House debates

Monday, 14 February 2022


Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021; Second Reading

3:53 pm

Photo of James StevensJames Stevens (Sturt, Liberal Party) Share this | | Hansard source

I rise to support the second reading, though not the amendment, of the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. This is obviously a bill that has a number of technical changes and adjustments to the way in which we deal with administrative law and justice in this country. I suppose I would like to start by taking the opportunity to make a few general comments about the value of having the system that we have, particularly the Administrative Appeals Tribunal system.

There is a very common expression in law, going way back, that it's important that punishment fits the crime. I equally think it is important that access to justice is fairly weighted against the significance of its cost and the need for people to seek avenues to reflect and perhaps even appeal decisions that we as a government make. It is vital to our democracy, particularly in administrative law. Particularly when it comes to the executive of our government, it is quite important, in my view, that citizens have fair and reasonable opportunity to appeal and seek review of those decisions. We all know as members of parliament that a lot of decisions made can be at a level that is not worthwhile, and it would be very difficult to pursue them through the superior court system if that were the only opportunity you had. So if you applied for a visa and it was unsuccessful, or if you had an issue with a determination that had been made about your eligibility for a government entitlement, it's obviously not reasonable, and it would be unjust, if people's only recourse against those decisions were to go through an expensive process of potentially going to the Federal Court, say, or beyond. If we didn't have other avenues, a lot of people would have decisions that they felt should have the right to be reviewed and, in their view, changed, but they wouldn't have that access without a burden of cost that would make it impossible for a lot of them to pursue.

As members of parliament, we have constituents come to us all the time who have these sorts of issues. Whilst we're clearly, as parliamentarians, not in a position to give opinions or adjudicate over decisions that a constituent has been given and that they may believe is unjust or should be changed—and nor should we; equally, it's important that we support them in pursuing an avenue where they can seek to have that decision reviewed, and to see that occur in a way that's accessible to them. Most of the things that we're changing through this bill are relevant to the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is exactly that body that gives people access to an appropriate level of decision-making review for the standard of the issue that they have that shouldn't cost them an inordinate amount of money to seek rectification against.

If memory serves me well, the Administrative Appeals Tribunal first came into effect in the 1970s. It was for the purpose of ensuring that people had the avenue that meant they didn't have to go to the superior courts for matters that would be expensive to pursue there, and of course would also potentially overwhelm the superior courts, like the Federal Court, and even on appeal from there. So the Administrative Appeals Tribunal achieves that quite effectively. It means that people can go at a lower cost. It means they can get a quicker decision outcome. And it means that decisions that are made—by our administration, by the executive, by people with delegated authority, by agencies et cetera—can be appropriately reviewed by people who have the capability and the expertise to understand whether or not the correct law has been applied in each circumstance.

It's not surprising that on a regular basis we need to review and modernise and change the way in which the AAT and other elements of administrative legal appeal functions are structured because, of course, things change on a regular basis as far as the types of matters and the types of issues that may be raised at the AAT and others are concerned. Equally, we can ensure that we have efficiency. Much like case law improves the understanding of statutes and the principles and fundamentals of different areas of our law, exactly the same principle applies with the AAT and the way in which they adjudicate over cases and determine whether or not a matter that has been brought to them is in fact a decision that should be overturned or a decision that should be kept in place.

One of the changes that is being made here is to make that a little more efficient, allowing for AAT and others to make decisions with a different burden of reasoning on the decision made, and so to determine that if there is no general principle that needs to be given a view on, then some decisions can be a little more efficient and quicker so that people get their decisions as quickly as possible. We want that. I think that's very important. I know when I've dealt with matters that are on appeal to the AAT and other bodies, it has been the case that at times those decisions can take a little while. And when it is perhaps someone appealing a decision that has been made regarding a visa or an entitlement through social security and other services, veterans' entitlements et cetera, it's just as important not what the decision is but that the decision is made in a timely way, because speed of justice and speed of decision-making is vitally important for people in those circumstances as well.

