The Right to Be Heard: Children and the Administrative Appeals Tribunal (AAT)

The Administrative Appeals Tribunal (‘AAT’) routinely reviews decisions that affect children under a range of Commonwealth legislation on matters such as migration, child support and the National Disability Insurance Scheme (‘NDIS’). Article 12(2) of the United Nations Convention on the Rights of the Child (‘CRC’) sets out the right of children to be heard in administrative proceedings that affect them. As a state party to the CRC, Australia has agreed to act in accordance with the CRC’s provisions. This paper asks whether the law and procedure of the AAT align with Australia’s international human rights duties arising under art 12 of the CRC. To answer this question, this paper adopts a child rights based approach (‘CRBA’) informed by child standpoint theory to evaluate the extent to which the AAT’s law and procedure (legislation, case law and Practice Directions and Guidelines) recognise and give effect to children’s right to be heard in art 12 of the CRC. The findings show that although children have standing before the AAT, there are practical and, in some cases, statutory barriers to children’s right to be heard under art 12 meaning that children cannot properly exercise their right to be heard in administrative proceedings on matters that affect them. This paper concludes that as long as these barriers exist, the law and procedure of the AAT do not align with art 12 of the CRC and, consequently, Australia is in breach of its international human rights obligations under the CRC. This paper presents a range of options for reform informed by models developed by Laura Lundy and Aoife Daly that, if realised, would remove these barriers to participation, ensure Australia complied with its international legal obligations, and lead to tangible positive change in the way children are heard in the AAT.