Wednesday, 13 May 2015
Tribunals Amalgamation Bill 2015; Second Reading
I present the explanatory memorandum to this bill and move:
That this bill be now read a second time.
The Tribunals Amalgamation Bill will amalgamate key Commonwealth merits review tribunals—the Administrative Appeals Tribunal (AAT), the Migration Review Tribunal–Refugee Review Tribunal (MRT–RRT), and the Social Security Appeals Tribunal (SSAT).
Merging these tribunals into a single tribunal, which will be called the AAT, will support effective, efficient, and independent merits review into the future.
The decision to merge merits review tribunals
At the heart of a strong merits review system is an independent generalist tribunal boasting a range of specialist expertise. This is the direction initiated with the establishment of the AAT in 1976. The intention at that time was to have a single independent tribunal dealing with merits review of administrative decisions across a wide spectrum of Commonwealth activity.
In 1995 the Administrative Review Council (ARC) Better Decisions report recommended that various specialist tribunals should be united as a single review tribunal comprising a number of specialists divisions.
The ARC considered that a single merits review tribunal would combine the best features of existing tribunals. It would lead to better decisions, remove unwarranted duplication and be simpler for the public.
These same aims are reflected in the Tribunals Amalgamation Bill being introduced today.
The 2012 Skehill Strategic Review of Small and Medium Agencies in the Attorney-General's Portfolio also considered that there was merit in the idea of amalgamating Commonwealth tribunals.
Most recently, amalgamation was recommended by the 2014 National Commission of Audit Report, Towards Responsible Government.
The 2014–15 budget measure Smaller Government—additional reductions in the number of Australian Government bodies outlined the intention to amalgamate tribunals into a single tribunal. The government also announced that merits review of freedom of information decisions would be incorporated into the work of the amalgamated tribunal.
Although each of the existing tribunals does excellent work, the fragmentation of the merits review system is undesirable.
Most states and territories have merged merits review tribunals, as have many overseas jurisdictions, with considerable success.
The decision to amalgamate the tribunals represents a return to the more coherent merits review framework that was envisaged when the AAT was established.
It is time to return to the original intention of our merits review system, with a commitment to a preeminent Australian merits review tribunal.
Draws on the best aspects of each tribunal
This amalgamation draws on the best aspects of each of the current tribunals and incorporates them in the AAT. The bill also preserves the distinctive aspects of each of the tribunals that are important in their specific jurisdictions.
The amalgamation simplifies the Commonwealth merits review system. The amalgamated tribunal will be a single point of contact for persons seeking review of administrative decisions. Tribunal users will benefit from an accessible 'one stop shop' for external merits review, better services and a more consistent user experience.
The amalgamation will also create opportunities to simplify and streamline tribunal procedures to better serve users.
The amalgamation will primarily affect the tribunals' internal administrative and corporate operations with no material change to the substantive rights of tribunal users.
Back office efficiency
Currently, the tribunals each maintain their own infrastructure, including separate facilities and separate corporate administrative structures. This results in unnecessary duplication. More effective and efficient services will be delivered from the sharing of property, back office functions and other corporate overheads.
The savings from the amalgamation, totalling $7.2 million over the forward estimates, come from reduction in property costs once the tribunals are co-located and the consolidation of corporate services into a single agency.
Better services and better value for the taxpayer will result from the economies of scale that come from a larger amalgamated tribunal.
The size of the tribunal will provide members and staff with opportunities for a broader range of work and enhanced career pathways.
Members and staff will have new opportunities to share their knowledge and expertise with a larger group of colleagues. They will learn from each other and draw on the best aspects of each of the current tribunals for the benefit of all.
Key features of the bill
Schedule 1 to the bill will amend the AAT Act to support amalgamation.
The objective of the AAT is updated. The tribunal will be required to provide a mechanism of merits review that is: accessible; proportionate to the importance and complexity of the matter; promotes public trust and confidence in the decision-making of the tribunal; and is fair, just, economical, informal and quick.
The governance structure of the tribunal consists of a president, division heads and deputy division heads to manage the merits review framework of the tribunal, and a registrar to manage public service and financial arrangements.
The president of the amalgamated tribunal will be a Judge of the Federal Court of Australia. The current President of the AAT, the Hon. Justice Duncan Kerr, will continue in his role and therefore become the first president of the amalgamated tribunal.
