28.07.2010
Internal review
9.86 Young people who wish to challenge administrative decisions about income support must first apply for internal review.[138] The reviewing officer is obliged to notify the applicant of any decision to affirm, vary or set aside the initial decision. The notification must give reasons for the decision and make the applicant aware of his or her right to take the matter further by applying for review to the Social Security Appeals Tribunal (SSAT) and, if still unsatisfied, to the Administrative Appeals Tribunal (AAT).[139]
9.87 The current process is protracted. Elaborate review arrangements particularly disadvantage child complainants notably those who are homeless.[140] The Inquiry has received evidence of young people who have been left without income for weeks, sometimes months, while the internal review process is completed despite DSS’s timeliness performance standard indicating that such reviews should ideally be completed within 14 days.[141]
9.88 Internal review applications by child income support applicants should be taken also to be applications for SSAT review. If internal review is not completed within two weeks, SSAT review should be activated automatically, the case given priority and the review completed within a short time frame.
Recommendation 31 Internal review applications by child income support applicants should be taken also to be applications for SSAT review. If internal review is not completed within two weeks, SSAT review should be activated automatically, the case given priority and the review completed within a short time frame.
Implementation. The Minister for Social Security and the Minister for Employment, Education, Training and Youth Affairs should develop legislation to this effect.
Merits review
9.89 Currently, if a child income support applicant is not satisfied with the result of an internal review, he or she can apply for review of the original decision by the SSAT.[142] Certain visa applicants can currently apply for merits review by the Immigration Review Tribunal (IRT) or the Refugee Review Tribunal (RRT) depending on the visa subclass.[143]
9.90 In its 1995 report, Better Decisions, the Administrative Review Council recommended the amalgamation of federal merits review tribunals into a single body, the Administrative Review Tribunal.[144] On 20 March 1997 the Attorney-General announced Cabinet’s in principle decision to implement this proposal.[145]
9.91 Better Decisions proposed that applicants would apply for review by a specialist division of the Administrative Review Tribunal rather than by the IRT, RRT, SSAT, Veteran’s Review Board or the AAT. In effect, this would expand and recast the AAT’s current jurisdictions. To date there is no decision by government concerning the Administrative Review Council’s further proposal that decisions of the divisions would be reviewable by a Review Panel with leave of the Administrative Review Tribunal President.[146] The Government proposes to insert a privative clause in the Migration Act 1958 (Cth) to limit judicial review by the Federal Court and High Court to the grounds of jurisdictional error and bad faith.[147]
9.92 It is still not clear how the Government intends to restructure the federal merits review system.[148] Whatever the alternative design, the proposed Administrative Review Tribunal should maintain initiatives taken by existing merits review tribunals, particularly the SSAT, to adapt their processes to children. For the purposes of children’s matters, the Inquiry favours the informal processes of the SSAT rather than the formality of the AAT.[149]
From a legal aid perspective, the costs of any dispute resolution involving children could be minimised by a less formal and children specific approach to merits review.[150]
9.93 To ensure that external review is accessible to young people, the proposed Administrative Review Tribunal should conduct matters involving child applicants or witnesses expeditiously and flexibly. For example, there should be scope for young people to make applications orally, either in person or by telephone.[151] In addition, government departments and review bodies should ensure that young people are given appropriate material explaining merits review procedures including how to prepare a case for hearing, the sorts of evidence that will be required and how to present it.[152] This does not mean that all young people should represent themselves in review hearings but rather that agencies should attempt to ensure that children fully understand the processes and can participate in them if they wish.[153]
9.94 The Inquiry considers that a flexible approach to processes is essential when dealing with child review applicants. For example, an advocate with continuing instructions should be able to pursue an external review application on behalf of a homeless child applicant with whom the advocate has lost contact. Similarly, to ensure that young people in rural and remote areas have greater access to merits review, community centres should be used to hear such matters where appropriate.
