Monday, 11 May 2015
Tribunals Amalgamation Bill 2014; Second Reading
Labor is pleased to support the Tribunals Amalgamation Bill 2014. I will touch on some of its history before I go into some more detailed considerations. Proposals for the amalgamation of Commonwealth administrative tribunals into one super tribunal have been made since the very creation of the current administrative law framework in the 1970s. This bill stems from work begun by the Keating government, which referred tribunal reform to the Administrative Review Council, or the ARC. The ARC reported in late 1995 recommending that an amalgamated administrative review tribunal be formed. That was around time I entered the Senate, 20 years ago. The Labor government did not have the time to respond to that 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 from the ARC recommendations and would have compromised the independence of the proposed ART. The bill was defeated in the Senate back in 2001.
This bill is much less controversial. For the most part, its provisions affect a simple consolidation of existing tribunal architecture. As has been longstanding Labor policy, we have no objection to such 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; and it will prove more convenient for practitioners. Amalgamation, Labor hopes, will improve the quality and the reputation of the entire Commonwealth merits reviews system.
While Labor support the principle of this legislation, we do support some small changes, particularly where the bill effects changes to the current AAT practices. Senators who have read through this bill will appreciate its complexity. Intertwining four large Commonwealth merit review jurisdictions is indeed easier said than done. Given the complexity of the legislation, the broad range of stakeholders who stand to be affected and the unhappy history of tribunal amalgamation proposals, Labor referred the bill to the Senate Legal and Constitutional Affairs Legislation Committee. I would like to thank each of the organisations that participated in the committee's inquiry. The committee tabled its report back in March.
The committee supported the passage of this bill. Notably, two amendments to the bill were unanimously recommended by senators on the committee. The committee 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 papers only, even where the parties do not consent. We welcome this recommendation. It is important not only that justice be done but that it be seen to be done. Tribunal applicants should have a right to a hearing where they consider this to be necessary to their claim being properly considered.
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. I thank government members of the committee for agreeing to these proposals.
There are, however, further changes to the bill which Labor supports and which government members of the committee did not concur with. I will consider each of those in turn. I ask government senators and senators of the crossbench to support these proposals. We are of the sincere opinion that each of these amendments is a serious, considered and worthwhile improvement to what is already in the main a good bill. The first recommendation, as foreshadowed in the additional comment, is that Labor move an amendment to remove the measure in the 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. This is 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 are protected by the nomination required in the act. No compelling reason has been provided for why this practice should be departed from.
The second recommendation, again as foreshadowed in the additional comment, is that Labor move 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 remove 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 from the AAT, the Family Court has noted that it is the court with expertise in child support matters. It is not clear that any convenience achieved by the change in venue for what the department concedes is a small number of matters would outweigh the disruption of accepted practice.
A third recommendation, again foreshadowed in Labor senators' additional comments, is that Labor move an amendment to remove the measure in the bill which removes 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 goes to the independence of the tribunal and, while the SSAT and MRT-RRT presently allow for removal of members by the Governor-General, amalgamation should lift those tribunals to the present standard of the AAT rather than lowering the standards of the entire jurisdiction.
A fourth recommendation, again foreshadowed in our additional comments, will remove an amendment in the bill to create a specialist FOI division in the new, amalgamated AAT. If passed, the government's Freedom of Information Amendment (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 of the Office of the Australian Information Commissioner fulfils that role. To alleviate concerns about the loss of specialist expertise in handling FOI disputes which would be caused by the FOI bill, a specialist division of the AAT should be created.
In conclusion, as I said, Labor supports the spirit of this bill. Now and in the past we have supported in principle the amalgamation of Commonwealth merits review tribunals. In the main we support the detail with which it implements amalgamation. This bill effects implementation with minimal ancillary changes to current working arrangements. We thank the government for the work they have done on this. However, as I have said, we do have a handful of positive suggestions, and I commend the bill and those amendments to the Senate.
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.
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.