Brian Mitchell (Lyons, Australian Labor Party) Share this | Hansard source

I rise today in support of two bills before the House: the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023. I am pleased to have the opportunity to speak on these bills, which represent the most important reform of the federal system of administrative review for decades. This is an important reform and one that is absolutely necessary, considering what the Albanese government inherited from the coalition: an AAT that was not fit for purpose, was not on a sustainable financial footing, was overwhelmed by a large and growing backlog of applications, and was operating multiple and ageing electronic case-management systems, which was a legacy of the former government's bungled amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. Unfortunately, it was an AAT that no longer enjoyed the trust of the Australian community and, frankly, was not taken seriously by government agencies and departments. We saw the devastating consequences of this lack of authority highlighted by the robodebt royal commission, when members of the AAT made hundreds of decisions that the approach to calculating and raising debts under the robodebt scheme was indeed unlawful, but those decisions by those members and their obvious implications were ultimately ignored and buried by the former government.

We know that effective administrative review is critical to Australia's system of government, so one might ask how the AAT ended up in such a state. It's hard to think of a more boringly titled body than the Administrative Appeals Tribunal, but it ended up in such a state. The former government appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process, including some individuals with no relevant expertise or experience.

It's worth noting some of the media commentary from around that time. In 2021, Paul Karp in the Guardian wrote:

A longtime former Liberal staffer on the administrative appeals tribunal (AAT) has quit his role as a consultant to a lobbying firm after Labor uncovered what it labelled a potential conflict of interest.

…   …   …

"It's deeply concerning that one of those appointments, former Liberal staffer Tony Barry, was being paid by taxpayers to review government decisions at the same time as he was being paid as a lobbyist to influence government decision-making."

That was said by the then shadow Attorney-General Mark Dreyfus.

On 15 May 2022, the ABC's Eric Tlozek wrote:

An Adelaide barrister has told the ABC he has been stopped from hearing welfare debt cases at the Administrative Appeals Tribunal (AAT) because he made too many decisions against the government.

Michael Manetta, a member of the AAT since 2016, was removed last September—

September 2021—

from hearing social security cases by the tribunal's new deputy president, Karen Synon.

Members may recall that Karen Synon was a former Liberal senator.

On 16 May, 2022, Katina Curtis wrote in the Sydney Morning Herald:

An anonymous submission to the Senate committee inquiry made by a former AAT member who spent two decades on the tribunal said the change to appointment processes began in 2014. They saw "highly experienced and efficient members ... dumped and replaced by inexperienced inefficient post-2014 members", many of whom they said had no relevant experience or education and some who "didn't know how to save a document in Microsoft Word".

In May 2022, Greg Barns SC, a Tasmanian barrister and former Liberal Party staffer, wrote:

The office of Attorney-General is one that has been tarnished by the Morrison government. Both Christian Porter and Michaelia Cash used it to destroy the independence of the Administrative Appeals Tribunal (AAT) by turning the AAT into a branch of the Liberal Party.

…   …   …

Just how rotten this practice of stacking has become is starkly illustrated by a recent Australia Institute report. It has calculated that while in "the Howard and Rudd/Gillard/Rudd administrations, political appointees accounted for 6 and 5 per cent of all appointees respectively," "during the Abbott/Turnbull/Morrison administration, political appointees accounted for 32 per cent of all new appointments." In the case of the Morrison regime, four in every 10 appointments—

40 per cent—

has been a government supporter or sympathiser.

As a result of this blatant, overt, shocking politicisation, the AAT had become fatally compromised. This politicisation undermined its independence and eroded the quality and efficiency of its decision-making.

The effective and efficient functioning of a review body like an AAT is critical to protecting the rights and interests of individuals and organisations, including the most vulnerable members of our community. Consider the impacts on community members who are seeking independent review of government decisions that have major and sometimes life-altering impacts.

I'll just digress for a moment. Think about how groundbreaking this concept was in the 1970s when it was first proposed by Labor and when, to his great credit, Malcolm Fraser brought into fruition in '77. Think about how groundbreaking the idea was that citizens would have the right to appeal decisions made by executive government and to have those appeals then heard and decided upon not by executive government but by members of an independent tribunal. It's a fantastic concept, and we see it 40-odd years later completely humbled and dismantled by those opposite, from what it should have been into what it has become.

