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Wednesday, 6 December 2017
Page: 9829


Senator PATRICK (South Australia) (11:48): I can indicate that the Nick Xenophon Team will not be supporting these amendments. While we acknowledge some of the concerns that have been raised about the Superannuation Complaints Tribunal being incorporated into AFCA, we believe that the proposed model will deliver faster, more effective dispute resolution for all consumers than a model that preserves the SCT as a standalone tribunal. There are inherent limitations with the tribunal model, where processes are determined by legislation, the appointment of the tribunal members can be delayed and any changes to funding is dependent on the government budget cycle. It is also inflexible and not able to respond to changes in demand in the way the ombudsman scheme can. These limitations do not contribute to positive consumer outcomes.

I would like to take the opportunity to ask the minister a couple of questions in relation to the AFCA terms of reference, specifically in relation to principles of fairness in the external dispute resolution framework. I refer to a case in the Victorian Supreme Court, Cromwell Property Securities Limited v Financial Ombudsman Services and Radford (2013), where the court found that a party to a contract, and that contract is the terms of reference, must establish Wednesbury unreasonableness—namely, that the decision was one that no reasonable decision-maker could properly arrive at at the evidence. Basically, it is saying that you can't appeal a tribunal decision unless the decision is so unreasonable that no-one could reasonably make it.

I'm strongly of the view that fairness principles used by a multiple of statutory tribunals need to be adopted such that fairness is not left to the opinion of AFCA. Some of these fairness principles might include the fact that there is mandatory discovery for parties, open exchange of information between the parties, the prohibition of private advocacy to the ombudsman, the prohibition of apprehended or actual bias, the right to be heard, that irrelevant material must not be considered, that relevant considerations must be considered, and that the tribunal cannot act in the manner that constitutes Wednesbury unreasonableness.

Can the minister please advise what steps the government has taken to ensure the terms of reference contain these principles of fairness so the decisions made by AFCA will not simply be based on a process that is fair in the opinion of AFCA alone?