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Appearing Before the AAT : a Non-adversarial Approach

The Hon. Justice Deirdre O'Connor

New South Wales Bar Association Seminar
Monday 10 May 1999

Introduction

Sir Gerard Brennan, when marking the 20th anniversary of the AAT, remarked that the AAT has always been in a curious position straddling the divide between executive power and the exercise of judicial power (1). He noted that this allowed two possible paths of development for the AAT - the administrative model or the judicial model. He readily acknowledges that under his Presidency the AAT followed a judicial model (2).

In the beginning of my first term as President of the AAT I initiated a far reaching review of the AAT. In the context of reporting after the review had been completed we said:

The Tribunal must carve its own place in the Australian system of government. In short it must become a first class tribunal rather than a second class court...Having defined the environment within which it operates, and in keeping with its proper role and function, the Tribunal must develop its own ethos. The Tribunal is not simply an administrative institution, nor is it simply a legal institution. It is in fact both and as such occupies a unique place in the Australian system of government and law.

It is an inescapable fact that the AAT exists within the current Australian legal system and the Tribunal's practices and procedures have been developed within those norms. The AAT is a legal institution and attempts to remove all traces of legal culture and procedure would be an unnecessary and disproportionate response to a perceived adversarial bias.

The question remains however to what extent is it appropriate or necessary to makes the AAT more inquisitorial in its approach to the resolution of the matters that come before it.

As I remarked in a paper I delivered in 1991 (3) there are two underlying themes common to both courts and tribunals. Firstly, both act in the interests of justice and second both aim to arrive at the correct conclusion (4). It is the process by which this occurs that provides the point of departure between the two.

Powers of the AAT

There is a perception that the AAT preserves significant hallmarks of an adversarial forum. Indeed a number of provisions of the AAT Act would appear to entrench traditional adversarial features:

  • Unlike other specialist tribunals where only one party appears (5) , both parties appear before the AAT.

  • The parties have a right to be represented before the AAT (6) and the common law implies that they have a right to be legally represented.

  • Hearings of the AAT are in public unless the AAT orders otherwise (7).

  • The AAT may take evidence on oath or affirmations (8).

  • AAT must afford natural justice or procedural fairness (9).

  • The AAT has a duty to give reasons (10).

Mitigating against a purely adversarial model is the fact that other sections of the AAT Act give the Tribunal extensive investigative and inquisitorial powers.

  • Proceedings in the Tribunal are to be conducted with as little formality and technicality and as much expedition as legally and practically possible and appropriate (11).

  • The Tribunal can conduct preliminary conferences (12).

  • Decision makers whose decisions are reviewed must lodge a statement of reasons and documents (13).

  • The Tribunal may require a decision maker to lodge additional documents (14).

  • The Tribunal may require a decision maker to lodge an additional statement relating to the reviewable decision (15).

  • The Tribunal has the power to summon a person to produce documents or to give evidence (16).

AAT Procedures

As indicated above in the exposition of the Tribunal's powers the Tribunal has the ability to modify its procedures depending on the exigencies of the particular case. An unrepresented applicant in the social security jurisdiction, with an intellectual disability, will require vastly different procedures compared to a case where two SCs are arguing about complex taxation law. That is not to suggest that either application is of any lesser importance to the applicant in each case. It is simply to demonstrate that procedural flexibility has a context. The context may be the characteristics of the party as well as the particular jurisdiction. Factors which may influence the approach that the Tribunal will take in relation to a particular proceeding include:

  • Representation;

  • If the party is represented, the nature of that representation, whether legal, lay advocate, friend or family;

  • Expert evidence;

  • Cultural and linguistic background;

  • Disability including intellectual or psychiatric disability (17);

  • Literacy and educational factors.

It is important that both the Tribunal and the other party are responsive to the particular factors which may potentially circumscribe one party's ability to participate in the proceedings. It is important that counsel understand the reasons why procedures are adapted in particular circumstances and work with the Tribunal to make sure that they are effective. I note comments made in a paper prepared by RRT members and staff given at a recent RRT members' conference. In the context of a discussion concerning the tension between inquisitorial decision making and adversarial review the authors commented, in relation to questions of "onus or proof" and similar civil law concepts:

The High Court in MIEA v Wu Shan Liang (Wu) recognised that administrative decision making is of a different nature to civil litigation. It rejected submissions about the correct decision making process for the Tribunal which drew too closely upon analogies in the conduct and determination of civil litigation. The court found that terms such as "evidence" and "balance of probabilities" borrowed from civil litigation discourse were of little assistance in the context of administrative decision making (18).

