Keith Wolahan (Menzies, Liberal Party) Share this | Hansard source

I rise to speak on the Administrative Review Tribunal Bill 2023 while holding the foundation document of our democracy, the Australian Constitution. It was referred to several times in the last 18 months when we had the referendum debate, but it's something that is equally important for many debates in this House.

Our democracy is built on two fundamental principles. The first is parliamentary democracy, through the people's house here, where there are 151 members who represent each portion of this nation, and the house of review, the Senate. So parliamentary democracy is the first limb. The other is separation of powers. Our Constitution's first three chapters go to the separation of powers: chapter I, the parliament, where we are; chapter II, the executive; and chapter III, the judiciary. What we're talking about here is an important institution that looks at the accountability and review system within chapter II, the executive wing. There is a potential issue on separation of powers that I'd like to come to shortly.

Let's briefly go through the history of the Administrative Appeals Tribunal. Throughout the common-law world, we have seen growth in government—the state—for two reasons: the first was warfare and the second was welfare. The first was protecting the nation, and we saw that in the most extreme and violent circumstances in World War II. The second was looking after our people within our nation, and that saw an expansion of chapter 2, the executive branch of government, in a significant way. That expansion has continued; it has continued and will continue. It is a debate for another time, but the intergenerational report does note that in particular areas the expansion of government will continue.

We recognise that decisions that are made within chapter 2, the executive branch of government—and most are delegated decisions from the ministers through to the departments and public servants within the department—are often made with incomplete information. They're often either rushed or delayed, and mistakes are made. They're decisions made by humans, and humans make mistakes. We are not computers, and AI won't come to save the day.

It is important that people who feel that a decision has not been made fairly have an avenue for appeal within the executive system without having to go through the expense of hiring lawyers and going to court and all the delay that involves. A system that has review for people who are distressed and believe there has been an injustice which they want addressed should be accessible and affordable. It should not have lawyers involved. The legislative purpose of the AAT—and presumably the ART afterwards—is a proceeding that's called a de novo proceeding. It's not an appeal in the sense that a decision made in a department is appealed to a court. It means that the member who hears the facts fresh and reads the materials fresh must either affirm, vary, set aside or potentially substitute a decision for review. It goes without saying that no two cases are the same. Each must be judged independently according to its own facts and its own merits.

The quality of the people we have on that merits review tribunal is very important. We can all agree on that. They must be people who are hardworking, fair and of good character and who will put others first. What I reject is the idea, through many of the speeches, that someone, by virtue of having been a servant of any side of politics—a member of a political party in any sense—is somehow disqualified from being a person of good character, hard work and fairness. I would never go as far as to say that it makes them better in those spheres; it's just another factor of life. Having been involved in the Liberal Party, the Labor Party, the Greens political party or whatever organisation sits above the teals does not disqualify you from performing a merits review decision.

See this speech in context