Daniel Mulino (Fraser, Australian Labor Party) Share this | Hansard source

I'm pleased today to rise to speak in favour of 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. These are very important bills that will replace the Administrative Appeals Tribunal with a new and improved Administrative Review Tribunal. This is a very important reform in strengthening and improving the federal system of administrative review and is arguably the most important review of this system in some decades.

Of course, the Administrative Appeals Tribunal commenced operation on 1 July 1976, following a number of important reports, including by the Commonwealth Administration Review Committee in 1970 and the Committee of Administrative Discretions in 1973. The important Administrative Appeals Tribunal Bill 1975 followed.

I want to go back briefly to that bill and, indeed, to the second reading speech of that bill by Mr Enderby, the Attorney-General at the time. What it will show is the reforms that we are debating today really go back to the heart of those seminal reforms in the mid-1970s. In that second reading speech back on 6 March 1975 Mr Enderby said the following:

An inevitable development of modern government has been the vesting of extensive discretionary powers in Ministers and officials in matters that affect a wide spectrum of business and personal life. Unfortunately, this development has not been accompanied by a parallel development of comprehensive machinery to provide for an independent review of the way these discretions are exercised. While there has been established a considerable number of review tribunals of one kind or another under the legislation of this Parliament, these have not developed in any coordinated fashion.

What the Attorney-General at the time was reflecting was the fact that there had been a significant extension in the number of significant decisions that were made that impacted people's lives in a material way, yet the ways in which those decisions were reviewed, the machinery by which those decisions were reviewed, hadn't kept up. The establishment of the AAT was about a number of things. One was to establish a single independent tribunal with the purpose of dealing with administrative decisions on a very wide basis. But it would also be set up as a standing body so that it would be able to deal with decisions as new legislation arose. That's really important because we've seen, in the intervening 50 years, a number of pieces of legislation which have vested in decision-makers decisions in a range of areas that weren't contemplated back in 1975. This was a very important reform back in 1975 and provided, in my opinion, very important protections for people that hadn't been provided up until that point.

I also note, in that speech, given on the introduction of the bill, the Attorney-General at the time made reference to the fact that the members of the tribunal should bring appropriate professional and technical expertise. Of course, that's one of the issues we are dealing with today. The reputation of the AAT and the effectiveness of the AAT had materially eroded under the previous government because it had, in a systematic way, not been appointing people with sufficient technical expertise right across the organisation. That was something identified right from the beginning as central to the effectiveness of the organisation. It's important to go back to that period.

I might also note that not long after the passage of the AAT Act, there was the AD(JR) Act, the Administrative Decisions (Judicial Review) Act 1977. I remember this well, because I studied law at the ANU, and the ANU back then—and I'm pretty confident this is still the case—was renowned for constitutional law and administrative law. Some of the people who taught me law were there at the foundation of these very important acts, the AAT Act and the AD(JR) Act. They taught us about the black-letter law of these acts and also about their importance from a public policy perspective—that these acts were absolutely central as a check on decision-making by ministers, by governments and by bureaucracies. They were in many ways world leading.

There were other reforms in that period, of course. There was the Commonwealth Ombudsman. There were various laws in relation to the Federal Court. I saw a quote from Michael Kirby in an article he wrote in 1989 in which he was reflecting on the AAT Act and the AD(JR) Act. He said that these acts, in combination, were 'probably the most adventurous and far-reaching legal reforms' to have taken place in Australia. From somebody of Michael Kirby's ilk, that says a lot—that these acts are absolutely critical in providing protections to people in our community.

I look at the people in my own electorate, my own community, and at some of the decisions the AAT makes—that it reviews decisions in relation to migration and refugee matters, that it reviews decisions in relation to NDIS matters and in relation to social security matters and veterans' appeals. These are life-changing decisions. These decisions can have an impact on somebody's security of income. These decisions can have an impact on whether somebody stays in the country. These decisions can be absolutely fundamental to people's wellbeing. So, the review of these decisions is just as important, in many ways, as the decision itself. So I reflect upon, firstly, how fundamental it was that Australia was trailblazing back in the 1970s when the AAT Act was passed and when the AD(JR) Act was passed and upon the fact that, as I mentioned earlier, these acts were designed so that they could expand so as to deal with the growing scope of government. And now of course we see that they have grown to include all the various aspects of migration law and to include NDIS decisions. These are critically important.

