ALRC Issues Paper 24 

Representation and participation

Introduction
     
5.1 Legal representatives play a prominent role in most court proceedings.
In contrast, parties in tribunal proceedings are much more likely not to be
represented or to have representatives who are not lawyers.
  
5.2 In some tribunals, the review applicants and the respondent government
agency are entitled to be represented and representatives play a full part
in tribunal proceedings. In others, applicants and the respondent agency
have no right to be represented in the hearing. Their representatives may
be restricted to answering questions from tribunal members, with no right
to cross-examine witnesses or address the tribunal. In certain proceedings,
even where the government agency is a full party, it does not seek to put
its view separately from the documentary material it provides to the
tribunal.
  
5.3 This chapter describes the role of representation and party
participation in various merits review tribunal proceedings. The issues
raised include the implications of restrictions on representation (or on
the participation of representatives) in review tribunal proceedings,
including on the outcomes of cases and the quality of decision making. The
chapter also discusses the particular requirements of unrepresented parties
and how tribunals respond to those needs.
    
Representation in tribunal proceedings

Parties
     
5.4 There are differences between federal merits review tribunals
concerning who are the parties to review proceedings. For example, strictly
speaking, there are no 'parties' in proceedings before the IRT or the RRT.
The applicant is simply entitled, where there is to be a hearing, to appear
to give evidence and to have another person present to 'assist' them. DIMA
is not a party to the proceedings, so the question of departmental
representation does not arise. In contrast, the applicant for review and
the agency that made the decision subject to review are parties to
proceedings before the AAT. Other persons whose interests are affected by
the decision under review may apply to the AAT to be made a party[1] and
the Attorney-General may also intervene in proceedings.[2]
    
Rights of representation
     
5.5 Where there are 'opposing' parties in tribunal proceedings, there may
be differences in the rights of representation of parties before different
tribunals. For example, all parties to AAT proceedings have a right to be
represented, including at the hearing.[3] In SSAT proceedings, while the
respondent agency is a party[4] and may make written submissions, the
agency (unlike the applicant) cannot make oral submissions or be
represented at the hearing.[5] However, if there is a move to a one tier
system for social security external review, the current restrictions on
agency representation may be removed.[6]
    
Types of representation
     
5.6 Where representation is permitted, lawyers are generally the advocates.
Specialist non-legal representatives such as tax or migration agents,
accountants or union officials provide advisory or advocacy services in
certain types of tribunal proceedings. Advisory or advocacy services may be
provided through community legal centres, specialist welfare rights or
immigration advisory services. Other applicants may simply be represented
or assisted by a relative or a friend or other lay person.[7]
    
Restrictions on representation
     
5.7 The right to legal and other representation varies among federal merits
review tribunals. In some tribunals, limitations or restrictions on legal
and other representation have been introduced, ostensibly to reinforce the
informal, non adversarial character of tribunals.[8] For example, parties
to proceedings before the VRB may be represented at hearings, but not by
legal practitioners.[9]
  
5.8 In some tribunals, such as the IRT and RRT, the participation of
advisers or assistants at hearings is limited. There are generally no
provisions which restrict applicants from obtaining legal or other
assistance to prepare or present their case prior to the hearing.[10]
However, in practice, limitations on grants of legal aid[11] for tribunal
proceedings restrict the availability of representation. The time limits
applicable for filing review applications may also prevent some potential
applicants from obtaining representation.[12]
    
Legal representation

History

5.9 Different perspectives about the role legal representation should play
in review tribunal proceedings are reflected in the foundation documents of
the administrative review reforms of the 1970's, the 'Kerr[13] and
'Bland[14] reports.
  
5.10 The Kerr Committee expected that, although other forms of
representation might be permitted, generally applicants would be
represented by counsel or solicitors. The report commented that, while the
idea that persons should not need legal representation before tribunals
because of the informal atmosphere was a good idea in theory
 
[i]n practice it does not work well. Many parties to tribunals hearings are
ordinary citizens who are not skilled at presenting fact and argument.
Furthermore, some of them are quite inarticulate.[15]
  
5.11 The Bland report offered a different emphasis, hoping that the
development of appropriate procedures by tribunals would create a situation
in which many seeking review would be content to represent themselves. The
report stated that 'the present disposition to have or expect legal
representation generally before tribunals is undesirable'.[16] The problems
of complex cases, where the applicant would need to be represented by 'a
lawyer or an expert in the field', would be met by empowering the tribunal
to determine that no costs of representation should be allowed, or that
costs should be allowed only for the level of representation the tribunal
thought fit.[17]
    
Current levels of representation
     
5.12 Most applicants before the AAT are represented, usually by lawyers. An
AAT survey of individual applicants who had their applications finalised in
the period 1 April 1995 to 31 March 1996, found that 67% of applicants were
represented and 33% were unrepresented. The frequency of representation
ranged from 80% of applicants in the veteran's benefits jurisdiction
through to 54% in tax matters and 13% in social welfare matters.[18]
  
5.13 The survey did not distinguish between legal and non-legal
representatives. Some applicants may have been represented by
representatives such as specialist veterans' advocates, tax agents,
accountants or customs brokers. However, a 1994 study in the Brisbane
registry of the AAT found that 80% of applicants who were represented had
lawyers to represent them.[19]
  
5.14 Some figures derived from the Commission's AAT file survey are
presented in Appendix D. The AAT review jurisdictions with the highest
level of representation[20] are customs and excise (95%), veterans' affairs
(90%), employment and retirement benefits (86%) and taxation administration
(72%). In contrast, only 37% of applicants in social welfare matters are
represented.
  
