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Tuesday, 15 March 2005
Page: 16

Senator GREIG (1:34 PM) —The Administrative Appeals Tribunal Amendment Bill 2004 [2005] makes a range of amendments to the procedures and composition of the Administrative Appeals Tribunal—or the AAT, as we know it. The AAT was established in 1976 to undertake a review of governmental decisions. It is a fundamental element of democracy that citizens can appeal the way in which a government decision adversely affects them. Given the size, power and resource disparity between the government and most citizens, it is very important that any process for reviewing government decisions is fair and accessible.

In establishing the AAT, the underlying objective was to create a system of administrative review that was efficient and accessible but fully focused on substantive rather than procedural issues and committed to ensuring adequate disclosure of relevant information and reasons for decisions. In other words, the aim was to create a system which was committed to accessibility and efficiency on the one hand and procedural fairness on the other. Efficiency was not to be achieved at the expense of procedural fairness.

The government argues that the changes in this bill will improve the capacity of the AAT to manage its workload and ensure that reviews are conducted as efficiently as possible. The focus of this bill is undeniably on efficiency. We Democrats support initiatives to make the AAT more efficient, but we are not advocates of efficiency at any cost. In striving to make the AAT more efficient, we must be very careful not to compromise the proper processes of the tribunal—in particular, those which serve to promote fairness, transparency and good decision making. In this respect, some of the changes proposed in the bill go too far.

The bill reforms the current regime in five key areas. Firstly, it makes a range of changes to the procedures of the AAT—for example, empowering the President of the AAT to give directions regarding the procedures. Tribunal members will be invested with new powers to determine the scope of a particular review by limiting questions of fact and the issues and evidence to be considered. The bill expands the range of alternative dispute resolution, ADR, processes available to the tribunal. In addition, the president will have the power to direct that a proceeding or a class of proceedings be referred to ADR. The president will not only have the power to direct that a particular matter be referred to ADR but be invested with a broader power to make general directions regarding certain categories of disputes. The bill also places a restriction on the use of evidence produced during ADR by preventing its subsequent use in court proceedings or arbitration other than with the express agreement of the parties concerned.

The second way in which the bill amends the current regime is by making changes to the composition of the AAT. Currently, when the tribunal constitutes more than one member, at least one of those members must be a presidential or senior member. The bill removes this requirement so that the tribunal could be entirely made up of ordinary members in any given case. In addition, the bill increases the powers of ordinary members by enabling the president to authorise ordinary members to exercise powers that can currently only be exercised by the president and/or senior members. Under the current regime, questions of law arising in proceedings before the AAT may be referred to the Federal Court. While the bill retains this mechanism, it inserts a new requirement for the president to consent to such a referral. The government indicates that this is intended to ensure that referrals are only made in exceptional circumstances, which, it is hoped, will speed up AAT processes.

Finally, the bill changes the qualification requirements for the President of the AAT. Under the current regime, the president must be a judge of the Federal Court. However, the bill proposes to broaden this so that a current or former judge from any federal court, a former judge from any state or territory Supreme Court or a person who has been enrolled as a legal practitioner for at least five years may be appointed as president of the tribunal. In addition, the bill will remove tenured appointments that currently apply to presidential members who are judges. All future appointments to the AAT will be for a fixed term.

While the Democrats welcome some of these changes, we do have serious concerns about others. For example, the fact that there will no longer be any requirement for the inclusion of a presidential or senior member when the tribunal is made up of multiple members means that it will be possible for an entire panel to be made up of members who have no legal qualifications. Given the often complex legal issues which can arise in AAT proceedings, coupled with the new prohibition on referring questions of law to the Federal Court without the consent of the president, this change is concerning. The requirement for the president to consent to referrals of questions of law to the Federal Court also creates the potential for a conflict of interest if the president is required to consent to the referral of one of his or her own decisions.

There are also very serious issues associated with the relaxing of the qualification requirements for the President of the AAT. The new provisions create the potential for seriously underqualified persons to be appointed as president. In fact, they would permit a person who has been enrolled as a legal practitioner for only five years to be appointed as president. Considering the wide range of powers conferred on the President of the AAT, not only by this bill but also by other pieces of legislation, we believe that it becomes clear that the qualification requirements should be stringent and specific.

Let us not forget that the president may authorise the use of telecommunications interception warrants and the incommunicado detention of ordinary Australians under the ASIO Act. In other words, this is a person who is vested with the power to authorise significant violations of privacy and deprive individuals of their liberty without trial or charge. These are not insignificant powers and they should not be vested in someone who has been enrolled as a legal practitioner for only five years.

Of course, this issue was canvassed at length by the Senate Legal and Constitutional Legislation Committee, which inquired comprehensively into the bill and recommended that the requirement for the president to be a Federal Court judge be retained. I take this opportunity to commend the committee on its thoughtful and comprehensive report on the bill and, in particular, on its recommendations to improve the bill. The evidence provided to the committee regarding the need to retain the current qualification requirements for the President of the AAT was compelling. Witnesses provided two primary reasons as to why the AAT president should continue to be a Federal Court judge.

The first of these reasons was that a Federal Court judge would have the appropriate skills and experience to do the job properly. As the Public Interest Advocacy Centre argued:

The President’s broad powers and responsibilities necessitate that the incumbent be a person of extensive legal and management experience. A Federal Court Judge is the ideal candidate as they have considerable experience as practitioners and adjudicators, and in managing proceedings.

The second reason advanced for requiring the President of the AAT to be a Federal Court judge was that this would ensure that the president was, and was perceived to be, independent of the government. Mr Graham McDonald, a deputy president member of the AAT, argued:

It is the independence guaranteed by having a Federal Court judge appointed which gives citizens lodging appeals against decisions of government ministers, departmental officers and government instrumentalities the confidence that their matters will be dealt with in accordance with the highest possible quasi-judicial standards.

                  …         …         …

This is of particular importance where the decision being reviewed always involves the Government as a party.

For both of these reasons, we Democrats strongly support the recommendation of the committee that the requirement for the President of the AAT to be a Federal Court judge be retained.

While we largely support the other recommendations of the committee, as we pointed out in our additional comments, we would go further in seeking to address some of the problems with the bill. For example, the Democrats took a different view from the committee on the issue of tenured appointments to the AAT. The bill proposes to limit the term of appointments for all AAT members to a maximum of seven years, with eligibility for reappointment. This will have the effect of removing the possibility for tenured appointments. Although it has been government policy over the past 15 years not to make tenured appointments to the AAT, we Democrats firmly believe that this option should remain in the legislation. This view was shared by the Law Council of Australia, the Law Society of New South Wales and the South Brisbane Immigration and Community Service, all of which argued that the removal of tenured appointments would be likely to compromise the independence of the AAT and inevitably result in a drop in public confidence in its processes.

The committee recommended that the bill be amended to specify a minimum term of appointment of three years. I understand that the opposition proposes to take this one step further by moving an amendment to specify a minimum term of five years. While the Democrats will be supporting that amendment, we believe that the option to make tenured appointments should also be retained. Retaining this option will place no obligation on the government of the day to actually make tenured appointments. Indeed, it would be entirely possible for the government to maintain its practice of making only fixed term appointments. Nevertheless, we believe there is merit in retaining both options and we will move an amendment to ensure that tenured appointments are available in the future.

Another area in which the Democrats advocate amendments beyond those recommended by the committee is in relation to the constitution of multimember panels. In particular, we do not believe that the requirement for multimember tribunals to include at least one presidential member should be removed from the act. The National Welfare Rights Network noted:

... the practice of the Tribunal is to constitute multi-member Tribunals in cases involving significant questions of law, complex issues of fact and detailed consideration of scientific or medical evidence.

Similarly, the Law Council of Australia argued that, on account of the legal complexities associated with multimember tribunal hearings, it is vital that at least one member of the tribunal be legally qualified. We Democrats concur and we will be moving an amendment to oppose the removal of that requirement from the bill. In summary, this bill makes a range of improvements to the legislation governing the Administrative Appeals Tribunal, and the Democrats welcome those changes. We are, however, concerned about a number of issues associated with the bill and intend to canvass those issues further as debate on the bill progresses.