Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise in support of the significant and necessary reforms contained in the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023. For a little bit of background, the establishment of the Administrative Appeals Tribunal, the AAT, is a proud part of Labor history. It was established by the Administrative Appeals Tribunal Act, which was passed in 1975 under Prime Minister Gough Whitlam. The first head of the AAT was Sir Gerard Brennan, who went on to be the Chief Justice of the High Court. That was the sort of rigour that we were bringing to the process of giving the Australian public the chance to question the decisions of the Australian government, something that this building is actually designed to show. The design of this building is that the public walk in through the doors and, if every door were opened up, they'd be able to look at the Prime Minister sitting at his desk. The architects are saying the public have a view of the executive. This building reflects that. The other line of power is between the states' representatives over there and the people's representatives in the green chamber, but that line of power between the people and the Prime Minister or the executive—the cabinet—is important. The people of Australia must be able to question the decisions of the government of Australia. Countries where that doesn't occur are not like a Westminster democracy. That's why the AAT is so crucial.

Back then, under Gough Whitlam, we understood the need for an independent body to review the decisions of ministers and departments, who, dare I say—present ministers excluded!—can sometimes get it wrong. They make a decision and then there's an unintended consequence, shall we say, for certain Australians, and those Australians need to be able to question that decision.

This initiative, under Gough Whitlam, was the first of its kind in the world. It reflected the core tenet of the democratic system of government: that the government is answerable to the people. The AAT allowed citizens to challenge the government and ensure that the decisions made under Commonwealth law were fair and just. That's what the AAT was set up for.

Throughout the years, the AAT has changed shape. The former coalition government incorporated the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal into the AAT in July 2015. This amalgamation was actually mismanaged and has left an unfortunate, to say the least, legacy that includes an unsustainable financial footing for the AAT. A Labor government created the AAT with honourable intentions, to look after the Australian people, and it's now time for another Labor government to fix the mess wrought by the previous Abbott, Turnbull and, most of all, Morrison governments. So that's why I stand here today, because these bills replace the mismanaged and badly compromised AAT with a tribunal that Australians can have trust and confidence in. It will be called the Administrative Review Tribunal, and it can't come soon enough.

Labor inherited a swathe of problems with the AAT, and we've taken action to fix them. The coalition government handed us an AAT that was bloated by a large backlog of applications—that's the first reason that we're here today—and had electronic case management systems that weren't fit for purpose. Unfortunately, those weren't the only problems. As those listening might have noticed, a lot of the people speaking are not from the Liberal or National parties. There's a great silence from those opposite when it comes to this important piece of legislation. We inherited a Liberal stacked membership. The Australian public deserves a federal administrative review body that is not stacked with people that have connections to the sitting government. The former coalition government appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close associates. I'm not going to go through their CVs to talk about their merit, but obviously that becomes a problem.

Over time, the percentage of Liberal appointments increased to the stage that, when Scott Morrison was the Prime Minister, two out of five appointments had a strong connection to the Liberal Party. I'm sure that would have continued but for, thankfully, the Albanese government getting elected in 2022. In fact, in 2022, the Grattan Institute's research showed that 20 per cent of the AAT's 320 tribunal members had a direct political connection to the government that appointed them. So, if you were an Australian punter and you rocked up to ask the government why they made a particular decision, you had a one in five chance of a Liberal person reviewing a Liberal government decision. Can you see the problem? Obviously, as anyone who understands the justice system knows, it's not enough for justice to be done; justice must be seen to be done as well. So, when we had decisions of the Liberal government being reviewed by Liberals, that is a problem. It should be a red flag. I wonder if every cabinet minister in the Morrison government didn't raise this. The current Leader of the Opposition sat in that cabinet. Surely he raised this. But we're not hearing that in any of the speeches from those opposite. We just hear a deafening silence.

We cannot have Caesar judging Caesar. Why is this important? The AAT, as I said, without going into all the details about the Constitution and judicial appointments, is a way to review the decisions of the government. Maybe those people who were appointed had merit; maybe they didn't. It doesn't matter, when you have a perception that only Liberal Party appointees are put in there without a merit based selection process. If the only criterion is that you've got a Liberal Party membership card in your wallet, that is not a merit based selection process. Some of the people appointed had no relevant expertise or experience. How can a review body that is stacked like that claim it is independent and has the expertise needed to review decisions made by public servants and the government? Obviously, it cannot. A full-time member of the Administrative Appeals Tribunal could be paid from about $207,000 up to about $530,000 per year. Obviously, that's a pretty attractive target for a political appointment. I don't know about you, Deputy Speaker, but to me, without a merit check, it does smell a little bit like jobs for mates, and it did to the Australian people too.

