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

I'll take the interjection: maybe the Greens political party! But, even then, I will stand up for members of the Greens political party. I will treat everyone on their merits.

It's an important thing to know. Our political parties are not something that get in the way of democracy. They're a key function of our democracy. They're key institutions of our democracy. Yes, this document here does not mention the Liberal Party, it does not mention the Labor Party and it does not mention the Greens political party, and nor should it. So much of our democracy is through convention and institutions that aren't mentioned here. We as a democracy need healthy political parties. They feed through to this place and they feed through to the Senate—the delegates, the candidates, the members. To somehow dismiss that as ruling you out from any other form of public service is I think dishonest, and it undermines our democracy in an insidious way. It says to people of talent and character and hard work: 'If you want to serve your nation, don't do it through a political party. Stay out of that. You don't want to rule yourself out from an appointment.' Let's put it to bed that being in a political party rules you out of public service. I reject that entirely, for any political party.

The coalition is not opposed in principle to review of the system—we should review it regularly and make sure it is fit for purpose and that it is an institution that has all the legislation requirements it needs in order to give an accessible and fair system of merits review. The tribunal is a body that provides review of government decisions made under about 400 pieces of legislation. Often, the merits review involves competing provisions of legislation and covers multiple parts. Whether it's in the NDIS or Centrelink or for veterans, these are complex pieces of legislation, and right now we're seeing an attempt to try to make the veterans suite of legislation less complex. That is an extremely complex system. To have people of character, hard work and competence is the No. 1 criteria.

The huge amount of legislation that has come before this House in this reform should not be lost either. This is 678 pages of new primary legislation. The explanatory materials are almost as long, at 631 pages. This House has been asked to debate and vote on an entirely new bill plus 33 schedules. That should be something we take seriously and approach with careful thought, consultation and consideration. I am a member of the social and legal committee for this House. We were tasked with conducting a review, and that review was announced just before Christmas on 14 December. It had one hearing day, and I couldn't go to that—I really wanted to, but I had a clash and couldn't go. That often happens on both sides with committee work. But usually a hearing goes for multiple days, multiple weeks or multiple months and you can make up for it. But, when it's one day, you can't make up for that. In that one day I read the materials, the submissions and the transcript. The only witnesses called were from the Attorney-General's Department, the Department of Home Affairs and the Department of Social Services, all on a single panel. How is that proper scrutiny?

Here we are, being asked to look at this reform of the merits review system that so many vulnerable and distressed Australians rely upon in a time of need, and we're not practising what we preach. For the government members to stand up there and criticise this side for having a system that is allegedly dysfunctional and biased and unfair and not doing its job and then to come here and do that very thing they criticised the previous government of doing is not lost on Australians who look to this House to conduct its review of bills properly. That is quite disappointing.

I'll turn to one potential constitutional issue. It's not for me or any member of this House to say something is unconstitutional—that's for the High Court to decide—but there is one issue I would like to briefly discuss. It was mentioned in a few submissions to the inquiry. One of them was by a serving part-time member and barrister Gray Connolly. Full disclosure, I have known Gray Connolly as a fellow veteran, but his submission is well crafted and well read, and I urge those following this to read it. He made the observation—in his personal capacity, because he takes that distinction between that and his formal capacity seriously—that there are potential constitutional issues in that, under the proposed bill, the president will be a serving chapter III judge. This is a process that's often replicated in state courts in my home state of Victoria. The equivalent, VCAT, has a serving Supreme Court judge acting as president. But that doesn't mean we're avoiding the constitutional issues, particularly here in the Commonwealth.

It has been put by others, including Gray in his submission, that this potentially creates the existence of a chapter 2.5. A serving Federal Court judge serves within chapter III, 'The Judicature'. But to then serve as a president of the Administrative Appeals Tribunal or the Administrative Review Tribunal means they are serving in a chapter II capacity. Whilst our separation of powers is blurred between chapter I, 'The Parliament', and chapter II, 'The Executive Government'—we even sit in the same building and are held to account here—that separation is strictly enforced between chapters II and III or between chapters III and I. We've seen that in the NZYQ case. The courts take that separation extremely seriously, and it often makes for difficult policy decisions and responses having to be made. To have that executive body headed by a judge under chapter III creates potential issues. Again, if we'd had a proper inquiry, we could have heard constitutional experts talk about this.

This isn't the first time this government has been quite cavalier in potential constitutional issues. We saw it in the Voice referendum, where the important function of the joint select committee in scrutinising the potential constitutional issues was really dismissed out of hand. That inquiry was turned into a PR campaign to help win the referendum. I would submit that doing it that way didn't actually help the campaign. You'd like to think the government would learn its lesson on being cavalier with constitutional issues.

Again, in question time, we have held the government to account about being cavalier in the NZYQ case, in the instructions that the minister gave for that case and also in the response since. Again, in his personal capacity, Gray Connolly proposes a potential solution: that maybe the president can be a retired judge. A retired judge is on a judicial pension but is no longer a serving member of a court. That would mean we're drawing upon all of the expertise and legal knowledge that a judge would have—perhaps even more so, because they've had their career. But they can then perform the functions of president, which includes some mundane things like the allocation of cases and resources, speaking to the minister about potentially requiring more money and funding. That's not something a serving judge should be doing.

In conclusion, it is right and proper that we review this important process, but we should make sure that review is done properly and in a way that Australians expect. Thank you.

See this speech in context