Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Link to this | Hansard source

The Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021 would make a number of largely administrative amendments to various acts of parliament relating to Federal Courts and tribunals. Among other things, the bill would empower the president of the AAT to direct that a proceeding in the Social Services and Child Support Division be referred to an alternative dispute resolution pre-hearing process. It will amend various acts to allow the president of the AAT or an authorised member or officer of the AAT to summon a person to give evidence or produce documents across all divisions of the AAT, including the Taxation and Commercial Division and the Social Services and Child Support Division.

The bill would clarify that the AAT's power to correct errors in the text of a decision or in a written statement of reasons for the decision can only be exercised by the president or the member who presided at the proceeding. It would clarify that hearings conducted remotely using video-conferencing technology in a Federal Court, including the Family Court, are in open court. It would update terminology In the Judiciary Act regarding the jurisdiction of a single justice of the High Court sitting in chambers or of another court exercising federal jurisdiction sitting in chambers from the existing references to a justice 'sitting in chambers' to a justice 'sitting other than in open court'. Finally, the bill will amend the Admiralty Act to bring the Admiralty Rules into alignment with other rules of Federal Courts, such as by, among other things, declaring the Admiralty Rules to be rules of court. These are all useful amendments and Labor supports them.

There are, however, three aspects of the bill we do not support. The first of these relates 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. While the bill would not change the fact that appointments would still be made by the Governor-General, the bill would amend 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 the amendment is unlikely to have any significant practical impact on the appointments process for tribunal members, the government has failed to make the case for why such a change is 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 of the tribunal, Labor will not support an amendment which, even just at the level of perception, further undermines the independence of the appointment process.

The second aspect of the bill we do not support is 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. The Legal and Constitutional Affairs Legislation Committee recently completed an inquiry into this bill, and, as Labor senators of the committee pointed out in their minority report, the submissions from the Department of Home Affairs and the Attorney-General's Department did not advance a single argument in favour of this aspect of the bill. The half-page submission from the Department of Home Affairs merely acknowledged the amendment. The submission from the Attorney-General's Department did not refer to the proposed amendment at all. By contrast, the Law Institute of Victoria, the Asylum Seeker Resource Centre and a number of other submitters made detailed and cogent arguments opposing this amendment. These submitters drew the committee's attention to the fact that, unlike members of the tribunal, reviewers of the so-called Immigration Assessment Authority do not have to take an oath of office, do not have to have special skills or knowledge, do not have terms fixed in advance and are not statutorily required to disclose conflicts of interest. Unlike AAT members, Immigration Assessment Authority reviewers are also not required to afford procedural fairness to applicants. 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.

Finally, Labor opposes 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. As Labor senators of the Legal and Constitutional Affairs Legislation Committee noted in their report, that aspect of the bill has been criticised by the Asylum Seeker Resource Centre, the Josephite Justice Office and the Law Institute of Victoria on the basis that it will disadvantage unrepresented applicants, including those seeking review of refugee decisions. We share those concerns. In the absence of any compelling counterargument from the government, Labor does not support that aspect of the bill.

I should add that the Attorney-General and her office have been engaging constructively and in good faith with the shadow Attorney-General and his office in relation to Labor's concerns. In the interests of getting this bill through the parliament as soon as possible, I understand that the government has indicated that it will agree to some, though not all, of Labor's amendments.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] I rise to speak on the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. Most of this bill is actually very administrative; however, there are three key provisions that we are concerned with. I will deal with them in order.

The first is the proposed amendment of sections 7(2)(c) and 7(3)(b) of the Administrative Appeals Tribunal Act 1975. The proposed amendment in the bill would remove the role of the Governor-General in the appointment process in both sections 7(2)(c) and 7(3)(b) of the Administrative Appeals Tribunal Act 1975, or the AAT Act, and replace it with the minister. This would mean that the minister would have exclusive power to appoint someone who is not qualified for the crucial roles of deputy president, senior member and member of the AAT. The AAT is meant to be an independent body that reviews the minister's decisions. It is inappropriate for the minister to have any role in appointing members of the AAT, as this is a clear conflict of interest. The amendment in this bill continues the sad story of the AAT becoming the retirement fund of former government staffers and MPs—surprise, surprise!

This amendment would further expand the minister's powers to appoint to the AAT unqualified or unsuitable people who are unlikely to perform the independent review required of them. We don't think this should be allowed.

