Administrative Review Tribunal Bill 2023, Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024
47
Administrative Review Tribunal Bill 2023
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023
Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024
Cognate debate.
Consideration resumed of the motion:
That this bill be now read a second time.
16:37
Ms TINK
300124
North Sydney
As I was saying, the amendment I'll move at that time calls on the government to ensure all applicants can equally access a fair and just review. For this to be possible, it accordingly calls on the government to remove the separate set of procedures under the Migration Act 1958 from the bill so that procedures that apply to applicants generally also apply to migrant and refugee applicants.
In the words of North Sydney constituent and long-term human rights advocate, Professor Mary Crock:
… where it is separate … for migration applicants, the code is always more punitive and restrictive than the general ART provisions. It is very disappointing that migrants should continue to be treated as persons with inferior procedural entitlements. Specifically, at a time when almost one in two Australians were either born overseas or have an overseas born parent, we should stop seeing migrants as less worthy of procedural entitlements just because they are non-citizens. This is most especially the case where applications can involve matters of life and death—or profound disruption to human rights, including the right to live with a partner and immediate family.
As the representative of a richly diverse community, I know the benefits are immeasurable when our differences are truly embraced. Yet at this time our diversity is being challenged to the very core.
The latest Mapping Social Cohesion report found that, following a polarising referendum debate and amid rising community tensions over the war in Gaza, social cohesion is at its lowest level in 16 years. The report indicates that significant numbers of people experience prejudice and discrimination routinely in everyday life and that attitudes to government and democracy in this country are now politically charged and polarised. In this context, why are we seeking to establish yet another separate standard of treatment for those asking for protection and a better life in this country through this legislation? We cannot continue on this trajectory. We need to come back to our values as a nation, back to community, back to embracing diversity and back to basic human rights.
The same standards must apply to all, which means all people must be treated fairly and not discriminated against because of their race, colour, gender, language, religion, political beliefs, status or any other unlawful reason. Citizens or noncitizens, everyone deserves to be treated with dignity and respect for their basic human rights, and we must ensure this core belief is upheld in this new legislation, for the power of human rights is in their universality. Every human being is born equal and deserving of justice, and equality before the law, a right enshrined in the International Covenant on Civil and Political Rights, is essential for fair decision-making.
We have an opportunity to do good here—to begin to redeem our international reputation—and I encourage all of us in this place to see that opportunity for what it is and embrace it. The removal of carve-outs for migrant and refugee applicants would ensure equality before the law, providing full, fair and equal protection for all. I look forward to moving my second reading amendment when the time is appropriate.
16:40
Dr ANANDA-RAJAH
290544
Higgins
The Administrative Appeals Tribunal reviews Commonwealth government decisions in areas such as migration, social services, the NDIS and veterans' affairs. It affects every component of our lives, and it's an important body of oversight over government decisions. Every year, thousands of people rely on the AAT to independently review government decisions that can have significant impacts on their lives—decisions such as whether an old Australian receives the age pension, whether a veteran is compensated for a service injury or whether a participant in the NDIS receives funding for essential support. Critically, high-quality review of government decision-making will encourage better-quality decision-making across government. It should be a virtuous cycle.
Instead, we inherited an AAT that was fatally flawed. It was stacked with Liberal cronies—some 85 former staffers, failed candidates or mates of the Liberal Party, people lacking the requisite expertise. It was bedevilled with ageing electronic systems and heading to financial oblivion from a botched amalgamation of the AAT with a hotchpotch of other tribunals by the former Liberal government. The AAT we inherited was beset with delays and a large and growing backlog of applications, often affecting some of the most vulnerable members of our community. As an example, victims of robodebt appealed to the AAT but found that decisions adverse to the Morrison government were not escalated either internally within the AAT or to the Federal Court. In other words, questions raised about the legality of robodebt in the AAT were effectively buried by the former government. I note that there were also cases where the AAT effectively rubberstamped the program's legality. Had the AAT been a robust check and balance system, robodebt might never have occurred. It might have been stopped in its tracks. As the robodebt royal commission noted:
Effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader … role in improving the quality and consistency of government decisions.
The NDIS is no different. In the six months before we came to government, the NDIA spent more than $28 million fighting appeals in the AAT. Over 4,500 NDIS participants had complaints stuck with the AAT, an increase of 400 per cent on the previous year. Thanks to the Minister for Government Services and Minister for the NDIS, more than 90 per cent of those cases have now been resolved, and we now have 30 per cent fewer cases being referred to the AAT in the first place.
The Attorney-General has introduced legislation—the Administrative Review Tribunal Bill 2023 and related bills—that would abolish the AAT and establish a new body, to be named the Administrative Review Tribunal. The tribunal would be user focused, efficient, accessible, independent and fair, with a focus on addressing backlogs and earlier resolution. The Albanese government will also restore the oversight body for the AAT, called the Administrative Review Council. Abolished by the Abbott government in 2015, the ARC—the council—will be re-established in accordance with a key recommendation of the robodebt royal commission.
The Attorney-General announced that the design of a new body would be the subject of consultation beginning early last year, and it was. The bills have been informed by the outcomes of public and targeted consultation, guidance from the Administrative Review Expert Advisory Group, chaired by former High Court Justice the Hon. Patrick Keane, and close engagement across government with the AAT. In the words of the Attorney-General:
This package of legislation is transformative. It is ambitious and comprehensive—we are building an institution that is intended to serve the community and drive better decisions for many years to come.
The tribunal would be required to pursue the objective of providing administrative review that is fair and just, that resolves applications in a timely manner with as little formality and expense as necessary, that is accessible and responsive to the diverse needs of parties, that improves the transparency and quality of government decision-making, and that promotes public trust and confidence in the tribunal.
A central feature of the new tribunal will be a transparent and merits based selection process for the appointment of non-judicial members—a merits based focus, not 'jobs for mates'. Structure and membership will include: a president; deputy presidents, both judicial and non-judicial; senior members; and general members. The streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary. The tribunal will be made up of eight jurisdictional areas—general; intelligence and security; migration; the National Disability Insurance Scheme, or NDIS; protection; social security; taxation; and business—as well as veterans and workers' compensation. This structure builds in flexibility to ensure an enduring responsive foundation for the tribunal's work into the future.
A Tribunal Advisory Committee will provide strong collective leadership to the tribunal, comprising the president, the principal registrar and the jurisdictional area leaders. The committee will ensure that those leaders are individually and jointly responsible for promoting the tribunal's objective. A transparent and merits based selection process for members is provided for in the bill. The suitability of prospective members will be assessed through a competitive merits based and publicly advertised process. We welcome applicants to these roles. The assessment will consider how well candidates fulfil the skills, expertise, experience and knowledge required to be a member of the tribunal, as you would expect in any high office. This assessment must also consider the need for a diversity of skills, expertise and lived experience, noting that the tribunal should reflect the community it serves.
Through significant reforms to the Migration Act, the bill would assist to reduce delays and backlogs in migration and refugee matters, increase fairness, and support the integrity of the migration system. One of the provisions also contains measures to enable the transition from the AAT to the new tribunal. This includes transitioning active, pending and potential case loads, including matters before the courts, to minimise disruption and to maintain review rights. For those who are in the process of having a decision reviewed by the AAT and who may request a review as the new body, the ART, is being set up, these cases will be transitioned to the new body automatically. There will be no need to submit a new application.
These reforms to the AAT build upon a broad integrity agenda that we brought to office, and the centrepiece of course is the establishment of the National Anti-Corruption Commission, the NACC. However, this ART that we will be establishing is a really important measure because it acts as an important check and balance to executive power where the voices of ordinary Australians will be elevated, and due process will be followed so that these Australians are not left by the wayside, as happened with robodebt. Robodebt, which had a royal commission, is a stain on Australia's history and one that we do not want to repeat. Reforming important oversight bodies like the AAT into a new body with a spill of the current members enables a complete reset and a process of healing to occur in this nation. Once the new tribunal has been established, all ongoing and non-ongoing Public Service employees employed by the AAT at the time will transition to this new tribunal on equivalent terms and conditions.
I commend this package of bills to the House. It's the most important reform of the federal system of administrative review for decades, to restore integrity to, and to improve the effectiveness of, the review system for Commonwealth decisions. I thank the House.
16:50
Mr LEESER
109556
Berowra
There's a cancer in modern politics—a cancer corroding the core of our national life. The cancer relates to misunderstanding the purpose of politics in our national life. The foundation of our liberal democracy is the understanding that we will, at times, disagree—that we will bring different philosophical perspectives to debate and discussion of issues. The recognition that we will disagree is at the heart of our system of government.
Every day this House sits, we see children up in the glassed-in public galleries watch us through that soundproof glass. We teach our children about the architecture of our civic life: the parliament, the courts, the Crown, the free press, our democracy. But, sadly, we don't teach them the ethos that lies behind them. That ethos is that there will always be differences and that good people can disagree—that they can disagree on one thing and work together on another—and, though there are differences, those differences shouldn't disqualify anyone from making a contribution.
There are many things wrong with the government's approach towards the reconstitution of the AAT, but the foundational error is the belief that a good system should be overturned because of the party affiliation or involvement of some within it. The Attorney's fundamental argument for overturning a system in place for decades is that there have been Liberals involved on the AAT—not just people who'd served in this place or in the Senate, or who'd worked as advisers, but people who did nothing more than join a political party. If it sounds McCarthyist, it's because it is McCarthyist.
Can I let the government in on a secret? There are Liberal Party supporters and National Party supporters, and, I dare say it, a few Labor Party supporters, who are members of the ADF, who work in the Public Service, who are AFP personnel, who contribute to our national life. They aren't a fifth column; rather, they are Australians enjoying their right to participate without fear or favour. This is so different from the American path. That path believes that all who disagree with you should be excluded from public life. It's a bad path to walk along, because it corrodes the shared approach to our civic life.
Sadly, this bill, the Administrative Review Tribunal Bill 2023, isn't about justice or about making our system better. It's about purging and then stacking—stacking from the start. This bill is not about removing politics from the AAT; it's about the full-scale left-wing politicisation of it.
This is a purge that will inevitably result in unintended second- and third-order consequences. We saw this from the very moment that the Attorney announced the abolition and replacement of the AAT. On 16 December 2022, the Attorney-General issued a media release entitled 'Albanese Government to abolish Administrative Appeals Tribunal'. I'll read you the Attorney's central argument in the release:
By appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit-based selection process—including some individuals with no relevant experience or expertise—the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making.
I think it's interesting that the department was so concerned about this media release that it does not appear on the department's website. The department would not put it up on its website. It appears on the Attorney-General's personal website. Could this be on the basis that the release lacks truthfulness, or the aspersions placed on people's character or potential legal doubts it created around the decisions and processes of the AAT? I pay tribute to the Attorney-General's Department for standing up to the Attorney on this. They also knew that, as it pertained to law, the AAT was working to the highest standards.
The AAT has been a uniquely Australian institution. It's an institution that has allowed Australians to seek reviews of decisions made by the federal government. Importantly, many Australians do so without costly legal representation. It allows them to challenge decisions of government that directly affect them.
In 2022-23, an average of 788 applications for review were lodged every week. This was down from 850 applications a week in 2021-22, a decrease of around seven per cent.
Many of the decisions are complex and deeply personal. There's nothing easy regarding decisions about migration, citizenship, child support, social security, the NDIS, taxation, veterans and workers compensation. The decisions that are made directly determine the course of people's lives. In 2022-23, 20,600 migration and refugee cases were finalised, as well as 11,100 social services and child support decisions and 5,600 NDIS decisions. Nobody should be under any illusion that these are difficult decisions. Yet benchmarking of user feedback indicates strong support for the responsiveness of the level of service given.
In the last year prior to the Attorney's announcement, which was 2021-22, the user satisfaction survey rate was 74 per cent, above the AAT's own target of 70 per cent. Keep in mind there were many cases where participants were dissatisfied with the final result, yet satisfaction rates of how they were dealt with by the tribunal were still high. It outperformed its target.
