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Editors --- "Secretary, Department of Social Security v Jordan; Secretary, Department of Social Security v Jiang - Case Note" [1999] AdminRw 23; (1999) 51 Admin Review 52


Secretary, Department of Social Security v Jordan; Secretary, Department of Social Security v Jiang

Federal Court, Hill J, 4 June 1998

[1998] FCA 604

AAT permitting unsworn evidence—no requirement to hold to formal rules of evidence

Bias—comments from the bench during proceedings

These cases, which were heard together, involved an appeal by the Secretary to the Department of Social Security ('DSS') against separate findings of the Administrative Appeals Tribunal ('AAT') that the respondents were not 'full-time' students within the meaning of the Social Security Act 1947. While the main question before Justice Hill in the Federal Court was the correctness of the legal interpretation given to this term in the AAT, the DSS also raised questions about the conduct of the two matters before the AAT. A different question was raised in relation to each proceeding:

Jordan - unsworn evidence

In the case of Jordan, one of the questions raised by the DSS was whether the AAT had conducted the proceedings in an improper manner, in that it had permitted the respondent to give unsworn evidence from the bar table, largely by answering questions asked by the Senior Member.

Justice Hill rejected the submission of the DSS, citing section 33(1) of the Administrative Appeals Tribunal Act 1975, which requires that proceedings be conducted:

... with as little formality and technicality, and with as much expedition, as … a proper consideration of the matters before the Tribunal permit.

He held that, while the AAT is subject to the requirement that it proceed in accordance with the rules of fairness and natural justice, it is not bound by formal rules of evidence.

Jiang - bias

In relation to this case, the DSS submitted that the decision of the AAT was flawed, on the basis that comments made by the Senior Member during the course of the hearing gave rise to a reasonable apprehension of bias.

The transcript of the proceeding revealed that the Senior Member had made the following comments (against the DSS):

Just having heard that much, that sounds pretty rude to me but never mind ...

So all this nonsense about saying that he put down terrible lies ... It is all a lot of nonsense as far as I am concerned ...

This is bureaucracy gone mad. Never mind, keep going ...

Counsel for the DSS submitted that the comments raised a reasonable apprehension that the Senior Member had formed a concluded view regarding Mr Jiang's case, without hearing all the evidence and submissions in the matter.

Justice Hill referred to Livesey v New South Wales Bar Association [1983] HCA 17; ((1983) 151 CLR 288) and concluded that nothing in the comments of the Senior Member suggested that he would disregard or intended to disregard the evidence. He held that while the comments did indicate that the Senior Member was forming a view about the evidence, that, of itself, did not show ostensible bias. Justice Hill stated that the Senior Member's comments may have been unfortunate, but were no more than an indication that he was developing a view and was prepared to continue hearing the matter and consider any other evidence that might come to light.


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