13 March 2008

Ms Sue Beitz
Department of Education, Employment and Workplace Relations
10M51
GPO Box 9879
Canberra ACT 2601

Dear Ms Beitz

I refer to the letter dated 25 February 2008 from the Secretary of your Department, Ms Lisa Paul PSM, inviting comments from the Administrative Review Council on draft guideline principles for the Department when determining when to appeal decisions made under Social Security Law.

The Council welcomes the opportunity to comment on the draft principles. Having regard to the Council’s expert advisory role to government on matters relating to the federal system of administrative law under the Administrative Appeals Tribunal Act 1975 (Cth), we believe that we are well placed to assist in this matter.

We note that the development of the draft principles constitutes part of a review of the administration of social security appeal and review processes that was announced by the Minister for Employment Participation on 10 December 2007. Given trends in appeal numbers and public criticism of some of the cases being appealed, such a review is timely.

We believe that the establishment of guideline principles in this area is an important initiative, with significant implications for the integrity of the social security system.

The Council considered the draft principles at its meeting on
29 February 2008. In view of their significant administrative law implications, we would appreciate the opportunity to comment on further drafts of the principles as they are developed.

Of necessity, the principles are couched in general terms. Their utility will depend to a large degree therefore upon how they are applied. We suggest that the operation of the principles should be carefully monitored and that a review of their operation should be conducted after six months experience with them. We would be most interested in receiving a briefing from your Department on the outcome of any such review.

The Council’s comments on the draft principles are as follows.

(a) Comments on the principles generally

A similar set of principles for DEEWR and FaHCSIA

The Council considers that the adoption by the Department of Families, Housing, Community Services and Indigenous Affairs of a similar set of principles would ensure a consistent approach in relation to appeals instituted by one department that are likely to be of interest to the other. This would be important, for example, in situations where payment of different benefits by the two departments is contingent on the same threshold test, for instance, in establishing a ‘marriage-like relationship’ for the purposes of the aged pension (FaHCSIA) and a parenting payment (DEEWR).

Appealing a decision in favour of a benefit applicant

The Council considers that the principles should specify that in circumstances where the Department is considering whether to appeal a decision in favour of a benefit applicant or recipient, it should make that decision as promptly as possible and give timely notice to the affected person.

Appealing on an issue of principle

We believe that appeals to the Federal Court on issues of principle should be treated as test cases. In such circumstances, financial assistance should be arranged for the other party to the appeal. The Council thinks that there would be considerable merit in such cases if the Department were to adopt a ‘test case’ policy similar to that of the Australian Tax Office.

Payment of benefit during an appeal

The Council notes that the draft principles do not address whether a benefit will be paid during the appeal process. A consistent approach to this issue would promote the ‘confidence in the system’ referred to in draft principle 1.

For example, if an applicant were denied a benefit by Centrelink and were to receive a favourable decision from the Social Security Appeals Tribunal, would the applicant receive the benefit while the Department appealed the SSAT decision to the Administrative Appeals Tribunal?

Excerpt from Legal Services Directions

The Council notes that the draft principles incorporate as an attachment an excerpt from the Attorney General’s Legal Services Directions 2005. Notwithstanding the reference to the Directions as a whole in draft principle
1 (b), this raises the potential for those aspects of the Directions that do not feature in the attachment to be overlooked in Departmental decision-making regarding appeals. We suggest therefore that the full Directions be incorporated into the principles as an attachment.

(b) Comments on specific principles

The following changes or additions are suggested by the Council to the draft principles:

–Principle 1(a): add the words ‘in relation to an appeal’ at the end of this sub-principle

-Principle 2(b): add the words ‘a realistic assessment of’ before ‘the broader financial impact…’; and

-Principle 4(d): add at the start ‘a realistic assessment of’.

TTThank you for the opportunity to comment on the draft principles. We would be most interested in receiving a copy of the final version. As mentioned, we would also appreciate the opportunity to comment on further drafts of the principles as they are developed and in being briefed on the outcome of any review of their operation.

If you would like to discuss any of the foregoing in more detail, please contact the Council’s Executive Director, Margaret Harrison-Smith (tel 62505801 or email: ).

Yours sincerely

Jillian Segal AM
President

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