Susan Templeman (Macquarie, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Social Policy and Legal Affairs I present the committee's report incorporating additional comments, entitled Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, together with the minutes of proceedings.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—The House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an inquiry into the Administrative Review Tribunal Bill 2023, the ART bill, and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023, the consequential bill, at the request of the Attorney-General. The committee scrutinised the bills to ensure they achieve the government's policy objectives and do not have unintended consequences. The bills are intended to, among other things, provide for a mechanism of review that is fair and just, timely, informal, inexpensive, accessible and responsive, that improves the transparency and quality of government decision-making and that improves public trust and confidence in the tribunal.

The bills re-establish the Administrative Review Council, retain the jurisdiction of the Administrative Appeals Tribunal, the AAT, and make essential modifications to the operation of the merits review framework. They promote consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART bill. The bills would implement all three recommendations of the Senate Standing Committees on Legal and Constitutional Affairs Committee's inquiry into the performance and integrity of Australia's administrative review system. There are four recommendations of the royal commission into the robodebt scheme and two recommendations of the rapid review into the exploitation of Australia's visa system.

It's clear the AAT has lost the confidence of the Australian public, and there is broad support for establishing the new administrative review regime with the bill's stated objectives. The proposed reforms create a new tribunal—the Administrative Review Tribunal. That would be a self-correcting system, with several backstops to ensure that government and ART decisions are made correctly and transparently, that defective decision-making by government can be held to account and that systemic issues will be escalated and responded to effectively. These features include the ART, which will be independent from government and will monitor and support the integrity of the administrative review system. The new Tribunal Advisory Committee and the guidance and appeals panel will review the operation of the ART, respond to emergency issues and help ensure correct and consistent decisions are made. The new code of conduct and performance standard requirements, stronger reporting obligations and a requirement for professional development for members and staff further support the bill's objectives.

Some concerns were raised that there will no longer be an automatic second-tier review for social security and family assistance matters as the AAT currently provides. The committee is satisfied the best elements of first- and second-tier review have been incorporated into the design of the art and the systemic issues will be escalated. The new model of review will be accessible to allow people to resolve their matters as quickly as possible without unnecessary formality. The guidance and appeals panel will then provide a critical safeguard to deal with material errors of law and fact. That said, the committee encourages the government to continue to engage with stakeholders and work through their concerns in relation to the proposed changes to the existing two-tier merits review structure for social security and family assistance decisions.

Several submitters suggested the ART bill should require the use of a selection panel in the appointments process for ART members. While that is not strictly necessary, because the government has indicated that such matters can and will be provided for by legally binding regulations, the committee encourages the government to give further consideration to adopting that suggestion. The provision of legal aid, particularly to vulnerable applicants, will be important to the ART's success in meeting its policy objectives. The committee is aware the legal services that assist applicants to the AAT may have limited capacity to support any further demand generated by the transition from the AAT to the ART. The committee strongly supports the government acting on the findings of the upcoming review of the National Legal Assistance Partnership.

While noting the proposed new administrative arrangements for migration and protection matters do not go as far as many would like, the committee is of the view that the consequential bill meets the intended policy objectives of streamlining the administrative appeals process while maintaining the currents principles of administrative review. Together with other measures announced by the government, the arrangements in the bill will help address the crippling delays in the Migration and Refugee Division of the AAT. Those delays are motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection, and this comes at a cost to people in genuine need of protection and to the broader Australian community. The committee recommends that both bills pass the House and encourages the Senate Legal and Constitutional Affairs Legislation Committee to give further consideration to the matters raised by submitters and in this report as part of its inquiry.

I'd like to thank my committee members for their diligence in attending to this inquiry and to all those who contributed their time and expertise by preparing quality submissions during December 2023 and January 2024.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

by leave—The short time allocated for this review both for stakeholders to provide comments for hearings and for the report consideration or preparation, means that I've constrained my additional comments to a few key areas—namely, the appointments process and a statutory review. I absolutely recognise the need for reform of the AAT. I've had numerous constituents report to me the long delays and lack of appropriate outcomes from the AAT in its previous form, but institutional reform must be done carefully.

One of the biggest problems with the existing AAT has been the politicisation of the appointments process. I understand that, in the last three years of the coalition government, 40 per cent of tribunal members had political backgrounds. This is unacceptable and undermines trust in our institutions. It's problematic for two reasons. Firstly, the appointments were not necessarily based on merit. This problem is addressed in the new legislation with a merit-based appointment process. Secondly, the appointments were political. They were made as favours to political allies, no doubt on the understanding that the philosophical underpinning of the decisions would be sympathetic to the government and that the tribunal members would avoid doing anything that would embarrass the government.

Given that this was one of the drivers of the reform, it seems particularly important that this structural issue is addressed in the legislation, and it's not. In the hearing, the Attorney-General's Department favoured a regulation model where the appointment process is addressed in regulations, rather than in the legislation. The regulation model relies on the perceived safety net of merit based appointments and future flexible regulations. Given the past issues, I'm not satisfied that these issues can be appropriately addressed in regulation. The bill should enshrine key safeguards to avoid the politicisation of appointments in the future. There are some improvements that could and should be made to the appointments process, which are consistent with the views of many of the integrity experts who made submissions to the inquiry.

There are six changes I'd like to see. Firstly, the minister should be required to use assessment panels, rather than the minister having a discretion to do so. Secondly, panels should be required to consist of independent individuals with appropriate expertise so they're not made up of a majority of Australian government employees, political employees or contractors. Thirdly, the minister should be required to only appoint a candidate shortlisted by the relevant panel, unless there are exceptional circumstances, in which case an explanation should be submitted to the House. Fourthly, for integrity reasons and to prevent the politicisation of the ART, a former member of the Commonwealth parliament should not be eligible to be appointed as a member of the tribunal until completion of a two-year cooling-off period from the end of their term. We must stop the revolving door between politics and other institutional roles. Fifthly, the qualifications and prior work experience of all members of the ART should be published to build trust in the new tribunal. And, sixthly, all appointments to the ART should be required to resign their political party memberships and resign from the ART before standing for political party preselection.

As well as improvements to the appointments process, I'd like to see a statutory review clause requiring an independent review after three years. Given that the Attorney-General has called the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 the most important reform of the federal system of administrative review for decades, this seems reasonable and is backed by the Law Council of Australia and the Centre for Public Integrity. The majority report refers to the AGD stating that the ART Bill seeks to create a self-improving, self-correcting system, but the continuous monitoring by the ARC within the new system is part of the system itself. An independent review after a set period would review the whole of the system, including the operation of the provisions in relation to the ARC.

No doubt there are more detailed issues that also deserve scrutiny that are beyond my capacity to address in the short time available. For this reason, I'm glad to see that there will be a Senate inquiry into the bill. In the meantime, I urge the government to address these fundamental issues in the House before the legislation is passed.