As well, the decisions, because they can be subject to appeal, must be robust. The AAT takes incredible pressure off our courts. The best test of the quality of the decisions is not the Attorney-General's rhetoric; it's the rate of successful appeals. The AAT sets itself a benchmark with fewer than five per cent of successful appeals on appellable decisions. In 2021-22 the result was 1.9 per cent. That's well under target. It's worth noting that after the Attorney-General's great leap forward was announced, satisfaction rates fell to 72 per cent in 2022-23, and the successful appeal rate rose to 2.1 per cent.
Also of concern is the decline in the rate of publication of key decisions since the Attorney's announcement. Publication is a means of providing confidence in decision-making. In 2021 the number of published decisions exceeded 5,400. By 2022-23 it had fallen to a smidgen over 5,000. It's also worth recording that at the end of 2021-22 the number of cases on hand was 56,100. The Attorney was quite damning about this backlog. Yet, even with the seven per cent fall in new cases, the backlog has now grown to 66,100—an increase of 18 per cent. This is a direct result of the Attorney playing games with a system that was working well.
I warned a year ago, when I was shadow Attorney, that the AAT could potentially go backwards. It has, and the staff know it too. In the 2023 APS Employee Census staff were asked the question: am I proud to work in my agency? The results for the AAT, by its own admission, were 12 points lower than for any other medium-sized federal government agency. Fifty-one per cent said yes when asked: does my agency really inspire me to do my best every day? Again, this was 10 points lower than for the medium-sized agencies. The decline in staff morale is directly linked to the Attorney's planned purge. It's hard for staff to feel proud when the Attorney disparages the people they work with, and the people that have been working well. By the relevant measures, the AAT has been performing well.
What I will concede is that, given the backlog, it needed more appointees. In this regard the government could simply have made additional appointments. Instead, this change was not about performance; it was about politics. That's why the government said there would be no changes to AAT staff—only to its members. The Attorney-General's media release announcing his purge claimed that as many as 85 people serving on the tribunal had associations with the coalition. It's worth unpacking that claim. It's a claim that's as dubious as the PM saying, 'My word is my bond,' or a Labor promise to cut your power bills and keep interest rates low. Yet this dubious claim was taken from Crikey and the left-wing Australia Institute.
The people who were on the Dreyfus/Crikey/Australia Institute hit list include people who've done nothing more than be a volunteer member of the Liberal or National parties. It is a hit list. It simply judges people on the link to a party rather than on the quality of work they've done. The danger of this approach is the idea that it seeds—that political involvement, support or engagement should be seen as a disqualifier for any form of service to this country. Instead we're seeing something much more sinister: a check on one government being removed that seeks to replace any person with a link to a former government. In other words, they want either a rubber stamp or a blank cheque, rather than a considered response to tens of thousands of issues raised at the tribunal.
It's worth recalling who the Attorney targeted in his hit list. He targeted people who meet the statutory qualifications for appointment to the Administrative Appeals Tribunal—namely, they're either enrolled as legal practitioners for at least five years or have special knowledge or skills relevant to their duties. It's worth recording who the Attorney thinks is unqualified. The Attorney's purge includes peoples with masters degrees from Ivy League and Oxford universities, people with doctorates in law, people with first-class honours degrees and at least two university medallists. The purge also includes senior decorated military officers—people who have put their lives on the line for this country. It includes senior public servants, academics, barristers, partners in law firms and police officers with decades of experience. It includes people who have served on tribunals at the state and territory level. It includes public servants who headed departments and agencies, including public servants who have been awarded the Public Service Medal. It also includes people with life experience that includes being a former deputy registrar of the state supreme court, a former sex discrimination commissioner, the Chair of the Accounting Standards Board and the editor of the legal service on practice and procedure for one of the state tribunals. As you can see, these are people who are highly qualified to serve on this tribunal.
I believe serving in this House or in the Senate, or in a state or territory parliament, or joining a political party should be seen as a commitment to Australia and to public service. It's not a black mark that should disqualify people from continuing their service either on a tribunal or in other places across government. By making political affiliation a black mark, we send a message about this place and the people in it. It makes parliamentary service something of a disparagement, rather than the deep responsibility that it is. Ultimately, it diminishes the political process, which is to the detriment of our whole country.
The Attorney likes to argue that he is pursuing an independent selection process, but let's look at section 209 of the bill:
(1) The Minister may, from time to time, establish one or more panels (assessment panels) of persons to assess a candidate or candidates for appointment as a member.
(2) The regulations may make provision for and in relation to assessment panels.
(3) Without limiting subsection (2), the regulations may make provision for and in relation to the following:
(a) the establishment of assessment panels;
(b) the composition of assessment panels;
(c) the operation and procedures of assessment panels;
(d) the methodology to be used by assessment panels in assessing candidates for appointment as a member;
(e) the provision of assistance by the Department to assessment panels, including secretariat services and clerical assistance.
In other words, everything to do with the assessment panels remains in the minister's hands. This is a process where the Attorney will establish the panels, their composition, their operations, their procedures and their methodologies. In other words, these so-called assessment panels are a bit like a scene in Charlie and the Chocolate Factory, with a committee of Oompa-Loompas all bearing the face of the Attorney. All the Oompa-Loompas will be aware of what happens if you don't keep in line: they will get a 'please explain' phone call from the Attorney.
We all recall the 'please explain' phone call made to the former tribunal president Justice Fiona Meagher. On 12 November 2022, Justice Meagher put out a statement detailing the progress the tribunal had been making since her appointment just eight months before. Then there was a mysterious call from the Attorney which the AFR called a 'please explain' call. Within weeks, Justice Meagher was gone from the AAT, silently moved to full-time duties at the Federal Court. All references to her were scrubbed from the AAT website. It's chilling. She was simply disappeared. This is not the sort of activity you expect to see in an Australian administrative law institution—not in a democracy such as ours. Again, we see the mistreatment of a respected figure, removed for not toeing the line. We don't know the exact words spoken or the exact tone of the call, but we do know the result of it. And what we do know is that the Attorney's actions were unbecoming.
The Administrative Appeals Tribunal has dealt with hundreds of thousands of cases. It has done so free of scandal or malfeasance. It has done so in the best traditions of justice and fairness under the Australian legal system. The Attorney has decided to play politics with a core aspect of the Australian administrative law system—something I think is world-beating; something we can be proud of, from the origins of the idea of the AAT back in the days of the Kerr committee. That was a committee headed by former Chief Justice of New South Wales and later Governor-General of Australia Sir John Kerr, a committee that also had on it people like Sir Anthony Mason and the late Bob Ellicott—a really terrific group of Australians who helped design the administrative law system, which is unique to Australia and has been investigated and copied in several other places.
The Attorney's decision to play politics with the Administrative Appeals Tribunal is deeply regrettable. History shows that, when you do that, it plays itself out in unintended second- and third-order consequences. That will ultimately be to the detriment of justice and, importantly, to Australians who have relied on this unique and important Australian institution.
17:04
Mr KHALIL
101351
Wills
This is a comprehensive reform package of bills which establishes a new federal administrative review body. The Albanese Labor government committed to cleaning up what was frankly, despite the previous speaker's attestations to the AAT's operations, a mess left by the previous Liberal government. We have set about, in this package of reforms, modernising and streamlining our administrative review processes. This broad legislative initiative underscores the Labor government's commitment to ensuring fairness, transparency and accountability in governmental decision-making. By establishing the Administrative Review Tribunal and enacting consequential provisions, we pave the way for a more responsive and accessible administrative justice system, benefiting citizens and government alike.
The Administrative Review Tribunal Bill 2023, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 complete this package that implements the government's commitment to establish the new ART. It replaces the current AAT, the Administrative Appeals Tribunal. We've heard a few comments about the operations of the AAT in the past. I've got to say: not only is this government about trying to enhance the efficiency and effectiveness of the administrative review processes that have been conducted; it is also about cleaning up what was, frankly, not working. In a sense, these bills importantly serve a crucial role in our legislative framework by repealing the outdated Administrative Appeals Tribunal Act 1975 and facilitating a seamless transition of operations, caseload and staff to the newly established tribunal. The bills implement, among other things, a better and improved standardised hearing mechanism, institute a guidance and appeals panel within the tribunal, foster a more flexible structure and, importantly, clarify and make transparent the procedures around appointing tribunal members.
The reason for such sweeping reform is simply the incompetence, mismanagement and negligence of the previous Liberal government, which requires a Labor government to clean up the mess. The system of administrative review has been beset—these are the facts—with issues because of the failure of the previous government. Let's go into those failures that need cleaning up: the lack of a fair and transparent process for appointing skilled members; a growing number of cases waiting for resolution, aggravated by insufficient funding and cuts to resources; challenges with coordination and teamwork due to the ongoing merger of tribunals; inefficiencies caused by outdated and failing computer systems nearing the end of their useful life; and a culture, frankly, of jobs for the boys and girls, with handpicked appointments by the Liberals as favours for their mates when these mates were thoroughly unqualified to sit on the tribunal.
Of these failures, I think the most egregious failure of the previous government lies in the politicisation of these AAT appointments. The former government's penchant for political appointments, including of individuals who had no relevant expertise to be a member of the tribunal, has undermined the credibility of the AAT and raised serious questions about the integrity of its decisions. When those opposite were in government, they appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process—including some individuals with no relevant experience or expertise at all—fatally compromising the system. They should be ashamed of themselves, and ashamed of bringing the country's Administrative Appeals Tribunal into such disrepute. This failure and mismanagement—
17:08
Mr McCORMACK
219646
Riverina
I move:
That the Member be no longer heard.
The SPEAKER
53517
The question before the House is that the member no longer be heard.
The House divided. [17:13]
(The Speaker—Hon. Milton Dick)
49
AYES
Andrews, K. L.
Archer, B. K.
Bell, A. M.
Birrell, S. J.
Boyce, C. E.
Broadbent, R. E.
Buchholz, S.
Caldwell, C. M.
Chester, D. J.
Coleman, D. B.
Conaghan, P. J.
Coulton, M. M. (Teller)
Entsch, W. G.
Fletcher, P. W.
Goodenough, I. R.
Hamilton, G. R.
Hastie, A. W.
Hawke, A. G.
Hogan, K. J.
Howarth, L. R.
Joyce, B. T. G.
Landry, M. L.
Leeser, J.
Ley, S. P.
McCormack, M. F.
McIntosh, M. I.
McKenzie, Z. A.
O'Brien, E. L.
O'Brien, L. S.
Pasin, A.
Pearce, G. B.
Pike, H. J.
Pitt, K. J.
Price, M. L.
Ramsey, R. E. (Teller)
Stevens, J.
Sukkar, M. S.
Taylor, A. J.
Thompson, P.
van Manen, A. J.
Vasta, R. X.
Violi, A. A.
Wallace, A. B.
Ware, J. L.
Webster, A. E.
Willcox, A. J.
Wilson, R. J.
Wolahan, K.
Young, T. J.
87
NOES
Albanese, A. N.
Aly, A.
Ananda-Rajah, M.
Bandt, A. P.
Bates, S. J.
Belyea, J. A.
Bowen, C. E.
Burke, A. S.
Burns, J.
Butler, M. C.
Byrnes, A. J.
Chalmers, J. E.
Chandler-Mather, M.
Charlton, A. H. G.
Chesters, L. M.
Clare, J. D.
Claydon, S. C.
Coker, E. A.
Collins, J. M.
Conroy, P. M.
Daniel, Z.
Doyle, M. J. J.
Dreyfus, M. A.
Elliot, M. J.
Fernando, C.
Freelander, M. R.
Garland, C. M. L.
Georganas, S.
Giles, A. J.
Gorman, P.
Gosling, L. J.
Haines, H. M.
Hill, J. C.
Husic, E. N.
Jones, S. P.
Kearney, G. M.
Keogh, M. J.
Khalil, P.
King, C. F.
King, M. M. H.
Lawrence, T. N.
Laxale, J. A. A.
Le, D.
Leigh, A. K.
Lim, S. B. C.
Marles, R. D.
Mascarenhas, Z. F. A.
McBain, K. L.
McBride, E. M.
Miller-Frost, L. J.
Mitchell, B. K.
Mitchell, R. G.
Mulino, D.
Neumann, S. K.
O'Connor, B. P. J.
