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A regular column of developments around the country
The government has big plans for revamping the federal administrative review system, but delays in passing legislation and implementation are holding up the changes and creating uncertainty.
The revamp proposals began six years ago with the Administrative Review Council's Better Decisions report of 1995. The Attorney-General introduced the Administrative Review Tribunal Bill 2000 (the ART Bill) into Parliament last year. The key element of the reform is the creation of an Administrative Review Tribunal (ART) to amalgamate four key Commonwealth merits review tribunals, including the Migration Review Tribunal (MRT), the Social Security Appeals Tribunal (SSAT) and the Refugee Review Tribunal (RRT). The Veterans' Review Board is not affected by the proposed changes.
The Bill was passed by the lower house but the Senate sent it to an inquiry in the Senate Legal and Constitutional Affairs Legislation Committee. After an extension, the Committee finally reported on 6 February 2001 and many concerns have been expressed about the proposed revamp. The government had initially hoped the proposed new ART would commence operations on 1 February 200 I and had set a revised date of 1 July 2001 after the Senate Inquiry extension. It is now not known if the Bill will pass or when the ART would commence operations.
The Liberal Party majority on the Senate Committee recommended that the ART Bill and its companion Administrative Review Tribunal (Conseque tial and Transitional Provisions) Bill 2000 proceed, subject to a small number of minor alterations. In contrast, the minority report of the Labor and Democrat Senators concluded that 'the Bills are fundamentally flawed and beyond redemption', and recommended that they be withdrawn and redrafted. Their stance reflects the depth of concern which has been expressed by many interested parties about the Bills. Consistent with this position, Labor and the Democrats combined to refuse to give the Bills a second reading in the Senate on 26 February 2001.
The government is still hoping to be able to amend the Bills sufficiently to enable them to be supported by one or both of the Democrats and Labor so that they will pass through the Senate, but has not ventured a further revised date for the commencement of the new tribunal. The May Budget contained an appropriation for the existing tribunals for 2001-2002, but no forward estimates for succeeding financial years.
The government has recently con ducted an extensive interview process for members of the AAT, as the appointments of 62 out of a total of 76 non-judicial members are due to expire mid-2001. Thirty eight members were reappointed and 15 new members were appointed, for terms of one to three years. The reappointments give a good balance of legal expertise with specialist skills in accountancy, tax, medicine and the armed forces, as well as including a number of members with broad experience on other federal and State administrative tribunals.
The recent appointments give some security and confidence to AAT members to continue work despite the ongoing negotiations about tribunal reform. However, the same certainty has not yet been afforded to members of the other tribunals. During the recent Senate Estimates hearings, tribunal representatives acknowledged the uncertainty and concern about the future being faced by currently serving members. All members of the MRT, SSAT and the RRT were appointed for terms which expired on 31 January 2001 to coincide with the originally anticipated start-up date for the ART. Although these members were re-appointed for five months until 30 June 2001, these terms are currently almost over. At the time of writing the re-appointment process was not finished, so it is not clear whether all members will have jobs after 30 June.
The Senate Committee inquiry into the ART Bill heard evidence from a wide range of witnesses, including welfare groups, barristers, organisations representing lawyers, currently serving tribunal members, Commonwealth departments responsible for the existing tribunals, and academics. Most witnesses had serious concerns about various aspects of the proposed system of review. Central themes included lack of independence, loss of currently enjoyed rights, and a reduction in the quality, accessibility and flexibility of review.
A central issue raised was that the proposed ART was perceived as lacking independence from government agencies. Features of concern included the lack of tenure for ART members, the development of performance man agement standards for evaluating the performance of members, the ability of the portfolio Minister to directly appoint members and to issue practice and procedure directions to members, and the fact that funding for Divisions of the ART would come directly from the Department whose decisions were under review, rather than the Attorney-General's Department.
Another concern, chiefly for welfare groups, is the loss of an automatic right to two stages of external review, a right currently enjoyed by social security recipients. Proposed procedural reforms threaten to severely curtail the current expectation of social security recipients of an informal hearing before a multi-member multi-skilled review panel. The loss of these distinctive features of current social security review processes has increased significance in light of the fact that certain other major jurisdictions with unique procedures are to be excluded from the scope of the new scheme. The Veterans' Review Board will continue to operate separately under existing procedures, and migration and refugee decisions will be e:"empted from the majority of provisions of the ART Bill, despite the inclusion of the MRT and RRT in the amalgamation.
