Pearls and Irritations

The Federal Administrative Appeals Tribunal (AAT) serves an important role for the citizens of Australia. Its value and the work of its members including its non-legal members need to be more widely appreciated and supported.

The Federal Administrative Appeals Tribunal (AAT) has been in the news recently but for the wrong reasons. The stacking of the AAT with matesof the Morrison government has appalled many commentators. There has even been a call to close the AAT down and start all over again with a new appointment process. These developments are tragic for a tribunal that has served the Australian people well for 46 years. The AAT protects citizens from unfair, incorrect or unjustified decisions made by Federal government departments and agencies. Among the many areas that the AAT covers are decisions made in regard to Centrelink benefits, NDIS and veterans’ entitlements, taxation, Commonwealth workers’ compensation, and migration and refugee visas and visa-related decisions. The Tribunal needs to be totally independent of government influence in these areas to function properly and to maintain the trust of the community.

There is one additional aspect of the work of the AAT which is also under threat. When the AAT was established in 1976, the Administrative Appeals Tribunal Act 1975 provided for the appointment of non-legally qualified members to the Tribunal. The legislation stipulated that in addition to legally qualified members, persons who ‘in the opinion of the Governor-General, have special knowledge or skills relevant to the duties of a senior member or member’ could also be appointed. From the beginning, this category of members, all part-time and called into service only when required, involved three main groups of people with expertise, viz. in taxation, in military service matters, and in medicine.

Generally these non-legal members were used in appropriate situations to form a Tribunal panel of two persons with the legally-qualified member presiding. The notion that a non-lawyer could perform such a role was initially not well received in some legal quarters but in the 46 years since, the practice of making such appointments has continued and the services of most such members have been regularly called upon. From time to time there is talk of doing away with such appointments, as was seen in a recent external review of the AAT conducted by former High Court Justice, Ian Callinan AC.

The terms of reference for the Callinan review related to the effectiveness of a process begun in 2016 under the Tribunals Amalgamation Act 2015 to amalgamate the former independent Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal with the AAT. Despite his narrow terms of reference, Justice Callinan found a path to recommend eschewing non-legal expertise. In his report, he quoted approvingly a comment that the late Sir Gerard Brennan, the inaugural president of the AAT, made at a conference celebrating the first 20 years of the AAT. Sir Gerard described the 1975 decision to appoint non-legal members as a ‘startling recommendation’.

Only three submissions to the Callinan review made mention of non-legally qualified members. One of the three referred to the need for legal knowledge and not to legal qualifications. As the terms of reference of the Callinan inquiry contained no hint that this longstanding use of non-legal members of the AAT was in question, it is not surprising that very few submissions addressed this aspect. If in his interviews with a wide range of people inside and outside the AAT, Justice Callinan sought comments on the effectiveness or efficiency of having non-legal members, it is difficult to discern reference to them in his 190 page report.

In Justice Callinan’s final list of recommendations to the Attorney-General, one was to do away with such members, although he conceded ‘a possible exception is appointment to the Taxation and Commercial Division to which competent accountants might be appointed’. Elsewhere in his report Justice Callinan wrote: ‘If special expertise to assist the AAT, such as medical, aviation or education, is required, then the AAT could readily gain access to it by engaging an appropriate expert witness. The only exception that I might make would be in respect of claims arising out of military service which has its own particular disciplines, traditions and risks well understood by those who have served in the military’.

With respect, I suggest that the recommendation to hire such experts to give evidence if needed by any Tribunal panel overlooks the fact that the AAT is not a court, is not bound by the rules of evidence and can use inquisitorial approaches where necessary. As the Full Federal Court deemed in a 1999 decision, the AAT was indeed expected to conduct ‘an inquisitorial review’ (FCA 1629; (1999) 57 ALD 1, at 6). It is in that inquisitorial mode that subject knowledge and expertise can greatly assist the legally qualified chair of any AAT panel. Such assistance could not come from an expert giving evidence before a panel.

To exemplify the assistance that non-legal members can provide, below I have summarised three such cases. I served as a part-time member of the AAT for eight years (2006-2014), being appointed with a background of 19 years’ experience as a member or chair of medical disciplinary tribunals and writing detailed reasons for decisions for those tribunals. In addition, I had broad clinical experience in both general internal medicine and in the specialty of gastroenterology and hepatology. I was asked regularly to serve as an AAT tribunal member but only in cases that had a high medical component, mostly arising from claims relating to disability support pension, veteran’s entitlements and Commonwealth workers’ compensation.

I cannot personally attest to the value of non-legal members with taxation or military expertise but I did note that these members also served on AAT panels regularly. I can attest to my own experience in a number of cases where it is highly unlikely that a legally qualified member, relying on medical evidence heard from witnesses or provided in documents, would have been alert to, or been alerted to, crucial medical information that was central to decision making.

All three cases were about veteran’s entitlements. Some readers might feel that my choice of cases is selective and that personal experience cannot be safely generalised to the experience of all non-legal members of the AAT. This has some validity but given that during my eight years on the AAT, there were on average twenty part-time medical members serving across Australia, it seems more than likely that their expertise was similarly of value to the Tribunal.

The detailed findings in each of these AAT cases are on the public record with the names of the claimant and of most witnesses recorded, and can be accessed readily. In deference to the privacy of individuals, I have not provided links to the cases. However I have given those links to the editor of Pearls and Irritations so that, if necessary, he can attest to the accuracy of my summary of the three cases.

Case 1: Mr AA claimed to be suffering from alcohol dependence as a result of being a survivor of a naval accident that took place in 1964 known as the ‘Voyager disaster’. By the time of the hearing in 2010, as part of the assessment of his claim, he had been interviewed by four psychiatrists over a period of three years. His mental state had been repeatedly assessed as unremarkable and, other than possible anxiety and alcohol abuse, no psychiatric diagnosis or disorder had been made or hinted at and no doubts were expressed as to the accounts he had given of his life.

