Emeritus Professor Terry Carney AO FAAL, University of Sydney Law School
Australia’s system of easy access to cheap, quick and professional review of social security decisions has been something to be proud of, and was once seen as the best performing part of a world leading system of administrative review of government decisions.[i]
But pride comes before a fall. And that fall can be both unexpectedly sudden and precipitous. As sportspeople often say, ‘you’re only as good as your last game’. Apparently small changes can bring down the most stellar sporting (or administrative) reputation.
In a recent submission to a Senate inquiry, I sought to outline the harm posed by two things. First, the lack of an adequate protocol for assessing and recommending appointment of Administrative Appeals Tribunal (AAT) members. Second, the failure to continue the oversight and policy work of the Administrative Review Council.
The submission in brief
The Senate Legal and Constitutional Affairs References Committee is currently conducting an inquiry into the ‘the performance and integrity of Australia’s administrative review system’.
My submission to that inquiry[ii] essentially warns about the risk of reputational collapse for the AAT’s Child Support and Social Services Division unless rigorous member selection protocols are adopted. I also join the near unanimous call for reinstatement of the systemic oversight and professional advice previously provided by the Administrative Review Council.[iii] In its own submission, Economic Justice Australia graphically highlighted the injustice and harm that can be posed to applicants, such as where AAT members are less than fully conversant with how to properly to exercise statutory discretions such as special circumstances waiver of debts.[iv]
At the heart of my submission is a single, simple proposal. Namely that no appointment to the AAT be able to be made unless the proposed tribunal member’s relevant skill set is confirmed by a positive recommendation from an independent selection committee overseen by the AAT President. As I wrote in the submission:
Public trust and confidence in the work of merits review tribunals hinges on the calibre of its membership. Independence, technical competence and understanding of the role, and what may be termed ‘tribunal-side manner’ are critical. Those qualities cannot be ascertained other than by a purpose-built and arms-length screening and assessment process.
With respect, the current ‘protocols’ (those from 2015 and 2019)[v] are ‘Claytons’ protocols, because Ministerial power to appoint without any or sufficient vetting remains untrammelled.
Unproblematic features of AAT appointment
It is important to draw attention to what is not included in my suggested protocol:
- I do not agree with the Callinan Report that all (or even most) appointees should be legally qualified.[vi] As I wrote:
Lawyers from outside a background or understanding of administrative law (and sometimes those within it) can be the least capable of understanding what is entailed in ‘standing in the shoes’ of the original decision-maker, of eliciting facts or shedding a ‘pleadings’ and passive approach to hearings. And the expertise of other disciplines and domains of life (especially public administration) is a vital component of merits review of administrative decisions.
- I reject imposition of any bar on the appointment of members with prior political affiliations or service. Of course it is damaging to the reputation of the AAT if an excessive number of appointments are made by and from one side of politics, as borne out by recent investigative journalism critiques.[vii] But nearly 40 years of experience as a member of the AAT and the Social Security Appeals Tribunal demonstrated to me that many of the best (and few of the worst) members came from those backgrounds, provided rigorous selection criteria were applied. In short, the central problem to address is the lack of robust screening and selection protocols.
Essential attributes for AAT appointment to the CS&SS Division
The qualities that are in my view essential prerequisites to appointment to the AAT in its Child Support and Social Services (CS&SS) Division include intellectual calibre and commitment, an understanding of the difference between merits review and judicial review, the ability to relate to and put at ease applicants from all walks of life, an appreciation of the required active fact-finding and inquiry role, and the ability to write accessible reasons for decisions in a timely manner.
Virtually none of the above is rocket science. These understandings and qualities are fundamental to the ability to undertake merits review, as captured by well-worn but evocative metaphors. Merits review involves ‘stepping into the shoes’ of the original decision-maker and reassessing whether or not the ‘correct and preferable’ decision has been made in the individual circumstances. In social security, this must nearly always be done without the aid of written or oral argument (just a departmental summary of how the prior decision was reached). Legal representation or even lay advocacy is vanishingly rare.
Applicants for social security review are highly vulnerable.[viii] They often are quite intimidated by the processes, and experience language, cultural, educational, mental health and multiple other barriers to participation in their hearing. They have already survived the application process, an internal review by the ‘original decision-maker’ and then official internal review by an ‘authorised review officer’, now followed by the tribunal process. That is why my submission placed a great deal of weight on ensuring that tribunal members have the legal equivalent of the doctor’s ‘good bedside manner’.
Out of lack of inspiration about a better term, I wrote about the importance of a ‘good tribunal-side manner’ as a prerequisite for appointment as a member of the CS&SS Division. This is a shorthand for a large body of research on the elements of ‘procedural justice’. Procedural justice is quite different from and much wider than the old legal notion of natural justice (now called ‘procedural fairness’). Procedural justice is about notions of ‘participation’, ‘voice’ and ‘respect’ (being treated with dignity) as seen from the perspective of applicants.[ix] Because of its importance, I wrote that:
Administrative empathy in the conduct of hearings is a quality of very great significance for often vulnerable applicants in the Child Support and Social Services jurisdiction of the AAT.
The integrity and reputational harm of inaction
As already foreshadowed, I contend that unsuitable appointments to the AAT, and to the CS&SS Division in particular, risks serious harm at both the individual and the institutional level.