5.15 In the AAT, the respondent government agency is almost always
represented.[21] Representation may be provided by a legally qualified
officer from the agency, but agencies are often represented by outside
lawyers, including senior counsel.[22]
  
5.16 Around 60% of applicants in the RRT are represented.[23] However,
applicants are counted as represented where they nominate a migration agent
as assisting them. In many cases, the agent's involvement is limited to
assisting with the compilation of the application form and does not involve
preparation of submissions or appearance at the hearing.[24]
   
Q.5.1 What factors account for the high levels of legal representation in
customs, veterans', compensation, and taxation matters? What factors
account for the low levels of legal representation in some other review
jurisdictions?
      
Restricting legal representation
     
5.17 There has been some criticism of the role of lawyer representatives in
review tribunal proceedings. Lawyers have been credited with responsibility
for tribunals, notably the AAT, operating in unnecessarily complex, formal,
and costly ways.[25]
  
5.18 One response has been the imposition of restrictions on lawyers'
participation in tribunal proceedings. For example, CROSROMD noted that one
of the original intentions in creating the IRT was to limit the need for
lawyers to be involved in proceedings and help make proceedings less
legalistic, daunting, slow and expensive.[26]
  
5.19 In New South Wales, such concerns appear to have been the reason for
enacting provisions of Administrative Decisions Tribunal Act 1997 (NSW)
(the ADT Act), which allow legal representation to be restricted.
 
Community organizations submitted that legal representation should be
allowed by leave of the Tribunal if not to do so would prejudice the
applicant. They were concerned that the presence of lawyers as a matter of
course would tend to make the tribunal more expensive and adversarial, and
therefore less accessible. However, legal professional bodies took the view
that giving the ADT the power to disallow lawyers would discriminate
against the legal profession and ordinary citizens taking action against
government.[27]
  
5.20 The ADT Act allows legal and other representation by providing that a
party to proceedings before the tribunal may be represented by an 'agent'.
However, the ADT Act also provides that the ADT may order that the parties
may not be represented by an agent of a particular class, for example, by a
lawyer, for the purpose of the presentation of oral submissions to it.[28]
In making an order to disallow oral presentation of submissions by
representatives, the ADT must have regard to a number of factors such as
the complexity of the matter, whether each party has the capacity to
present their own cases without representation and the type of
proceedings.[29]
  
5.21 The ARC rejected the idea that legal representation should be excluded
or limited by law.
 
If there is a problem with certain practices that affect complexity cost
and formality, then any solution should address those practices directly,
regardless of who engages in them. There should be no discrimination
against any particular group [of representatives] on the basis of an
assumed correlation with the problem.[30]
  
5.22 The ARC recommended that there should be no prohibition against
lawyers, or any particular group advising or representing parties in review
tribunal proceedings to the extent that advice and representation is
permitted in the relevant tribunal.[31] The Guilfoyle review agreed with
this approach in relation to social security review and appeals.[32]
    
Restricting non-legal representation
     
5.23 Federal merits review tribunals do not place any particular
restrictions on non-legal representation.[33] However, in some other
jurisdictions non-legal representatives are restricted.
  
5.24 For example, at the hearing of a proceeding before the Victorian
Administrative Appeals Tribunal, a party may be represented by a legal
practitioner or by some other person. However, the legislation provides
that representation by a person other than a legal practitioner at a
hearing in its general division is only permitted with the consent of the
tribunal.[34]
  
5.25 The Western Australian Tribunals Review recommended that a similar
legislative provision apply to representation before a proposed new
administrative appeals tribunal in Western Australia, with the added
restriction that representation by a non-lawyer who has been given leave to
represent a party before the tribunal be subject to the condition that the
representative not appear for fee or reward.[35]
   
Q.5.2 Do high levels of legal representation hinder the development of less
formal or more effective dispute resolution approaches?
  
Q.5.3 Are there categories of federal review tribunal proceedings in which
representation should be restricted? If so, which proceedings and how
should representation be restricted?
      
Participation of representatives
     
5.26 Where representatives or assistants are permitted to attend hearings,
there may be restrictions on their participation. The ARC's Better
decisions report considered the role of representatives in hearings,
conferences and preliminary hearings.
 
The question that arises is whether, and to what extent, a person
representing or assisting the applicant should be able to:
 -  make an introductory statement,speak to the applicant, or 
- answer the applicant's questions directed at that person
- request an opportunity to advise the applicant in private
- answer questions on the applicant's behalf if the applicant requests
- ask questions of the tribunal
- suggest lines of inquiry and possible evidence
- make submissions at any stage during the hearing as to the law or facts
in issue
- ask questions of any witnesses or agency officers (if present)
- make a closing statement?[36]

5.27 The ARC considered that it was relatively uncontroversial that
representatives or assistants should be able to make an introductory
statement, speak to and answer the applicant's questions and request an
opportunity to advise the applicant in private. The ARC noted concerns that
assistance beyond this sort of very limited involvement by representatives
might lead to an undesirable 'formalization' of the hearing. In particular,
concerns were raised with the ARC that too much reliance would be placed on
legal rules and adversarial techniques in circumstances where such reliance
was not appropriate.[37]
  
5.28 However, because adversarial techniques can be very important to some
applicants and assist the tribunal in some circumstances the ARC
recommended that [t]he extent to which an applicant's representative or
assistant can participate in review proceedings should be left to the
discretion of the tribunal. There should be no statutory limitations on the
role that such representatives or assistants are allowed to play.[38]
  
5.29 The Guilfoyle review agreed with this conclusion and recommended that
the extent to which applicants' representatives or assistants can
participate in proceedings within the Income Security Division of the
proposed ART should be left to the discretion of the tribunal.[39]
    
The immigration and refugee tribunals
     
5.30 Applicants are entitled, while appearing before the IRT, to have
another person present to 'assist' them,[40] but the Migration Act imposes
specific restrictions on the active participation of assistants at IRT
hearings.
  