During the AAT hearing, the panel noted that there were several features of his account of his life history which were not substantiated by the records of the Australian Navy. He had given an apparently convincing and consistent account of his experience of surviving the Voyager disaster to four psychiatrists he had seen for medico-legal assessment. However, his naval records showed that his short period of service on the Voyager had been completed four weeks before the disaster and that at the time of the accident he was posted to a land-based naval station. His name was not in the records of the survivors of the disaster held in the National Archives.

In his account of his naval service, he had also placed himself at the site of a well-known Australian civilian disaster, the collapse during its construction of the Westgate Bridge in Melbourne in 1970. Mr AA claimed that he was in Melbourne working at a naval shipyard and was called in to dive for survivors at the collapse site. His service records showed that he was at that time based in Sydney. Furthermore, the available accounts of the Westgate Bridge collapse make no mention of bodies being searched for or brought from the water.

There were additional aspects of his description of his medical and employment records which could not be verified or which were inconsistent with other records. As his story unfolded it crossed my mind that he was a persistent fabricator of stories and that he might be suffering from a condition known as pseudologia fantastica (also known informally as the ‘Walter Mitty syndrome’). The Tribunal then put the puzzling elements of this man’s story to the fourth psychiatrist who had been asked to assess him. That psychiatrist had considerable knowledge of the condition of pseudologia fantastica and he told the Tribunal that the evidence strongly supported this diagnosis. Understanding the mental state of the claimant helped the Tribunal to weigh the various medical reports and come to a better informed decision.

Case 2: Mr BB was a war veteran who was receiving a pension for the war-caused disabilities of posttraumatic stress disorder and alcohol abuse. The hearing was about his claim for a higher pension rate because he was now unable to work more than eight hours per week. As part of the process of assessing his claim, he had been seen by three psychiatrists. In the reports of two of those psychiatrists, it was apparent that for some of their background material, they relied considerably on the report of the first psychiatrist (psychiatrist A) who had assessed Mr BB soon after he gave up work.

Mr BB gave oral evidence at the hearing. In describing his attendance at the office of psychiatrist A, I sensed that Mr BB was dissatisfied with the consultation so I invited him to tell the Tribunal what had transpired. He reported that he and his wife had sat in a waiting area for some time and that then a man had appeared and had given him a questionnaire to be filled in. He was told to take it home, fill it in and mail it back to the psychiatrist. He was puzzled by this but did what he was told, expecting to be asked to come back for a consultation. He was never contacted again. On oath, Mrs BB confirmed her husband’s account.

The Tribunal was provided with a copy of the report of that assessment by psychiatrist A. It contained no hint that it was compiled based solely on the answers to a questionnaire. Indeed it was worded in a manner that implied that a face to face consultation had taken place. As reported in our decision, we found this to be ‘most unsatisfactory in that the applicant has been denied the potential value of an expert contemporaneous report. The unsatisfactory basis of psychiatrist A’s report has other ramifications for the Tribunal. Until this hearing, all parties (including the Veteran’s Review Board) had accepted psychiatrist A’s report as having at least as much weight as the reports of other specialists. Several specialists who were asked to assess Mr BB were given a copy of psychiatrist A’s report. Because the report states, in very concrete terms, some alleged remarks Mr BB made at interview it may well have influenced to an unknown, and now unknowable, degree the opinions formed by other doctors. The Tribunal has tried to keep this in mind in evaluating the other reports and oral evidence’.

With the concurrence of the President of the AAT, the conduct of psychiatrist A was notified to the medical regulator.

Case 3: Mrs CC was claiming a war widow’s pension and a key issue to be determined was whether the death of her husband aged 84 years was war-caused. Her husband’s death certificate stated that he died from cancer of the bile duct complicating an uncommon liver disease of primary sclerosing cholangitis. The specialist who had cared for Mr CC during the last months of his life had recorded that he had no history of ulcerative colitis (a disease known to have a very strong association with primary sclerosing cholangitis).

Mrs CC gave oral evidence at the Tribunal hearing in 2012 and told us that for as long as she had known her husband he had experienced intermittent diarrhoea, bleeding per rectum and cramping abdominal pain. She described her frustration that her husband simply put up with his symptoms and, having seen a specialist in the distant past, no longer wanted to see a doctor about these symptoms.

As a specialist in this field, this account from Mrs CC raised for me the likelihood that Mr CC had suffered from untreated mild to moderate ulcerative colitis for much of his adult life. The peak age of onset of this disease is in young adults and it thus was possible that his illness began when he served in the Middle East in World War II. A careful re-examination of all the Army medical records by the Tribunal revealed that this was the case, although when Mr CC first reported symptoms he was incorrectly assumed to have amoebic dysentery, later excluded. On two occasions soon after returning from the Middle East, physical examination showed evidence of an inflamed rectum, consistent with ulcerative colitis. The unravelling of this complex medical history enabled the Tribunal to make a properly informed decision.

In these three cases, the hearing of expert evidence from a medical specialist engaged by the AAT to assist the panel, as was proposed by Justice Callinan, could not have been of benefit. In these examples and other cases not summarised here, it was only because there was an informed medical specialist sitting as a sworn Tribunal member, acting in an inquisitorial role, having the benefit of seeing and hearing every witness, examining every document and discussing each case with the presiding member, that the Tribunal was steered to a just outcome.

In my view, to do away with non-legal members after 46 years of this type of assistance at the AAT would be an unwise decision and not in the best interests of the community.

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