O'Neil, C. E.
Payne, A. E.
Perrett, G. D.
Phillips, F. E.
Plibersek, T. J.
Rae, S. T.
Reid, G. J.
Repacholi, D. P.
Rishworth, A. L.
Roberts, T. G.
Rowland, M. A.
Ryan, J. C.
Ryan, M. M.
Scamps, S. A.
Scrymgour, M. R.
Sharkie, R. C. C.
Shorten, W. R.
Sitou, S.
Smith, D. P. B. (Teller)
Spender, A. M.
Stanley, A. M. (Teller)
Steggall, Z.
Swanson, M. J.
Templeman, S. R.
Thistlethwaite, M. J.
Thwaites, K. L.
Tink, K. J.
Vamvakinou, M.
Watson-Brown, E.
Wilkie, A. D.
Wilson, J. H.
Zappia, A.
0
PAIRS
17:18
Mr KHALIL
101351
Wills
The member for Riverina might not want me to be heard, and those opposite might not want to hear it, but, through failure after failure, they have mismanaged the AAT. People have had such adverse impacts that they've waited years for decisions, because they were incorrectly determined and they were undercooked decisions, and they've had lengthy and expensive judicial processes because of their mismanagement. That is what they don't want to hear about, but we'll keep saying it because it's true.
There is a human impact to what they have done in their mismanagement, and that is the thousands of people affected. I know this, and I'm sure others know this as well, because the hardworking staff in our electorate offices are the ones who have to help those people who've gone through lengthy and nightmarish bureaucratic processes. Tens of thousands of people who relied on the AAT to independently review government decisions have had life-altering impacts because of their mismanagement. We're cleaning up this mess and cleaning up the legacy of mismanagement by the coalition. We're cleaning up the legacy of irresponsibility and the legacy of deep suffering for migrants and refugees, particularly, who sought to call Australia home. That's why it's incumbent upon us to actually deliver these reforms, and that's why we're going to pass them through the House.
17:19
Mr ROB MITCHELL
M3E
McEwen
No doubt we'll get a nice interjection from the member for Riverina, as they play this childish game of not wanting to hear about the problems they created with the Administrative Appeals Tribunal.
The changes in the Administrative Review Tribunal Bill are in line with the Albanese Labor government's commitment to transparency for all levels of government. But let's take a moment to consider why these changes are necessary and what has led us here today.
As members on this side of the chamber know, the former Liberal-National government's track record on integrity was appalling at best. The coalition dragged their feet and did not implement a national anti-corruption commission. Despite promising to take it to an election, they didn't do it. Despite winning an election, they never did it. The coalition were actively facilitating sports rorts, car park rorts and any other rort you can think of. The coalition wrote the book on prolific pork-barrelling, and communities across Australia suffered. Our community knows that the suburbs and towns across McEwen suffered because of the selfishness of the Liberal-National government. But now we've got a government in charge that is run by adults, and the establishment of the Administrative Review Tribunal is one of the many steps the Labor government is taking to restore the public's faith in government and its processes.
It was back in late 2022 that the Albanese government announced the decision to abolish the 'Jobs for Mates' scheme, or the old Administrative Appeals Tribunal, and replace it with a transparent new federal review body. This reform was needed after the coalition decimated the integrity of the AAT. The original body was no longer viable when we took government in 2022. The sad reality was that things were too far gone to fix what those opposite had done to the AAT. Eighty-five former Liberal and National MPs, failed candidates, former staffers and close Liberal-National associates had been appointed without a merit based process.
The member for Berowra tried to say: 'Look at the ADF. It doesn't matter what side of politics you like, you can join the ADF.' He's trying to equate AAT pork-barrelling to the ADF. But the bit the member for Berowra didn't mention is that to become a member of the ADF you have to have merit, you have to meet criteria and have qualifications, and you have to earn your place. You don't have to pay the membership fee in a Liberal Party branch or a National Party branch to get there. That's what happened. During the time of the AAT they appointed individuals with no relevant experience or expertise. The former government fatally compromised the AAT, undermined its independence, and we saw what happened. In addition to fielding accusations that they had stacked the AAT with former politicians, staffers, party supporters and donors, they ended up putting the nail in the coffin of the AAT by rushing through several non-urgent term extensions instead of leaving them to the incoming government, which is usually the case. Plum jobs worth up to $500,000 a year were extended to coalition-linked individuals to prevent the new government from overhauling what was left of the body.
To make sure we truly understand what happened, let's look at the examples. Former Liberal senator Karen Synon was first appointed to the tribunal in 2015. Her term was not due to expire until December 2023, 20 months after we got into government. However, in 2022, before Prime Minister Scott Morrison set the election date for 21 May, triggering the Commonwealth caretaker provisions, the Attorney-General, Michaelia Cash, extended this member's term until May 2027. She was a deputy president of the AAT on a salary of $500,00 because of liberal mates.
Let's have look at serial failed Liberal candidate Donna Petrovich, a name synonymous to those in our region for failure, whose term as a full-time member was extended to May 2027, again without merit or any form of consideration. (Quorum formed) Of course, they don't like hearing about this because it hurts them. It hurts them when we think about those like, as I said, Donna Petrovich, the failed Liberal candidate who had her term extended to May 2027 without merit, or Donald Morris, who worked for the Liberal Party's his entire professional life and who was granted an extension as a full-time senior member on a salary of $390,000 until May 2027. And then of course there was Andrew Nikolic, the failed member who came from Tasmania. He was another one appointed without merit, without justification. It was a job for a mate because he couldn't hold his seat. The power of the government of the day to appoint members to the tribunal to extend contracts—these contract extensions were only secured for their coalition mates.
Now, not everyone on the AAT is a coalition mate, and under that government we saw a deliberate stifling of the AAT process to stall it and to lock it up because it didn't suit the government of the day's agenda. When the then government did something wrong, which was quite often—quite regularly they did something that failed the probity test, failed the honesty test, failed the pub test, whatever you look at—they would get their Liberal mates to stall things happening there. It impacted the lives of ordinary Australians who had gone to the AAT in good faith to have their case heard. Because of what happened under the former Liberal and National coalition government, they were held up for months and even years. We had a backlog.
What else would you expect from a government that was notorious for pork-barrelling, stifling debate and the anticorruption commission? What else would you expect from a Prime Minister that had five secret ministries? None of this passes the pub test. When asked about the situation, the barrister and director of the Centre for Public Integrity, Geoffrey Watson SC, said there was no clear explanation for why the extensions had been put through, none at all. He said he wished he could be surprised. But he's not surprised because that's what you get under a coalition government—those are my words, that last bit. He said it's just evidence of a deeper and more extensive manipulation of the membership of the AAT. Our Attorney-General has detailed as a disgraceful exhibition of cronyism by the Liberal Party. Australians expect honesty and accountability and integrity from government. People's futures, as I said, were put on hold.
Sadly, this is another mess that the Albanese government has inherited—an AAT that is not on a sustainable financial footing. It's a system that is defined by deliberate unnecessary delays and an extraordinarily large backlog of applications. It's a legacy of the former government's mismanagement of public institutions. This mismanagement came at the cost of tens of thousands of people who rely on the AAT to have government decisions independently reviewed, especially when these decisions can have a life-altering impact. Whether it be older Australians receiving an age pension or a veteran being compensated for a service injury, you'd think that would be something that you'd have a lot of support for. But under the AAT it didn't. Veterans were held up, unnecessarily and deliberately, because it didn't suit the government of the day's agenda. You'd think an NDIS participant receiving funding for essential support would be non-partisan. But that was the story we had with the former government. It was all partisan politics, nothing about people and nothing about policy.
Australians deserve a body they can trust, one that upholds the values of integrity and accountability and that is acting in the best interests of Australians, not just providing jobs for political allies. This is why we are abolishing the irreversibly damaged AAT and implementing the new Administrative Review Tribunal.
Let's look in some more detail at the proposed new body. This is a system of administrative review, beginning with the establishment of a new administrative review body that is user focused, efficient, accessible, independent and fair. One of the key differences between the previous system and the one before the House is that the new Administrative Review Tribunal will have a transparent and merit based selection process for non-judicial members. This is a huge difference. As I said when the member for Berowra tried to make his false equivalence between that and the members of the ADF, that was the little bit he missed out. He missed that ADF members have to have merit based entry and so do non-judicial members of the ART. This is in stark contrast to the former government and their approach. It builds on the 50 years of experience learning in broad consultation to establish a tribunal that is user focused.
By implementing all three recommendations from the Senate Legal and Constitutional Affairs References Committee review into the performance and integrity of Australia's administrative review system, this bill strengthens the system. It also implements four recommendations from the Royal Commission into the Robodebt Scheme—we all know about that and the many problems it caused for Australians—and the government's response to the commission, as well as the two recommendations from the Rapid Review into the Exploitation of Australia's Visa System. This is about creating a new tribunal that will stand the test of time and governments, whatever political persuasion, by creating a body that won't be swayed by the political whims of the day but, rather, focuses on what is the best outcome for Australians.
Ultimately, the tribunal's objective will be to provide an independent mechanism of review that is fair and just, resolves applications in a timely manner with as little formality and expense as is consistent with reaching the correct or preferable decision, is accessible and responsive to the diverse needs of parties, improves transparency and the quality of decision-making, and promotes public trust and confidence in the tribunal. To do this, the tribunal incorporates key features to improve merits review, including simpler and more consistent processes, a suite of powers and procedures to respond flexibly to changing caseloads, and a simple membership structure with clear qualifications for members. These are some of the many ways that the ART is miles ahead of what we had with the AAT.
I want to make it clear the government has been explicit in saying that the cases that are being considered when the AAT is abolished will be transitioned into the new body automatically. The new Administrative Review Tribunal will provide Australians with stronger processes to fight against government decisions that have a major impact on them. The Albanese Labor government are committed to creating fairer and more transparent and accountable government processes. We are fulfilling our election commitments—something which it would be unusual for those opposite to know about—and restoring the public's trust that got smashed to pieces under the former coalition government. This bill should have a speedy passage.
17:33
Mr TEHAN
210911
Wannon
We tried to give the member for McEwen the opportunity, through calling for a quorum, to do a bit of homework and research on his talking points for his speech on the Administrative Review Tribunal Bill 2023, because there is a statistic that he failed to mention right throughout. It may surprise people, but almost half of the members who currently comprise the AAT were appointed under the current government. Almost half were appointed by the current government. It may surprise people as well that all of those 160 will remain after the AAT is abolished. So let's just put this in perspective: all those who you've appointed will stay there, and all those who've been previously appointed will need to reapply. Is that fair? Do you think that's proper process? Do you think that's how you should do reform? 'We will look after everyone who we have appointed, but, as for all those who have been appointed previously, we will make them go through a merits based qualification process.' Why don't you put the 160 that you appointed through the merits based process? Why doesn't the Attorney-General put those 160 through that? You talk about reform, but it's always reform which suits your interests and not the broader interests of the Australian people. That is what we see with this reform for the AAT here, as presented by the Attorney-General.
We're not saying that the AAT shouldn't be reformed. You should always look at how bodies like the AAT are performing and see whether there are new measures that you can put in place to make sure that they can continue to do the job that the Australian people want them to do. But reform the Labor way—as we have seen right across the board throughout the nearly two years that this government has been in place—is not reform in the interests of the Australian people. It's reform in Labor's base political interests, and that's all we see in everything that we touch on when it comes to this government.
I must say there are key things that we always fail to see. When it comes to transparency, do we get transparency from this government with how it goes about its decision-making? No, we do not—right across the board. There is never proper transparency, and I will give you one example which is relevant to the AAT because the AAT has a migration function. Do you think the minister for immigration will come into this place and tell the Australian people how many more hardened criminals potentially might have to be released from detention if the High Court makes a decision which goes against the government in the coming weeks? It might be that the High Court will find in favour or consistent with what the government is saying, but the point is: where is the transparency around that number, which we know is between 100 and 150? Of course, we don't see anything like that from the government, because it's transparency when it suits them.