5.31 In its 1992 report, CROSROMD observed that to permit an applicant's
adviser to examine or cross-examine witnesses would undermine the benefits
of a non-adversarial approach to review of migration decisions. At the time
of the report, the Act provided that persons appearing before the IRT or
the RRT to give evidence were 'not entitled' to be represented or to
examine or cross-examine any other person.[41] CROSROMD recommended that
the Migration Act should specify that advisers may, with the leave of the
IRT, make oral submissions in exceptional circumstances but not examine or
cross-examine witnesses.[42]
  
5.32 In the Tordo case,[43] decided in 1993, the issues included whether
the applicant had been validly arrested. The IRT gave the lawyer for the
applicant an opportunity to propose questions for witnesses (in this case,
officers of the department) after the tribunal had completed its own oral
examination. The tribunal then assessed each question to decide whether it
was relevant and where it so decided, proceeded to ask it.
  
5.33 The Federal Court held that this course was open to the tribunal.
Parliament had conferred extremely wide powers on the IRT to decide what
method of conducting the hearing would be the most suitable and to do so in
its discretion.[44] In the circumstances, the IRT could reasonably consider
that the course it took was likely to assist it to provide a mechanism of
review that was 'fair, just, economical, informal and quick', and would not
interfere with its duty to act according to 'substantial justice and the
merits of the case'.[45] Furthermore, the Court observed, the Act did not
require the IRT to ask all the questions. The tribunal could have permitted
the lawyer to call evidence and cross-examine witnesses himself.[46]
  
5.34 In response, amendments limiting the participation of representatives
or other persons assisting applicants in the IRT (referred to in the
Migration Act as 'assistants') were introduced in 1995.[47] Assistants are
not entitled to present arguments to the IRT, or address the tribunal,
except in 'exceptional circumstances'.[48] The tribunal has no discretion
to depart from this rule.[49]
  
5.35 According to the IRT's Interim Practice Direction 'exceptional
circumstances' may be interpreted to mean circumstances out of the ordinary
but do not include an applicant's inability to communicate in English or
inability to understand Australian migration law.[50] The explanatory
memorandum to the amending legislation described a clear example of
'exceptional circumstances' as one where an applicant is unable to
effectively communicate with the IRT because of a physical or intellectual
disability or psychiatric condition.[51]
  
5.36 The provision does not restrict all participation by assistants. The
restrictions apply to formal hearings for the taking of evidence and do not
include appearing before the tribunal in preliminary meetings, where
advisers can fully participate.[52] The restrictions were not intended to
prevent assistants from commenting on minor and routine matters which could
assist the tribunal in its work.[53]
  
5.37 According to the Interim Practice Guideline an assistant may be asked
at any stage in the proceeding, including when witnesses are questioned and
at the end of the hearing, whether there are any questions they would like
the tribunal to ask the applicant an assistant may be asked at any stage in
the proceedings whether there are any documents, or parts of a document, to
which the tribunal's attention should be drawn
 the tribunal may note that if there are any comments the assistant wants
to put in writing to the tribunal following the hearing the tribunal will
consider them the applicant and assistant may be advised at the hearing
that written submissions from the assistant, or prepared by the applicant
with the help of the assistant will be accepted.[54]
   
5.38 When appearing before the RRT to give evidence, the applicant is not
entitled to be represented.[55] Advisers in RRT proceedings are not
expressly prevented from addressing the tribunal in all but exceptional
circumstances and are usually given the opportunity to address the tribunal
and to make oral submissions in relation to matters arising from the
evidence taken at the hearing.[56] The presiding member may also seek an
indication from an applicant's adviser on whether the member should pursue
any other specific or general issue or whether the member should clarify
any aspect of the evidence.[57]
   
Q.5.4 What has been the impact of rules and practices concerning
representation in federal review tribunals?
  
Q.5.5 In particular, does the presence or absence of representatives serve
to enhance or detract from the efficiency and fairness of tribunal
proceedings?
  
Q.5.6 How does the presence or absence of representatives affect
applicants' levels of satisfaction with tribunal processes?
  
Q.5.7 What is the impact of restricting the role of representatives?
  
Q.5.8 If the role of representatives is limited to preparing written
submissions before or after the hearing does this, in fact, increase the
private legal costs of applicants as compared to where the representative
has a speaking role in a hearing?
      
Representation in the ART
     
5.39 The Government is considering whether the role of representation and
the level of party participation in review proceedings should continue in
its present varied forms in the proposed divisions of the new ART.
Questions arise concerning whether present restrictions applying in IRT,
RRT and SSAT proceedings should be lifted and the rules on representation
and participation made consistent with the general discretion presently
exercised in the AAT, or whether new general restrictions should apply to
ART proceedings.
  
