Appeal: lay witness acting as representative

Section 32 of the AAT Act provided:

Parties

(1)    At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person:

(a)    a party to a proceeding in a Division other than the Social Services and Child Support Division;

(b)    the agency party to a proceeding in the Social Services and Child Support Division.

(2)    At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal’s permission, may be represented by another person.

(3)    In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to:

(a)    the Tribunal’s objective in section 2A; and

(b)    the wishes of the parties and the need to protect their privacy.

Persons required to appear

(4)    A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Are the requirements for procedural fairness in the context of adversarial court proceedings the same as the rules that apply in statutory tribunals?

Question 2: Is a critical difference between the context of a hearing before a court and the Tribunal that the Tribunal’s procedures are informal and its functions are inquisitorial in nature?

Question 3: Was the Tribunal "obliged to alert the appellant to the full range of factual matters that might arise in cross-examination or submissions"?

Question 4: Did the Tribunal's obligation to provide the appellant with a reasonable opportunity to present his case include an obligation to ensure that the appellant was aware of his entitlement under s 32 of the AAT Act to be represented by another person?

Question 5: Beyond stating that it would be preferable that the appellant be legally represented, was the Tribunal was under an obligation to give the appellant advice about the advantages and disadvantages of his particular choice of representative?

Question 6: Did the discretion in s 32(4) of the AAT Act relate to persons required to appear before the Tribunal, but not to parties?

Question 7: May the word “appear” in s 32(1) of the AAT Act "be understood as invoking concepts of agency, such that the party may be taken to adopt and to be bound by the choices of the representative in the presentation of his or her case"?

Question 8: If the answer to Question 7 is 'yes', would considerations of fairness in most instances nevertheless require that the party must be permitted to do attend a hearing for the purposes of instructing his or her representative?

Question 9: In light of the appellant having no English comprehension, did the Tribunal’s obligation to conduct a fair hearing include a requirement that he be put in a position to sufficiently understand the proceedings to enable him to give instructions and to receive advice?

Question 10: If the answer to Question 9 is 'yes', was the presence of a representative who could explain procedural matters to the party and who could seek adjournments for that purpose a critical fact in determining whether a failure to have all parts of a hearing interpreted gives rise to unfairness?

Question 11: As a matter of general principle, should the evidence of the appellant's non-legal advocate, who was also his wife, have been interpreted for the benefit of the appellant, because the advocate "could not, whilst giving her evidence, effectively advocate for the appellant and the content of her testimony was a substantive matter in respect of which advice and instructions could be exchanged"?

The FCAFC answered those questions as follows: