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Tuesday, 15 March 2005
Page: 81


Senator LUDWIG (5:57 PM) —Labor agrees to and supports government amendment (4), which concerns the divisions of the tribunal. It is an unusual provision, I have to say. The minister does have broad control in a range of areas of responsibility. My history goes to tribunals which are more on the industrial front. The minister would not in those circumstances exercise control to determine who would go on division A, B, C or D as the case may be. But, in this instance, the committee recognised that there may be an occasion where the minister may want to appoint members to particular divisions. In some circumstances it may be appropriate. If the amendment passes it will be appropriate in all circumstances. But, rather than being left with the position where the president would not be able to have some input into the system, the committee saw that there was a need for the minister to consult with the president before making assignments to divisions of the tribunal. It is a sensible proposal. In this instance it ensures that both the president and the minister can ensure that the appropriate talent is utilised and members go to areas where they will be able to contribute significantly, rather than the minister making that decision without conferring with the president to obtain his or her view.

The original form of the bill allowed the minister to directly assign members to divisions of the tribunal. Previously, this process was formally completed by the Governor-General. Labor accepts that the bill removes a layer of formality and contributes to greater efficiency. There were two ways that you could go on this, one being that the minister should not have a role and that the tribunal president should be able to appoint people to the division. However, the history of this legislation has always been that, in truth, the minister and then the Governor-General formally made the decision. It was already accepted practice that effectively the minister was making the decision. In that instance, it made sense to widen it to at least ensure that a proper consultative process was undertaken.

The Senate committee unanimously agreed that this streamlined process could fuel perceptions and that such close control of the tribunal’s make-up by the minister could undermine its independence. It would have been a perception only but one which I think would have been unnecessary to create. In this instance, the better way is the way that the amendment has been framed in response to the recommendation by the committee. It does require the minister to consult with the AAT president prior to making an assignment. It is good sense and, combined with the requirement that the president be a judge of the Federal Court, this amendment adds an additional layer of accountability and transparency but does not involve the existing excessive time and formality that might otherwise be the case in going through the Governor-General. This amendment, as I said, is in accordance with the recommendation of the Senate committee, and we are pleased to support it.