Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

That's why Australians deserve a system to review government decisions that is fair, transparent and accountable. If you seek a review, you deserve a timely decision with clear reasons given and the opportunity to appeal. Australians deserve to be confident that only the most qualified and appropriate people are appointed to such a review body. Unfortunately, that's not what Australia has had for some time.

The Administrative Appeals Tribunal, or AAT, has been increasingly dysfunctional and has not given Australians confidence that their rights of review are being properly upheld. The case load is unacceptably long, with some cases taking years to resolve. An amalgamation of several tribunals into the single AAT did not result in the hoped-for efficiencies, and, most crucially, the AAT was stacked with political appointees. Under the previous government, the Australia Institute found that at least 40 per cent of appointments were political appointments.

The degradation of the AAT was not without consequence. Politicisation and funding cuts made it easier for the previous government to ignore findings that the robodebt scheme was unlawful and to move on AAT members that made these findings. Many stakeholders, including the Melbourne Law School, have observed that robodebt occurred during a period in which key functions of the AAT had become effectively obsolete—functions which would have kept a close watch on debt recovery processes. The degradation of the AAT may not have caused robodebt, but it certainly allowed it to continue for so much longer and impact so many lives.

That is why we cannot forget that, while administrative law may seem technical and bureaucratic, it is anything but. This is about real people, who contact me and my team every day—people who are anxious and worried about what government decisions mean for them and for their families, and people whose lives are ruined by shameful schemes like robodebt. We cannot, we must not, ever forget that.

So it was with great optimism that I listened to this government commit to creating an administrative review body that the public could trust—one based on integrity, transparency and accountability. But, as the bills currently stand, they do not uphold these principles. I understand the government is drafting amendments to improve the bill; in fact, I met with government representatives only last night to discuss these amendments. But they are yet to be circulated and yet to be moved. Until they are moved in this place, I will be reserving my position on this bill.

The Administrative Review Tribunal Bill 2023, the ART Bill, would establish the new Administrative Review Tribunal. It would also re-establish the Administrative Review Council, which was defunded by the previous government. Two additional consequential and transitional provision bills would also amend almost 250 Commonwealth acts of parliament which interact with the AAT Act to ensure continuity for the new tribunal and its users. So will the Administrative Review Tribunal, to be created by these bills, live up to the government's commitment to do better? After listening to my constituents and leading legal and transparency bodies around the country, the picture just isn't clear yet—at least not until the proposed amendments are circulated and moved in this House. There is much to commend in these bills as they're currently written, but we are waiting on amendments from the government.

The redesigned ART will go a long way to fixing many of the problems of its predecessor. As the Attorney-General has said, this is the biggest reform to Australia's system of administrative review in half a century, so it's vital that we get this right and it's vital that we implement a tribunal that is futureproofed against politicisation. The ART Bill re-establishes the Administrative Review Council, abolished under the former government. The council is tasked with monitoring the integrity and operation of the Commonwealth administrative law system. It's made up of key stakeholders such as the Commonwealth Ombudsman, the Australian Law Reform Commission president and the Australian Information Commissioner. It will play a crucial role by producing trusted reports and best practice guides on the integrity and operation of administrative laws. The council will be able to report on systemic issues in government decision-making. These reports, importantly, must be tabled in parliament—so when the government is getting it wrong we will know about it. That's so important. Reinstating the council was a key recommendation of the royal commission into robodebt. It's a critical feature of these bills to make sure schemes like robodebt never happen again.

I'm also encouraged that the ART will now use a single case management system. The AAT relied on multiple and disconnected case management systems—a hangover from the amalgamation of several tribunals into a single AAT. This slowed down decision times, increased the workload for tribunal staff and ensured the AAT never operated as a single, streamlined review body across its different jurisdictions. A new case management system under these bills will make use of the latest information technology to speed up the resolution process—again, an important reform.

I'm encouraged, and I look forward to seeing how the new guidance and appeals panel will function. Previously, the AAT considered every decision on a case-by-case basis, with tribunal members relitigating the same government decision, resulting in inconsistent and contradictory outcomes. The panel will be made up of senior tribunal members and will publish authoritative decisions on serious and systemic issues in government decision-making. Other members of the ART will be required to consider these decisions, and I'm hopeful this is a game changer that can stop schemes like robodebt earlier before they harm people's lives and, indeed, forever harm them.

However, for all their merits, I'm concerned these bills as written do not fix one of the critical problems at the core of the AAT's dysfunction—politicisation and the jobs-for-mates culture of which Australians are sick to death. You can imagine my disappointment when I read these bills. These bills fail to futureproof the new ART against politicisation because the bills do not prevent a future Attorney-General from awarding plum positions to their political, business or donor mates or allies. While the legislation before us states the Attorney-General 'may' establish assessment panels, there is no requirement to do so. There is also no requirement that the Attorney-General follow the advice of an assessment panel, if there even is one, and no requirement to report publicly when the Attorney-General goes against the panel's advice. This is democracy in the dark and so disappointing from a government constantly touting its integrity credentials. I'm disappointed, because when first elected the government introduced interim guidelines for AAT appointments, and these guidelines mandated the use of assessment panels and required the Attorney-General to refer to the panel's recommendations. That's why it's rather confusing and deeply disappointing that the bills as written remove these requirements. We've actually moved backwards, with the government now proposing a model that is less transparent and less rigorous than the one they had previously agreed to. Not only are assessment panels optional and easy to ignore; there's no guidance on who should serve on such a panel. Unamended, there is nothing to stop this Attorney-General or any future Attorney-General from appointing their political allies as panel members. That's hardly reassuring for those wanting greater fairness in the appointments process.

In the briefing that I had last night with the Attorney-General's Department, I was assured that this glaring problem will be remedied. But here's my dilemma: until these amendments are circulated and moved by the government, at this moment in this debate we have no guarantees that the bill clears this key and critical hurdle. The Attorney-General has offered assurances that proposed amendments will address my concerns, so I will now wait for these amendments to come to the House. I must reserve my position on this bill until I have them here in the House. I cannot give a position on incomplete legislation.

I want to see the Administrative Review Tribunal succeed—I so very much do—so I call on the government to make the following changes to these bills. I support the member for Mackellar's amendments, as circulated, which would legislate the independence of the selection process for the ART members. The bill must mandate assessment panels to provide a ranked list of suitable and appropriate candidates. The minister must appoint members from this list, and where they go against the advice of an assessment panel they should table a statement of reasons in the parliament. They need to front up and explain. Secondly, the legislation should be amended to require a statutory review of the ART in three years time. This would allow us to learn from the first few years of the ART and ensure it's fit for practice. This is good practice. A statutory review clause provides a mechanism to amend the ART, fix any unintended flaws and ensure its success into the future. So I support the amendment put forward by the member for Warringah.

The government has made the expensive and significant decision to abolish the AAT. I wholeheartedly support this decision, because the AAT was dysfunctional. It was a dysfunctional, crony organisation, undermined by years of unmeritorious and politicised appointments. But I believed the government was going to create a new body that was fundamentally fairer and more transparent—a review body that couldn't and wouldn't be stacked with the political allies of the government of the day, whoever that might be. I don't think the bill before us, unamended, fulfils that promise. This is a bill that does a lot right, with improvements to the structure and operation of the Commonwealth administrative review system, but it stumbles at the biggest hurdle, which is ensuring that appointments can only be made on merit and not based on who's mates with the Attorney-General of the day. So, until the government's proposed amendments are circulated, we're stuck at that hurdle. In my view, near enough is never good enough, particularly on this matter. The creation of the ART is a legacy that will outlive everyone of us in this place, so it's critical that we get it right.

Joanne Ryan (Lalor, Australian Labor Party) Share this | Link to this | Hansard source

The Administrative Appeals Tribunal was fatally compromised by the former government, which appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection. They undermined the tribunal's independence and eroded the quality and efficiency of its decision-making. Let me just say that number again: 85 members. We're not talking about the occasional blip on the radar and we're not talking about something that wasn't known. I'm hopeful that with this legislation, the Administrative Review Tribunal Bill 2023, the public will be able to rebuild their confidence in a new tribunal. We know that this has been an issue since at least 2019, when those sitting opposite now were in government. They commissioned a statutory review by the Hon. Ian Callinan AC KC, which made recommendations that they chose to ignore.

I thank the member for Indi, who spoke previously and raised that critical issue around robodebt and what the ART is about. It is about a pair of eyes on government administration. If decisions that were taken or recommendations that were made were reviewed by the AAT when those opposite were in government, thousands upon thousands—tens of thousands—of people would have been spared being accused of criminally defrauding the Commonwealth when in fact they had not.

It's a significant reform, a necessary reform and a reform that underpins good government that we're suggesting here. And, as I said, it's been a public issue since 2019. The Albanese Labor government announced on 16 December 2022 that we would abolish the AAT. It went into consultation processes across April and May in 2023 and has had other parliamentary committees look at what would be the best way forward.

Those opposite have come in here and argued that this seems a rushed process. Well, everything must seem rushed to those opposite, because they find a way to say no to—to oppose—even the best ideas. Opposing good oversight of government administration doesn't seem a sensible response from any opposition. The public needs to know that we have a government the public can trust to make decisions. We need to have an independent body with oversight of our administration.

This impacts not just one or two members of the public. From the numbers that were presented and referenced in this place by speaker after speaker, in 2022- 2023, there were 41,037 lodgements in the AAT, 42,689 finalisations and 66,131 cases still on hand. These are 100,000 Australians who were at the AAT seeking clarification and seeking what they perceived to be justice over a government administration issue. These are not small things. These are pensioners in my electorate, making queries about dealings with Centrelink. These are the hundreds of people in my electorate who were affected by the robodebt notifications that they received that we now know were unlawful. These are thousands of people in my electorate who may be seeking support from the AAT in terms of a visa application or a spousal visa application.

The AAT exists so that the public can have confidence in the government's administration. It is there to review individual decisions. It needs to be accessible to the public, and it needs to be affordable for the public. They need to have confidence that, when they go into these processes, they will be heard by someone independent, someone credentialled, who will be looking at the issue, and someone that they can trust to have their back and to have another set of eyes across what could be an administrative error by government.

But, instead, what we saw across the previous government's nine years of tenure was a Liberal government finding jobs for their mates, on salaries worth hundreds of thousands of dollars. I'm not going to stand here as a member of this parliament and say that former MPs should not be allowed to be appointed to an appeals tribunal, because some in this place are very well credentialled to do this work. In fact, there's a long history of some former MPs doing excellent work on the AAT. But when you're getting to the number of 85 former Liberal MPs, former Liberal candidates and people with clear lines of donorship to the Liberal Party, or even lobbyists, then we are in a state where the public have a right to not have confidence in the decisions being handed down. And as every member of parliament here knows, if there's a bad-news story about government you can bet your bottom dollar that 10 times more people heard about it than heard about the good story of government.

