Aboriginal people – who are subject to disproportionately high rates of mutual obligation penalties and social security debts, but have disproportionately low appeal rates.

EJA proposes the insertion in the AAT Act of a positive obligation to promote accessibility, similar to the obligation provided for in a number of state and territory Acts (see pages 85-7 of the Issues Paper).

See responses to previous questions.

There must be a mechanism which allows for non-release/redaction of documents to certain parties to an appeal. Appeals relating to whether a person is a ‘member of a couple’ for social security or family assistance purposes is a case in point. Where payments such as Parenting Payment or Family Tax Benefit are on appeal, this can often involve both members of the alleged couple being party to the proceedings. Where family violence is present, it is not appropriate to release hearing papers / confidential information and documents the other member of the couple. There must be a mechanism for redaction which is not difficult to request, otherwise victims/survivors of family violence are placed at risk.

Yes, accessibility should not be a barrier to seeking merits review of a Government decision.

Please see responses to other questions.

Whether support is offered, and the nature of that support, depends on the impact of the person’s disability on their capacity to self-represent and/or participate in proceedings. A party with disability may have capacity to participate if supports are provided by the new body (e.g., Auslan interpreter for a person with hearing impairment, documentation in alternative formats for person with visual impairment), or facilitating referral to a disability advocacy organisation that may be able to assist with seeking support (such as People with Disability Australia).

Where a third-party individual seeks to advocate in place of a person with disability, there should be scrutiny before allowing this to take place. Voice should be given to the person affected by the decision on review, to understand whether and why they want the third party to speak for them. This empowers and promotes their participation, and ensures they have provided permission.

Yes – this was a primary recommendation in EJA’s submission to the Senate Legal and Constitutional Affairs References Committee inquiry into the ‘the performance and integrity of Australia’s administrative review system.

Given the complexity of the social security system, and pressures on the limited resources of EJA members’ services, and of Legal Aid, most people appearing before the AAT in social security and family assistance appeals are unlikely to have the benefit of legal representation. The repercussions for such self-represented applicants can be particularly unfair where their disability is of fundamental relevance to the appeal – such as refusal of Disability Support Pension, imposition of a penalty for non-compliance with mutual obligations, or recovery of a substantial debt.

The AAT should be empowered to appoint a litigation guardian for applicants who lack the capacity to represent themselves due to mental illness, psycho-social disability, intellectual disability or acquired brain injury, even where the applicant’s affairs are managed by a public guardian due to that incapacity. This problem was dramatically illustrated in the case of Chen and Secretary, Department of Social Services ([2019] AATA 560), in an appeal against a $324,648 Disability Support Pension (DSP) debt resulting from a complex arrangement of trusts which had not been disclosed to Centrelink. Senior Member Puplick commenced the decision outlining his concerns about the applicant’s mental health and lack of capacity to understand the proceedings, and noted the apparent absence of power to appoint a guardian to conduct the proceedings. The matter eventually found its way to the Federal Court by way of an appeal by Ms Chen against the decision of the General Division. She lost the appeal, and had costs awarded against her (Chen and Secretary, Department of Social Services (No 2) [2020] FCA 384). Ms Chen had no ability to represent her interests or provide the tribunal with material relevant to her appeal.

(a) Community legal centres lawyers have been marked in the AAT system as welfare representative, rather than legal representatives. This skews the data on appeal rates and appeal outcomes for represented and unrepresented individuals. We suggest that data entry clearly distinguish between legal and welfare representatives.

(b) The new review body should have clear and simple mechanisms which allow community legal centre solicitors to request hearing documents on behalf of a client seeking advice regarding their appeal. This would allow provision of considered and comprehensive legal advice. EJA members advise that requests for papers are often refused unless the centre goes on record to represent the client. This policy fails to take into account our members’ limited capacity to provide full representation, and the provide comprehensive legal advice instead. Without the hearing documents, EJA members can be limited to providing procedural advice; this affects the efficacy of the hearing process.

c) Whether or not duty lawyer service is embedded into the new review body, staff should provide warm referrals for free legal advice to every unrepresented applicant. Many free legal services’ resource constraints will mean, however, that they need to prioritise providing legal assistance to the most vulnerable. As outlined above, adequate funding of EJA member centres specialising in social security and family assistance law will be pivotal to ensuring equitable access to administrative review of social security and family assistance matters.

d) The legislation should require that departments / agencies adhere to model litigant principles, as set out in Legal Services Directions 2017, with the legislation providing the AAT with a general power to make directions where the principles are not complied with.