Helen Haines (Indi, Independent) Share this | Hansard source

That's why Australians deserve a system to review government decisions that is fair, transparent and accountable. If you seek a review, you deserve a timely decision with clear reasons given and the opportunity to appeal. Australians deserve to be confident that only the most qualified and appropriate people are appointed to such a review body. Unfortunately, that's not what Australia has had for some time.

The Administrative Appeals Tribunal, or AAT, has been increasingly dysfunctional and has not given Australians confidence that their rights of review are being properly upheld. The case load is unacceptably long, with some cases taking years to resolve. An amalgamation of several tribunals into the single AAT did not result in the hoped-for efficiencies, and, most crucially, the AAT was stacked with political appointees. Under the previous government, the Australia Institute found that at least 40 per cent of appointments were political appointments.

The degradation of the AAT was not without consequence. Politicisation and funding cuts made it easier for the previous government to ignore findings that the robodebt scheme was unlawful and to move on AAT members that made these findings. Many stakeholders, including the Melbourne Law School, have observed that robodebt occurred during a period in which key functions of the AAT had become effectively obsolete—functions which would have kept a close watch on debt recovery processes. The degradation of the AAT may not have caused robodebt, but it certainly allowed it to continue for so much longer and impact so many lives.

That is why we cannot forget that, while administrative law may seem technical and bureaucratic, it is anything but. This is about real people, who contact me and my team every day—people who are anxious and worried about what government decisions mean for them and for their families, and people whose lives are ruined by shameful schemes like robodebt. We cannot, we must not, ever forget that.

So it was with great optimism that I listened to this government commit to creating an administrative review body that the public could trust—one based on integrity, transparency and accountability. But, as the bills currently stand, they do not uphold these principles. I understand the government is drafting amendments to improve the bill; in fact, I met with government representatives only last night to discuss these amendments. But they are yet to be circulated and yet to be moved. Until they are moved in this place, I will be reserving my position on this bill.

The Administrative Review Tribunal Bill 2023, the ART Bill, would establish the new Administrative Review Tribunal. It would also re-establish the Administrative Review Council, which was defunded by the previous government. Two additional consequential and transitional provision bills would also amend almost 250 Commonwealth acts of parliament which interact with the AAT Act to ensure continuity for the new tribunal and its users. So will the Administrative Review Tribunal, to be created by these bills, live up to the government's commitment to do better? After listening to my constituents and leading legal and transparency bodies around the country, the picture just isn't clear yet—at least not until the proposed amendments are circulated and moved in this House. There is much to commend in these bills as they're currently written, but we are waiting on amendments from the government.

The redesigned ART will go a long way to fixing many of the problems of its predecessor. As the Attorney-General has said, this is the biggest reform to Australia's system of administrative review in half a century, so it's vital that we get this right and it's vital that we implement a tribunal that is futureproofed against politicisation. The ART Bill re-establishes the Administrative Review Council, abolished under the former government. The council is tasked with monitoring the integrity and operation of the Commonwealth administrative law system. It's made up of key stakeholders such as the Commonwealth Ombudsman, the Australian Law Reform Commission president and the Australian Information Commissioner. It will play a crucial role by producing trusted reports and best practice guides on the integrity and operation of administrative laws. The council will be able to report on systemic issues in government decision-making. These reports, importantly, must be tabled in parliament—so when the government is getting it wrong we will know about it. That's so important. Reinstating the council was a key recommendation of the royal commission into robodebt. It's a critical feature of these bills to make sure schemes like robodebt never happen again.

I'm also encouraged that the ART will now use a single case management system. The AAT relied on multiple and disconnected case management systems—a hangover from the amalgamation of several tribunals into a single AAT. This slowed down decision times, increased the workload for tribunal staff and ensured the AAT never operated as a single, streamlined review body across its different jurisdictions. A new case management system under these bills will make use of the latest information technology to speed up the resolution process—again, an important reform.

