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Tuesday, 15 March 2005
Page: 89

Senator ELLISON (Minister for Justice and Customs) (6:32 PM) —The government notes that the opposition amendments repeat amendments previously brought forward as a private member’s bill in the House of Representatives. Under section 27(1) of the Administrative Appeals Tribunal Act 1975, an application may be made to the tribunal by or on behalf of any person whose interests are affected by a decision. Courts have consistently held that the meaning of ‘interests affected’ in section 27(1) has an ambulatory operation and will depend upon the subject, scope and purpose of the enactment under which the decision was made. The government believes that this interpretation strikes a balance between accessible review of government decisions that affect people’s rights and interests and undesirable meddling in government decision making.

The opposition’s proposed amendments to the AAT Act would allow a member of the Commonwealth parliament to seek a review of any Commonwealth decision that is reviewable in the tribunal. A review may be sought by a member of parliament regardless of whether any person’s or body’s interests were affected by the decision or whether the person or organisation that was affected by the decision was satisfied with it. For example, a person or organisation may seek a review of a wide range of decisions made by the Commissioner for Taxation under certain tax legislation as to the amount of tax payable to the Commonwealth. Even if the person or organisation is satisfied with the decision, under the proposed amendments, the government believes that a member of the Commonwealth parliament would be able to seek a review in the tribunal. It would be highly undesirable—to take an extreme example—if one member of the federal parliament could seek a review of another member’s tax assessment.

The government believes that there is a strong possibility that the provision could be misused for political purposes and government decision making could be held to ransom. The ramifications of this are quite obvious. Of course I have quoted quite an extreme example, but nonetheless there it is. It would be possible, for example, for one person or a political party to seek a review of all decisions in a particularly politically sensitive area, notwithstanding that those affected by it are quite happy with the decisions. Government decision making in that area would grind to a halt while these matters were being resolved. Of course that would be something which would, from a public policy point of view, be undesirable.

Commonwealth ministers, their departments and agencies may be less inclined to allow for a review by the tribunal of decisions made under legislation for which they are responsible that may affect an individual’s rights and interests because they would be concerned about political interference from members of the Commonwealth parliament. In turn, this would undermine the purpose of the tribunal as a body that provides independent, affordable and accessible review of government decisions.

The question of locus standi is always an issue in the law—that is, who can bring an action and who is affected by that decision. Certainly the government believes that the meaning of ‘interests affected’ in section 27(1) strikes an appropriate balance and that by extending this to members of parliament willy-nilly we could have undesirable results in various situations. The government therefore opposes opposition amendments (3) and (4).

Question agreed to.