Thursday, 2 September 2021
Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021; In Committee
[by video link] by leave—I move amendments (1) and (2) on sheet 1418 together:
(1) Schedule 1, item 45, page 17 (lines 4 and 5), omit the item, substitute:
45 Paragraph 7(2)(b)
Omit "; or", substitute ".".
45A Paragraph 7(2)(c)
Repeal the paragraph.
45B Subsection 7(3)
Repeal the subsection, substitute:
(3) Subject to subsection (4), a person must not be appointed as a senior member or other member unless the person is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years.
(4) A person may be appointed as a senior member or other member of the Taxation and Commercial Division if the person is:
(a) a member of CPA Australia who:
(i) holds a Public Practice Certificate issued by CPA Australia Ltd; and
(ii) is entitled to use the letters "CPA" or "FCPA"; and
(iii) is subject to, and complies with, CPA Australia's continuing professional education requirements; or
(i) holds a Certificate of Public Practice issued by ICAA; and
(iii) is subject to, and complies with, ICAA's continuing professional education requirements; or
(c) a member of the Institute of Public Accountants (IPA) who:
(i) holds a Public Practice Certificate issued by IPA; and
(iii) is subject to, and complies with, IPA's continuing professional education requirements.
45C After subsection 8(3)
(3A) To avoid doubt, a member is not eligible for re-appointment to an office unless the member meets the requirements in section 7 for appointment to the office.
(2) Schedule 1, item 60, page 19 (before line 2), before subitem 60(1), insert:
(1A) The repeal of paragraph 7(2)(c) of the Administrative Appeals Tribunal Act 1975 by this Part applies in relation to appointments or re-appointments made on or after the commencement of this item.
(1B) The repeal and substitution of subsection 7(3) of the Administrative Appeals Tribunal Act 1975 by this Part applies in relation to appointments or re-appointments made on or after the commencement of this item.
This amendment is the one that I talked about in my second reading speech. It is time to stop the rot and stop appointments of people who are political mates of Attorneys-General. Whilst this is not a complete remedy, it goes a long way, and I urge the chamber to support it.
Labor does not support this amendment. Senator Patrick has argued that this amendment would ban political appointments, but that is not the case. It would simply limit the Liberals to appointing mates who have law degrees. Indeed, many of the Liberal mates the government has appointed to the tribunal have been lawyers. There are many examples of this, including William Frost, who is now paid $250,000 of taxpayers' money each year. He went straight from Mr Porter's office to his plum new job on the tribunal. William Frost is a lawyer. For all we know, he may be a very good lawyer and he may even be a highly competent tribunal member. I note Senator Seselja assures us he's a very good lawyer, so now I'm wondering. But his appointment, along with the appointment of so many other mates of Christian Porter and other ministers of this government, gives rise to an understandable perception in the community that the tribunal is not independent of government, that it is not fair and that it is not impartial. Senator Patrick's amendment would not address that problem.
It is a significant amendment, but not for the reasons Senator Patrick suggests. The AAT is not a court; it's a merits review tribunal. The role of a tribunal member is to stand in the shoes of the original decision-maker, such as a minister or a senior public servant. Ministers and senior public servants are not required to be lawyers or certified accountants, so why should all tribunal members—people who are required to stand in the shoes of the original decision-maker—have to be lawyers? There is a legitimate and important debate that we could have about whether the AAT should be more like a court in terms of who sits on it. Perhaps, as Senator Patrick suggests, the tribunal should be made up of only lawyers. Perhaps the parliament should say that 90 per cent of tribunal members must be lawyers or that certain divisions of the AAT should only be made up of lawyers whereas other divisions could have greater diversity. These are legitimate questions, but they are weighty ones. Just to ask these questions is to illustrate that Senator Patrick's amendment has significant implications for the tribunal which extend well beyond the problem of political appointments.
Labor has been consistent in calling out the government on its brazen stacking of the AAT, and we'll continue to do so. Over the last eight years, about 80 Liberal mates have been appointed to the tribunal, many of them lawyers. It's a shameful record and it has done great damage to the tribunal and to the standing of the tribunal in the community. Any suggestion that Labor did it too is completely false. In fact, over the six-year period when Labor was last in government, only two people with Labor connections were appointed to the tribunal, and both were highly qualified and uncontroversial appointments which enjoyed bipartisan support. As it happens, they were also both lawyers. One was Duncan Kerr SC, a fantastic appointment warmly welcomed by the then shadow Attorney-General George Brandis. The other is now an associate professor of law, Linda Kirk, another appointment supported by the Liberals.