If you politicise an agency to that extent, if you have your party mates dominating that sort of body, how could people before that body have any confidence that they will get a fair hearing? If the vast majority of the people you are before are former senators, members, candidates or staffers of a particular political party, how can you have any confidence that you will get an adjudication that is fair when it may not be in the interests of that governing party? Indeed, this was what Mr Manetta found when it was alleged that he was making decisions that the then government didn't like. He was removed from adjudicating on those matters—removed by a deputy president who herself was a former senator of those opposite.

In decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury or whether a participant of the NDIS receives funding for essential support, Australians need and deserve confidence that they will get a fair hearing.

In my electorate office, my staff and I spend a lot of time helping constituents to access government support, whether that's through Services Australia, the DVA, the NDIS or, sometimes, the AAT. We see firsthand how frustrating and stressful it can be for people when the review mechanisms they are relying on are themselves inefficient, ineffective, inaccessible and inconsistent. To this end, in late 2022 the Albanese Labor government announced its decision to abolish the Administrative Appeals Tribunal and replace it with a new federal administrative review body. I think it's been described by some as the 'nuclear option'—and it's probably the only nuclear option you will ever see on this side of the House! It's a big decision to completely abolish a body as complex as that and start anew, but that's what was required.

The bill before us today implements this commitment to establish a new federal administrative review body, the Administrative Review Tribunal, which will replace the AAT. So the AAT will be replaced by the ART. The establishment of this new administrative review body—which is user focused, efficient, accessible, independent and fair—is a key part of the government's commitment to restoring trust and confidence in Australia's system of administrative review.

The bill is built on 50 years of experience, learning and broad consultation to establish a tribunal that, as I said, is user focused, efficient, accessible, independent and fair. The bill implements all three recommendations from the Senate Legal and Constitutional Affairs References Committee review into the performance and integrity of Australia's administrative review system, four recommendations from the Royal Commission into the Robodebt Scheme and the government response 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 matter, is accessible and responsive to the diverse needs of the parties before it, improves the transparency and quality of decision-making and promotes public trust and confidence in the tribunal. To improve merits review, the tribunal will incorporate features like simpler and more consistent processes, powers and procedures to respond flexibly to changing case loads. It will also help resolve cases more efficiently and effectively.

There will be: a simple membership structure with clear qualification requirements and role descriptions for each level of membership; clear and delineated roles and responsibilities for those who hold leadership positions; and powers for the president to manage the performance, conduct and professional development of members. In stark contrast to the former government appointing as many as 85 of its mates to the AAT without any merit based selection process, a central feature of the new body will be a transparent and merit based selection process for the appointment of non-judicial members.

The fact is that many former politicians do have skills, experience and abilities to offer in their post-political life, but it is appropriate that, if they seek to be appointed to a body such as this, they be subjected to merit based assessment, just like anyone else, not by a quick word in your ear from your mate, who might be the minister and who you've maybe known for a few years—a little tap on the shoulder. These are important jobs, and they're certainly well-paid jobs, in the hundreds of thousands of dollars, but they are important jobs that require technical ability to understand law and apply legal argument. So, if you're not a lawyer, you still have something to offer but you should be subjected to this transparent and merit based selection criteria. I fully support that, because all Australians have a right to a fair and independent review process and to have a system they can trust.

These reforms before the House today mean that, when you seek a review of a government decision, you can count on the ART to give you a fair hearing backed by technical expertise. It will carry authority and weight. The Albanese government has wasted no time in starting to clean up the terrible mess that those opposite left. In fact, more than 100 new appointments have already been made through our transparent, merit based process.

Before I finish: this will take not just the bill before the House today. If those opposite are going to support it, they need to support it wholeheartedly, because it's got to become part of the culture. What we saw, I think, with what happened to the AAT was a lack of respect for the idea that there should be an independent body questioning the decisions of government. I think that's what we saw at the heart of the former government: they just didn't respect the fact that there might be independent bodies out there that were making decisions that they didn't like. So they sought to stack bodies like this, preventing them from making those sorts of decisions. So it's important that this merit based, transparent selection process continues, not just through this government but through future governments as well. I am proud to be part of a government that is committed to restoring trust and confidence in Australia's system of administrative review, and I commend this bill to the House.

See this speech in context