David Smith (Bean, Australian Labor Party) Share this | Hansard source

I rise this morning to speak in favour of the Administrative Review Tribunal Bill 2023 and the associated bills. The Administrative Appeals Tribunal's public standing was irreversibly damaged as a result of the actions of the former government over the last nine years. By appointing 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 experience or expertise, the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making. While there were some good appointments, with no thanks to the selection process, there were many highly paid appointees with inadequate experience and expertise, and the consequence of their selection placed inordinate pressure on those appointees with appropriate skills and created logjams right across the system. I received many complaints both from constituents and practitioners about the level of dysfunction across the AAT and the impact on the lives of them and their clients.

The Albanese government inherited a tribunal that is not on a sustainable financial footing, that is beset by delays and an extraordinarily large and growing backlog of applications and that is operating multiple and ageing electronic case management systems—a legacy of the former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. My constituents voted for an Albanese Labor government to restore trust, integrity and accountability in government. This legislation is another part of doing just that, and I will expand on this shortly.

Earlier this week I asked the Attorney-General how the Albanese Labor government's Administrative Review Tribunal bills clean up the mess left by the former government. The Attorney-General reminded the House that decisions of the AAT have life-changing impacts for thousands of Australians. From people with disability seeking support through the NDIS to vulnerable families trying to get the right social security payments, Australians count on the AAT to get a fair hearing. A functional administrative review jurisdiction is fundamental to trust in government. But the Liberal Party didn't care. The stacking of the AAT by the Liberal Party was shameless. It just went higher and higher, like the world's most perilous game of Jenga, stack after stack. It resulted in a tribunal that was entirely dysfunctional—with backlogs out of control and people waiting months or even years for review of a basic AAT decision. Just like a game of Jenga, it all came tumbling down.

The Albanese government does care about Australians who are struggling. We on this side do care about their right to a fair and independent process and to have a system that they can trust. Since coming to government, we have wasted no time in starting to fix the mess that those opposite left.

The legislation that we are debating in the House this morning was developed in consultation with the people who use the system every day. We will abolish the AAT and replace it with a new administrative review body that is user focused, efficient, accessible, independent and fair. The legislation requires that members of the tribunal be appointed through a competitive, publicly advertised, merit based process. Our commitment to this is already on display, with more than 100 new appointments made already through a merit based process.

Many aspects of the principles underpinning administrative review under the AAT Act remain. The new tribunal does not have a general review jurisdiction—rather, other acts and instruments determine if a decision is reviewable. Tribunal powers and procedures may be varied by other laws in recognition of the need to accommodate different practice areas.

This bill is also aimed at providing a balance between fairness to applicants and avoidance of rigid legal processes: there is more visibility in hearings; decision-makers can elect not to be parties in certain circumstances; applicants have the right to be represented; and the tribunal may appoint litigation guardians and interpreters where needed. The provisions include uniform notification requirements and standardised time limits. The tribunal is required to provide reasons for decisions, and there is greater scope for publishing decisions.

Another significant feature is the facility to constitute a guidance and appeals panel within the tribunal, as described in part 5. Referral of decisions for review by the panel would only be permitted at the discretion of the president in cases which raise an issue of significance to administrative decision-making or where the decision may contain an error of fact or law. Tribunal members would be required to follow guidance decisions from the panel. The new panel is intended to foster greater consistency in decision-making across the tribunal and reduce the need for judicial review in individual cases.

There are significant changes to the structure of the tribunal aimed at improving flexibility and greater control of workflows. The rigid divisions within the AAT are to be replaced by jurisdictional areas, led by either the president or a non-judicial deputy president. The president rather than the minister would assign members to jurisdictional areas, taking into account the skills and qualifications needed in a particular area.

As I just mentioned, the tribunal will be made up of a president, deputy presidents—both judicial and non-judicial—senior members and general members. This streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary. The tribunal's president will have clear functions, including hearing particularly significant and complex matters as a member, managing the business of the tribunal, managing the performance and conduct of members and consulting with civil society. A single chief executive officer and principal registrar will assist the president to manage the administrative affairs of the tribunal and will be responsible for managing corporate and registry services.