This government is working incredibly hard to build back public faith in government, in government administration and in government decisions as well as confidence that the Australian Commonwealth government supports people's rights—the accessibility and the affordability for them to question a decision if they see fit to do so. We saw under those opposite a dysfunctional mess where people were waiting months—even years—for a review of a basic decision, often one that had significant ramifications for the lives of these Australians. These were decisions such as whether an older Australian receives a pension, whether a veteran is compensated for a service injury or whether a participant of the NDIS receives funding for an essential support.\

I can say that in my electorate many families have sought an AAT ruling on an NDIS issue. These are real people—tens of thousands of people—and every single one of them deserves the best quality of administrative oversight. They deserve it, they expect it and now they have a government that's bringing legislation into this place to deliver it.

I want to thank the member for Indi for the way she has worked with the Attorney-General in this space. I want to thank her for the speech she just made and say to her that I agree that she should reserve her judgement until she is satisfied, because the people of Indi deserve that, just as the people of every electorate in this country deserve to have their members in this place stand up for fairness, stand up for good governance and stand up for transparency to ensure that we get this right. This is an opportunity to ensure that we never go back to the dark days of the last decade under those opposite so we can start to build back trust in government.

We need a government that's prepared to do the hard work. We need an opposition that's prepared to join a government to put in place things that will better protect Australians and to support us to build back trust in government. We need a government that recognises when people are struggling and takes swift action to make necessary changes. And that is exactly what's happening in this case: thoughtful, careful preparation; legislation in here. The debate continues, and as a government we will land something and start that process of building back trust.

We've had to clean up a huge mess that was dumped on our doorstep by those opposite when we came to office, and we started fixing it immediately, because that's the Labor way. That's why we're here today—to bring forward legislation that will restore confidence and trust in Australia's federal administrative review body by replacing the AAT with the Administrative Review Tribunal. The design of the new body has been heavily informed by public consultation, as our government promised it would be. The new ART will be user focused, not used to provide income for mates. It will be efficient. It will be accessible, independent, timely, fair and, hopefully, trusted.

That is why an important feature of this new body will be a transparent and merit based selection process for the appointment of non-judicial members. This is critical. It is critical also for existing members—those people who have done solid work over many, many years—that their reputations not be besmirched by what the former government did. It's absolutely critical that this legislation go through this parliament so we can get on with delivering for everyday Australians.

I want to assure everyone that cases currently in hand when the AAT is abolished and replaced by the new body will be transferred across. And, as others have referenced, there will the case management system will be modernised to ensure that things are not stuck because of process, or a lack of process, to make sure things can move more quickly to an actual appeal.

The former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal is at the heart of the problems here. The former government combined all of those tribunals into one tribunal, a tribunal that they then went on to undermine not just by appointments but by not taking advice or not taking the implications of the administrative cases in which the tribunal made a judgement against the former government, as we saw in the case of robodebt. We saw months and months of pain for robodebt victims because the government even refused to listen to its own tribunal. That went on for far longer than it needed to go on. In fact, ultimately it needed individual Australians to join together and go to the courts to get a decision. So, when the former government oversaw the administrative oversight procedures for the Commonwealth, they not only undermined them but ignored them, leading to the tribunal being perceived by the public as useless. There isn't anything more damning that I can think of to say about the way the former government mismanaged this space.

The AAT has existed for a long time. It was established on 1 July 1976 following reviews of the administrative decision-making that took place in 1971. There was a need for a mechanism for external review of government decisions that was accessible, informal and relatively affordable. It was necessary. The Whitlam government tried to bring this legislation in. It was eventually brought in by the Malcolm Fraser government. So it's a legacy that both of the major parties, I assume, would say that they are proud of. I encourage those opposite today to support this bill in the House so that good governance can be trusted by the Australian public and so that people in my electorate and electorates around the country will believe, if there is a decision made, that they have a right of appeal to a trusted source where they will get a fair go. It's pretty simple. For the life of me, I cannot understand why anyone in this House would oppose this legislation.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Administrative Review Tribunal Bill 2023 while holding the foundation document of our democracy, the Australian Constitution. It was referred to several times in the last 18 months when we had the referendum debate, but it's something that is equally important for many debates in this House.

Our democracy is built on two fundamental principles. The first is parliamentary democracy, through the people's house here, where there are 151 members who represent each portion of this nation, and the house of review, the Senate. So parliamentary democracy is the first limb. The other is separation of powers. Our Constitution's first three chapters go to the separation of powers: chapter I, the parliament, where we are; chapter II, the executive; and chapter III, the judiciary. What we're talking about here is an important institution that looks at the accountability and review system within chapter II, the executive wing. There is a potential issue on separation of powers that I'd like to come to shortly.

Let's briefly go through the history of the Administrative Appeals Tribunal. Throughout the common-law world, we have seen growth in government—the state—for two reasons: the first was warfare and the second was welfare. The first was protecting the nation, and we saw that in the most extreme and violent circumstances in World War II. The second was looking after our people within our nation, and that saw an expansion of chapter 2, the executive branch of government, in a significant way. That expansion has continued; it has continued and will continue. It is a debate for another time, but the intergenerational report does note that in particular areas the expansion of government will continue.

We recognise that decisions that are made within chapter 2, the executive branch of government—and most are delegated decisions from the ministers through to the departments and public servants within the department—are often made with incomplete information. They're often either rushed or delayed, and mistakes are made. They're decisions made by humans, and humans make mistakes. We are not computers, and AI won't come to save the day.

It is important that people who feel that a decision has not been made fairly have an avenue for appeal within the executive system without having to go through the expense of hiring lawyers and going to court and all the delay that involves. A system that has review for people who are distressed and believe there has been an injustice which they want addressed should be accessible and affordable. It should not have lawyers involved. The legislative purpose of the AAT—and presumably the ART afterwards—is a proceeding that's called a de novo proceeding. It's not an appeal in the sense that a decision made in a department is appealed to a court. It means that the member who hears the facts fresh and reads the materials fresh must either affirm, vary, set aside or potentially substitute a decision for review. It goes without saying that no two cases are the same. Each must be judged independently according to its own facts and its own merits.

The quality of the people we have on that merits review tribunal is very important. We can all agree on that. They must be people who are hardworking, fair and of good character and who will put others first. What I reject is the idea, through many of the speeches, that someone, by virtue of having been a servant of any side of politics—a member of a political party in any sense—is somehow disqualified from being a person of good character, hard work and fairness. I would never go as far as to say that it makes them better in those spheres; it's just another factor of life. Having been involved in the Liberal Party, the Labor Party, the Greens political party or whatever organisation sits above the teals does not disqualify you from performing a merits review decision.

Honourable Member:

An honourable member interjecting—

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

I'll take the interjection: maybe the Greens political party! But, even then, I will stand up for members of the Greens political party. I will treat everyone on their merits.

It's an important thing to know. Our political parties are not something that get in the way of democracy. They're a key function of our democracy. They're key institutions of our democracy. Yes, this document here does not mention the Liberal Party, it does not mention the Labor Party and it does not mention the Greens political party, and nor should it. So much of our democracy is through convention and institutions that aren't mentioned here. We as a democracy need healthy political parties. They feed through to this place and they feed through to the Senate—the delegates, the candidates, the members. To somehow dismiss that as ruling you out from any other form of public service is I think dishonest, and it undermines our democracy in an insidious way. It says to people of talent and character and hard work: 'If you want to serve your nation, don't do it through a political party. Stay out of that. You don't want to rule yourself out from an appointment.' Let's put it to bed that being in a political party rules you out of public service. I reject that entirely, for any political party.

The coalition is not opposed in principle to review of the system—we should review it regularly and make sure it is fit for purpose and that it is an institution that has all the legislation requirements it needs in order to give an accessible and fair system of merits review. The tribunal is a body that provides review of government decisions made under about 400 pieces of legislation. Often, the merits review involves competing provisions of legislation and covers multiple parts. Whether it's in the NDIS or Centrelink or for veterans, these are complex pieces of legislation, and right now we're seeing an attempt to try to make the veterans suite of legislation less complex. That is an extremely complex system. To have people of character, hard work and competence is the No. 1 criteria.

The huge amount of legislation that has come before this House in this reform should not be lost either. This is 678 pages of new primary legislation. The explanatory materials are almost as long, at 631 pages. This House has been asked to debate and vote on an entirely new bill plus 33 schedules. That should be something we take seriously and approach with careful thought, consultation and consideration. I am a member of the social and legal committee for this House. We were tasked with conducting a review, and that review was announced just before Christmas on 14 December. It had one hearing day, and I couldn't go to that—I really wanted to, but I had a clash and couldn't go. That often happens on both sides with committee work. But usually a hearing goes for multiple days, multiple weeks or multiple months and you can make up for it. But, when it's one day, you can't make up for that. In that one day I read the materials, the submissions and the transcript. The only witnesses called were from the Attorney-General's Department, the Department of Home Affairs and the Department of Social Services, all on a single panel. How is that proper scrutiny?

Here we are, being asked to look at this reform of the merits review system that so many vulnerable and distressed Australians rely upon in a time of need, and we're not practising what we preach. For the government members to stand up there and criticise this side for having a system that is allegedly dysfunctional and biased and unfair and not doing its job and then to come here and do that very thing they criticised the previous government of doing is not lost on Australians who look to this House to conduct its review of bills properly. That is quite disappointing.

I'll turn to one potential constitutional issue. It's not for me or any member of this House to say something is unconstitutional—that's for the High Court to decide—but there is one issue I would like to briefly discuss. It was mentioned in a few submissions to the inquiry. One of them was by a serving part-time member and barrister Gray Connolly. Full disclosure, I have known Gray Connolly as a fellow veteran, but his submission is well crafted and well read, and I urge those following this to read it. He made the observation—in his personal capacity, because he takes that distinction between that and his formal capacity seriously—that there are potential constitutional issues in that, under the proposed bill, the president will be a serving chapter III judge. This is a process that's often replicated in state courts in my home state of Victoria. The equivalent, VCAT, has a serving Supreme Court judge acting as president. But that doesn't mean we're avoiding the constitutional issues, particularly here in the Commonwealth.

It has been put by others, including Gray in his submission, that this potentially creates the existence of a chapter 2.5. A serving Federal Court judge serves within chapter III, 'The Judicature'. But to then serve as a president of the Administrative Appeals Tribunal or the Administrative Review Tribunal means they are serving in a chapter II capacity. Whilst our separation of powers is blurred between chapter I, 'The Parliament', and chapter II, 'The Executive Government'—we even sit in the same building and are held to account here—that separation is strictly enforced between chapters II and III or between chapters III and I. We've seen that in the NZYQ case. The courts take that separation extremely seriously, and it often makes for difficult policy decisions and responses having to be made. To have that executive body headed by a judge under chapter III creates potential issues. Again, if we'd had a proper inquiry, we could have heard constitutional experts talk about this.

This isn't the first time this government has been quite cavalier in potential constitutional issues. We saw it in the Voice referendum, where the important function of the joint select committee in scrutinising the potential constitutional issues was really dismissed out of hand. That inquiry was turned into a PR campaign to help win the referendum. I would submit that doing it that way didn't actually help the campaign. You'd like to think the government would learn its lesson on being cavalier with constitutional issues.

