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Margaret Castles[*]
The long anticipated Commonwealth Administrative Review Tribunal Bill (ART Bill) was introduced into federal parliament on 28 June 2000. Described as a step forward in the efficiency and informalism of the review of administrative decisions in the Commonwealth arena,[1] it is based on the 1995 Better Decisions report of the Administrative Review Council (ARC), which recommended incorporating existing Commonwealth merits review tribunals into one ‘super’ tribunal.[2] However the proposals set out in the Bill go far further than structural reorganisation. The Bill proposes significant changes to appeal rights, to the opportunity of parties to be heard and to be represented, and potentially to the independence and autonomy of Tribunal members and processes.
The purpose of this article is to focus on the diminution in the quality and availability of review, and on the impact of limiting rights to legal or other representation. There are many other aspects of the Bill that invite comment, and no doubt there will be a much said on this initiative in the coming months.
The Administrative Review Tribunal (ART) was conceived in the Better Decisions report of the ARC in 1995. Noting that the report of the Kerr Committee,[3] which gave rise to the generalist Administrative Appeals Tribunal (AAT), had envisaged the setting up of specialist tribunals, such as the Social Security Appeals Tribunal (SSAT), the Veterans Review Board (VRB) and the Immigration Review Tribunal (IRT), the ARC recommended the streamlining of these tribunals into a single body, that would nonetheless permit the special characteristics of these tribunals to continue. Thus, the ARC proposes a single Tribunal with several divisions.
Introducing the Bill, the Attorney-General, Daryl Williams, explained the reasons behind the introduction of the ART:
The Government … has created a strong independent tribunal that will exercise the jurisdiction of several existing tribunals and at the same time streamline merits review, remove duplication and inefficiencies and improve performance.[4]
The objects of the ART Bill include:
• independent merits review of decisions
• an accessible, fair, just, economical, informal and quick review process
• non adversarial review of decisions
• improvement of the quality and consistency of decisions (cl.3).
At first blush the proposal is little more than a streamlining of the operation of several specialist tribunals and one generalist tribunal into a single entity, with a logical concentration of resources and standardising of procedures. However, attempts to minimise diversion of practices in the specialist and generalist tribunals would appear to miss the point accepted by the Kerr Committee, and the ARC, that there is clear value in tribunals operating in specialised spheres devising their own processes. This need for diversion arises both in hearings and in the pre-hearing processes that prepare matters for hearing. The opportunity for such diversion remains in the ART legislation, which provides for distinct divisions within the Tribunal.
Under the current merits review system, administrative decisions made by Commonwealth departments are independently reviewed internally, prior to appeal to one of the specialist tribunals, or to the AAT. Appeals against internal review in the areas of social security, veterans’ entitlements, and migration status, go to the appropriate specialist tribunal. Appeals against other decisions, for example taxation and workers compensation, go directly to the AAT. Under the old system, a party dissatisfied with the decision of one of the specialised tribunals, could appeal to the AAT, as of right.[5] Justification for this two-tiered appeal system lay in the fact that proceedings in the specialist tribunals were intended to be informal, quick, and cost effective. The availability of review by the AAT meant that complicated cases, or those that the specialist tribunal simply got wrong, could be examined again.
The nature and quality of review under this system differed significantly between first and second tier review. Taking the Social Security Appeals Tribunal (SSAT) as an example, a three-person panel, comprising a lawyer, an executive member, and another member with appropriate expertise hear the case, which usually lasts no longer than an hour. The applicant’s file is provided by Centrelink. The applicant is present, but not Centrelink. This convening of a multidisciplinary panel has traditionally been seen as providing the necessary level of expertise and perspective to what is, in reality, a relatively short hearing. The matters that commonly need to be canvassed at such hearings include the applicant’s history and the circumstances of the events leading to the appeal, the applicability of often complicated legislative provisions and formula to the case, and the evaluation of qualitative issues. The combined expertise of a lawyer, an executive member familiar with Centrelink operations, and a welfare or medical member, enable a thorough assessment of the case to be achieved in the short time available.
Even so, the number of decisions that are changed as a consequence of review by the AAT indicates that this is not a foolproof system. The Annual Report of the AAT[6] indicates that in 1998/99, 2138 (or 36%) of appeals lodged against decisions in the General and Veterans divisions resulted in changed decisions. The fact that almost all of these occurred by consent, with only 584 (or 10%) being varied by decision, does not alter the fact that the availability of the review process and the further investigation and scrutiny of cases has prompted a change to the original decision.
