Monday, 11 May 2015
Tribunals Amalgamation Bill 2014; Second Reading
I rise to speak on the government's Tribunals Amalgamation Bill 2014, which provides the legislative framework for very significant reforms to Australia's merits review system. If enacted, this bill will amalgamate four separate specialist Commonwealth tribunal systems into one mega-administrative appeals tribunal. As a lawyer and as a former deputy president of the Guardianship Board, I care deeply about ensuring that those who are tasked with administering the law in Australia, from Centrelink officers right through to ministers, do so fairly and in a way that preserves and promotes the idea of natural justice. I also understand the need to make sure that our system of administrative review is efficient and a productive use of public moneys.
For these reasons, I support many aspects of this bill that have been designed following targeted consultation to improve the efficiency of the system, and I commend the government for undertaking that targeted consultation. However, this bill is not just about back-end amalgamation; it also changes how people who will be affected or are affected by government decisions—such as decisions about their welfare payments, whether or not they can get a visa or whether they can access certain information—can seek independent review of those decisions to ensure that they were made fairly and properly in accordance with the law. That is essentially what a merits review of government decisions means: it means that it is a check and balance on the powers and decisions of executive government.
I am a big rap for tribunals, and it is because of my experience as a lawyer who had clients who experienced tribunals and then later in my legal career, when I worked extensively as a member of tribunals. I worked on the Social Security Appeals Tribunal. I worked on the Residential Tenancies Tribunal, which is a state tribunal in South Australia, and on the South Australian Guardianship Board. I believe that, at their best, tribunals and boards provide a means of resolving disputes or achieving legal outcomes and of having important reviews and checks on government actions that affect people's rights, in a way—and I am going to borrow the terminology of the Social Security Appeals Tribunal for this—that is fair, just, economical, informal and quick.
I have always considered that tribunals are, indeed, what I would call the coalface of the legal system. They do a huge bulk of work in Australia. Their work and decisions affect many people in very practical matters that are very important to individuals in Australia. For many people, their appearance at a tribunal and the resolution of their dispute or the case that is being heard at a tribunal will be the first, and perhaps the only, experience that they will have of courts or the legal system in Australia. So I have always considered it absolutely vital that people have a fair and good experience of work right at the tribunal level, because essentially it is that experience which will reinforce people's view that Australia has a strong, fair, just, impartial and effective legal system, which will then of course encourage people to have more respect for the rule of law in Australia and go about their lives in that way. So I have always considered that, although perhaps there is not as much glory associated with the hard work and the many cases that tribunal members carry out, their work, as an important experience for Australian citizens of the legal system, is absolutely vital and that people go away feeling that they have been heard fairly, that their case has been considered without fear or favour and that they can have faith in the results of that decision-making process.
For these reasons, the changes that are proposed in this bill need to be carefully considered before we can be sure that they will result in a fair and just system, as well as a quick and cheap one. There are some issues that have been raised by people examining this particular bill. For example, certain reviews will be conducted 'on the papers', as it is called. Rather than having a dedicated hearing where the parties are given a chance to front up and put their case orally to tribunal members, the decision will be made on the basis of papers that are submitted, without the ability to interrogate orally or ask the parties to explain further the case that they are involved with. As Legal Aid New South Wales points out, this can make things much more difficult for a large number of tribunal users. That is particularly the case for people who may have limited education or written skills, because a lot of people are not particularly adept at putting their case—at knowing what is relevant and putting things in writing to best present the merits of their particular case. It will have an effect on people who have limited finances, because they will not necessarily be able to pay someone else to assist them in making their case on the papers. It will particularly affect, of course, people with limited English language skills—for obvious reasons—and people who may have serious physical or mental health issues.
As a previous member of a tribunal, and having worked on tribunals for a significant period of my legal career, I know from my own experience the benefits of having hearings where people can appear in person and put their case. Because it is usually an inquisitorial process whereby the tribunal member is very involved in asking the parties about the basis of their case, elucidating further information that may be necessary and clarifying things that are perhaps confused or not clear, it is a very important process of people feeling that they have had an opportunity to put their case as well as they can and to be heard. It is also very important that tribunal members engage in a process of active listening, and then people are likely to leave that experience and that process with their heads held high, feeling that, no matter what the outcome of the process—no matter what the decision—they have been properly heard. It is also often very useful to have the people there and to be able to question them, clarify things that are not clear and uncover information that otherwise would not be evident from the papers.