I note with interest that there are also a couple of adjustments being made in the bill regarding the way in which certain immunities et cetera exist for foreign governments when it comes to, in some cases, quite ancient treaties that we have in place with their status and their potential immunities in our legal system. I have to confess that I do not have a deep enough understanding of some of the complexity of that. I think there were some matters mentioned in the notes that I read regarding a case between a foreign government and a corporation here in Australia. But, clearly, it makes sense for us to embrace and implement sensible suggestions that are made by those who do understand the legal ramifications of certain decisions made in law that can improve things through the change in statute that we are making here.

In conclusion, it is pleasing to see opportunities to make the AAT and other avenues of access to justice for all Australians cleaner, clearer and modernised. We always want to see and ensure that in this country everyone has equal access to justice and review of decision-making. We don't want to be in a situation where anyone that might have fair and reasonable grounds to seek review of or appeal a decision of government, or a decision of the administration, finds that they can't pursue that or don't find it in their interests to pursue it because the cost or time of doing so becomes prohibitive to them. We want to ensure that there are appropriate avenues for this. The AAT has achieved this for many, many decades. What we see in this bill now is an opportunity to enhance the way in which the AAT and similarly other federal avenues of appeal on decisions are administered. I commend the bill to the House.

2:02 pm

Photo of Matt KeoghMatt Keogh (Burt, Australian Labor Party, Shadow Minister for Defence Industry) Share this | | Hansard source

This bill, the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, would make a number of largely administrative amendments to various acts of parliament relating to federal courts and tribunals, principally the Administrative Appeals Tribunal. The legislation amended includes the Administrative Appeals Tribunal Act, the Child Support (Registration and Collection) Act, the Commonwealth Electoral Act, the Family Law Act, the Federal Circuit and Family Court of Australia Act, the Federal Court of Australia Act, the Judiciary Act, the Military Rehabilitation and Compensation Act, the A New Tax System (Family Assistance) (Administration) Act, the Paid Parental Leave Act and the Social Security (Administration) Act.

Amongst other things, this bill would empower the president of the Administrative Appeals Tribunal, the AAT, to direct that a proceeding in the Social Services and Child Support Division be referred to an alternative dispute resolution pre-hearing process. It would allow the president of the AAT, or an authorised member or officer of the AAT, to summons a person to give evidence or produce documents across all of the divisions of the AAT, including the Taxation and Commercial Division and the Social Services and Child Support Division. It would clarify that the AAT's power to correct errors in the text of a decision or in a written statement of reasons for a decision can only be exercised by the president or the member who presided at the preceding. It would clarify that hearings conducted remotely using videoconferencing technology in a federal court, including the Family Court, are in open court. It would update the terminology regarding the jurisdiction of a single justice of the High Court sitting in chambers or of another court exercising federal jurisdiction sitting in chambers.

The bill will amend the Admiralty Act to bring the admiralty rules into alignment with other rules of federal courts, such as by, among other things, declaring the admiralty rules to be rules of court. It will amend the Foreign Judgments Act, the Foreign States Immunities Act and the International Arbitration Act to provide certain procedural protections to foreign states, and it will remove the ability to hear appeals from the Supreme Court of Nauru in the High Court of Australia. All of these amendments are supported by Labor.

Three aspects of the bill, however, did attract controversy, and they are as follows. The first is the proposed amendment to the Federal Court of Australia Act that would have allowed the Federal Court, in the exercise of its appellate jurisdiction, to provide short-form reasons rather than detailed judgements where a decision dismissing an appeal did not raise any questions of general principle. This has been criticised by, among others, the Asylum Seeker Resource Centre, the Josephite Justice Office and the Law Institute of Victoria on the basis that it will disadvantage unrepresented applicants, including those seeking review of refugee decisions.

