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Monday, 11 May 2015
Page: 2699

Senator JACINTA COLLINS (Victoria) (12:27): Labor is pleased to support the Tribunals Amalgamation Bill 2014. I will touch on some of its history before I go into some more detailed considerations. Proposals for the amalgamation of Commonwealth administrative tribunals into one super tribunal have been made since the very creation of the current administrative law framework in the 1970s. This bill stems from work begun by the Keating government, which referred tribunal reform to the Administrative Review Council, or the ARC. The ARC reported in late 1995 recommending that an amalgamated administrative review tribunal be formed. That was around time I entered the Senate, 20 years ago. The Labor government did not have the time to respond to that report, but the incoming Howard government picked up the proposal for amalgamation. While Labor in opposition supported the principle of amalgamation it objected to the detail of the bill brought forward by the Liberal government of the day which departed from the ARC recommendations and would have compromised the independence of the proposed ART. The bill was defeated in the Senate back in 2001.

This bill is much less controversial. For the most part, its provisions affect a simple consolidation of existing tribunal architecture. As has been longstanding Labor policy, we have no objection to such consolidation. It is clear that this has several advantages. Amalgamation will, in time, lead to savings through the reduction of duplication; amalgamation will reduce confusion among tribunal litigants, many of whom are unrepresented; and it will prove more convenient for practitioners. Amalgamation, Labor hopes, will improve the quality and the reputation of the entire Commonwealth merits reviews system.

While Labor support the principle of this legislation, we do support some small changes, particularly where the bill effects changes to the current AAT practices. Senators who have read through this bill will appreciate its complexity. Intertwining four large Commonwealth merit review jurisdictions is indeed easier said than done. Given the complexity of the legislation, the broad range of stakeholders who stand to be affected and the unhappy history of tribunal amalgamation proposals, Labor referred the bill to the Senate Legal and Constitutional Affairs Legislation Committee. I would like to thank each of the organisations that participated in the committee's inquiry. The committee tabled its report back in March.

The committee supported the passage of this bill. Notably, two amendments to the bill were unanimously recommended by senators on the committee. The committee recommended first that the parliament remove the amendment in the bill which would allow the AAT to determine second-tier reviews of social security matters on papers only, even where the parties do not consent. We welcome this recommendation. It is important not only that justice be done but that it be seen to be done. Tribunal applicants should have a right to a hearing where they consider this to be necessary to their claim being properly considered.

Second, the committee recommended that the parliament remove the amendment in the bill which would reduce the maximum term of appointment of AAT members from seven to five years. Labor appreciates that the government wishes to standardise terms of appointment. It has been pointed out that the standard practice in statutory appointments is for five-year terms, and that is also the case in the SSAT and the MRT-RRT at present. However, this measure goes to the independence of the tribunal. The AAT is distinct from normal statutory bodies. We support seven-year maximum terms both to ensure the independence of the AAT and as a means of attracting high-quality tribunal members. I thank government members of the committee for agreeing to these proposals.

There are, however, further changes to the bill which Labor supports and which government members of the committee did not concur with. I will consider each of those in turn. I ask government senators and senators of the crossbench to support these proposals. We are of the sincere opinion that each of these amendments is a serious, considered and worthwhile improvement to what is already in the main a good bill. The first recommendation, as foreshadowed in the additional comment, is that Labor move an amendment to remove the measure in the bill which provides for appointment of the registrar of the AAT by the Governor-General. The current act provides for the registrar to be appointed on the nomination of the president. This is appropriate as the registrar is tasked by section 24B of the act with assisting the president in the management of the tribunal. This relationship and by extension the position of the president and the independence of the tribunal are protected by the nomination required in the act. No compelling reason has been provided for why this practice should be departed from.

The second recommendation, again as foreshadowed in the additional comment, is that Labor move an amendment to remove the measure in the bill which changes the venue for certain appeals from the Family Court to the Federal Court. The bill would remove the Federal Court jurisdiction to hear appeals from the Federal Circuit Court following an appeal from a child support first review and to hear referrals on questions of law. While this measure would be consistent with the general jurisdiction of the Federal Court over matters arising from the AAT, the Family Court has noted that it is the court with expertise in child support matters. It is not clear that any convenience achieved by the change in venue for what the department concedes is a small number of matters would outweigh the disruption of accepted practice.

A third recommendation, again foreshadowed in Labor senators' additional comments, is that Labor move an amendment to remove the measure in the bill which removes the requirement for an address by each house of parliament before an AAT member can be removed, instead allowing the Governor-General to dismiss a member. This proposed change goes to the independence of the tribunal and, while the SSAT and MRT-RRT presently allow for removal of members by the Governor-General, amalgamation should lift those tribunals to the present standard of the AAT rather than lowering the standards of the entire jurisdiction.

A fourth recommendation, again foreshadowed in our additional comments, will remove an amendment in the bill to create a specialist FOI division in the new, amalgamated AAT. If passed, the government's Freedom of Information Amendment (New Arrangements) Bill 2014, presently in the Senate, would confer responsibility for determining disputes about FOI applications in the first instance on the AAT. At present the specialist body of the Office of the Australian Information Commissioner fulfils that role. To alleviate concerns about the loss of specialist expertise in handling FOI disputes which would be caused by the FOI bill, a specialist division of the AAT should be created.

In conclusion, as I said, Labor supports the spirit of this bill. Now and in the past we have supported in principle the amalgamation of Commonwealth merits review tribunals. In the main we support the detail with which it implements amalgamation. This bill effects implementation with minimal ancillary changes to current working arrangements. We thank the government for the work they have done on this. However, as I have said, we do have a handful of positive suggestions, and I commend the bill and those amendments to the Senate.