Another area of concern about this bill is that the proposed amalgamation will lead to a loss of specialist expertise which has been built up over time under the current specialist merits review system. An example of this is in the submission from the Family Court to the Senate Standing Committee on Legal and Constitutional Affairs, where they raise concerns that transferring the jurisdiction from the Family Court to the Federal Court would result in:
… greater fragmentation in the child support appellate jurisdiction, and a squandering of the considerable expertise already developed in the Appeal Division of the Family Court …
This bill also places limitations on the right of a party to be represented by a lawyer at a hearing in the proposed Social Services and Child Support Division of the amalgamated tribunal. Concerns that have been raised by interested parties and stakeholders are various, but there is one raised in the submission from Victoria Legal Aid, and I refer to that:
Given the inherently complex nature of social security law, access to legal representation for the preparation and conduct of hearings before the Tribunal is a proportionate response to addressing the structural inequality associated with the social security review processes.
As I said, I had the experience of working on the Social Security Appeals Tribunal in the mid-2000s. At that time, the tribunal dealt with hugely complex legislation with layers of decision making before those decisions even came to the tribunal, and I know those have increased since those times.
There are 12 social security acts alone, with significantly over 1,500 sections—I did not go through and count how many sections—that are within the jurisdiction of the Social Security Appeals Tribunal. The way that legislation interacts is hellishly complicated—the Social Security Act, the Social Security (Administration) Act, the A New Tax System (Family Assistance) Act, the A New Tax System (Family Assistance) (Administration) Act, the child support act, the Student Assistance Act and the Farm Household Support Act, and I could go on and on. The point is that it is an extremely complex jurisdiction. My experience was that people coming along to those hearings often did not have any real idea about the complexity of the jurisdiction. Having legal advice in some cases, where it is appropriate, was extremely helpful not only to the parties appearing but also to the tribunal members.
There are also concerns that I will raise about the independence of the newly amalgamated Migration and Refugee Division of the tribunal and concerns that they may be compromised by the requirement for the Attorney-General to get the okay of the Minister for Immigration and Border Protection before assigning a tribunal member to the division. What is that about? Why would the immigration minister be in a position to vet the appointment of an independent tribunal member whose competence and experience could properly and appropriately be judged by the Attorney-General, given that it is going to be legal competence and legal experience that would presumably mean that that person is suited to be able to fulfil a task which is about interpreting law?
These concerns are only heightened by the fact that, as a result of decisions by this government, many users of this tribunal are no longer able to access legal advice and information that they need beforehand to be able to understand tribunal procedures, present their case in a clear way or understand their rights if they receive an unfavourable decision. This government has axed the Immigration Advice and Application Assistance Scheme. As a result, many vulnerable users of the proposed Migration and Refugee Division of the amalgamated AAT will be left to navigate the complexity of refugee and immigration law without access to the independent assistance or legal advice of lawyers. That is why, too, the issue about security of tenure is extremely important for tribunal members. If people are to have an experience in tribunals and boards in Australia whereby they know that decisions have been made without fear or favour, without improper considerations like whether someone's job is on the line within a short period of time, we need to ensure that there is independence of appointment and security of tenure as long as possible. In this regard, I will be supporting the opposition amendment in relation to the AAT.
This bill has also been introduced against a backdrop of other changes to the landscape of administrative law at the Commonwealth level. These changes, if pursued, will see the abolition of the Office of the Australian Information Commissioner. This could have the effect of an increased number of applications for review of government decisions to refuse access to public information. These are all genuine concerns that have been raised by individuals and organisations with expertise and experience in the system of merits review at the Commonwealth level. They give rise to the need to be vigilant as to whether, in fact, this bill does preserve the rights and interests of tribunal users and does not jeopardise its fair decision making or its valuable specialist expertise, which can then lead to more effective and appropriate decision making.
I would like to quote from a significant stakeholder in this arena, the National Welfare Rights Network, who observed:
… access to a fair and effective tribunal for our vulnerable clients requires more than legislative rights of appeal. It is critical that tribunals are adequately resourced, that members are equipped with the necessary skills and expertise, that welfare rights services are well resourced and that there are appropriate case management procedures in place. Efficiency driven changes within the SSAT over recent years have, in our opinion, undermined the accessibility, efficacy and fairness of the SSAT.
So it would be deeply regrettable and have far-reaching consequences for the administration of law in Australia if the efficiency driven changes which are behind this bill were to undermine the accessibility, efficacy and fairness of the broader tribunal system. It would not just have an individual impact on those people who use the system. Arguably, it would have a detrimental effect on the system of rule of law and the attitude of Australians towards the legal system more generally.
For these reasons, the Australian Greens want to see this amalgamated tribunal system subject to comprehensive review within 24 months of coming into operation. That would be an important opportunity to hear from tribunal users, members and practitioners, as well as other interested parties, on whether the bill has been successful in meeting its objectives of enhancing the efficiency and effectiveness of the Commonwealth merits review jurisdiction while at the same time preserving what is absolutely fundamental—that is, fair decision making, procedural fairness rights and specialist expertise, which makes tribunals so effective at what they do. The Greens will be moving an amendment for such a review—a comprehensive review—within 24 months of the new tribunal coming into operation. I urge all senators to support that Greens amendment.