Senator COONEY (8:15 PM) —I am pleased to follow Senator Schacht, who talks about the cost adjusters. Years ago, he was the person that suggested that the Senate Legal and Constitutional Affairs Committee undertake that task of looking at the cost adjusters, and I think much has flowed from that, not only through the Senate but generally throughout the law. As was said in the second reading speech and indeed in the explanatory memorandum, the idea is to get justice at as reasonable a price as possible. That is an important matter that has been weighed in the balance now for quite some time, going back to those times when Senator Schacht suggested we undertake an examination of this area.

The opposition supports this Migration Legislation Amendment Bill (No. 1) 1998 , but there are some problems with it which I want to talk about—not so much about the bill but more about the attitude that is adopted by those presenting the bill. Under `Financial impact statement', paragraph 5 of the overview of the explanatory memorandum illustrates what I mean. It says:

The primary aim of the changes being introduced to the RRT is to produce faster decision making.

That sends out a message that what this is all about is to expeditiously get some sort of decision. I am sure the parliamentary secretary, who is in the chamber, would not go along with what might follow from that because she is a person who is dedicated—as indeed is the minister—to the issue of justice, but the message that comes out from that statement is a worrying one. I will repeat it:

The primary aim of the changes being introduced to the RRT is to produce faster decision making.

I would have hoped that the primary aim of the changes was to ensure that—

Senator Schacht —Justice was done.

Senator COONEY —That justice was done, as the shadow minister said. There are some other signs that the approach taken by those preparing this legislation is not so much concerned with giving people a fair hearing but concerned more with saving money or having some sort of hearing—whether that hearing has substance or not being an irrelevant issue. In other words, you can have a situation where you have an illusion of justice, where what is applied is a form rather than a substance, with the person presiding over the hearing being directed and being under all sorts of restraints and not able, therefore, to bring forth justice in the way that is needed. The second reading speech says:

Taken together, these changes mean that people with bona fide review applications will be given a decision more quickly and a better decision if the initial decision is wrong. Those persons intent on fraud, deception or delay will not have the benefits of a delayed decision.

What is the point of saying that? What is the point of making that sort of statement about a process? If a person has a reason for delay—and courts are delayed at times—that is legitimate, why should that person be a person who is intent on fraud or deception? Why does it follow? Where is the evidence for making what is quite a vicious statement, without the evidence being put forward in the second reading speech?

Another statement in the second reading speech says:

Migration Review Tribunal members will be independent decision makers, able to reach their own conclusions on a decision under review, in accordance with the law. However, this independence does not amount to non-accountability.

What does that mean, and how does that fit with the sorts of things that the Chief Justice of the High Court says? At a colloquium about courts in the future, held at Surfers Paradise on 8 November, the Chief Justice gave a talk called `The future state of the judicature'. He said:

The development and enforcement of standards of competence and diligence is a difficult issue with which courts and legislatures have to grapple. The requirements of independence and accountability are not mutually inconsistent but they can, in some circumstances, conflict. The resolution of such conflict will be a pre-occupation of those concerned with the governance of the courts over the next decade.

You have the Chief Justice of the High Court struggling with this concept of measuring accountability against the issue of the way the courts ought to go about their business, yet the people who wrote this second reading speech seem to have had no difficulty in saying that that is a fairly simple issue to resolve. The other thing that worries me about this second reading speech is that in the paragraph immediately above the one I have just read, it has this to say:

The Tribunal's Principal Member will have clear authority to apply efficient processing practices. This may include the introduction of a case management system where much of the preliminary research and investigative work would be undertaken by administrative staff of the Tribunal. Tribunal members would be responsible for directing any further investigation be undertaken, and for the final decision.

You have people who are not even legally qualified, but are administrative people, doing preliminary research. What is going to be the quality of the decision if we are going to have people who have no general idea of how the law should run making decisions that determine people's lives. These are big decisions that are being made in this matter. His Honour, in that speech I was talking about, also has this to say:

Litigants are frequently unrepresented by lawyers and conduct their cases in person, and an over enthusiastic or unthinking application of some of the principles of modern case management to disputes of this kind can be counter productive.

