Tania Lawrence (Hasluck, Australian Labor Party) Share this | Hansard source

Public trust in government needs to be continually monitored, nurtured and maintained. The indignation with which some members opposite are approaching this debate on the Administrative Review Tribunal Bill 2023 seriously undermines the parliament's ability to do just that—not just the government's but the parliament's—because when Australians look to us they're looking at the parliament and the representatives in this place, representing them. And the debate we've been hearing is seriously questioning their judgement and their capacity to be sound representatives of their constituents.

The reality is that we inherited an AAT that was unfinancial, beset by terrible delays and an extraordinary backlog and operating inefficient case management systems. Why on Earth would we not want to fix that? Why would we not want to look at why that was the case and address it? The bill before the House will remedy the situation as well as address the fatal failure to adhere to a transparent and fair appointment process—which seems to be the area that has those opposite especially rattled.

But let's just talk for a moment about some of the broader problems. The Refugee Council, in their submission to the Senate inquiry in 2021, outlined many of their concerns in relation to the AAT, including the skills and qualifications of the members, including a lack of legal qualifications, which I will speak about in more detail. They spoke of the underresourcing and the backlog of tens of thousands of cases, of the politicisation of appointments and quantitative evidence of the appointments under different governments making different decisions and of a high percentage of successful appeals of AAT decisions in the Federal Court.

That organisation's evidence, and that of many others, has led us to this point today. I just keep coming back to the question of how it is that those opposite would not want to support a remedy to the issues and concerns raised by an organisation such as the Refugee Council. Like many of the other improvements we're making to the systems that assure the public of the integrity of their federal government, this bill is clearly, demonstrably necessary. The Law Council commented on the AAT's appointment method under the former government. It used the words 'secretive' and 'with the potential to undermine public confidence'. It made the salient point that a lack of transparency impacts the reputation of all members of the AAT, of which there are many.

The Grattan Institute estimated that in the 12 years leading up to 2015-16 only four per cent of AAT members had political affiliations, and in the five years following that it was 29 per cent. With this sudden and strange growth in the number of political appointments, up to 85 members of the AAT were either members of the Liberal Party or close associates thereof. The member for Newcastle mentioned that the former chief of staff to Prime Minister Morrison was one of them, conveniently appointed just prior to the election in 2022.

We can remark on the level of cynicism that attaches to such appointments, but what we must keep front of mind is that this is how the diminution of public trust in the political system happens—not all at once but one shonky appointment, one underhanded decision, one failure of process at a time. My colleague the member for Robertson used the right word to describe this process: 'erosion'. And as the member for Goldstein said, the last government lost power because they had lost the confidence of the Australian people.

This bill is aimed at fixing many ills, but this is the one that I think goes most directly to the heart of what the AAT was designed to be. Members of the coalition know there were real issues of integrity in the former government; you know this. We are talking about the former 'Prime Minister for Everything'. Those opposite didn't even know what the former Prime Minister was doing half the time—their own leader. We had to legislate to ensure that multiple secret ministries can't happen again—something that a normal, properly run government in this country couldn't even imagine happening. We had a convention. Who knew something would have to be legislated because that convention would be abused by those opposite?

Those opposite were asked to censure the member for Cook for his behaviour, but they squibbed it—they looked away. This is not a government that looks away. We saw problems and we heard about the problems; we're working now to fix them. Those opposite would do well to put the past well and truly in the past and not let it live on by continuing to oppose something that is about restoring integrity and trust to our system.

There was a time, long ago, when the coalition were in fact in favour of a proper system of administrative review, one with integrity. The Labor led AAT legislation in 1975 had its roots in recommendations of reviews carried out under coalition administrations. When Attorney-General Kep Enderby, the member for Canberra, introduced the bill in March 1975, now 49 years ago, he stated that it was essential to the successful operation of the tribunal that it should enjoy a high standing in the community. This was not a controversial statement when he made it, and it should be something that we accept today. It is not possible, though, for the tribunal to enjoy that high standing if there is a perception or a reality that the tribunal is stacked.

Kate Griffiths, of the Grattan Institute, wrote just a week ago in the Conversation that the political stacking of the AAT was egregious. The Grattan Institute suggests that there are at least two reasons why political appointments can be deleterious to the system of review: firstly, that a member may not have the skills or experience to be effective; secondly, and importantly, that a member may not be willing to make decisions that will embarrass the government. These are real risks, and I don't want to understate them. The Morrison government was the government of robodebt, after all. As the Attorney-General said, the decisions made by the AAT are important. They're always important to those people making applications to the body. In some cases, as the member for Wentworth said, these decisions are life changing and can be a matter of life and death.

