Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Hansard source

The last annual report tabled before the Attorney announced his attack on the AAT, the 2021-22 annual report tells the story of a body meeting or exceeding its benchmarks. The user satisfaction rate to 30 June 2022 was 74 per cent, above the target of 70 per cent. That is quite extraordinary when you remember that the users are the people who bring a case before the AAT and who, in many cases, will be dissatisfied with the final result of their case. It continued to outperform that target in the 2022-23 financial year.

Now let's look at some of the other measures of the tribunal's performance. In relation to the decision-making quality, the 2021-22 proportion of appeals allowed by courts was below the benchmark of five per cent. In that same year, just 1.3 per cent of appeals were allowed from all appealable decisions. To put it more concretely, in 98.7 per cent of cases that went before the AAT in that year the matter was resolved in the way that the AAT said it should be resolved. It continued to outperform that target in the 2022-23 financial year.

In relation to transparency, in the final year to 30 June 2022, the AAT exceeded its performance benchmark of 5,000 decisions published. It continued to exceed that benchmark in the 2022-23 financial year.

In terms of clearance ratio, in the 2021-22 financial year, the AAT fell just short of its target primarily due to jump in post-COVID lodgements. Having been at a 119 per cent clearance ratio before the year 2021-22, it subsequently 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 that are lodged.

In terms of output, which means the number of AAT applications and referrals finalised, in the year 2021-22, the AAT reached 90 per cent of its target. This was despite continued disruptions associated with the COVID-19 pandemic such as lockdowns and other restrictions, which affected our operations in various locations during the reporting year. In 2022-23, after the pandemic, the output target was reduced, and it met the targets.

It was by no means a perfect body, with the timeliness of the decision-making remaining a concern. As we here on this side have said, we are not opposed to improvements in this area. But these are not the performance measures of a body for which the only reasonable course of action is to abolish that body.

Before concluding, it is worth putting a few things on the record in relation to the sham process that the government has adopted in relation to these bills. These three bills, 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, deal with a system that provides merits review under more than 400 pieces of Commonwealth legislation. There are interactions across the entire Commonwealth statute book that reach into virtually all portfolios. These changes that are being debated today impact on matters ranging from veterans' entitlements to FOI to small-business taxation and visa decisions. We are looking at 678 pages of new primary legislation, with 631 pages of explanatory material. This week, we are being asked to vote on a bill establishing an entirely new administrative review body, plus 33 schedules of amending legislation. There are consequential and transitional provisions that make changes across something like 248 Commonwealth acts, and the decisions that we make here today during this debate will directly affect 67,000 cases that are currently on foot before the AAT.

But, extraordinarily, we are in a position where we are being asked to pass these measures when the government's own legislation drives home the point that we cannot be certain this legislation is right and correct. The second consequential and transitional measures bill makes changes to the ART Bill. That's right: the government has already introduced amendments to the centrepiece of its own reform efforts. It doesn't make sense. The Attorney must have been distracted when he was finalising that legislation, because, just two months after introducing his primary legislation and before a single committee hearing had taken place, he introduced changes to the bill. These changes do not go to minor, inconsequential issues; they concern the way that the tribunal will deal with preventive detention orders in terrorism cases. In effect, the Attorney-General is admitting to unforced errors. It is a powerful indication that the ART Bill was not quite right, not quite correct or not quite finished when it was introduced. This reinforces our point that you shouldn't simply wave these sorts of things through without scrutiny, because if the Attorney-General is telling us that these two swings are needed then what else has he missed?

But it's not just us saying that. Let's look at the process and how we got to this point. Shortly after Christmas, the first two bills in this package were referred to the House Standing Committee on Social Policy and Legal Affairs, which gave stakeholders just a few short weeks—over the Christmas and New Year break, mind you—to make submissions. Many simply couldn't meet that time frame. The Law Council of Australia, Australia's premier representative body for the legal profession, had to ask for an extension. Here's what the Law Council of Australia said about the Attorney-General's abuse of the parliamentary committee process:

Whilst the Law Council is pleased to have obtained an extension to 2 February 2024 to lodge its submission, it remains very concerned that the Committee's truncated inquiry period will undermine or diminish the democratic and proper scrutiny of the Bills.

The Attorney-General should have taken this more seriously. When the legal profession is telling him that he is undermining the democratic and proper scrutiny of these bills, that's a very serious allegations and needs to be taken notice of. The Law Council went on to dismiss any arguments about urgency:

It is understood that the Commonwealth is seeking to establish the Tribunal as a priority, having first announced its intention to abolish and replace the AAT on 16 December 2022. However, the Law Council is not aware of any public commitment to establish the Tribunal by a specific date. In the circumstances, the Law Council queries why the Attorney-General has caused these significant Bills to be subject to such an expedited inquiry process.

They called out the 'limited opportunity to engage comprehensively with the bills' and were forced to take the extraordinary step of saying:

… views in this submission must be considered preliminary and subject to change …

Another point to record is that the House committee had just one hearing, for just two hours in total. The only witnesses that the committee heard from were the Attorney-General's Department, the Department of Home Affairs and the Department of Social Services. That's about 40 minutes per department—work that out. Really, is that sufficient time? If you share those 40 minutes per department between the government, the opposition and the crossbench, then you get about 13 minutes on such a serious matter. That's just over six minutes per bill. The committee didn't even look at the second consequential and transitional provisions of the bill. It only looked at two of the three bills that they were debating on that day. Any reasonable observer, I would suggest, would tell you that the House inquiry process was a sham and should not be regarded as an adequate scrutiny process.

Sadly, things are not looking much better in the Senate. You may have thought that the government would have learnt from the Law Council's warning that it was undermining the democratic and proper scrutiny of this legislation, but sadly it seems that this is far from the case. The Senate Legal and Constitutional Affairs Legislation Committee insisted on doing its job and set a time frame for inquiry that would, firstly, allow witnesses a number of weeks to consider and prepare submissions, would facilitate multiple committee hearings so that we as a parliament could take a proper look at whether these proposed changes work and are fit for purpose and, finally, would give the committee time to compile and finalise these reports into three separate bills and hundreds of amendments across the statute book.

The Attorney was furious about the committee doing its job, and we know this because he told us. In an answer to a dixer on 8 February he told us how disappointed he was that the Senate committee had insisted on performing its proper functions, describing it as 'disrupt and delay tactics'. He was angry that the Senate committee had refused to be bullied into cutting short its ordinary parliamentary process. This was despite the very clear warning from the Law Council that a shoddy and rushed process risked undermining democratic and proper scrutiny of this legislation and that there was no tenable basis for a rush. But, having lost the fight on the deadline, it appears that the government wants to ensure that no hearing actually takes place.

So far the government has agreed to just a single hearing, with 3½ hours for all three bills. There is every indication that all attempts to schedule future hearings will be resisted. It is worth illustrating what this means in practice, because the simple reality is that, as it stands, the coalition senators have been given just 10 minutes to ask the disability sector about these three different bills that will affect each and every one of them in the sector. The veteran sector has not been fully heard from at all. We have not heard about the FOIs. We have not heard about small business and their concerns. We have not heard from the countless other stakeholder groups who are directly affected by this legislation.

This is not a process that is being conducted in good faith. We haven't even heard from the Law Council. We call on the government to conduct these inquiries properly and not put this to a vote until those inquiries are completed so that any vote can be informed. The Attorney-General was an advocate for transparency while he was in opposition. Now it's time for him to put that into place and into practice.

I conclude that the coalition will not be supporting these bills in this place if they go to a vote this week, I can tell you that. The process has been a farce, and we are not prepared to sign off on any major reforms without appropriate scrutiny. We will reserve our position in the Senate, and I thank the House.

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