5.40 For example, representation could be allowed only in exceptional or
prescribed circumstances or where agreed by the Minister responsible for
the respondent government agency or for the ART. Legislation or practice
directions could address the type of representation allowed, the extent of
that representation and the factors which Members must take into account in
exercising a discretion to allow representation.[58]
  
5.41 One option where representation is restricted would be to permit an
agency to request the ART to allow the agency and the applicant to make
submissions or appear with or without representation where a case raises
precedent issues or is to be determined by a multi-member panel.
  
5.42 Legislation or practice directions could also provide that, where
representation is permitted, it is permitted to all parties on equal terms.
Parties could always have the option of not being represented if they do
not consider it necessary.
   
Q.5.9 What provisions should apply to representation and the participation
of representatives in proceedings before the proposed ART?
  
Q.5.10 Should existing differences in rules and practices concerning
representation and participation in the different review jurisdictions be
retained or lifted? Should new general restrictions apply? What, if any,
changes should be made and how?
      
The Effects of Representation
     
5.43 Applicants without representation may have problems understanding
their rights to apply to a tribunal for review of a decision and how to
make an application for review. Without advice about the relevant law or
practice, applicants may have problems in obtaining the information and
evidence necessary to establish their case and in understanding pre-hearing
processes. At hearings, applicants may have difficulty in  understanding
the procedure followed during the hearing communicating the content of
their case introducing and closing their case and responding to
cross-examination where this is permitted and understanding the relevance
of legislation and case law.
   
5.44 Representatives may be better able to explain evidence to the
tribunal, challenge evidence, make submissions on law or facts and
generally to ensure that there are no misunderstandings about the content
of the applicant's case.
  
5.45 At the end of the proceedings an unrepresented applicant may not fully
understand why and how the tribunal has reached its decision, thus
affecting their perceptions of the fairness of the proceedings.
    
Representation and outcomes
     
5.46 One of the possible implications of parties being unrepresented is
that parties without representation may be less successful than if they
were assisted by a representative. One large scale British survey of
tribunal representation found that applicants without representation were
less successful than those with their own representative.[59]
  
5.47 Lack of representation is sometimes said to ensure informality in
proceedings, but while the ability to participate as an unrepresented party
may lead to higher levels of satisfaction with the process it may be at the
expense of a favourable outcome.
The appearance of informality in tribunals may encourage applicants to
assume they can simply tell the tribunal their stories in their own way,
but such accounts are all too often of little legal relevance to a tribunal
whose focus of interest is dictated by legislative criteria. ... Applicants
who have told their stories, whether irrelevant or insufficient, may feel
satisfied with the process, but lose their case.[60]
  
5.48 Federal merits review tribunals are concerned to ensure that
unrepresented applicants are not disadvantaged. Some tribunals report
information on the relative success rates of applicants who are advised or
represented and those who are not. The figures on case outcomes for
represented and unrepresented applicants before tribunals provide a mixed
picture.
  
 The IRT reported that in 1995 96 applicants for whom an adviser was
appointed received a favourable decision in 63% of cases. Applicants
without an adviser received a favourable decision in only 42% of cases.[61]
In 199 97, this variation reduced, with favourable decisions in 41% of
cases where an adviser was appointed and 35% of cases with no adviser.[62]
 In 1993 94, the RRT reported that while decisions were affirmed (that is,
affirming the DIMA finding that the applicant is not a refugee) in 86% of
all cases, where applicants were represented the decision was affirmed in
only 60% of cases.[63]
 A survey of 1,022 individual AAT applicants conducted by AGB McNair
reported that positive case outcomes were experienced by 72% of represented
applicants compared to 45% of those not represented.[64]
   
5.49 These figures suggest some statistical advantage in having an adviser
or representative, although any assessment should have regard to the
variety of factors associated with representation and with successful case
outcomes.
  
5.50 Lawyers generally may be unwilling to represent applicants with
unmeritorious cases. In those limited areas where legal aid is available,
applicants with meritorious cases may find it easier to obtain grants of
legal aid or other legal assistance. On the other hand, welfare rights
organizations do not provide representation in clearly meritorious cases
before the SSAT, as the applicants should be able to succeed on their own.
They reserve assistance for borderline cases.
  
5.51 Some of the other factors which have an impact on the effect of
representation, or its absence, on case outcomes include
- the individual capabilities of the unrepresented applicants, including
their language skills
- the complexity of the proceedings
- the extent of assistance, if any, provided by tribunal staff, members and
the respondent agency
- quality of representation, particularly in areas where the law and
practice are complex and changing[65]
- the advice or other assistance available through community legal centres
and specialist advisory services
- the legislation governing the decision making process, which may be
deliberately drafted to limit the numbers of applicants qualifying for
benefits or a visa.
   
5.52 Applicants in particular jurisdictions have particular needs. For
example, in the immigration jurisdiction, applicants often have poor
language skills and little understanding of the Australian legal system and
are faced with complex and changing immigration legislation. Often
applicants fail to understand why they were not granted a visa and may be
unaware of the criteria required or how to meet these criteria.
  
5.53 There has been no significant research on the quality of presentation
of cases by unrepresented applicants before federal tribunals. The Centre
for Court Administration and Policy at the University of Wollongong and the
Civil Justice Centre are currently working on a project entitled
'Delivering justice to litigants in person' which is investigating the
experience of unrepresented applicants in the AAT and the Federal Court.
    
