House debates

Wednesday, 13 May 2015


Tribunals Amalgamation Bill 2015; Second Reading

5:03 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise to speak to this government bill, the Tribunals Amalgamation Bill 2015, which Labor is very pleased to support. As the Attorney-General said in the other place, the proposal to amalgamate the Commonwealth's merits review tribunals has a very long history. The suggestion that the Commonwealth should have a single consolidated merits review tribunal, which we would now call a supertribunal, is as old as the Commonwealth administrative law framework itself. This bill will bring us very close to realising that goal by consolidating four major Commonwealth tribunals: the Administrative Appeals Tribunal, the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal.

The bill stems from work begun by the Keating government. The then justice minister, Duncan Kerr, referred tribunal reform to the Administrative Review Council in 1993. The ARC reported to the minister in late 1995, recommending that an amalgamated administrative review tribunal be formed. Some 20 years later, the parliament will finally heed that recommendation. Much has changed. With the loss of the 1996 election, Duncan Kerr was never able to complete the amalgamation project as a minister, though in his current capacity as President of the Administrative Appeals Tribunal he will be tasked with implementing it. There is a happy symmetry to this little twist of fate.

Less happily, the Abbott government just yesterday announced in the budget that it will seek to abolish the ARC. This is a deeply short-sighted decision, and Labor will oppose it. The ARC was established in the AAT Act in 1975. It is as old as the modern administrative law framework and has played a profoundly important role in the review and improvement of that framework over many decades now. The ARC is a respected body with a strong track record, as it has produced 50 reports, many of which have made a major contribution to the reform of Australian administrative law. Report No. 39, which this bill substantially implements, is just one example.

As I said, the Keating government did not have time to respond to the ARC's 1995 report, but the incoming Howard government picked up the proposal for amalgamation. While Labor in opposition supported the principle of amalgamation, it objected to the detail of the bill brought forward by the Liberal government of the day, which departed in important respects from the Administrative Review Council's recommendations and would have compromised the independence of the proposed ART. That bill was defeated in the Senate in 2001.

This bill is much less controversial. For the most part, its provisions effect a simple consolidation of existing tribunal architecture. As this has been longstanding Labor policy, we have no objection to such a consolidation. It is clear that this has several advantages. Amalgamation will in time lead to savings through the reduction of duplication. Amalgamation will reduce confusion among tribunal litigants, many of whom are unrepresented. It will prove more convenient for practitioners. Amalgamation, Labor hopes, will improve the quality and the reputation of the entire Commonwealth merits review system.

That said, Labor has sought some changes to the bill. This is a complex piece of legislation affecting the management of four very large jurisdictions and, as such, it warranted careful examination by the Senate Legal and Constitutional Affairs Legislation Committee. Labor and government senators were able to agree on two changes to the bill in committee, and I thank the government senators for their cooperation on these matters.

Turning first to those agreed committee recommendations: the committee's joint report recommended, first, that the parliament remove the amendment in the bill which would allow the AAT to determine second-tier reviews of social security matters on the papers only, even where the parties do not consent. We welcome this recommendation. It is important not only that justice be done but also that it be seen to be done. Tribunal applicants should have a right to hearing where they consider this to be necessary to their claim being properly considered. The government moved amendments to implement this recommendation in the Senate, and we were pleased to see them pass with our support.

Second, the committee recommended that the parliament remove the amendment in the bill which would reduce the maximum term of appointment of AAT members from seven to five years. Labor appreciates that the government wishes to standardise terms of appointment. It has been pointed out that the standard practice in statutory appointments is for five-year terms, and that is also the case in the SSAT and the MRT-RRT at present. However, this measure goes to the independence of the tribunal. The AAT is distinct from normal statutory bodies. We support seven-year maximum terms both to ensure the independence of the AAT and as a means of attracting high-quality tribunal members. Again, the government implemented this recommendation with Labor's support in the Senate.

There were; however, further changes that Labor sought which the government was not willing to accept in committee. Those changes were listed as recommendations in an additional comment by Labor senators. In the Senate on Monday, my colleague Senator Collins moved amendments to implement each of these recommendations. Though the government had initially resisted these changes, three of these amendments did eventually attract government support and were able to pass the Senate. I will briefly discuss each of those three amendments.

I turn, first, to additional comment recommendation 1. Labor successfully moved an amendment opposing the measure in the original bill which provides for appointment of the registrar of the AAT by the Governor-General. The current act provides for the registrar to be appointed on the nomination of the president. Labor considers this appropriate as the registrar is tasked by section 24B of the act with 'assisting' the president in the management of the tribunal. This relationship, and by extension the position of the president and the independence of the tribunal, is protected by the nomination requirement in the act. No compelling reason was provided for why this practice should be departed from.

I turn to additional comment recommendation 3. Labor also successfully moved an amendment to remove the measure in the bill which removed the requirement for an address by each house of parliament before an AAT member can be removed, instead allowing the Governor-General to dismiss a member. This proposed change went to the independence of the tribunal. While the SSAT and the MRT-RRT presently allow for removal of members by the Governor-General, Labor takes the view that amalgamation should lift those tribunals to the present standard of the AAT rather than lower standards for the entire jurisdiction.

I turn to additional comment recommendation 4. Labor successfully moved an amendment to the bill to create a specialist FOI division of the new amalgamated AAT. Members will be aware that the government's Freedom of Information (New Arrangements) Bill 2014, presently in the Senate, would confer responsibility for determining disputes about FOI applications in the first instance on the AAT. At present, the specialist body the Office of the Australian Information Commissioner fulfils that role. We oppose that bill. It is nothing less than an attack on the FOI system, and the government has, thankfully, not been unable to pass it through the Senate. Embarrassingly, in the recent budget the government has been forced to reallocate funding to the Office of the Information Commissioner a year after announcing that office's abolition. Nonetheless, we want to take this opportunity to ensure that the AAT is better able to handle FOI disputes whether the government's FOI bill passes or not. Accordingly, we moved in the Senate to amend the bill to create a specialist division of the AAT to deal with FOI matters.

As I said, on each of these three recommendations the government was eventually willing to come round to our point of view, and I thank the government for that. There was one outstanding point of disagreement, however, and that is additional comment recommendation 2. In the Senate, Labor was unsuccessful in moving an amendment to remove the measure in the bill which changes the venue for certain appeals from the Family Court to the Federal Court. The bill would give the Federal Court jurisdiction to hear appeals from the federal circuit court following an appeal from a child support first review and to hear referrals on questions of law. While this measure would be consistent with the general jurisdiction of the Federal Court over matters arising in the AAT, the Family Court has noted in its submission to the Senate committee that it, the Family Court, is the court with expertise in child support matters. Labor cannot see how any convenience is achieved by the change in venue, for what the department conceded at the committee hearings is a small number of matters would outweigh the disruption of accepted practice. We regret that the government has taken a different view and did not support our amendment, which as a consequence was not passed.

Nonetheless, the bill as a whole, and especially as amended in the Senate, is a very worthwhile proposal. Labor is happy to see the tribunal consolidation project, with its long and somewhat torturous history, finally realised. I commend the bill, as amended, to the House.


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