Kylea Tink (North Sydney, Independent) Share this | Hansard source

While I am the first woman to represent the electorate of North Sydney, I'm not the first Independent. Like many in my community, I'm proud that Ted Mack, the father of the Independent movement, once represented us.

A renowned advocate for greater transparency and accountability in government, Ted famously offered the following quote:

… government should be totally open to public scrutiny and elected representatives should enable people to not only participate in all decisions that affected them, but to ultimately find ways to have people make decisions for themselves … the very basis of democracy is that a decision taken by the public as a whole would be right more often than decisions taken by an elite group …

It is through this lens that, along with members of my community, I have reviewed 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.

Australia's administrative review system provides protection for individuals from unfair use of public power, and it's essential for public confidence in government. Sadly, the current Administrative Appeals Tribunal, known as the AAT, is plagued by inefficiencies and failures. After years of abuse, this package of reform provides a much-needed opportunity for the government to rebuild public confidence in this process. Theoretically, we should all welcome this reform. It is the result of long-term advocacy from many across our communities. Yet there remain inconsistencies and challenges in the package that, without change, will continue to condemn people seeking redress under the AAT for visa or citizenship issues by ensuring that they know that to be a noncitizen is to be second-class in this country. These issues could be addressed through modest changes in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, and these changes would strengthen the overall system by ensuring all people are treated equally under the law. For this to happen, this government must show they are prepared to do more than pay lip service to the very principles of international human rights law and show courage to lead us to a better place.

For over three decades now, the mistreatment of refugees and asylum seekers in Australia has tainted our international human rights reputation. Noncitizens, including those seeking asylum, refugees and the stateless, experience structural exclusion and intersecting barriers to accessing justice immediately upon entering Australia. These barriers include the impacts of trauma, language barriers, mental health issues, financial distress and cultural differences. In the pursuit of equality before the law, any reform to the administrative review in our country must account for this and ensure all applicants can equally access a fair and just review process.

While these bills have the potential to pave the way for a fairer and more efficient operation of Australia's administrative review system, in their current form they do not achieve that outcome. There are positive changes to be welcomed in them. They include the implementation of an independent merit based process for appointment and reappointment of members; the re-establishment of the Administrative Review Council; and the abolishment of the Immigration Assessment Authority and the fast-track process. In particular, the implementation of an independent merit based process for appointment and reappointment of members is welcome, as the previous process had become highly politicised, with the governmental politics of the day exerting far too strong an influence on the decisions of those appointed to the AAT. In fact, data from the Kaldor Centre Data Lab reveals the policies of the political party of government at the time a tribunal member was first appointed to the AAT had a significant effect on the outcomes of their decision-making in protection visa cases in particular. Ultimately, the new system should encourage applicants who have the relevant knowledge, skills and expertise for such a position to apply with confidence, knowing that any lack of party connections will not be a hindrance to their potential employment.

Complementing this reform is the introduction of the Administrative Review Council. This body will contribute to the independence, transparency and accountability of the new system. If done well, it could play a key role in reviewing complaints about members and in collecting and analysing data on the operation of the tribunal.

Further, the abolition of the Immigration Assessment Authority and the fast-track process will see an end to a system that is cruel, inefficient and heavily politicised. Both were established to allow a review of the refugee status determination decisions made under legislation passed to deal with what is known as the legacy caseload of asylum seekers who arrived in Australia as unauthorised maritime arrivals between 2012 and 2013. But both failed in their duty to provide fair and effective review of asylum applications, with little done to expedite or resolve the legacy caseload. In February 2023 over 12,000 cases remained unresolved. In truth, many of the people refused under the fast-track process are indeed refugees with strong claims for protection, but they have not received a fair, thorough or robust assessment from the IAA. I echo calls, then, for this government to introduce a policy to ensure that those previously refused under the fast-track process receive a fresh review. I also reiterate my calls for a royal commission into our offshore processing of asylum seekers. At some point we must turn a light on this long-term government policy, to not just hold to account those who've been instrumental in the destruction of literally thousands of lives but also ensure past mistakes are not repeated. Ultimately, while these bills seek to strengthen integrity and improve accessibility to the ART, I hold serious concerns that they fall well short of that goal.

The design of this legislation means that many of the benefits being introduced broadly will not apply to the Migrant and Refugee Division. Indeed, the Administrative Review Tribunal Bill maintains the carveout of a separate, more restrictive procedural code for the Migration and Refugee Division in the Migration Act 1958. The decision to retain this code undermines a lot of the good this legislation could do as it creates a disparity in the treatment of migrant and refugee applicants compared to applicants generally, preventing them from equality under the law. This just seems incomprehensible when viewed within the self-described ambition of this reform to establish a unified, cohesive tribunal with flexible powers and procedures that best meet the needs of applicants.

This tribunal is intended to play a vital role in protecting the rights and interests of members of our community. It will be required to pursue that objective by providing administrative review that is fair and just; resolves applications in a timely manner; is accessible and responsive to the diverse needs of people involved; improves the transparency and quality of government decision-making; and ultimately promotes public trust and confidence in the tribunal. Yet, the carveout of separate and more restrictive procedural codes for migrant applicants contradicts these very principles. The justification for such a carveout is on the grounds of efficiency, and it is true that the AAT has historically faced a major struggle in processing the backlogs of migration and refugee applications. But, rather than what is currently proposed, these applicants have incredibly high needs that require dedicated measures to improve accessibility not carve out and hinder them. This differing treatment of some is not reflective of meeting diverse needs; rather, it is discriminatory.

As evidenced in the Refugee Advice and Casework Service submission to the inquiry on this bill, migrant and refugee applicants typically experience barriers to accessing justice that others do not. In this context the distinction between citizen and noncitizen releases the ART from obligations to comply with procedural fairness for all. Ultimately, the shortcomings of this separate procedural code can be broken down into three core areas. The first of these is the inconsistency in the time limits for migrant applications. Where this legislation generally allows the ART to extend the period during which an applicant may apply to the tribunal for review of a decision, it provides that this time extension does not apply to reviewable migration or protection decisions. The only other options available to these applicants would be to apply for a judicial review in the Federal Court or to seek the exercise of the minister's non-reviewable, non-compellable discretion. Both channels are currently overwhelmed and come at a significant cost in terms of time and resources.

The second shortcoming is the codification of the natural justice hearing rule for migrant and refugee matters, which when compared to the common law approach for others does not make sense. In fact, it significantly increases the resources required by the tribunal's members and staff, including additional training. Thirdly, it should be deeply concerning to all of us that this bill retains provisions that restrict the right of migration applicants to be represented. I cannot be clearer when I say that the exclusion of legal representation for migration and refugee cases in contrast to all other cases at the ART is wrong. People with migrant and refugee applications are often unaware of the legal requirements of their appeal and often need assistance to explain their case to a decision-maker. The lack of support for migrant and protection applicants in accessing legal assistance and representation is not only bound to hinder the success of the case; I believe it is morally corrupt.

Unhindered access to legal assistance for migrant applicants needs to be brought into line with others generally in the ART. At the same time, there needs to be adequate funding so that applicants who cannot afford legal assistance and representation are able to do so. Ultimately, my community joins me in arguing that the substandard treatment of migrant and refugee applicants is neither fair nor just, and we must do better. For these reasons, I will be moving a second reading amendment to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 when it is brought forward at the end of this cognate debate.

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