Zoe Daniel (Goldstein, Independent) Share this | Hansard source

The Administrative Appeals Tribunal was established nearly half a century ago with the honourable intention that it should be a simple, straightforward and speedy way for ordinary citizens to challenge decisions of government and to ensure that ministers and public servants were acting within the law.

The last government lost power after a decade in office because it had lost the confidence of the people. At the heart of that was its failure to maintain the integrity of institutions. The AAT was one. Analysis by the Australia Institute found that under prime ministers Howard, Rudd and Gillard political appointees to the AAT accounted for just six per cent of the total at most. During the Abbott and Turnbull years the number of political appointees leapt to 23 per cent. During the Turnbull and Abbott years it leapt to 35 per cent, and during the final term of the Morrison government it leapt to no less than 40 per cent. Not only that, but the coalition government treated the AAT with increasing contempt. Notably, the AAT made hundreds of decisions relating to robodebt, finding repeatedly that the policy was unlawful. Minister after minister wilfully ignored those decisions, as did government departments and agencies. The consequences for victims—financial and psychological—were appalling. People with disabilities seeking review of NDIS decisions were all caught in its vortex. I have spoken to families in my electorate who endured extraordinary and long-running pressure and anxiety owing to their dealings with the AAT. The net effect was that the public lost confidence in it.

In his second reading speech, the Attorney-General declared that among the objects of the legislation, the Administrative Review Tribunal Bill 2023, was to ensure that the new ART would be fair and just and would promote public trust and confidence. Based on feedback, it's understood that the government plans to amend the legislation to incorporate measures to ensure the independence of the appointment process and to ensure that new members of the tribunal would be appointed on merit. The crossbench is working closely with the Attorney-General's Department to make sure that these measures are strong enough.

Along with the abolition of the AAT, the ill-starred Immigration Assessment Authority—which was supposed to expedite the now-notorious fast-track process—has also been dismantled. It proved a conspicuous failure. It was the handling of cases involving refugees and asylum seekers that raised some of the biggest questions about the tribunal. Among the most serious were questions about bias, fairness, competence and timeliness. Analysis by the Kaldor Centre for International Refugee Law raised significant questions about the consequences of the political appointments made by the last government. In protection visa cases, its data shows that the odds of an applicant succeeding were 25 per cent higher where the applicant appeared before a tribunal member appointed by a Labor government compared with coalition-appointed members.

There was also an element of retribution in the behaviour of the previous government, with Kaldor data showing that, of the 20 decision-makers with the highest acceptance rates for protection visa applications between 2015 and 2020, 80 per cent did not have their appointments renewed by the coalition. With a recent history like that, it's clearly going to take a lot to restore confidence in the application of administrative law, especially when it comes to asylum seekers and refugees. The new tribunal is likely to face one of its greatest tests in that area. That's because the AAT was part of a system blighted by delays, political appointments and concerns about impartiality, as I outlined—in short, a system that denied people seeking asylum an efficient and a fair review process.

The new tribunal will be responsible for reviewing administrative decisions to ensure the correct and fair decision is made by the Department of Home Affairs regarding refugees and migrants. This review is the last opportunity for a person to have their claims for protection assessed. The consequences of incorrect tribunal decisions are severe and include refoulement—that is, the forcible return of asylum seekers to a country where they could face persecution—prolonged detention and permanent family separation. Decisions can be the difference between life and death, freedom, safety or long-term detention for those people.

Decisions made by the ART must have integrity, but the way some provisions are currently drafted means they won't, according to submissions from the refugee sector and the Law Council. There remains some conjecture and disagreement on the part of the government. But, according to the Asylum Seeker Resource Centre, provisions in the legislation maintain an unfair and distinct set of rules for refugees, people seeking asylum and migrants than for other applicants. Specifically, unlike others appearing before the tribunal, they may be excluded from access to funded legal services. On the face of it, this is discriminatory and a denial of procedural fairness.

As the Kaldor centre point out, applicants with legal representation are on average five times more likely to succeed than those left to represent themselves. Here's just one example provided to me by the ASRC. Ateba is a divorced woman from Ethiopia. She arrived in Australia, having experienced physical and sexual violence at the hands of her former husband as well as persecution for her political opinions. Trauma and cultural taboo meant she did not disclose the violence she'd experienced until she was able to get a lawyer through the ASRC and established a relationship of trust with that lawyer. It took months, but without the lawyer it's highly unlikely that she would have been able to raise the claims or articulate the reasons that she couldn't raise them earlier. Working through it with a lawyer, the presumption was able to be rebutted.

The Refugee Council warns:

… maintaining a separate set of procedures for migration and refugee cases will lead to further inefficiencies, appeals and potentially, the denial of refugee protection leading to refoulement.

The Asylum Seeker Resource Centre argues:

The lack of free legal assistance to people seeking asylum and refugees has had a devastating impact on their ability to engage with the review process due to barriers including literacy and language skills, poor mental health, and isolation from community support, especially for people in immigration detention. Protection visa applicants, including people in detention and prison, often experience greater barriers with access to justice and should be eligible to apply for legal and financial assistance regarding their review applications.

The Law Council of Australia has also recommended that such applicants should have access to funded legal representation on a means-tested basis.

I've had extensive conversations with the Attorney-General's Department on this. The department insists that there is 'no restriction at all on legal representation' for applicants in the Migration and Refugee Division. The department says that this impression is a consequence of bad language in the original act. Yet, the refugee sector and the Law Council, even as of a few minutes before I delivered this speech, continue to differ. With all of that in mind, I'm continuing to work with the government to clarify this. I had intended to move an amendment that would remove the elements in section 294 of the bill that may exclude applicants in the migrant and refugee division of the new tribunal from access to legal advice and representation.

As it turns out, a proposed government amendment circulated late last night would appear to pre-empt that amendment, and therefore I've been forced to withdraw my own amendment. The government says that its amendment would provide that an applicant for review of a reviewable migration or protection decision may apply to the Attorney-General for legal or financial assistance if the proceeding is referred to the guidance and appeals panel. The refugee sector and the Law Council retain their doubts, so it's a work in progress. The ASRC says that what the government is proposing would be of benefit to a handful of applicants at best and would still deny procedural fairness to many. The Law Council says the government amendment is a step forward but does not apply to all reviewable migration and reviewable protection decisions, as it had recommended. The Law Council adds that it would allow access to legal assistance for reviewable migration and protection decisions, 'but only where the review is of a decision referred by the president to the guidance and appeals panel'.

The ASRC also says the government amendment raises a number of questions: firstly, that the president has the power to refer to the guidance and appeals panel if it raises an issue of significance to the administrative decision-making and it is appropriate in the interests of justice to do so—therefore, it is not a question of need or vulnerability; secondly, that a person cannot refer their own decision to the guidance and appeals panel and also that a person is required to apply, which is a barrier to access; and, finally, that there is no guarantee that, on application, funding will be offered. So there are several unanswered questions.

What is still not clear is why other jurisdictions should have access to assistance and not the jurisdiction where assistance demonstrably has a critical impact that could be a matter of life or death and where applicants face severe barriers to access to justice. It would assist if the Attorney would improve the legislation or at the very least offer the House the clarification and assurance that refugees and asylum seekers will have the same right to legal representation as other applicants.

In short, there is some work to do on this bill for it to be ready to pass. I acknowledge that the government has a large package of amendments that it is yet to move, and I would add here that better practice would have been to finish the draft bill, including the amendments, before this debate, rather than all of us having a debate on a bill that is not final.

See this speech in context