Again, in question time, we have held the government to account about being cavalier in the NZYQ case, in the instructions that the minister gave for that case and also in the response since. Again, in his personal capacity, Gray Connolly proposes a potential solution: that maybe the president can be a retired judge. A retired judge is on a judicial pension but is no longer a serving member of a court. That would mean we're drawing upon all of the expertise and legal knowledge that a judge would have—perhaps even more so, because they've had their career. But they can then perform the functions of president, which includes some mundane things like the allocation of cases and resources, speaking to the minister about potentially requiring more money and funding. That's not something a serving judge should be doing.

In conclusion, it is right and proper that we review this important process, but we should make sure that review is done properly and in a way that Australians expect. Thank you.

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

I acknowledge the member for Menzies for his role on the Standing Committee on Social Policy and Legal Affairs, which I chair, that looked into the bills that we are discussing today, the Administrative Review Tribunal Bill 2023 and related bills. Just to give context to it, ours was a narrow inquiry to ensure that the bills met the intended policy objectives of streamlining the administrative appeals process. It wasn't about questioning how we change it or if we should change it. Those discussions happened long ago.

We long ago determined that the Administrative Appeals Tribunal needed to go. It had been irreversibly damaged by the behaviour of those opposite when they were in government. Eighty-five former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close liberal associates were put on the AAT with no merit-based selection process. That included some people who had no relevant experience or expertise. In that way, the former government fatally compromised the AAT. Once its independence was undermined and, quite frankly, when its credibility and integrity was under question by the wider community—who turned to it at sometimes the worst possible times—we made the decision that the AAT needed to be replaced.

To reassure the member for Menzies, there will be a very thorough Senate inquiry, and I'm sure we will both enjoy reading the transcripts of the hearings that are held for that.

This bill, for me, is about restoring integrity in the system. My community expects that. The AAT is one of the bodies that they had no faith in. They had no faith that, if they were a child-support payer or recipient and they took an issue through the processes of the child-support agency and then were dissatisfied with how it was handled and therefore went to the AAT for an independent expert review, what would come out the other end would be fair and just. That was the same for all the different areas that the AAT covers—everything from family assistance, paid parental leave, social security and student assistance to taxation matters, migration and refugee visa issues and visa related decisions, Australian citizenship decisions, bankruptcy decisions, civil aviation matters, freedom-of-information matters and the National Disability Insurance Scheme, which would be the one where we, from my office, have seen the greatest flow-through of matters to the AAT. So I think it's vital that this institution is given some credibility again, and I'm very pleased that the legislation and the circulated amendments that are before us are going to provide something that Australians can have faith in and have confidence in.

When we inherited the AAT, not only was it not on a sustainable financial footing but it was beset by delays. There is a huge backlog of applications that are operating through the system, and it's operating with an ageing electronic case management system. All of this is the legacy that has had to be dealt with.

I can't stress how much of a cost those failures of the previous government have for regular constituents in the electorate of Macquarie, for people who just want to be able to get on with things. In reality, there are tens of thousands of people who rely on the AAT each year to review government decisions that can often have life-altering impacts. It can be about whether an older Australian actually receives a pension or not. That's a pretty profound decision. It's whether a veteran is compensated for a service injury. Again, those opposite understand the profound impact that can have on a veteran, where there are delays in that process, let alone whether they are fighting a decision that they're uneasy with. It's whether an NDIS participant actually receives the support that they feel they deserve.

The Attorney-General announced that the design of the new body would be subject to consultation, and it has been. It has been subject to consultation throughout 2023. We did what we said we'd do. We also made it clear that AAT cases that are underway when this change occurs are going to be automatically transitioned to the new body. I know that is an area that some people raised as a concern, but that transition is embedded in the way that we will do this.

We are committed, as a government, to restoring trust and confidence in the way we run government. That includes, in Australia, a system of administrative review, beginning with this new administrative review body that will be user focused, efficient, accessible, independent and fair.

A key feature of how the body works is the transparent and merit based selection process for the appointment of non-judicial members. I want to paint the contrast: where the previous regime appointed as many as 85 people just because their qualification was Liberal, ours will be merit based. We are determined to do that.

During the inquiry we ran, we thought it was important to consider the sort of experience we will expect people to have, including a requirement to have legal experience. For instance, senior members of the ART must have been enrolled as a legal practitioner for at least seven years, or the minister must be satisfied that the person has at least seven years specialised training or experience in a subject matter relevant to the jurisdiction of the ART, and general members must have been enrolled as a legal practitioner for at least five years.

I note that under the amendments that have been circulated this merit based appointment process is strengthened even further, to put beyond any doubt the legislative requirement for there to be an assessment panel as part of the merit based process for appointments to the tribunal. That alone is going to be a game changer in building confidence that the people on the Administrative Review Tribunal will have the qualities, the expertise, the skills, the knowledge and the experience that are needed to fairly evaluate complex cases. Remember: by the time something gets to this level of review, it's been through a lot of steps, and there's been a lot of disquiet along the way.

The ART Bill builds on 50 years of experience, learning and broad consultation. It draws on what we know works in a tribunal and it looks at what hasn't worked. The ART Bill implements all three recommendations from the Legal and Constitutional Affairs References Committee review into the performance and integrity of Australia's administrative review system. That was one of the first reviews. But it also fulfills four recommendations from the Royal Commission into the Robodebt Scheme and the government response to two recommendations from the Rapid review into the exploitation of Australia's visa system. So it is evident that it has been well thought through. I'd also point to the 30 submissions that we received from some individuals and many organisations and respected bodies, who provided feedback on the bill.

The whole objective of the tribunal is that it be an independent mechanism that is fair and just and that resolves applications in a timely manner and with as little formality and expense as is consistent with reaching the correct or preferable decision. That came through very clearly in the hearings that we held with the Attorney-General's Department. They had a real desire for this to be a place where people could actually have dialogue. It also needs to be and will be accessible and responsive to the diverse needs of parties, and that means accessibility in a whole lot of ways. The consequence will be improved transparency and quality of decision-making and increased public trust and confidence in the tribunal.

I want to point to some of the recommendations that our committee made and some of the amendments that have picked up those recommendations. I've already referred to the circulated parliamentary amendments focusing on strengthening the merit based appointment process. That was something that members of the committee were very keen to see, and it is terrific to see that in the circulated amendments. One of the amendments is a response to stakeholder concerns regarding the role of litigation guardians, including changing the name. For some people this might seem like a small thing, but language has power. One of the discussions we had during the hearings was around the use of the term 'litigation guardian'. As was explained, that language was questioned by a number of stakeholders. As a consequence, there was discussion around alternative language. Even changing just one word, from 'guardian' to 'supporter', changes the mindset of the person who has that person by their side. I really welcome that.

There was a lot of discussion about the review process. One of the things that came through very clearly in our hearings was the understanding that this is designed to be a self-improving, self-correcting system which doesn't rely solely on a review at a fixed point in time. But, as the Attorney-General's Department said, the review is built-in. If there's a problem, we should be able to identify that and have an opportunity to look at ways to fix it much sooner than if there is a statutory review. At the same time, I think there's always merit in having a formal place where review occurs, and our introduction of a statutory review to commence around five years after the commencement of the ART Bill is another step that will provide confidence.

There is also the capacity for a second review for social security matters. While the process is designed to allow for those matters to be dealt with as in the normal course, stakeholders during our parliamentary scrutiny did raise ideas around how it might be handy to have that additional, second review, and the circulated parliamentary amendments certainly look to reinstate that.

Another one of the amendments is to ensure that the tribunal decisions can be published, by amending secrecy provisions in family assistance law to allow de-identified decisions to be published. That was seen as something that would be very useful, for there to be ongoing education and accountability around decisions.

Another issue that came up during our inquiry that has been addressed is around the Migration Act. I think it's important to know that these changes will help address those crippling delays in the Migration and Refugee Division of the AAT, which, quite frankly, are motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection. This comes at a real cost to people who are in genuine need of protection. There will be, subsequently, amendments to the Migration Act to ensure the original policy intention is clear and reflected in that legislation.

These circulated amendments build on the highly consulted package that has come forward. I commend the package to the House.

Dai Le (Fowler, Independent) Share this | Link to this | Hansard source

During my time in office, I've had constituents coming to see me, desperate and upset, following a devastating decision made by government departments—particularly, a constituent who had his temporary protection visa rejected. His next avenue was to apply to the AAT to have the decision reviewed. We must remember that people who have fled war-torn countries are not well versed in Australia's laws, rights and obligations.

This constituent came in with so many questions: 'What do I need to do? How do I apply? What is the cost?' The cost is what made him pause. He had to consider hiring a legal representative—money he did not have. Of course, you also have to pay an application fee to the AAT. How then is this an accessible and affordable route to holding government departments and agencies accountable for their decisions, especially in the instance where someone is unable to make a living and therefore not able to access Australian services?

What about families who are unable to unite? Another constituent applied to the AAT in the hopes of changing a decision that was made for a remaining relative visa. The applicant was elderly and was subjected to further wait and the stress of not knowing when and what decision could be made.

The AAT is seen as a ray of hope for many, but it is unfortunate that many others are left uncertain of their pending matter and its progress. I believe it is important to implement proactive communication by the AAT—perhaps correspondence which provides updates at least within 12 months of application and every 12 months thereafter, even if only to notify the matter's queueing time. This proactive communication would give relief to applicants, who generally only receive acknowledgement of receipt once the AAT invites an applicant to a hearing. I believe this will also reduce the high volumes of emails and letters sent by applicants, which the AAT are obliged to read, when the writers of these emails and letters simply want to know how their matter is going. These are just a couple of stories, but there are many more from those who've known of someone or who have been that someone who has been impacted by the Administrative Appeals Tribunal's decisions.

I understand that the AAT provides a critical layer of accountability to review decisions of departments. However, shouldn't its powers be extended so that it has jurisdiction to review the lack of decisions made by departments—that is, their failure to make their decisions within stipulated time frames? If we are to reform the AAT, why is the government not considering the omissions made by government departments in the decision-making process? The issue we have here is a stalemate, of having to wait. Take, for example, a decision to be made on a visa. Why are we not holding government departments accountable in this sphere?

Therefore, the Administrative Review Tribunal Bill 2023 and cognate bills hold significant importance for my constituents—both current constituents and those whose futures we are deliberating upon as we speak. Eleven per cent of the total inquiries from my Fowler community are specifically about this issue. Many of our constituents have gone through the process of becoming permanent residents and are anxious to reunite with their loved ones. With security of family affairs cared for, I believe greater social cohesion will be formed and productivity will increase.

It is critical that the provisions of this bill are applied cohesively and equally across both citizens and noncitizens. I am deeply concerned about the disparities between the entitlements granted to citizen and non-citizen applicants. This inconsistency will continue to add to the existing disadvantages of refugees and migrants, undermining the tribunal's ability to deliver effective outcomes.

In 2022-23, close to 50 per cent of all applications made were on migrant and refugee matters. Of these, 83 per cent of applications stayed unresolved for more than 12 months—83 per cent. This is unacceptable. Constituents in Fowler often reach out, distressed and disheartened by their circumstances. The last thing they need is to be met by systematic and bureaucratic barriers to getting a resolution. The principle of the bill should enable applicants to effectively engage with the review process to ensure fair outcomes and transparency.

