FSWN and National Disability Insurance Agency

[2024] AATA 2379

FSWN and National Disability Insurance Agency [2024] AATA 2379 (28 May 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/7802

Re:FSWN

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Dr K Dodd

Date of decision:               28 May 2024

Date of written reasons:        10 July 2024

Place:Perth

The Tribunal refuses the Applicant’s request that the constituted Member recuse himself from hearing this matter.

.......................[Sgd]..........................

Member Dr K Dodd

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory hearing – recusal – application that a member recuse themselves from the hearing due to apprehended bias – qualifications and experience of a member – whether a member with medical qualifications can bring an impartial mind to evidence relating to alternative therapies – naturopathy – prejudgement – whether the member has a professional interest in the outcome – Ebner v Official Trustee in Bankruptcy applied

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Act 2013 (Cth)

CASES
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419

Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78

SECONDARY MATERIALS

Sarah Schwager, War against natural medicine, ABC News (online opinion article, 21 February 2012)   of Science in Medicine (Website)  FOR DECISION

Summary reasons delivered extemporaneously and in this written decision I provide my reasons in full.

Member Dr K Dodd

BACKGROUND

1.The Applicant is a 60-year-old female.

2.On 1 December 2020, the Applicant became a participant of the National Disability Insurance Scheme (NDIS).

3.The Applicant is appealing a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Agency or Respondent) made on 28 September 2023, confirming an earlier decision to change the management of funding of her Capacity Building Daily Activity (CBDA) budget from plan managed to a combination of self-managed and stated support funding.[1] Prior to this decision, the Applicant had been flexibly utilising a proportion of her CBDA funding to access the services of a naturopath. The effect of the decision to change the management of her CBDA funding has meant the Applicant has not been able to use the stated component of her CBDA funding flexibly, thus limiting her capacity to access naturopathy, a therapy which she asserts is reasonable and necessary.

4.On 21 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal or AAT) for review of the internal review decision.[2] The Applicant contends that the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) had not been applied correctly in decisions relating to her case.

[1] T Documents T1B, page 10.

[2] Ibid T1, page 5.

1. Pursuant to section 19A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) this matter was constituted to me as the member for the hearing and determination of FSWN’s application.

2. Prior to being constituted, the parties had engaged in an alternative dispute resolution process however the issues in contention remained unresolved.

3. Following constitution, the AAT Perth Registry (the Registry) contacted the parties to list a telephone directions hearing (TDH). The purpose of a TDH was to determine the parties current progress with the matter and to ascertain whether the programming to a substantive hearing could commence. During this communication between the parties and the Registry, the Applicant inquired about my qualifications with regards to the title in my name. On 27 March 2024, Registry staff informed the Applicant that my title was for my medical qualifications. Following a further enquiry by the Applicant, Registry staff informed her that I do not hold a degree in law.

4. The application for recusal (the recusal application) was subsequently made by the Applicant in an email to the Registry on 27 March 2024. The Applicant stated in her email:[3]

   I respectfully request that either Dr Dodd recuses himself from this appeal or the Registry replace him as the Member for this appeal.

   The reasons are:

   1. This appeal concerns the issue of the NDIA refusing to allow me to see a traditional medicine practitioner (naturopath) on the basis that it is not research based. There is the possibility of bias, overt or apprehended, for an orthodox medical doctor to be hearing a matter concerning traditional medicine. In my personal experience, few medical doctors that I have attended either understand or approve of traditional medicine.

   2. I will be making complex legal arguments that requires a Member with experience, good knowledge of the NDIS legislation and an ability to adjudicate on complex legal argument. The NDIA lawyers appear not to be able to comprehend what I have already argued with them about the NDIS legislation, so a lay person will likely have difficulty.

   3. This is a significant appeal that could have far reaching consequences for other NDIS participants and needs an experienced Member to hear the appeal.

   [3] Email from the Applicant dated 27 March 2024.

5. I note that this interlocutory hearing is my first contact with the Applicant. I have not been involved in any of the preceding matters before the Tribunal regarding her application. Prior to being constituted her case, I had no knowledge of her application or the issues or contentions regarding her appeal.