When it comes to the AAT, it's very, very interesting to look at the performance measures in relation to transparency. In the financial year to 30 June 2022, the AAT exceeded its performance benchmark of 5,000 decisions published. It continued to exceed those benchmarks in the 2022-23 financial year. So there is transparency here, yet, when it comes to how the government is trying to undertake its reform process, there isn't proper transparency.
What about with regard to decision-making quality? We know that with the Attorney-General and the way that he has approached this issue the decision-making quality has been lacking from go to whoa. It's a great shame, because this could have been done in a thorough manner. It could have been done in consultation with the parliament. It's the type of process, when it comes to a body like the AAT, where you could get reasonable bipartisanship, but that's not what the government has sought to do, because, sadly, the Attorney-General's decision-making quality is seriously lacking.
Where is it at with regard to the AAT? In relation to decision-making quality, in 2021-22, the proportion of appeals allowed by the courts was below the benchmark of five per cent. The AAT continued to meet that threshold in the 2022-23 financial year. Once again, when it comes to decision-making quality, we see the Attorney-General and the government failing, but we see that the AAT is actually meeting the benchmarks that have been set for it by both sides of politics.
In terms of the clearance ratio, I'm trying to think of an analogy for the government with regard to clearance ratios, but it's hard to come at one. Maybe I will be able to think of something as I go through what the clearance ratio performance in 2021-22 of the AAT. It fell just short of its target, due primarily to the sudden jump in post-COVID lodgements. Having been at 119 per cent clearance ratio the year before, in 2021-22 it dropped to 95 per cent in the face of a sudden surge in lodgements. The number of lodgements dropped off significantly in 2022-23 and the AAT is back to the position of finalising more cases than lodged.
Then we go to the final point, which is in regard to sheer output. We know that the government is lacking when it comes to sheer output. We have got most ministers completely and utterly underperforming. But how is the AAT going when it goes to sheer output? In the number of AAT applications and referrals finalised in 2021-22, the AAT reached 90 per cent of its target. It's not 100 per cent, but they reached 90 per cent of its target. There were factors that were outside the AAT's control. For instance, there were continued disruptions associated with COVID-19. Obviously we all know that that meant it was harder for the AAT to be able to do its job.
I say all this in stating once again that the AAT is not a perfect body and the AAT does need to improve its performance, especially when it comes to the timeliness of decision-making. This is something that we do want to see improve. There are very good reasons as to why we want to see this improve. One of the reasons why timeliness has been a factor is to do with the complex legacy migration cases from many thousands of unlawful arrivals under the Rudd-Gillard-Rudd Labor years. That has made the case load very complex for the AAT and components of the AAT, in particular the Migration Review Tribunal. It has meant some of the timeliness is seriously in need of fixing.
I will give you an example of this when it comes to those people who are coming to Australia—we had nearly 23,000 such arrivals last year under the Labor government—people who are coming here by plane and then claiming asylum. It can take up to 10 years for those claims to be heard and finalised. Obviously, while something is taking that long, that acts as a way and a means for people smugglers to be able to say to people, 'If you get to Australia through legal means and then you seek asylum, you will be able to stay in Australia and enjoy the Australian way of life for up to 10 years.
We seriously need to deal with this issue, especially now, when we have some law and some legal and migration agents actually advertising, including on Facebook, for people to come here and seek asylum as a way of staying in Australia for over 10 years. So the timeliness issue is definitely something that we need to look at. It's not just the timeliness of the process leading to perverse incentives, as we are seeing from those who are coming legally by plane then seeking to claim asylum. It's the extra costs right throughout the system that this leads to as well—those extra welfare payments; the extra costs of appeal after appeal after appeal. Sometimes there are appeals through the Migration Review Tribunal, the AAT, the Federal Court, right through the system. That adds to the cost to the taxpayer right across the board. There are a number of things that the government should do to seek to fix this. Reform of the AAT is one such thing, but some clear policy work to also address this issue is desperately needed.
One of the things that I'm hoping is that the immigration minister will find time to look at this, because I'm not quite sure what he's been doing—well, I am quite sure what he has been doing over the last year and a half. He got very distracted by, first of all, trying to fundraise for Dan Andrews and then got very focused on promoting the Voice. Then he went overseas to the UK Labour conference, and then he was promoting and making sure that people were out voting for the Voice when he was in the UK. Meanwhile, he didn't turn up to three key legal briefings that his department offered. So there are many things that he has been doing that very clearly show that he hasn't had his priorities right. Hopefully that will change and one of the things he will be able to do is focus on this issue, where we do need to get these timeliness issues fixed when it comes to the Migration Review Tribunal and the Administrative Appeals Tribunal.
We want to work cooperatively and seriously with the government to make sure that there is proper reform of the Administrative Appeals Tribunal, but it has to be done in a way where there can be meaningful discussions and meaningful consultation and where the opposition is properly and thoroughly engaged with. I'm not holding out great hope that that's what will happen. Unfortunately, the Attorney-General has a track record which isn't one of being bipartisan. It's one of being more partisan than not. As a matter fact, I think it would be fair to say that, when it comes to this place, the Attorney-General is one of those characters that just seems to love the partisanship rather than the bipartisanship. But I might be wrong, and the Attorney-General might surprise me. If he did, I think we would go a long way to making sure we were getting the type of reform to the AAT that is required. So I say to the Attorney-General: please reach out to the shadow Attorney-General and make sure that you engage properly so that we can make sure that we get all the proper reforms that we need and we can make sure we get good balance in this bill.
As I said at the start, what we've seen so far is that the government is hell-bent on looking after all those people that it appointed and then wants to bring change for all those people who they didn't appoint. Some of those people have incredibly impeccable credentials when it comes to sitting on the AAT. So let's make sure that we do this properly, let's drive through the type of reform that the AAT needs and let's in particular make sure that we address that issue of timeliness, because it's in all of our interest. It's in the government's interest and it's in the parliament's interest that that issue of timeliness is dealt with. As I've said—and I've given one clear example of this—if that timeliness issue isn't fixed when it comes to those people who are coming to Australia by legal means on student visas, on tourist visas or on any other types of visas and then claiming asylum, we are going to be left with another mess of this government's making.
17:49
Ms MILLER-FROST
296272
Boothby
In late 2022 the Albanese government announced its decision to abolish the Administrative Appeals Tribunal, the AAT, and replace it with a new federal administrative review body. This is a significant reform. The AAT, soon to be the ART, is an important part of the relationship between the Australian people and their government. It's an important part of transparency and justice. It's an important part of Australians being able to seek justice or, at the very least, a review of decisions made about their lives, their rights and their entitlements. These are decisions made by large government bureaucracies and public servants. They are seeking reviews of decisions made by the NDIA, Services Australia, the Department of Social Services and immigration. These are decisions made where there is a significant imbalance of power between the applicant, an individual; and the decision-maker, often an anonymous public servant in the giant bureaucracy with a lot of power.
But the former government took this valuable review process away from Australians. They undermined it. They undermined its integrity. They undermined the faith the Australian people had in the institution. Frankly, given what we now know, with the repeated decisions against the government that were exposed in the Royal Commission into the Robodebt Scheme, it isn't surprising that they didn't want an unbiased umpire to be able to review their actions. So they undermined the AAT by appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process. Some of these individuals had no relevant expertise or experience. The former Liberal-National government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making. In doing so, they took away the rights of Australian individuals to seek an unbiased review of decisions made about them and their lives.
The Albanese government inherited an AAT that is not on a substantial financial footing. (Quorum formed)Itis beset by delays, as we just heard from the member for Wannon. Sometimes there were delays of years to get into the AAT to get a decision reviewed, because the AAT had an extraordinarily large and growing backlog of applications. It was not helped by operating on multiple ageing electronic case-management systems. People were forced to live with incorrect, unfair decisions or were in doubt about what the decision would be for years while waiting to get into the AAT. They were forced to live with the unfairness, the trauma and the poor outcomes, to keep their grievance alive for when they eventually got their call to come in. As the member for Wannon talked about previously, under their regime those seeking asylum would be waiting up to 10 years for cases to be resolved. He mentioned how this encouraged bad actors, bad migration agents, to promote this as a way for people to get into the country and try and claim asylum, even though they had no right to it. This was under their regime. This is what those delays actually meant. People came into the country knowing it would take 10 years to resolve their asylum claim—so that was their way in.
This is the legacy of the former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. This comes at a very real cost to the tens of thousands of people who rely on the AAT each year to independently review government decisions that have major and sometimes life-altering impacts on their lives. These include decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury or whether a participant of the NDIS receives funding for essential supports. These are the stories I heard when I campaigned in the 2022 election. These are important decisions for individuals, and it should be important to the government that they are made correctly as well. For the previous government, it obviously wasn't. But the Albanese Labor government was elected on an integrity platform, and this is part of integrity—integrity with our dealings with Australians.
The House of Representatives Standing Committee on Social Policy and Legal Affairs, on request from the Attorney-General, conducted an inquiry into the Administrative Review Tribunal Bill 2023 and the associated legislation. The committee scrutinised the bills, including through public consultation and hearings, to ensure they achieved the government's policy objectives and do not have unintended consequences. I'd like to thank particularly those who put in submissions for the consultation and those who attended the hearings. Their quality, experience and expertise was invaluable to the committee's consideration. The bills are intended, amongst other things, to provide for a mechanism of review that is fair and just, timely, informal, inexpensive, accessible and responsive, that improves transparency and quality of government decision-making, and that improves public trust and confidence in the tribunal. Australians should expect no less of us.
The bills re-establish the Administrative Review Council, retain the jurisdiction of the Administrative Appeals Tribunal and make essential modifications to the operations of the merits review framework. They promote consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART bill. The bills will implement all three recommendations of the Senate Standing Committees on Legal and Constitutional Affairs' inquiry into the performance and integrity of Australia's administrative review system. There are four recommendations of the royal commission into the robodebt scheme and two recommendations of the Rapid review into the exploitation of Australia's visa system. It is clear that the AAT has lost the confidence of the Australian public and there is broad support for establishing a new administrative review regime with the bills' stated objectives.
The proposed reforms create a new tribunal—the Administrative Review Tribunal. It will be a self-correcting system with several backstops to ensure that government and ART decisions are made correctly and transparently, that defective decision-making by government can be held to account and that systemic issues will be escalated and responded to effectively. These features include the Administrative Review Tribunal, which will be independent of government and will monitor and support the integrity of the administrative review system. The new Tribunal Advisory Committee and the guidance and appeals panel will review the operation of the ART, respond to emergency issues and help ensure correct and consistent decisions are made. The new code of conduct and performance standard requirements, stronger reporting obligations and a requirement for professional development for members and staff further support the bill's objectives.
Several submitters suggested the ART bill should require the use of a selection panel in the appointments process for ART members. While that's not strictly necessary, because the government has indicated that such matters can and will be provided for by legally-binding regulations, the committee encouraged the government to give further consideration to adopting that suggestion.
The provision of legal aid, particularly to vulnerable applicants, will be important to the ART's success in meeting its policy objectives. The committee is aware that legal services to assist applicants to the AAT may have limited capacity to support any further demand generated by the transition from the AAT to the ART. The committee strongly supported the government acting on the findings of the upcoming review of the National Legal Assistance Partnership.
While noting the proposed new administrative arrangements for migration and protection matters do not go as far as many would like, the committee was of the view that the consequential bill meets the intended policy objectives of streamlining the administrative reviews process while maintaining the current principles of administrative review. Together with the other measures announced by the government, the arrangements in the bill will help address the crippling delays in the Migration and Refugee Division of the AAT.
The committee recommended that both bills pass the House and encouraged the Senate Legal and Constitutional Affairs Legislation Committee to give further consideration to matters raised by submitters and then report on this as part of its inquiry.
Obviously, the transition from the old AAT to the new ART is of concern to those who currently have matters under consideration or in the queue. The government has made it clear that AAT cases that are on foot when the AAT is abolished will be transitioned to the new body automatically.
The Albanese Labor government is committed to restoring trust and confidence in Australia's system of administrative review, beginning with the establishment of a new administrative review body that it is user focused, efficient, accessible, independent and fair.