Other witnesses voiced fears that the quality of review under the pro posed ART will be reduced, because of restrictions on the percentage of members who will be senior members and because no formal qualifications for tribunal members are specified in the legislation. In particular, lawyers are troubled by the absence of any provisions requiring some members to be legally qualified, or for the President of the ART to be a judge, as is the President of the AAT. They claim this may lead to an increase in the number of appeals, as non-legal ART members may fail to understand the often complex statutory provisions. If the recent appointments to the AAT are any indication, however, these fears may prove unfounded. Thirteen of the fifteen new AT members have legal qualifications, as do a clear majority of those reappointed.
Finally, a variety of concerns relate to the level of prescription in the procedures to be followed by the ART, which many fear may impact adversely on the accessibility, flexibility and fairness of review. Welfare groups as well as lawyers are opposed to the abolition of a guaranteed right to representation for individuals, the introduction of a discretion in the Tribunal as to whether to conduct an oral hearing or require all submissions to be made in writing and increased participation of government agencies in the review process: Some witnesses expressed concern that the system was weighted in favour of government agencies and against individual applicants.
Despite these substantial concerns nearly all the witnesses to the Senate Committee support the concept of amalgamation of federal merits review tribunals, as do Labor and the Democrats. The government is now offering to make significant amendments to the Bills. So far, the government has had discussions with the Law Council of Australia, but not with other interest groups, on the amendments which may be possible. Given the magnitude of the issues of concern, and the stated view of both Labor and the Democrats that complete redraft of the legislation is required, it remains to be seen whether the concessions will be
sufficient to secure the eventual passage of the Bills.
Katrine Del Villar
Katrine del Villar is an ACT lawyer.
The Northern Territory's latest law and order foray is the Public Order and Anti-Social Conduct Bill. The title alone is enough to send a deliciously nostalgic frisson down the spine of all Robespierre enthusiasts, but the text of the proposed enactment is even better. The Act will outlaw 'anti-social con duct' in 'public places', 'prescribed places', 'notified places' and 'places of anti-social conduct', or in other words just about anywhere, including (believe it or not) designated private homes. 'Anti-social conduct' as defined encompasses not just the obnoxious, loutish and distasteful, but also, it would appear, the civilly disobedient dissentient and demonstrative. '
Henceforth, anyone who dares to gather or march down the street in pro test against, says, the Public Order and Anti-Social Conduct Act, may find themselves being required by police to 'cease and desist the behaviour in question', and 'leave the place and its precincts and not return within a stated reasonable time of not more than 24 hours'. Failure to comply constitutes a gaolable offence. The Act will at long last give Neighbourhood Watchers the teeth they've always wanted. A rowdy suburban household can be made the subject of an 'anti-social conduct declaration', empowering police to 'enter the place at any time, give directions to per sons in, about to enter or in the vicinity of the place' and 'seize ... any article or thing ... that has contributed to the anti-social conduct'. Lock up your ghetto blasters, bros. • RG
Some 300 Tasmanians, many of whom are elderly retirees, appear to have lost all money invested in a number of Tasmanian solicitors' mortgage funds. The total loss could be as high as $20 million. The failure of these funds was the subject of a recent Senate hearing. The hearing revealed how in 1992 the Tasmanian Law Society had successfully petitioned the then Australian Securities Commission to be exempted from scrutiny on the basis that the Society's regulations afforded sufficient protection to investors. However, it was alleged at the Senate hearing that the Law Society failed to comprehensively audit the mortgage schemes. Those who have lost money certainly feel the level of protection offered by the Tasmanian Law Society was insufficient. One proposal to recover the lost funds was the imposition of a levy on every lawyer in Tasmania, a proposal rejected as premature by the Law Society President.
Some retirees have been especially hard hit. Not receiving any interest on their capital invested, and not able to withdraw their capital, they nevertheless have been refused financial assistance from Centrelink on the grounds of their capital investment.
Strip-Jack-naked no more
Following publicity surrounding the stripping naked of children and having them squat as part of the process of searching prison visitors for drugs, the Justice Minister Dr Peter Patmore has revised standing orders. Strip-searches
for children under sixteen will no longer occur. Any search of a child will only occur in exceptional circum stances, and if such circumstances war rant the removal of clothing this will be conducted in such a manner that at no stage will a child be completely naked. This brings Tasmania closer in line with the practices of some mainland States.
