Pro bono disability lawyer Karen Kline wanted to understand how one of her client’s cases in the Administrative Appeals Tribunal (AAT) could be ruled against, and whether the National Disability Insurance Agency (NDIA) had spoken to tribunal members.
So in April she lodged a freedom of information request, seeking correspondence between AAT staff and NDIA staff, as well as draft decisions and directions. But although the initial FOI officer identified correspondence within the scope of her request, none of the documents sent a week later by a more senior officer contained any of the conversations outlined.
“The fact that there was a delay between the original FOI decision and receiving the documents from a different staff member … makes me think there was intervention,” Kline said.
An internal reviewer from the NDIA had originally approved the proposed modifications on the grounds that it would lower costs overall, as disability discrimination lawyer Dr Larry Laikind, Kline’s client, would need fewer support workers to take him on outings. But the reviewer noted there would be “reputation” risks to the scheme. So the NDIA flew an occupational therapist from Sydney to the Gold Coast to assess his property, forming part of the NDIA’s evidence. Kline said the assessment took under an hour and that Laikind wasn’t assessed.
In its ruling, the AAT has made a number of mistakes. It released documents with incorrect hearing dates, listed Laikind’s age incorrectly, and named an occupational therapist when there had been a direction for a pseudonym to be used. The decision was published 99 days after the hearing, instead of the 60-day time frame the tribunal aims for.
Kline wanted to know more about the details of the decision. Specifically she wanted documents, files and phone notes between AAT associates: member Ian Hanger, who made the ruling; then president Fiona Meagher; former president David Thomas; NDIA employees including then CEO Martin Hoffman and director Liam Stewart, and lawyers representing the NDIA.
It took the AAT a month and a half to respond. The FOI officer identified documents including “correspondence on the file from and between tribunal staff and members including DP Ian Hangar, Ben Anderson, president Fiona Meagher, former president David Thomas; and correspondence on the file from NDIA personal [sic] including Martin Hoffman, Liam Steward, Billy Neely”.
Kline said she was told the documents would be released the next day, but it took another seven days for them to arrive.
She received 15 emails with multiple attachments sent after hours. There were duplicated documents and documents not properly redacted, with no annexe or list describing the documents. None of the documents included correspondence between the named lawyers, NDIA and tribunal employees. Instead she received copies of emails she had either sent or been CC’d on and a heavily redacted, very short chat between AAT associates.
The documents were sent by the AAT’s director of legal and policy Sandra Koller, instead of the original FOI officer.
Kline pointed out the issues. Koller claimed the delay in providing documents was due to “a problem with the redacting software affecting large documents”. She claimed no correspondence from the named lawyers, NDIA staff and AAT staff could be located.
In March the AAT ruled that Laikind could not use his National Disability Insurance Scheme (NDIS) funding to modify his waterfront backyard to make it accessible. Laikind has just 1% peripheral vision and wanted to make the backyard accessible so he can fish, walk around the property and canoe. Kline also lives at the property.
Kline believes the documents exist. She’s contacted the Office of the Australian Information Commissioner (OAIC) requesting an expedited review given Laikind’s AAT case is filed for an appeal, with a date yet to be set. The OAIC declined to expedite the review — it’s still dealing with review applications lodged nearly five years ago, citing the offices’ “limited resources”. It told Crikey it couldn’t discuss the case due to confidentiality provisions.
The OAIC has faced funding constraints in recent years, with its funding decreasing from $23.5 million in 2020-21 to $8.71 million in 2022-23 (along with funding for specific projects, including supporting its response to the Optus data breach). In September, information commissioner Angelene Falk warned the office couldn’t keep up with a surge in FOI review requests at the current funding level.
“We’ve hit a brick wall,” Kline said.
An AAT spokesperson told Crikey the tribunal was aware of the OAIC’s engagement.
The spokesperson declined to say whether AAT staff speak directly with NDIS staff regarding case outcomes, saying instead the AAT requests information from the NDIA when it receives an AAT application that meets the requirements for a review, ahead of holding conferences and conciliations before a hearing before the tribunal member if the issue can’t be resolved by mediation.
Technology expert and human rights advocate Justin Warren faced a similar issue when lodging an FOI request for documents he believes could reveal what former prime minister Scott Morrison and senior ministers including Christian Porter and Alan Tudge knew about robodebt when they had responsibility for the scheme.
Warren first requested the documents in 2017; the AAT ruled earlier this month that just one document out of 12 could be released. In a statement this morning, Warren and his legal team at Maurice Blackburn said there had been “multiple breaches of procedural fairness in the way the tribunal carried out the hearing”, arguing the AAT failed to properly evaluate submissions regarding the public interest in disclosure.
