Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

Senator Nettle raised the fact that, in the Senate Legal and Constitutional Affairs Committee report, there were concerns about the bill which ultimately led to the committee recommending that the discretion to communicate adverse information orally should only be enlivened if the applicant consents. If the applicant did not consent then the tribunal’s obligations would default back to the requirement to communicate in writing. The committee only made two recommendations: (1) that the bill be amended so that adverse material may only be provided orally at the election of the applicant and (2) subject to the preceding recommendation, that the bill pass.

It is one of those areas where, on the one hand, you want proceedings to be as informal as they can be so that parties can be heard and decisions made. It is supposed to be a place where people can get a decision relatively early in the process. But, on the other hand, you do not want parties to lose any rights along the way either. One of the concerns is that, if adverse communication is provided in writing, a person can reflect upon it, take it away to get legal advice and at least pause and think about it, but, if it is not, we could quickly find that the ability to correct the record has been lost. You would then have to go through some other mechanism to do that. There is that concern. I do not think the government has been able to provide a sufficient and cogent argument to persuade Senator Nettle or the Labor Party that this process that we are adopting is the best. We will ultimately support the bill, but we would prefer that the government adopted the committee recommendations in this area.

I also foreshadow the Labor amendments which give effect to the committee recommendation that the applicant be able to elect for the tribunal to communicate the information orally. The government has already indicated that it will not be backing that committee recommendation. It seems that it has the numbers today to be able to ensure that is the outcome. We believe that amendment should be supported though because it is likely to assist in ensuring the applicant understands the process and it would assist the applicant in trusting the tribunal’s decision.

They are the broad sweep of matters. We might end up revisiting this if it does not work. I do not want to see a situation in estimates where we start inquiring about how this process works and whether or not it works effectively. Estimates is a process where we do get that opportunity, but it is not one that I want to use for this. There are other areas that we can explore with the government during estimates. If the government can provide, or undertake to provide, information on how the process works, it would be helpful. If they could provide statistics on the number of times this device is used and whether or not there are complaints in the system, those types of things would help applicants understand. Additionally, I am sure that the government will go through a process of advising applicants in the system that this will be a particular way that information can be orally provided. Those are the types of things I expect them to do. I will certainly have the opportunity to check on whether they are doing it. Perhaps if I mention it now, it can forewarn them at least. With those words, I commend the Greens amendment, which we will support.