That is not to say that other concepts, particularly those related to procedural fairness are not directly relevant to administrative review, rather that a Tribunal must have the flexibility to conduct its processes in the most appropriate way. An example might helpfully demonstrate what I mean:

An unrepresented applicant who wishes to assert their entitlement to a particular benefit may not understand the factors they must establish for success. In the course of a hearing it may be of greater assistance to the Tribunal if the decision maker presents its case first - ie why the applicant is not entitled - and the applicant then responds to the respondent's case. I have no doubt that this approach will be more illuminating than if an unrepresented applicant is expected to establish the parameters of the case first.

The important point to be made is that the inquisitorial style powers in the AAT Act allow modifications to the classical adversarial model adopted by the Courts. These differences include:

  • Significant assistance provided to unrepresented applicants to ensure that there is an adequate presentation of their case;

  • Proceeding on the basis of written rather than oral statements, so long as there is no need for written statements

  • Directing parties to address specific issues

  • Determination of matters on the papers where appropriate

  • Utilisation of the expertise possessed by the Tribunal's expert members

Whilst I acknowledge that the extent of variance from the traditional adversarial model differs from case to case and member to member in general it can be seen that the Tribunal can be far more interventionist in its proceedings than the Courts traditionally have been.

Attitude of Superior Courts to an Inquisitorial Approach by the AAT

It could be observed that views expressed in a number of Federal Court decisions in relation to appropriate procedure in the AAT militate against a vigorous inquisitorial approach. In Sullivan v Department of Transport (19) Deane J said:

Circumstances may, of course, arise in which a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or an adverse ruling, with the manner in which a particular party wishes to present her case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the matter in which a party conducts her case may, no matter who well intentioned, be counter productive and indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend her an adequate opportunity to present her case. (20)

However other judges have taken a broader view of the Tribunal's power to intervene in hearings (21). Indeed the High Court in obiter dictum in the case of Bushell v Repatriation Commission (22) suggested that the AAT processes should be inquisitorial in nature even when in a hearing:

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, ..., the AAT itself may compel the production of further material.

Counsel's role

By the time counsel is briefed to appear at a hearing at the AAT the matter would already have been through an extensive pre-hearing process, including at least two preliminary conferences. If the parties have adhered to the requirements of the AAT's General Practice Direction, the end of the pre-hearing stage should see the issues refined, evidence required defined, witnesses identified and settlement fully canvassed.

What is then of greatest importance is how the hearing proceeds and the role of counsel in ensuring that the Tribunal makes the correct or preferable decision.

A number of you may be aware that the Commonwealth has released details of its model litigant policy. This policy could be said to be the articulation of an ethical framework that prescribes how counsel appearing on behalf of the Commonwealth ought to conduct litigation on behalf of the Commonwealth.

There are many aspects of the policy which commend themselves to advocates irrespective of whether one is appearing for the Commonwealth or not! I don't know how familiar any of you are with the policy but it states that:

The Commonwealth must act honestly and fairly in handling claims by:

  • promptly dealing with claims and not causing unnecessary delay

  • paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid;

  • acting consistently in the handling of claims

  • endeavouring to avoid ligation wherever possible;

  • where it is impossible to avoid litigation, keeping the costs of litigation to a minimum, including by:

  • not requiring the other party to prove the truth of the matter that the Commonwealth knows to be true;

  • not contesting liability if the Commonwealth knows that the dispute is really about quantum;

  • not taking advantage of a claimant who lacks the resources to litigate a claim;

  • not relying on technical defences unless the Commonwealth interest would be prejudiced by the failure to comply with a particular requirement

Principles enunciated in Australian Postal Corporation v Hayes and Anor

Those of you who regularly appear in the Tribunal may recall the case of Australian Postal Corporation v Hayes and Anor (23). In that case Wilcox J set aside a direction of the Tribunal that the applicant in a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) should be shown a video film at the commencement of her evidence before the Tribunal.

The respondent in the Tribunal proceedings, the Commission for Employees Compensation, urged that the video, which allegedly contradicted the applicant's' complaints as to her symptoms and incapacities, should not be shown to her until she was under cross examination. It was argued before Wilcox J that the Commission would be so impeded in the presentation of its case if it were not able to test the applicant's credibility in the manner it proposed, that it would amount to a denial of natural justice.

