Monday, 11 May 2015
Tribunals Amalgamation Bill 2014; Second Reading
May I thank honourable senators for their contributions. Although the Tribunals Amalgamation Bill is not a very controversial piece of legislation, it is in fact a very significant one because it represents the most significant reform to Australian administrative law since the creation of the Administrative Appeals Tribunal in 1975. In many ways the legislation before the Senate chamber today is a tale of two Kerrs—a tale of two Justice Kerrs. The first of them is the President of the Administrative Appeals Tribunal, Justice Duncan Kerr. He was appointed to that position with the support of the then opposition during the period of the Labor government, Justice Kerr himself being a former Minister for Justice and briefly Attorney-General. I want to take the opportunity of these remarks to thank Justice Duncan Kerr for the exceptional level of involvement he has had with these reforms. We have had many meetings in the last year or more and it is not an exaggeration to say that the bill in its current shape would not have been possible without the very considerable input and intellectual effort and engagement of Justice Duncan Kerr. There is another Justice Kerr lurking in the background of this debate—that is, of course, the great Sir John Kerr. It was Sir John Kerr who, I think as a member of the Commonwealth Court of Conciliation and Arbitration in the 1970s, was the author of the Kerr report of 1971. The Kerr report of 1971 was the basis of the wholesale reform to the Australian administrative law enacted, I am reasonably confident in saying, with bipartisan support in 1975 during the period of the Whitlam government. The work of this bill is in a sense to recapture the simplicity which Sir John Kerr envisaged for the Australian system of administrative law when he wrote the Kerr report in 1971.
This has been a very long time coming. The law reform to which this bill gives effect was first foreshadowed as long ago as 1995 during the dying days of the Keating government. It has taken many turns of the political cycle to see it come to fruition, but it does come to fruition in the Senate today. I want to thank those who have been involved over all those many long years in the process of enabling this law reform to come to completion today. I want to thank the opposition for their support for the bill—this has been a largely bipartisan endeavour. As I said earlier, it should not be a particularly controversial bill. It has the benefit of rationality and simplicity—although that seems to have escaped Senator Wright, and I will return to her remarks in a moment. Can I on behalf the government thank Senator Collins and through her Mr Dreyfus, who has shown a spirit of cooperation in relation to this proposal. Indeed, but for the change of government in 2013, it may well have been Mr Dreyfus who was introducing this bill rather than me. This is, as I say, an example of healthy cooperation between the two sides of politics.
A number of Labor Party amendments have been circulated in the chamber. Can I indicate that the government supports all but one of those amendments. The amendment that the government does not support is in relation to the destination of an appeal in relation to children's matters. When Senator Collins moves that amendment I will use that occasion to explain why the government does not think it is a good idea. Otherwise, the opposition amendments are supported.
Can I deal with a couple of the observations that fell from Senator Penny Wright on behalf of the Australian Greens. Senator Wright, you missed the point when you said that the consolidation of the various merits review tribunals into a single tribunal might run the risk of a loss of expertise. What you did not say, and evidently you are unaware of this, is that the new amalgamated tribunal will be divisionalised. All the members of the Refugee Review Tribunal, the Migration Review Tribunal and the Social Security Appeals Tribunal who sit in those topic-specific tribunals at the moment will be incorporated into the amalgamated tribunal—so the very self-same members who adjudicate those matters at the moment in their own stand-alone tribunals will continue to adjudicate the same matters as members of relevant divisions of the unified Administrative Appeals Tribunal. The loss of professional expertise which you apprehend simply will not occur. I am surprised that you, Senator, as somebody who tells the Senate that you have practised extensively in tribunal matters, would say that there is some risk in amalgamating into a single unified tribunal various topic-specific subject matters, because not only will there be specific divisions to maintain the relevant expertise but also, of course, the principles of merits review are uniform across all topic-specific matters.
We have in Australia, and this has been observed by international commentators not seldom, an excellent system of administrative law. The system created as a result of the Kerr report of 1971 was at the time regarded as world leading and it remains the case that Australian administrative law, by comparison with the British system and by comparison with analogous European systems for example, is greatly admired. But if there is one problem that Australian administrative law has faced, which has perhaps diminished its efficacy, it is the profusion in more recent years of a multiplicity of topic-specific tribunals. There is one set of rules for administrative review. The rules governing administrative review are generic
They are applicable equally, whatever the subject matter might be. In fact, there is a risk that, if those principles are applied by different tribunals sitting in a jurisdictionally self-contained way, an inconsistency of approach may develop. That can only then be corrected when there is an appeal to the Federal Court. That is not world's best practice.
What is best practice is to have the generic principles governing administrative review uniformly applied by the same tribunal, while recognising the specialist expertise in certain particular fields by allocating the members of the tribunal among particular divisions. That is the very thing that this legislation does. It recaptures in a lineal and crystalline way the very essence of the recommendations of the Kerr report of 1971, which was embodied in the original Administrative Appeals Tribunal Act.
I will not detain the Senate with reflecting on either observations you have made, but the principal observation you have made not only is wrong but in fact attacks the principle of uniformity and integrity of approach across the whole of Australian administrative law. It is for the same reason, by the way, Senator Wright, that state governments—including state governments in the states controlled by the Labor Party—have consolidated administrative review functions into single tribunals which deal with a wide range of topic-specific legislation.
With those words, I will sum up the debate. It is nice to be able to conjure, in 2015, the spirit of that great Australian Sir John Kerr once again. I commend the bill to the Senate.
Question agreed to.
Bill read a second time.