Trevor Evans (Brisbane, Liberal Party, Assistant Minister for Waste Reduction and Environmental Management) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The government is committed to ensuring the ongoing improvement of Australia's federal courts and tribunals. It is with pleasure that I introduce the Courts and Tribunals Legislation Amendment (2021 Measures No.1) Bill 2021 (the bill), which primarily seeks to improve the administration of the federal courts and the Administrative Appeals Tribunal (AAT). The bill does not introduce fundamental changes to the way our legal system operates. Rather, it represents some incremental changes that will streamline and clarify existing processes in the federal courts and the AAT.

In particular, this bill amends the A New Tax System (Family Assistance) Administration Act 1999, the Administrative Appeals Tribunal Act 1975, the Admiralty Act 1988, the Child Support (Registration and Collection) Act 1989, the Commonwealth Electoral Act 1962, the Family Law Act 1975, the Federal Circuit Court Act 1999, the Federal Circuit and Family Court Act 2021, the Federal Court of Australia Act 1976, the Foreign States Immunities Act 1985, the Judiciary Act 1903, the Military Rehabilitation and Compensation Act 2004, the Paid Parental Leave Act 2010, and the Social Security (Administration) Act 1999. The bill would also repeal the Nauru (High Court Appeals) Act 1976.

The government aims to make merits review through the AAT accessible, fair, just, economical, informal and quick. To this end, this bill will amend the Administrative Appeals Tribunal Act, the A New Tax System (Family Assistance) Administration Act, the Child Support (Registration and Collection) Act, the Military Rehabilitation and Compensation Act, the Paid Parental Leave Act, the Social Security (Administration) Act, and the Student Assistance Act to streamline and harmonise the practices and processes of divisions within the AAT. Amendments to the Administrative Appeals Tribunal Act will also address minor technical and administrative issues within the existing act. Amendments to the Administrative Appeals Tribunal Act will require consequential amendments to the Commonwealth Electoral Act.

The bill will also make minor and technical amendments to the Judiciary Act, which will amend inconsistencies in terminology between the Judiciary Act and the High Court Rules, and to prescribe forms by practice direction rather than retaining them in the High Court Rules.

The bill makes minor amendments to the Federal Court of Australia Act, the Federal Circuit Court of Australia Act, the Family Law Act and the Federal Circuit and Family Court of Australia Act to clarify that hearings conducted remotely using videoconferencing technology are exercised in 'open court'. The bill also amends the Judiciary Act to clarify that a court shall be taken to be exercising federal jurisdiction in a proceeding in the state or territory in which the proceedings commenced. These amendments are appropriate to remove any doubt as to the validity of hearings across the federal courts being undertaken remotely, particularly since the broader use of remote hearings since the beginning of the COVID-19 pandemic.

The bill makes amendments to the Foreign States Immunities Act 1985 (FSI Act). Under international law, foreign states are entitled to immunity from the jurisdiction of the courts of other countries in certain circumstances. In Australia, this immunity is governed by the FSI Act.

These amendments clarify the application of the FSI Act to ex parte proceedings following the High Court's consideration of the issue in Firebird Global Master Fund II Ltd v Republic of Nauru in 2015. In Firebird, the court held that the provision in the FSI Act relating to judgements in default of appearance does not apply to ex parte proceedings.

The bill clarifies the application of the FSI Act to ex parte proceedings to ensure that foreign states are afforded appropriate procedural immunities, and reduces the risk that an Australian court could register a foreign judgement against a foreign state in circumstances where Australia is obliged to afford that foreign state immunity under international law. Furthermore, the bill similarly extends these procedural protections to proceedings relating to the recognition or enforcement of a foreign award against a foreign state pursuant to the International Arbitration Act 1974.

This bill will also clarify that the Admiralty Rules 1988 are rules of court and apply certain provisions of the Legislation Act 2003 so as to exempt the rules from sunsetting, but require that they be registered and published. This aligns the treatment of the Admiralty Rules with the rules of the federal courts.

