Sam Rae (Hawke, Australian Labor Party) Share this | Hansard source

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.

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