Representation and perceptions of fairness
     
5.54 Whether or not applicants are actually disadvantaged, some applicants
may perceive disadvantages in being unrepresented in tribunal proceedings,
particularly where the respondent agency is represented. Of the respondents
to the AAT's client satisfaction survey who indicated whether or not they
were disadvantaged by having to present their own case, 38% (380) felt that
they were disadvantaged. Of the cases in which an outcome negative to the
applicant was reached, 46% felt they were disadvantaged.[66]
  
5.55 When dealing with unrepresented applicants, tribunal members have
varied roles which may also lead to perceptions of unfairness. Richard
Phillipps, formerly a Senior Member of IRT has observed that, at different
points in the decision making process, the tribunal member may have to
assist the applicant by asking questions and suggesting ways in which the
applicant might reinforce or clarify parts of his or her argument, and test
the applicant's arguments by asking the applicant questions, by seeking
alternative sources of expert opinion, for example, independent medical
reports or by testing for document fraud.
   
5.56 Finally, the tribunal member must decide the case based on the
conflicting sources of information, including information which may have
been obtained at the tribunal's request.[67] 
It is not surprising, in such cases, that applicants become uncertain,
confused and suspicious about the actual role of the tribunal. Why is the
tribunal member who, five minutes earlier, was asking questions in an
apparent attempt to reinforce the applicant's case, now asking questions in
the style of a cross-examiner in an apparent attempt to tear down the
case?[68]
   
Q.5.11 Are there particular types of cases, such as where the law or facts
are complicated or credibility is at issue, where applicants and the
tribunal process would be better served if the applicants or other parties
were represented?
  
Q.5.12 What types of representation are best suited to tribunal
proceedings? Do lawyers, specialist lawyers, specialist non legal advisers
or advocates work best?
  
Q.5.13 Do applicants before tribunals perceive themselves to be
disadvantaged if they do not have a representative? Are they at a
disadvantage?
      
Assisting unrepresented applicants
     
5.57 The proportion of applicants who are represented varies considerably
among tribunals but all federal merits review tribunals assist
unrepresented applicants by providing guidance and support for applicants.
Assistance commonly includes providing interpreters and translation
services and assigning responsibility for liaison with applicants to a
specific tribunal officer or small team.[69]  
 The IRT uses case officers and client service officers, preliminary
meetings and other contact with applicants to assist them to present their
cases.
 The SSAT runs informal sessions as required for staff of Welfare Rights
Centres who often provide information and advice to applicants. There is
also an information handbook and a series of brochures in a question and
answer format on telephone hearings, hearings and general information on
appeals.
 The NNTT provides assistance to unrepresented parties through seminars,
brochures, community liaison visits, and information sessions.[70]
 The RRT has a number of brochures and information that can be accessed by
computer to assist unrepresented applicants. There is a general information
pamphlet, a pamphlet about the hearing, a comprehensive handbook, an
internet homepage and public access computer terminals in its Sydney and
Melbourne registries.
   
5.58 The ARC recommended that review tribunals should provide appropriate
assistance to applicants, particularly those who are unrepresented and that
this assistance should be characterized by as far as practicable, a single
point of contact throughout the review process appropriately designed
literature and other explanatory material reimbursement of travel and
incidental expenses for applicants without adequate means.[71]
     
The Administrative Appeals Tribunal
     
5.59 The way in which the AAT responds to unrepresented applicants is
particularly interesting because the respondent agency is usually
represented, underscoring the inequality of resources and legal skills
between applicant and agency. As the AAT is a relatively 'court-like', the
AAT experience may provide lessons for courts in dealing with unrepresented
parties, for example, with judicial review applicants in the Federal Court.
  
5.60 The AAT's General Practice Direction applies only to applications made
by applicants who are represented. This means, for example, that
unrepresented applicants are not required to provide written statements of
issues and contentions as required by the General Practice Direction.
Instead, face-to-face preliminary conferences are used.
  
5.61 The AAT enables and encourages parties to pursue their application
without representation and provides assistance to unrepresented applicants
in the following ways.[72]  
 Unrepresented applicants are provided with a series of information
pamphlets explaining each stage of the review process, together with the
AAT's Charter, a list of Legal Aid offices, community legal centres and
other service and welfare organizations which may be able to assist the
person.
 After the 'T' documents (the agency's statement and reasons and other
relevant documents) are received, the AAT's Outreach Information Officer
contacts an unrepresented party by telephone to provide information about
AAT processes. A video about AAT procedures may also be provided.
 At conferences, the convening member or conference registrar explains the
AAT's conference processes, answers questions and generally ensures that
unrepresented parties participate fully in all discussion about their
cases. Members or conference registrars may help unrepresented parties to
understand the issues by discussing the merits of the case and identifying
possible areas of conflict in the evidence to be presented. In some
circumstances, the AAT may take more active steps to assist applicants in
preparing the case, for example, by helping to arrange for witnesses to be
called on behalf of the applicant or for further medical or other reports
to be obtained.
 On the day of the hearing, the members' associate or the tribunal
attendant familiarizes the person with the hearing room and will often
explain the likely course of the hearing. Hearing procedure will usually be
modified. For example, the order of presentation may be reversed so that
the respondent agency presents its case first. Steps may be taken to reduce
the formality of the hearing, for example, by not allowing parties to stand
when addressing the tribunal and not requiring the unrepresented party to
give evidence from the witness box.[73]
   
