Labor senators support the majority of the measures in the bill. However, there are three measures we do not support.
Amendments to sections 7(2)(c) and 7(3)(b) of the Administrative Appeals Tribunal Act 1975
The government has not persuaded us that it is necessary or desirable to remove the Governor-General from the appointment process for members of the Administrative Appeals Tribunal.
We readily accept that amending the Administrative Appeals Tribunal Act 1975 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, a senior member or other member for the purposes of appointment to the Tribunal may—in practical terms—be a distinction without a difference. However, we note that the Law Institute of Victoria and the Asylum Seeker Resource Centre (among others) expressed concern about the change, principally on the basis that:
there is no obvious justification or reason for it; and
the change could undermine the independence of the appointment process.
Labor senators agree that there is no obvious justification or reason for the change. In fact, the Attorney-General’s Department did not advance any justification or reason to the Committee at all – its submission was completely silent on these amendments. On that basis alone, we oppose this aspect of the bill.
In relation to the second concern raised by submitters, we are not persuaded that replacing the Governor-General with the minister would undermine the independence of the appointment process. This is because it is difficult to see how the independence of the appointment process could be undermined any more than it already has been.
Since the election of the current government in 2013, more than 70 Liberal Party associates and former Liberal Party politicians, staffers and donors have been appointed as members to the Tribunal.
While membership of a political party is not a disqualification for appointment to the Tribunal, and we readily acknowledge that many of these members are undoubtedly competent and highly qualified, the Tribunal is now rightly perceived by many in the community as hopelessly politicised. This is because:
a number of the individuals appointed by the current government to the Tribunal since 2013 do not, on any reasonable view, possess any special knowledge or skills relevant to the duties of a Tribunal member; and
putting to one side the competence of any particular member, an absurdly high proportion of Tribunal members are closely affiliated with the Liberal Party.
At the very least, this gives rise to a perception that the Tribunal as a whole is not independent – or at least not sufficiently independent – of the current Liberal government.
Against that background, it is difficult to see how the current government could do any further damage to the standing of the Tribunal as a result of the proposed amendments to sections 7(2)(c) and 7(3)(b) of the Administrative Appeals Tribunal Act 1975.
Proposed new section 60(1B) of the Administrative Appeals Tribunal Act 1975
The bill would provide the same protection and immunity to Immigration Assessment Authority (the IAA) reviewers as are provided to members of the Administrative Appeals Tribunal.
Strikingly, 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, which provided no assistance to the committee whatsoever, 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—IAA reviewers 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, IAA reviewers are also not required to afford procedural fairness to applicants.
Labor senators are persuaded by these submissions and oppose this aspect of the bill.
This position is consistent with Labor's long-held concerns about the 'fast track' assessment process under the IAA – a process which is neither fast nor fair.
Proposed new section 28(5) of the Federal Court of Australia Act 1976
The bill would also amend 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 judgments) where a decision dismissing an appeal does not raise any questions of general principle.
This amendment was criticised by (among others) 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.
The submission by the Department of Home Affairs 'commended' this amendment and said that 'these amendments will reduce delays in the Federal Court’s hearing of matters'. Similarly, the Attorney-General’s Department submitted that '[t]his measure will reduce delays in the Federal Court’s hearing of matters'.
With respect, these are conclusions in search of arguments—and evidence.
Neither Department cited any evidence to support the contention that the measure will reduce delay, and neither Department addressed the concerns raised by the Asylum Seeker Resource Centre, the Josephite Justice Office and the Law Institute of Victoria.
As with any change to the law, the onus is on the government to demonstrate that the change is necessary or desirable. The government has failed to do so. Accordingly, Labor senators oppose the proposed amendment to section 28(5) of the Federal Court of Australia Act 1976.
Labor senators recommend that the bill be amended to remove:
the proposed amendments to sections 7(2)(c) and (3)(b) of the Administrative Appeals Tribunal Act 1975 (replacing the reference to 'Governor-General' with 'Minister');
proposed new section 60(1B) of the Administrative Appeals Tribunal Act 1975 (protections and immunities for IAA Reviewers); and
proposed new section 28(5) of the Federal Court of Australia Act 1976 (allowing the Federal Court to provide short-form reasons).
Following the implementation of Recommendation One, Labor senators recommend that the Senate passes the bill.
Senator the Hon Kim CarrSenator Raff Ciccone
Senator for VictoriaSenator for Victoria