Upon coming to power the Bacon Labor government foresaw the end of Tasmanian judges and counsel wearing wigs and gowns. Some five years on they still are. The Attorney-General Dr Peter Patmore favours continuance of the practice whilst acknowledging that this is probably no longer the majority view. In the profession support for abolishing wigs and gowns in the civil jurisdiction is strong, but less so in regard to criminal matters. The Supreme Court is to decide.
Mitchell Rolls
Mitchell Rolls teaches in Aboriginal Studies at the University of Tasmania.
On Thursday 10 May 2001, a new and much-needed organisation for Victoria was launched-Lawyers for Forests. Held at one of the barristers' chambers, the launch attracted a crowd of over 200 people, from all walks of legal life. Interestingly enough the same week saw the launch of the Liberals for Forests campaign for the seat of Aston, with the front-runner being a member of Doctors for Native Forests.
Lawyers for Forests has been set up by a small group of like-minded corporate lawyers, over the last nine months or so, who are concerned about the plight of our old growth forests. They were buoyed in their efforts by the results in the WA and Queensland elections that saw green issues and green candidates play a major role.
The guest speaker who agreed to launch the organisation was well-respected Federal Court Judge Murray Wilcox. The second speaker was the inaugural president, Lucy Turner, one of the main motivators behind the establishment of the group. Lucy outlined her vision for the organisation, which sees Lawyers for Forests using committee structures to focus on three separate but connected areas:
1. Law and policy - carrying out in-depth, critical analysis of the current, deeply flawed regulatory framework that governs the 'management' of our precious remaining native forests. This committee will also lobby state and federal governments for improvements to that regulatory framework, urging greater emphasis on conservation and real management strategies. Presumably, it will make excellent use of the recently released report, 'Forests and National Competition Policy'. This report by a firm of economists (who were engaged by the Australian Conservation Foundation) shows in language even the pollies can understand (ie, economic data) that the native forest logging industry is a dead duck being kept afloat by a multi-million dollar raft of hidden taxpayer funded subsidies and unfair advantages. The report also states that these subsidies provided by the state governments are in blatant contravention of the national Competition Principles Agreement and should result in serious investigations by the National Competition Council.
2. Access to Justice -coordination of lawyers for the provision of le gal support to forest protesters, so as 'to promote a more lawful and peaceful culture of public protest'. Test cases that challenge the validity of logging activities are envisaged.
3. Corporate awareness/activism the third committee will work to promote awareness in the general community about which companies are involved in logging activities, particularly woodchipping native forests (companies such as Boral, Gunns, and Amcor) and the ways in which consumers and shareholders can attempt to influence these companies.
Lawyers for Forests have a new website bursting with information about the management of our forests and the companies involved, as well as information on ethical investment opportunities. There are links to activist sites such as the Native Forest Network and the Boycott Woodchipping sites, hosted by the wonderful GreenNet Australia, which contain even more information such as detailed profiles on those companies engaging in logging our native forests.
<www.lawyersforforests. asn.au>
County Court judge Robert Kent, announced his resignation in late May, effective on 11 June 2001. In so doing, he has bowed to significant public and political pressure following his conviction and $10,000 fine on five counts of failing to furnish a tax return. The judge hearing the matter, who had been brought down from Queensland to ensure impartiality, said Judge Kent had displayed 'complete disdain for the statutory obligations which fall on most members of the community'.
The charges follow six prior conviction for similar charges. As there was no legal compulsion to do so, these convictions were not revealed to Attorney-General Rob Hulls during his interview of Kent for the position of County Court judge in 1999. Hulls has now announced changes to probity checks on judicial appointees to ensure similar glaring irregularities do not go unchecked. Kent is the second judicial officer to resign in disgrace since Labor came to power and follows Chief Magistrate Michael Adams who left the bench after a vote of no confidence from his fellow magistrates in October last year. Hulls said he had received 40 complaints about the behaviour of the judiciary last year.