Under the ART Bill, a system of first tier review replaces the review that would currently be available in the SSAT.
Unlike appeal to the SSAT, first tier review will be conducted by between one and three members. The norm will be for hearings by one member, with two or three member panels only available if the case raises a principle or issue of general significance, or special expertise is needed (cl.69(2)). Logic suggests that those matters classified as simple and straightforward, and/or seen as not involving complex questions of fact, evidence, or law, will be heard by single members. It is trite to point out that many cases that seem simple on the papers turn out to raise issues of legal or specialised factual complexity. Anecdotal evidence from Tribunal members, and my own experience suggests, that many cases fall into this category.
The ART exercises complete control over the conduct and level of participation of parties (cl.96(2)). This provision contrasts markedly with s.39 of the Administrative Appeals Tribunal Act (AAT Act) which requires that every party to a proceeding before the Tribunal be given a reasonable opportunity to present their case. The ART may also decide to conduct the review without any party being able to appear, that is, on the papers alone (cl.96(3)). Under the AAT Act proceeding on the papers could only occur with the consent of the parties (s.34B).
The right to appeal from first to second tier review under the current system is entrenched in legislation.[7] Appeal on merit or law is as of right, and the hearing in the AAT is de novo. Necessarily, cases that may have received comparatively cursory attention (in keeping with the focus on informality and expediency) at the lower level receive far more attention as they progress through the AAT. Preliminary conferences, at which parties address the legal and factual issues occur prior to the substantive hearing, and the hearing itself is often very much longer than the original. The decision maker is usually represented, and considerably more attention to the process and evidence that underlies the decision is possible. Where the party obtains legal representation, examination is possible of their circumstances against the often complex legislative requirements, rather than against the lay person’s perception of what is ‘fair’. AAT review is before one to three members, one of which is a lawyer.
Under the ART system, this right to appeal is abolished. Appeal to what is now called second tier review lies only from a single member first tier decisions, and only where the application for leave is considered by the President to raise ‘a principle or issue of general significance’ (cl.65(2)). This decision is to be made on the papers, unless there is a special reason for doing otherwise (cl.65(6)). The threshold requirement that the decision raise a principle or issue of general significance is now limiting. The greater majority of appeals currently directed to the AAT from lower Tribunals or first tier departmental decision makers are applications for merits review. While careful analysis of the facts of the case against legislative provision and case law is necessary, issues of general rather than individual significance are seldom raised.
For the most part in areas of law such as immigration, social security, and workers compensation, the issues of general importance, that is, legal issues, have largely been determined at the Federal Court level. Thus the meaning of phrases such as ‘hardship’ in the social security context, or ‘material contribution’ (to injury or condition) in the workers compensation area, have been defined. The application of those principles to the particular circumstances of case after case subsequently does not raise issues of general importance, as did the original definition of the term. Yet to apply the body of law to an individual case in a way that goes deeper than establishment of a surface similarity between the case at issue and applicable precedent, can be a complex and challenging task. There is no shortage of cases where the decision of a three-person tribunal at the SSAT, or similar level, has been overturned on appeal to the AAT, not on questions of law, but on issues of fact and qualitative opinion.
There is little point in canvassing the likely approach of the ART to granting leave under these provisions. There is a clear distinction between an issue of general significance and an issue of individual importance. The legislation does not provide for discretion to grant leave other than where the issue is of general importance. In all likelihood the only matters that will warrant such attention will be matters raising legal issues, the outcome of which will have general relevance to the operation of the particular statutory scheme at issue. This is, in effect, a test case, and will arise rarely. Any examination of appeal statistics would suggest that the majority of applicants who have appealed against a specialist tribunal decision and been successful, would not get past first tier review under the new system.
The only circumstances when the right to appeal is assured is if both the applicant and the decision maker agree in writing that a manifest error of law has materially affected the first tier decision (cl.65(3)). It is suggested that such convergence of opinion will arise rarely.
As in the current system, appeal lies directly to the Federal Court against an asserted error of law in a first tier decision where application to advance to second tier review is refused under Clause 65, and from a second tier review on a question of law (cl.167).[8] However, there is no procedure in the Bill for challenging a refusal to grant leave to appeal this second tier. Parties may have to seek equitable relief in the Federal Court.