I'm encouraged, and I look forward to seeing how the new guidance and appeals panel will function. Previously, the AAT considered every decision on a case-by-case basis, with tribunal members relitigating the same government decision, resulting in inconsistent and contradictory outcomes. The panel will be made up of senior tribunal members and will publish authoritative decisions on serious and systemic issues in government decision-making. Other members of the ART will be required to consider these decisions, and I'm hopeful this is a game changer that can stop schemes like robodebt earlier before they harm people's lives and, indeed, forever harm them.

However, for all their merits, I'm concerned these bills as written do not fix one of the critical problems at the core of the AAT's dysfunction—politicisation and the jobs-for-mates culture of which Australians are sick to death. You can imagine my disappointment when I read these bills. These bills fail to futureproof the new ART against politicisation because the bills do not prevent a future Attorney-General from awarding plum positions to their political, business or donor mates or allies. While the legislation before us states the Attorney-General 'may' establish assessment panels, there is no requirement to do so. There is also no requirement that the Attorney-General follow the advice of an assessment panel, if there even is one, and no requirement to report publicly when the Attorney-General goes against the panel's advice. This is democracy in the dark and so disappointing from a government constantly touting its integrity credentials. I'm disappointed, because when first elected the government introduced interim guidelines for AAT appointments, and these guidelines mandated the use of assessment panels and required the Attorney-General to refer to the panel's recommendations. That's why it's rather confusing and deeply disappointing that the bills as written remove these requirements. We've actually moved backwards, with the government now proposing a model that is less transparent and less rigorous than the one they had previously agreed to. Not only are assessment panels optional and easy to ignore; there's no guidance on who should serve on such a panel. Unamended, there is nothing to stop this Attorney-General or any future Attorney-General from appointing their political allies as panel members. That's hardly reassuring for those wanting greater fairness in the appointments process.

In the briefing that I had last night with the Attorney-General's Department, I was assured that this glaring problem will be remedied. But here's my dilemma: until these amendments are circulated and moved by the government, at this moment in this debate we have no guarantees that the bill clears this key and critical hurdle. The Attorney-General has offered assurances that proposed amendments will address my concerns, so I will now wait for these amendments to come to the House. I must reserve my position on this bill until I have them here in the House. I cannot give a position on incomplete legislation.

I want to see the Administrative Review Tribunal succeed—I so very much do—so I call on the government to make the following changes to these bills. I support the member for Mackellar's amendments, as circulated, which would legislate the independence of the selection process for the ART members. The bill must mandate assessment panels to provide a ranked list of suitable and appropriate candidates. The minister must appoint members from this list, and where they go against the advice of an assessment panel they should table a statement of reasons in the parliament. They need to front up and explain. Secondly, the legislation should be amended to require a statutory review of the ART in three years time. This would allow us to learn from the first few years of the ART and ensure it's fit for practice. This is good practice. A statutory review clause provides a mechanism to amend the ART, fix any unintended flaws and ensure its success into the future. So I support the amendment put forward by the member for Warringah.

The government has made the expensive and significant decision to abolish the AAT. I wholeheartedly support this decision, because the AAT was dysfunctional. It was a dysfunctional, crony organisation, undermined by years of unmeritorious and politicised appointments. But I believed the government was going to create a new body that was fundamentally fairer and more transparent—a review body that couldn't and wouldn't be stacked with the political allies of the government of the day, whoever that might be. I don't think the bill before us, unamended, fulfils that promise. This is a bill that does a lot right, with improvements to the structure and operation of the Commonwealth administrative review system, but it stumbles at the biggest hurdle, which is ensuring that appointments can only be made on merit and not based on who's mates with the Attorney-General of the day. So, until the government's proposed amendments are circulated, we're stuck at that hurdle. In my view, near enough is never good enough, particularly on this matter. The creation of the ART is a legacy that will outlive everyone of us in this place, so it's critical that we get it right.

See this speech in context