In response to the latest controversy, Hulls called a special meeting of senior judges and CEOs from each court and the Victorian Civil and Administrative Tribunal to discuss the inadequacy of the State's judicial complaints system. It is reported that all in attendance voted in favour of establishing an independent review of the system. It is likely that Crown Counsel Peter Sallmann will be given the job of conducting the review and examining such avenues as a judicial code of conduct or an independent Judicial Complaints Tribunal. Professor Sallmann would be eminently qualified to conduct this review, completing, as he is, the current review of the Legal Practice Act 1996 (Vic) with particular emphasis on the regulatory system governing Victoria's lawyers.
The federal review of CLC funding by the Attorney-General's Implementation Advisory Group {lAG) reported in May 2001 (see October 2000 DUAO for a previous item). The Attorney General issued a press statement on 1 June 2001 that pours scorn on the Victorian government for under-funding the CLC sector.
The federal Attorney-General also states that the lAG report:
. .. highlights the valuable contribution that community legal services provide to the community. They should be sup ported in that work and encouraged to expand to areas of need. The Common wealth recognises the important work that community legal services do. We are committed to maintaining our exist ing funding arrangements.
Victorian CLCs have, for the time being, escaped amalgamation or closure and work is not currently being put out to tender as has occurred in South Australia. Centres will now be offered 12-month service agreements for 2001-2002.
This is not to say that the world is all rosy again. The situation after this period is unclear. Many CLCs are struggling to survive on their meagre budgets. The federal Attorney-General observed that were the State government to match Commonwealth contributions dollar for dollar, this would inject an extra $2 million into the sector and ten new CLCs could be established. A cynic may reply with the observation that had the money used to fund the Review been funnelled into the sector then an equal number of new centres could have been set up. • GO
Australians, and in particular Western Australians, have recently been subjected to the very public coronial inquest into the death of Langley George Hancock. Media saturation means that it is difficult to avoid the continuing saga of the rich, famous, bitter and bizarre. The inquest heard evidence of witnesses being paid to tailor evidence and of potential witnesses being paid to stay away.
Amid growing concerns that the inquest was becoming a publicly funded 'circus', Western Australian Attorney-General Jim McGinty criticised the length of the proceedings. His view was that it was a wasteful drain on public resources and fuelled a perception that money can buy the court's time. Premier Geoff Gallop weighed in with a similar contribution.
Opposition Leader Colin Barnett had a bet each way. He bagged the Attorney-General for interfering in the process and also called for a 'rapid' conclusion to the inquest. Lawyer for Gina Rinehart, Hancock's daughter, Ron Davies QC was also reported as complaining to the Coroner about the constitutional impropriety of the Attorney's intervention in the proceedings.
There is no doubt that it would be improper for an Attorney-General to attempt to influence the disposition of judicial proceedings. However, does an avowed concern about the efficient use of court time constitute an attempt to influence a case? Relevant is the fact that a coronial inquest is more akin to an executive function than a judicial function. The Western Australian Coroner does not, for example, have the power to commit any person for trial or to comment so as to suggest that a person has committed a criminal offence. It is an inquiry into the circumstances of a death rather than an adjudication between parties.
In the result, the Coroner declined to terminate the inquest but halved the witness list. Strict time limits have been imposed when the inquest resumes in August 2001. • MF & DH
Arguably one of the most controversial appeals in the criminal history of Western Australia took place recently before the Court of Criminal Appeal in Perth.
The ' Button Appeal' was aimed at clearing the name of John Button by overturning a 38-year-old manslaughter conviction for the hit and run death of his teenage sweetheart Rosemary Anderson.
Broken Lives a book by investigative journalist Estelle Blackburn, which canvassed the possibility that Rose mary Anderson was killed by the noto rious serial killer of the 1960s, Eric Edgar Cooke, who confessed to the murder on several occasions, has been recognised as playing a big role in bringing about the historic appeal.
Button's case was argued by counsel appearing pro bono. The decision has been reserved for judgment. One of the main questions for resolution by the Court will be whether the new evidence is 'fresh evidence' within the meaning of the law as it might have been avail able at the original trial.
The Court will also be required to decide if the evidence of five other hit and run attacks by Cooke, which were not known about at the time of the original trial, can be called in support of the appellant's case.
Gaetane van der Beken
Gaetane van der Beken is a UWA law student.
DownUnderAl/Over was compiled by Alt.Llcommittee members Martin Flynn, Russell Goldflam, Dianne Huxtable, Glenn Osboldstone and along with invited writers listed under their contribution above.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/59.html