5.62 The need for procedural flexibility in AAT hearings has some
endorsement from the Federal Court.[74] At the hearing where the material
placed before AAT by an unrepresented applicant is insufficient for the AAT
to make a decision, the AAT may still order steps to be taken to remedy the
deficit. For example, in one case an applicant was endeavouring to show
that a psychiatric condition was related to her employment but did not
fully understand the importance of producing medical evidence of her state
of health during the relevant period. The AAT sent a detailed letter to
both parties advising precisely what medical evidence the applicant should
agreed to place before the AAT. The AAT requested that the respondent
agency seek these additional reports and also indicated that unless it did
so, AAT would compel the production of the material.[75]
  
5.63 At the hearing, the degree of intervention by members in the giving of
evidence is greater where the applicant is unrepresented. The member may
ask questions of unrepresented parties to extract relevant material or take
over the questioning of unrepresented parties' witnesses. However, Justice
Jane Mathews has observed that, particularly where there are significant
factual disputes between the parties, there are constraints on this role. 
The problem is that presiding members who give active assistance to
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 equalize the imbalance between an experienced government
advocate on the one hand and an unrepresented party on the other, 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.[76] Justice Mathews concludes that, while there are
no easy answers as to how members should conduct these sorts of cases, [i]n
many respects, the difficulties encountered by presiding members in
assisting unrepresented parties in the AAT are no different from those
which confront 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.[77]
   
Q.5.14 What special requirements do unrepresented applicants have in review
tribunal proceedings?

Q.5.15 What assistance should be given to unrepresented applicants at
hearings and in preparing their cases for hearing?

5.64 The New South Wales ADT has an explicit duty to assist the parties
before it. The ADT Act provides that the ADT is to take such measures as
are reasonably practicable
 to ensure that the parties to the proceedings before it understand the
nature and legal implications of the assertions being made
 if requested to do so to explain to the parties any aspect of the
procedure of the tribunal, or any decision or ruling made by the tribunal,
that relates to the proceedings and
 to ensure that the parties have the fullest opportunity practicable to be
heard or otherwise have their submissions considered in the
proceedings.[78]
    
5.16 Should federal merits review tribunals have an explicit legislative
duty to assist applicants?
      
Role of agency representatives
     
5.65 In AAT proceedings, the respondent government agency, is always
represented.[79] The agency's representative has been held by the Federal
Court to have a duty to assist the AAT in reaching the correct
decision.[80] Under this principle, the role of the agency's representative
is equated to that of counsel for the Crown, particularly with regard to
disclosure of evidence.[81] The agency should ensure that all relevant
facts and documents are before the AAT, whether favourable to the applicant
or not, and not place undue emphasis on defeat of the application.[82] In
some social security and compensation cases AAT members have criticized
counsel for departments who adopt unnecessarily adversarial attitudes at
hearings.[83]
It is very important that representatives of the department should approach
their task... as it were as counsel for the Crown, ensuring only that all
the facts are before the Tribunal and not placing emphasis on defeat of the
application.[84]
  
5.66 However, one view is that in AAT proceedings [t]he reality is that
respondent departments and the government solicitor behave in an
adversarial way almost indistinguishable from private litigants.
Unrepresented applicants are particularly disadvantaged, both in the
preparation and presentation of their case.[85]

5.67 The advent of 'outsourcing' and competition between the Australian
Government Solicitor and private law firms for some government department
business may be relevant in this context, if the result is to introduce
different litigation cultures into review tribunal proceedings.[86]
   
Q.5.17 What is the role of representatives of respondent agencies in review
tribunal proceedings?
  
Q.5.18 Should the role of government representatives before review
tribunals be considered analogous to the DPP's functions in criminal cases
before courts, so that the representatives and agency must give full
disclosure of all relevant facts and documents and not place undue emphasis
on defeat of the application?
   
Q.5.19 Should that role be mandated for all representatives of respondent
agencies, including where government legal work is outsourced?
  
Q.5.20 Should the decision making agency be a party to tribunal
proceedings? Should the agency be represented? What are the advantages and
disadvantages of agencies being included or excluded as a party?
      
Representation and decision making
     
5.68 When party representatives participate in tribunal proceedings, they
may bring significant additional resources to bear on tribunal decision
making, through their expertise and the information they gather and present
to the tribunal. Where representation is not permitted, this may have an
effect on the quality of decision making. In this context, the ability of
tribunal members to provide the resources that parties might bring to the
process in ordinary civil litigation needs to be considered.
  
5.69 In the absence of skilled representatives, tribunal decision making
requires a wider range of skills. Specialist legal knowledge and experience
of the areas of decision making may become more important. The requirements
of decision making may be more easily met by joint discussion and
consideration by several tribunal members representing a varied range of
views, perspectives and experience.
  
5.70 Multi-member tribunals are often justified on the basis of specialist
expertise.[87] An example is the composition of panels in the SSAT. SSAT
panels comprise a legal member, to ensure that decisions are made in
accordance with the law, an executive member, bringing specialist knowledge
of social security administration, and a welfare member, bringing expertise
in recognizing the needs, interests, and views of applicants.[88]
  
5.71 Multi-member tribunals may have some advantages over single member
panels in achieving high quality and speedy decision making. In particular,
where the review panel includes a member appointed by, or with a close
relationship to, the respondent agency, the review process may more easily
be able to dispense with a departmental advocate. Other advantages, of
particular significance where the parties are unrepresented, may include
the following.
 Multi-member tribunals may be more suitable where the tribunal takes an
active role in the process of gathering and assessing evidence (in that
they are less likely to cause antagonism than if one member alone has to
question an applicant and test his or her evidence).
 Multi-member tribunals may be particularly useful when it comes to
assessing the credibility and character of review applicants.
 Several members working together may be more likely to ensure that all
relevant information is brought out and tested at or before the
hearing.[89]
   
5.72 These potential advantages and some possible disadvantages, notably
cost, have been widely canvassed elsewhere.[90] One view is that decision
making is more likely to be improved by providing increased research and
investigative support for individual decision makers, rather than though
wider use of multi-member tribunals.
   
