Kylea Tink (North Sydney, Independent) Share this | Hansard source

I rise to speak to amendment (1) as circulated in my name. The package of bills moved through this House in the last few days—the Administrative Review Tribunal Bill 2023, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024—will deliver much-needed reform to the Administrative Appeals Tribunal. However, it must be noted that, as it currently stands, the provisions within the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill mean that, ultimately, this reform will fall short of meeting its objective of creating a unified system because of its unequal treatment of migrant and refugee applicants.

Quite simply, because of the provisions in the piece of consequential legislation, some of the benefits sought to be introduced by the overall reform will not apply to the Migrant and Refugee Division. Given the backlog and ongoing work of that division, this means a significant number of the key reforms will not apply to most cases currently seeking redress. It has taken years of advocacy from civil society groups, human rights bodies and refugee and migrant communities to get us to where we are today with this legislation. But we must take it further.

The amendment I am moving addresses the different and unfair time limits that apply for some refugees and migrants seeking an administrative review. It has been put to me by advocates as one of the key elements of the separate procedural code that must change if we are to truly realise just treatment for all.

Indeed, the Refugee Advice and Casework Service submission on the ART Bill sought to draw our attention to the fact that the general rule that provides for 28 days to lodge an appeal will not be extended to those seeking a review from within detention. Rather, these refugees and people seeking asylum would have only seven days to apply for a review of a decision. I want to recognise that this is significantly more than the two days currently provided under the existing AAT. But the truth is that it's still not enough time when, in the majority of cases, we are talking about people who are already facing structural exclusion and intersecting barriers to accessing justice. These barriers include the impacts of trauma, language barriers, mental health issues, financial distress and cultural differences. In the pursuit of equality before the law, any reform to the administrative review processes in this country must account for this. Section 347(5) of the bill stipulates that the power of the ART to extend these deadlines under clause 19 of the bill would also not be applicable to reviewable migration and protection decisions, further excluding applications with a migrant or refugee background from the benefits of this refreshed ART.

This amendment seeks to change that. This amendment, quite simply, removes sections 347(3) through to 347(5) of Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 so that the general timing rule for making an application for review under division 3 of the ART would apply to migration and protection applicants as it does for all others. If Australia is serious about having systems that uphold our human rights obligations, I appeal to the government to take these amendments seriously and strengthen this legislation. In the words of North Sydney constituent and long-time human rights advocate Professor Mary Krock: 'Where it is separate for migration applicants, the code is always more punitive and restrictive than the general ART provisions.'

It is very disappointing that migrants should continue to be treated as persons with inferior procedural entitlements, specifically at a time when almost one in two Australians were either born overseas or have an overseas-born parent. We should stop seeing migrants as less worthy of procedural entitlements just because they are non-citizens. The law should apply equally to all people regardless of race, colour, gender, language, religion, political beliefs, status in society, or any other unlawful reason.

As a nation Australia recognises the following rights and treaties: the right to seek asylum and be free from persecution; the right to equality under the law and equal protection of the law; the right to enjoy the same treatment as a national in matters pertaining to access to the courts; the right in full equality to a fair and public hearing by a fair and impartial tribunal in the determination of rights and obligations; and the right to be recognised everywhere as a person before the law. Ultimately, citizen or non-citizen, all people deserve to be treated with dignity and have their basic human rights respected. We must ensure that this new system is one that delivers on that obligation. I believe this amendment does just that. I commend the amendment to the Attorney-General.

See this speech in context