Elizabeth Watson-Brown (Ryan, Australian Greens) Share this | Hansard source

In regard to this bill, we note there have been significant concerns raised about the accessibility of the tribunal, particularly to people who require translators. My question is what steps are you taking to deliver on this? We understand the government amendments seek to address concerns raised by stakeholders regarding the fact that the tier 1 system currently available for social security matters will not be preserved under the new ART. Can you advise how these amendments work to deliver a low-cost, accessible jurisdiction comparable to tier 1? We would be interested in that.

We'd also note that many of the issues currently experienced in the AAT are caused by Services Australia's poor engagement and communication processes, which often have significant impact on individuals. We would that hope there would be steps taken to ensure this is resolved.

We know a number of appointments have been made in the last month to the tribunal. We would be interested in understanding what process was undertaken in these appointments and, in particular, if selection panels are envisaged in the bill, as amended by the government amendments. We would be interested to know what steps are being taken to have diversity of representation on such a panel.

The government review amendment responds to concerns many in the sector had about lack of a review plan in the original legislation. So, our question would be why is there a five-year review proposed instead of the more usual three-year review? It seems that we should be concerned. This is a quite long time for the tribunal to be operating if there are significant issues with it that might be identified by a review.

We feel there should be diversity of representation in the membership of the tribunal and that reporting from the ART should include decisions affirmed or overturned by the Federal Court. We believe there should be a complaints mechanism for member conduct. We think it would be a good idea to have a cooling-off period for appointees from party roles and to require members to not be members of political parties to ensure there's that important independence. They should also resign from the ART before standing as candidates. Appointees, we believe, should not be lobbyists or work in relevant departments for four years—no Defence or contractors. We also believe that we should have access to publicly published qualifications of appointees. This is absolutely critical.

Social security and family assistance matters are also of concern. The two-tier system should be restored with, essentially, the continuation of the social security and child support division of the AAT. An alternative to that would be to pause tier 2 removal until reforms from disability and robodebt royal commissions, the NLAP review and the NDIS review are in place around national legal aid issues. We believe there should be a requirement for Services Australia to submit statements of reasons where the ARO decision is unclear, including at the request of the applicant. ARO training and professional development is critical to fix the deficiencies in ARO decision letters, fixing a backlog of ARO reviews.

We note that there have been serious concerns about the removal of the two-tier system, in terms of the removal of inquisitorial, non-adversarial, informal and accessible options. Most do not have legal advice before their hearing, which is problematic. This makes the administrative review less accessible. Therefore, the need to get it right first is quite difficult, and very difficult without the appropriate legal advice. We believe this will deter applicants, see withdrawal of appeals and reduce fairness, especially for unrepresented applicants. Unless matters are referred to the GAP per discretion of the president, there is only one shot at appeal, which we think is unfair and untenable. Self-representing will be harder in a more formal tribunal.

In terms of the Migration and Refugee Division, there needs to be a harmony of procedures for review with the other divisions of the ART; that is from the UNSW and the ASRC. Removing shorter deadlines should be happening, applicable to migration matters—especially not less than 28 days for character related decisions. We believe we should allow applicants to apply for legal assistance for their application before the tribunal by removing 336P(2)(l) of the consequential bill. We should remove 359A(4)(d); the ART should notify applicants of adverse information in Home Affairs decisions it intends to rely on. Hearings in person should be the default, which means 36(f) needs to be fixed. If the Attorney-General joins the proceeding, the Commonwealth should pay the costs of that. We believe an interpreter should be provided if requested, and that translated materials must be provided; the person should be asked for consent to this. The ART should only be able to make a decision without a hearing if it favours the applicant. The ART must follow a tribunal guidance decision as a matter of law. We believe we should remove 362A of the consequential bill to maintain an entitlement to seek materials from the ART—or fix FOI, which is unlikely. And we would like the removal of section 367 of the Migration Act, which requires the ART to draw unfavourable inferences regarding new claims and evidence.

In terms of the ARC, we believe that responsibilities must include reviewing, analysing and publishing data on the decision-making and operation of the ART, including the GAP review of National Legal Aid. Data should be made public. A member of the ARC should be a person with disability and lived experience. The ARC should have the power to commission research.

In terms of guidance and appeal panels, the president should be required to exercise discretion where unrepresented applicants ask to go to GAP, to refer GAP, unless it is vexatious or obviously unmeritorious. Secondly, the GAP review should mean legal assistance is provided.

In terms of accessibility issues, we would suggest adding an object to the bill regarding disability, implementing the CRPD, and regarding trauma informed and family violence informed—and introducing a nonadversarial and accessible first tier of review for NDIS matters where members with disability expertise and understanding of the NDIS are involved. Fee waivers should be legislated for financial hardship and vulnerable applicants. Longstanding barriers to First Nations communities are a real concern; we would ask what's being done there in terms of engagement with those First Nations communities, and how provisions apply in the context of domestic and family violence. The EM should include training on domestic and family violence as an example of training for tribunal members.

There are also issues around legacy. What's going to be done for the 9,000 people failed by the fast-track system? The IAA should cease processing the caseload so the ART can be used instead. And another question is: what consideration of previous AAT decisions is there, and do we need to amend section 218?

These are a number of concerns we have. We would be very interested to hear the Attorney-General's response.

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