This government was elected on a platform of integrity. It was just one of the points of difference between us and the previous government at the 2022 election. The implementation of a national anticorruption commission was a major platform, but only one part of a completely new way of working for the Australian people with the Australian people, different to the ways of the previous government, which formed the basis of so many complaints from my constituents in Boothby. Cleaning up the AAT is another part of this.
A central part of the new body will be a transparent and merit based selection process for the appointment of non-judicial members. This is in stark contrast to the former government, who appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based process.
The tribunal's objective will be to provide an independent mechanism of review that is fair and just, and that resolves applications in a timely matter, with as little formality and expense as is consistent with reaching the correct or preferable decision. It is accessible and responsive to the diverse needs of parties, improves the transparency and quality of decision-making, and promotes public trust and confidence in the tribunal.
In the 2022 election campaign I heard so many complaints and horror stories from the people in Boothby about their experiences with the AAT. I don't want to hear those stories again. I want Australians to get a fair go, to be treated fairly under their government. Under those opposite—robodebt, mishandling of NDIS and the immigration delays I mentioned earlier leading to scams—it was not good enough. Never again. I commend the bill to the House.
18:04
Ms STEGGALL
175696
Warringah
(): It is critical that the Australian public can trust that our democratic institutions are working properly. They need to be sure that these institutions are independent, impartial and free from politics. If you have an administrative decision that you feel has been wrongly decided and needs to be challenged then the Administrative Appeals Tribunal was the place of recourse. If that system is not working fairly, we have a situation where you cannot challenge those decisions.
The new review body proposed under the Administrative Review Tribunal Bill 2023 will, under the provisions of this legislation, be more transparent, more accountable and, more importantly, have an appointment process that cannot be overtly tainted by political appointments. Whether it's your visa application being denied, your NDIS application being rejected or being subject to an unfair or adverse small-business taxation decision, these are the types of matters this tribunal deals with. So this matters to everyone. Decisions on child support, citizenship, social security, freedom of information, immigration, security assessments, veterans' affairs, workers compensation—the list is long on why an appeals tribunal is incredibly important. Decisions on these issues will affect people's lives and livelihoods.
The AAT, the Administrative Appeals Tribunal, was meant to be the body empowered to review the merits of those types of decisions. However, for too long it failed to do the job properly. There remain 66,131 cases before the AAT awaiting finalisation. Most of these cases, some 83 per cent, were in the migration and refugee division. This has led to untold harm and distress to many, many people.
This long-awaited bill is an opportunity to fix the serious problems with the AAT. This set of bills will abolish the Administrative Appeals Tribunal and replace it with the new, much improved Administrative Review Tribunal. Australians must feel that they will get a fair hearing by an administrative review body that can make key decisions affecting people's lives. So many communities, including mine of Warringah, are crying out for reforms to integrity in public life and administrative bodies. The most high-profile case or issue of late that has been dealt with by the Administrative Review Tribunal was in fact robodebt. It's incredibly sad to think that, whilst the AAT made an adverse finding in relation to robodebt being unlawful back in 2017, that was never published. So it took another two years of more victims and more trauma and distress before the Federal Court was able to highlight and get a successful challenge to robodebt.
I have to say it's disappointing to hear the Coalition's debate and argument on this bill, in that they still fail to acknowledge responsibility for such a failed program. Really, you can't come to this debate discussing the question of an administrative appeals body that will work without acknowledging the errors and the problems that we've had in the past and also acknowledging where government gets it wrong. Where government gets it wrong or where departments and administrative decisions get it wrong, you need to acknowledge the importance of there being a process of clear review; a clear process of appeal.
The question of who the decision-makers are under a body becomes incredibly important. There is clear evidence that for too long it has been overtly politicised. Research by the Australia Institute shows that, under the previous nine years of the coalition government, political appointments averaged 32 per cent. What was concerning was that, in a number of instances, we had the appointment of people who did not even have legal training or expertise. They were completely unsuited to sit or determine the administrative review process. We know that under previous governments—in the Howard era and even the Rudd-Gillard-Rudd era—a percentage of political appointees were there as well, but not to the same extent. It was identified by the previous government as being a system that could, essentially, be abused to get political outcomes and really tarnish this process. There was a blatant jobs for mates process in the scheme, and it was directly affecting the ability of the AAT to function.
In 2018 Mike Seccombe from the Saturday Paper did an investigative piece that showed how far the rot had spread. In the 2017-18 annual report on the AAT, something that would usually make for quite ordinary reading, he noted that in 2017-18 the number of cases lodged in the tribunal's reporting period increased dramatically, while the number of cases dealt with fell. So, the numbers reported at the time were staggering, yet the government of the day did nothing about it. It looked the other way, when it was its responsibility to ensure that there is an administrative review process that is robust and working. The annual report noted that the AAT faced an enormous backlog of appeals dating back some four years and that the total number of applications in front of them had grown to over 53,000 cases as at 30 June 2018.
Speaking to theSaturday Paper in 2018, the former AAT members said:
There was really big spill of old experienced members and the introduction of people who, in some cases, were not interviewed at all by the panel set up to consider appointments. There was a process of appointments of people for which it was jobs for mates but not suitability for the job.
The ruin of the AAT was done very much by that appointment process. It purged experienced people and expertise within the tribunal, totally abandoned any pretence of merit based appointments and stacked the tribunal with political mates. Some of those political appointments—including party members, donors, failed candidates and retired politicians—although not all, at times lacked, incredibly, relevant experience to even do the job they were appointed to do. The legacy of mismanagement continues today, unfortunately. The most recent annual report from the AAT shows that they finalised 61 per cent of applications within 12 months, which is below the performance measure target of 75 per cent.
I do acknowledge that the government has put more resourcing into tackling the backlog, but the mismanagement under the previous government will take some further time to clean up. The government is doing the right thing, and I very much support the abolishing of the Administrative Appeals Tribunal. The previous government did its level best to essentially destroy the AAT and the functioning review body from within and for its purpose. It's incredibly important for the Australian public to understand the essential role such a body plays for all of you. At some point in time you may need to have an administrative appeal.
The Administrative Review Tribunal Bill 2023 establishes the Administrative Review Tribunal and abolishes the Administrative Appeals Tribunal. When introducing the bill last year, the Attorney-General noted that the aims of the new Administrative Review Tribunal are that it will be, in essence, an independent body of review for federal decisions that is fair, just, timely and accessible to those who need it. Most importantly, the bill aims, by establishing a new framework for the Administrative Review Tribunal, to improve public trust and confidence in a key democratic institution and bring greater transparency to the quality of government decision-making.
The bill will mean that the key features of the Administrative Review Tribunal will include a simple membership structure with clear qualification requirements and role descriptions for member of the tribunal. And I repeat that: clear qualification requirements—that those people making decisions must be qualified to do the job. It will have clearly defined roles and responsibilities for those who hold leadership positions within the tribunal, and a transparent and merit based appointment process for members of the ART—and I will come back to that in a moment. The president of the ART will be allowed to manage the performance, conduct and professional development of its members. It will have a suite of powers and procedures allowing the tribunal to respond flexibly to changing case loads, and there will be mechanisms to identify, escalate and report on systemic issues in administrative decision-making, as well as the re-establishment of the Administrative Review Council. Finally, the bill will mean the abolition of the Immigration Assessment Authority.
I want to thank all those, especially those out with our communities and in organisations, who have taken the time to make submissions on this bill. Many of those submissions have noted that the bill lays out a solid framework to improve the current appeal review process. However, there are still some shortcomings that will require remedy and which I know the government is actively considering. First is the question of the independence of merit based appointments, and that can be strengthened. I know the member for Mackellar has proposed amendments to do exactly that, to ensure that the use of assessment panels in the appointment process is mandated and to require that the minister make appointments from these panels' shortlisted candidates. I note that there have been discussions with the government in this respect, and I certainly hope and expect that the government will introduce amendments themselves during consideration in detail. Of course, in cases where a suitable candidate can't be found through the process, the minister is required to table a statement of reasons in any case where an appointment is made against panel advice and merit based process. We must get to that merit based process and explanations as to departures from recommendation. These amendments will ensure that the political cronyism and jobs for mates culture which we saw under the old Administrative Appeals Tribunal can be a thing of the past.
Another omission of this bill is a statutory review clause, so I have proposed an amendment in relation to providing a statutory review provision, because we have to be realistic and make sure that we review this to make sure that it works as intended. Again, I note discussions with the Attorney-General and his team and thank his office for their engagement. I also note that, whilst I have an amendment that I have proposed for the consideration in detail stage, there may well be progress from the Attorney-General's office themselves.
The previous AAT had fallen into such a depth of disrepute that a statutory review of its replacement must be made at reasonable intervals to ensure that the same mistakes are not made again. The public has a right to know whether or not the ART is functioning as intended, free from political manipulation.
I acknowledge that the reinstatement of the Administrative Review Council will provide an internal review mechanism to ensure that best practice is followed and that the quality of decision-making by the ART is of a high standard, given the effect it has on so many lives. Nevertheless, an independent, external statutory review process is essential.
Finally, public confidence in our institutions is vital for their legitimacy. I thank the Attorney-General and his office for hearing from many of us from the crossbench on proposed amendments. I will be supporting this bill. This is an important piece of legislation and the biggest reform of our system of federal decision-making in some time. I urge the government to consider constructive amendments, as I've said, put forward around these final areas that can be improved. We need to make sure that people's lives are not upended or frustrated through an inadequate review system of administrative decisions, as has been the case for too long.
We saw, through the debacle of robodebt, the incredible level of harm that poor administrative decision-making in government decisions can cause. There must be a review process that is robust, that is fair and that is independent of political persuasion or political influence. The Australian public must be able to have confidence that they can bring an appeal to an administrative decision and have a fair hearing. I commend the bill to the House.
18:17
Mr THISTLETHWAITE
182468
Kingsford Smith
If the Australian public are going to have confidence in the review of administrative decisions by an independent body in this country then we need to restore trust to the workings of the Administrative Review Tribunal. There's a saying in Western democracies—and it's at the heart of the system of the separation of powers—that justice must not only be done but be seen to be done. That is crucially important if the public are going to have confidence in the review of decisions that are made by administrative bodies—effectively by arms of government—that affect the rights and the lives of Australian citizens.
It's fair to say that, under the previous government, the Administrative Appeals Tribunal and how it was operated did not provide that justice was seen to be done, because the previous government stacked that body with political appointments. They appointed dozens and dozens of individuals from the one political party to the Administrative Appeals Tribunal. Many of those appointments were for individuals who possessed no relevant experience or expertise, some of whom were active lobbyists. The problems at the AAT extended beyond the absence of merit based selection processes under the former government. The Albanese government is committed to restoring trust—
18:19
Mr STEVENS
176304
Sturt
I move:
That the member be no longer heard.
The SPEAKER
53517
The question is that the member no longer be heard.
The House divided. [18:23]
(The Speaker—Hon. Milton Dick)
49
AYES
Andrews, K. L.
Archer, B. K.
Bell, A. M.
Birrell, S. J.
Boyce, C. E.
Broadbent, R. E.
Buchholz, S.
Caldwell, C. M.
Chester, D. J.
Coleman, D. B.
Conaghan, P. J.
Coulton, M. M. (Teller)
Entsch, W. G.
Fletcher, P. W.
Gillespie, D. A.
Goodenough, I. R.
Hamilton, G. R.
Hastie, A. W.
Hawke, A. G.
Hogan, K. J.
Joyce, B. T. G.
Landry, M. L.
Leeser, J.
Ley, S. P.
Littleproud, D.
McCormack, M. F.
McIntosh, M. I.
McKenzie, Z. A.
O'Brien, E. L.
Pasin, A.
Pearce, G. B.
Pike, H. J.
Pitt, K. J.
Price, M. L.
Ramsey, R. E. (Teller)
Stevens, J.
Sukkar, M. S.
Tehan, D. T.
Thompson, P.
van Manen, A. J.
Vasta, R. X.
Violi, A. A.
Wallace, A. B.
Ware, J. L.
Webster, A. E.
Willcox, A. J.
Wilson, R. J.
Wolahan, K.
Young, T. J.
80
NOES
Albanese, A. N.
Aly, A.
Ananda-Rajah, M.
Bandt, A. P.