That's why it's so important that this government and the Attorney-General have responded to what was a serious erosion of the AAT under the previous government. The previous government, as a number of speakers on this side have pointed out, appointed dozens of individuals who had been candidates for the Liberal Party, who'd been elected to the Liberal Party, who'd been political advisers or connected in some other way. Merit based appointments are absolutely central to the effectiveness of a body like this. Merit based appointments rely upon people demonstrating that they have the appropriate qualifications, that they have the appropriate experience and that, in a technical sense, they understand the laws that need to be applied. This is a part of the administrative review ecosystem that had been materially undermined by the previous government over a long period of time.

In addition to that and just as important as the merits based appointment of members is that the previous government had undermined the institution in a systemic way that had been undermining it financially, which was creating serious backlogs and delays. We all know the saying that justice delayed is justice denied, and it is not some kind of cliche; it goes to the heart of the way the justice system affects people. The kinds of backlogs that the AAT was dealing with—not the fault of the individuals who worked there—were a direct result of some of the resourcing and other decisions made by the previous government. So, action was absolutely necessary. That's why it's so important that the Attorney-General has taken the serious, stringent action that he's taken in these bills to turn things around, rectify the situation and take the organisation—what will now be the Administrative Review Tribunal—back to the important vision that was set out by the then Attorney-General back in 1975 and continued in subsequent important related acts. Of course, that is also reflected in the vision of the current Attorney-General. So there is a continuity between the speeches that were made in 1975 and the speeches that are being made today in terms of what this system is there to achieve.

Before dwelling on a couple of the key elements of the bills, I want to reflect on the fact that, in developing these laws, the government has drawn on the knowledge and wisdom of an expert advisory group that is really, in many ways, a who's who of administrative law expertise in Australia. It was led by High Court justice the Hon. Patrick Keane, and it also included Ms Rachel Amamoo, Professor Anna Cody, Emeritus Professor Robin Creyke, Emeritus Professor Ron McCallum, former Federal Court justice the Hon. Alan Robertson, and Emeritus Professor Cheryl Saunders. I note that at least one of those—and probably more—is a former lecturer and professor at the ANU, so I feel even more continuity with my alma mater with what we're seeing here in the chamber today.

There are two bills that I will discuss here, and those two bills in conjunction will set up this new body, which is absolutely critical. The first bill that we're discussing today will set up the Administrative Review Tribunal and the Administrative Review Council, and the second bill that we're discussing today will abolish the AAT and make a series of consequential changes to a number of other acts so that the new arrangements operate seamlessly.

I want to touch on a couple of the provisions—in particular, strengthening requirements for merit based appointment. As I mentioned earlier, this is absolutely critical. The workload of this body has increased substantially since the 1970s. Even in 1976, this body was extremely important, but since then the range of decision-making that it covers has expanded, the number of decisions obviously has expanded and the workload has expanded dramatically, so the number of officers that are needed has also expanded. But, as I mentioned earlier, what we've seen over the past decade is an erosion in the capacity of the organisation to draw upon people with sufficient expertise. It ended up relying too heavily on a smaller and smaller subset of people with the right expertise, so that inevitably led to backlogs and delays. The new arrangements will require the use of assessment panels when undertaking merit based appointment of the president of the tribunal and members of the tribunal—except for the judicial deputy presidents—and the CEO and principal registrar. I think it's critical that these amendments will put beyond doubt the legislative requirement to use an assessment panel as part of the appointment process. As I said, this is going to be very clearly a merit based appointment process for new members of the tribunal.

There are a number of other elements to these bills that are material and that further strengthen the system. There are a number of provisions that provide second review of social services decisions and many other consequential amendments. I won't run through all of those. I simply return to the core theme of my contribution today, which is that Australia should, I believe, be proud of the fact that it led the way in the 1970s with very important reforms of our legal system to provide citizens with greater protection when it came to the exercise of discretion in a range of contexts. As I said, this was reflected in Michael Kirby's comment that these were some of the most consequential laws ever passed in Australia. Today, after a period in which those important reforms have been undermined, we in this chamber have the opportunity to set that right and put things on a firmer footing.

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