The net effect of the suggested structure of the ART and the limited appeal rights is to potentially reduce the quality of review at the first tier level, and severely constrains the rights of individuals to seek review of decisions that affect them alone, however severely. Currently the relatively informal, quick, and necessarily limited review that is received (for example at the SSAT) is always backed up by the availability of detailed examination of assertions of fact and application of law at the AAT level. Although the ART Bill does not articulate how much time is to be spent on first tier review, and how much preliminary investigation by the Tribunal is to precede a hearing, it can be predicted that the intention of this legislation is not to increase the cost and time of first tier review, but rather, to reduce more cases to that level. It must also be emphasised that the new system offers fewer resources in the form of panel expertise than the current system. In practice, it may offer little more than the level of internal review currently provided within Departments.
This new system represents a substantial diminution of appeal rights from decisions made in relation to income support, immigration, workers compensation, taxation, and the myriad of other administrative decisions that make up the work of the AAT. It appears to reflect an unstated assumption that appeal of many such cases is neither efficient nor cost effective, and that that they are not important enough to warrant the public expense that examination on appeal necessarily incurs. What it fails to recognise is that the point of administrative review is to provide a credible means of ensuring that individuals are fairly treated in their dealings with government, and that limiting both the quality of review and the opportunity to test that review is a very significant step backwards. The right of appeal in a case of general significance may be of little value to the hundreds of applicants whose lives and rights are greatly affected by these seemingly simple decisions.
In 1975, when the AAT was established, it was intended to be an informal merits-based review system, not bound by rules of evidence,[9] focused on making the correct and preferable decision in the circumstances of the particular case. It was intended to be a jurisdiction where people could manage without lawyers. Indeed, it was argued then, as it is argued now, that the inclusion of lawyers in such matters results in formalisation and legalisation, and that this is of itself not desirable.[10] While there is some truth in the last proposition, it belies the complexity of issues that underlie administrative review.
The response in the ART Bill is to remove the right of legal representation in favour of representation only at the discretion of the panel hearing the matter (cl.105). Decisions made about income support, immigration, and compensation commonly involve qualitative assessments. Guidance is available through legislation and policy guidelines, but inevitably, the decision maker is determining questions of fact relating to reasonableness of action, the nature of a person’s relationship with another, or the existence of ‘special circumstances,’[11] by reference to a complex body of common and statutory law. They are far from simple, particularly when what the lay person considers to reasonableness or hardship to be is not reflected in non-discretionary legislative provisions and case law. They are of course extraordinarily important questions to the persons who are subject to decisions, resulting in findings that will, for example affect their right to income support and all the associated life matters that this affects. The same can be said of decisions made in the areas of workers compensation, and immigration.
While there is no shortage of unrepresented applicants in the AAT, particularly regarding welfare and immigration, where parties are unable to afford representation and do not meet stringent legal aid eligibility tests, it is common for applicants as well as Departments to be legally represented throughout the process.[12] This has led to an element of legalisation in the AAT. Documents such as statements of facts issues and contentions tend to imitate pleadings seen in other jurisdictions, and rules of evidence are often applied. While such practices are certainly legalistic, their characterisation as undesirable is deceptive. Criticism of such practices fails to recognise that the protection of rights in our legal system has turned traditionally on a careful statement of the case and of articulation of issues to ensure that the parties and the tribunal know what the allegations are and what the case is about.
Administrative decision making of the type undertaken in the SSAT and the AAT commonly involves interpretation and application of legislation and associated instruments which are long, detailed, and complex. A substantial body of case law, much of it far from uniform, has developed in a number of areas. Submissions to the Australian Law Reform Commission during its inquiry into the federal justice system uniformly recognised the value of legal representation in Tribunal proceedings, and even the ARC opposed any statutory limitations to rights of representation.[13] Recent investigations by the Australian Law Reform Commission indicate a direct correlation between successful outcome in the AAT, and legal representation.[14] Proposals to limit legal or other representation in areas where applicants are frequently unable to understand the reasons for the decision, the underlying legal requirements, and the matters that must be proven to meet those requirements, will effectively mean that people in that position do not obtain a fair hearing. Their actual circumstances may never be heard at all, as a result of inability to mould it to a form recognised by the legislation. Indeed the very concept of simple, informal, quick and cheap review of decisions being made against a background of complex, formal, technical and administratively costly legislative schemes is inherently flawed. While there is no doubt that in some areas and some cases lawyer involvement does result in excessive adversarialism and lengthening of processes, it must never be forgotten that traditionally our society values the right of individuals to test decisions imposed on them by government against applicable law. Necessarily this involves lawyers to some extent, and abandoning, for fear of cultural impact of lawyer involvement, the right of people affected by administrative decisions to ensure that they are made correctly, sacrifices long-term legal rights in the interests of short-term efficiency.
Responses by the legal profession to assertions that legal representation should be seen as an important and integral part of an individual’s capacity to articulate their rights are often met with the suggestion that lawyers are only concerned with lining their own pockets. Initiatives such as cl.65 of the ART certainly do have the potential to reduce market share for lawyers. Some areas of AAT work, particularly tax, business regulation, and workers compensation do make up an important part of many lawyers’ practices, and loss of this work would be sorely felt.
However, there are other areas of AAT work that are not generally of a nature that ensures profit for representatives. Cases involving welfare or other benefits often turn on complex points of statutory interpretation, but involve little money. In the past many such parties have obtained representation via legal aid, or pro bono representation from the private profession. The range of decisions that are amenable to the AAT jurisdiction encompasses 360 separate legislative instruments. While it is not accurate to suggest that every private party in the AAT is necessarily at a disadvantage to the government agency, there is an obvious imbalance in resources available to each party. The term resources is not confined to financial resources, or to availability of counsel. In challenging government decisions, applicants are pitting themselves against experienced, trained employees, with access to a variety of support services including legal advice. In some areas, the decision makers themselves are lawyers. There is a significant imbalance in personal, financial, and other resources fundamental to obtaining a level of knowledge and understanding to facilitate challenging a decision. This is applicable across the board, especially in welfare, immigration, and in some cases, workers compensation. Any limitation on the capacity for applicants to adequately meet this expertise has the potential to further skew the process in favour of the decision makers.
The legislation proposes limited and arguably ineffective methods of overcoming this imbalance. First, it requires departmental representatives to assist the Tribunal (cl.94). It has always been the intention that departmental representatives perform this function, and indeed many of them do so. However, there is no denying the fact that the culture of work within a department forces departmental representatives to represent their department. It is unrealistic to suggest that assistance to the Tribunal would include assisting an applicant to develop and refine their own evidence and legal argument. Indeed it would be quite inappropriate and a potential conflict of interest to do so.
The AAT has a range of powers designed to assist the Tribunal in information gathering and cooperative dispute resolution. In the pre-hearing stage, parties attend one or more preliminary conferences, at which the nature of the case and the type of proof that might be needed can be canvassed, along with different approaches to the dispute in question. The nature of the documents that are filed by each party are directed at a narrowing of the issues, and a clear statement of each party’s contentions is sought.
However, the complexity of the dispute often requires several pages of detailed assertions of fact and carefully worded contentions far beyond the comprehension of a lay party with little understanding of the legislative scheme.[15] A common risk with unrepresented parties is the inability to articulate their objection to a decision, or to frame it in such a way as to maximise their chance of success. ‘It’s not fair, why should I be penalised when I have done nothing wrong’ is a far less compelling argument than one based on careful analysis of the applicable legal principles and argument distinguishing the current case from the run of cases. This approach is not simply legal casuistry. If it were, there would be no successful appeals against first instance decisions, and this is not the case.
In the SSAT, and in some cases in the AAT, whole files or parts of files are provided. However, as Bayne points out in reference to the ART:
… Departmental files often come with coding and other signals which requires some expertise to understand. They are often inexplicable to the ‘lay’ reader. Yet such understanding is often essential to an appreciation of the significance of the document. The documents on the file are generated in accordance with the administrative practices that again will be unknown outside the agency. Yet it is often in these practices where lie the source of error or inadequacy in the fact-finding process of the decision-maker.15
Availability of these files at the hearing does little to assist the lay party who needs to have understood them and followed up any matters raised well before the hearing date. In any event, under the new scheme the complete file is not provided, only those documents identified by the decision maker as being relevant (cl.77).
Other options such as the power to call witnesses or obtain evidence are seldom utilised, presumably because tight funding lines do not provided for ad hoc investigation of this nature.
