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Mathews, Jane --- "Assisting Unrepresented Parties in the Aat" [1998] ALRCRefJl 9; (1998) 72 Australian Law Reform Commission Reform Journal 38


Reform Issue 72 Autumn 1998
This article appeared on pages 38 – 42 of the original journal.

Assisting Unrepresented Parties in the AAT

By Justice Jane Mathews*

The ALRC inquiry into the federal civil litigation system includes a review of tribunals, with an issues paper to be released soon. This article examines a major focus of that review - the place of unrepresented parties in tribunal proceedings.

The Commonwealth Administrative Appeals Tribunal (AAT) provides independent review of decisions made by federal government agencies. The AAT’s ‘bulk’ jurisdictions relate to social welfare entitlements, Commonwealth employees’ workers’ compensation, veterans’ entitlements, and taxation matters. In addition, the AAT has jurisdiction across a wide range of government decision making.

Individual cases in the AAT vary greatly in complexity and length. Most involve relatively simple issues of fact, or of statutory interpretation, but some involve highly complex issues of law and significant matters of principle. The issues involved in a case will frequently influence the way in which the AAT conducts its proceedings. So will the fact that one of the parties is unrepresented. This article will focus on how the AAT conducts its proceedings when non-government parties are unrepresented and will discuss the ways in which unrepresented parties are assisted in the AAT’s processes.

The proportion of unrepresented parties in the AAT is relatively high. This is supported by data collected from the AAT’s computerised case management system as to the level of representation of applicants in cases finalised between April 1, 1995 and March 31, 1996.1 During that period approximately one-third of all AAT applicants were unrepresented. The proportion of unrepresented applicants varied considerably according to the type of decision under review. In taxation, workers’ compensation and veterans’ entitlement matters, less than a third of applicants were unrepresented.2 By comparison, approximately 60 per cent of applicants seeking review of decisions relating to social security, AUSTUDY and other individual entitlements, were unrepresented.3 Almost 50 per cent of applicants seeking review of decisions under the Migration Act 1958 were also unrepresented.

The AAT aims to provide fair, impartial, high quality and prompt review of decisions to the widest possible range of people, regardless of their cultural or linguistic background.4 To achieve this goal and to redress any imbalance caused by lack of representation, the AAT must be particularly responsive to the needs of unrepresented parties. To this end the AAT has developed a range of practices and procedures designed to assist them in the conduct of their case.

There are two general types of assistance which the AAT provides to unrepresented parties. Firstly, the AAT provides comprehensive information about its case management processes and assists unrepresented parties to participate in these processes. I will call this procedural assistance. Secondly, the AAT assists unrepresented parties in the content, preparation and presentation of their cases. I will call this substantive assistance. There are some difficult issues of principle in relation to the giving of substantive assistance, as I shall discuss later.

Procedural assistance

After receiving an application for review, the AAT routinely sends a letter of acknowledgement to the applicant. If the application does not mention a representative, the AAT will also enclose a series of information pamphlets which explain each stage of the review process, together with the AAT’s Charter and a list of Legal Aid offices, community legal centres and other service and welfare organisations which may be able to assist the person.5

After receiving the application, the AAT also notifies the decision maker that an application has been made.6 The decision maker is required to provide to the AAT, within 28 days, a statement of reasons for the decision and all documents which are considered relevant to the decision making process.7 A copy of these documents, known as

‘T documents’, must also be provided to the other party to the application.

Shortly after receiving the T documents, the AAT’s Outreach Information Officer contacts an unrepresented party by telephone.8 If necessary, an interpreter service is used. The purpose of the call is to provide information about the AAT’s procedures, but not to discuss the merits of the particular case. The Outreach Information Officer discusses the nature and purpose of the T documents, whether a stay order or confidentiality order may be required, informs the person of the nature and purpose of a preliminary conference and gives details of organisations that can probably provide assistance. The AAT also has a video Getting Decisions Right, which can be viewed at the AAT or sent to the person’s home.9

The centre-piece of the AAT’s pre-hearing processes is the conference. This is conducted by either a member or a conference registrar (the conference convenor). Often two conferences are held. The conference enables the AAT and the parties to discuss and define the issues in dispute, to explore whether the matter can be settled and, if settlement is not possible, to discuss the evidence likely to be presented at the hearing. Through the conference process approximately 75 per cent of applications are finalised without proceeding to a hearing.

Conferences are conducted in an informal, relaxed manner. The conference convenor will explain the AAT’s processes to an unrepresented party and will answer any questions they have as to matters of procedure or substance. They will ensure that unrepresented parties participate fully in all discussions about their cases.