6. The interlocutory hearing was heard by videoconference on 28 May 2024. The Applicant was self-represented and was accompanied by her support person. The Agency was legally represented by Ms Goodwin of Makinson d’Apice Lawyers. The Respondent had been given the opportunity to provide written submissions regarding the recusal application prior to the hearing but indicated they would not be doing so. At the hearing the Respondent confirmed they would not be making any oral submissions regarding their position on the recusal application.  

   APPLICANTS SUBMISSION

7. On 22 April 2024 the Applicant filed a six-page written submission regarding the recusal application.[4]

   [4] Applicant’s Submission for Recusal (Applicant’s Submission for Recusal) 22 April 2024.

8. The Applicant identifies two grounds for recusal:

   (a)Recusal reason one: actual or apprehended bias;[5] and

   (b)Recusal reason two: lack of qualifications and/or experience in law.[6]

   [5] Ibid [12]-[22].

   [6] Ibid [23]-[29].

9. I have had regard to the Applicant’s written submissions in making my decision. At the hearing the Applicant was given the opportunity to provide further oral submissions. She was content to rely on her written submissions but requested that in making my decision I consider that a decision not to recuse myself may culminate in further stress to her personally. The Applicant explained that the current application has been distressing and that should I not recuse myself and there were legal errors in the process or outcome of her substantive hearing, her recourse would be to appeal to a higher court, an avenue that will result in further personal distress.

10. I will consider each ground for recusal in the reasons to follow.

    REASON ONE: ACTUAL OR APPREHENDED BIAS

    Actual Bias

11. With regards to actual bias, the Applicant states in her written submission that:[7]

    If he rules in favour of the NDIA, that claims there is no research basis for naturopathy in the face of significant and easily obtained research evidence of its holistic efficacy, then a claim will arise of actual bias, and I will appeal the decision.

    [7] Applicant’s Submission for Recusal (n 4) [22(b)].

12. The Applicant clarified at the hearing that she was not pursuing a case of actual bias in this recusal application. I agree with this position. As I have not yet heard any evidence in the substantive application, furnished any opinion or made any statements regarding the matter, I am satisfied that it cannot be concluded that I have already formed a view regarding the outcome of her case.

    Apprehended Bias

    What is the legal test?

13. The applicable test for recusal based on apprehended bias is that set out by the High Court in Ebner v Official Trustee in Bankruptcy.[8] Most recently, the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs confirmed that Ebner still represented the law.[9] Justice Gordon summarised the test as follows:

    As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and actual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

    [8] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

    [9] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 437 [67].

    The hypothetical fair-minded lay observer

14. In applying the legal test set out in Ebner, I must consider the characteristics attributed to the hypothetical fair-minded lay observer. The courts have provided guidance on this, noting the challenges in definitively defining attributes to a hypothetical person.

15. In the recent decision of the High Court in QYFM, Steward J quotes Johnson v Johnson in describing many of the necessary attributes of the fair-minded lay observer as follows:[10]

    The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. …The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality…Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

    [10] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 461 [197] (Stewart J), quoting Johnson v Johnson (2000) 201 CLR 488, 509 [53].

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The Applicant has submitted that ‘[i]t is a well-known fact that the orthodox Western medicine profession is generally sceptical, antagonistic, and even downright hostile towards traditional, alternative, and complementary medicine, therapies and practitioners…’[11]

    [11] Applicant’s Submission for Recusal (n 4) [12].

17. In arguing this position, the Applicant cites an example of a lobby group called Friends of Science in Medicine (FSM), comprising a membership of over 1200 from Australia and internationally. Its membership includes medical practitioners and researchers as well as those from other professional backgrounds.[12]

    [12] Ibid [13].

18. In an FSM position statement entitled ‘[i]s there a place for traditional medicines in modern healthcare?’, it is stated ‘[c]omplementary and alternative medicines’ (CAMs) are the modern version of magical practices’.[13] The Applicant concludes that such statements and FSM’s views on having ‘alternative medicine’ degrees removed from Australian Universities, without considering the research into traditional medicine, is evidence of their bias.[14]

    [13] Friends of Science in Medicine (Website), Is there a place for CAMs and traditional medicines in modern healthcare? Applicant’s Submission for Recusal (n 4) [13].

