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Tuesday, 18 May 1993
Page: 770


Senator DURACK (9.53 p.m.) —I had hoped that tonight perhaps we would have had more time to debate these amendments to the Administrative Appeals Tribunal Act because, although the amendments in the Administrative Appeals Tribunal Amendment Bill are not extensive, they do make some important changes to the administration of the Act, and in that regard they are most welcome. I am pleased that the debate in this chamber indicates that they will be passed without dissent or amendment.

  However, I would like to take the opportunity, albeit a somewhat attenuated one now under the pressure of time in this chamber this evening, to say a few things about the creation and the progress of this most revolutionary change in the public administration of Australia—a change which I hope will be implemented in all States of Australia in due course. It has been followed in some States but has yet to be followed in others.

  The basic reform created by the establishment of an administrative appeals tribunal was to give individuals affected by administrative decisions of government—in this case of the Commonwealth—a right of appeal to an independent or external review body. When this was first considered by a committee set up in the late 1960s, there were very limited areas of government where the decisions of a Minister or departmental official, apart from some internal review processes perhaps, could be reviewed by an external body. There has been great debate not only in the country but in other similar jurisdictions about the lack of rights of an individual against government decisions whereas individuals affected by the decisions of other individuals, large corporations or whatever have had rights of redress in the ordinary court system. When

individuals' rights were affected by decisions of government—these are largely whether the Government's discretion was exercised in a justifiable way, not whether the Government was acting legally—there was no similar redress.

  Australia has been a great pioneer in providing redress for individuals against claimed infringement of their rights by others—whether they be government, other individuals or major institutional bodies. Over a century ago, the Australian conciliation and arbitration system was introduced. When it was established it was hailed as a new province of law and order. Although many changes are now being made to that system, and many more will be made, I think it is fair to say that the establishment of the Administrative Appeals Tribunal on 1 July 1976 was hailed as a new province of law and order for Australia. Indeed, the way in which this system has flourished in the past 17 years indicates that it is an extremely vigorous and successful teenager. I am sure it will go on for easily as long as the arbitration system has existed, and probably longer.

  The Administrative Appeals Tribunal was set up as a result of bipartisan actions through this Parliament. As I said, the original committee, which proposed a body of this kind, was set up by a Liberal government. The legislation, when finally brought into this Parliament in 1975, was brought in by a Labor government. The legislation was welcomed by the then Opposition, of which I was a member. We found some very grave deficiencies at the time in that legislation. The legislation set up the shell structure of an appeals tribunal but did not give the tribunal any jurisdiction. It was in the process of the debate in this chamber on the original Bill that the tribunal was granted a wide and special jurisdiction which enabled the tribunal when it was first established to rapidly obtain a very substantial workload.

  Over the years, that jurisdiction has been greatly widened, and is widened almost continuously in legislation dealt with in this chamber and probably unnoticed by most of us. The body itself has certainly become of major significance in what I would call broadly our judicial system or rule of law. It has led to the creation of a number of specific administrative appeals tribunals, some of which are overseen by the Administrative Appeals Tribunal. Others have their own independent life, such as the migration review tribunals. All in all what this legislation has led to is a major change in the way in which the public administration of the Commonwealth goes about making its decisions.

  In this relatively short period of 17 years, it has led to some very major changes in the practices and the better performance of the public administration in Australia, and the Public Service of the Commonwealth in particular. I would have liked to have elaborated somewhat more on that, but I just refer to the fact that a few weeks ago I attended a conference in Canberra put on by the Australian Institute of Administrative Law and the Royal Institute of Public Administration of Australia. It was very well attended, largely by public servants, but others such as myself were there. The most pleasing aspect of that conference was the extent to which the administrative appeals system of administrative review in Australia has been accepted and become part and parcel of the culture of public administration. It has been a most successful and welcome development. As I said, I foresee it being not only part of the architecture of administration but retained as a vital feature of our public administration.

  I turn to the way in which the Administrative Appeals Tribunal has been structured. When I talk about the Administrative Appeals Tribunal, I should speak generally of these other bodies associated with it, either subject to appeal to it or existing in their own independent right. There is a major philosophy behind the structure of these bodies. They are separate from the judicial traditional court system within our legal system, or rule of law. There are appeals to the courts on points of law and lawyers, and in some cases judges, have played a role and will continue to play a role as presiding members of many of the tribunals, certainly those dealing with the more difficult areas of appeal.

  The important thing—this was applied from the very beginning in the original Act and is still a major feature—is that it is simply not a lawyer's paradise or a lawyer's monopoly.   The tribunals have been structured in such a way that some may be presided over by lawyers, sitting in many cases with experts in the various fields that are covered under the appeal, whether that be in taxation, customs, veterans' affairs, social security or whatever the area may be.

  The tribunals are tailored to deal with a particular area of administration and appeals are heard by people who would be qualified in that area. At a time when a good deal of criticism is being made of our ordinary judicial system and many people are talking about the sorts of reforms that should be made to it, it is pleasing to note that this system of broad right of appeal against administrative decisions—which we have had now for the past 17 years—has been reflecting, and will continue to reflect, means and methods of giving citizens the right of appeal with minimum legal formalities using a combination of legal and other diverse skills which people in the community can contribute to bring about the solution of these conflicts.

  The resolution of conflicts is a major role of government; it is a major part of a democratic and free society. The rights of the individual should always be paramount, but it is how we give effect to them that is perhaps more difficult to achieve. I believe our administrative appeals system has been highly successful in achieving those goals.

  This Bill adds further to that progress by acknowledging the alternative dispute resolution system, as it is called—namely, the opportunities for mediation or arbitration of disputes and, in particular, the encouragement of settlement of disputes. These have always been part and parcel of our judicial system. Nevertheless, the Administrative Appeals Tribunal, despite all its informality and wider representation of interests than would be available to the court system—apart altogether from the use of juries in that system—has not yet had the opportunity of exploring other new dispute resolution methods such as mediation and encouraging parties to settle their disputes. That does seem to create some difficulty for appeals against decisions by administrators under legal discretions. But I cannot see any reason why those methods should not be just as available in these cases as they are in our ordinary legal system. I am sure these new proposals will fit in very well with the greater informality of a tribunal based system as opposed to a court system.

  Another feature of our established system is that a wide pool of people, including lawyers, have participated in it and have been members of the tribunal. I think the Attorney-General, Mr Lavarch, who wants to widen the selection pool for the court system, might profit by looking at the way in which people have been selected to serve on the Administrative Appeals Tribunal. There is—and I noticed it particularly at this conference—a great opportunity for women who have played, are playing, and will continue to play, a major role in the work of this appeals system, both with regard to the tribunal itself and similar tribunals operating under its umbrella. I welcome the introduction of this Bill and look forward to its speedy passage.