The tribunal will be made up of eight jurisdictional areas: general intelligence and security, migration, the National Disability Insurance Scheme, protection, social security, taxation of business, veterans and workers compensation. Within these jurisdictional areas, the president can establish lists, led by senior members or deputy presidents, to ensure the tribunal can build specialist knowledge to deal effectively with distinct case loads. This structure builds in flexibility to ensure an enduring, responsive foundation for the tribunal's work into the future.

Each jurisdictional area will be led by a non-judicial deputy president who will be responsible for identifying and managing trends in and changes to the case load of their jurisdictional area and managing the performance, conduct and professional development of members assigned to that area. The president will have the power to assign members within the tribunal to work in different jurisdictional areas. Vesting this power in the president will allow members to be deployed more flexibly.

A tribunal advisory committee will provide strong collective leadership to the tribunal. Comprised of the president, principal registrar and the jurisdictional area leaders, the committee will ensure these leaders are individually and jointly responsible for promoting the tribunal's objective.

The tribunal's powers in relation to the review of intelligence and security decisions are consolidated into part 6, and we incorporate relevant provisions in other legislation which currently set out procedures for dealing with the review in these matters. The new provisions are broadly equivalent to the existing ones and continue to exclude or modify some of the standardised rules and procedures for tribunal review. Significantly, the ability to constitute a guidance and appeals panel will not be available for intelligence and security matters.

Part 8 of this legislation goes to addressing one of the critical problems of the current AAT: its politicisation and stacking of unqualified candidates. The Grattan Institute argued that, based on its analysis, the number of AAT members with political affiliations had increased in recent years. In the 12 years before 2015-16, four per cent of appointees had political affiliations, compared to 29 per cent in the five subsequent years—extraordinary numbers and, unsurprisingly, also a correlation with the decline in appropriate expertise and experience.

The Grattan Institute has also contended that the inappropriate use of ministerial discretion for appointments carries several risks—namely, that appointees will lack the necessary skills and experience to effectively carry out their responsibilities, given that they have not been tested through a merits based process or actively compared to other candidates, and that appointees with political affiliations may be less willing to make a decision that might embarrass or upset the government that appointed them, thereby undermining the actual and perceived independence of the AAT.

Arguably the area of most significant reform in the bill, part 8 of this legislation sets out new and radically different procedures for appointing members to the tribunal and provides for a transparent and merit based appointment process that requires applicants to have relevant knowledge, skills and experience—not particularly controversial. Positions must be advertised, and selection panels may be appointed to adjudicate the suitability of applicants based on record and performance at an interview. These changes are profoundly important. As Professor Mary Crock noted in her submissions, the most likely marker of success in the new tribunal will be the quality of the individuals appointed to adjudicate actual cases.

In addition to new appointment procedures, part 8 includes more stringent performance and disciplinary procedures. Members will be subject to a performance standard, a code of conduct and stricter conflict-of-interest rules. Serious breaches of any of these will be possible grounds for termination.

These bills represent the most important reform of the federal system of administrative review in decades, and effective administrative review is critical to Australia's system of government. A strong user focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives. This function is critical to protecting the rights and interests of individuals and organisations, particularly the most vulnerable members of our community, and, critically, a high-quality review of government decision-making can and will encourage better quality decision-making across government. I thank the House of Representatives Standing Committee on Social Policy and Legal Affairs, chaired by the member for Macquarie, for its suggestions on how the bill can be improved and the stakeholders who've engaged constructively with the government.

We on this side are committing to getting this right. This legislature represents an opportunity to significantly improve Australia's administrative review system, a key pillar of our democracy. As the robodebt royal commission noted, effective merits review is an essential part of the legal framework that protects the rights and interests of individuals. It also promotes government accountability and plays a broader, important role in improving the quality and consistency of government decisions. This new tribunal is intended to serve as a safeguard against abuses of power. It is intended to play a vital role in protecting the rights and interests of members of the community and in ensuring that the government and the Public Service act within the bounds of the law.

The Albanese's government is committed, in every step we take, to restoring trust and confidence in Australia's system of administrative review, beginning with the establishment of the new administrative review body that is user focused, efficient, accessible, independent and fair. It is intended to lead to better government and better government decision-making. With this legislation, this government is seeking to restore trust and confidence in Australia's system of merits review. I commend this legislation to the House.

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