In the opinion piece titled ‘war against natural medicine’ from ABC News online, cited by the Applicant at [13] of her written submission, the author provides commentary on FSM’s stance on natural medicine courses in Australia and also considers how representative FSM is of Australian doctors, pointing to some evidence of a diversity of views among medical practitioners regarding referral to alternative medicine providers.[15] The author also discusses, among other things, some of the risks and limitations of modern medicine.

[15] Sarah Schwager, War against natural medicine, ABC News (online opinion article, 21 February 2012)  < >

There is limited weight I can place on the content of the FSM position statement and the ABC News online article because they are, by their very nature, opinions. Nevertheless, I am mindful that the legal test for apprehended bias is one based on objective possibility not probability and so I will consider whether it supports the proposition of the general state of mind of medical practitioners. I accept that members of FSM, including those with and without medical qualifications, likely hold negative views on traditional medicine, but I am not persuaded that this provides evidence to support the claim that ‘it is a well-known fact’ that the medical profession ‘is generally sceptical, antagonistic, and even downright hostile towards traditional… medicine…’. On the contrary, in the ABC online opinion piece the author suggests a varied point of view among Australian doctors on the merits of alternative medicine providers. The opinions of FSM cannot then be said to reflect the views of professionals in the broader community who happen to come under the banner of a particular professional group disclosed in their membership.

I accept that the Applicant has personally experienced negative views from medical practitioners she has engaged over the years regarding traditional medicine.[16]

[16] Applicant’s Submission for Recusal (n 4) [14].

The Applicant submits it can be demonstrated that the medical profession is generally biased and closed minded because of their denial of positive peer reviewed research in traditional medicine. She has cited two review articles,[17] published in the scientific literature on the therapeutic applications of natural compounds but does not establish what evidence can be deduced about the general views of medical practitioners from this or how a fair-minded lay observer might consider that information. I agree that these articles represent examples from the scientific literature on the potential benefits of natural compounds.

[17] Ibid [15a] & [15b].

The Applicant also cites a University of Queensland news article that provides an overview of research estimating medical misdiagnosis and its sequelae in Australia. The Applicant concludes that this evidence demonstrates a generally biased and closed-minded approach to [traditional medicines] by the Western medicine orthodoxy, and a blindness to their own fallibility.[18] While I accept this is the Applicant’s opinion, such a generalisation is largely hypothetical. In my view, the evidence provided does not logically demonstrate what is asserted, that is, that there is a denial by medical practitioners of positive peer reviewed research in traditional medicine.

[18] Ibid [18].

The Applicant argues that few in the medical profession acknowledge naturopathy as an evidence-based therapy and so it is possible I may not bring an impartial mind when considering and weighing evidence on natural therapies. Having applied the test identified in Ebner, I am not persuaded by this conclusion. A fair-minded lay observer, who has a ‘fair understanding of all the relevant circumstances’[19] and is ‘neither complacent nor unduly sensitive or suspicious’,[20] would appreciate it is the obligation of the Tribunal to thoroughly review all the evidence presented and to attribute the weight given to that evidence.

[19] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 461 [197].

[20] Ibid.

Although the test is an objective one, general assumptions about the collective views of medical practitioners being then transposed to that of an individual Tribunal member are speculative, without basis in fact and are, in my respectful view, beyond the realm of ‘real and not remote’[21] possibility.  

[21] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [7].

Even if I do hold certain views on traditional medicine, positive or negative, I am satisfied that a fair-minded lay observer would not reasonably apprehend that I would not keep those views to one side or that I would not decide the case other than on its legal and factual merits.

Although not relating to a Tribunal member with medical qualifications, the High Court in Re Polites; Ex Parte Hoyts Corporation Pty Ltd considered whether an Australian Industrial Relations Commission Deputy President’s prior background, skills and experience were sufficient grounds for recusal. In this case the Deputy President decided that he should cease sitting after submissions were made by the Australian Theatrical and Amusement Employees Association that because of advice tendered by him to Hoyts Pty Ltd some years earlier when he was in practice as a solicitor, a fair-minded observer might apprehend that he might not determine the current issues in accordance with the evidence. Their Honours decided that the Deputy President was mistaken to think that he could not decide the issues for determination with an impartial and unprejudiced mind and stated: [22]

The requirement that a member of a tribunal should not hear a case if there is a reasonable apprehension that he might not bring an impartial and unprejudiced mind to its resolution cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issue for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting.

