Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I move:

That the bill be now read a second time.

These bills would abolish the Administrative Appeals Tribunal and replace it with a new and much improved Administrative Review Tribunal.

In doing so, these bills represent the most important reform of the federal system of administrative review for decades.

Effective administrative review is critical to Australia's system of government.

A strong, user-focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives.

This function is critical to protecting the rights and interests of individuals and organisations, including the most vulnerable members of our community.

And critically, high-quality review of government decision-making can—and, if this bill is enacted, will—encourage better quality decision-making across government.

Background

The Administrative Appeals Tribunal commenced on 1 July 1976, following reports by the Commonwealth Administrative Review Committee in 1971 and the Committee on Administrative Directions in 1973.

The Commonwealth Administrative Review Committee report, in particular, recognised the need for individuals to be able to challenge a growing range of government decisions, and recommended the creation of a comprehensive and 'essentially Australian' system of administrative law.

In the second reading speech for the Administrative Appeals Tribunal Bill 1975, then Attorney-General, the Hon. Kep Enderby QC, outlined the intention to establish a single independent tribunal and a vision of the AAT as the main tribunal for Commonwealth administrative review.

The foundational principles of administrative review are as relevant today as they were in 1976. An independent person 'stepping into the shoes' of the original decision-maker still lies at the core of merits review. The objective of ensuring that government reaches decisions that are correct or preferable is, and remains, the goal.

Unfortunately, the AAT no longer enjoys the trust and confidence of the Australian community it serves, and is not fit-for-purpose. The previous government's record of appointing dozens of individuals from the same political party to the AAT is well known.

However, the AAT's problems extend beyond the absence of a merit based selection process under the former government.

Government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and a large and growing backlog of applications, and an AAT that is operating multiple and ageing electronic case management systems—a legacy of the poorly executed amalgamation of multiple tribunals into the AAT in 2015.

The government also inherited an AAT that is no longer taken seriously—or, at least, seriously enough—by government departments and agencies. As the robodebt royal commission highlighted, the AAT made hundreds of decisions that the approach to calculating and raising debts under the scheme was unlawful—but those decisions, and their obvious implications, were ignored and ultimately buried.

In developing this package of legislation, the government has had the opportunity to look at the original vision for the AAT afresh, and consider how it can best be realised now and into the future.

We have the benefit of nearly 50 years of experience since the AAT was established and multiple reviews—old and new—into the AAT and the administrative review system more generally.

We have drawn on the knowledge and wisdom of an expert advisory group. That group is led by former High Court Justice, the Honourable Patrick Keane AC KC, and comprises Ms Rachel Amamoo, Professor Anna Cody (now the Sex Discrimination Commissioner), Emeritus Professor Robin Creyke AO, Emeritus Professor Ron McCallum AO, Former Federal Court Justice, the Honourable Alan Robertson SC, and Emeritus Professor Cheryl Saunders AO.

And over the course of the last year, the Attorney-General's Department has undertaken significant consultation with AAT staff and members, AAT users, peak bodies, legal assistance providers, advocates and other experts.

This package of legislation is transformative. It is ambitious and comprehensive—we are building an institution that is intended to serve the community and drive better decisions for many years to come.

Consultation has provided the government with an in-depth understanding of what does not work within the current system.

The outcome of this process is legislation that aims to create a unified, cohesive tribunal with flexible powers and procedures that best meet the needs of applicants.

We are proposing to create an adaptive framework with flexibility for the tribunal to continuously improve its operation, and to support best practice across its entire caseload.

Of course, not all problems can be fixed by legislation. Close attention will be given to implementation, practice, monitoring and evaluation to ensure ongoing improvement into the future.

Today I am introducing two bills:

A second consequential and transitional bill will be introduced early next year. The amendments in that second bill will be predominantly minor and technical updates to a range of Commonwealth Acts, which collectively represent approximately seven per cent of the AAT's caseload, and will include amendments requiring consultation with states and territories.

The bill sets out the objective of the new tribunal, which will guide its operations and the actions of all members and staff.

The bill's objective is to provide an independent mechanism of review that:

To ensure it is able to achieve this objective, the bill would establish a tribunal with the following key features:

Structure and membership

The tribunal will be made up of the president, deputy presidents (both judicial and non-judicial), senior members and general members. This streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary.

The tribunal's president will have clear functions, including hearing particularly significant and complex matters as a member, managing the business of the tribunal, managing the performance and conduct of members and consulting with civil society.

A single chief executive officer and principal registrar (principal registrar), will assist the president to manage the administrative affairs of the tribunal, and will be responsible for managing corporate and registry services.

The tribunal will be made up of eight jurisdictional areas:

Within these jurisdictional areas, the president can establish 'lists', led by senior members or deputy presidents, to ensure the tribunal can build specialist knowledge to deal effectively with distinct case loads.

This structure builds in flexibility to ensure an enduring, responsive foundation for the tribunal's work into the future.