The bill would repeal the Nauru (High Court Appeals) Act. The Nauru (High Court Appeals) Act was enacted to give effect to the agreement between the Australian government and the government of the Republic of Nauru for appeals to the High Court of Australia from certain classes of decisions of the Supreme Court of Nauru.

This agreement was terminated on 13 March 2018 while still providing for appeals and applications for leave instituted before the date the agreement was terminated to be heard.

All relevant appeals and applications for leave instituted before the agreement's termination have concluded. Accordingly, it is appropriate for the Nauru (High Court Appeals) Act to now be repealed.

The introduction of this bill represents the government's enduring commitment to ensuring that our legal system is fit for purpose. In particular, the bill will improve the efficiency and operation of our federal courts and the AAT.

I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor supports the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. The bill would make a number of largely administrative amendments to various acts of parliament relating to federal courts and tribunals.

There were three aspects of the original bill that Labor did not support, which we amended successfully in the Senate. To her credit, the Attorney-General and her office worked constructively and in good faith with me and my office in relation to Labor's concerns. In the interest of getting this bill through the parliament, the government agreed to two of Labor's amendments. Despite the government's opposition, Labor's third amendment also succeeded in the Senate. I understand that the government has taken the sensible and pragmatic view to now accept that amendment, too. I would like to thank the Attorney-General for that.

The first aspect of the bill we did not support related to the role of the Governor-General in the appointments process for members of the Administrative Appeals Tribunal. Currently, a person may not be appointed as a deputy president or as a member of the tribunal, unless, in the opinion of the Governor-General, the person has special knowledge or skills relevant to the duties of a deputy president or member. The original version of the bill would not have changed the fact that appointments would still be made by the Governor-General, but it would have amended the Administrative Appeals Tribunal Act to require the minister, as opposed to the Governor-General, to form an opinion as to whether a person has special knowledge or skills relevant to the duties of a deputy president or member.

While this change was unlikely to have any significant practical impact on the appointments process for tribunal members, the government failed to make a case for why such a change was necessary or desirable. Given the Morrison government's shameful record of appointing almost 80 Liberal Party associates and former Liberal Party politicians, staffers and donors as members to the tribunal, Labor senators refused to support an amendment which, even just at the level of perception, further undermined the independence of the appointment process. Senator Watt moved an amendment to remove that aspect from the original bill in the Senate. That amendment was successful, despite the government's opposition.

By way of further context, it is difficult to overstate the damage that the Morrison government has done to public confidence in and the integrity of the Administrative Appeals Tribunal. The Liberals have handed at least 79 jobs on the Administrative Appeals Tribunal to Liberal mates—that is at least 79 former Liberal Party staffers, failed Liberal Party candidates, Liberal Party donors and members who've been given secure and very highly remunerated jobs on the tribunal, and, for many of them, their only qualification seemed to be a Liberal Party membership card.

Full-time members of the Administrative Appeals Tribunal are paid between about $200,000 and $500,000 a year, and it's basically impossible for them to lose their jobs, even if they never turn up for work or are incompetent when they do turn up. Based on data provided by the tribunal, we know that some full-time members, people who are receiving hundreds of thousands of dollars a year in salary, have been doing no work. We know that many other full-time members have been doing very little work, finalising fewer than 25 applications a year. We also know that, as a result of potentially unlawful remuneration policies adopted by the Administrative Appeals Tribunal, many part-time members of the tribunal are being paid tens of thousands of dollars more than full-time equivalents. The Auditor-General looked into this, and the tribunal has undertaken to update its remuneration policies.