At the level of harm to individual applicants:
- It risks denial of justice on the merits of the application when a member lacks the ability or will to research, identify and resolve the real points in issue;
- It risks denial of ‘procedural fairness’ by failing to probe to elicit the full factual basis relevant to the points in issue; and
- It risks ‘procedural injustice’ through closing down ‘participation’, by failure to hear the ‘voice’ of, and ‘respect’ (treat with dignity), the views of applicants.
At the systemic or reputational level, unsuitable appointments:
- Risk compromising the perceived independence and public trust in the AAT as an institution;[x] and
- Membership morale suffers, as the Callinan Report eloquently explained.[xi]
Why the ARC should be revived
The AAT is only one part of Australia’s system of administrative review developed by the Kerr and Bland Reports[xii] and other inquiries. It is designed to deliver individual justice to citizens wronged by government administration.
The Administrative Review Council was the body designed to consider systemic issues with a view to preventing errors or maladministration at the outset. As I wrote in my Senate submission, in my view:
The ARC over its life, achieved an enviable reputation for contributing to public administration. This was a result of the quality of its published reports, a product not only of a dedicated staff but a reflection of the wisdom and experience of the highly talented governing body.
In support of that observation, I alluded to the ARC reports on the proper design, deployment and use of artificial intelligence (AI) in government administration.
While conceding that other parts of the administrative review machinery had also failed rather abysmally to speedily identify and rectify the illegality and system maladministration of Robodebt,[xiii] I concluded that:
In my opinion, a functioning ARC certainly would have led to a much shorter duration of [Robodebt], and it would have had a better-than-even-money chance of avoiding altogether its roll-out in the defective form in which it was introduced.
Because AI and machine learning continue to be developed in welfare,[xiv] there is, in my opinion an overwhelming case for lifting the ‘suspension’[xv] of the work of the low-cost but highly effective ARC, as the Callinan Report also strongly urged.[xvi]
If the AAT is to maintain its world leading standing as one of the world’s premier merits review tribunals, it is imperative that integrity be restored to the member appointment processes.
If the standing of the administrative review system as a whole is not similarly to take a massive tumble down the world rankings due to scandals such as Robodebt (and its glacial speed of rectification), it is likewise imperative that the ARC be revived to provide oversight and advice.
World rankings take a lot of time, intellectual energy and administrative expertise to establish. But pride comes before a fall – those rankings can be lost overnight.
Vulnerable welfare and social security clients rightly expect better than that.
[i] Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals ( Report,1995) <https://www.ag.gov.au/sites/default/files/2020-03/report-39.pdf>; Terry Carney, ‘Welfare Appeals and the ARC Report: To ssat or not to ssat; Is that the question?’ (1996) 4 Australian Journal of Administrative Law 21. Earlier, Administrative Review Council, Social Security Appeals (Report, 1981) <https://www.ag.gov.au/sites/default/files/2020-03/report-8.pdf>.
[iii] For information regarding the defunct Administrative Review Council, including links to its reports, see https://www.ag.gov.au/legal-system/administrative-law
[v] For fullest details see the Attorney-General’s Department Submission #5 at pp 5-8, or that of the AAT in Submission #1 https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Adminreviewsystem/Submissions.
[vi] Hon Ian Callinan, Report: Review: section 4 of the Tribunals Amalgamation Act 2015 (Cth) (Report, 2018/19) <https://www.ag.gov.au/Consultations/Documents/statutory-review-tribunals-act-2015/report-statutory-review-aat.pdf>.
[vii] Mike Seccombe, ‘Political stacking leaves appeals tribunal in chaos’, The Saturday Paper (online, 24-30 November) <https://www.thesaturdaypaper.com.au/news/politics/2018/11/24/political-stacking-leaves-appeals-tribunal-chaos/15429780007187>; David Hardaker and Justine Landis-Handley, ‘The Big Stack: How the government hijacked the AAT’, Crikey (online, September 2019) <https://www.crikey.com.au/inq/the-big-stack>.
[viii] Terry Carney, ‘Vulnerability: False hope for vulnerable social security clients?’ (2018) 41 University of New South Wales Law Journal 783.
[ix] The concept is usually attributed to Tom Tyler and Alan Lind, and most recently elaborated in Tyler, Tom, Why People Obey the Law (Princeton University Press, 2021) https://doi.org/10.1515/9781400828609.
[x] Valerie Braithwaite, ‘Beyond the Bubble that is Robodebt: How governments that lose integrity threaten democracy’ (2020) 55 Australian Journal of Social Issues 242. Accessible here
[xi] Callinan (n vi), [3.7].
[xii] Commonwealth Administrative Review Committee, Report (Parliamentary Paper No 144, August 1971) https://nla.gov.au/nla.obj-1928610510/view?partId=nla.obj-1933532371#page/n6/mode/1up
[xiii] Terry Carney, ‘Robo-debt Illegality: The seven veils of failed guarantees of the rule of law?’ (2019) 44 Alternative Law Journal 4
[xiv] Terry Carney, ‘Artificial Intelligence in Welfare: Striking the vulnerability balance?’ (2020) 46 Monash University Law Review Advance 1; Terry Carney, ‘Automated Decision-making in Social Security Administration: Implications for vulnerability, transparency and decision-making quality’ PowerPoint presentation to Economic Justice Australia (Wednesday 15 September, 2021); Terry Carney, ‘The Automated Welfare State: Challenges for socio-economic rights of the marginalised’ PowerPoint presentation to Money, Power and AI: From Automated Banks to Automated States (29 November 2021, 2021).
[xv] Callinan (n vi), [1.27], [7.56].
[xvi] Ibid, [1.27], [7.56], Measure 26.