Wilcox accepted this proposition and noted that in a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of her symptoms is likely to be critical, the right to cross examination effectively must include the right to test the credit of the claimant.

Wilcox distinguished between the situation where the video evidence had come into existence after the primary decision had been made and at the behest of a person other than the primary decision maker (as was the case here) from that where the document in question was used as a basis for the initial decision and was therefore required to be lodged with the Tribunal under section 37 of the AAT Act. His honour went on to observe that even in the latter situation if it appeared that the production of a particular document at a particular stage to a particular person would result in a denial of procedural fairness, the Tribunal may make a direction restricting access at the stage. However he considered that this would be an exceptional case.

Hayes was considered by the former President of the Tribunal Mathews J in the matter of Re Taxation Appeals NT/281-291 (24). In that case her honour remarked that

I do not understand Wilcox J in Hayes to be asserting as a general proposition that all documents to which a party would otherwise be entitled can routinely be withheld because it might alert that party to potentially adverse material and thus deprive a prospective cross examiner of the benefit of surprise.

I agree with her Honour's remarks that Hayes should be seen as the "high point" for a party who is seeking to have otherwise relevant documents withheld from disclosure to another party.

At 280 she said that:

The overriding consideration is that of procedural fairness. Would a party be so impeded in the presentation of its own case and in the challenging of its opponent's case that fairness dictates that relevant material is withheld from the opponent? ...It certainly would not be sufficient for a party merely to show that the material was capable of contradicting another party's version, even accepting that the credibility of that other party was critical to the case.

In my view it is absolutely crucial to the function of the Tribunal, a tribunal of fact which is charged with making the correct or preferable decision, that all the material relevant to the resolution of the application is placed before the Tribunal.

The Tribunal is empowered to stand in the shoes of the original decision maker and exercise all powers that were available to him or her to make the correct or preferable decision. It is the duty of counsel to assist the Tribunal fulfil this function. Material that is relevant to the determination of those issues should be disclosed unless there is a very sound basis for its exclusion. If exclusion is requested by counsel, argument should be put to the Tribunal at the earliest opportunity as to why material should not be placed before either the other side or indeed the Tribunal itself.

Reforms to procedures: Expert Evidence

An area that warrants attention is that of the taking of expert evidence in the Tribunal context. As you would all be aware it is the role of an expert witness to assist the tribunal, just as it is the role of an expert witness to assist the court. A corollary of this duty is that the evidence given by the expert must be their independent opinion and it should not be coloured by the outcome desired by the party and their representative. In other words the expert cannot be partisan.

The function of an expert witness is to furnish the judge or jury [tribunal] with the necessary scientific criteria for testing the accuracy of their conclusion, so as to enable the judge or jury [tribunal] to form their own independent judgment by the application of those criteria to the facts proved in evidence. (25)

Expert evidence plays a significant role in AAT proceedings, in particular review of decisions concerning Commonwealth employees' compensation or veterans' entitlements involve extensive medical evidence and a significant number of medical experts give oral evidence before the Tribunal. Other types of expert evidence are significant in cases such as customs, tax and securities and therapeutic drugs registration.

Based on figures done by the ALRC in their national survey of 1588 AAT files undertaken for the adversarial reference it was revealed that in employment and retirement benefit cases 83% of cases involved the use of at least one expert, providing an expert report or appearing to give oral evidence at a hearing, or both. The typical compensation case involved 5 experts. Similarly 78% of veterans' entitlements cases involved the use of at least one expert and the typical case involved 2 experts.

There are some differences between the tribunal's approach to expert evidence and those of the courts. In the first place the tribunal takes an active role in the preliminary conference stage of defining the matters in dispute and may indicate to the parties that other additional information (such as medical reports) ought to be obtained and brought into evidence. This is more likely to occur when one party is unrepresented. Where both parties are represented the parties are likely to exercise a similar degree of control over the adducing of expert evidence as is the case before the courts.

Current AAT procedures in relation to expert evidence

Currently AAT procedures control the timing of disclosure of expert reports. The General Practice Direction requires the exchange of expert reports at an early stage of proceedings. In particular all of the applicant's expert reports must be exchanged 14 days prior to the second conference taking place. A respondent must file any expert reports 7 days prior to the second conference.

