Matt Keogh (Burt, Australian Labor Party, Shadow Minister for Defence Industry) Share this | Hansard source

This bill, the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021, would make a number of largely administrative amendments to various acts of parliament relating to federal courts and tribunals, principally the Administrative Appeals Tribunal. The legislation amended includes the Administrative Appeals Tribunal Act, the Child Support (Registration and Collection) Act, the Commonwealth Electoral Act, the Family Law Act, the Federal Circuit and Family Court of Australia Act, the Federal Court of Australia Act, the Judiciary Act, the Military Rehabilitation and Compensation Act, the A New Tax System (Family Assistance) (Administration) Act, the Paid Parental Leave Act and the Social Security (Administration) Act.

Amongst other things, this bill would empower the president of the Administrative Appeals Tribunal, the AAT, to direct that a proceeding in the Social Services and Child Support Division be referred to an alternative dispute resolution pre-hearing process. It would allow the president of the AAT, or an authorised member or officer of the AAT, to summons a person to give evidence or produce documents across all of the divisions of the AAT, including the Taxation and Commercial Division and the Social Services and Child Support Division. It would clarify that the AAT's power to correct errors in the text of a decision or in a written statement of reasons for a decision can only be exercised by the president or the member who presided at the preceding. It would clarify that hearings conducted remotely using videoconferencing technology in a federal court, including the Family Court, are in open court. It would update the terminology regarding the jurisdiction of a single justice of the High Court sitting in chambers or of another court exercising federal jurisdiction sitting in chambers.

The bill will amend the Admiralty Act to bring the admiralty rules into alignment with other rules of federal courts, such as by, among other things, declaring the admiralty rules to be rules of court. It will amend the Foreign Judgments Act, the Foreign States Immunities Act and the International Arbitration Act to provide certain procedural protections to foreign states, and it will remove the ability to hear appeals from the Supreme Court of Nauru in the High Court of Australia. All of these amendments are supported by Labor.

Three aspects of the bill, however, did attract controversy, and they are as follows. The first is the proposed amendment to the Federal Court of Australia Act that would have allowed the Federal Court, in the exercise of its appellate jurisdiction, to provide short-form reasons rather than detailed judgements where a decision dismissing an appeal did not raise any questions of general principle. This has been criticised by, among others, the Asylum Seeker Resource Centre, the Josephite Justice Office and the Law Institute of Victoria on the basis that it will disadvantage unrepresented applicants, including those seeking review of refugee decisions.

There was also a proposed amendment to the Administrative Appeals Tribunal Act to remove the role of the Governor-General in the appointment process for the AAT. The bill would have conferred that authority on the minister. However, there have been notable institutions that have expressed concern about this change—again, the Law Institute of Victoria and Asylum Seeker Resource Centre, among others—principally on the basis that there is no obvious justification or reason for it and the change could undermine the independence of the appointment process. There is no obvious justification or reason for this change. In fact, the Attorney-General's Department did not advance any justification or reason to the Senate committee inquiry into this bill at all. Its submission was completely silent on these amendments.

Thirdly, the bill would provide the same protection and immunity for immigration assessment authority reviewers as a justice of the High Court of Australia. Those protections are currently conferred on members of the AAT while they perform their duties. Again, the Law Institute of Victoria and the ASRC and others have argued that such protection should not be extended to IAA reviewers because, unlike AAT members, IAA reviewers do not have to take an oath of office, do not have special skill or knowledge, do not have fixed terms in advance and are not statutorily required to disclose conflicts of interest. Unlike AAT members, IAA reviewers are also not required to afford procedural fairness to applicants. Fortunately the Senate—with some concurrence of the government—has agreed to amendments to resolve these issues. We thank the government for agreeing to all of these amendments in the House.