Q.5.21 If all or most tribunal applicants are unrepresented, what resources
are required for tribunal members to ensure effective and fair exposition
of the case?


Footnotes
  
1 AAT Act s 30(1)(d).
2 AAT Act s 30(1)(c), s 30A.
3 AAT Act s 32.
4 Social Security Act s 1260(1), s 1265(2).
5 Social Security Act s 1265(1), s 1265(2), s 1265(7).
6 The Guilfoyle review concluded that agency representation would be
necessary in a significant proportion of cases and recommended that the
Commonwealth Services Delivery Agency should participate in proceedings of
the Income Security Division of the proposed ART to the extent it considers
appropriate and should assist the Tribunal by participating in those
proceedings where that is requested: see M Guilfoyle Review of the Social
Security Review and Appeals System:A Report to the Minister for Social
Security August 1997, 6365, rec 2829.
7 The ARC has said that where applicants have a representative or adviser,
even if that person is simply a relative or a friend, tribunals should be
prepared to deal with them, including outside the hearing, subject to
satisfactory proof of identity and authority: ARC Report No 39, 58.
8 A summary of relevant legislative provisions in relation to review
tribunals can be found in Administrative Review Council Discussion Paper
Review of Commonwealth merits review tribunals AGPS Canberra 1994, Appendix
A.1.
9 Veterans' Entitlements Act 1986 (Cth) s 147(2)(a). In New South Wales the
Legal Aid Commission (LACNSW) has a specialist service, the Veterans'
Advocacy Service which provides representation by non-lawyer advocates to
veterans in pension matters before the VRB and on appeal to the AAT and the
Federal Court. In 1995 96 LACNSW expended $996 000 on the Veterans' Service
(not including staff costs and overheads).
10 However, people who are not registered migration agents are prohibited,
with certain exceptions, from giving immigration assistance and only
registered agents may ask for or receive any fee or other reward for
immigration related advice and representations: Migration Act 1958 (Cth) s
280 282.
11 See ch 11, para 11.16-11.20.
12 eg in criminal deportation cases relating to decisions made under
Division 9 of the Migration Act where the applicant faces the added
difficulty of being in prison.
13 'Commonwealth Administrative Review Committee Report Parliamentary Paper
No 144 of 1971 (Kerr report).
14 'Committee on Administrative Discretions Interim Report Parliamentary
Paper No 53 of 1973; Final Report Parliamentary Paper No 316 of 1973 (Bland
report).
15 Kerr report 98.
16 Bland report 43.
17 ibid.
18 AGB McNair Administrative Appeals Tribunal Client Satisfaction Survey:
Final Report 9 October 1996, 26.
19 M Cunningham & T Wright The Prototype Access to Justice Monitor,
Queensland Justice Research Centre Sydney 1996, 11.
20 These figures are derived from AAT file details recording the address
for service of the parties. The figures do not distinguish between legal
and non-legal representation.
21 The Australian Administrative Law Service Butterworths para 244, 1800.
22 Where the proceedings are before the AAT following a decision of the
SSAT or VRB, the agency will have been unrepresented before the relevant
first tier tribunal.
23 J Toohey Correspondence 10 March 1998.
24 J Toohey Correspondence 11 March 1998.
25 ARC Report No 39, 61.
26 Committee for the Review of the System for Review of Migration Decisions
Non-adversarial Review of Migration Decisions: The Way Forward AGPS
Canberra 1992, 58 59.
27 A Cornwall 'Trouble with government decisions' (1997) 22 Alternative Law
Journal 182, 185.
28 ADT Act s 71(1)(2).
29 ADT Act s 71(3).
30 ARC Report No 39, 61.
31 ARC Report No 39, rec 25.
32 M Guilfoyle Review of the Social Security Review and Appeals System: A
Report to the Minister for Social Security August 1997, 53, rec 16.
33 Like lawyers, non legal representatives face restrictions on their
participation in IRT and RRT proceedings.
34 Administrative Appeals Tribunal Act 1984 (Vic) s 34(2). In addition, the
President of the VAAT has held that the discretion to allow a party in the
general division to be represented by a person who was not a legal
practitioner should be exercised sparingly and only in exceptional cases:
see Re Tzimas and Guardianship and Administration Board (1991) VAR 140.
35 J Gotjamanos & G Merton Report of Tribunals Review to the Attorney
General Ministry of Justice Perth 1996, 58-61, rec 5.
36 ARC Report No 39, 58.
37 ibid.
38 id, rec 23.
39 M Guilfoyle Review of the Social Security Review and Appeals System: A
Report to the Minister for Social Security August 1997, 53 54, rec 17.
40 Migration Act s 366A(1).
41 Migration Act s 139(6) which was in identical form to current s
427(6)(b), applying to representation before the RRT.
42 Committee for the Review of the System for Review of Migration Decisions
Non-adversarial Review of Migration Decisions: The Way Forward AGPS
Canberra 1992, rec 26(2).