If an application has not resolved during the conference process, then unless the parties choose to have the matter mediated, it will be listed for hearing.10 Where necessary, the AAT will arrange for an interpreter to attend the hearing. On the day of the hearing, the associate or tribunal attendant will familiarise the person with the hearing room and will often explain the likely course of the hearing.

At the commencement of a hearing involving an unrepresented party, the presiding member will explain the manner in which the hearing is to be conducted. He or she will outline the nature of the case or will require the government agency’s representative to do so. Hearing procedures will usually be modified to adjust to the needs of unrepresented parties. Steps will be taken to reduce the formality of the process. These may include not allowing parties to stand when addressing the Tribunal and not requiring the unrepresented party to give evidence from the witness box. The presiding member may also modify the order in which evidence is given and submissions are made. Unrepresented parties will be encouraged to participate fully in the process and to seek assistance when they do not understand what is happening.

Providing this type of procedural assistance to unrepresented parties is, in my view, essential. Most unrepresented parties are first-time participants in the administrative review process. As hard as the AAT tries to achieve informality in appropriate cases, the review experience can still be confusing and sometimes intimidating to unrepresented parties. AAT members and staff thus bear a heavy responsibility to ensure that unrepresented parties have all the information and assistance to enable them to participate as fully as possible in the process. It is my belief that AAT members and staff discharge this obligation well.

Substantive assistance

No one would cavil at the need to provide procedural assistance to unrepresented parties to redress imbalances which might otherwise exist between unrepresented parties and government advocates. In theory, the need to provide substantive assistance to unrepresented parties is no different, but in fact the issues are more complex and sensitive as I will discuss later. Before doing so, however, I should say something more about the AAT’s decision making task.

The AAT is an administrative tribunal, not a judicial body. Its function is to review government decisions on their merits and to reach the ‘correct or preferable decision’, namely the decision which is both legally correct and the fairest in the circumstances. In doing so, the AAT is not restricted to the material which was before the original decision maker, but bases its decisions on the material available at the time of hearing.

It is necessary, in the interests of fairness and justice, that every effort is made to ensure that all relevant material is placed before the Tribunal at the hearing.

From the point of view of unrepresented parties, there are two stages at which substantive assistance might be needed in proceedings before the AAT. They are, respectively, the pre-hearing and the hearing stage. The AAT is in an excellent position to assist unrepresented parties at the first stage. At the second stage there can sometimes be sensitivities and restraints, as I shall discuss shortly.

Pre-hearing

The AAT’s pre-hearing processes are designed to ensure that all cases that go to hearing have been adequately prepared and that all relevant material will be available at the hearing. This will often necessitate the identification, collation and collection of relevant evidence by one or both parties.

Unlike the courts, the procedures of the AAT are not predicated upon the use of adversarial techniques. When appropriate, the AAT can, and frequently does, act in an inquisitorial manner. The AAT lacks the organisational framework and the resources to itself embark upon the collection of evidence in any systematic way and is essentially dependent upon the evidence provided by the parties. However, considerable assistance can be, and frequently is, given to unrepresented parties in the identification, collation and collection of relevant evidence.

This largely takes place through conferences, and is a multifaceted process. For example, conference convenors can help unrepresented parties to better understand the issues in a case by discussing the merits of the case and identifying potential areas of conflict. They may point out issues which did not form part of the initial decision making process, but which may be relevant to the AAT’s review. They can identify the kind of evidence which unrepresented parties might need in support of their case and can suggest means of obtaining it. They can discuss all these issues in frank terms, expressing views on the adequacy of the evidence and even, sometimes, on the likely outcome of the case.

Positive assistance can be given at this stage to unrepresented parties. For instance, in the veterans’ jurisdiction, the respondent government agency may be requested to arrange a medical examination and pay for an expert report on behalf of an unrepresented party. The AAT may, on behalf of a party, summons a person to give evidence at a hearing or to produce documents which may be relevant to the decision under review. 11

The conference convenor can do all this and can adopt an interventionist stand because in most cases he or she will not be the person who will be conducting the hearing. The Administrative Appeals Tribunal Act 1975 provides that a party may object to a hearing being conducted by a member who participated in a pre-hearing conference.12 And even if this provision is not invoked, a member who has conducted a conference in an interventionist manner will usually decline to sit on a subsequent hearing, particularly if an unrepresented party is involved.

In summary, considerable substantive assistance can be and routinely is given to unrepresented parties to redress any imbalance of power in the pre-hearing process.

The hearing

It goes without saying that there will be an enormous range of advocacy skills and experience in unrepresented parties. Some may be lawyers themselves, or may otherwise be talented and confident advocates. Others may be entirely unfamiliar with the AAT’s processes, and in need of considerable assistance.

