Sarah Sacher, Economic Justice Australia, Law Reform Officer
The Government’s announcement that it intends to abolish the AAT and replace it with a new federal administrative review body is a welcome development. The AAT has been plagued by problems and concerns associated with its independence, accessibility and the consistency and quality of decisions.
The AAT’s abolition provides a rare opportunity to ensure that a new model improves justice outcomes for individuals by substantively improving the quality of decisions, and enhancing procedural fairness and access to justice. In the context of the Robodebt Royal Commission, a positive development would be for the set up of the new body to enable the identification and addressing of systemic administrative issues at an earlier stage.
EJA endorses Terry Carney’s recommendations for an open and merits-based selection process to be mandatory for all appointments on member selection to ensure public trust and confidence in the AAT-successor, as well as a revival of the Administrative Review Council which was abolished in 2015. The ARC was a mechanism to provide feedback to primary decision-makers and to address systemic concerns regarding public administrative systems. Professor Terry Carney notes that if the ARC was functioning at the time of the Robodebt scheme, it would likely have ended at an earlier date or may have even be avoided altogether.
EJA has long advocated for reform of the AAT based on the experience of its member centres assisting clients appealing social security decisions in the AAT. It’s a good time for us to recap some of the key considerations from the perspective of our members’ casework that should underpin the development of the AAT’s successor.
Justice may be compromised for individuals when AAT members hearing social security or family assistance cases lack relevant knowledge. Expertise on the complexities of social security law is required. It is also essential that members have an understanding of socio-cultural factors that may be relevant to the application of discretion in individual cases.
Applicants affected by social security issues have diverse backgrounds and often experience intersecting forms of vulnerability. This cohort includes people with disability; First Nations people; refugees and newly arrived migrants; and people experiencing family and domestic violence. In order to ensure equal access to justice and procedural fairness, a nuanced regard must be had to the issues experienced by these groups, and their accessibility needs.
Unfortunately, EJA member centres highlight that AAT members do not always have the requisite skills, experience and expertise, and these members are:
- less likely to conduct a hearing in a procedurally fair manner (in light of the applicant’s vulnerabilities);
- consistently fail to exercise the full breadth of available discretion in their decision-making;
- are likely to make errors in their application of law and policy
Examples: Family and Domestic Violence
- The AAT at Tier 1 decided not to waive recovery of a Family Tax Benefit debt for an Aboriginal grandmother experiencing family violence, on the flawed reasoning that ‘domestic violence and elder abuse is so prevalent in society that it is not uncommon’.
- The AAT only waived a compensation preclusion period following legal representation by our member centre, with evidence of how the applicant’s husband forced her to spend her compensation payment under duress. The applicant was eventually successful but the appeal took 15 months – causing stress and anxiety for the client that compounded the trauma of the domestic violence.
Example: Disability and refugee status
- A refugee was refused re-grant of Disability Support Pension (DSP) after being in clinical care for depression, an anxiety disorder and post-traumatic stress disorder (PTSD) for eight years. The client also had a number of physical conditions –including a long-standing spinal condition, epilepsy, diabetes, vision problems and asthma. In deciding against the client, the AAT General Division member did not refer to the full scope of the client’s evidence in the decision – evidence which in our member centre’s view, clearly warranted re-grant of DSP. The client is now on JobSeeker Payment and struggles to comply with mutual obligations. He is at risk of falling into extreme poverty.
For these reasons, the assignment of members to social security and family assistance matters in the AAT-successor should have regard to member’s specialist legal expertise and non-legal understanding of issues affecting vulnerable people.
Provision of ongoing training
Social security/family assistance law is a very complex area that does not get taught as part of the core curricula in law schools. Given the intricacies of the ever-changing social security and family assistance legislation, it is essential that members making social security decisions are provided with ongoing training in the relevant law.
Additionally, there is a need for training for members regarding relevant socio-cultural issues. The AAT’s offer to work with EJA to develop a training module for all AAT members in the Child Support and Social Services Division on the intersection of family violence and social security law is an example of a welcome development in this regard. This is a potential model for development of training programs for other key issues, for members appointed to the AAT-successor.
Addressing perceived and actual bias through transparency measures
The variability in expertise amongst AAT members can lead to actual or perceived bias in decision-making. A senior solicitor from one of our member centres has observed that:
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.
In order to track and address actual or perceived bias in decisions by certain members, we suggest that the AAT-successor publish the number of decisions affirmed, varied or set aside by each member. This would increase oversight and transparency of decision-making, and instill confidence in the AAT-successor’s independence.
Publish social security decisions
Currently, tier 1 AAT decisions (the Social Security and Child Support Division) are not published – unlike decisions in the General Division. As a result, rulings overturning Departmental reasoning are hidden from the public unless an appeal is taken to General Division, and that appeal is not settled by agreement. This can mean that systemic issues remain unknown to the public. For example, if some of the Tier 1 AAT decisions regarding Robodebt were a matter of public record, the legal arguments and conclusions being reached would have been publicised sooner, and may have led to reform at an earlier stage. EJA therefore considers that the AAT-successor should publish select first-instance social security decisions.
Improve access to justice through litigation guardians and legal representation
Power to appoint litigation guardians
Due to pressures on the limited resources of EJA members services and Legal Aid, most people appearing before the AAT in social security and family assistance appeals are unlikely to have the benefit of legal representation. We understand that currently approximately 3% of applicants to the Child Support and Social Services Division have legal representation.
The AAT has no power 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. 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.
The AAT-successor must have the power to appoint a litigation guardian where an applicant lacks the capacity to understand proceedings – this is essential to avoiding serious injustice.
Fund specialist services
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 are in vulnerable cohorts and are unable to self-represent in appeals. The situation is particularly acute in remote areas.
As the AAT-successor is developed, consideration must be given to ensuring that individuals can obtain legal assistance in social security matters – noting that this is fundamentally necessary for the practical improvement of justice outcomes for applicants.