This group is but a small representation of a large cohort of my community struggling to get a proper response. Many are uncertain of their next steps and are faced with a lack of clarity. Every effort taken to alleviate the burdens imposed upon applicants in migrant and refugee matters counts. As the voice of Western Sydney in my Fowler community, it is important that I present their views, challenges and struggles. Many have lost faith in the AAT and its strength to protect their dignity, as they are left in despair, feeling hopeless—waiting endlessly for a favourable outcome. Therefore, the people of Fowler will no doubt be the first to let you know whether this bill is, as it states, one that is user focused, efficient, accessible, independent and fair.

Since its commencement on 1 July 1976, the principal objective of the Administrative Appeals Tribunal—better known as the AAT—has always been to (1) ensure correct and preferable decisions are made by departments, their ministers and delegates and (2) form these judgements based on their own independent and robust interpretation of the law and policy as it best serves the interests of Australians. That was the intention when it was first commenced. But, like many big administrative bodies, the people involved, the experts appointed and the government of the day have changed, and so, over the decades, the AAT has evolved. It is a big step, and an expensive one, by the government to consider axing the AAT, but, as many of my crossbench members have mentioned, change is needed. If the new body, the ART, is to replace the AAT, it must fill the gaps and weaknesses of the AAT. I welcome the many aspects of the bills that seek to be efficient and quick in addressing the previous backlogs and gaps associated with the AAT.

Although the bill aims to provide more accessible and responsive support for people who require additional and tailored support, there are still some gaps and pain points that I would like to address. In particular, the bill falls short of meeting its objective for migrant and visa applicants. It is especially concerning for me that the objective under the new legislation is more concerned with being efficient and quick rather than being fair, just and economical, like the AAT. There must be a balance in this. I appreciate that the government is attempting to address the overdue system, but I call on the government to consider the barriers to access and the equity issues for migrants, refugees and asylum-seeking applicants. It is these applicants who are most in need of greater flexibility and dedicated measures to improve accessibility.

Fowler is home to many migrants, including refugees like myself. The number will likely grow exponentially. In 2016, most refugees were settled in local government areas of Liverpool, where they account for 20 per cent, and Fairfield City Council, where the figure is 73 per cent. In my experience with assisting non-English-speaking constituents, I believe that the protracted time frame for noncitizens to lodge an appeal is inequitable and insufficient. It is particularly difficult for a non-English-speaking constituent to seek assistance to comprehend such complex legal decisions within a limited time frame. I suggest that the government take this into consideration and consider the applicant's primary language when communicating the outcome of a review decision.

I understand that the provisions in the ART Bill allow for certain groups of applicants to apply for legal or financial assistance on the grounds that the request is reasonable and refusing would lead to further hardship. This may disadvantage migrant applicants who have limited or no English speaking ability. I call on the government to extend the application of this provision for all matters to ensure accessibility for all applicants. This reflects a human rights based understanding of the right to a fair hearing, as well as an individualised approach to administrative review, including the consideration of cultural factors, disability and health concerns.

The truth is that the new and improved provisions in the ART Bill are still failing to meet this objective for migration and protection visa applicants. These groups of people within Fowler will continue to struggle under the distinctive procedural code that excludes them from some of the benefits of the proposed bill. By refusing to take adequate actions and promote equity before the law, the government is refusing to address the innate inequality associated with the system.

Section 359A(4)(d) of the bill provides that the ART is not required to notify applicants of information that it intends to rely on to affirm the decision under review. It is concerning to me that this piece of legislation is departing from existing procedural fairness requirements. In terms of cost, the application fee is $3,374 for the AAT. This is overwhelmingly high for individuals, who are already struggling with the cost-of-living crisis. I ask the government to reconsider the issue of accessibility, which is tied with immigration assessment authority, the IAA, and the proposed ART system.

Clauses 201 and 203 establish a code of conduct and create powers for investigations to transpire if a performance standard has been breached. I question how strictly these performance standards will be enforced and what mechanisms will be implemented to ensure that shortcomings are adequately rectified. It is my understanding that the bill allows for the establishment of an independent selection panel to provide recommendations to improve the processes of the tribunal. However, it's not mandatory that these recommendations are adopted. I question whether the tribunal will consider the recommendations to address gaps in its operations. I appreciate the government's efforts to address the previous merits review system under the IAA, which was heavily politicised for being neither fair nor efficient. However, I want to note that it took nine years for the government and decision-makers in this room to propose a prospective resolution.

Should this bill be assented, we must ensure that it is ready to meet standards that reflect our migrant and ethnic communities. It is our golden opportunity to close a gap. I call on the government to ensure that we are proposing policies that are working for all people. To be part of an advanced Australia, we must ensure that there's progress, that our systems and processes are world class and not built to leave people behind.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

It's with great pleasure that I rise to speak in support of the Albanese Labor government's Administrative Review Tribunal Bill 2023. This bill is being debated with two consequential bills in a cognate debate: 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. Collectively, these three bills will abolish the, sadly, now much discredited Administrative Appeals Tribunal and replace it with a new and much improved Administrative Review Tribunal. In doing so, these bills represent the most important reform of the federal system of administrative review in decades.

The former body, the AAT, as it was known, was established to conduct independent merit reviews of administrative decisions made under Commonwealth law. It's important to note that its decisions had life-changing impacts for the thousands and thousands of Australians who took decisions before the AAT. These decisions might have been around child support matters, workers compensation, migration and visa issues, social security, veterans' entitlements and indeed these days increasingly matters from the National Disability Insurance Scheme—a huge gamut. These are all matters that have had profound impacts on people's day-to-day lives when Commonwealth laws might not have delivered the intended outcomes for people seeking support or redress.

Sadly, despite the importance of the AAT and the significance of the decisions made by that body for thousands and thousands of Australians who had cases and matters before it, its standing had been irreversibly damaged as a result of the actions of the former coalition government over a period of almost 10 years. The former government had so severely eroded trust and confidence in the former Administrative Appeals Tribunal. That erosion was ongoing but came in the wake of pretty overt, blatant political stacking of the ranks of the AAT. Very blatant political appointments were made that really undermined public confidence in the independence of the AAT and, likewise, eroded the quality and efficiency of decision-making within the AAT.

These were profoundly worrying issues for Australian citizens but really should have been very worrying for this parliament as well. In fact, if ever the Australian people need reminding of just how little regard the former government had for good governance and due process, they need not look any further than the operations and the appointment processes of the Administrative Appeals Tribunal.

As many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and people who had close associations with the Liberal Party were placed into what were pretty good jobs, it has to be said, at the AAT—jobs that were well paid with good conditions. I don't begrudge any worker good pay and conditions, but there was a very, very blatant process underway that really failed to address the need to ensure that merit based selection processes were in operation when appointing people to critically important roles administering the operation of Commonwealth laws. They were on salaries that were worth hundreds of thousands of dollars. I know there were part-time tribunal members, as well as full-time, but, as I said, that steady erosion of public trust and confidence had really become intolerable; hence the need for these bills before the House today, which I will come back to.

When we reflect on those 85 former Liberal MPs, failed candidates, Liberal staffers and people with close associations with the Liberal Party, there were some very significant appointments during that time and there were people very close, even, to the then government. So we saw appointments like the one of the former chief of staff to the former Prime Minister—now former member for Cook—Scott Morrison. His chief of staff was appointed as a senior member in the month just before the 2022 federal election. She was certainly not alone in that appointment process. I don't mean to suggest she was the only person given a plum job on the eve of an election where people were worried about not being re-elected again, but that job received a pay of $330,000 a year. I think the Australian people have every right to expect and, indeed, demand that good governance processes be in place for those kinds of appointments.

As I said, I do not mean to single out that appointment, because there were many, many, many others in the lead-up to the dying days of the former government. There were appointments in 2019 that I recall well. All of this is well researched and recorded. The Grattan Institute did a paper on how many of these appointments had been made. Indeed, there was an observation that appointments to the AAT under the former government really represented one of the most egregious examples of political stacking in recent times. As I said, the 2022 paper from the Grattan Institute noted that a staggering 20 per cent of the AAT's 320 tribunal members have a direct political connection. It is hard to argue publicly that every single one of those members are indeed there on the basis of pure merit based recruitment processes. It is that public perception and the weight of the sheer numbers—as I said, 85 blatant political appointments—that made it utterly intolerable for the AAT to remain ongoing in the form it had been prior to the Albanese Labor government being elected. If ever the Australian people needed reminding of just how little regard the former coalition government had for good governance and following due process, they need look no further than the outrageous actions that took place with blatant political appointments to the AAT.

There was a repeat of those kinds of appointments in 2019 and again in 2022, on the eve of the last election—the swansong of the last government. I remember one from my own region: Mr Baldwin, the former member for Paterson. Whilst I recognise his skills as a former member, it was uncertain to me as to how a merit based appointment had been followed in his case and in the case of so many others. It really looked like a whole lot of people looking after friends who were no longer going to be gainfully employed either in the Australian parliament or elsewhere. I think it was the preference of the former government to be blind to the structural inequities that can exist both in appointment processes and in the way in which we think about the bodies that oversee the operations of Commonwealth laws.

I was thinking about this earlier today. Let me put it this way: for a party that insists it is unable to lift its female representation in this place without a merit based appointment process, it astonishes me that this was a process totally ignored in the appointment and recruitment process for members of the AAT beforehand. It's utter hypocrisy, and I'm sure that the Australian people have well and truly seen through that. Indeed, they have said, 'Enough is enough; no more of that kind of behaviour.' We were left with no choice, really, but to demand the abolition of the Administrative Appeals Tribunal and to replace it with a new federal administrative review body—one that is in line with our commitment to proper merits based appointment processes and proper due process being followed.

We embarked on a consultation process that started in 2023. Over the course of the last year, the Attorney-General's Department had significant consultation with AAT staff and members, AAT users, the peak bodies, legal assistance providers, advocates and other experts. There were 120 responses to a public issues paper and 287 short survey responses, and there was consultation with 147 stakeholders at 80 consultation events in April and May 2023. We have the benefit of nearly 50 years of experience since the AAT was established, and multiple reviews, both old and new, into the AAT and the administrative review system more generally. This consultation has provided the government with an in-depth understanding of what does not work within the current system, and we have drawn on the knowledge and wisdom of an expert advisory group. This group was led by former High Court justice the Hon. Patrick Keane and had a list of eminent persons to assist. The outcome of all of that consultation process is the legislation that is before the House today. It's a legislative package that aims to create a unified cohesive tribunal with flexible powers and procedures that meet the best needs of the applicants. I think it's high time that our tribunal reflected the needs of applicants. These bills are ambitious and they are comprehensive, because we are rebuilding an institution that's intended to serve the community and drive better decisions and outcomes for many years to come.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

The Administrative Appeals Tribunal was established nearly half a century ago with the honourable intention that it should be a simple, straightforward and speedy way for ordinary citizens to challenge decisions of government and to ensure that ministers and public servants were acting within the law.

