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Administrative Appeals Tribunal Amendment Bill 1979

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Question resolved in the affirmative.

Bill read a second time and passed through its

remaining stages without amendment or debate.

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SENATE NO. 19 .25 October 1979 Page 1774 - 1775


Motion (by SENATOR DURACK) agreed to:

That leave be given to introduce a Bill for an Act to

amend the Administrative Appeals Tribunal Act 1975.

Bill presented, and read a first time.

Standing Orders suspended.

' Second Reading

SENATOR DURACK (Western Australia - Attorney-General) (12.28) - I move:.

That the Bill be now read a second time.

The Administrative Appeals Tribunal Act 1975 established new

machinery for review on the merits of administrative decisions. It was supported on both sides of the Parliament. The Act established two important new bodies, the

Administrative Appeals Tribunal and the Administrative

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Review Coun ci l., The purpose of the present Bill is to make some changes to the constitution of the Council and

improvements to the functioning of the Tribunal. The Tribunal came into operation on 1 July. 1976, with

jurisdiction to review decisions made under a number of Acts of the Parliament and Ordinances of the Australian Capital T er ri t or y. That jurisdiction is being progressively extended, in accordance with the Government's policy in this

area. .

The Administrative Review Council, which is established under Part V of the Act, first met on 15 December 1976. The Council's functions relate to the examination of

decision-making processes and administrative .review mechanisms, and the making of recommendations to me on the need for changes. The Council has already produced two very valuable annual reports which have been tabled in the Parliament and are available to honourable senators. I

anticipate that the Council's third annual report will be presented shortly. The Council has also made a number of very helpful recommendations to me as Minister. I am pleased to take this opportunity to announce that it is my intention

to table the more important of these recommendations after the Government has completed its consideration of them.

The amendments to be made by the Bill principally stem

from recommendations made _to me by the Council. They deal with the constitution of the Council itself, the powers of the Tribunal and the Federal Court of Australia in relation to stay o rders, and machinery matters relating to time

limits and staff of the Tribunal.

The Council was originally conceived as an expert body of lawyers and administrators. Section 50 of the Act accordingly provides that the qualifications for Council membership are extensive experience in public administration

or extensive knowledge of administrative law. It has become

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increasingly apparent, however, that the Council would be * even better equipped to discharge its functions if it had

access to expertise in areas outside the confines of law and public administration as such.

Clause 11 of the Bill therefore extends the

qualifications for membership of the Council to include extensive experience at a high level in industry, commerce, industrial relations, the practice of a profession or the service of a government or an authority of a government and extensive knowledge of public administration. As a result of . this extension of the qualifications for appointment, the

* Council will be able to reflect the views and experience of

a broader cross-section of the community.

The Act at present requires the President of the Administrative Appeals Tribunal, who is an ex officio member of the Administrative Review Council, to preside at meetings of the Council. The Council believes, and I agree, that this

situation can give rise to potential conflict of duty where the Council is considering and reporting on matters that might be the subject of proceedings in the Tribunal. Clauses 10 and 12 of the Bill have therefore been included to enable a member of the Council other than the President of the

Tribunal to be appointed Council Chairman. The Tribunal President will remain a member of the Council, but it will be easier for him to withdraw from the Council's -

deliberations in appropriate cases, and he will no longer need to be the channel of communication between the Council and the Government.

„ I turn now to a number of amendments relating to the

making of stay orders. For review procedures to be

effective, it is sometimes desirable that a decision the * subject of a review application should be suspended or

stayed pending the outcome of the application. Section 41 of

the Act makes provision for this to be done.

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This provision enables, for example a deportee to obtain a stay of deportation while he applies to the

Tribunal for a review of the deportation order. However, experience has shown that the powers available to the Tribunal under section 41 are not sufficiently flexible. T h u s , in the case of deportation order, the Tribunal's power

is limited to ordering suspension or stay of the whole of that order. The result is that the order will cease to be 'in force'. Once this is done there is no statutory basis, under the Migration. Act 1958, to detain the deportee. Clauses 6 and 14 of the Bill have therefore been included to give the Tribunal much greater flexibility in framing a suspension or stay order, to overcome problems of this kind. The Tribunal will have power to suspend or stay part of a decision, as well as the whole of the decision, to make an order subject to condition, and to limit the duration of the order so that it does not have an unnecessarily long

d ur at i on . The Tribunal will also have power to revoke or vary a suspension of stay order, so that changing

circumstances can be met.

Section 41 at present prevents the making of a

suspension or stay order unless the decision-maker has been given a reasonable opportunity to make a submission to the Tri bu na l. This could undesirably delay the making of a stay order in some cases. Under the proposed amendments it will no longer be necessary to afford the decision-maker the

opportunity to make a submission where it is impracticable to do so. As a safeguard, however, an order made in those circumstances will not come into operation until a notice setting out its terms is served on the decision-maker. He

will then be able quickly to seek recovation or variation of the order if he considers it necessary.

An appeal lies on questions of law to the Federal Court of Australia from a decision of the Tribunal. Under

sub-section 44(6) of the existing legislation, the Court has

powers similar to those of the Tribunal to make suspension

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or stay orders. Clauses 8 and 9 have been included in the Bill to ensure that the Court's powers are parallel to the broader powers which are to be conferred on the Tribunal. The amendments will also ensure that the Court's powers

extend to both the Tribunal's decision and the original' decision which the Tribunal was reviewing.

The Bill also contains some matters of a machinery

n at ur e. These cover an amendment to sub-section 21(A) relating to the Tribunal's constitution when hearing certain preliminary matters, an extension to a maximum of 28 days of „ the times within which a decision-maker must provide

findings of fact and reasons for decisions, and a provision to cover staffing arrangements following Northern Territory selfgovernment. The changes are set out in clauses 3,4,5 and 13 of Bill. I commend the Bill to the Senate.

Debate (on motion by SENATOR McINTOSH) adjourned.

SENATE No. 21 8 November 1979

Page 2090



Second Readings

Debate resumed from 25 October, on motion by