The poor record of a small number of tribunal members undermines the excellent work of many great members of the Administrative Appeals Tribunal, some of whom are former Liberal Party parliamentarians and staffers. Let me be clear: membership of a political party is not a disqualification for appointment to the Administrative Appeals Tribunal. The issue is that the Morrison government has treated membership of the Liberal Party as the only qualification for appointment. How else can one explain the appointment of a man like Anthony Barry, who's a former Liberal Party media adviser turned big-tobacco lobbyist who reportedly boasted about dropping out of law school and who continued to work as a lobbyist long after he was appointed to the tribunal, or the appointment of John Griffin? He's another senior Liberal Party aligned lobbyist who continued to advise the Liberal Party on 'state and federal election campaigns as a senior political strategist and campaign adviser while he was a member of the tribunal'. It became so bad that former High Court Judge Ian Callinan, who was hand-picked by the former Attorney-General to conduct a review of the tribunal, felt the need to recommend that all future appointments be made on the basis of merit. You would hardly think you needed to recommend that, but former High Court Judge Ian Callinan, in his review of this tribunal, said that that needed to be done.

As I've said before, it saddens me greatly to see the Administrative Appeals Tribunal, a great innovation in Australian administrative review processes, diminished in this way by this rotten government. Every year tens of thousands of Australians rely on the tribunal to conduct an independent review of decisions by Commonwealth ministers and public servants, decisions that can have major and sometimes life-altering impacts on people's lives. Age pensioners, NDIS participants, veterans—this government cares more about the interests of their little circle of mates than about those Australians. For the Morrison government, the Administrative Appeals Tribunal is there to serve the interests of the Liberal Party and its mates, not the interests of Australians.

Turning back to the bill, the second aspect of the original bill we did not support in the Senate was the extension of the same protections and immunities to Immigration Assessment Authority reviewers as are currently provided to High Court judges and members of the Administrative Appeals Tribunal. Labor has long held concerns about the so-called fast-track assessment process under the Immigration Assessment Authority. That process is neither fast nor fair, and this parliament should not endorse any measure which even implicitly suggests that the fast-track process is somehow the equivalent of or even similar to a normal judicial or tribunal process. Senator Watt moved an amendment to remove that part of the bill, and that amendment was successful. I note that in the interests of getting this bill through the parliament the government agreed to support that amendment.

Finally, Labor senators opposed the amendment to the Federal Court of Australia Act 1976 to allow 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 does not raise any questions of general principle. That aspect of the bill was criticised by the Asylum Seeker Resource Centre, the Josephite Justice Office and Law Institute of Victoria on the basis that it would disadvantage unrepresented applicants, including those seeking review of refugee decisions. We shared those concerns, and so Senator Watt moved an amendment in the Senate to remove that aspect of the bill. In the interests of getting this bill through the parliament, the government agreed to support that amendment in the Senate. So, with Labor's amendments having passed the Senate, what we are left with is a good bill which makes useful, largely administrative and long-overdue amendments to various acts of parliament relating to federal courts and tribunals.

I can only imagine how many months and years this bill, or at least a version of it, sat in the former Attorney-General's to-do pile gathering dust, gathering dust under the long ignored Respect@work report, the exposure draft of the Commonwealth Integrity Commission Bill and departmental briefs on the nine or so judicial vacancies on federal courts. The list of urgent, unfinished business under the former Attorney-General was a long one. At the risk of damming the current Attorney-General with faint praise, I give her credit for bringing this simple but worthwhile bill forward to the parliament, and I commend the bill in its amended form to the House. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that the current Government has:

(a) appointed at least 79 former Liberal Party politicians, failed Liberal Party candidates and former Liberal Party staffers to the Administrative Appeals Tribunal;

(b) used the Tribunal to serve the interests of the Liberal Party and its mates rather than the interests of the Australian people; and

(c) in doing so, brought the Tribunal into disrepute; and

(2) calls on the Government to implement a merit-based selection process for Tribunal members."

Lucy Wicks (Robertson, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Patrick Gorman (Perth, Australian Labor Party, Shadow Assistant Minister for Western Australia) Share this | Link to this | Hansard source

I second the amendment.

Lucy Wicks (Robertson, Liberal Party) Share this | Link to this | Hansard source

The original question was that the bill now be read a second time. To this the honourable member for Issacs has moved an amendment that all words after 'That' be omitted with a view to substituting other words. If it suits the House I will state the question in the form that the amendment be disagreed to. The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The member will have leave to continue speaking when the debate is resumed.