I move to the proposed immunity for Immigration Assessment Authority reviewers. This proposed amendment to the AAT Act would grant to members of the Immigration Assessment Authority the same protection and immunity as is afforded to a justice of the High Court of Australia—really? That is so wrong! IAA reviewers are not independent decision-makers; they are public servants. They are responsible for implementing the policies of the executive government. It is incredibly inappropriate to give IAA reviewers the protection afforded to independent judicial officers. Since the inception of the IAA, reviewers have performed their roles as public servants and nothing more. They don't have independence, they are not impartial and they are not transparent. Unlike judges and AAT members, IAA reviewers do not take an oath, are not required to declare conflicts of interests and are not paid independently of the executive government. That means they don't have a fixed term, either. They do not even have to have legal qualifications. As the Asylum Seeker Resource Centre stated in a submission to the inquiry into this bill:

… the IAA provides not only deeply unfair and likely incorrect outcomes, it also fails to meet even the minimal threshold of lawful decision making in almost half of its cases.

The Josephite Justice Office, in their submission into their inquiry into the bill, stated:

In the long term it is apparent to many organisations working with people seeking protection that the IAA needs to be abolished and replaced by a body designed to provide justice, protection and the right for those appealing to have their appeals responsibly and fairly heard.

I move to the third concern the Australian Greens have with this bill, and that is the short-form judgements from the Federal Court. This bill would allow the Federal Court to provide judgements in short form for a decision dismissing an appeal if the court unanimously decided that the appeal does not raise any question of general principle. The Australian Greens are sympathetic to the Federal Court's heavy workload, but providing detailed, reasoned judgements is an inherent aspect of justice, including natural justice, that cannot be interfered with. The amendments in this bill are not how you improve access to justice. To improve access to justice, the government must instead properly resource the courts and the AAT. The provisions in this bill effectively remove the right to a proper court judgement for people appealing migration decisions. Surely we can't allow that.

The Australian Greens look forward to seeing amendments to this bill. However, this shouldn't be the end of the story. I invite my colleagues in the opposition and on the crossbench to get to work with us to improve the system for people seeking refuge and asylum. As a parliament, we should abolish the IAA and establish a fairer process for persons seeking asylum. As a parliament, we should properly resource the AAT and appoint more relevantly qualified and experienced AAT members to address the current backlogs. We must also create an independent body to make the AAT appointments and to strengthen the independence of the AAT, particularly around the appointment process, and to ensure that only relatively experienced and qualified people are appointed. Surely that's what you would agree with, right? We will see. As we have seen recently, this is incredibly needed right now. My heart is with those in Afghanistan seeking the protection of our government and the many Afghan people who are here in this country with broken hearts watching the news. Know that I am with you, the Australian Greens are with you and we commit ourselves to working with everyone here to bring as many people to safety. Thank you.

David Van (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021. This bill does not seek to make any fundamental changes to the operations of the Australian court system, only to make incremental changes that will streamline and clarify existing processes. This is a commonsense bill that seeks to improve the administration processes of the federal courts and the Administrative Appeals Tribunal, the AAT.

At its core the bill seeks to ensure red tape does not interfere with the smooth handling of matters, especially within the context of remote working whilst the pandemic calls for it. Measures such as allowing for judges to make rulings outside of their jurisdiction due to lockdowns and remote working is one such change which will allow for the smooth running of the courts during this period in time. This is a measure which both the courts and the government believe is necessary for the long-term evolution in the way hearings are conducted that will greatly benefit the courts and tribunals moving forward. By amending the definition of 'open court' these amendments seek to clarify the validity of remote hearings and by extension ensure that the court can continue to hear matters throughout the undefined COVID-19 period and beyond.

These measures are sought by the government to also make merits review through the AAT accessible, fair, just, economical, informal and quick. To this end, this bill will also amend the Administrative Appeals Tribunal Act and a range of acts within the families and social services portfolio. These amendments will enable the AAT to standardise alternative dispute resolution processes through most of its divisions and streamline powers to require giving of information or evidence, or production of documents.