The last government lost power after a decade in office because it had lost the confidence of the people. At the heart of that was its failure to maintain the integrity of institutions. The AAT was one. Analysis by the Australia Institute found that under prime ministers Howard, Rudd and Gillard political appointees to the AAT accounted for just six per cent of the total at most. During the Abbott and Turnbull years the number of political appointees leapt to 23 per cent. During the Turnbull and Abbott years it leapt to 35 per cent, and during the final term of the Morrison government it leapt to no less than 40 per cent. Not only that, but the coalition government treated the AAT with increasing contempt. Notably, the AAT made hundreds of decisions relating to robodebt, finding repeatedly that the policy was unlawful. Minister after minister wilfully ignored those decisions, as did government departments and agencies. The consequences for victims—financial and psychological—were appalling. People with disabilities seeking review of NDIS decisions were all caught in its vortex. I have spoken to families in my electorate who endured extraordinary and long-running pressure and anxiety owing to their dealings with the AAT. The net effect was that the public lost confidence in it.

In his second reading speech, the Attorney-General declared that among the objects of the legislation, the Administrative Review Tribunal Bill 2023, was to ensure that the new ART would be fair and just and would promote public trust and confidence. Based on feedback, it's understood that the government plans to amend the legislation to incorporate measures to ensure the independence of the appointment process and to ensure that new members of the tribunal would be appointed on merit. The crossbench is working closely with the Attorney-General's Department to make sure that these measures are strong enough.

Along with the abolition of the AAT, the ill-starred Immigration Assessment Authority—which was supposed to expedite the now-notorious fast-track process—has also been dismantled. It proved a conspicuous failure. It was the handling of cases involving refugees and asylum seekers that raised some of the biggest questions about the tribunal. Among the most serious were questions about bias, fairness, competence and timeliness. Analysis by the Kaldor Centre for International Refugee Law raised significant questions about the consequences of the political appointments made by the last government. In protection visa cases, its data shows that the odds of an applicant succeeding were 25 per cent higher where the applicant appeared before a tribunal member appointed by a Labor government compared with coalition-appointed members.

There was also an element of retribution in the behaviour of the previous government, with Kaldor data showing that, of the 20 decision-makers with the highest acceptance rates for protection visa applications between 2015 and 2020, 80 per cent did not have their appointments renewed by the coalition. With a recent history like that, it's clearly going to take a lot to restore confidence in the application of administrative law, especially when it comes to asylum seekers and refugees. The new tribunal is likely to face one of its greatest tests in that area. That's because the AAT was part of a system blighted by delays, political appointments and concerns about impartiality, as I outlined—in short, a system that denied people seeking asylum an efficient and a fair review process.

The new tribunal will be responsible for reviewing administrative decisions to ensure the correct and fair decision is made by the Department of Home Affairs regarding refugees and migrants. This review is the last opportunity for a person to have their claims for protection assessed. The consequences of incorrect tribunal decisions are severe and include refoulement—that is, the forcible return of asylum seekers to a country where they could face persecution—prolonged detention and permanent family separation. Decisions can be the difference between life and death, freedom, safety or long-term detention for those people.

Decisions made by the ART must have integrity, but the way some provisions are currently drafted means they won't, according to submissions from the refugee sector and the Law Council. There remains some conjecture and disagreement on the part of the government. But, according to the Asylum Seeker Resource Centre, provisions in the legislation maintain an unfair and distinct set of rules for refugees, people seeking asylum and migrants than for other applicants. Specifically, unlike others appearing before the tribunal, they may be excluded from access to funded legal services. On the face of it, this is discriminatory and a denial of procedural fairness.

As the Kaldor centre point out, applicants with legal representation are on average five times more likely to succeed than those left to represent themselves. Here's just one example provided to me by the ASRC. Ateba is a divorced woman from Ethiopia. She arrived in Australia, having experienced physical and sexual violence at the hands of her former husband as well as persecution for her political opinions. Trauma and cultural taboo meant she did not disclose the violence she'd experienced until she was able to get a lawyer through the ASRC and established a relationship of trust with that lawyer. It took months, but without the lawyer it's highly unlikely that she would have been able to raise the claims or articulate the reasons that she couldn't raise them earlier. Working through it with a lawyer, the presumption was able to be rebutted.

The Refugee Council warns:

… maintaining a separate set of procedures for migration and refugee cases will lead to further inefficiencies, appeals and potentially, the denial of refugee protection leading to refoulement.

The Asylum Seeker Resource Centre argues:

The lack of free legal assistance to people seeking asylum and refugees has had a devastating impact on their ability to engage with the review process due to barriers including literacy and language skills, poor mental health, and isolation from community support, especially for people in immigration detention. Protection visa applicants, including people in detention and prison, often experience greater barriers with access to justice and should be eligible to apply for legal and financial assistance regarding their review applications.

The Law Council of Australia has also recommended that such applicants should have access to funded legal representation on a means-tested basis.

I've had extensive conversations with the Attorney-General's Department on this. The department insists that there is 'no restriction at all on legal representation' for applicants in the Migration and Refugee Division. The department says that this impression is a consequence of bad language in the original act. Yet, the refugee sector and the Law Council, even as of a few minutes before I delivered this speech, continue to differ. With all of that in mind, I'm continuing to work with the government to clarify this. I had intended to move an amendment that would remove the elements in section 294 of the bill that may exclude applicants in the migrant and refugee division of the new tribunal from access to legal advice and representation.

As it turns out, a proposed government amendment circulated late last night would appear to pre-empt that amendment, and therefore I've been forced to withdraw my own amendment. The government says that its amendment would provide that an applicant for review of a reviewable migration or protection decision may apply to the Attorney-General for legal or financial assistance if the proceeding is referred to the guidance and appeals panel. The refugee sector and the Law Council retain their doubts, so it's a work in progress. The ASRC says that what the government is proposing would be of benefit to a handful of applicants at best and would still deny procedural fairness to many. The Law Council says the government amendment is a step forward but does not apply to all reviewable migration and reviewable protection decisions, as it had recommended. The Law Council adds that it would allow access to legal assistance for reviewable migration and protection decisions, 'but only where the review is of a decision referred by the president to the guidance and appeals panel'.

The ASRC also says the government amendment raises a number of questions: firstly, that the president has the power to refer to the guidance and appeals panel if it raises an issue of significance to the administrative decision-making and it is appropriate in the interests of justice to do so—therefore, it is not a question of need or vulnerability; secondly, that a person cannot refer their own decision to the guidance and appeals panel and also that a person is required to apply, which is a barrier to access; and, finally, that there is no guarantee that, on application, funding will be offered. So there are several unanswered questions.

What is still not clear is why other jurisdictions should have access to assistance and not the jurisdiction where assistance demonstrably has a critical impact that could be a matter of life or death and where applicants face severe barriers to access to justice. It would assist if the Attorney would improve the legislation or at the very least offer the House the clarification and assurance that refugees and asylum seekers will have the same right to legal representation as other applicants.

In short, there is some work to do on this bill for it to be ready to pass. I acknowledge that the government has a large package of amendments that it is yet to move, and I would add here that better practice would have been to finish the draft bill, including the amendments, before this debate, rather than all of us having a debate on a bill that is not final.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise in support of the significant and necessary reforms contained in the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023. For a little bit of background, the establishment of the Administrative Appeals Tribunal, the AAT, is a proud part of Labor history. It was established by the Administrative Appeals Tribunal Act, which was passed in 1975 under Prime Minister Gough Whitlam. The first head of the AAT was Sir Gerard Brennan, who went on to be the Chief Justice of the High Court. That was the sort of rigour that we were bringing to the process of giving the Australian public the chance to question the decisions of the Australian government, something that this building is actually designed to show. The design of this building is that the public walk in through the doors and, if every door were opened up, they'd be able to look at the Prime Minister sitting at his desk. The architects are saying the public have a view of the executive. This building reflects that. The other line of power is between the states' representatives over there and the people's representatives in the green chamber, but that line of power between the people and the Prime Minister or the executive—the cabinet—is important. The people of Australia must be able to question the decisions of the government of Australia. Countries where that doesn't occur are not like a Westminster democracy. That's why the AAT is so crucial.

Back then, under Gough Whitlam, we understood the need for an independent body to review the decisions of ministers and departments, who, dare I say—present ministers excluded!—can sometimes get it wrong. They make a decision and then there's an unintended consequence, shall we say, for certain Australians, and those Australians need to be able to question that decision.

This initiative, under Gough Whitlam, was the first of its kind in the world. It reflected the core tenet of the democratic system of government: that the government is answerable to the people. The AAT allowed citizens to challenge the government and ensure that the decisions made under Commonwealth law were fair and just. That's what the AAT was set up for.

Throughout the years, the AAT has changed shape. The former coalition government incorporated the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal into the AAT in July 2015. This amalgamation was actually mismanaged and has left an unfortunate, to say the least, legacy that includes an unsustainable financial footing for the AAT. A Labor government created the AAT with honourable intentions, to look after the Australian people, and it's now time for another Labor government to fix the mess wrought by the previous Abbott, Turnbull and, most of all, Morrison governments. So that's why I stand here today, because these bills replace the mismanaged and badly compromised AAT with a tribunal that Australians can have trust and confidence in. It will be called the Administrative Review Tribunal, and it can't come soon enough.

Labor inherited a swathe of problems with the AAT, and we've taken action to fix them. The coalition government handed us an AAT that was bloated by a large backlog of applications—that's the first reason that we're here today—and had electronic case management systems that weren't fit for purpose. Unfortunately, those weren't the only problems. As those listening might have noticed, a lot of the people speaking are not from the Liberal or National parties. There's a great silence from those opposite when it comes to this important piece of legislation. We inherited a Liberal stacked membership. The Australian public deserves a federal administrative review body that is not stacked with people that have connections to the sitting government. The former coalition government appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close associates. I'm not going to go through their CVs to talk about their merit, but obviously that becomes a problem.

Over time, the percentage of Liberal appointments increased to the stage that, when Scott Morrison was the Prime Minister, two out of five appointments had a strong connection to the Liberal Party. I'm sure that would have continued but for, thankfully, the Albanese government getting elected in 2022. In fact, in 2022, the Grattan Institute's research showed that 20 per cent of the AAT's 320 tribunal members had a direct political connection to the government that appointed them. So, if you were an Australian punter and you rocked up to ask the government why they made a particular decision, you had a one in five chance of a Liberal person reviewing a Liberal government decision. Can you see the problem? Obviously, as anyone who understands the justice system knows, it's not enough for justice to be done; justice must be seen to be done as well. So, when we had decisions of the Liberal government being reviewed by Liberals, that is a problem. It should be a red flag. I wonder if every cabinet minister in the Morrison government didn't raise this. The current Leader of the Opposition sat in that cabinet. Surely he raised this. But we're not hearing that in any of the speeches from those opposite. We just hear a deafening silence.