There was also a proposed amendment to the Administrative Appeals Tribunal Act to remove the role of the Governor-General in the appointment process for the AAT. The bill would have conferred that authority on the minister. However, there have been notable institutions that have expressed concern about this change—again, the Law Institute of Victoria and Asylum Seeker Resource Centre, among others—principally on the basis that there is no obvious justification or reason for it and the change could undermine the independence of the appointment process. There is no obvious justification or reason for this change. In fact, the Attorney-General's Department did not advance any justification or reason to the Senate committee inquiry into this bill at all. Its submission was completely silent on these amendments.

Thirdly, the bill would provide the same protection and immunity for immigration assessment authority reviewers as a justice of the High Court of Australia. Those protections are currently conferred on members of the AAT while they perform their duties. Again, the Law Institute of Victoria and the ASRC and others have argued that such protection should not be extended to IAA reviewers because, unlike AAT members, IAA reviewers do not have to take an oath of office, do not have special skill or knowledge, do not have fixed terms in advance and are not statutorily required to disclose conflicts of interest. Unlike AAT members, IAA reviewers are also not required to afford procedural fairness to applicants. Fortunately the Senate—with some concurrence of the government—has agreed to amendments to resolve these issues. We thank the government for agreeing to all of these amendments in the House.

As many of you will know, before entering this place I was a lawyer. Indeed, I was president of the Law Society of Western Australia, director of the Law Council of Australia and inaugural chair of Law Access in WA. Access to justice is very important to me, and the AAT plays a critical role in providing access to justice. It may be surprising for people to know that up until the creation of the AAT there was no formal and established way across the Commonwealth to access merits based review of administrative decisions. Indeed, litigants were limited to accessing the prerogative writs through the High Court, and later through the Federal Court system, for judicial review of such decisions. It was the creation of the AAT and its sister tribunals that provided that broad basis for merits review of administrative decisions.

These decisions cover a wide array of decisions made by government and government officers, and they impact on the daily lives of Australians in many different ways. I'm sure many, if not all, members of this House have engaged with those agencies that frequently see their decisions appealed to the Administrative Appeals Tribunal or its sister tribunals or tribunals that have since been merged into the AAT. These, of course, include immigration matters, social security and Centrelink matters, Department of Veterans' Affairs matters and taxation issues. All of these are really important to everyday Australians in their dealings with government. It is important in that regard not just that there is a process to access merits review but also that that process is accessible to ordinary Australians and that it does not come with a lot of the difficulties and costs associated with accessing a court process. This is particularly the case with a merits review process such as the AAT should provide because it provides the individual with an opportunity to present new and additional information to a decision-maker in the AAT about a decision that government has taken and have that decision made again. It is not limited just to causes for appeal to a court through a judicial review process.

But if our courts and tribunals are not accessible, then, of course, they are not an effective way for Australians to assert and be guaranteed their legal rights—as in this case, the case of the Administrative Appeals Tribunal, in particular—the citizens' rights against the government. Unfortunately, the way this government is administering the AAT is resulting in politicisation and, in turn, massive delays, and justice delayed is justice denied. Last year, in the same week that its own budget papers confirmed that wages would be going backwards for another four years, the Morrison government reappointed four of its mates to these taxpayer funded jobs. Since 2013 the Liberals have, staggeringly, appointed at least 79 of their mates to the AAT. In contrast, in the six years of the Labor government, from 2007 to 2013, there were just two Labor linked appointments to the AAT—both experienced and highly skilled lawyers welcomed by the then Liberal opposition. The appointment of Liberal mates to the tribunal is so out of hand that even former High Court Judge Ian Callinan QC had to recommend to government that all further appointments be on the basis of merit. One would have thought that all appointments to the AAT were based on merit. But it turns out that this may not be the case.

