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Thursday, 21 August 1980
Page: 637


Mr LIONEL BOWEN (Kingsford) (Smith) - I appreciate that the Government wants to pass this legislation, but it has not given us much time to consider it. This is one of the few occasions when we must debate a matter without having the opportunity to consider adequately what has happened in the Senate. I am in much the same position as my colleagues in the Senate found themselves when a report from the Administrative Review Council relating to the Administrative Decisions (Judicial Review) Amendment

Bill was tabled just prior to the resumption of the debate on that Bill. I have not had much of a chance to look at the report. The Opposition is very disappointed, from the point of view of what the original legislation set out to achieve. The original Act was passed in 1 977 but was never proclaimed. We now have an amendment to an Act which still has not been proclaimed. When we look for the reasons for the amendment, we can see that it has become virtually a victory for the bureaucrats and the decision-makers and a defeat for law reform, for civil liberties and, most importantly, for the people affected by the decisions of government. We supported the 1977 legislation because it was a most important piece of law reform, but I repeat that it was never proclaimed into law.

That Act revised both the procedure and the substantive law relating to administrative law. It was the third part of a package of administrative law reform. Honourable members may recall that the first part of the package concerned the Administrative Appeals Tribunal, which reviews the merits of administrative decisions. That legislation was passed in 1975 by the then Labor Government. The second part of the package was the Ombudsman Act, which was passed in 1976 and protects individual citizens from maladministration in government departments. In 1977 the Government introduced the Administrative Decisions (Judicial Review) Act to allow a review of questions of law concerning administrative decisions by the Federal Court. It is a matter of regret that after three years that legislation has not been proclaimed. The Government has attempted to gain kudos from the reforms, which were supported across party lines.

In 1977 we commended the then AttorneyGeneral, now the Minister for Home Affairs (Mr Ellicott), for introducing the legislation. It was an important and major piece of law reform. Apart from the matters to which I have already referred, it removed the common law rule that the only remedy for an error of law within jurisdiction was the prerogative writ of certiorari, which lay for an error of law only on the face of the record. The prerogative writs which lie in relation to prohibition and mandamus in the High Court's original jurisdiction under section 75 (v) of the Constitution have long been considered to be unsatisfactory. The importance of the 1977 legislation was that it allowed judicial review of administrative decisions under a much more simple and flexible procedure.

In our view, this Bill goes a long way towards destroying the 1977 legislation. It has been introduced for the same reason that the 1977 legislation was not proclaimed, that is, that the bureaucrats did not want to operate under its provisions. The losers in all this are the people affected by the decisions of Federal instrumentalities. Our main objections to the legislation relate to Schedule 1 and Schedule 2, which are to be added at the end of the principal Act. As a general principle, we believe that it is better to have matters of substance such as this spelt out in legislation rather than left to regulations. We consider that Schedule 1 is too wide and that Schedule 2 should not be in the Bill at all. The placing of these matters in the Bill is also deceptive because a list can continue to be added to by regulation. There is no reason in principle nor is there any recommendation of the Administrative Review Council which justifies the inclusion of Schedule 2 in the Bill. I make the point that the Administrative Review Council sees no justification for the inclusion of Schedule 2.

Schedule 2 takes away the right of an applicant to get reasons for a particular decision. Without reasons, the person who is the subject of a decision has no real right to have the decision reviewed. Schedule 2 is an extremely long list, and while in purely technical terms it does not have the same automatic exclusory effect of Schedule 1 the practical effect will be the same. The matters listed in Schedule 2 will not normally be able to be reviewed. At the Committee stage we will be moving for the deletion of Schedule 2 and we will also be suggesting the removal of some of the provisions in Schedule 1, particularly those relating to foreign takeovers, foreign exchange regulations, and the National Labour Consultative Council. None of these exclusions from the Bill was recommended by the Administrative Review Council, and it seems that the Treasury has again snowed the Government into moving for the exemptions.

Clause 5 of the Bill, together with clause 6, which is consequent on it, is also opposed. These provisions totally reverse the position under the 1977 legislation. Whereas previously the official or the department had to apply to the Federal Court for authorisation for refusing to give a statement of reasons, the onus is now reversed; the onus will now be on the applicant. The time in which the decision-maker must supply reasons to the applicant has been doubled from 14 days to 28 days. Clearly, that is consistent with the Government's attitude on freedom of information. Under the proposed freedom of information legislation, the time involved makes a mockery of any suggestion of a timely review. We also oppose clause 7, which seeks to insert new section 13A into the

Act. We are not entirely opposed to the withholding of information on the grounds of personal privacy, and even to some extent the security of business information, but the proposed section as drafted is far too wide. The most puzzling part of this whole exercise is why the Government has allowed itself to be dictated to by bureaucrats and not taken the advice of its own body, the Administrative Review Council, whose members include, among others, Sir Clarrie Harders, a former head of the Attorney-General's Department, and Mr Justice Michael Kirby of the Australian Law Reform Commission.

Section 14 of the Act contains provisions which allow the non-disclosure of information on grounds such as security, Cabinet solidarity and Crown privilege. Section 1 4 is already objectionable on two grounds. Firstly, it allows the Attorney-General to conclusively certify that information is not to be disclosed. That does not appear to be subject to any review. Secondly, the provision in section 14(1) (c) opens up the whole question of Crown or Executive privilege, which is an ill-defined common law concept, although it has been considerably narrowed by the High Court decision in Sankey v. Whitlam.

We have some reservations about recommendations of the Administrative Review Council such as the total exclusion of the Australian Security Intelligence Organisation and the telecommunication interception legislation. It is our view that as far as is reasonable, this Parliament ought to support the recommendations of that body. We will therefore be moving amendments to Schedule 1 and moving for the deletion of the completely new animal called Schedule 2. It is a matter of great regret that a piece of legislation passed by this Parliament in 1977 with unanimous support is now emasculated in this way. The praise we were able to give must now be replaced by vigorous condemnation. When the Bill was introduced into the House in 1 977 by the then Attorney-General he made these comments:

No longer will it be possible for the decision maker to hide behind silence.

That statement now rings hollow. This Bill gives every opportunity for the bureaucrat to hide behind silence. For those reasons the Opposition does not support the legislation and will be moving amendments at the Committee stage. We will deal with them as and when it is necessary.

Question put:

That the Bill be now read a second time.







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