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Tuesday, 15 March 2005
Page: 83

Senator LUDWIG (6:05 PM) —Senator Greig, you are not having much luck tonight. I will give you the bad news first. We are not going to agree to the amendment. I can see the sense in it, but to accept it at face value would mean it would have to apply not only to the migration legislation but to legislation more broadly. The migration legislation, as you know, is an area that I have dealt with in this chamber for some years now, along with you, Senator Greig, but there are other areas within it where, if you were to say, ‘The changes are aimed at ensuring that a presidential member sits on an AAT review of migration matters and that a presidential member must sit in multimember tribunals,’ it would have to hold across the board.

I do not know whether I could argue that migration is more important—although I think it might be—than veterans reviews, tribunal reviews and other administrative areas that are reviewed such as Centrelink. They are all important areas. They all canvass the law to a greater and lesser extent. Some migration decisions may not canvass the law as much as others that rely on humanitarian issues or on interpretations of visas, and the same can be said for other administrative divisions of the AAT such as those dealing with removable property.

There is a body of case law in whole areas of the AAT in different divisions where they have relied on those presidential members who have sat on multimember tribunals. Of course the president can still look at this issue and decide how they might put together panels and how they might put together multimember tribunals to ensure that there is effective review. There is always an appeal after that in any event. That would be by law to the Federal Court—although I might be corrected on that. The need for this change is balanced with the need for greater flexibility. One of the arguments which has been made by the government—and I think made reasonably well during the hearings of the Senate Legal and Constitutional Legislation Committee by the Attorney-General’s representatives—is that, taking aside our view of some of the issues, this legislation is aimed at ensuring there is flexibility, that the president can make greater use of his members and can make them more responsive to the needs of those people who come before the tribunal.

If you accept that that is their aim—and I think I can accept, at least at face value, that that is what they are pursuing—then this would add another complex layer which might create difficulties in administration. People might then have to wait or have to pursue different panel arrangements—and ensure that this is the right panel for migration. Others might miss out as a consequence. If item 47 is opposed in this way, the tribunal might have to be constituted in a particular way: the president might have only so many people who are legally qualified or who are presidential members and therefore they may be dragged away from other areas, whereas the president may have determined that they would have been better utilised in those tribunals. Those sorts of arguments would, I think, militate against us supporting this proposal on the basis that the president needs to have the ability to ensure that the tribunal is constituted in the way that it should be. I think you have to take it in good faith that the president would have that aim and would ensure that that would happen. The way the current legislation is being pursued by the government allows the president to have that flexibility. On balance, we accept the majority committee report that these changes are not necessary. On that basis we will oppose the Democrat proposal.