We cannot have Caesar judging Caesar. Why is this important? The AAT, as I said, without going into all the details about the Constitution and judicial appointments, is a way to review the decisions of the government. Maybe those people who were appointed had merit; maybe they didn't. It doesn't matter, when you have a perception that only Liberal Party appointees are put in there without a merit based selection process. If the only criterion is that you've got a Liberal Party membership card in your wallet, that is not a merit based selection process. Some of the people appointed had no relevant expertise or experience. How can a review body that is stacked like that claim it is independent and has the expertise needed to review decisions made by public servants and the government? Obviously, it cannot. A full-time member of the Administrative Appeals Tribunal could be paid from about $207,000 up to about $530,000 per year. Obviously, that's a pretty attractive target for a political appointment. I don't know about you, Deputy Speaker, but to me, without a merit check, it does smell a little bit like jobs for mates, and it did to the Australian people too.

The Albanese Labor government listened to the issues that were raised through both government scrutiny and stakeholder feedback. We held extensive consultation with the public, the administrative review expert advisory group and several parliamentary committees. It was clear that, in order to rebuild public confidence in the new Administrative Review Tribunal, we must ensure that our appointment process is far removed from any political process. It must be merit based. The new appointment process is transparent and guided by the operational needs of the Administrative Review Tribunal. It will also be simplified. There will be clear qualification requirements for applicants, and there will be role and responsibility descriptions for the four levels of membership, including for the roles of president and principal registrar, who will set much of the tone.

The qualification requirements contained in the bill are more stringent. The president of the Administrative Review Tribunal must be a judge of the Federal Court of Australia, and judicial deputy presidents must be judges of either the Federal Court of Australia or the Federal Circuit and Family Court of Australia division 1. These are the judicial appointments that I mentioned earlier. Other appointments must be enrolled lawyers with varying degrees of substantial experience, specialised training or experience in relevant subject matter.

It's also important to note that the president will have enhanced powers to manage the performance and conduct of the members, which is very important when you consider the crucial role they play in government review and in people's lives. This is unlike the judiciary, where, once you're appointed to the judiciary, effectively no-one manages you, apart from the common law and the parliament, and you can't be told to do certain things. Things can be suggested, you can be guided and you might even be transferred to another part of your state or territory, but that's a slightly different process. Here, the president will have these enhanced powers because the work of the review body is critical.

The role of the AAT member is to review the decisions made by government departments. They are not a Liberal Party stamp factory. That is not what they are, and I should clarify that they're not a Labor Party stamp-manufacturing process either. We want them to make independent decisions that question the role of the government. They must make sure that the legislation and policy have been followed in all stages of the decision-making process. Tens of thousands of Australians rely on the tribunal to independently review departmental decisions that can be life-altering for them. That's why trust in the ART is crucial, because it makes decisions that can literally change lives. I'm talking about whether a permanent visa is granted, whether an age pension is received, whether a veteran can access compensation for an injury they acquired while serving our country or whether a person with a disability can receive the required level of NDIS funding. These are crucial moments in individuals' lives.

The politicisation of appointments to the AAT undermined the independence of that important body. Under the coalition, the integrity of the Public Service was constantly undermined. We saw that in the 2000s with the Howard government and the outcome of the Palmer and Comrie inquiries into the immigration detention of Cornelia Rau and Vivian Alvarez. We saw it again under the Abbott, Turnbull and Morrison governments with robodebt.

That's why the Albanese Labor government is taking action. In a democracy, it is so crucial that there is an independent body that reviews departmental decisions. This allows applicants—citizens of Australia—to have natural justice, and it provides them with the opportunity to ensure that all their grievances or concerns regarding decision-making are investigated. It also builds confidence in the government and the way the government departments function.

These bills implement all three recommendations from the Senate Legal and Constitutional Affairs References Committee's review into the performance and integrity of the administrative review system. They also implement four recommendations from the Royal Commission into the Robodebt Scheme, which I know will only be of very small consolation to the thousands who suffered terribly or lost their lives because of those decisions—or lack of decisions.

The day-to-day operation of the ART will be enhanced to make it run more efficiently. It will emphasise a non-adversarial approach to decision-making. Improved procedures will make it possible to respond flexibly to changing case loads, and it will make it a better experience for those seeking review. It will ensure that process is focused on the user and is efficient, fair and assessable. Reflecting these enhancements, we've responded to stakeholder concerns about the term 'litigation guardian', which suggests substituted decision-making, and will change it to 'litigation supporter'.

Importantly, the bills also allow for identification, escalation and reporting on systemic issues in admin decision-making. This includes the re-establishment of the Administrative Review Council, adding another layer of transparency to the review system. The Administrative Review Council will focus on the integrity of the Administrative Review Tribunal and also implement training for Commonwealth public servants in decision-making and administrative law, vital recommendations coming out of that robodebt report.

The bills also establish a guidance and appeals panel mechanism, ensuring that there is consistent decision-making as well as quick responses to emerging issues. Further transparency is provided by the bill, enabling the tribunal to publish any decisions and requiring it to publish all decisions regarding significant conclusions of law or those that affect Commonwealth policy or administration. The supporting consequential and transition bill will amend 138 Commonwealth acts to ensure that existing legislation supports the intentions of the new tribunal. It will also streamline reviews of migration and refugee decisions by removing the Immigration Assessment Authority so that these processes are more efficient. The bill continues to recognise the unique features of veterans' entitlement law, with maintenance of the merits review in both ART and Veterans' Review Board. To minimise disruption and delay from the changeover from the AAT, active, pending and potential cases and those currently before the courts will be transitioned to the Administrative Review Tribunal.

With these bills, the Australian public can be confident that the ART is fair and just. It will be subject to a statutory review after five years. It will require a second review for social security matters. It will provide decisions in a timely manner, avoiding lengthy procedures and cost blowouts. Crucially, it will be responsive and accessible to the diverse needs of parties. These measures will restore transparency and quality of government decision-making. As I said at the start of this speech, it can't come soon enough. I commend these bills to the House.

Max Chandler-Mather (Griffith, Australian Greens) Share this | Link to this | Hansard source

The Greens welcome the creation of a new body to replace the AAT, especially given the political stacking by the former coalition government. It should never have been possible to appoint political mates, especially those without legal qualifications, to a federal tribunal responsible for hearing cases on social security and migration matters, which can often be literally life or death. Delays in the AAT are very real, and it is hoped that the new tribunal is not characterised by these in the same way. The Administrative Review Tribunal will be an extremely high-volume tribunal which will have an impact each year on tens of thousands of individuals and their families.

There are a number of defects with the legislation as drafted which we believe need to be remedied. This new body will be in place for decades and have broad jurisdiction to deal with critically important matters relating to people's rights and entitlements under federal law. We can't afford to rush it and get it wrong. The Greens are working to get it right and ensure this generational reform delivers for the community and prioritises justice, accessibility and integrity. We have worked with stakeholders, including the Centre for Public Integrity, to address the Administrative Review Tribunal Bill's provisions for fixing appointments to the new body to make these integrity measures mandatory rather than optional. This was a key ALP election promise regarding the new tribunal. It is extremely positive that, after significant public pressure and growing political opposition, government amendments will now go some way to address this. The Greens have consistently advocated for a proper review of the operation of the tribunal. We have been joined in this by numerous NGOs and engaged stakeholders. The government is now responding to that pressure and bringing amendments in to require such a review.

One of the core requirements for this bill is that it cannot cause harm, especially to some of the most vulnerable existing users of the AAT. As drafted, this bill does not meet the test by abolishing critical review rights for people on Centrelink. The Greens believe it is necessary to preserve the existing two-tier jurisdiction to resolve appeals from Centrelink and Services Australia. The existing two-tier review process is critical to provide a just remedy for some 10,000 to 12,000 of the most vulnerable applicants each year. The government has sought to move a large number of amendments on this issue, and our Senate team is working through them. While they appear to go some way towards reinstating the original two-tier review process, the drafting is opaque and it is unclear how they will achieve this goal in practice.

There remain multiple elements in this reform that provide unfair outcomes for refugee and migration cases in the new body. While there are some modest improvements to the existing law, such as the abolition of the IAA, it continues to have multiple unfair, non-discretionary time frames and unfair adverse inferences in this part of its jurisdiction. Assessing the real impact of these amendments is a complex task with an already incredibly lengthy and convoluted bill that has hundreds and hundreds of accompanying pages of text in the explanatory memorandum and transitional provisions.

As noted above, this is a generational reform and we need to take the time to ensure it is right. While supporting the bill and not opposing the amendments in this House, the Greens reserve their position in the Senate. To that end we will continue to be guided by the valuable input of stakeholders and two core principles—that this reform must leave no-one behind and must leave no door open for a future government to undermine its integrity.

David Smith (Bean, Australian Labor Party) Share this | Link to this | Hansard source

I rise this morning to speak in favour of the Administrative Review Tribunal Bill 2023 and the associated bills. The Administrative Appeals Tribunal's public standing was irreversibly damaged as a result of the actions of the former government over the last nine years. By appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process, including some individuals with no relevant experience or expertise, the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision-making. While there were some good appointments, with no thanks to the selection process, there were many highly paid appointees with inadequate experience and expertise, and the consequence of their selection placed inordinate pressure on those appointees with appropriate skills and created logjams right across the system. I received many complaints both from constituents and practitioners about the level of dysfunction across the AAT and the impact on the lives of them and their clients.

The Albanese government inherited a tribunal that is not on a sustainable financial footing, that is beset by delays and an extraordinarily large and growing backlog of applications and that is operating multiple and ageing electronic case management systems—a legacy of the former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. My constituents voted for an Albanese Labor government to restore trust, integrity and accountability in government. This legislation is another part of doing just that, and I will expand on this shortly.

Earlier this week I asked the Attorney-General how the Albanese Labor government's Administrative Review Tribunal bills clean up the mess left by the former government. The Attorney-General reminded the House that decisions of the AAT have life-changing impacts for thousands of Australians. From people with disability seeking support through the NDIS to vulnerable families trying to get the right social security payments, Australians count on the AAT to get a fair hearing. A functional administrative review jurisdiction is fundamental to trust in government. But the Liberal Party didn't care. The stacking of the AAT by the Liberal Party was shameless. It just went higher and higher, like the world's most perilous game of Jenga, stack after stack. It resulted in a tribunal that was entirely dysfunctional—with backlogs out of control and people waiting months or even years for review of a basic AAT decision. Just like a game of Jenga, it all came tumbling down.

The Albanese government does care about Australians who are struggling. We on this side do care about their right to a fair and independent process and to have a system that they can trust. Since coming to government, we have wasted no time in starting to fix the mess that those opposite left.

The legislation that we are debating in the House this morning was developed in consultation with the people who use the system every day. We will abolish the AAT and replace it with a new administrative review body that is user focused, efficient, accessible, independent and fair. The legislation requires that members of the tribunal be appointed through a competitive, publicly advertised, merit based process. Our commitment to this is already on display, with more than 100 new appointments made already through a merit based process.

Many aspects of the principles underpinning administrative review under the AAT Act remain. The new tribunal does not have a general review jurisdiction—rather, other acts and instruments determine if a decision is reviewable. Tribunal powers and procedures may be varied by other laws in recognition of the need to accommodate different practice areas.

