Allegra Spender (Wentworth, Independent) Share this | Hansard source

I rise to speak on the Administrative Review Tribunal Bill 2023 and the associated consequential provisions bills. This bill is an important and long overdue reform. It creates the ART, a new body mandated to review individual administrative decisions made by the Commonwealth, and reinstates the Administrative Review Council to identify systemic deficiencies in how federal laws are applied. From robodebt to our broken asylum system, the consequences of administrative decisions can be severe to Australians. In some cases they are life and death. So getting things right when we create a new ART is absolutely critical.

The ART replaces the Administrative Appeals Tribunal, an ineffective, under-resourced and overly partisan body that lost the confidence of the Australian people and failed those who came to our shores seeking protection. The AAT was failing on almost every indicator, particularly when it came to time lines for decision-making and the independence of decision-makers. At the end of the 2023 financial year there were nearly 55,000 outstanding cases before the migration and refugee division of the AAT, compared with just 17,000 at the end of 2015-16—a staggering 325 per cent increase over seven years. These delays have caused huge distress to those trying to navigate the system and those awaiting decisions that have an enormous and profound impact on their lives. They're people who've contacted my office, desperate for help, because they've been waiting months for a decision and don't know whether they'll be able to stay in the country or not.

In addition to its operational performance, the AAT became stacked with political appointees, with huge discretion for the minister of the day to fill high-paying and influential public sector jobs with their mates. In the last five years of the tribunal's operation, 29 per cent of appointments to the AAT had political affiliations, with political appointments as high as 40 per cent under the Morrison government. Maybe some of those appointments were justified, but many were not. And with no legislated merit based appointments process there was no safeguard against political stacking and jobs for the boys. I therefore welcome the government's reforms and the extended consultation that has been undertaken with civil society and members of this House on this issue.

Australia has always been known as a land of the fair go. The purpose of the ART is fundamentally about ensuring that people get a fair go when it comes to administrative decisions made by the Commonwealth, whether in relation to asylum applications, Centrelink payments, the NDIS or veterans' entitlements. The fairness of our system relies on two key pillars: first, the fairness of the laws that underpin the system and, second, the independence of the people implementing those laws. I'd like to focus my comments on those topics.

Let me start with fair laws. It is a fundamental principle that our system of administrative review should treat all people equally. No one group of people is less deserving of procedural fairness. No one group of people should face shorter or longer time lines to request a review. And no one group should be less deserving of legal assistance. But I'm concerned that these kinds of inequities could be baked into this bill. The bill maintains carve outs for separate and more restrictive procedural codes for decisions affecting migrants and refugees. This means that migrants and protection visa applicants can be judged against a fundamentally different set of rules than everybody else is. Let me provide you three examples.

Firstly, migrant and refugee applicants are given a shorter period in which to seek administrative review than everybody else. While people who are seeking asylum often face significant barriers to seeking review within the 28-day time frame—like language barriers, insecure housing and serious illness—unlike everyone else they're not allowed to request an extension of this deadline. For people in immigration detention, the time line to make an application for review is just seven days. There is a very real risk that these sorts of provisions can create a two-tier system, where some people get procedural fairness but asylum seekers don't.

Secondly, this bill maintains the presumption of disbelief when new claims and evidence are put forward by people seeking asylum—that is, the default position of the ART is to penalise protection applicants who bring forward new evidence when the tribunal is assessing their case. This presumption affects people like Mindy, who fled Nigeria after experiencing serious gender-based violence and because she feared persecution as a member of the LGBTQ community. She was afraid to disclose her sexuality at the time of her application because she was scared of the consequences if her family or others in Nigeria found out. The presumption of disbelief also affected Elnaz, who was the victim of physical and sexual violence—including threats to kill her—from her husband, both when they were in Iran and once they had moved to Australia. She couldn't initially disclose this, because her application was made jointly with her abusive husband. In both these cases, the individuals had to fight to overturn the presumption of disbelief, with months of work and legal assistance. They were able to overturn the presumption and they were eventually recognised as refugees, but others are not so lucky.