…

… nor can the prior acquisition of "skills and experience" amount to such a disqualification… the background which carries experience and knowledge acquired extra-judicially "assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts ...”

(emphasis added)

(citations omitted)

[22] Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 87.

As outlined in paragraph [48] below, under the AAT Act it is a requirement of assignment to the National Disability Insurance Scheme Division (NDISD) that a member has the training, knowledge or experience relating to disability or other relevant knowledge or experience. It would be incongruous for a member to recuse themselves on the basis of the very qualifications for which they have been appointed under the legislation.

The Applicant submits that ‘a recently appointed Tribunal Member with no qualifications in law, limited experience in sitting on the bench and an apprehended professional interest in the outcome of the appeal, is unlikely to be able to remain impartial, either consciously or subconsciously’.[23] I acknowledge that my appointment with the Administrative Appeals Tribunal commenced on 5 February 2024, however it would not necessarily have been known to the Applicant that I have experience as a decision maker having served on a Tribunal in another  jurisdiction.

[23] Applicant’s Submission for Recusal (n 4) [10].

1. I accept that the nature of the decision maker is of relevance, as has been determined by the High Court.[24] When considering apprehended bias outside the judicial system a fair-minded lay observer would understand that account needs to be made for the different characteristics of the Tribunal and its processes, such as the Tribunal being able to operate more flexibly and informally than courts and not being bound by the rules of evidence. They would, nevertheless, be aware that administrative decisions need to observe the rules of natural justice. They would understand that although I am not a judicial officer, I possess the qualifications and experience required of my appointment as a member to remain impartial and decide the matters in the Applicant’s case based on their merits and not simply in conformity with any possible preconceived views or knowledge.

   [24] See, for example: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 119-120 [136].

2. The fair-minded lay observer would appreciate that the office of member is an independent statutory office and that before taking up the duties of that office, a member must make an oath or affirmation to ‘faithfully and impartially perform the duties of that office’.[25]

   [25] AAT Act, schedule 2.

3. With regards to an apprehension of bias based on a professional interest in the outcome of the proceeding, the Applicant contends that ‘if he decides in my favour … he may find himself derided by colleagues and professional organisations for supporting traditional medicine’ and that ‘he may even be sanctioned’.[26] No specific evidence has been provided in support of this proposition. Respectfully, I consider the Applicant to be conflating the issues. Making a finding for or against the application is not endorsing or supporting a particular therapy in a general sense, rather it is stating that for the individual concerned and based on the evidence presented, the relevant legal criteria have or have not been met. Medical practitioners would appreciate this distinction in my role as a Tribunal member in a specialised area such as the NDISD of the AAT.

   [26] Applicant’s Submission for Recusal (n 4) [22(a)].

4. The hypothetical lay observer would understand the independence required of me as a Tribunal member and that this would overcome any weaker professional ties that I might have. The lay observer would also understand that my role is not that of a medical expert but of a merits review decision maker. I will not be providing medical advice, assessment, treatment or therapy to the Applicant nor will I be providing medical evidence and so the proposition that I may be sanctioned by a professional body for a decision I make is not justified.

5. While an apprehension of bias is expressed as a matter of possibility, it must still nevertheless be ‘firmly established’.[27] Having had regard to the Applicant’s submissions, the evidence and the authorities, I am of the view that this requisite threshold has not been met. There should not be an automatic assumption of any interest between a Tribunal member and their professional qualifications.

   [27] Re JRL; Ex parteCJL (1986) 161 CLR 342, 360.

6. When constituted a matter, Tribunal members have a duty to proceed with that case. A member cannot select their cases or withdraw from their responsibilities without good cause.[28]

   [28] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 465 [216], quoting Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337, 348 [19].

7. I have carefully considered the Applicant’s request that I take into account the potential for her experiencing further stress relating to a recourse to the higher courts if there were a subsequent error of law in the determination at her substantive hearing. The Tribunal certainly seeks to minimise any distress these proceedings may cause the Applicant, however, having found against a reasonable apprehension of bias, I am duty bound to do the work that I have been constituted. I am unable to make a discretionary decision to remove myself from her case based on assumed potential circumstances that may arise at a substantive hearing.

