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Monday, 15 March 2010
Page: 1812

Senator SIEWERT (5:53 PM) —The Greens overall do not have problems with most of the amendments that are part of the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill 2009. However, we have specific issues with an element of schedule 3, which introduces changes to the functioning of the Social Security Appeals Tribunal, the SSAT. I have some concerns about the amendments relating to pre-hearing conferences. I believe that they undermine the current functioning of the Social Security Appeals Tribunal and will make it more complex and time consuming while at the same time delivering poorer outcomes for those appealing Centrelink decisions.

This bill was part of a package of legislation that related to these changes and changes to the Racial Discrimination Act—along with the bill to do with welfare quarantining that we will be potentially considering later this week—that was considered during the most recent Senate Community Affairs Legislation Committee inquiry. What happened was that the bulk of the submissions, as you would expect, dealt with the changes to the Racial Discrimination Act and the income quarantining and did not specifically deal in great detail with these issues. Indeed, the committee report did not address these issues in great detail. However, the National Welfare Rights Network in fact did look at this issue in some great detail. I share many of the concerns that they raised in their very extensive submission.

The nature and intent of the SSAT is outlined in section 141 of the Social Security (Administration) Act 1999. The outline says that it will be ‘fair, just, economical, informal and quick’. By introducing pre-hearings, I am concerned that the SSAT will become a more formal and daunting process for Centrelink and Family Assistance Office clients who are representing themselves before the tribunal to appeal decisions. This is quite a stressful process for these people as it is. Having said that, we support it, because we believe that it is a good process. But it is quite stressful for people. We are concerned that these changes will make it more difficult for these people to exercise their right of appeal and reduce their access to procedural justice.

I am aware that there has been a significant increase in the number of appeals being heard by the SSAT over the last couple of years. Between 2007 and 2009 there was a 60 per cent increase in finalised cases. This means an extra 5,000 cases. While child support appeals were added to the SSAT in 2007, the vast majority of this increased case load relates to social security and family assistance. I suspect also that the Welfare to Work laws might have also been a significant factor.

However, I am not convinced that the government has presented to us a compelling case as to why this increase is happening, how these provisions will address emerging problems and whether this change will solve the underlying issues rather than simply brushing them aside. I am not convinced that the mechanism that they are introducing here to supposedly address these issues does in fact do so.

It must be noted that these changes are a precursor to the larger changes that we will be considering potentially later this week—these larger changes being the changes to Australia’s social security system that are being considered in a package of bills that also look at the RDA and income quarantining. We will be debating those later. I have flagged that we have concerns with those changes.

It must be understood that these changes to the operations to the Social Security Appeals Tribunal, the SSAT, come on the back of, firstly, the changes made that suspended access to the SSAT as part of the NT intervention measures introduced by the former government; secondly, the reinstatement of access to the SSAT for those subject to the NT intervention by the current government; and, thirdly, the changes proposed in the 2008 measures bill, which have yet to be dealt with in this chamber.

I should note the number of appeals that have been made following the changes to the appeals process under the NTER. While there have been a large number of internal reviews, fewer than five appeals had been made through the SSAT process as at February estimates. So there has not been a great take-up of those changes. I supported the reinstatement of access to the SSAT for those in prescribed communities. But at the time I noted that the majority of the decisions that Aboriginal Australians in prescribed communities objected to—particularly those to do with having their income quarantined—were decisions that had already been made, and so could not be challenged retrospectively. I also noted that this unfairness and racial discrimination was contained in the legislation, and so while the reinstatement of their repeal rights was welcome, Indigenous Australians in prescribed communities could not object to income quarantining. Those decisions, because they were made under the legislation, were not open to appeal under the SSAT, which means that I am not at all surprised that people have not been taking up their appeal rights under the SSAT. Their appeal rights have been curtailed under the legislation.

It is clear from answers at Senate estimates over a number of years that Aboriginal people are both much more likely to be breached by Centrelink and much less likely to appeal a negative decision. We need to appreciate the historical context to understand why, in general, Aboriginal Australians are both less likely to be aware of their appeal rights and, when they are aware of them, much less confident in their ability to appeal a decision and receive procedural fairness. We are concerned that, by changing the SSAT process even here with the pre-hearing hearings, Aboriginal Australians will be further disenfranchised from this appeals process.

With the introduction of the legislation to extend blanket income-quarantining into broader categories across the NT and across the rest of Australia, the likelihood of appeals and the amount of work likely to be faced by the SSAT will increase alarmingly, because people will be able to access the SSAT in a different manner to people in the prescribed communities that I was previously talking about. While I mentioned earlier that the primary objectionable decision to subject an individual to income quarantine cannot easily be appealed—because the objectionable bit is actually the legislation—there are a lot of individual administrative decisions involved in the day-to-day operations of income management that will be open to appeal. For example, somebody might apply to use their 100 per cent quarantined, matched savings to buy a computer so they can look for work or to get their car fixed so they can get to job interviews, and be refused on the grounds that these are non-essential items. All these items will be appealable if the legislation that is being introduced to the Senate—and that should be discussed later in the week—goes through.

The changes to the SSAT have been justified by the Department of Families, Housing, Community Services and Indigenous Affairs as aligning social security and family assistance with its child support jurisdiction. However, it must be understood that appeals against administrative decisions where the individual is in conflict with Centrelink or the department are totally different to decisions about the conflict within the child support system, in which the dispute is usually between two individual parties. The existing exclusion of Centrelink or the department from participating in SSAT hearings is a deliberate recognition of the imbalance in power that is inherent when an unrepresented individual is up against a legal representative of a government department. This imbalance is even more stark when we consider that, for an individual, it is likely to be their first time, whereas the department, of course, is likely to be involved in a large number of similar disputes.

There is a real risk that these changes will undermine the successful features of the current system for no good reason. The SSAT appeals procedures have been in place and working effectively for a long time. By comparison, the child support jurisdiction is relatively new, deals with a much smaller number of appeals and has not been independently evaluated. I cannot see how the argument that this realignment would make SSAT more efficient makes sense, considering that the child support jurisdiction has a much greater problem with the timeliness of decisions and much longer delays due to the high number of adjournments.

It should be noted that the claim of increased efficiency does not seem to sit well with the changes contained in the 2008 measures, which, as I said, have not been introduced and which we believe would add substantial procedural complexity to the SSAT process and elevate the role of the respondent departments or allow them into the SSAT review process. The National Welfare Rights Network has this to say:

It is critical that the Social Security and Family Assistance external merits review system provides a mechanism for review that is accessible and responsive to the needs of people using the system. Each day Centrelink makes millions of decisions under the Social Security Act 1991 and Family Assistance Act 1999 and related legislation, which have a direct impact on the daily lives of individuals. Whilst the decisions appealed are small in proportion to the number of decisions made, the outcome of the appeals lodged has consistently revealed over many years a high rate of error at the primary decision making stage. In 2008/09, Centrelink internal review officers changed 30.8% of the decisions reviewed and the SSAT changed approximately 29.9% of finalised decisions.

Those statistics are from Centrelink’s annual report of 2008-09. The data mentioned by the Welfare Rights Network clearly indicates that, where there were appeals, more than half of the time Centrelink was in fact wrong. Note that 31 per cent of the original decisions were changed by Centrelink itself; therefore, 69 per cent go to the SSAT. Then 30 per cent of those 69 per cent were found to be wrong. That is 21 per cent, and if you add that to the percentage that Centrlink changed themselves it is 52 per cent. That is a large number of decisions that Centrelink gets wrong. It highlights the importance of having an effective appeal system. It also highlights that the SSAT is being used.