But let's suspend our disbelief for one moment and imagine the best of all possible worlds. Let's imagine a different world, one where the political appointments made by the former government, through their insufficiently probative processes, were for people who possessed the skills and the experiences to do the job and do it well. Bear with me. Let's imagine that none of those political appointments were for people who would be tempted to go easy on the government in a situation where the government might be embarrassed. It's a difficult one, but let's suspend disbelief—let's try. It's an alternative reality.

It's still not a fix, though, is it? It's not in any world in the multiverse. Why? My friend the member for Moreton suggested that it might just smell a little bit. In case you missed his playful understatement: it's because it stinks. Whatever the reality in relation to an individual member or the whole, taken together, the perception will remain—that the body is created or infected with partisan appointments and therefore cannot act to provide impartial, non-partisan judgements. Members opposite can whinge all they want, but they created the problem. They now stand here and can either witness or be part of the solution. It's not harsh even if it's extensive. It's simply appropriate.

There's little way to imagine how this manifestly damaged system could be fixed other than with a bill like this. I'm sure that the Attorney-General would have preferred to move an amending act if he thought it would be sufficient. This is not where we find ourselves.

The member for Menzies waved the Constitution at us this morning and pleaded for the importance of the separation of powers. Well, I certainly agree with the member. The member for Menzies needs, though, to take his copy of the Constitution and, instead of waving at us, go and wave it at the member for Mitchell behind him, who came in here this afternoon and tried to pretend that appointments to a judicial body were all the same in character as appointments to diplomatic positions. I say 'pretend' because, seriously, he can't really be that naive. The member for Mitchell might, nevertheless, still benefit from the lecture on separation of powers that the member for Menzies was so keen to deliver.

The separation of powers, though, requires continual maintenance. Attorney-General Enderby, in his second reading speech in 1975, underlined the importance of giving the members of the tribunal 'a proper independence from the executive government'. In the same debate, a young member for Bennelong, one John Howard, referred to The New Despotism by Lord Hewart, who urged for:

… an extremely careful and well-considered system where every decision was made with the knowledge that at any moment both it and the rest might have to be explained and defended in public before an impartial investigator.

Independence and impartiality—not rocket science but fundamental attributes of a tribunal that can attract public confidence and trust.

This bill creates the environment within which these ideals will be preserved. It is aimed at fixing a number of ills by ensuring a merit based selection, by putting the ART on a sustainable financial basis, by dealing with backlog and avoiding unconscionable delays—delays, too, are injustice—and by improving the case management systems. The Attorney-General has welcomed debate on this bill. Members and senators are on the record demonstrating strong interest in the questions before us. The member for Fowler rightly raised questions about balancing efficiency and fairness.

If we just take one of the reviews undertaken by the Senate, they're not asking for huge, radical reforms; they're simply asking for appropriate funding in order to allow the Administrative Review Council to be able to fulfil its statutory duties. They're simply recommending that there be clear selection criteria for appointments and that they be advertised broadly. I note that we've undertaken this advertising just recently and have been overwhelmed with applications in response. It was recommended that we simply establish and support 'an independent panel to properly consider each applicant's suitability for the role and their qualifications, and recommend appointments against the selection criteria'. In any other workplace, this would be completely normal, but apparently it is something that cannot be supported by those opposite. The Senate committee recommended that the appointment process limit 'the discretionary powers of the Attorney-General to make appointments that are not in accordance with the recommendations of the independent panel'—so not too many captain's picks. That is not much to ask. They recommended that the appointment process impose 'a uniform approach to the duration of appointments' and that it promote 'transparency and make public the outcome of each application and selection round'. How can you possibly oppose that?

Then the committee go further with their last recommendation, which is also opposed by those opposite:

The committee recommends that the Attorney-General disassemble the current Administrative Appeals Tribunal (AAT) and re-establish a new, federal administrative review system …

That was to be done by the middle of last year, in order to enable a seamless carry-over of those cases currently being managed under the AAT. The new system was to be aligned with 'the AAT's legislated objectives of being accessible, proportionate, fair, economic, informal and quick, while promoting public trust and confidence in the decision-making of the review body'. These were sensible, proportionate recommendations to restore integrity for the Administrative Review Tribunal. Those opposite opposed these recommendations to the Attorney-General.

This government accepts the need for robust review to be built into the legislation. I commend the member for Griffith for his support for the bill, and I agree with him that we do need to seek to create a system that will last for decades. Ideally, we will act together to create a bill that will last even further into the future than the 1975 act and underpin a system that will attract and maintain a high level of public confidence and support for the century ahead.

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