Each jurisdictional area will be led by a non-judicial deputy president who will be responsible for identifying and managing trends in and changes in the case load of their jurisdictional area, and managing the performance, conduct and professional development of members assigned to that area.

The president will have the power to assign members within the tribunal to work in different jurisdictional areas. Vesting this power in the president will allow members to be deployed more flexibly.

A Tribunal Advisory Committee will provide strong collective leadership to the tribunal. Comprised of the president, principal registrar and the jurisdictional area leaders, the committee will ensure these leaders are individually and jointly responsible for promoting the tribunal's objective.

Transparent and merit based selection process

A transparent and merit based selection process for members is provided for in the bill.

The suitability of prospective members (other than judicial deputy presidents) will be assessed through a thorough, competitive, merit based and publicly advertised process. The assessment will consider how well candidates fulfil the skills, expertise, experience and knowledge required to be a member of the tribunal.

This assessment must also consider the need for a diversity of skills, expertise, and lived experience, noting that the tribunal should reflect the community it serves.

Performance, conduct and professional development of members

The bill would give the president powers to manage member performance, conduct and professional development.

The power to adequately address allegations of member underperformance, bullying and harassment was noticeably absent from the AAT Act. The bill provides powers and processes that will help ensure the tribunal is a safe and respectful workplace, and the public can be confident in the quality of the tribunal's decision-making.

User focused accessible design

The bill strengthens the tribunal's objective of providing independent merits review that is accessible and responsive to the diverse needs of parties, including people with disability and people who do not speak English as a first language (or at all).

Enhanced powers and procedures

The bill provides the tribunal with a range of powers and procedures that can be applied flexibly across all jurisdictions within the tribunal. This will allow the tribunal to tailor its processes to best suit each matter.

The bill also introduces procedures around party participation to make proceedings more flexible and less adversarial. Specifically, the bill provides a mechanism for decision-makers to elect not to participate in the review process. Some kinds of proceedings will be better suited to a less formal process of review involving only the applicant. The majority of AAT reviews are already conducted in the absence of a decision-maker and the more inquisitorial nature of these reviews is valued by applicants.

The ability of decision-makers to elect not to participate in proceedings will be subject to limits set out in the bill, including that the tribunal may order a decision-maker to participate.

Retaining powers and procedures that work

The new tribunal will also have all of the essential powers, procedures and requirements currently applicable in the AAT.

Improved administrative decision-making

A key objective of the tribunal will be to improve the quality and transparency of decision-making across government.

The bill achieves this important objective in a number of ways, including by re-establishing the Administrative Review Council. This was a key recommendation of the robodebt royal commission.

The council will comprise members with administrative law expertise and knowledge of the needs of people significantly affected by government decisions.

The tribunal's senior leadership will also be directly responsible for identifying and monitoring systemic issues in government decision-making, and bringing them to the attention of government and the Administrative Review Council.

The president's functions also include engaging with civil society on the performance of the tribunal's functions, to ensure that users' voices and interests are heard directly by the most senior leaders in the tribunal.

The bill also strengthens requirements for the publication of tribunal decisions, in line with the recommendations of the robodebt royal commission.

Guidance and appeals panel

The bill also establishes a guidance and appeals panel within the tribunal to resolve matters raising systemic issues and review tribunal decisions that may be affected by error. This will promote consistent tribunal decision making and more rapid responses to emerging issues.

The guidance and appeals panel will be able to hear matters on appeal that raise a significant issue in administrative decision-making or where the decision of the tribunal may contain a material error.

The president may also refer a matter to the guidance and appeals panel if it raises an issue of significance to administrative decision-making.

A decision of the guidance and appeals panel on a systemic issue will provide clarity for others seeking review and will enhance the quality of future administrative decisions, both by the original decision-maker and by the tribunal, on similar issues. Tribunal members will be required to treat these decisions as guidance decisions.

Conclusion

Before I conclude, I would like to thank the many organisations and individuals who have contributed to the development of this legislation, including the members of the expert advisory group, staff, members and users of the AAT, and the many legal assistance providers, advocates and other experts who have made submissions to, or met with, the Attorney-General's Department.

I also want to thank all of the officers at the Attorney-General's Department who have worked on these bills for their excellent work.

This legislation represents an opportunity to significantly improve Australia's administrative review system—a key pillar of our democracy.

The new tribunal is intended to serve as a safeguard against abuses of power.

It is intended to play a vital role in protecting the rights and interests of members of the community, and ensuring that government and the Public Service act within the bounds of the law.

It is intended to lead to better government and better government decision-making.

My hope is that the bills will benefit from parliamentary scrutiny through the Senate committee process and, ultimately, gain broad support across the parliament. I welcome discussions and views on this legislation. We are committed to getting this right.

As the robodebt royal commission noted:

Effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader important role in improving the quality and consistency of government decisions.

With this legislation, the government is seeking to restore trust and confidence in Australia's system of merits review, and I look forward to the support of this parliament.

Debate adjourned.