Each year, tens of tens of thousands of Australians rely on this tribunal to conduct an independent review of decisions by Commonwealth ministers and public servants. These decisions can have life-altering impacts—such as whether an older Australian receives the age pension, whether a veteran receives a service pension, whether a participant in the NDIS receives funding for essential support or whether a refugee obtains a visa. The time frames in which people are seeking justice or review through the AAT is something that we all should now be ashamed of. Let me provide an example from a constituent. One of my constituents lodged an appeal through the AAT. It took over a year for the AAT to acknowledge receipt of that appeal—not to hear it, not to deal with it, not to provide a decision, but just to acknowledge receipt of it. After one year, it still wasn't scheduled for any procedural process through the tribunal, let alone an actual hearing. This is an example of something we are seeing repeated across the registries of the AAT around the country. There are clearly issues in the administration of the AAT occurring under this government, but a big part of it is that a large number of members of the AAT are not fully competent to perform their role in the timely manner in which they need to do that. That is holding up justice. That is preventing citizens from receiving justice. It is preventing them from being able to hold their own government to account to provide the supports they need and deserve, and which we as a parliament have legislated for them to have access to.

While membership of a political party is not in any way a disqualification for appointment to a tribunal, I readily acknowledge that many of these member are undoubtedly competent and highly qualified. The tribunal, though, is now rightly perceived by many in the community as hopelessly and absurdly politicised. And, worse, these jobs for mates, of which there have been 79 since 2013—that's nearly 10 a year—have resulted in the work that the AAT needs to do not being done and not being doing in a timely manner. It is denying justice. So, just like the current Liberal government, sadly, the AAT is failing to deliver outcomes to deliver justice for Australians. Australians deserve a better future for the AAT and a better future for our justice system.

4:13 pm

Photo of Jason FalinskiJason Falinski (Mackellar, Liberal Party) Share this | | Hansard source

There have been some egregious amendments before this parliament, but this one probably tops the list. Once again, we have the Labor Party playing games, this time with our justice system. Why do they do it? So they can post on one of the most discredited websites on Australia, the one which is run by OpenAustralia Foundation. They put up articles claiming that people 'strongly voted' for or against particular issues in this parliament. Newsflash to all the lefties out there, most of whom can only think what they are told to think: you can't 'strongly vote' for stuff in this chamber; you can only vote for it or against it. Those opposite have the gall to come in here and lecture us about justice. They wouldn't know justice if it slapped them in the face with a three-day-old salmon fish. That's how appalling this amendment is. They cannot help but simply play games. It never stops—and they seek to be the alternative government of this country! Their bedfellows on the crossbench never stop lecturing us about honesty and integrity—oh, and climate; how could I forget climate! I wonder what OpenAustralia Foundation will make of some of their donations today.

The member for Shortland can get upset, but I bet that, in the seat of Shortland, the Labor Party preferences these fake independents. David Hardaker at Crikey said that I was 'frothing at the mouth' when I made this speech two months ago. If I was frothing at the mouth back then, I'm as angry as hell today. The people of Australia deserve to know the truth—and they deserve to know the truth from those opposite, who cannot help themselves; they come into this chamber today and seek to play games with our justice system. Their mates on the crossbench take money not just from coal investors, but from a director of a coal company; and not just any coal company, but a coal company purchased from Eddie Obeid; and not just an ordinary investor, but an investor who had an adverse finding against them by the New South Wales Independent Commission Against Corruption; and not just any donation, but the largest donation that they received; and not just from a number of transactions, but a single transaction that was then split eight ways. And why was that done? So it could be under the threshold, so they didn't have to declare it. And how did all this come to light? Did those opposite front up? Did those opposite tell people how this happened? Did they admit to their administrative mistake? No, no, no. We had to wait for the Australian Electoral Commission to do an audit.

The member for Shortland can shout as much as he likes, but the fact is that we know he and his party will be preferencing those who claim they're in favour of the climate, while taking donations from coalminers; who say they're in favour of honesty, while trying to hide these donations; and who say they're in favour of integrity but couldn't tell us what happened until there was an audit by the AEC. And that's who the Labor Party prefers to be in parliament. And then they put the votes up on the OpenAustralia Foundation website. I've got to say that the OpenAustralia Foundation should not have tax deductibility because it isn't a charity. But it does. And I suspect they probably misled the ATO when they received that status as well.

