Appendix 3 - Department of Families, Community Services and Indigenous Affairs responses to matters raised by the Law Council of Australia[1]
Social Security Appeals Tribunal (SSAT)
1. The SSAT is not an appropriate forum for inter
partes disputes.
Response
The SSAT is to review administrative decisions made by the
CSA, not to adjudicate inter partes disputes. A parent is objecting to a
decision by the Registrar or delegate of the Registrar – they are not actually
disputing with the other parent, although the other parent may be joined as a
party to the review.
FaCSIA has received advice that there is no constitutional
impediment to the SSAT reviewing CSA administrative decisions. It is currently
an anomaly to not have these government decisions reviewable by a tribunal.
2. It is inappropriate for inter partes proceedings
to be able to be initiated by telephone, as this does not require sufficient
consideration of the implications of beginning the review process.
Response
SSAT review is intended to be an accessible process. Application
by telephone is currently available for review of Centrelink decisions. In most
cases, existing SSAT procedure has been adopted for review of CSA decisions, as
these are established and tested processes that work well for a similar client
group. Centrelink decisions may also involve two separated parents, for example
in FTB matters. How these processes work in practice will be monitored by the
SSAT and FaCSIA.
3. It should be made explicit that parties can be
represented by lawyers, and that there should be provision for a party (or
their representative) to question another party.
Response
There is no restriction on parents’ being accompanied to
SSAT hearings, including by a legal representative. This is explicitly stated
in SSAT documentation, including on their website and the forms for application
for review. However, the use of the SSAT as a review mechanism is a deliberate
step away from adversarial court proceedings. Allowing cross-examination would
be likely to make parents feel that they need to have legal representation,
which is in conflict with the SSAT's aim of providing economical, informal and
quick review. SSAT members are experienced in fact-seeking on their own
initiative.
4. The SSAT should be able to make cost orders
against the other party for legal representation.
Response
As noted above, the use of the SSAT as a review mechanism is
a deliberate step away from adversarial court proceedings to review an
administrative decision. The respondent party is the CSA, not the other parent
(who may be joined as an additional party). In these circumstances the awarding
of costs is not appropriate.
5. There is no provision for the SSAT to test
factual assertions or compel the production of evidence – this is a denial of natural
justice.
Response
The SSAT can test facts and require people, including the
Registrar, to provide evidence through documentation or, more rarely, personal
appearance. There is provision for the SSAT to pay the costs of people who are
required to provide evidence.
6. Written reasons for decision should always be
given.
Response
Parties can request written reasons within 14 days of the
oral decision and the SSAT must provide written reasons on request (s.103X of
the Bill). The SSAT has indicated that it will provide full written reasons in
all but the simplest cases. Parties can request written reasons where they are
not given, and the possibility of requesting these will be indicated on the
documentation provided. These provisions will be reviewed during 2007.
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