Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

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. Among other things, the bill would empower the president of 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 will amend various acts to allow the president of the AAT or an authorised member or officer of the AAT to summon a person to give evidence or produce documents across all divisions of the AAT, including the Taxation and Commercial Division and the Social Services and Child Support Division.

The bill would clarify that the AAT's power to correct errors in the text of a decision or in a written statement of reasons for the decision can only be exercised by the president or the member who presided at the proceeding. It would clarify that hearings conducted remotely using video-conferencing technology in a Federal Court, including the Family Court, are in open court. It would update terminology In the Judiciary Act regarding the jurisdiction of a single justice of the High Court sitting in chambers or of another court exercising federal jurisdiction sitting in chambers from the existing references to a justice 'sitting in chambers' to a justice 'sitting other than in open court'. Finally, 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. These are all useful amendments and Labor supports them.

There are, however, three aspects of the bill we do not support. The first of these relates to the role of the Governor-General in the appointments process for members of the Administrative Appeals Tribunal. Currently, a person may not be appointed as a deputy president or as a member of the tribunal unless, in the opinion of the Governor-General, the person has special knowledge or skills relevant to the duties of a deputy president or member. While the bill would not change the fact that appointments would still be made by the Governor-General, the bill would amend the Administrative Appeals Tribunal Act to require the minister, as opposed to the Governor-General, to form an opinion as to whether a person has special knowledge or skills relevant to the duties of a deputy president or member.

While the amendment is unlikely to have any significant practical impact on the appointments process for tribunal members, the government has failed to make the case for why such a change is necessary or desirable. Given the Morrison government's shameful record of appointing almost 80 Liberal Party associates and former Liberal Party politicians, staffers and donors as members of the tribunal, Labor will not support an amendment which, even just at the level of perception, further undermines the independence of the appointment process.

The second aspect of the bill we do not support is the extension of the same protections and immunities to Immigration Assessment Authority reviewers as are currently provided to High Court judges and members of the Administrative Appeals Tribunal. The Legal and Constitutional Affairs Legislation Committee recently completed an inquiry into this bill, and, as Labor senators of the committee pointed out in their minority report, the submissions from the Department of Home Affairs and the Attorney-General's Department did not advance a single argument in favour of this aspect of the bill. The half-page submission from the Department of Home Affairs merely acknowledged the amendment. The submission from the Attorney-General's Department did not refer to the proposed amendment at all. By contrast, the Law Institute of Victoria, the Asylum Seeker Resource Centre and a number of other submitters made detailed and cogent arguments opposing this amendment. These submitters drew the committee's attention to the fact that, unlike members of the tribunal, reviewers of the so-called Immigration Assessment Authority do not have to take an oath of office, do not have to have special skills or knowledge, do not have terms fixed in advance and are not statutorily required to disclose conflicts of interest. Unlike AAT members, Immigration Assessment Authority reviewers are also not required to afford procedural fairness to applicants. Labor has long held concerns about the so-called fast-track assessment process under the Immigration Assessment Authority. That process is neither fast nor fair, and this parliament should not endorse any measure which, even implicitly, suggests that the fast-track process is somehow the equivalent of, or even similar to, a normal judicial or tribunal process.

Finally, Labor opposes the amendment to the Federal Court of Australia Act 1976 to allow 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 does not raise any questions of general principle. As Labor senators of the Legal and Constitutional Affairs Legislation Committee noted in their report, that aspect of the bill has been criticised by 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. We share those concerns. In the absence of any compelling counterargument from the government, Labor does not support that aspect of the bill.

I should add that the Attorney-General and her office have been engaging constructively and in good faith with the shadow Attorney-General and his office in relation to Labor's concerns. In the interests of getting this bill through the parliament as soon as possible, I understand that the government has indicated that it will agree to some, though not all, of Labor's amendments.