So I want David Hardaker to write on Crikey today that he was wrong and that what everyone on this side has been saying about Simon Holmes a Court, Climate 200, the fake independents, the crossbench and the Labor Party might actually be right. That's all I want. I just want those people who claim that democracy only thrives when we have a well-informed electorate to do some of that informing today, rather than hiding the truth from their readers. It's time to fess up and admit that the people you have been promoting, shamelessly, for three years have actually been taking donations from coalminers and coal investors who bought their coalmine from Eddie Obeid—so let's leave integrity out of this for the minute!

When it comes to the actual administration of justice, this bill makes that justice and that administration better. But those opposite come in and make all sorts of claims and allegations, under parliamentary privilege, without being able to back up any of it. This is a good bill. It should have the support of all sides of the House. And the Labor Party should stop this nonsense and the silly games and moving second reading amendments just so their undergraduate politics can play out on the internet.

4:19 pm

Photo of Ben MortonBen Morton (Tangney, Liberal Party, Minister Assisting the Prime Minister and Cabinet) Share this | | Hansard source

I thank all members for their contribution to this debate—in particular the member for Burt. I know he's very interested in these matters, and his contribution can only be described as an audition for the position of shadow Attorney-General after the election. The government is committed to ensuring the continued improvement of the Australian legal system. The introduction of the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 is another step the government is taking to ensure that our legal system keeps pace with community expectations.

Importantly, this bill will improve the administration of the Australian federal courts and the Administrative Appeals Tribunal, known as the AAT. It makes a number of amendments to enhance the operation of the AAT and harmonise procedures across most of its divisions. The amendments impact the Administrative Appeals Tribunal Act 1975, the Military Compensation and Rehabilitation Act 2004, the Commonwealth Electoral Act 1918 and a number of pieces of legislation in the Families and Social Services portfolio.

The bill amends the Federal Court of Australia Act 1976 and the Judiciary Act 1903 to modernise practices, which will produce efficiencies in the hearing of matters. It makes minor amendments to the Federal Court of Australia Act, the Federal Circuit Court of Australia Act 1999, the Family Law Act 1975 and the Federal Circuit and Family Court of Australia Act 2021, to clarify that hearings conducted remotely using videoconferencing technology are exercised in open court. This clarification is particularly important due to the broader use of remote hearings since the beginning of the COVID-19 pandemic.

The bill makes amendments to the Foreign States Immunities Act 1985 to clarify the application of this act to ex parte proceedings, to ensure that foreign states are afforded appropriate procedural immunities. Furthermore, the bill similarly extends these procedural protections to proceedings relating to the recognition of enforcement of a foreign award against a foreign state, pursuant to the International Arbitration Act 1974.

The bill also clarifies that the Admiralty Rules 1988 are rules of court, and it applies certain provisions in the Legislation Act 2003 to the operation of those rules. This will exempt the rules from sunsetting but require that they be registered and published. This aligns the treatment of the Admiralty Rules with the rules of the Federal Court.

The bill repeals the Nauru (High Court Appeals) Act 1976, which was enacted to give effect to the agreement between the Australian government and the government of the Republic of Nauru for appeals to the High Court of Australia from certain classes of decisions in the Supreme Court of Nauru. This agreement was terminated on 13 March 2018, and as such the act is longer required.

The primary intention of this bill is to improve the efficiency and operation of the AAT and to clarify and improve the operations of our federal courts. Ultimately, this will benefit those Australians seeking to resolve disputes in our legal system I commend the bill to the House.

Photo of Kevin AndrewsKevin Andrews (Menzies, Liberal Party) Share this | | Hansard source

The original question was that the bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after that be omitted with a view to substituting other words. The question before the House now is that the amendment be disagreed to.

Photo of Andrew WallaceAndrew Wallace (Speaker) Share this | | Hansard source

The question is that the amendment be disagreed to.