In relation to medical witnesses specifically if a written report has been lodged with the Tribunal, the Tribunal will not generally require a doctor to give oral evidence. A party may require the attendance for cross-examination of a medical practitioner making such a report. The General Practice direction states that failure of the medical practitioner to attend will not in itself render the report incapable of being taken into account. Such failure may however be relevant in assessing the weight to be given to such a report. Where a medical practitioner making a report is cross-examined, the party tendering the report may re examine the witness.

Apart from the procedure set out above which is contained in the General Practice Direction, there is no other specific statutory or practice notes that deal with expert evidence. The AAT has a broad discretion in relation to the procedure that it may follow. As a consequence from time to time members have employed the following strategies:

  • some members control the deliberations of expert witnesses for example by requiring that parties experts meet to identify and attempt to narrow the issues in dispute;

  • some members direct the way in which expert evidence is to be presented, for example by requiring that expert evidence is to be given in written form or in a joint report by experts appointed from both sides

  • some members direct the way in which expert evidence is presented in hearings, for example by limiting the number of expert witnesses and the extent of cross examination of experts.

It is my intention to examine the issue of the taking of expert evidence in more detail so that the Tribunal may consider whether it is necessary to reform its procedure. I note that the Federal Court have developed guidelines which outline the Court's expectations in relation to the role of experts and the adducing of expert evidence. (26)

In conclusion I am in agreement with a former member of staff of the Tribunal where she commented in an unpublished paper (27) that:

The issue of appropriate procedures in the AAT is not simply a choice between two extremes - the adversarial process inherent in the court system and the inquisitorial process so often seen as appropriate to an investigative tribunal. The context in which administrative review operates, the cultural expectations of those who are involved in the process, and the overarching paradigm of judicial decision making which forms the basis of the rules of procedural fairness combine to form a matrix of complex alternatives for Tribunal members faced with choosing appropriate procedures. The issues before the Tribunal, the parties involved in particular matters and the skills and knowledge of the Tribunal member hearing an application will all have a bearing on the level of intervention and the degree of formality of the process.

You may think that much of this paper has been about expectations that I have about the role of counsel in Tribunal proceedings, for my part it is my challenge to ensure that AAT members are sufficiently skilled to adopt appropriate procedures to effect, in every case, high quality, effective and timely administrative review.

Footnotes

(1) Brennan Sir Gerard, Twentieth Anniversary of the AAT: Opening Address; The AAT -Twenty years Forward: passing a milestone in Commonwealth administrative review, Australian Institute of Administrative Law 1996 at p5

(2) ibid

(3) O'Connor, "Evidence and the Sacred Cow -The Efficacy of Alternative Models", AIJA 10th Annual Conference, September 1991

(4) And in the administrative review context the "correct or preferable" conclusion.

(5) Such as the Social Security Appeals Tribunal, the Refugee Review Tribunal and the Immigration Review Tribunal (Migration Review Tribunal which replaces the IRT and commences on 01/06/99).

(6) Section 32 of the AAT Act 1975

(7) Section 35(1)

(8) Section 40(1)(a)

(9) Section 39

(10) Section 43(2)

(11) Section 33(1). The import of this section is that the Tribunal is not bound by the rules of evidence. The Tribunal can and does have regard to hearsay evidence and it does not apply the best evidence rule.

(12) Section 34

(13) Section 37(1)

(14) Section 37(2)

(15) Section 38

(16) Section 40(1A)

(17) Recently the AAT has conducted awareness training for members and staff which focused on intellectual disability. The purpose of the training was to give members and staff strategies to assist a person with an intellectual disability, and their carers, effectively participate in tribunal proceedings.

(18) Bacon et al "Justice and Fairness in an Inquisitorial Tribunal" Refugee Review Tribunal Members' Conference March 1999, unpublished

(19) (1978) 1 ALD 383

(20) Ibid 402-403

(21) See Smithers J in Sullivan and in Drake and the Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; Adamou v Director General of Social Security (1985) 7 ALN N 203

(22) (1992) 175 CLR 408 at 424-425

(23) (1989) 23 FCR 320

(24) 21 AAR 275

(25) Davie v Edinburgh Magistrates (1953) SC 34 at 40

(26) In particular I am supportive of the requirement that:

There should be attached to the report, or summarised in it, the following: (i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumptions upon which the report proceeds; and (iii) the documents and other material which the expert has instructed to consider.

(27) Rosser K, "Procedure in the Administrative Appeals Tribunal: Implications for Procedural Fairness", Unpublished 1997