Bates, S. J.
Belyea, J. A.
Bowen, C. E.
Burke, A. S.
Burney, L. J.
Burns, J.
Butler, M. C.
Chalmers, J. E.
Chandler-Mather, M.
Charlton, A. H. G.
Chesters, L. M.
Clare, J. D.
Coker, E. A.
Collins, J. M.
Conroy, P. M.
Daniel, Z.
Doyle, M. J. J.
Dreyfus, M. A.
Elliot, M. J.
Fernando, C.
Freelander, M. R.
Garland, C. M. L.
Georganas, S.
Giles, A. J.
Gorman, P.
Gosling, L. J.
Haines, H. M.
Hill, J. C.
Husic, E. N.
Jones, S. P.
Kearney, G. M.
Keogh, M. J.
Khalil, P.
King, C. F.
King, M. M. H.
Lawrence, T. N.
Laxale, J. A. A.
Le, D.
Leigh, A. K.
Lim, S. B. C.
Marles, R. D.
Mascarenhas, Z. F. A.
McBain, K. L.
McBride, E. M.
Miller-Frost, L. J.
Mitchell, B. K.
Mitchell, R. G.
Mulino, D.
Neumann, S. K.
O'Connor, B. P. J.
O'Neil, C. E.
Payne, A. E.
Perrett, G. D.
Phillips, F. E.
Plibersek, T. J.
Rae, S. T.
Reid, G. J.
Repacholi, D. P.
Rishworth, A. L.
Roberts, T. G.
Rowland, M. A.
Ryan, J. C.
Ryan, M. M.
Scrymgour, M. R.
Shorten, W. R.
Sitou, S.
Smith, D. P. B. (Teller)
Stanley, A. M. (Teller)
Templeman, S. R.
Thistlethwaite, M. J.
Thwaites, K. L.
Vamvakinou, M.
Watson-Brown, E.
Wilkie, A. D.
Wilson, J. H.
Zappia, A.
0
PAIRS
18:27
The SPEAKER
53517
I'd like to hear from the Leader of the House on a point of order.
18:28
Mr BURKE
DYW
Watson
Just on a point of order, should the issue arise again either today or on subsequent days, under standing order 78 there's a list of resolutions which includes the one that we just voted on. It then concludes by saying:
Should any of these questions be negatived, no similar proposal shall be received if the Speaker is of the opinion that it is an abuse of the orders or forms of the House, or is moved for the purpose of obstructing business.
I remember this one because it was used against me when, daily, I was moving that the member for New England be no further heard. Speaker Smith then set a precedent that, once the House had made clear on one occasion that they intended to continue with debate, that resolution would not be entertained again until the following week.
We've now had two of these in a day. On each occasion, the House has voted that we, in fact, did want to continue with debate. I would simply ask that, should the issue arise again, that bottom part of standing order 78 be considered by you, Mr Speaker, or whoever is in the chair at the time.
The SPEAKER
53517
The Leader of the House has raised the issue of standing order 78, regarding (f), and there's a series of motions there, and that relates particularly to standing order 80. So, moving forward, in line with previous practice, it'll be the direction of the chair to ensure that the debate continues. I give the call to the member for Kingsford Smith.
18:29
Mr THISTLETHWAITE
182468
Kingsford Smith
These reforms—to abolish the Administrative Appeals Tribunal and replace it with a new and improved Administrative Review Tribunal—are quite significant. Australians deserve a new federal administrative review body that is user focused, efficient, accessible, independent and fair.
I mentioned, before, the previous government's stacking of the AAT. But that wasn't it. There were other inefficiencies that were part of the government's administration of the AAT.
The new government inherited an AAT without a sustainable financial footing. The AAT had been struggling with delays and an extraordinarily large and growing backlog of applications, and it was operating multiple and aging electronic case-management systems. It was yet another bleak legacy of the former government. The coalition's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal was another feature of that government's mismanagement. It appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers, and other close Liberal associates, without any merit based selection process whatsoever. The AAT never stood a chance of maintaining independence and an efficient decision-making process.
An ineffective administrative review system comes at a very real cost to the tens of thousands of people who rely on the AAT each year. They need to have trust in the process of the independent review of government decisions that have major and sometimes life-altering impacts on their lives. These Australians were abandoned by the previous government.
The Attorney-General announced that the design of the new body would be subject to consultation in 2023, and it was. There was significant consultation that took place.
So this bill, the Administrative Review Tribunal Bill 2023, establishes a new and much-improved tribunal, with the objective of providing independent administrative review that is fair and just; that resolves applications in a timely manner and with as little formality—and expense, of course—as possible; that is accessible and responsive to the diverse needs of the parties; that improves the transparency and quality of government decision-making; and that promotes trust from the public and confidence in the ART. That is the most significant reform that is under debate here: that this government, the Albanese government, is restoring trust and confidence in the operations of the Administrative Review Tribunal. The Australian people can have that trust because this government is keen to ensure that they have a body that caters for their interests.
18:32
Ms WARE
300123
Hughes
I rise to speak on the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023. At the outset, I'll say: these bills are now the subject of a Senate committee review, and, in the circumstances, it would be most appropriate that they are dealt with following the Senate's consideration. I say that also as a member of the House Standing Committee on Social Policy and Legal Affairs, which also had a very brief window of opportunity to look at this legislation during the Christmas period.
But I will turn to a more fundamental aspect of this legislation: that a robust administrative law jurisdiction is absolutely pivotal to Australian democracy. It ensures accountability and transparency in government decision-making processes. By providing avenues for judicial review of administrative decisions, it upholds the principles of legality, ensuring that government agencies act within their legal authority and in accordance with established laws.
Administrative review is the process by which a person or a body other than the primary decision-maker reconsiders the facts, laws and policy aspects of the original decision and determines the correct and preferable decision. The idea is that the new decision-maker steps into the shoes of the original, primary decision-maker, and so it is a review on the merits of a decision rather than being so much a legal challenge. But, if the reviewer considers that the original decision was not the correct and preferable decision, they can then step into those shoes, as I've said, and substitute their decision for the original decision. This strengthens the rule of law by fostering public trust in the fairness and integrity of governmental actions, ultimately safeguarding the democratic rights and freedoms of Australian citizens.
Under our common law system, any Australian citizen or person with the appropriate standing in a legal sense may seek judicial review of administrative action by decision-makers. So the administrative law process we have in our country is an opportunity for a merits review of administrative action that is fair, just, economical, informal and quick—or that is the way that the AAT was initially established. I believe strongly in the rule of law and I do believe strongly in a robust administrative law system.
I think that, with the AAT having now been in existence for several decades, reform may be warranted but the overall merits of these changes are questionable. Since 2015, for example, the AAT has experienced a significant spike in the number of lodgements of cases. It has increased from 41,400 in 2015-16 to a peak of 60,595 in 2018-19. This spike has been driven by a range of factors, including the legacy case load that arose from Labor's unauthorised maritime arrivals. In addition, the amalgamation of different tribunals into the AAT in 2015 created legacy issues, such as different systems and processes operating in parallel with different parts of the tribunal. These are certainly issues that I say do warrant scrutiny and reform.
However, what the government is proposing is the wholesale abolition and replacement of the AAT, and this creates significant transitional challenges, such as transferring a large existing case load, rolling out new systems and dealing with staff turnover and recruitment lags. So these challenges may, in fact, lead to additional and unintended delays. It remains to be seen whether the legally significant changes, particularly in the migration space, will drive further lodgements or lead to a further spike in litigation. So the systematic and downstream impacts of these changes are unclear, and, while it might be appropriate that there is a system of review, the AAT is one part of a complex system and changes to one part of this system could well affect various others, with unintended consequences.
The reforms in the bills, as proposed by the Attorney-General and the government, only address one part of the system, and it is again unclear what those unintended consequences may be. By way of example, to explain that proposition: if the AAT were to significantly increase the rate at which it processed reviews of visa refusals, it is almost inevitable that the federal courts would then be hit with a wave of judicial review applications. These broader impacts should be considered as part of a committee inquiry, and that is only one reason why I say that it is appropriate that this is first of all dealt with by the Senate committee.
Going back to look at the stated purpose of this bill, it's to establish the Administrative Review Tribunal, to replace the Administrative Appeals Tribunal. The new bill sets out 11 different provisions, or parts, that relate to the new proposed tribunal's membership structure, review procedures and various other matters. The proposed legislation also re-establishes a body known as the Administrative Review Council and also makes consequential amendments to a number of Commonwealth acts. As I said, these three bills have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for both inquiry and report by 24 July 2024.
By way of further background, the AAT and the entire Commonwealth administrative review system was initially lauded as an innovative model of tribunal reform. But over time it has faced an ever-increasing range of challenges, and since the eighties numerous inquiries and government reports have documented these challenges and recommended a series of major reforms. Some of those major reform recommendations have been picked up by successive governments and others have not.
Essentially, the problems and failures of the AAT appear to have risen as a result of the proliferation of specialist merit reviews tribunals and the subsequent attempts at amalgamating these separate bodies into a single unified tribunal, which was the original intention of the legislation. Of course, with this there have also been significant resourcing pressures, with a corresponding dramatic rise in the matters being reviewed resulting in enormous backlogs preventing the timely and final resolution of matters. These problems have been particularly evident in migration and review matters, where the delays are enormous and therefore unfair and certainly need to be addressed. Overall, there are 11 parts to the way that the bills are structured that deal with things such as the powers and proceedings, membership and structure, any special tribunal procedures and, particularly, processes in intelligence and security matters.
As a background overall to the Australian merit review system, the foundations of our merit review system were laid, as I said before, in the mid-1970s, and the AAT commenced operations on 1 July 1976. It's probably appropriate to look briefly at the legislative framework under which the AAT currently operates. It is the Commonwealth's largest tribunal, in terms of both its membership and its scope to hear cases. When the AAT was initially established it was stated it would be the merits review tribunal for all Commonwealth administrative decisions, unless specific policy considerations support review conducted by an alternative body. As I said, one of the issues that has been highlighted by successive reviews and inquiries is the proliferation of other tribunals, which has led to unintended consequences within the AAT.
Presently the AAT members consist of a president, who must be a Federal Court judge, and various members known as deputy presidents and senior members as well as members. It currently has a workload of nine divisions which cover areas of Commonwealth decision-making, including migration, the NDIS, freedom of information, taxation and some other miscellaneous Commonwealth legislation. As I've said, the challenges that the AAT faces are that it is beset by delays, dramatic increases in workload and an extraordinarily large backlog of applications. These problems have been particularly highlighted in the migration and refugee division, where the latest figures confirmed that in the 2020-21 year the percentage of cases finalised within 12 months was 20 per cent. Clearly, 80 per cent of cases are taking more than one year to conclude, and that is not a just and fair outcome.
There have been a number of concerns raised by various bodies and stakeholders about these figures. The Law Council in particular has said that there is the need to increase the number and timeliness of decisions as well as to increase the number of appropriately qualified and experienced members, particularly in the migration and refugee division and other divisions. The New South Wales Bar Association took the view that AAT members should have a sufficient level of competence to make the 'correct or preferable administrative decision'. The Bar Association also described the negative impacts that cascaded from members lacking relevant expertise. So, while there are certainly some changes that have been highlighted by specialist bodies and sectors, it is still not clear as to why the Attorney-General is suggesting that the entire AAT regime be ripped up and a new body put in its place.
The other major change within this legislation is the re-establishment of a body called the Administrative Review Council, its task being to monitor and provide advice to the government in relation to Commonwealth administrative review. Whether that is just a symptom of a desire for larger government, or a body that will provide sound advice and will be an important part of the administrative law regime remains to be seen. I think we should wait to hear what the Senate inquiry has to say about that.
I sat on the House of Representatives Standing Committee on Social Policy and Legal Affairs. We adopted an inquiry into this legislation on 14 December 2023 and we were required to present that report to the Attorney-General in February 2024. That was, of course, right over the Christmas period. Although the recommendations of the committee overall were that the legislation be supported, the coalition comments were that, while we did not provide dissenting comments, we—I and the other coalition member the member for Menzies and Mr Conaghan—said we strongly believe that such a large change to Australia's system of administrative appeals needs in inquiry where stakeholders from across the board are given ample opportunity to express their views. That was in the context of only one day of public hearing into what is a significant change to our whole system of administrative law.