8. Accordingly, I am not persuaded that the grounds for apprehended bias have been established.

   REASON TWO: LACK OF QUALIFICATIONS AND/OR EXPERIENCE

9. The Applicant raises concern about my experience, knowledge and legal understanding.

10. The Applicant states she will be arguing that section 34 of the NDIS Act (reasonable and necessary supports) is not engaged in her case and that there will be a complexity of legal arguments put forward.[29] The Applicant further submits that the Respondent has misrepresented the facts and issues to create an argument they can better defend.[30]

    [29] Applicant’s Submission for Recusal (n 4) [25].

    [30] Ibid [27].

11. The Applicant submits ‘that an inexperienced lay person is very unlikely to be able to competently adjudicate such a matter because of the complexity of the legal arguments’ and ‘that this appeal should be heard by an appropriately experienced and qualified judicial officer who has extensive experience in Participant v NDIA appeals…’.[31]

    [31] Ibid [26] & [29].

12. The Tribunal’s jurisdiction is confined to review of administrative decisions pursuant to section 25 of the AAT Act. The Tribunal is not the appropriate forum to argue matters regarding the experience or qualifications of an appointed member because the appointment of members is not within the Tribunal’s jurisdiction. Nevertheless, as there is clearly some commonality with the issue of qualifications raised in the apprehended bias submission, I will consider this.

13. The legislation governing the appointment of members of the AAT is set out in section 6 of the AAT Act. All members of the AAT are appointed by the Governor-General. That appointment cannot occur unless certain qualifications for appointment are satisfied. Section 7 of the AAT Act outlines, in subsection 3, the criteria that must be met with regards to the requisite qualifications of senior and other members:

    Senior members and other members

    (3) A person must not be appointed as a senior member or other member unless the person:

    (a) is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or

    (b) in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member.

    (emphasis added)

14. The legislation clearly contemplates that some members of the AAT will not be legal practitioners but instead may have special knowledge or skills to perform their role as member.  This diversity of membership experience is one aspect that distinguishes tribunals from courts.

15. Section 17E of the AAT Act sets out the requisite training, knowledge and experience of a member of the NDISD as follows:

    17E Assignment to National Disability Insurance Scheme Division

    (1) Before assigning a member to the National Disability Insurance Scheme Division, the Minister must consult the Minister administering the National Disability Insurance Scheme Act 2013 in relation to the proposed assignment.

    (2) The Minister must not assign a member to the National Disability Insurance Scheme Division unless the Minister is satisfied that the member:

    (a) has training, knowledge or experience relating to disability; or

    (b) has other relevant knowledge or experience that will assist the member in considering matters relating to the National Disability Insurance Scheme.

    (emphasis added)

16. Under the provisions of the AAT Act outlined in paragraphs [46] and [48], I have been appointed as a member of the NDISD because I possess the required level of knowledge and skills to fulfill my duties as a member. My suitability to sit in the Tribunal’s NDISD has depended not only on the Governor-General’s satisfaction that I possessed the required special knowledge or skills, but also on the satisfaction, separately reached, by the Attorney-General in consultation with the Minister administering the NDIS Act. I do not accept the Applicant’s assertions that I am a lay person or that I am inexperienced.

17. I am satisfied that I have the necessary qualifications to conduct a merits-based review.

    CONCLUSION

18. Having carefully considered the Applicant’s submission, I am not satisfied that the grounds for apprehended bias have been established.

19. Although it is not within the Tribunals jurisdiction to decide on the appointment of members to the Tribunal, I consider that following a merits-based selection process, I have been appointed to the role because I possess the requisite qualifications and experience.

20. Having been constituted to the Applicant’s substantive application, my duty is to hear the application and only recuse myself if a claim of bias has been substantiated after applying the thresholds in the required legal test. The Applicant’s claim does not meet those thresholds.

    DECISION

21. I refuse the Applicant’s request that I recuse myself from the hearing of this application.

    I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for the decision herein of Dr K Dodd, Member

    ..............[Sgd]..................................
    Associate
    Dated: 10 July 2024

55.     Date of hearing:	56.     28 May 2024
57.     Applicant:	58.     Self-represented
59.     Respondent:	60.     Ms I Goodwin, Makinson d’Apice Lawyers