This bill is also aimed at providing a balance between fairness to applicants and avoidance of rigid legal processes: there is more visibility in hearings; decision-makers can elect not to be parties in certain circumstances; applicants have the right to be represented; and the tribunal may appoint litigation guardians and interpreters where needed. The provisions include uniform notification requirements and standardised time limits. The tribunal is required to provide reasons for decisions, and there is greater scope for publishing decisions.

Another significant feature is the facility to constitute a guidance and appeals panel within the tribunal, as described in part 5. Referral of decisions for review by the panel would only be permitted at the discretion of the president in cases which raise an issue of significance to administrative decision-making or where the decision may contain an error of fact or law. Tribunal members would be required to follow guidance decisions from the panel. The new panel is intended to foster greater consistency in decision-making across the tribunal and reduce the need for judicial review in individual cases.

There are significant changes to the structure of the tribunal aimed at improving flexibility and greater control of workflows. The rigid divisions within the AAT are to be replaced by jurisdictional areas, led by either the president or a non-judicial deputy president. The president rather than the minister would assign members to jurisdictional areas, taking into account the skills and qualifications needed in a particular area.

As I just mentioned, the tribunal will be made up of a president, deputy presidents—both judicial and non-judicial—senior members and general members. This streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary. The tribunal's president will have clear functions, including hearing particularly significant and complex matters as a member, managing the business of the tribunal, managing the performance and conduct of members and consulting with civil society. A single chief executive officer and principal registrar will assist the president to manage the administrative affairs of the tribunal and will be responsible for managing corporate and registry services.

The tribunal will be made up of eight jurisdictional areas: general intelligence and security, migration, the National Disability Insurance Scheme, protection, social security, taxation of business, veterans and workers compensation. Within these jurisdictional areas, the president can establish lists, led by senior members or deputy presidents, to ensure the tribunal can build specialist knowledge to deal effectively with distinct case loads. This structure builds in flexibility to ensure an enduring, responsive foundation for the tribunal's work into the future.

Each jurisdictional area will be led by a non-judicial deputy president who will be responsible for identifying and managing trends in and changes to the case load of their jurisdictional area and managing the performance, conduct and professional development of members assigned to that area. The president will have the power to assign members within the tribunal to work in different jurisdictional areas. Vesting this power in the president will allow members to be deployed more flexibly.

A tribunal advisory committee will provide strong collective leadership to the tribunal. Comprised of the president, principal registrar and the jurisdictional area leaders, the committee will ensure these leaders are individually and jointly responsible for promoting the tribunal's objective.

The tribunal's powers in relation to the review of intelligence and security decisions are consolidated into part 6, and we incorporate relevant provisions in other legislation which currently set out procedures for dealing with the review in these matters. The new provisions are broadly equivalent to the existing ones and continue to exclude or modify some of the standardised rules and procedures for tribunal review. Significantly, the ability to constitute a guidance and appeals panel will not be available for intelligence and security matters.

Part 8 of this legislation goes to addressing one of the critical problems of the current AAT: its politicisation and stacking of unqualified candidates. The Grattan Institute argued that, based on its analysis, the number of AAT members with political affiliations had increased in recent years. In the 12 years before 2015-16, four per cent of appointees had political affiliations, compared to 29 per cent in the five subsequent years—extraordinary numbers and, unsurprisingly, also a correlation with the decline in appropriate expertise and experience.

The Grattan Institute has also contended that the inappropriate use of ministerial discretion for appointments carries several risks—namely, that appointees will lack the necessary skills and experience to effectively carry out their responsibilities, given that they have not been tested through a merits based process or actively compared to other candidates, and that appointees with political affiliations may be less willing to make a decision that might embarrass or upset the government that appointed them, thereby undermining the actual and perceived independence of the AAT.

Arguably the area of most significant reform in the bill, part 8 of this legislation sets out new and radically different procedures for appointing members to the tribunal and provides for a transparent and merit based appointment process that requires applicants to have relevant knowledge, skills and experience—not particularly controversial. Positions must be advertised, and selection panels may be appointed to adjudicate the suitability of applicants based on record and performance at an interview. These changes are profoundly important. As Professor Mary Crock noted in her submissions, the most likely marker of success in the new tribunal will be the quality of the individuals appointed to adjudicate actual cases.

In addition to new appointment procedures, part 8 includes more stringent performance and disciplinary procedures. Members will be subject to a performance standard, a code of conduct and stricter conflict-of-interest rules. Serious breaches of any of these will be possible grounds for termination.

These bills represent the most important reform of the federal system of administrative review in decades, and effective administrative review is critical to Australia's system of government. A strong user focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives. This function is critical to protecting the rights and interests of individuals and organisations, particularly the most vulnerable members of our community, and, critically, a high-quality review of government decision-making can and will encourage better quality decision-making across government. I thank the House of Representatives Standing Committee on Social Policy and Legal Affairs, chaired by the member for Macquarie, for its suggestions on how the bill can be improved and the stakeholders who've engaged constructively with the government.

We on this side are committing to getting this right. This legislature represents an opportunity to significantly improve Australia's administrative review system, a key pillar of our democracy. As the robodebt royal commission noted, effective merits review is an essential part of the legal framework that protects the rights and interests of individuals. It also promotes government accountability and plays a broader, important role in improving the quality and consistency of government decisions. This new tribunal is intended to serve as a safeguard against abuses of power. It is intended to play a vital role in protecting the rights and interests of members of the community and in ensuring that the government and the Public Service act within the bounds of the law.

The Albanese's government is committed, in every step we take, to restoring trust and confidence in Australia's system of administrative review, beginning with the establishment of the new administrative review body that is user focused, efficient, accessible, independent and fair. It is intended to lead to better government and better government decision-making. With this legislation, this government is seeking to restore trust and confidence in Australia's system of merits review. I commend this legislation to the House.

Allegra Spender (Wentworth, Independent) Share this | Link to 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.

Sally Sitou (Reid, Australian Labor Party) Share this | Link to this | Hansard source

I appreciate the previous member's comments on this bill, the Administrative Review Tribunal Bill 2023, and her commitment to protecting our key institutions. It's a commitment that I share and that many on this side of the House share. As members of parliament we have all had constituents come into our electorate office with a government decision that just feels wrong and fundamentally unfair. Sometimes they are decisions made using the letter of the law as opposed to the spirit of the law, they are decisions that haven't taken into account extenuating circumstances or they are simply decisions that feel fundamentally unfair. Maybe a constituent has a Medicare debt that seems off, maybe there's an aged-care decision that doesn't truly take into account the needs of the individual or maybe a visa is not issued to a family member overseas, even when all evidence suggests that they meet the criteria.

If the issue can't be fixed by an electorate office, then they sometimes go to the Administrative Appeals Tribunal. We have had one such case where a constituent had to go to a tribunal. She and her family were caught up in a terrible situation when they decided to knock down and rebuild their home so that they could live in that home with their daughter and her children. They made all the necessary checks with Centrelink to ensure that it wouldn't have an impact on the age pension that she and her husband were receiving. They were given assurances that they could live out of their primary residence for 12 months without it having an impact on their age pension.

But, because of a range of circumstances that were completely out of their control, including COVID, a range of supply chain issues and issues that they had with the construction company that they were working with, they had to live out of their primary residence for longer than 12 months. Centrelink then determined that it was no longer their primary residence, so they were no longer eligible for the age pension.

They had to fight the bureaucracy, and they fought it for months and months to get their age pension reinstated. They worked closely with my office, and it was only after they took the case up to the Administrative Appeals Tribunal that they got their age pension reinstated. It came at such a critical time in that family's experiences, because her husband had had a stroke in the intervening months and they were left without any government support. I'm so glad that that decision was overturned, that the Administrative Appeals Tribunal saw the extenuating circumstances that that family had to deal with and that they were able to get their age pension reinstated. It made such a difference to that family.

That's the role of the tribunal. The tribunal can have a profound impact on an individual's life. It is their last port of call. After they have tried all other avenues, this is their one Hail Mary shot at getting a bad decision overturned. That's why these decisions need to be made on the facts of the case and the impact that they're going to have on the individual, not with a view to the political ramifications. So it's incredibly disappointing to go over the way the previous government tarnished what ought to have been an independent institution.

A report by the Grattan Institute found that 20 per cent of the AAT's 320 tribunal members had a direct political connection to the government that appointed them. As many as 85 former Liberal MPs, former Liberal candidates, Liberal staffers and close associates of the Liberal Party were stacked into the Administrative Appeals Tribunal. Many of these political appointments were made in the lead-up to the 2019 and 2022 federal elections. They were rewards for mates, returns of favours or a resting place for talent until they could go again at the next election.

These are lucrative roles. The Grattan Institute described the AAT as offering 'the full trifecta of powerful, prestigious and well-paid positions', with AAT members' salaries ranging from nearly $200,000 to nearly $500,000 a year. That the previous government thought they could and should stack this body is an indictment on their judgement. That they did this without a merit based selection process is shameful. It puts paid to the idea that those opposite have a profound regard for the institutions of this country when they again and again disregard many of the conventions and norms that we rely on to hold public trust in these institutions—because so-called conservatives come to this place and fundamentally undermine what ought to be independent and impartial decision-making bodies.

It's important to spell out why the actions of the former government were so destructive. The Grattan Institute succinctly sums it up with this line:

When mateship prevails over merit, all Australians suffer.

It's about the corrosive impact of this on the institutions of this country. It's about the practical impact of this on the day-to-day lives of our constituents.

It's important to understand what a merits review body like the AAT is supposed to do. Fundamentally, review bodies provide a critical check on government decisions. They ensure that government decisions are right in all circumstances. They review Medicare decisions, Centrelink decisions, NDIS decisions, veterans' affairs decisions and immigration decisions. Every single one of us in this place should know the impact of those decisions on our constituents. There should be a 'merits review' tribunal to review those decisions. A tribunal like this has the capacity to have a profound influence on the lives of our constituents, yet to those opposite it became a nursery school for defeated political ambition. That was incredibly and profoundly wrong, because an institution that has such a significant impact on the lives of Australians should not be tainted by political bias. An institution with that great an impact on the public has to maintain the confidence of the public.

That's not to say that there is anything innately wrong with someone with a political affiliation getting a job in one of these review tribunals—of course not. The problem is the sheer number of political appointments made without any sort of selection process. If those opposite really think this is okay, then come in here and defend each of those appointments without merit that you made. Defend the fact that there was no merit based recruitment process. But you won't hear that here, because those opposite, deep down, know that this was a really grubby thing to do. Sure, they got away with it for many years, but even they won't defend it.

So it falls to this Labor government to do its best to bolster the public 's faith in the institutions of government. We have seen, with the establishment of the National Anti-Corruption Commission—something that those opposite again failed to do—that this is a government serious about the task ahead of us.