The member presiding at an AAT hearing will normally do everything possible to ensure that all relevant oral and documentary evidence is put before the Tribunal. This can sometimes involve giving active assistance to unrepresented parties. Given the overall nature of the AAT’s task, namely to reach the correct or preferable decision, the provision of this assistance will not usually conflict with the member’s adjudicative role, particularly as many cases in the AAT involve relatively simple issues of statutory interpretation or relatively straightforward factual disputes. In most of these cases, government advocates will go out of their way to assist unrepresented parties, and will certainly not object when a presiding member does so. In these cases, presiding members can probably provide assistance by, for example, asking questions of unrepresented parties to extract relevant material, and often also taking over the questioning of unrepresented parties’ witnesses. Similarly, the presiding member will normally suggest the type of evidence that an unrepresented party might need to support his or her case and might even adjourn proceedings so that this evidence can be obtained.

The potential for difficulty arises in cases where there are significant factual disputes between the parties. In these cases the task of a presiding member in assisting an unrepresented party can sometimes become a sensitive one. For although the AAT is an administrative body, the presiding member at an AAT hearing has a duty to act judicially. As Bowen CJ and Deane J said (in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 585) in relation to the AAT:

“The trappings of judicial decision making are not however necessarily indicative of the existence of judicial, as distinct from administrative, power (see generally, R v Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 16 ALR 569 at 574-576). Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness. The trappings of judicial decision making are, in some cases, no less appropriate to such a tribunal than they are to a court concerned with the exercise of the judicial power of the Commonwealth.”

The problem is that presiding members who actively help unrepresented parties can be in danger of losing the appearance of objectivity and detachment upon which their decision making authority depends. This is a particular problem if the credibility of an unrepresented party is under attack in the proceedings. It is further exacerbated if the unrepresented party is unskilled and unversed in advocacy. The presiding member is placed in the invidious position where, in trying to equalise the imbalance between an experienced government advocate and an unrepresented party, he or she might be perceived as ‘entering the fray’ and favouring one party over the other. There can be a real tension in these cases between a presiding member’s duty to maintain an impartial detachment to the issues, on the one hand, and the duty to ensure that all relevant material is before the Tribunal, on the other.

There are no easy answers in these cases. There are no rules which can dictate how a presiding member should respond to these demands. It requires a delicate balance which will draw upon the skill, experience and sensitivity of the individual member. In some cases, a member’s perception as to the merits of a case might affect the way he or she will respond to this situation. If a presiding member considers, after reviewing the evidence, that an unrepresented party is unlikely to succeed, then he or she might feel justified in making greater efforts to assist that party. If further evidence then emerges in favour of the unrepresented party, the outcome will vindicate the process. If not, the unrepresented party, having lost the case, will at least feel that the process has been fair.

In many respects, the difficulties encountered by presiding members in assisting unrepresented parties in the AAT are no different from those confronting judges in the court system. The necessity for the appearance of impartial detachment on the one hand and the need for all relevant evidence to be available on the other, is the same in both cases. However the AAT, which has the capacity for much more informal and flexible processes, is, in my view, considerably better placed to balance these requirements so as not to disadvantage an unrepresented party.

* The Hon Justice Jane Mathews is President of the Administrative Appeals Tribunal.

End-notes

1 This data does not include cases in which the applicant for review was a government agency or a company. Where an individual applicant had more than one case finalised within the period, only the first case result was included. An applicant was considered to be unrepresented if a private home address was given as the address for service, rather than a business address. The data does not take into account changes in representation during the course of an application.

2 Approximately 25 per cent of applicants were unrepresented in taxation matters, approximately 20 per cent in matters relating to compensation entitlements for Commonwealth employees and seafarers and approximately 15 per cent in matters relating to veterans’ entitlements.

3 The types of decisions under review which this figure is based on includes applications for review of decisions made under the Defence Force Retirement and Death Benefits Act 1973, the Defence Service Homes Act 1918, the Higher Education Funding Act 1988, the Social Security Act 1991, the Student and Youth Assistance Act 1973 and the Commonwealth Superannuation Acts.

4 This commitment is stated in the AAT’s Charter.

5 The information in the pamphlets and the AAT’s Charter are available in a range of community languages, in large print and on audio cassette.

6 See section 29(11) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

7 See section 37(1) of the AAT Act.

8 If telephone contact is not possible, the AAT sends the person a letter asking them to contact the Outreach Information Officer.

9 The video has also been subtitled in English for people with a hearing impairment and in eight community languages.

10 With the consent of the parties, the President of the AAT may direct that the proceeding be referred for mediation: see s34A of the AAT Act.

11 See s40(1A) of the AAT Act.

12 See s34(4) of the AAT Act.


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