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Tuesday, 15 March 2005
Page: 19

Senator MARK BISHOP (1:46 PM) —The Administrative Appeals Tribunal Amendment Bill 2004 [2005] is relatively uncontroversial. This is very unlike the violent change the government sought to make through a similar bill some years ago. That bill sought to destroy the independence of the Administrative Appeals Tribunal by making each tribunal financially dependent on the relevant department. As well, it sought to introduce more accountability by insisting on the introduction of performance indicators. It is good to be able to say that that flush of new managerialism seems to have abated. This was due in large part to public objection to the government’s motives, which at that time were plain. Those motives were generated by government frustration at AAT decisions which contradicted government policy. But, instead of changing policy and the law, the government sought to change the umpire. Veterans, for one, saw that and rightly objected to some of the changes that were mooted at that time. The independence of both the Veterans Review Board and the AAT from government control was and remains paramount. In contrast, this bill only seeks to make a number of procedural changes to streamline the operations of the tribunal. None of these relate to that earlier doctrinaire approach. In the interests of time, I will not repeat those mooted changes, but I should mention the recommendations of the report by the Senate Legal and Constitutional Legislation Committee.

The committee’s first recommendation is that the appointment of a president continues to be made from the ranks of Federal Court judges. The reason for this is more than just status. The AAT by its very nature is much more than an administrative body. It deals with the law, not administration—despite its title. The position of president is not just a chief executive officer or a manager; the president presides over a legal entity making legally-binding decisions about matters where decisions made under the law are in dispute. The AAT’s role is to adjudicate on the application of the law. Its decisions are appealable to the Federal Court. Given the complexity of the AAT’s own procedures, as instanced in this bill, we believe that nothing less than a Federal Court judge is appropriate.

In a similar vein, the committee recommended that a minimum term of appointment of three years be introduced. Again, we support that recommendation and, hence, the amendment that will be moved. One element is paramount in the law, and that is certainty. Appointments such as these must be above the political ruck. There must be both certainty and continuity. There must be no opportunities for political patronage just to suit the transient interests of the government of the day. The other main recommendation was for the mandatory consultation of the president in the allocation of tribunal members by the minister. If nothing else, one would regard this as a simple courtesy. But, as we all know, ministers are not always renowned for this quality. It is better provided for in the legislation.

This bill provides an opportunity to express a few other views on administrative law. My particular interest is in the veterans jurisdiction. The Senate will appreciate that the veterans jurisdiction is quite complex. Indeed, some regard it as cumbersome. The efficient working of review processes in that context is very important. As in other jurisdictions, there has been an intensification of review of decisions in more recent years. As well as having access to the AAT, veterans have their own tribunal in the Veterans Review Board. Many outsiders see this as an unnecessary duplication of review. Occasionally governments have been daring enough to try to abolish it or wrap it into the AAT. In fact, the Howard government tried just this, in a way, with the new military compensation legislation last year. It sought to exclude serving personnel from its purview. Needless to say, the ex-service community objected. The end result was that all appeals against unsuccessful military compensation claims can now go to the VRB as well as the AAT. The process is now the same for veterans, as is set out in the Veterans’ Entitlements Act. There is double access to review and everyone is treated in the same fashion.

It is said by critics that the availability of an extra layer of review not only is costly but also adds time. It is also said that it unwisely creates or maintains an appeals culture. That may be true to a limited extent, though that overlooks an intrinsic feature of veterans law—that is, onus of proof, to which I will return in a moment. It should also be said, as the Administrative Review Council has noted, that the Veterans Review Board is a high-volume, low-cost operation. To that extent, it performs a very real function for those in real need. As well, veterans believe that review should be conducted by membership with some military experience. In this way they can be assured of greater empathy with military service, which is often beyond civilian comprehension.