It might be argued that the discretion of tribunal members to rectify any imbalance by granting leave to be legally represented in appropriate cases would be sufficient. But one must ask: what is an appropriate case? Is it one that involves a lot of money? Or complex points of law? Has test case implications? Or is simply crucially important to the person asserting it? How will one decide cases deserving legal representation? Can lay members be trusted with this task, given that it may involve foreseeing and assessing the complexity and depth of legal and evidentiary issues that might arise? Will the decision require some assessment of the likelihood of a particular argument succeeding, as in an ad hoc assessment of the merits of the case? And, finally, even if the matter is not apparently complex, what of the interest of the individual in telling their story in an effective and comprehensive way? It is comforting to assume that any right-minded Tribunal member, realising that a case involves a question of law with which the lay applicant cannot grapple, will authorise legal representation. Applicants do not simply need assistance with legal issues. Many need assistance to identify the issues, and then tell their story. Commonly, it is lawyers or legally trained volunteers who do that story telling.
In the Bill there is no guidance for when representation will be permitted. Clause 105 provides that a tribunal member may authorise legal or other representation provided the practice and procedure directions do not prohibit them from so doing. At this stage these directions have not been created. It bears mentioning that such directions may be made by the Tribunal itself or by the Minister responsible for the particular division of the Tribunal (cl.161). Effectively, the Minister for Social Security can issue practice directions concerning the right of parties to be legally represented in appeals against decisions by Department.
Most courts in Australia are presently struggling with issues of cost, delay, and adversarial culture. Increasingly, they are also struggling with the problems that the unrepresented litigant presents to both the pre-trial process and the hearing. There are good practical and philosophical reasons for allowing representation wherever it can be obtained. The reality of legal aid funding is that in areas of most need there will be no more representation now than previously. But those who can obtain representation should not be denied it. Simply limiting appeal rights and availability of representation is akin to ‘throwing the baby out with the bath water’. It may result in a more streamlined and efficient system, but not in fairer decisions. The administrative review process in Australia has never existed solely to resolve important or public interest disputes. It exists to resolve disputes between citizens and the administration in the enormous number of areas where our lives are regulated by administrative decision makers. The impact of this legislation will inevitably be to derogate from the accessible and public review of day-to-day decisions that can have far reaching implications for the people affected by them.
As the Attorney General states in the second reading speech, a large number of decisions made by government departments and agencies on a daily basis affect the rights and interests of individuals. Independent, fair, effective, and accessible merits review is critically important in this context. It is unfortunate that the detail of the ART Bill seems to miss this point at almost every level.
References
[*] Margaret Castles teaches law at the University of Adelaide.
email: margaret.castles@adelaide.edu.au
[1] Second Reading Speech, Commonwealth House of Representatives, 28 June 2000.
[2] Administrative Review Council, ‘Better Decisions: Review of Commonwealth Merits Review Tribunals’, Report No. 39, AGPS, 1995, Recommendation 87.
[3] Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971, CGPS Canberra 1971, paragraph 280.
[4] Second reading speech, House of Representatives, 28 June 2000.
[5] For example, Social Security Act 1991 (Cth) s.1253, Veterans Entitlements Act 1986 (Cth) s.139.
[6] Administrative Appeals Tribunal 1998-99 Annual Report, AGPS, 1999, p.107.
[7] See ref 5 above.
[8] Administrative Appeals Tribunal Act 1975-1977 (Cth) s.33(1)(b) and (c).
[9] See for example Australian Law Reform Commission, Review of the Adversarial System of Litigation: Federal Tribunal Proceedings, Issues Paper 24, April 1998, p.20.
[10] All such examples are drawn from the Social Security Act which requires such qualitative assessments to be made in determining income support entitlements.
[11] Legal representation is the norm rather than the exception in areas such as workers compensation, tax, and other specialised jurisdictions involving monetary claims.
[12] Australian Law Reform Commission, Discussion Paper 62, Review of the Federal Civil Justice System, AGPS, August 1999, pp.441-2.
[13] Australian Law Reform Commission, Empirical Information about the Administrative Appeals Tribunal Consultants Report No 1 with Discussion Paper 62, June 1999, pp.37–9 available on ALRC website <<www.alrc.gov.au>>.
[14] The writer’s experience is that these statements are uniformly provided by legal represented parties, and by informed departmental representatives. In the case of unrepresented applicants, they are usually not required, and when they are, are of little real value in narrowing the issues.
[15] Bayne, P., ‘The Proposed Administrative Review Tribunal — Is There a Silver Lining in the Dark Cloud?’, 7 Australian Journal of Administrative Law 86.
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