Tribunal independence is also maintained by fixed term statutory appointments of tribunal members and the registrar. The membership structure will be expanded to seven levels of membership reflecting the broader diversity of skills and experiences required in the amalgamated tribunal.
The tribunal will have a divisional structure reflecting the main review jurisdictions of the existing tribunals to enable specialisation. The new divisional structure will include the Migration and Refugee Division and the Social Services and Child Support Division to reflect the existing jurisdictions of the MRT-RRT and the SSAT.
Amendments to the AAT Act will also modernise and simplify a range of existing provisions to improve the clarity and flexibility of the act.
Schedule 2 to the bill will amend the Migration Act 1958 to abolish the MRT-RRT and move its jurisdiction to the new Migration and Refugee Division of the AAT.
In practice, review of migration and refugee matters in the amalgamated tribunal will be virtually identical to the review in the MRT-RRT.
The current scope and effect of provisions relating to the judicial review of migration decisions is also retained.
Contingent amendments in schedule 2 provide for how this bill interacts with other migration legislation.
Schedules 3 to 7 will amend social services legislation to abolish the SSAT and move its jurisdiction to the new AAT. Specific provisions that apply in the SSAT will be maintained for first reviews of social services and child support matters.
The right to a second external merits review of social services and child support decisions where this is currently available is maintained. Procedures will be similar to those currently used in the AAT for second reviews of SSAT decisions.
Schedule 8 provides consequential amendments to a number of acts conferring jurisdiction on the AAT.
Schedule 9 provides transitional and savings arrangements to ensure certainty for existing members of the tribunals and for users of the tribunal who have proceedings on foot, or a right to review, at the time of amalgamation. These arrangements preserve users' substantive rights and ensure that the AAT can continue its review function without disruption at the date of amalgamation. There is also a time-limited regulation making power to respond to further areas where clarity in transitional arrangements is required.
The Tribunals Amalgamation Bill was passed by the Senate on 11 May 2015, with certain minor amendments that will support the effective operation of the tribunal, guarantee its independence and protect the rights of users.
The Tribunals Amalgamation Bill represents a sensible return to a more coherent merits review framework, while retaining the most successful aspects of each of the individual tribunals. This is an important reform, I understand with bipartisan support, that will make Australia's legal system simpler and stronger.
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.
I thank the member for Isaacs for his contribution to this debate on the Tribunals Amalgamation Bill 2015 and the opposition for their support of this bill that does simplify the merits review process within Australia. The amalgamation of key Commonwealth tribunals will support an effective, efficient and independent merits review system into the future. The bill will place the AAT at the heart of our merits review system as a strong generalist tribunal boasting a range of specialist expertise. The amalgamation will primarily affect the tribunals' internal administrative and corporate operations with no material change to the substantial rights of tribunal users.
As I said, I do welcome the opposition's support for this. I want to make a few comments about the issue the shadow Attorney-General raised in relation to the jurisdiction of the Family Court. I appreciate that the opposition moved amendments in the Senate to give effect to the issues that he was raising. I point out to him though that we did not support those amendments for what I consider to be very sound reasons. We considered those amendments to be unnecessary. They would have complicated the system for judicial review of tribunal decisions.
The number of appeals actually heard by the Family Court at the moment is very small. I am advised it is only one or two per year. In practice almost all child support appeals from the tribunal go to the Federal Circuit Court, so the government believe that transferring the child support appeals workload to the Federal Court makes more sense. These appeals are first and foremost about the judicial review of government decision making. The Federal Court has expertise in administrative law matters across a wide variety of subjects and will capably handle these appeals within its existing resources. This will free up the Family Court to focus on more complex and intractable disputes between parties in relation to property and the care of children, and ultimately that is where their core expertise lies.
This bill represents a sensible return to a more coherent merits review framework while retaining the most successful aspects of each of the individual tribunals. The amalgamation simplifies the Commonwealth merits review system. Tribunal users will benefit from an accessible one-stop shop for external merits review, better services and a more consistent user approach. Members and staff of the new tribunal will benefit from opportunities for a broader range of work and enhanced career pathways.
The bill will also provide better value for the Australian taxpayer. The amalgamation will produce savings of $7.2 million over the forward estimates, mostly from a reduction in property costs once the tribunals are co-located and the consolidation of corporate services into a single agency. It is time to return to the original intention of our merits review system with a commitment to a pre-eminent Australian merits review tribunal. I, therefore, with the support of the opposition, commend this bill to the House.
Question agreed to.
Bill read a second time.