Federal Court. Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"? Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?
Section 2A of the AAT Act provided:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision - making of the Tribunal.
Section 32(1)(a) of the AAT Act provided:
(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;...
Section 39(1) of the AAT Act provided:
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Question 1: Did s 32(1)(a) of the AAT Act confer a right to representation, without the need for permission from the Tribunal?
Question 2: Can it be said that "the reasonableness or otherwise of the processes adopted by the Tribunal in making that decision may go to whether the Tribunal failed to carry out its review function, but the procedural decisions themselves are not the subject of the review"?
Question 3: Can it be said by reason of 39(1) of the AAT Act that the Tribunal "is not a passive by-stander in the hearing as it progresses; it is the body entrusted with the responsibility to ‘ensure’ that a party has a reasonable opportunity to present his case"?
Question 4: Can the Tribunal adopt a process and procedure which is inconsistent with s 2A of the AAT Act?
Question 5: Can the procedure adopted result in the deprivation of a reasonable opportunity for the Applicant to present the Applicant’s case?
Question 6: Must the reasonable opportunity afforded to an applicant itself be consistent with the objectives of the Tribunal?
Question 7: Must s 32(1) of the AAT Act be applied in the context of the statutory scheme of review as a whole?
Question 8: Does the AAT Act preclude representation of a party by a person who is not a lawyer?
Question 9: Does the AAT Act "require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant"?
Question 10: Can it be said that "to conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case"?
Question 11: Must the Tribunal "ensure that an applicant is not, by virtue of being represented by a non-lawyer, deprived of a fair opportunity to be heard"?
Question 12: Can an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions be held to have been denied a “real and meaningful” opportunity to participate in the hearing in which he represents himself?
Question 13: Is it unlikely that the legislature intended that a hearing before the Tribunal could not proceed by reason of "some measure of psychological stress and disorder in the applicant"?
Question 14: Does the same answer to Question 13 apply to a lay representative who is a family member?
Question 15: Had the Tribunal denied the Applicant the opportunity to be represented by his non-lawyer wife, would that have arguably deprived the Applicant of an ability to have a fair hearing?
Question 16: Should a circumstance in which an applicant’s representative is also a critical witness be avoided as much as possible?
Question 17: Was the Applicant "excluded from the hearing merely because not every exchange between the Tribunal and the parties’ representatives was translated for the benefit of the Applicant"?
The FCA answered those questions as follows: