Anne Stanley (Werriwa, Australian Labor Party) Share this | Hansard source

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.

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