Date: Mon, 9 Jun 2025 15:35:21 +1000
From: Bob B-advocate <bobbadvocate@gmail.com>
Subject: ART NDIS Division operations - Attn: Justice Kyrou and Mr Michael Hawkins
To: reviews@art.gov.au

Dear Justice Kyrou and Mr Michael Hawkins

I wrote to you previously (see https://a4.org.au/node/2721) and received a response from your CEO and Principal Registrar (see https://a4.org.au/node/2727). 

Unfortunately, the response just ignored a key issue I raised: the issue of the Tribunal, via individual members, “forming its own view of competing medical theories”. This issue was raised repeatedly in matters before members of the AAT who ignored the issue completely. 

Please provide a response to the issue of the Tribunal allowing the NDIS (as Respondent) systematic use of so-called Independent Medical Experts (IMEs) competing with an Applicant’s own treating clinicians when I believe the High Court of Australia previously advised that Tribunals like your Administrative Review Tribunal should not conduct these contests of medical experts. 

Not one decision in the AAT matters where  the Applicant raised this issue even acknowledged that the Applicant raised the issue. Clearly, those AAT decisions were made without proper regard to this part of these Applicants’ cases as presented. There are serious risks that the ART will continue this unjust practice. 

Most of the cases that I have assisted with relate to intensive early intervention for severely autistic children where the Tribunal supported, sometimes encouraged, the NDIS (as Respondent) to call on what they call IMEs. The NDIS has a small number of select clinicians they use whose views align (mostly) with the non-clinical views of NDIS staff. The opinions of the selected IMEs usually oppose views from the substantial number of professionals, academics, and researchers who advised Applicants in these matters.

In most of these matters, the NDIS as Respondent provides a 391-page relatively technical report that is a personal opinion, not peer reviewed, as evidence. Often, Tribunal Members object to or chastise an Applicant for providing substantial volumes of counter evidence they need to support their case. It is clear from subsequent hearing transcripts and decisions that Members hearing these matters did not read and understand the complex material. Tribunal Members are reluctant to even hear proper presentations of the complex evidence from Applicants, especially unrepresented Applicants. 

Members in these matters have little prospect of reviewing and fully comprehending the detailed material in  matters like this. This is precisely what the High Court’s advice in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; (1992) 29 ALD 1 (7 October 1992) warns about. Members simply lack the time and expertise to properly adjudicate the complex clinical issues involved. 

Some of the practices relating to IMEs in the ART are very dubious. In the AAT, when an Applicant objected to an IME the Tribunal typically held a hearing to rubber stamp the Tribunal’s decision to allow the Respondent to call an IME … at least giving an Applicant an opportunity to put their objection on the record … though I am not aware that an Applicant was ever successful in objecting. 

In my experience, the ART has abandoned that practice and ART Members simply rubber stamp the NDIS’s requests for IMEs. For example, 

1. In 2024/6193 - DGNY and NDIA, the Tribunal held a hearing without notifying the Applicant then issued Direction 1 (14/3/2025) for an IME. Presumably, the IME report is being done “on the papers”.
2. In 2024/1782 - JCXT and National Disability Insurance Agency, the Applicant had clinical advice in evidence from several paediatricians including two who work at Westmead Children’s Hospital. One of those is Dr Natalie Silove who has been a coauthor or contributor to most research reviews on early intervention for autism* sought by Australian government agencies - surely the Tribunal cannot regard her evidence as substandard in such a matter - an IME could not be justified. Yet, the NDIS sought, and the ART allowed, advice from an IME with less knowledge, experience, or qualifications.  

Basically, Tribunal members prefer the safety of repeatedly accepting the Respondent’s case and their preferred opinions over opinions from numerous individual professionals.

Please give this issue due consideration. 

* See https://a4.org.au/sites/default/files/2006RobertsPriorreport.pdf, https://a4.org.au/sites/default/files/2012ASfARreport.pdf, https://a4.org.au/sites/default/files/Autism%20Research%20Report%20final.pdf , and https://a4.org.au/node/2281