House of Representatives

Administrative Appeals Tribunal Amendment Bill 2005

Second Reading Speech

Mr Ruddock (Berowra - Attorney-General)

I move:

That this bill be now read a second time.

The Administrative Appeals Tribunal Amendment Bill 2005 introduces a suite of measures that will improve the capacity of the Administrative Appeals Tribunal (the tribunal) to manage its workload and ensure that reviews are conducted as efficiently as possible. The bill amends the Administrative Appeals Tribunal Act 1975 (the AAT Act) and related legislation.

Taken individually, each of the measures contained in the bill is relatively modest. However, taken together they represent the most substantial reform of the tribunal undertaken since it first opened its doors on 1 July 1976.

The purpose behind the reforms is simple: to make the tribunal more efficient, more flexible and more responsive to the ever-changing environment in which it operates. The reforms reinforce that the primary objective of the tribunal is to provide a mechanism of review that is fair, just, economical, informal and quick.

The reforms do not involve a fundamental change to the purpose, structure or functions of the tribunal. Rather, they build on the tribunal's experience over almost 30 years of operation.

The reforms can be divided into four key areas:

·
Reforms to tribunal procedures
·
Removal of restrictive constitution provisions
·
Better use of ordinary members, and
·
Reform of the role of the Federal Court.

A number of government and opposition amendments to the bill were made in the other place. The government amendments were made for the purpose of implementing most of the recommendations of the report on the bill made by the Senate Legal and Constitutional Legislation Committee on 8 March 2005. The government has been prepared to compromise on this bill, and the amendments moved to give effect to most of the committee's recommendations are a clear demonstration of this goodwill.

A number of opposition amendments were also passed, including on a matter not canvassed in the Senate Legal and Constitutional Legislation Committee report, namely an amendment to provide members of parliament with a right to bring proceedings in the AAT for review of any decision for which AAT review is available (other than those under the Australian Security Intelligence Organisation Act 1979).

Reforms to tribunal procedures

The bill reforms existing tribunal procedures to allow for more efficient conduct of reviews.

The powers of the President will be expanded to facilitate more effective case management. In particular, the President will have the power to issue directions in relation to the operation of the tribunal and the conduct of reviews. The bill also rationalises the provisions relating to the resolution of disagreements between the members of the tribunal hearing a particular matter, avoiding the costly and inefficient delays that, at present, occasionally result from such disagreements.

In keeping with the government's commitment to alternative dispute resolution as an inexpensive and effective way of resolving disputes between parties, the bill expands the range of alternative dispute resolution processes available to the tribunal. New alternative dispute resolution processes will include neutral evaluation, case appraisal and conciliation. The bill also provides the Registrar with the capacity to engage appropriately qualified and experienced consultants to conduct alternative dispute resolution processes.

Removal of restrictive constitution provisions

The bill removes restrictions contained in the AAT Act and other legislation on how the tribunal is to be constituted for the purposes of particular hearings. This will give the President greater flexibility in managing the tribunal's workload. To ensure that the tribunal is constituted by the most appropriate members in each proceeding, the bill requires the President to have regard to a range of factors when determining the constitution of the tribunal. These factors include:

·
the degree of public importance or complexity of the matters to which the proceeding relates
·
the status of the person who made the decision that is to be reviewed, and
·
the degree to which it is desirable for the members constituting the tribunal to have special knowledge, expertise or experience in relation to the matters to which the proceeding relates.

To complement these changes, the bill simplifies existing reconstitution provisions. There are two aspects to this proposal. First, the bill would amend the provisions that apply where a member becomes unavailable during the course of a review. Secondly, the president would have the power to add, remove or substitute a member of the tribunal if he or she is of the opinion that it is in the interests of achieving an expeditious and efficient conclusion of the review. Amendments made by both the government and the opposition in the other place have inserted further explanation of the criteria governing the exercise of the president's powers to remove a member and reconstitute the tribunal for the purposes of particular proceedings.

Better use of ordinary members

The bill contains amendments to allow the president to authorise ordinary members to exercise powers currently only conferred on presidential and/or senior members. These powers will include granting applications for an extension of time before a hearing has commenced and giving a party leave to inspect documents produced under summons. These reforms will give the tribunal greater flexibility in the allocation of resources and allow for tailored management of particular matters. It is expected that some matters will be heard more expeditiously than is possible under existing arrangements as a result of these reforms.