There are many reasons why someone seeking protection may not provide all the relevant information at the time of their application, and this provision disproportionately affects those who are most vulnerable. They have just as much right to be believed as everybody else. I support the intention of the amendment put forward by the member for Clark, which would remove this presumption.

The third example of potential inequity in this bill relates to legal assistance, with submissions to the committee inquiry from legal experts suggesting that migrants and people seeking asylum may be excluded from accessing legal assistance under this bill. This is despite the complexity of our immigration laws, the severity of outcomes, and the barriers to accessing justice that they face. There would be no justification for this kind of exclusion. As the Law Council said in its submission, enabling a person to apply for legal or financial assistance should apply in all matters.

Now, I understand that the AAT's failures have created a huge backlog and that the government's justification for these kinds of provision is often about clearing that backlog. I want to see the backlog cleared quickly too, but this should not be done at the expense of people's right to a fair process, because this is both unfair and ineffective.

Analysis by the Kaldor Centre Data Lab shows that limiting the rights of applicants for the purpose of expediting claims has actually reduced the efficiency of the overall system and led to longer processing times. The failed fast-track process is a great example of this. Fast-track puts speed ahead of fair process in assessing protection claims. And, whilst it reduced the average time taken for the Immigration Assessment Authority to finalise its decisions, it pushed more cases in front of the Federal Court because so many of those decisions were wrong. Between 2015 and 2023, a staggering 37 per cent of judicial review applications related to decisions by the IAA were successful, often resulting in the case being sent back to the IAA for a second or sometimes third go. On average, this judicial review process takes at least two to three years. Any time saving from limiting procedural fairness at the IAA stage was more than negated by the delays caused by the high rates of judicial review. When you look at the system overall, it is better to get things right the first time, not to deny people their right in order to speed things up.

Whilst we must ensure that our laws themselves are fair, we must also ensure that they are implemented properly, and that means ensuring the people who make decisions on behalf of the ART are appropriately qualified and truly independent. I want to make the case that this is more important with the ART than with almost any other body that the Commonwealth funds, and this is because the ART is the final arbiter on so many decisions of how government interacts with its citizens and people who live in Australia. This is the final moment. If that decision is not justified, if that decision is made on the basis of politicisation, then it is deeply, deeply unfair. It's also extremely concerning, because this assurance of those decision-makers being independent and appropriately qualified was borne out under the previous AAT, with plum jobs worth up to $500,000 a year handed out by the Morrison government—on the eve of elections—to individuals linked to the Liberal Party.

The politicised appointments process matters when it comes to decisions that affect people's lives. Analysis by the Kaldor Centre shows that the political party in government at the time that a tribunal member was first appointed to the AAT had a huge effect on the decisions that the individual made. For example, when it came to protection applicants, the odds of an applicant succeeding in an appeal were 25 per cent higher when the applicant appeared before a tribunal member appointed by the Labor government, compared to coalition appointed members. Indeed, tribunal members who appeared sympathetic to protection applicants were often removed by coalition governments. Between 2015 and 2020, 16 of the decision-makers with the highest acceptance rates for protection cases did not have their appointments renewed by the coalition. It is a shocking statistic and it shows that the AAT appointments process was completely broken.

You should be appointed based on your merits, not based on your political persuasion. I therefore welcome the provisions in this act to legislate for a truly merit based appointments process to the new ART. There are further improvements that should be made to this process, including that merit based selection panels be mandatory.

I particularly want to commend the member for Mackellar for her work in this area. It has been tireless, and she has taken this on strongly for the last 18 months, in almost every bill that the government has put forward in terms of selection committees and where the government is appointing people. She has said consistently that people should be appointed to government jobs based on their merit. We need to have robust processes in place to make sure that merit stands true and that we can't politicise public appointments. It is absolutely critical. I really am encouraged by the government's openness to incorporating her amendments in this bill, as well as others put forward by the crossbench. I hope to see that across many more government bills, because I think this is a great example of where the government is starting to move and would like to see it move much further. Thank you.

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