Administrative Decisions Tribunal Legislation Amendment Bill

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SpeakersHartcher Mr Chris; Gaudry Mr Bryce
BusinessBill, Second Reading

Page: 6670
    Second Reading

    Debate resumed from 31 May.

    Mr HARTCHER (Gosford) [9.02 p.m.]: The bill will amend the Administrative Decisions Tribunal Act 1997. The tribunal has been operating for approximately 18 months, and the amendments arise largely out of recommendations from the president of the tribunal and the tribunal's staff to improve the operation of the tribunal. The Coalition parties have no objection to the amendments. It appears that the tribunal is working effectively. Due praise should be given to its president and officers. It is important that the functions exercised by the tribunal—the right of citizens to review various decisions made under the Act, which are set out in the 1997 foundation legislation—are preserved and that the integrity of the decision-making process of the tribunal is respected.

    New legislation needs to be reviewed from time to time to ascertain its effectiveness. Where problems or areas of concern are identified it is appropriate that the legislation be brought back to the Parliament to make the appropriate amendments. However, I draw the attention of the House to the amendment that introduces section 128 of the Evidence Act into the determinations of the Administrative Decisions Tribunal. The tribunal will not be involved in matters of a criminal or quasi-criminal nature. They can arise, but they are incidental to the proceedings. The tribunal is not the same as the Coronial Court, which deals with an enormous number of matters that are potentially criminal.

    The concern about the intrusion of section 128 of the Evidence Act into the administration of the tribunal is not as great as the concern about its introduction into the Coronial Court. The explanatory note says that at present section 128 of that Act has only limited application to the tribunal, which arises from the definition of New South Wales court in the Evidence Act 1995. It goes on to say that section 73 (2) of the Administrative Decisions Tribunal Act 1997 provides that the tribunal is generally not bound by the rules of evidence. I have not had any discussion with the president of the tribunal—perhaps I should have—as to why he seeks to have this power granted to the tribunal.

    The Parliamentary Secretary, the honourable member for Heathcote, in his second reading speech did not really give any good reason why it was necessary. He said that the bill applies section 128 to proceedings, even though the tribunal is not otherwise bound by the rules of evidence. He went on to say that it states what section 128 does. But he did not say why section 128 was being introduced. Although the Opposition does not oppose the amendment, if in another place some good reason is advanced against section 128 the Opposition reserves its rights in that regard. It is incumbent on the Government, when it is asking for powers that strike at fundamental common law principles, to justify the grant of those powers.

    The other matters in the bill are of a procedural nature. They deal with the disclosure of the names of witnesses, they vary orders, and they change time limits. It is understood that in the administration of the legislation one needs to be aware of applicable time limits, staff, resources and workload. One has to assess how the legislation operates in regard to the making and reviewing of various orders. One gets a feel for the effective operation and improved running of a court or tribunal only after legislation has been in place for some time. There is no argument about that.

    But any Parliament that upholds the rule of law must ensure that a good reason is advanced when people's fundamental rights are to be abrogated or varied. The Minister gave no such reason in his second reading speech. Some members opposite, to give them credit, would always be concerned about an individual's right to avoid self-incrimination, and would be concerned to see that there are good reasons for it. No good reason has been advanced. I have affirmed that the Opposition reserves its rights in that respect, and I conclude my observations on the bill.

    Mr GAUDRY (Newcastle—Parliamentary Secretary), on behalf of Mr Whelan [9.09 p.m.], in reply: I thank the honourable member for Gosford for his contribution. I note his positive comments about the work of the Administrative Decisions Tribunal, particularly its right to bring forward a range of issues after the first 18 months of operation by the president and the members of the tribunal, and the need to make a series of amendments to the existing Act. Tribunal users and staff have identified a range of issues that required remediation under the legislation. It is obvious that the honourable member, in speaking for the Opposition, clearly supports the majority of those changes. Once again he raises concern about granting a certificate pursuant to section 128 of the Evidence Act which will give the tribunal power to require a witness to give self-incriminatory evidence but be protected from that evidence being used against them.

    The honourable member raises concern about that issue but does not go as far as opposing it directly. Of course, members on both sides of the House are always concerned about civil liberties issues and the rights of people to not self-incriminate, but it has been made obvious in the submissions put to the Attorney General that change was important in this regard. Once again, the amendment is proposed in the clear knowledge that if a person is compelled to give a particular response to the tribunal, the response cannot be used in evidence against that person. I commend the bill to the House.

    Motion agreed to.

    Bill read a second time and passed through remaining stages.