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Tuesday, 15 March 2005
Page: 84


Senator LUDWIG (6:11 PM) —I move opposition amendment (2) on sheet 4550:

(2)    Schedule 1, item 66, page 18 (lines 15 and 16), omit paragraph 23(9)(a), substitute:

              (a)    the President is satisfied that the direction is in the interests of justice for one of the following reasons:

                    (i)    the President has reasonable grounds for concluding that the personal circumstances of, or aspects of the conduct of, the member are such that they may cause, or are causing, an unreasonable delay to the progress of the proceeding;

                   (ii)    the President reasonably suspects that the member is subject to a conflict of interest in relation to the proceedings;

                  (iii)    the President concludes that there is a significant risk that the member will be considered to be subject to a conflict of interest in relation to the proceedings;

                  (iv)    the President reasonably suspects that an action by, or concerning, the member, including the making of a statement, makes it desirable that the member not continue to take part in the proceedings; or

                   (v)    the President reasonably suspects that an inquiry or investigation that the member is or has been subject to makes it desirable that the member not continue to take part in the proceedings; and

                    (i)    the President has reasonable grounds for concluding that the personal circumstances of, or aspects of the conduct of, the member are such that they may cause, or are causing, an unreasonable delay to the progress of the proceeding;

                   (ii)    the President reasonably suspects that the member is subject to a conflict of interest in relation to the proceedings;

                  (iii)    the President concludes that there is a significant risk that the member will be considered to be subject to a conflict of interest in relation to the proceedings;

                  (iv)    the President reasonably suspects that an action by, or concerning, the member, including the making of a statement, makes it desirable that the member not continue to take part in the proceedings; or

                   (v)    the President reasonably suspects that an inquiry or investigation that the member is or has been subject to makes it desirable that the member not continue to take part in the proceedings; and

This amendment provides a greater definition of the interests of justice. It is an alternative to what we say is the government’s inadequate response to recommendation 3 of the Senate committee report. The ability of the president to remove or reconstitute a tribunal is in fact a broad power, and I went to that earlier in this debate at the committee stage. The bill allows this power when it is deemed to be in the interests of justice to do so. That is a broad power for the president to exercise when the president goes to remove or reconstitute a tribunal. If you look at that power in isolation, you will see that the president can then say, ‘In the interests of justice, this will occur in relation to reconstituting a tribunal or removing it.’ If you take a positive view, it may be one of those instances where there is a need. I suspect that there have been problems in the past with how tribunals have been constituted—that they have been unable to continue their sitting or that issues have arisen which have required the president to intervene. Perhaps the president was not able to or did not consider that their powers stretched far enough to be able to intervene. The problem with trying to address this, though, is that you are left with a broad definition of what ‘interests of justice’ means.

The Senate committee heard a number of concerns about the vagueness of this term. I hasten to add that we are trying not to add to that vagueness either by proposing an amendment. We understand that the explanatory memorandum does outline some of the circumstances in which the president may exercise this power, including where there is a conflict of interest or where the member has made public statements that could prejudice the impartiality of the proceedings. Of course that outline in the explanatory memorandum is not exhaustive. It is a difficult area. In some respects the government’s answer to some of these issues is to say, ‘If we put it in the explanatory memorandum then it will be extrinsic material that can be relied on in interpreting that provision some time down the track.’ We do not think that is good enough.

Labor’s amendment does provide more comprehensive guidance to the president and narrows what both Labor and the Senate committee believe was an excessively wide discretion bestowed on the president. This discretion, combined with removal of tenure for the president, would result, in our view, in an unacceptable stripping of the safeguards which currently apply. Labor’s amendments define the factors the president needs to consider when removing a member from a proceedings. That is a big step to take and should not be taken lightly—nor should the president be guided by an explanatory memorandum in making this decision. The president should have some assistance in the legislation itself to guide him as to when and how he should exercise that decision-making power. That power is to be used where there is a conflict of interest or a perceived conflict of interest, where the public statements or actions of an AAT member make it desirable that the member not take further part in the proceedings, where a member has been subject to investigation or where their conduct warrants their removal.

The Senate committee was concerned about this provision and recommended redrafting without giving a specific form of words. The Labor amendment is an attempt to do just that. We believe it improves the bill and picks up the spirit of the committee’s recommendations, relying in part on the explanatory memorandum in pursuing that. It moves it from the explanatory memorandum’s extrinsic material to be considered as part of the bill to being part of the bill and allowing the presidential member to take cognisance of the words of the statute itself.

We are not wedded—this is where I end up with round heels—to this form of words. If the government, using the resources it might have available, can come up with a more succinct and exact wording, we are prepared to look at a final draft or a more appropriate structure. But we do not accept that it be left in extrinsic material. In other words, we do not accept that the explanatory memorandum is the right place for it to be dealt with. We think that some form of words is needed that ensures that the president does not have an unfettered power but is guided—but that it is not an exhaustive guide. There is an area for discretion for the president in exercising that, and we recognise the need for that discretion, but we recognise that the president should be guided in that exercise. That, I think, is an appropriate way of pursuing this particular section. The amendment picks up the spirit of what the committee was recommending.

This is a form that the government has used in past legislation before this Senate, where it used guidance within legislation rather than strict adherence to a set of criteria. We as a nation seem to be moving away from having strict criteria that must be met to more guidance being provided in legislation. This will ensure that the president comes to a right or preferable decision about a range of matters rather than his ticking off certain criteria and then saying, ‘Having met all those criteria, X should then happen.’ We are trying in this amendment to pursue that same objective—although from the other side of the chamber.

We seek the government’s and the Democrats’ support for this, but if in the process of going between this place and the House the government seems minded to agree to at least the concept we will not stand on some of the words if the government thinks it might be able to redraft them in a more precise way. Of course, we will include the Democrats in that discussion as well.