Page 3282 - Week 09 - Tuesday, 19 August 2008

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In other words, we might see some legislation further down the track that does just that—abolish the tribunal. We hope that this amalgamation will be reviewed and monitored very closely to make sure that it is able to maintain those advantages in our existing system of tribunals. But we do not want to see that we have the need to do so, and that is the problem with rushing through this legislation. We can only hope that the government of the day, whatever day it is and whatever government it is, maintains sufficient interest to inform itself of the statistical underpinnings and the civil disputation, that it recognises the difference between judicial decision making and administrative review which is legally correct or that which is publicly popular, and that it supports the judiciary to perform its duty to apply the law fairly without fear or favour or eye to political and media overtones.

It is unacceptable that the Attorney-General has not seen fit to respond to the scrutiny of bills committee reports on these amendments. He has had since 10 June to do so, and it is not as if people have not been beavering away to get this legislation before the current Assembly—we know they have. It should not be too much of an ask to expect them to justify their legislation or adopt the committee’s recommendations or at least tell the committee why it is not doing so. Having said that, I thank the Attorney-General and his staff for being so cooperative and providing my office with numerous briefings on the bill, often at short notice. They were able to answer many, but not all, of our concerns, and many of my concerns with this bill relate to how it will operate in practice. Obviously, these concerns cannot be addressed here today. For instance, will the tribunal’s capacity to determine its own procedures turn out to be a refreshing break from oppressively prescriptive and inappropriate legal formalism, or will it be used to boost throughput statistics at the expense of proper consideration of evidence and argument? Only time will tell. The tribunal is certainly being given sufficient discretionary power for either of those scenarios to play out.

I assume that some kind of sliding Briginshaw-type scale of legal formality will be adopted, where closer approximation to judicial procedure and rules of evidence will be a feature of more serious and contentious proceedings. One of the government’s primary strategies for ensuring that the tribunal’s discretionary powers are not abused or misused is to rely on applicants and respondents to appeal tribunal decisions on the grounds of breaches of natural justice. I understand the argument behind this approach, but I feel that it assumes that applicants in these lower level legal forums have both the awareness, resources and the interest to recognise that there has been a possible breach of their procedural rights and to pursue these matters on appeal. The Attorney-General has the power to intervene in any legal proceeding, and I think it would serve the purposes of justice and good governance if he were to exercise his discretion more often in order to pursue public interest in human rights matters and to seek clarification from superior courts on ambiguous points of rights and law.

These amendments entrench one of the most shameful features of this government’s tenure in office—I am referring to its proclivity to secrecy and lack of transparency, represented by the enthusiasm it has displayed for various legislative measures that ensure it can keep the workings of government hidden when it feels that public disclosure does not serve its narrow electoral interests. We have seen a proliferation of conclusive certificate provisions, and these amendments pick up a large number of

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