The Albanese Labor government listened to the issues that were raised through both government scrutiny and stakeholder feedback. We held extensive consultation with the public, the administrative review expert advisory group and several parliamentary committees. It was clear that, in order to rebuild public confidence in the new Administrative Review Tribunal, we must ensure that our appointment process is far removed from any political process. It must be merit based. The new appointment process is transparent and guided by the operational needs of the Administrative Review Tribunal. It will also be simplified. There will be clear qualification requirements for applicants, and there will be role and responsibility descriptions for the four levels of membership, including for the roles of president and principal registrar, who will set much of the tone.

The qualification requirements contained in the bill are more stringent. The president of the Administrative Review Tribunal must be a judge of the Federal Court of Australia, and judicial deputy presidents must be judges of either the Federal Court of Australia or the Federal Circuit and Family Court of Australia division 1. These are the judicial appointments that I mentioned earlier. Other appointments must be enrolled lawyers with varying degrees of substantial experience, specialised training or experience in relevant subject matter.

It's also important to note that the president will have enhanced powers to manage the performance and conduct of the members, which is very important when you consider the crucial role they play in government review and in people's lives. This is unlike the judiciary, where, once you're appointed to the judiciary, effectively no-one manages you, apart from the common law and the parliament, and you can't be told to do certain things. Things can be suggested, you can be guided and you might even be transferred to another part of your state or territory, but that's a slightly different process. Here, the president will have these enhanced powers because the work of the review body is critical.

The role of the AAT member is to review the decisions made by government departments. They are not a Liberal Party stamp factory. That is not what they are, and I should clarify that they're not a Labor Party stamp-manufacturing process either. We want them to make independent decisions that question the role of the government. They must make sure that the legislation and policy have been followed in all stages of the decision-making process. Tens of thousands of Australians rely on the tribunal to independently review departmental decisions that can be life-altering for them. That's why trust in the ART is crucial, because it makes decisions that can literally change lives. I'm talking about whether a permanent visa is granted, whether an age pension is received, whether a veteran can access compensation for an injury they acquired while serving our country or whether a person with a disability can receive the required level of NDIS funding. These are crucial moments in individuals' lives.

The politicisation of appointments to the AAT undermined the independence of that important body. Under the coalition, the integrity of the Public Service was constantly undermined. We saw that in the 2000s with the Howard government and the outcome of the Palmer and Comrie inquiries into the immigration detention of Cornelia Rau and Vivian Alvarez. We saw it again under the Abbott, Turnbull and Morrison governments with robodebt.

That's why the Albanese Labor government is taking action. In a democracy, it is so crucial that there is an independent body that reviews departmental decisions. This allows applicants—citizens of Australia—to have natural justice, and it provides them with the opportunity to ensure that all their grievances or concerns regarding decision-making are investigated. It also builds confidence in the government and the way the government departments function.

These bills implement all three recommendations from the Senate Legal and Constitutional Affairs References Committee's review into the performance and integrity of the administrative review system. They also implement four recommendations from the Royal Commission into the Robodebt Scheme, which I know will only be of very small consolation to the thousands who suffered terribly or lost their lives because of those decisions—or lack of decisions.

The day-to-day operation of the ART will be enhanced to make it run more efficiently. It will emphasise a non-adversarial approach to decision-making. Improved procedures will make it possible to respond flexibly to changing case loads, and it will make it a better experience for those seeking review. It will ensure that process is focused on the user and is efficient, fair and assessable. Reflecting these enhancements, we've responded to stakeholder concerns about the term 'litigation guardian', which suggests substituted decision-making, and will change it to 'litigation supporter'.

Importantly, the bills also allow for identification, escalation and reporting on systemic issues in admin decision-making. This includes the re-establishment of the Administrative Review Council, adding another layer of transparency to the review system. The Administrative Review Council will focus on the integrity of the Administrative Review Tribunal and also implement training for Commonwealth public servants in decision-making and administrative law, vital recommendations coming out of that robodebt report.

The bills also establish a guidance and appeals panel mechanism, ensuring that there is consistent decision-making as well as quick responses to emerging issues. Further transparency is provided by the bill, enabling the tribunal to publish any decisions and requiring it to publish all decisions regarding significant conclusions of law or those that affect Commonwealth policy or administration. The supporting consequential and transition bill will amend 138 Commonwealth acts to ensure that existing legislation supports the intentions of the new tribunal. It will also streamline reviews of migration and refugee decisions by removing the Immigration Assessment Authority so that these processes are more efficient. The bill continues to recognise the unique features of veterans' entitlement law, with maintenance of the merits review in both ART and Veterans' Review Board. To minimise disruption and delay from the changeover from the AAT, active, pending and potential cases and those currently before the courts will be transitioned to the Administrative Review Tribunal.

With these bills, the Australian public can be confident that the ART is fair and just. It will be subject to a statutory review after five years. It will require a second review for social security matters. It will provide decisions in a timely manner, avoiding lengthy procedures and cost blowouts. Crucially, it will be responsive and accessible to the diverse needs of parties. These measures will restore transparency and quality of government decision-making. As I said at the start of this speech, it can't come soon enough. I commend these bills to the House.

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