43 Minister for Immigration, Local Government and Ethnic Affairs v
Immigration Review Tribunal (1993) 113 ALR 737.
44 id, 743-745 Keely J.
45 id, 744, referring to the terms of Migration Act s 123 (present s 353).
46 ibid.
47 Migration Act s 366A.
48 Migration Act s 366A(2).
49 Migration Act s 363A.
50 Immigration Review Tribunal Interim Practice Guideline 25 January 1996,
2.
51 Explanatory memorandum Migration Legislation Amendment Bill (No 1) 1995.
52 Immigration Review Tribunal Interim Practice Guideline 25 January 1996,
2.
53 Hon J Crosio, Parliamentary Secretary to the Minister for Social
Security Hansard (H of R) 9 February 1995, 856.
54 Immigration Review Tribunal Interim Practice Guideline 25 January 1996,
3-4.
55 Migration Act s 427(6).
56 See the RRT Annual Report 1996-1997, 36. This procedure will not be the
case in the IRT where an assistant only may address the Tribunal in
exceptional circumstances, and where it is clearly prohibited that any
other but the Tribunal may examine or cross-examine witnesses.
57 ibid.
58 These could include limitations in the capacity of a party to represent
himself or herself (eg physical, educational, cultural or linguistic); the
complexity of the issues to be determined; and the possible normative value
of the decision.
59 H Genn and Y Genn The Effectiveness of Representation at Tribunals Lord
Chancellor's Department London 1989, 243; H Genn 'Tribunals and informal
justice' (1953) 56 Modern Law Review 393.
60 K Cronin 'Dispute resolution in Administrative Law' (1998) 87 Canberra
Bulletin of Public Administration 60, 63 citing H Genn and Y Genn The
Effectiveness of Representation at Tribunals Lord Chancellor's Department
London 1989 and H Genn 'Tribunals and informal justice' (1993) 56 Modern
Law Review 393.
61 IRT Annual Report 1995-96, 11.
62 IRT Annual Report 1996-97, 11.
63 RRT Annual Report 1993-94, 10, 15. More recent annual reports do not
report on this indicator. However, recent figures are said to show that the
outcomes of applications in which the applicant is represented do not
differ markedly from the outcomes across all applications. J Toohey
Correspondence 11 March 1998.
64 AGB McNair Administrative Appeals Tribunal Client Satisfaction Survey:
Final Report 9 October 1996.
65 For example, criticisms have been made over the years about the quality
of much representation in migration and refugee matters.
66 AGB McNair Administrative Appeals Tribunal Client Satisfaction Survey:
Final Report 9 October 1996, 27.
67 R Phillipps 'Ethical issues for tribunal members' (1998) 72 Reform 17, 8
19.
68 id, 19. 
69 ARC Report No 39, 102. 
70 Responses to 1997 ALRC courts and tribunals questionnaire: see ALRC IP
21, ch.4, Appendix C. 
71 ARC Report No 39, 103, recommendation 62. 72
AAT Submission 144 ALRC IP 21; J Mathews 'Assisting unrepresented parties
in the AAT' (1998) 
72 Reform 38. 
73 J Mathews 'Assisting unrepresented parties in the AAT' (1998) 72 Reform
38, 40. 74 For example, the Federal Court upheld an appeal against a
decision of the AAT, where the AAT denied an unrepresented litigant the
right to make statements in the form of evidence in chief while he was
being cross-examined: Rettke v Comcare (unreported) Federal Court 26
October 1992 cited in T Thawley 'Adversarial and inquisitorial procedures
in the Administrative Appeals Tribunal' (1997) 4 Australian Journal of
Administrative Law 61, 75. 
75 Re Bartlett and Comcare (1996) 40 ALD 709, 716-717 Senior Member Dwyer. 
76 J Mathews 'Assisting unrepresented parties in the AAT' (1998) 72 Reform
38, 41. 77 id, 42. 
78 ADT Act s 73(4). 
79 The Australian Administrative Law Service Butterworths para 244, 1800.
80 McDonald v Director-General of Social Security (1984) 6 ALD 6. 
81 J Dwyer 'Overcoming the adversarial bias in tribunal procedures' (1991)
20 Federal Law Review 252. 
82 Re Cimino and Director-General of Social Services (1982) 4 ALN N106; Re
Stewart and Department of Employment, Education and Training (1990) 20 ALD
471; J Dwyer id, 255. 
83 M Allars 'Neutrality, the judicial paradigm and tribunal procedure'
(1991) 13 Sydney Law Review 377, 411.
84 Re Cimino and Director-General of Social Services (1982) 4 ALN N 106,
quoted in Dwyer id, 256.
85 T Thawley 'Adversarial and inquisitorial procedures in the
Administrative Appeals Tribunal' (1997) 4 Australian Journal of
Administrative Law 61, 75. 
86 Hon D Williams, Attorney-General, News Release 28 April 1997. 
87 R Creyke The Procedure of Federal Specialist Tribunals AGPS Canberra
1994, 131-137. 
88 However, the extent to which tribunal members rely on their own
expertise may raise concerns about whether procedural fairness has been
given; see H Katzen 'Procedural fairness and specialist members of the AAT'
(1995) 2 Australian Journal of Administrative Law 169. 
89 ARC Report No 39, 32. 
90 ibid; Committee for the Review of the System for Review of Migration
Decisions Non-adversarial Review of Migration Decisions: The Way Forward
AGPS Canberra 1992, 63-64.