The SSAT functions on an intermediate level of review and is designed and intended to allow reviews that are accessible, informal and relatively quick. With this number of appeals, and with the number of decisions Centrelink gets wrong, you can understand why. It allows an applicant to put their case in a straightforward way in a non-adversarial format. This format works well, because above the SSAT sits the higher tier of the Administrative Appeals Tribunal, or AAT. The SSAT is made up of a multi-skilled panel with experience and expertise in welfare, law and administration and must deal with a complex area of law and disadvantaged clients, many of whom have a poor level of education and understanding of the processes involved. Often it involves discussions of sensitive personal information, concerning sometimes the health, sexual relationships and problems of many disadvantaged individuals. This is why we believe a non-adversarial and more informal approach is the most appropriate.

The SSAT provides detailed written decisions which the department can then review and refer to the AAT for a more complex review process where it feels it is necessary. I cannot see the logic behind making the SSAT more complex, more adversarial and a more ‘AAT-like’ process. There is little to be gained by creating an inferior version of the AAT, particularly when we see from the evidence that the SSAT is picking up a high number of poor decisions and is doing so in an efficient and cost-effective manner. I believe that the right of appeal to the AAT makes the participation of the department in the SSAT unnecessary. What is the department hoping to achieve by this? We are worried that it may in fact have an effect of being more intimidatory to the people that are involved. No system is perfect, but we are very concerned that this may affect a system that has in fact been helping deal with a number of areas where Centrelink have in fact made the wrong decision or a poor decision.

The introduction of pre-hearing conferences we believe adds an unnecessary layer of complexity to the SSAT proceedings. Given the informal approach taken by the SSAT to the sensitive issues it deals with, the participation of the department in pre-hearing conferences is likely to make these much more formal affairs. This may have the bizarre result of making the pre-hearing conference much more formal than the actual hearings, but it is also likely to make the hearings themselves more formal and less effective. The usual reason for a pre-hearing conference within an adversarial system is to give parties an opportunity to come to a pre-hearing settlement. However, given the evidence that more than half of the appeals to the SSAT were based on circumstances where Centrelink had got the facts wrong, had insufficient information to make a reasonable decision or made an error in their interpretation of the legislation, it is unfair and unreasonable to be pushing respondents to pursue settlement, and we believe this is undermining the important role of the independent and in-depth review by the SSAT and the role that it plays in bringing to light and remedying poor decision-making processes within the bureaucracy. To this end I recommend that the provisions relating to pre-hearing conferences should be dropped from this legislation.

We also have some concerns about single-member panels, although, as you can tell, we are very deeply concerned about the pre-hearing amendments. As it currently stands, up to four members of the SSAT can hear a review. In practice this tends to result in a minimum panel of two for the majority of straightforward cases, with three-member panels being used predominantly for more complex matters, or when a new panel member is learning the process. Panel membership is usually decided based on the relevant expertise for particular appeals that they may be dealing with, particularly for the more complex legal, medical or family issues. I am not convinced that moves to encourage single-member panels are a good idea. I believe that this undermines the effectiveness of the collaborative decision-making process of multi-member panels and their ability to combine elements of different expertise to tackle the intricacies of particular cases. I am concerned that single-member panels are likely to be less balanced and to produce outcomes that are perhaps less fair. I am also concerned about the process being more open to external pressures. I suggest that single-member panels should only be considered in the most extenuating circumstances where it is necessary to hear a matter quickly and the applicant to the review gives free, prior, informed consent to a single-member hearing.

Other elements of the legislation we do not have so much concern about. Having considered these issues substantially, it is this particular SSAT area that we have some concerns about. The SSAT is very important to people using Centrelink and it is important that they have access to a fully functioning SSAT. While we are not opposed to changes per se, we are concerned that the changes the government proposes here will undermine the current effectiveness of the SSAT. The fact is that Centrelink do get some decisions wrong. They deal with a number of cases. I am not having a go at Centrelink, but the point is that we need to make sure that there is an open process and a good process for appeals where those decisions are wrong.

The ACTING DEPUTY PRESIDENT (Senator Troeth)—Senator Siewert, will you be circulating amendments for the committee stage of the bill?

Senator SIEWERT —This legislation came on slightly earlier than anticipated, so the amendments are just being organised now.