This second reading speech and the explanatory memorandum seem to have been written without taking into account these high principles of justice. What the second reading speech and the explanatory memorandum seem to be intent upon is getting the form of a hearing despatched with as cheaply as possible. That is the language that is used, compared with the language that the Chief Justice is talking about. Again, the thrust of what is put forward in the second reading speech and in the explanatory memorandum is that there has to be efficiency—indeed, I think the act talks about efficiency—and the need to get things done—the language of the economist, the language of the economic theorist who says that the big thing is to produce decisions as quickly as possible and as cheaply as possible. What about a bit of justice in there? Again in this speech, His Honour says:

It is impossible to measure the effectiveness of the judiciary as an institution, or to attempt to predict the extent to which such effectiveness may, in the future, wax or wane, without having a reasonably clear idea of the functions historically, and currently, performed by the judiciary as an institution.

But in the way this bill has been presented to this chamber, there is no flavour of the historical background to the judiciary as an institution. Indeed, one of the great problems about this legislation—of course, it is not confined to this legislation; it is a problem which more and more legislation has—is this: people are appointed for a limited time. Under this legislation you can have part-time people and you can have full-time people who are appointed on a time basis, and that provides a very dangerous basis upon which these people can make decisions against government.

One of the flaws in more and more legislation coming before more and more parliaments is the fact that these tribunals are set up to decide issues between people and governments and the decision makers are in a very precarious position. It would be interesting to go through—perhaps the minister at the table can do this—the number of people who have not been reappointed over the years, to see what sort of decisions they made in the terms of the act that they administered. Again in this context, I will quote what His Honour Justice Gleeson has to say about that:

In this area also, the way in which the courts go about their business reflects, and affects, society's values. For example, the amenability of governments to civil process, the capacity of the courts to intervene in disputes between citizens and governments, the power of judges to make orders binding governments, and the way in which courts handle cases involving claims against government, reflect an ideal of equality before the law which is relatively modern, and which is certainly not universal. It is not an ideal which is likely to be displaced in the foreseeable future. Governments will continue to be active litigants, frequently as defendants. The functions of the courts in dealing with complaints against governments is likely to expand rather than contract, and that function, in turn, will constantly remind the public of the need for an independent judiciary. The expectations and assumptions made by the public that a citizen engaged in a civil or criminal dispute with the government will receive even-handed justice constitute a vital, but often neglected test of what is sometimes called satisfac tion with the performance of the courts. In fact, I can think of no more important test.

I ask: was that test applied when this legislation was being drawn up? It certainly does not appear from the second reading speech or from the explanatory memorandum that it was. Perhaps that is an illustration of where we should stop having tribunals that are appointed for a limited time and go to a magistracy.

I know one of the things the present Attorney-General, Mr Daryl Williams, has been advocating is that we have a federal magistracy that can handle matters like this and that will be protected from the onslaughts that governments might make upon it by two things: firstly, the magistracy would have tenure—they would have their positions until they are 70—and, secondly, the magistracy would have a pension. The present situation where decisions in the migration area are reviewed by people who have not got permanency of position, who have insecurity of tenure, is a real problem. It is a problem that is growing, and it is a problem that we ought to do something about.

The issue is this: is this legislation and the legislation which came before it—this idea of a tribunal of limited tenure is not new—sufficient to give justice to people who come before this new tribunal? Will it be sufficient to stand up against government and give the decisions it ought to, particularly when you look at the sorts of words that have been written in the explanatory memorandum and the sorts of words that have been used in the second reading speech? Will it be able to stand up against government when we have a department whose disposition is to treat people that appeal its decisions as suspect or as fraudulent? The words used are very interesting: `Intent upon fraud, deception or delay'.

This is not the right sort of attitude, you would have thought, to bring to legislation like this. This is a department which thinks in terms of economy rather than in terms of justice, fairness and full hearings. It wants to get this thing up and away rather than allow the culture of the judiciary, the culture of the fair go, to carry the day. Rather, the culture of the economy, the culture of getting things done quickly, is what prevails here.

This is a piece of legislation that will go through—it has been agreed upon—but it comes to this chamber in a context which is in many respects unattractive. Perhaps it is not so much that the legislation ought to change, but that the people who will administer it ought to realise that not only are they enforcing legislation, not only are they regulators, but also they should be facilitators, in the proper circumstances. The people they deal with—migrants and people who have, say, made claims for refugee status which have been refused—are nevertheless people with the sorts of feelings and emotions that we all have.