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Administrative Appeals Tribunal Amendment Bill 1979

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THE PRESIDENT - That will be recorded.

Bills read a third time.

SENATE NO. 21 15 November 1979

Page 2368


Second Reading '

Debate resumed from 7 November, on motion by


That the Bill be now read a second time.

SENATOR DURACK - Before we resume the debate, I point out that there was some question about a document which Senator Evans was interested in having made available to him, namely, a summary of various recommendations for amendment.

I have made that document available to Senator Evans. It is available for distribution in the Senate. I do not know that a great many honourable senators would want to be burdened with it but it can be distributed to any who are interested

in having it. I think it would probably be better to

distribute it on request.

SENATOR EVANS (Victoria) Page 2368 - 2377

SENATOR MISSEN (Victoria) Page 2377 - 2379

242 -

Page 2379

SENATOR DURACK (Western Australia - Attorney-General) (8.35) - in reply - The Administrative Appeals Tribunal Amendment Bill is a very simple Bill. It is quite staggering that the debate should have taken the length of time that it has. H ow e ve r , I suppose we are getting rather used to that attention to detail in the second reading debates on Bills

in the Senate today. The position is that the Government has proposed some few amendments to the Administrative Appeals Tribunal Act. Substantially, they are based upon

recommendations made to the Government by the Administrative Review Council. However, some of the recommendations were not exactly recommended by the Administrative Review Council. For the information of Senator Evans - I am sure it will be of the greatest interest to the rest of the members

of the Senate - clause 3 is not based on a recommendation of the Administrative Review Council because it is only consequential to sub-clause 5(b). Sub-clause 5(b) is not based on a recommendation of the Council. In respect of

clause 6, the proposed new section 41(3) confers on the Tribunal the power to vary or revoke, but the Council's recommendations referred only to revocation. Honourable senators will be concerned to find these very major matters of difference.

There are a few others in the Bill, a recommendation, was not made as to clause 13. This is a necessary machinery provision following self-government in the Northern Territory which had not been considered by the Council. I

regret that that upset Senator Evans so deeply. The other matter that Senator Evans is particularly concerned about is this: The Government received a large number of

recommendations for amendment to this Act which have not been implemented. I know that Senator Evans believes that any recommendation made to the Government by any old council

or body or Senate committee should immediately be

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implemented by the Government without further consideration.

I was given a lecture by Senator Evans recently about his report on freedom of information, that without further ado or consideration the Government should implement all the recommendations that were made. I am quite familiar with. Senator E v a n s ' view that any recommendations made to this Government should be implemented without further


The Administrative Review Council is a very expert and

specialised body. It gives very detailed and deep consider­ ation to not only the operation of the Administrative Appeals Tribunal but also to many other matters dealing with the Government's program of administrative review of

decisions. I have made available to Senator Evans, at his request, and to other honourable senators who are

interested, the full details of the recommendations that have been made over a period to the Government about the amendments to the Administrative Appeals Tribunal Act. The fact of the matter is that I have been considering a number

of these recommendations. Some of them are not as simple to implement as Senator Evans seems to think, For instance, I was quite interested in his view that we should have implemented immediately the recommendation that the Tribunal

should in certain circumstances conduct hearings in the absence of one of the parties. For a civil libertarian of Senator Evan's status in this Senate and in the community, I would have thought that any recommendations that proceedings

should take place in the absence of one of the parties was a serious recommendation that would have to be seriously thought about by the Government. I am giving it very serious

thought, but I am not prepared to give immediate imprimatur to that recommendation.

That is one of the reasons why we have not implemented as speedily as Senator Evans may have hoped all of the recommendations which have been made. The immediate reason is that the Government was presented with some urgent

decisions in this matter. We wish to implement those decisions in this session - in particular the separation of

the . position of Chairman of the Administrative Review Council from the position of President of the Aministrative Appeals Tribunal. Because we could not complete the consideration of all the other recommendations it was

decided to implement in this session simply those matters which had been identified as urgent. In fact, some of them were so identified by the Chairman of the Administrative Review Council, Mr Justice Brennan. That is why these

proposals have been brought forward this evening in this Bill. Despite the very lengthy consideration which has been given to them, I gather that they are supported by the Opposition. I may be forgiven for being in some doubt as to what is the Opposition's attitude. Perhaps that is my fault

for not having given the greatest attention to the detailed speech by Senator Evans. I hope that the Bill will have a speedy passage.

Questiion resolved in the affirmative.

Bill read a second time.

SENATOR MULVIHILL (VIC) (page 2380 - 2381) .

SENATOR DURACK (Western Australia - Attorney-General) (8.45) - I think the general proposition that Senator Mulvihill has put in regard to the distinction between rights under the Administrative Appeals Tribunal and recourse to the

Ombudsman are broadly correct, except that there has been a right of appeal in respect of deportation decisions under sections 12 and 13 of the Immigration Act, which perhaps

qualifies the views he expressed. Perhaps he is aware of that. There is nothing in this Bill which affects that. The rights are still there. All that is affected by clause 6 is the decision which may be made to stay the operation of a

deportation order. Under the combination of clause 6 and

clause 14 the actual right to detain a person in the case of

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a deportation order cannot be affected by the decision of

the Tribunal even though it may be favourable to the person.

I think that that is a point that Senator Evans made during his speech to the motion for the second reading of the Bill. It may mean that a person would be detained. Even though he had succeeded in an appeal, if the Minister for Immigration and Ethnic Affairs appealed to a federal court

the person to whom the order referred would still be detained. The reason for that is that the decision of the Administrative Appeals Tribunal in a deportation case is

only a recommendation to the Minister. It is not in itself setting aside the decision of the Minister. The Minister would still retain the ultimate power of deciding whether a person should be deported. Under the provisions that now

apply doubts have been expressed as to whether the Tribunal has the power to exercise some lesser power - namely, to prevent the deportation - but not to affect the power to detain. The Bill clarifies that and confirms the Minister's power to detain the person even though he can be prevented by order while the case to deport is being heard; that is

the purpose of these provisions. There is certainly nothing here to stop the Minister from appealing to the Federal C ou r t.

SENATOR MULVIHILL (New South Wales) (8.50) - I have only one other point about the staying process and this could be hypothetical. If a Minister is going overseas for up to six weeks, is there anything in the Bill where there is an obligation on the acting Minister for Immigration to act? Alternatively, if he thinks it is a hot one he may wait for

the Minister to come back in eight weeks time by which time the person concerned could be in custody. Is there nothing here to accelerate a speedy action to arbitrate on the case?

SENATOR DURACK (Western Australia - Attorney-General) (8.51)

- I do not think it would make any difference whether the

Minister is away. While the Minister is away the acting

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Minister has the full powers of the Minister and he will proceed whether the actual Minister is here or not.

Bill agreed to.

Bill reported without amendment; report adopted.

Third Reading

Bill (on motion by SENATOR DURACK) read a third time.

' * * * * *

23 November 1979 Page 2942 . ■



. · Second Reading ■ ’

Debate resumed from 21 November, on motion by


That the Bill be now read a second time.

SENATOR DURACK (Western Australia - Attorney-General) - Before the commencement of the second reading debate, may I suggest that we deal with the Telecommunications (Intercep­ tion) Amendment Bill 1979 and the Australian Security

Intelligence Organization Amendment Bill 1979 cognately with

this Bill..