The role of the Federal Court

The bill introduces an amendment requiring the consent of the president before a question of law may be referred to the Federal Court. I wish to stress at the outset that no existing appeal rights will be affected by this proposal. At present, subject to some restrictions, the tribunal constituted for the purposes of a hearing may refer a question of law arising in the proceeding to the Federal Court for decision.

The involvement of the president is intended to ensure that only matters in genuine need of judicial resolution are referred. Under current arrangements, it is possible for issues that may be regarded as settled or insignificant to be referred to the Federal Court wasting the resources of the court and causing delays in the resolution of the proceeding. Where a party believes that a decision of the tribunal was based on an error of law, they will still be able to appeal that decision to the court.

In a related reform the bill allows the Federal Court to make findings of fact in appeals from decisions of the tribunal. This reform implements a recommendation made by the Administrative Review Council in its report titled Appeals from the Administrative Appeals Tribunal to the Federal Court. This proposal is not intended to in any way reduce the tribunal's role as the primary finder of fact in review proceedings. Rather, it is intended to allow the Federal Court to dispose of appropriate matters completely rather than remitting them to the tribunal for the taking of further evidence.

The court will only be able to make findings of fact if they are consistent with those already made by the tribunal. Before making such findings the court must determine whether it is convenient to do so, having regard to factors such as:

·
the expeditious and efficient resolution of the whole of the matter to which the proceedings relate
·
the relative expense to the parties of the court, rather than the tribunal, making the findings, and
·
the relative delay to the parties of the court, rather than the tribunal, making the findings of fact.

The amendments will not bring about far-reaching changes to the federal system of administrative law, but rather will improve the efficiency of the review process and provide for more immediate outcomes in a small but significant number of proceedings.

Tenure

The bill also removes those provisions under the act which currently confer tenure on presidential members who are also judges and allow for the appointment of deputy presidents or senior members with tenure. This means all future appointments to the AAT will be for fixed terms of up to seven years.

Tenured appointments reduce the flexibility of the tribunal to respond to its changing case load.

To ensure it is able to continue to meet the needs of its users, the tribunal requires access to a pool of appropriately qualified members. Tenured appointments undermine the ability of the government to ensure that the pool of available members corresponds with the needs of the AAT and its users.

This reform is also intended to provide consistency across the membership of the AAT.

Following amendments made by the opposition in the other place the bill now also provides for minimum terms of appointment. The government does not support this approach. It reduces flexibility for the tribunal, in direct contrast to the intent of these reforms.

In addition, the bill modernises the vocabulary of the act and inserts new headings to enhance the readability and user-friendliness of the act. Terms such as `serve' and `furnish' will be replaced with plain English equivalents. These amendments accord with the government's policy of making the Administrative Appeals Tribunal more accessible to self-represented litigants. Criminal offences contained in the AAT Act are also redrafted to accord with the style used in the Criminal Code and penalties updated.

Changes to the qualification requirements for appointment as president

The government has made real and serious change to the proposed reform package, in light of the report of the report of the Senate Legal and Constitutional Legislation Committee. In particular, it has changed a key aspect of the reforms by removing the proposal to broaden the qualifications for appointment as president. The president will continue to be a Federal Court judge, implementing the committee's first recommendation. The government listened to the concerns expressed and has agreed to compromise on this point. It is unfortunate that the opposition was not also minded to compromise in the other place.

If they are not prepared to compromise in relation to these matters, it may well be that we will have to wait our time to allow the democratic processes to operate, in which case they would not operate in quite the way in which this compromise offers. And I certainly would not be found binding to a compromise where I was expecting that there would be some give and take. Let me just make that very clear. I think the opposition have recognised that the government has made substantial changes. They have certainly claimed it. It is not the time for the opposition to continue to press these matters. I think they ought to come to the party in the way in which the government has.

Conclusion

For close to 30 years, the tribunal has provided an avenue for people to seek review of the decisions of government that impact on their lives. The tribunal has also played an essential role in improving the quality of administrative decision making across the Australian government. The measures contained in the Administrative Appeals Tribunal Amendment Bill will ensure that, as the tribunal enters a fourth decade of operation, it continues to perform its vital function and to so serve the interests of the Australian community.

I present to the House explanatory memoranda which I have signed.

Leave granted for second reading debate to continue immediately.