To conclude, administrative law is a tenet of our legal system but, based on the current delays and backlog of cases, it is appropriate that consideration is given to the way that the tribunal functions. However, it is unclear why this legislation was rammed through a House committee process and why it is now being rammed through parliament when it has been referred to a Senate inquiry. I would say that the most appropriate thing is to wait until July and consider the comments from the Senate inquiry.
18:48
Ms STANLEY
265990
Werriwa
I rise to make my contribution the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023. The Administrative Appeals Tribunal was established in 1975 by former attorney-general the Hon. Kep Enderby QC. It was the Whitlam Labor government that acted to address the growing problem of the review of administrative law. As the former attorney-general bluntly said, it was an area of confusion where lawyers rarely went and only fools entered. The problem was that, as governmental discretionary powers and responsibilities expanded, there was not a similar development of mechanisms for independent review. There were various review tribunals created, but none providing the coordination and efficiency that were desperately needed.
As expected, it was a Labor government that sought to reform a messy system and to instead create what the then attorney-general outlined as a system of rational dispensation of justice. He spoke of the AAT as a significant milestone in the development of administrative law in this country, providing the machinery to ensure that persons are dealt with fairly and properly in their relationships with government. It's a great shame, then, to see what the former government's stewardship had wrought on the AAT. By appointing as many as 85 former Liberal MPs, candidates, staffers and other Liberal associates without any merit based selection process—including some individuals with no relevant experience or expertise—the former government fatally compromised the AAT, undermining its independence and eroding the quality and efficiency of its decision-making.
The Albanese government inherited an AAT that is not on a sustainable financial footing, is beset by delays and an extraordinarily large and growing backlog of applications, and, furthermore, is operating multiple ageing electronic case management systems, a legacy of the former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. These mistakes and inactions have come at a very real cost to the tens of thousands of people who rely on the AAT each year to independently review government decisions that have a major and sometimes life-altering impact on them. I've spoken with many constituents over the years who've felt that they have been left in a state of perpetual limbo due to these delays, on issues ranging from the NDIS to immigration. So often, I hear that it is the uncertainty that people find the hardest and that any outcome, one way or another, would be preferable to waiting years for a decision.
So now, just as in 1975, it is a Labor government that has come to the sensible decision that significant and true reform is required, rather than trying to repair what has become a deeply flawed system. In late 2022, the Albanese government announced its decision to abolish the Administrative Appeals Tribunal and replace it with a new federal administrative review body. The new body will be called the Administrative Review Tribunal. The Attorney-General commenced consultation for the design of the new body early in 2023. The government intends that the tribunal will commence operations in 2024, subject to the timing of the passage of these bills. An appointment process for members of the ART is already underway. The government has also made it clear that the AAT cases that are currently in progress when the AAT is abolished will be transitioned to the new body automatically. The Attorney-General's Department is working with the AAT and government agencies and any other stakeholders to identify and plan practical steps required to implement the reform following the passage of this legislation.
The Albanese government is committed to restoring trust and confidence in Australia's system of administrative review, beginning with the establishment of a new administrative review body that is user focused, efficient, accessible, independent and fair. We will endeavour to ensure that people are dealt with fairly and properly in their relationships with government. To that end, a central feature of the new body will be a transparent and merit based selection process for the appointment of the non-judicial members. This is in stark contrast to how the former government operated.
The ART Bill builds on 50 years of experience, learning and broad consultation to establish a tribunal that is user focused, efficient, accessible and fair. The ART Bill implements all three recommendations from the Senate Legal and Constitutional Affairs References Committee's review into the performance and integrity of Australia's administrative review system. It also implements four recommendations from the Royal Commission into the Robodebt Scheme and the government responses to two recommendations from the Rapid Review into the Exploitation of Australia's Visa System.
The tribunal's objective will be to provide an independent mechanism of review that is fair and just; resolves applications in a timely manner with as little formality and expense as is consistent with reaching the correct or preferable decision; is accessible and responsive to the diverse needs of all parties; improves the transparency and quality of the decision-making; and promotes public trust and confidence in the tribunal. It will achieve these objectives by incorporating some key features. There will be a simpler and more consistent process and an emphasis on non-adversarial approaches to resolving applications. It will have a suite of powers and procedures to respond flexibly to the changing case loads and help resolve cases more efficiently and effectively.
It will have a simple membership structure with clear qualification requirements and role descriptions for each level of measurement. There will be clear and delineated roles and responsibilities for those who hold leadership positions in the tribunal, including for the president and the principal registrar. It will have a transparent and merit based appointment process for members, informed by the operational needs of the tribunal, to ensure only the highest quality members are appointed to these important roles, and it will have powers for the president to manage performance and to conduct professional development and review of members.
The ART Bill also has a mechanism to identify, escalate and report on systemic issues in administrative decision-making, including through the re-establishment of the Administrative Review Council. The council will monitor the integrity of the Commonwealth administrative review system, inquire into systemic challenges in administrative law and support education and training for Commonwealth officers in administrative decision-making and law. This will implement recommendations 20.5 and 23.4 of the robodebt report.
The bill also establishes for the first time a guidance appeal panel within the tribunal to resolve matters raising systemic issues and review tribunal decisions that may be affected by error. The guidance and appeals panel would provide a mechanism for escalating significant issues and addressing material errors in tribunal decisions. This would promote consistent tribunal decision-making and rapid responses to emerging issues both within the tribunal and from government departments and agencies.
The bill also establishes the tribunal to publish any decision subject to de-identifying and redacting sensitive information and requires it to publish all decisions involving significant conclusions of law, with implication for Commonwealth policy or administration. I note that the amendments that have been introduced ensure the publication of de-identified decisions that can proceed by amending secrecy positions in family assistance law. This will implement recommendation 20.4 of the robodebt report—but for all decisions not just social security decisions.
The consequential and transitional bill repeals the Administrative Appeals Tribunal Act 1975, to be replaced by the tribunal established by the ART Bill. It amends 138 Commonwealth acts, covering 93 per cent of the AAT's current case load, to ensure the existing legislation operates as intended for the new tribunal. It updates hundreds of references across the Commonwealth statute book, streamlining the various regimes that currently apply to reviews of matters in the tribunal. In particular, this bill retains the essential modifications to the operation of the merits review framework for tax and charity matters, which ensures the workability of these frameworks, protects tax revenue collection and otherwise upholds longstanding core tax principles and practices.
The bill abolishes the Immigration Assessment Authority and harmonises provisions relating to the reviews of migration and refugee decisions, providing a broader suite of tools for efficient and effective resolution of these matters. This bill will also adjust the exhaustive statement of the natural justice hearing rule for migration and protection matters so that it continues to codify matters relating to notification, non-disclosable information and requirements on what information must and must not be put to an applicant for comment before certain powers are exercised. This enables flexibility for the tribunal to reduce delays and backlogs in migration and refugee matters, increases fairness for genuine applicants and maintains the integrity of the migration system.
The bill continues existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent approaches. It further maintains merits review for two separate bodies, as a unique feature of veterans' entitlement law, with matters reviewed in the Veterans' Review Board continuing to be appealable under the ART. The bill promotes consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Bill.
The consequential and transitional amendment bill also contains measures to give effect to the transition from the AAT to the ART. This includes transitioning the tribunal's active, pending and potential case loads, including matters currently before the courts, to minimise disruption and maintain review rights. The bill contains conditions for certain AAT members to transition to the ART and sets out arrangements for certain members who don't.
The Albanese government has made a commitment to restoring integrity and faith in governmental systems and administration. The ART is another prime example of Labor making the necessary reforms to ensure that Australians have an appeals process that is user focused, efficient, accessible, independent and fair. And that is what the constituents of Werriwa really want. When they go to the AAT they expect to have an answer quickly and an answer they can be sure of. Further to that commitment, there will be a statutory review of this legislation approximately five years from the commencement of the bill, ensuring the ART remains fit for purpose into the future. I commend the bill, and the associated bills, to the House.
19:00
Dr SCAMPS
299623
Mackellar
I rise today in support of the Administrative Review Tribunal Bill 2023 and the associated bills. This bill will establish a new administrative review tribunal to replace the abolished Administrative Appeals Tribunal. I congratulate the Attorney-General and his team, and welcome the work they have done to both strengthen the integrity and improve the efficient functioning of the review tribunal. It is one of the most important institutions underpinning our democracy.
A welcome aspect of the new ART is that it re-establishes the Administrative Review Council. This council was abolished in 2015 under the Abbott government. The function of the Administrative Review Council will include monitoring the integrity of the Commonwealth administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision-making and the law system. It is an important body.
Like the old Administrative Appeals Tribunal, which was established in 1976, the ART will conduct merits reviews of administrative decisions made under the Commonwealth laws, including decisions made by Australian government ministers, departments and agencies. This means that when people feel the government has made a decision affecting them that is wrong or not fair they can apply to the tribunal for a review of that decision. Such a review takes all the facts into account and does so from the perspective of the original decision-maker.
However, I also rise today to call for crucial amendments to this bill that ensure the integrity and competence of the new ART cannot be easily compromised by allowing the door to remain open for future jobs-for-mates style appointments. I am concerned that the proposed appointments process for members to the new tribunal as proposed in this bill is not adequately independent or robust, as it remains at the discretion of the minister.
Section 209 of the bill reads:
The Minister may, from time to time, establish one or more panels … of persons to assess a candidate or candidates for appointment as a member.
Hardly a watertight, independent appointment process. Let's not forget it was the exploitation of the appointments process by previous ministers that led to the Administrative Appeals Tribunal being stacked with cronies and needing to be abolished.
As currently drafted, there is nothing in the Administrative Review Tribunal Bill 2023 which would prevent appointments to the ART from being misused for political purposes or cronyism in the future, in the same way we saw happen with the AAT. The good news, though, is that, in partnership with the Centre for Public Integrity, I have already done a lot of the work to address this incredibly significant issue. The Centre for Public Integrity has deep expertise in the integrity of Australia's political system.
In February 2023 I introduced a private member's bill, the Transparent and Quality Public Appointments Bill 2023—otherwise known as my ending-jobs-for-mates bill. This bill aims to transform the process of appointments to major Commonwealth positions by making it far more independent of political influence. Underlying my ending jobs for mates bill was the critical and urgent need to restore the public's trust in our democratic processes and institutions after a decade of cronyism and political appointments that eroded that trust.
In this term, the new government has made some very significant steps to boost the integrity of our political system. These include the establishment of the National Anti-Corruption Commission and the abolition of the Administrative Appeals Tribunal. As mentioned, the abolition of the Administrative Appeals Tribunal was necessary because the independence and competence of that institution had been too deeply compromised by political appointments in recent years. This was a highly significant decision as the AAT was a crucial pillar of our democracy, tasked with holding governments and departments to account by reviewing their decisions.
It is this ART Bill, which we are currently debating, that will establish the AAT's replacement institution. Unfortunately, this ART Bill, in its current form, does little to address the very flaw which resulted in the demise of the Administrative Appeals Tribunal. The bill lacks a mechanism to ensure the independent assessment of candidates for important ART roles or any transparency mechanism to give confidence in that assessment and selection process.
My ending jobs for mates bill would ensure that all major Commonwealth public appointments were made within such an independent and transparent framework. The bill would legislate a public appointments commissioner and departmental independent selection panels, which would be overseen by a parliamentary joint committee on appointments. The oversight committee would not have a government led majority, guaranteeing independence from the government of the day. Under my ending jobs for mates bill, a degree of ministerial discretion would be maintained, as this is an important element of our Westminster system of government. So the final decision regarding a successful candidate would remain with the relevant minister; however, the minister may only choose from a shortlist of candidates approved by the independent selection panel. Such a framework would ensure that key positions in our democratic institutions are filled through an independent, transparent and expertise based appointment process. Not utilising an independent assessment panel for appointments to the ART will see it beset by the same fatal flaw which resulted in the abolition of its predecessor. I refer to my ending jobs for mates private members bill today to demonstrate that introducing amendments that embed an independence requirement into the ART appointments process is straightforward if there is the political will to do so.
What does the government's ART bill propose for appointing members, and how is it inadequate? The bill, as currently drafted, says that the minister may establish assessment panels to assess candidates for appointment, but they are not required to do so. Additionally, there is no requirement for the minister to act on the advice of any panel if they choose to establish one, nor is there a requirement that the minister report to parliament if they choose a candidate that the assessment panel did not recommend. The use of selection panels in the current proposal for ART appointments is entirely discretionary and therefore cannot be relied upon to ensure independence in this selection process.
In summary, there are a number of steps lacking in the process for appointments to the ART for it to be independent and transparent. As set out in the draft of this bill: it lacks any specificity on the requirement to advertise positions; it lacks a clear definition of merit; it lacks a mandated requirement to involve assessment panels in the selection process; it lacks a requirement to appoint from a shortlist of candidates as proposed by an independent panel; and it lacks a requirement to report to parliament if the minister selects a candidate not approved by an independent assessment panel.
Since introducing my ending jobs for mates bill in February 2023, I have sought to negotiate amendments to other government bills, which would have established independent selection processes for major appointments under those bills. Examples include: the Infrastructure Australia Amendment (Independent Review) Bill 2023, the Parliamentary Workplace Support Service Bill 2023, the Jobs and Skills Australia Amendment Bill 2023 and the Safeguard Mechanism (Crediting) Amendment Bill 2022. Each time I have proposed these amendments and sought to negotiate them with government, the government has relied upon the existence of merit provisions in each piece of legislation as the basis for rejecting my amendments. Each time I have explained that there is a difference between merit and independence. Merit, of course, is critical. We must ensure that these important positions are filled only with the highest calibre of applicants with expertise in the relevant fields. But a candidate could fulfil that requirement, and have the right qualifications for the job, but also have been the best man at the minister's wedding or could take summer holidays with them. Ministers could, hypothetically, hand-pick well-qualified friends for a role and then be in a position to have significant influence over them in the execution of their duties. Merit and independence are not the same thing.
When the Attorney-General announced the abolition of the AAT in December 2022, he stated:
The AAT's public standing has been irreversibly damaged as a result of the actions of the former government over the last nine years.
Analysis by the Australia Institute found that up to 40 per cent of appointments to the AAT under the Morrison government were jobs-for-mates-style political appointments. However, this bill, in the way it is currently drafted, will not prevent this happening again. It is clear there is a problem that requires a solution. To fail to address this problem in the new Administrative Review Tribunal would be to make the very same mistake that caused the AAT to be abolished in the first place and has cost the taxpayer a huge sum. Right now, we have the opportunity to learn from this mistake and to rectify it. The question remains: why would the government take the extraordinary step of abolishing one of the Commonwealth's most crucial democratic institutions because its appointments process was faulty and flawed, only to replace it with a new institution which suffers the same flaw? It simply does not make sense.
The solution to genuinely end the jobs-for-mates culture that has pervaded federal politics in recent years is simple: my 'Ending jobs for mates' bill, or a similar framework in relevant legislation. The process it establishes would be effective, cheap and not difficult to implement. The National Anti-Corruption Commission is tasked with investigating alleged corruption after it has occurred. However, parliament should strive to strengthen the integrity infrastructure of our democracy wherever possible, in order to prevent the erosion of our democracy from occurring in the first place. To not legislate a mandated, independent appointments process in the new ART would be to leave a critical pillar of our democracy weakened and vulnerable to distortion and political influence.
To summarise, this bill to create a new administrative review tribunal needs to include the provision that, when new members are being appointed to the tribunal, an independent assessment panel must—not just 'may'—be used. This provision needs to be legislated to ensure it happens. Prior to the 2022 election, the Albanese government promised to rebuild trust in the integrity of our democracy and democratic institutions. Without a mandated and legislated independent selection process for the ART, in this instance the government would be failing to do this.
19:13
Mr RAE
300122
Hawke
I am grateful to the House for the opportunity to provide some comments in relation to these bills, the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, and to speak with specificity to the role of administrative review within our democracy more broadly. I want to talk, first and foremost, about that role of an administrative review body—the importance of it, why it's important, to whom it is important and some of the basic principles that are required in order for it to perform its function, in a theoretical sense, most efficiently. I want to then move on to the historical Administrative Appeals Tribunal, the AAT, and the dysfunctions that have beset that body—the challenges it has faced both structurally and culturally which have meant that it has not been able to serve its purpose for the Australian people as it should. Then I want to move on to the subject of these bills, the Administrative Review Tribunal, and talk about many of the structural elements of its establishment that will go a long way towards addressing those fundamental issues around the confidence that the Australian public can have in the process, and indeed the body that conducts that process.
As some of my colleagues have noted, the fundamental role of an administrative review body is to provide a merits based review process for matters of administrative decision-making across or adjacent to government. That means the body isn't necessarily tasked with re-examining the technicalities or particulars around any particular case on which a decision is being made, although it does have some purview in order to explore those important factors. Rather, a merits based review allows for a higher-level re-examination of the process itself and indeed its implementation in terms of that decision-making process. The reason it is so critically important is that this is a process, and a body that upholds that process, that provides for public with confidence in broader public administration and in the very institutions of our democracy that our government and our community rely on, on a daily, weekly and annual basis, in order for government to function efficiently and effectively.
It is something of a safety net that acts to ensure the fairness of the process, including in terms of its design, in that the process is fit for purpose, that from some historical point at which a process might be made it remains fit for purpose as circumstances evolve over time. Indeed, I think the bills before us and the Administrative Review Tribunal that will be established will go some significant way to improving that feedback loop, It's also to ensure that the current process is implemented in a fair and proper manner and is in many ways consistent with the expectations of the community, whom ultimately these processes are supposed to serve.
These merits based reviews also have a role particularly in serving parts of our community who have a higher need, who are engaging with government and public administration in a particularly critical way. It particularly serves the interests of those who face broader structural disadvantage, and ultimately those are people who are more likely to be engaging with public administration; they are more likely to be subject to the decision-making of public administration. They from time to time have less power in terms of understanding, engaging with or challenging decisions of public administration. Ultimately the impacts of those decisions may be more critical to the lives, the health and the prosperity of communities that face structural disadvantage.
I look at my own community and at the parts of my community that face structural disadvantage. They are engaged on a regular basis, whether through the Centrelink system, the NDIS system or a whole range of other government systems, in the process of making application, having their circumstances reviewed through those processes and having a decision issued to them, without necessarily having an absolute understanding of that decision-making process itself, and sometimes without recourse to challenge that decision through other legal mechanisms, for example. So an administrative review body provides this critical safety net in terms of ensuring fairness both in terms of the process itself and its implementation in the decision-making processes.
On the Administrative Appeals Tribunal, we know that there have been profound dysfunctions with the AAT. As this has been discussed throughout the debate, I don't want to go over it too much. I will say that there are many decent people of various political persuasions who have worked very hard to uphold the principles of an administrative review body through their work on the AAT, and we need to be cautious in our comments and indeed pay tribute to those people, some of whom are from a political background and some from other diverse backgrounds, who have worked diligently in that space. I don't wish to make this a partisan point. There have been many people from a range of diverse backgrounds who have made profound contributions in that space and who have worked tirelessly to serve our community through their work on the AAT. It is important that it be registered and indeed acknowledged that there are many people who fit into that category.
However, unfortunately, under the former government, and particularly former prime minister Morrison, the very good work of many very decent members of the AAT was seriously compromised by a range of appointments that, frankly, were not consistent with the community expectations of public administration appointments. As I said, some of my colleagues have already discussed the fact that 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates and mates around the place were appointed to this body in quick succession, and that, ultimately, they were appointed without a transparent merits based appointment process. I want to be clear: I'm not saying for a second that all of those appointments were without merit; what I'm saying is that the process of appointment failed to provide public confidence around the meritocracy of those appointments, and that was a fundamental failure of administration. As a result, the public lost confidence in the AAT and its membership.
The very unfortunate thing about this is that for very many—and I would suggest that it was probably a majority—of those people who were working so diligently within the AAT, the failure to ensure public confidence in that appointment process polluted the well for everybody. I feel for many of those members and staff of the AAT who did work diligently and who were passionate about upholding community expectations through that work that the former government's absolutely abhorrent process around appointments has left them in an awkward, uncomfortable and unreasonable position in terms of the question mark that is hanging over the legitimacy of that institution.
As a result of that, or certainly sitting alongside that, we have a whole range of broader dysfunctions that have been occurring within that tribunal environment. For me, they are summed up by the idea of the sustainability of such a tribunal. We've got issues around the financial sustainability of that tribunal. We've got some very profound issues around the ability of that tribunal, as it was previously constructed, to manage its own case load, to manage its own information control. We've got to remember that this is an organisation that is dealing with some very sensitive information, some very sensitive matters and, in some cases, some very vulnerable people. For an organisation like that to lack the ability to manage its own case load, certainly in a way that was consistent with the community's expectations, created a contingent risk. That risk grew on a daily basis as that organisation fell further and further behind in terms of its ability to manage the case load, manage the information and, indeed, support the members of the community that were relying on it so heavily to ensure fairness in these matters that were so critical to them.
Ultimately, where that left us, as I said before, was at an absolute collapse in public confidence in the AAT—a collapse in the public's confidence in the AAT's abilities to perform its duties, to ensure fairness; in the system design, the process design and in its implementation; and, of course, fairly or unfairly, in the individuals who were responsible for implementing that process in the AAT. These bills are designed to restore that public confidence.
This is a critical institution of our democracy, and it is even more critical because it is fundamental to maintaining public confidence in other institutions of our democracy. It is an enabling institution, in some ways. This is why the creation of the Administrative Review Tribunal, as is laid out in these bills, is so critically important.
There are some fundamental elements of the forthcoming Administrative Review Tribunal that will be fundamental departures from how these matters have been handled historically in the AAT environment. Obviously the first one here is an absolutely transparent, merit based appointment process—one that should not maintain, introduce or perpetuate any bias, in terms of politics or political persuasion in the appointments. I dare say that there will be appointments to the Administrative Review Tribunal—and I'm quite confident that I won't be in a position to necessarily provide my views on them—of people from political backgrounds, as a small subsection of what should be a much broader, representative group of people from across our community who are diverse in terms of their backgrounds, their contribution and their capacities. I dare say that we will see a much greater diversity in the appointments. And, as I said, transparency and merit based appointment will be critical to achieving that greater outcome. That will ensure that the public can have confidence in the people who sit on this Administrative Review Tribunal.
The structure of the tribunal will be based on a series of recommendations that have come down as a result of a range of other non-partisan processes, both across the parliament and outside of it. These include the three recommendations from the Senate Legal and Constitutional Affairs References Committee's review of the performance and integrity of Australia's administrative review system; the four recommendations from the Royal Commission into the Robodebt Scheme; and indeed the government's response to the two recommendations from the Rapid Review into the Exploitation of Australia's Visa System, amongst others. So these are critical recommendations that have been handed down after careful and considered review. They will be incorporated into the design of this body. We will have a transparent, merit based appointment process and a structure that is consistent with public expectation in regard to the Administrative Review Tribunal, ongoing. I commend these bills to the House.
19:28
Dr HAINES
282335
Indi
Imagine you've just been told that your Centrelink payments will be cut due to a technical change in eligibility. But this can't be right. You're convinced that the changes don't apply to your situation. You've read up on the rules, but it's so technical and hard to understand that you're hopelessly overwhelmed. You call Centrelink but can't get any answers, and your internal request for review goes nowhere. You don't know what to do. Without this extra money you'll struggle to pay your rent, which has already increased twice in the past few years. And, if these payment changes go through, you might have to start cutting down on food and cancelling that excursion for one of your kids.
Stories like this are common across Australia. Every day, the government makes thousands of decisions that impact Australians, and sometimes it gets it wrong. In areas like child support, social security, migration, the NDIS or tax, these decisions can have life-altering consequences. Whether decisions are made in error or by maladministration, it's an absolute cornerstone of our democracy that people have the right to review government decisions that affect them.
Debate interrupted.