Labor has always maintained that membership of a political party is not a disqualification for appointment to the tribunal. But, under the Liberals, it has become the main qualification, and the tribunal has been turned into a taxpayer-funded gravy train for Liberal mates as a result. There are 80 Liberal mates in secure jobs, collectively taking home many millions in taxpayers dollars each year. It's a disgrace. There is nothing in section 7 or anywhere else in the AAT Act that requires the Liberals to stack the tribunal, and the amendment proposed by Senator Patrick would not stop them from stacking the tribunal with more of their mates. The best way to stop political appointments to the AAT is not to support this amendment; it's to vote the Liberals out at the next election.
[by video link] I move amendment (1) on sheet 1419:
(1) Schedule 1, page 21 (after line 17), after Part 10, insert:
Part 10A — Appeals to courts
Administrative Appeals Tribunal Act 1975
65A Paragraph 43(5AA)(b)
Omit "on a question of law", substitute "for error of law".
65B Part IVA (heading)
After "Appeals", insert "for errors of law".
65C Subsection 44(1) (heading)
Omit "on question of law", substitute "for error of law".
65D Subsection 44(1)
Omit "on a question of law", substitute "for error of law".
65E Subsection 44AAA(1)
Omit "on a question of law", substitute "for error of law".
65F Application provision
(1) The amendment of paragraph 43(5AA)(b) of the Administrative Appeals Tribunal Act 1975 made by this Part applies in relation to a written notice given on or after the commencement of this item.
(2) The amendments of Part IVA of the Administrative Appeals Tribunal Act 1975 made by this Part apply in relation to an appeal that is instituted on or after the commencement of this item.
This is a very technical amendment, but, again, it's a recommendation that flows from Justice Callinan, the esteemed High Court Justice—and there has been a lot of judicial debate over this question—about whether or not the tribunal can be appealed on a question of law, or preferably, as my amendment seeks to do, on an error of law. That might not seem very different for people who are not lawyers, but, as someone who has had to deal with these sorts of things, it does make a fairly big difference.
At this point in time, I will comment that, in relation to my AAT matter on the national cabinet, it appears as though the government is not appealing that. They are seeking apply Justice White's ruling by way of legislation. I will know later tonight. I will leave that as a comment. I commend my amendment to the chamber.
Labor does not support these amendments. Senator Patrick's amendments would implement measure 23 of former High Court Justice Ian Callinan's review of the AAT, which says:
Amend s 44 of the AAT Act to provide for appeals from decisions of the AAT, for error of law in lieu of a question of law.
Mr Callinan offers only a very brief explanation for this recommendation. He writes:
The identification of a discrete question of law can be problematic. Fact and law are sometimes inextricably mixed. For clarity, appeals should be for errors of law rather than on a question of law.
With all due respect to Mr Callinan, his report does not identify an actual problem with the existing language in section 44 of the AAT Act. He merely asserts that it is unclear.
While we are open to considering this amendment in the future following a proper consultation process, we do not think it has been sufficiently explained or justified by Mr Callinan. Nor was this recommendation considered by the Senate Legal and Constitutional Affairs Legislation Committee in relation to this bill.
The opposition opposes item 64 in schedule 1 in the following terms:
(1) Schedule 1, item 64, page 21 (lines 7 to 14), to be opposed.
In its current form, the bill would confer the same protections and immunities on Immigration Assessment Authority reviewers as are currently conferred on High Court judges and members of the AAT. In Labor's view this proposal is misconceived. It is wrong, and this amendment would remove that aspect of the bill.
Reviewers of the Immigration Assessment Authority should not be treated the same way as judges or AAT members for the simple reason that they are not required to act like judges or AAT members. For example, unlike AAT members, reviewers of the 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.
I understand the government will be supporting this amendment. On behalf of the shadow Attorney-General, I'd like to thank the Attorney-General and her office for her constructive engagement and for agreeing to remove this aspect of the bill. I commend this amendment to the Senate.
As I noted in my second reading contribution, Labor opposes the proposal to change 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, and I'm moving this amendment to remove that aspect of the bill. I understand the government will be supporting this amendment, and again I thank the Attorney-General for listening to our concerns. I commend this amendment to the Senate.
It being one o'clock, the time for the debate has expired. The question is that items 101 and 102 of schedule 1 stand as printed.
The opposition opposed items 101 and 102 of schedule 1 in the following terms—
(2) Schedule 1, items 101 and 102, page 30 (lines 14 to 23), to be opposed.
The TEMPORARY CHAIR: The question now is that the remaining amendment on 1404 revised, circulated by the opposition, be agreed to.
Opposition's circulated amendment—
(1) Schedule 1, page 30 (line 13), omit the heading.
Question agreed to.
The TEMPORARY CHAIR: The question now is that item 45 stand as printed.
The opposition opposed item 45 of schedule 1 in the following terms—
(1) Schedule 1, item 45, page 17 (lines 4 to 5), to be opposed.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.