This bill addresses harmonisation issues within the Social Services & Child Support Division with the inclusion of new alternative dispute resolution powers consistent with other divisions of the AAT, except for the Migration and Refugee Division. Again, this is to streamline processes to ensure a faster process that is in the benefit of all. Amendments to the Administrative Appeals Tribunal Act will also address minor technical and administrative issues within the existing act. For example, the new subsection 43AA(4) provides the power to correct errors in decisions or statement of reasons. This includes obvious errors in the text of a decision, such as clerical or typographical errors, or inconsistencies between the decision and the statement of reasons. This amendment will ensure that the mistakes made do not get in the way of justice. In particular, the amendment extends the power to correct an error to an authorised member. This amendment will give greater flexibility to the AAT in correcting errors and allow those errors to be corrected more quickly in circumstances where the presiding member is unavailable.

Amendments to the Administrative Appeals Tribunal Act will also require consequential amendments to the Commonwealth Electoral Act. Other bills listed for amendment are the Admiralty Act, the A New Tax System (Family Assistance) (Administration) Act, the Child Support (Registration and Collection) Act, the Family Law Act 1975, the Federal Circuit and Family Court of Australia Act 2021, the Federal Circuit Court of Australia Act 1999 and the Federal Court of Australia Act 1976. Also amended as part of this bill is the Foreign Judgements Act 1991, the Foreign States Immunities Act, the International Arbitration Act, the Judiciary Act, the Military Rehabilitation and Compensation Act, the Nauru (High Courts Appeals) Act, the Paid Parental Leave Act and the Social Security (Administration) Act. I'll touch on a couple of those in the time I have left.

This bill proposes to make technical amendments to the Judiciary Act 1903 which will reflect modern practices and terminology. It will enhance consistency with the High Court Rules 2004 and clarify the power of the court to prescribe forms other than in the rules of court. The bill further seeks to amend the Federal Court of Australia Act 1976 to allow for short-form reasons in the Federal Court's appellate jurisdiction in civil proceedings. This will improve efficiency in the management of appeals in the Federal Court of Australia. The bill also seeks to amend the Federal Court of Australia Act 1976, the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999 and the Federal Circuit and Family Court of Australia Act 2021, as mentioned earlier. That is to clarify that a judge can sit in a location that is not a court room or chambers to conduct a hearing remotely. Surely everyone can see that this is a practical measure that is sorely needed during this time.

The bill further seeks to amend the Judiciary Act 1903 to clarify that the exercise of federal jurisdiction is considered to take place in the state or territory in which a proceeding is commenced or remitted. In its amendments to the Foreign States Immunities Act 1985, the FSI Act, the government seeks to prevent an Australian court from entering a judgement other than an interlocutory or provisional judgement making an order for the registration of a foreign judgement or making an order for the recognition or enforcement of a foreign award against a foreign state in ex parte proceedings. This bill will align the application of the Admiralty Rules 1988 with the rules of the federal courts. This will be achieved by clarifying that the Admiralty Rules are rules of court in applying certain provisions of the Legislation Act 2003, so as to exempt the rules from sunsetting, while requiring that they be registered and published.

Finally, this bill will formally remove Commonwealth legislation that establishes an appeal pathway from the Supreme Court of Nauru to the High Court of Australia. By way of background, 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 following the government of Nauru providing formal notification of its intention to withdraw from the agreement on 12 December 2017. The agreement's termination meant that the High Court was no longer able to hear appeals from the Supreme Court of Nauru, except for appeals and applications for leave instituted before the date the agreement was terminated. The High Court has confirmed that all relevant appeals and applications for leave instituted before the agreement's termination have now concluded.

The bill will also make minor and technical amendments to the Judiciary Act. These will amend inconsistencies in terminology between the Judiciary Act and the High Court Rules in prescribed forms by practice direction, rather than retaining them in the High Court Rules. The bill will also amend the Federal Court of Australia Act to produce significant efficiencies in the Federal Court's management of appeals in civil proceedings. Amendments to the Federal Court of Australia Act will allow the Federal Court to give reasons in short form for a decision dismissing an appeal if the court is unanimously of the opinion that the appeal does not raise any question of general principle.

In the same vein, under international law, foreign states are entitled to immunity from jurisdiction of the courts of certain other countries in certain circumstances. This principle is known as foreign state immunity. The purpose of foreign state immunity is to enable states to carry out their public functions effectively and to enable the orderly conduct of international relations. 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 back in 2015. The bill seeks to clarify and 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 the law.

In conclusion, this is a bill that will ensure that, when a court hearing is conducted remotely, it operates as efficiently as possible—

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It is now 1.30 pm. We will proceed to two-minute statements. Senator Van, if you want to continue your remarks—no? You won't be in continuation; that's fine.