As many of you will know, before entering this place I was a lawyer. Indeed, I was president of the Law Society of Western Australia, director of the Law Council of Australia and inaugural chair of Law Access in WA. Access to justice is very important to me, and the AAT plays a critical role in providing access to justice. It may be surprising for people to know that up until the creation of the AAT there was no formal and established way across the Commonwealth to access merits based review of administrative decisions. Indeed, litigants were limited to accessing the prerogative writs through the High Court, and later through the Federal Court system, for judicial review of such decisions. It was the creation of the AAT and its sister tribunals that provided that broad basis for merits review of administrative decisions.

These decisions cover a wide array of decisions made by government and government officers, and they impact on the daily lives of Australians in many different ways. I'm sure many, if not all, members of this House have engaged with those agencies that frequently see their decisions appealed to the Administrative Appeals Tribunal or its sister tribunals or tribunals that have since been merged into the AAT. These, of course, include immigration matters, social security and Centrelink matters, Department of Veterans' Affairs matters and taxation issues. All of these are really important to everyday Australians in their dealings with government. It is important in that regard not just that there is a process to access merits review but also that that process is accessible to ordinary Australians and that it does not come with a lot of the difficulties and costs associated with accessing a court process. This is particularly the case with a merits review process such as the AAT should provide because it provides the individual with an opportunity to present new and additional information to a decision-maker in the AAT about a decision that government has taken and have that decision made again. It is not limited just to causes for appeal to a court through a judicial review process.

But if our courts and tribunals are not accessible, then, of course, they are not an effective way for Australians to assert and be guaranteed their legal rights—as in this case, the case of the Administrative Appeals Tribunal, in particular—the citizens' rights against the government. Unfortunately, the way this government is administering the AAT is resulting in politicisation and, in turn, massive delays, and justice delayed is justice denied. Last year, in the same week that its own budget papers confirmed that wages would be going backwards for another four years, the Morrison government reappointed four of its mates to these taxpayer funded jobs. Since 2013 the Liberals have, staggeringly, appointed at least 79 of their mates to the AAT. In contrast, in the six years of the Labor government, from 2007 to 2013, there were just two Labor linked appointments to the AAT—both experienced and highly skilled lawyers welcomed by the then Liberal opposition. The appointment of Liberal mates to the tribunal is so out of hand that even former High Court Judge Ian Callinan QC had to recommend to government that all further appointments be on the basis of merit. One would have thought that all appointments to the AAT were based on merit. But it turns out that this may not be the case.

Each year, tens of tens of thousands of Australians rely on this tribunal to conduct an independent review of decisions by Commonwealth ministers and public servants. These decisions can have life-altering impacts—such as whether an older Australian receives the age pension, whether a veteran receives a service pension, whether a participant in the NDIS receives funding for essential support or whether a refugee obtains a visa. The time frames in which people are seeking justice or review through the AAT is something that we all should now be ashamed of. Let me provide an example from a constituent. One of my constituents lodged an appeal through the AAT. It took over a year for the AAT to acknowledge receipt of that appeal—not to hear it, not to deal with it, not to provide a decision, but just to acknowledge receipt of it. After one year, it still wasn't scheduled for any procedural process through the tribunal, let alone an actual hearing. This is an example of something we are seeing repeated across the registries of the AAT around the country. There are clearly issues in the administration of the AAT occurring under this government, but a big part of it is that a large number of members of the AAT are not fully competent to perform their role in the timely manner in which they need to do that. That is holding up justice. That is preventing citizens from receiving justice. It is preventing them from being able to hold their own government to account to provide the supports they need and deserve, and which we as a parliament have legislated for them to have access to.

While membership of a political party is not in any way a disqualification for appointment to a tribunal, I readily acknowledge that many of these member are undoubtedly competent and highly qualified. The tribunal, though, is now rightly perceived by many in the community as hopelessly and absurdly politicised. And, worse, these jobs for mates, of which there have been 79 since 2013—that's nearly 10 a year—have resulted in the work that the AAT needs to do not being done and not being doing in a timely manner. It is denying justice. So, just like the current Liberal government, sadly, the AAT is failing to deliver outcomes to deliver justice for Australians. Australians deserve a better future for the AAT and a better future for our justice system.

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