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Tuesday, 10 September 1985
Page: 401

(Question No. 106)

Senator Bolkus asked the Minister representing the Minister for Social Security, upon notice, on 20 March 1985:

Is there no provision in the Social Security Act 1947 enabling the payment of costs to applicants before either the Social Security Appeals Tribunal or the Administrative Appeals Tribunal where the Government conceded before a hearing on a matter; if so, what steps are being taken to redress this inequity.

Senator Grimes —The Minister for Social Security has provided the following answer to the honourable senator's question:

Costs incurred by applicants to the Social Security Appeals Tribunal (SSAT) are met in large part by my Department. Such costs in most cases relate to securing medical opinions and travelling to and from the Tribunal. Where my Department, or the SSAT, requests a medical report the Department will pay for the consultation and the preparation of the report. These, and necessary travel costs, are paid as part of the general administration of the Act under section seven. It does not pay the costs associated with the provision of medical reports commissioned independently by an applicant or the applicant's representatives as these are not incurred at the Department's request. Applicants to the SSAT are seldom legally represented. Thus the question of legal costs seldom arises. These principles are not affected if the Department concedes an appeal.

Where a department client appeals to the Administrative Tribunal (AAT) the client is more likely to incur legal expenses. In addition it may be necessary to spend some money to travel to the hearing. My Department pays all expenses associated with an applicant's consultation with a medical specialist nominated by the Department. If the matter goes to a hearing the Department will, where the applicant is unable to afford to do so, pay necessary travel and accommodation.

The Administrative Appeals Tribunal Act 1975, in section 69, provides that legal and financial assistance may be granted by the Attorney-General in respect of an appeal. When he considers applications, section 69 requires that it would involve hardship to an applicant to refuse the application and that, in the circumstances, it is reasonable that assistance be granted. The Attorney-General's Department, I am informed, considers each case on its merits but uses, as a starting point in assessing hardship, the guidelines of the Australian Legal Aid Office for the grant of legal aid. It will, however, depart from these in an appropriate case. In considering the reasonableness of any grant of assistance regard is had primarily to the benefit which the applicant would gain by the grant, the degree of detriment which might flow from a refusal, and the merits of the applicant's case. The legal or financial assistance granted will apply to an applicant's legal costs and reasonable disbursements. Such disbursements include necessary medical and travel expenses. These may be covered in full but, where it appears that an applicant can afford it, a contribution may be required. The consession of a case does not affect the operation of this system.

Section 67 of the Administrative Appeals Tribunal Act 1975 also provides that the Administrative Appeals Tribunal may order that the fees and expenses of a witness summoned to appear before it are to be paid by the Commonwealth. This does not, of course, assist an applicant whose case is conceded prior to a hearing.

Reference should also be made to section 66 of the Freedom of Information Act 1982 which applies to social security clients appealing in a Freedom of Information matter. That provision enables the Administrative Appeals Tribunal to make a recommendation to the Attorney-General that an applicant's costs be paid by the Commonwealth where the applicant is successful, or substantially successful, in his application. In a number of recent Freedom of Information cases the AAT has recommended that an applicant's costs be paid where the department or authority has conceded and supplied documents.

In all the circumstances there are no firm plans for change, although I understand that the Administrative Review Council is considering a reference on applicant's costs before administrative tribunals. The Government will, of course, consider any recommendations which the Administrative Review Council might make following its review.