Certainly the procedures are non-threatening, and I know that members always seek to facilitate cases rather than deal only with the facts as presented. This is consistent with the requirement of the Veterans’ Entitlement Act that the department carry the onus of proof, not the claimant. This is a significant difference from other jurisdictions and tribunals. This was a matter considered by the Senate Finance and Public Administration Legislation Committee in its inquiry into administrative review in the veterans jurisdiction in 2003.

This reversed onus of proof excuses veterans from fully proving their claims. It is up to the department to investigate the claim and to find the evidence to support it. The reversed onus of proof means that the department must disprove all claims—beyond reasonable doubt, in many cases. Hence the problem of the quality of evidence presented. Associated with this is the problem of records which are of variable quality. This means ultimately that administrative review in this jurisdiction rests largely on the quality of evidence as presented. Hence the entire review process turns, in most cases, on new evidence—and the better the advocacy, the better the chances of successful review. Good advocates know the ropes, but unfortunately they come at a price—at the AAT at least.

Affordability remains a major issue for real justice in administrative law. Many simply cannot manage the complexity of the law or the processes. This is despite the aims that administrative law as dispensed by the AAT should be accessible and inexpensive. Veterans are very fortunate for a couple of other reasons. One is that ex-service organisations have a key role in looking after their mates. The assistance they provide in helping people through the review process is very substantial. This has been recognised by government through the provision of funding for training of ex-service advocates. It also provides some modest resources for administrative support, including computers, software and staff. The other reason is that veterans are entitled to non-means tested legal aid. For those people who are critical of these benefits, it should be said that these are traditional policies based on commitments made long ago when troops were sent overseas to war. It is an entitlement from a grateful country to those who chose to serve. Of course, nothing has changed, and both sides of this chamber abide by that commitment. Hence the support we gave on this side to the amendment to the Military Rehabilitation and Compensation Bill providing for access to the VRB.

To return to the bill for a moment, the introduction of new evidence through the review process has always been controversial. On one side the argument is that reviews should be restricted to the claim and the decision made in the first instance. New evidence, the critics say, should see the case returned to the primary claim decision maker. Yet, as I have set out, obtaining evidence is probably the greatest problem in most jurisdictions. Quite often, it is not available in the first instance. Often the shortcoming cannot be realised until the hearing has been conducted and all the facts are on the table. Thus we have elaborate conciliation processes prior to hearing where these matters are sorted out.

In this bill there are two new provisions which will assist this further. The first is the new capacity of the president to direct an alternative dispute resolution process—that is, the parties are sent off to negotiate an outcome. Inevitably, this will centre on the evidence. Rather this than the cost of a full hearing in which evidence might still be deficient. Further, a new provision is made requiring the engagement in this process of the primary decision maker. This seems quite sensible, although the reservations expressed by the Parliamentary Library on the practicality of this should be noted. With respect to the assertion that new evidence should be returned to the primary decision maker, the practicality is that the tribunal deal with it. This pragmatic attitude has now also been applied through this bill to the Federal Court. Instead of remitting a case to the AAT, the Federal Court, through this bill, will also be able to determine or realise a decision. Again, this is a practical move to streamline reviews in everyone’s interests.

I venture these views so that they are on the record. Too often, the importance of administrative review is overlooked or not even understood. As we all know from representations made to us, primary decisions can be fraught with error. In many cases, such as migration, it involves the personal future of applicants. Human rights are therefore paramount in this context. In other cases, such as social security, it is simply about ensuring that claims for entitlement are not wrongfully denied. As I have said about veterans, in those cases it is about honouring past commitments to those who served overseas in the service of our nation. For ex-service people, like social security claimants, it is about ensuring that entitlements are properly and fairly determined. In large part, I believe we can have some certainty, particularly in this jurisdiction, that the system is working effectively. There are, however, always exceptions. They occur sometimes through evidentiary shortcomings. Sometimes they flow from a lack of clarity in the law. Despite expressed intentions, they often happen because the claimant does not have the skills or the means to properly represent and argue their perspective. We support this bill, subject to the second reading amendment to be moved later by my colleagues.