Recommendation 32 An access and equity strategy should be developed to ensure that children can participate properly in merits review. Publicity material should be prepared specifically for young people explaining merits review procedures.
Implementation. The proposed Administrative Review Tribunal should develop a young people’s access and equity strategy and publicity material aimed specifically at young clients.
Recommendation 33 Directions hearings and preliminary conferences for matters involving young people should include the provision of information directly to young people on tribunal practice, procedure and any evidentiary requirements.
Implementation. The proposed Administrative Review Tribunal should develop practice guidelines to this effect.
Recommendation 34 Merits review procedures should accommodate child applicants and witnesses appropriately. Hearings should be run in an informal and flexible manner. To this end, guidelines should be developed for handling applications by children.
Implementation. The proposed Administrative Review Tribunal should develop these guidelines in consultation with relevant interest groups.
Recommendation 35 The AAT program of using community centres in rural areas as venues for matters involving Indigenous applicants should be extended. These venues could also be used for matters involving child applicants in those areas.
Implementation. The proposed Administrative Review Tribunal should oversee the extension of this program.
Recommendation 36 An advocate with continuing instructions (or ones that have not been countermanded) should be able to pursue an external review application on behalf of a homeless child applicant with whom the advocate has lost contact.
Implementation. The proposed Administrative Review Tribunal should develop a practice direction to this effect.
[138] Student and Youth Assistance Act 1973 (Cth) Pt 9 Div I for Austudy and YTA. Social Security Act 1991 (Cth) Pt 6.1 for Special Benefit. On 20 March 1997 the federal Government announced that as part of a re-structuring of immigration review processes, internal review of visa application decisions will no longer be available: P Ruddock, Minister for Immigration and Multicultural Affairs Media Release 20 March 1997. Under the Migration Legislation Amendment Bill (No 4) 1997 Sch 1 the internal review unit of DIMA and the IRT will be amalgamated to form the Migration Review Tribunal.
[139] Student and Youth Assistance Act 1973 (Cth) s 308 for Austudy and YTA. Social Security Act 1991 (Cth) s 1244 for Special Benefit.
[140] See eg SSAT IP Submission 40.
[141] eg Marrickville Legal Centre IP Submission 221.
[142] Student and Youth Assistance Act 1973 (Cth) Pt 9 Div 2 for Austudy and YTA. Social Security Act 1991 (Cth) s 1245 for Special Benefit.
[143] Migration Act 1958 (Cth) ss 346, 411.
[144] AGPS Canberra 1995 rec 87.
[145] D Williams, Attorney-General and Minister for Justice Media Release 20 March 1997.
[146] See R Creyke ‘Administrative law: Developments under a Coalition Government’ (1997) 48 Admin Review 13, 16.
[147] Migration Legislation Amendment Bill (No 4) 1997 Sch 4. See also P Ruddock ‘The broad implications for administrative law under the Coalition Government with particular reference to migration matters’ (1997) 48 Admin Review 4, 12.
[148] See eg M Seccombe ‘Tribunals reversal a victory for Williams’ The Sydney Morning Herald 14 July 1997, 5.
[149] For a discussion of the AAT’s legalistic approach from a practitioner’s perspective see T Thawley ‘Adversarial and inquisitorial procedures in the Administrative Appeals Tribunal’ (1997) 4 Australian Journal of Administrative Law 61.
[150] Legal Aid & Family Services, Attorney-General’s Dept DRP Submission 83.
[151] Note, however, that the Administrative Review Council recommended that all applications to a review tribunal should have to be made in writing but not in any prescribed form: Report 39 Better Decisions: Review of Commonwealth Merits Review Tribunals AGPS Canberra 1995 rec 55.
[152] A McNichol DRP Submission 39 suggested that this could be a do-it-yourself kit similar to the tax pack released by the Australian Taxation Office each year to assist people to prepare their own income tax returns.
[153] Townsville Community Legal Service DRP Submission 46 expressed serious concerns about ability of children to represent themselves in front of tribunals.