We know that on top of the problem of appointing candidates without a proper selection process there were a number of problems with the AAT. Previous attempts at amalgamating the separate review tribunals into a single unified tribunal have largely been unsuccessful. Funding for our merits review tribunal has not always met the level required by the caseload it has. This resulted in a significant backlog of cases, meaning that people were waiting months or years for the final decision. That's why in December 2022 the Attorney-General laid out a vision for an overhaul of the AAT, signalling a move towards a new administrative review body that promises to be user focused, efficient, accessible and, most importantly, independent and fair. In seeking to establish a new Administrative Review Tribunal the Attorney-General has sought to take on board the many reviews, new and old, and consult as widely as possible to look at how this new tribunal ought to operate. In April last year the government conducted a public consultation on reform to review the system, which received 280 survey responses and 120 submissions. At the same time, former High Court justice Patrick Keane led an expert advisory group to provide advice on this reform. The bill we have before us has gone through the Standing Committee on Social Policy and Legal Affairs, capably led by the member for Macquarie. It recommended that this House pass the ART Bill without amendment. The committee also encouraged the Senate Legal and Constitutional Affairs Legislation Committee to give further consideration to the matters raised by the House committee. The Senate committee is due to report back in mid-2024.

This bill will transition the old AAT to a new system as smoothly as possible. Matters that are currently heard by the AAT will remain unaffected. Current staff will transition to the new body, and existing members of the AAT will be invited to apply for positions in accordance with the new merit based appointment system, which probably should have always been in place. That merit based selection process, which will be publicly advertised, will be based on a specific set of criteria, not on how close a mate you are to someone sitting among those opposite. We will evaluate the extent to which prospective applicants possess the necessary skills, expertise, experience and knowledge for tribunal duties.

The bill will give the president powers to manage member performance and, importantly, it will afford the president power to ensure that the tribunal is a safe and respectful workplace. For our constituents, it will strengthen the tribunal 's objective of providing an accessible body that is responsive to the multitude of physical and linguistic needs in our communities. This bill does the hard work of rebuilding public trust in our key institutions—the very foundation of our democracy depends on it. Surely that is something that everyone in this place can get behind. For the sake of all Australians, it's time to recognise and reward merit, not mateship.

Alex Hawke (Mitchell, Liberal Party) Share this | Link to this | Hansard source

It's a pleasure to rise and speak on the Administrative Review Tribunal Bill and related bills. I say to the parliament that this is a lost opportunity for some real reform to our Administrative Appeals Tribunal. Certainly, the idea that we're going to change the name from the AAT to the ART should not be inspiring to most Australians, and the abolishment of the AAT to recreate the same body in the ART really isn't an attempt at improving the administrative efficiency of our administrative appeals system.

There has been a lot of naivete in this debate, and I wouldn't mind that so much from backbenchers—maybe the member for Reid is very new. A lot of that was very naive. She's reading the points given to her by the Labor Party's whip. But the Attorney-General has been in this place a long time, and, if the Attorney-General wanted to put a bill forward to reform the AAT to make sure that there were no political mates, he could have done that bill. This bill will not achieve that; there will still be politically aligned people on the ART instead of the AAT.

It seems to me that the Attorney-General's principal objection to the AAT was that they lost four elections in a row and that they didn't get to appoint anybody, so they'd like to clear the slate and start again with people that are more aligned to the way that they think. That might be his prerogative in government, but it's really sanctimonious for members of the Labor Party to come and speak on this bill and say: 'This will revolutionise the system. It's all going to be just merit now; there will be no political mates.'

I'd say to the member for Reid, who I just heard, and others who've been making this point endlessly: what was the merit based selection criteria for the appointment of the Ambassador to the United States, Kevin Rudd? What merit based system did you go to? They haven't mentioned that they're outraged about that appointment by their own government. You can argue the rights or wrongs of the appointment of Kevin Rudd. Certainly, if there's a Republican regime in coming months, it may be a very bad appointment for Australia. But can any Labor member say to the Australian public that they went through a merit based selection? There wasn't one. So the sanctimony, I think, is misplaced. But my point about the construction of this bill and the consequential amendments that the government has put forward is that they lack any rigor in actually doing anything about the administrative appeals system.

To speak to many of the objections that people have made here, again, I think they are very ill informed about the migration division of the AAT. In one breath, we've got Labor members saying: 'If we go back to several tribunals of appeal, that will be more efficient, but we're really upset that there's a huge backlog and that this one system has produced this huge backlog.' But if we go back to four or five tribunals then somehow there'll be more efficiency? None of it makes any sense because it is not real reform. They haven't taken the time to do real reform.

I say to the member for Indi: she's well motivated, but she's right to reserve her judgement about these reforms, which is what she has done. She's right because her instinct is correct. This will not address the problems that exist with the AAT. I'm happy to speak to some of those cases in the migration division, because they are important, and the missed opportunity of this government in not really consulting the parliament, in rushing through the process and changing the name or abolishing the AAT while recreating it with a different letter in the middle. It's almost like one of those shows on politics. It is not real reform.

In migration, and under the Migration Act, the truth is that many people appeal to the AAT—or through the old MRT—deliberately to delay the resolution of their visa status in Australia. That's the finding of the AAT itself, when it backs up the government's decision-makers 80 to 90 per cent of the time. The backlog comes about in migration because people are deliberately gaming our system. So, unlike the member of Wentworth, who says that we should provide financial assistance to people that are noncitizens who want to apply to appeal decisions of our own decision-makers and therefore give them money to apply against us when they're deliberately trying to stay, we need to get that case load dealt with much more efficiently, because there are genuine people that need administrative review in visa decisions. Every one of those genuine people is hurt by the many people who are applying who are not genuine in their application for administrative review.

There is nothing in these bills that will improve or seek to improve that huge case load that is deliberately there to delay resolution in Australia of their visa. This even applies to serious criminals, which is a matter that has been before this parliament for many months. These applicants seek administrative appeal against our government once they're convicted of serious crimes. Why? To delay their removal from Australia. Then they go to the court—to the highest court, in many cases. Having served in the executive in a ministerial role in the space, I can say that most of the cases I saw were the deliberate delay and gaming of our system, at a cost to the taxpayer—tying up our court system, tying up our administrative appeal system and not allowing genuine cases to be dealt with expeditiously.

There is no serious attempt to reform this system. In government we couldn't reform it, and I'll tell you why we couldn't reform it: because the Labor Party would always hold up any reform, because they never allowed migration bill amendments to go through without years of contemplation or scrutiny. They must know, now that they're in government, that this case load of people who are not genuine and who are applying to delay their departure from Australia to stay here longer is tying up our administrative appeals system. But they do nothing. These bills are silent about them.

The teals say we should give money to more people to do it faster. I can say to you that there are too many decisions that are appealed to our Administrative Appeals Tribunal that need no such treatment. I'll give you an example of what comes before a minister's desk, because parliament needs to understand this. If a student misses their deadline to apply for a new student visa to stay in Australia—let's say they miss it by five minutes—that will work its way through the Administrative Appeals Tribunal and come before the minister for a ministerial intervention. What a cosmic waste of time and resources of the department, of the person and of the Administrative Appeals Tribunal. We need a simpler, more efficient bureaucratic decision that says, 'Okay, on student visas, you're five minutes past the deadline—you're in or you're out'. We do not need months and years of administrative review or court review of such a simple matter. Where is the reform on that? It needs to be done. We need to move forward. We need to make some real changes to actually address the backlog. If Labor members were interested in this, getting the non-genuine applicants out of our system would be a huge priority.

Regarding protection claims—just to address the teal members who've mentioned that, and, again, the naivete is absolutely breathtaking—most protection claims are found to be non-genuine by our decision-makers, by the Administrative Appeals Tribunal and by the courts. An overwhelming number of protection claims in Australia are found to be non-genuine, by every level of review. But the teals say, 'Let's have more applications going in.' That is not the answer to the problem, because who has to pay for that? Well, the taxpayer has to pay for that. Let's look Australians in the eye and say, 'You've got to work harder to pay your taxes'! This is not such a concern to members of teal electorates; they're not too worried about making ends meet or paying tax; there's an endless pool in some of these wealthy electorates. But people who are struggling have to work harder to pay the bills for people who are not Australians and who are claiming protection under false premises. Most of the cases are false. We have to be open about this conversation. Most are false; they are not genuine claims.

And to the member for Wentworth, who cited an LGBTQI person, I'd say that is a very serious issue. There are issues for people applying for protection from mostly countries under sharia law—Islamic countries, for example. They need protection from their own governments, because these are not rights based societies. They apply to Australia. But there are a lot of people who fake their claims—people who say they are LGBTQI not because they are but because they have decided to make that up for the purposes of their application. There are people who claim they are Christian when they are Muslim. The AAT's and the decision-maker's job is clear in trying to resolve how those non-genuine cases are decided so we can get to the cases like the example the member for Wentworth raised, of a genuine LGBTQI person needing genuine protection.

It is in the interests of this House, in the interests of this parliament and in the interests of the government to have reform to stop these non-genuine applicants from applying and creating these backlogs—delay, cost, difficulty. I would counsel the member for Wentworth not to listen just to the Law Council on this, because this is the greatest lawyers picnic in the history of Australia. Lawyers make tonnes of money off the AAT, the court system and the migration appeals division. Lawyers are making truckloads of money off all of this. So, I wouldn't just listen to the Law Council's submission about this. I would seek a broader remit.

The truth is that we need to remove some of the options for noncitizens to be applying to the AAT. We need to restrict it further. We need to reduce the administrative burden on our decision-makers and our tribunals so that we get to the genuine appeals and consider the genuine appeals. Any examination of the outcome metrics of any of this—the AAT or the new ART—will be the same, I have no doubt, because anyone reviewing these matters will see that most of these cases are non-genuine. Most of these applications have been put in for a variety of reasons, not necessarily to get a positive outcome. It's in the interests of every member here to get to those people who need genuine administrative review and to get those matters finalised.

The government has failed to bring forward a bill that in any way tackles the serious nature of the case load, the reasons why we have a backlog in this case load and, indeed, the focus on the politicisation of the AAT. Having dealt with it extensively, I would say to you that there are members on the AAT who have come from previous Labor governments whose productivity I was most concerned and remain most concerned about, so I commend this bill where it talks about the ability of the president to work on productivity. These figures should be publicly available and transparent. A person paid this much money—I don't care whether they're appointed by a Liberal or Labor government—should have their performance review made public. If they do not meet the benchmarks of case load or of proper work rate inside the AAT, they should be removed from the AAT, or the ART if this bill is passed by the parliament. That is not available to the public as taxpayers. I think that is scandalous.

In my perception, many members from eras gone by appointed by different governments were the least productive. Some people hid behind a very low case load rate. They would have been there in the AAT a very long time. It was very opaque, even for the government of the day, to get those figures. Transparency is key here, and I would say to the member for Indi that that is the kind of amendment that ought to be required. Transparency on the performance and productivity of individual members, regardless of the government appointing them, would actually lend a better outcome here as well.

So, while we are not opposing this bill, there are some great features here in terms of the ability of the president to make further performance reviews available to members and also deal with members who are not doing their job. The overwhelming nature of this bill is purely administrative. It's abolishing one body; it's changing a letter in the title; it's recreating it; it's keeping the case load the same; it's keeping the pipeline the same; and it's going to allow the government to appoint Labor mates through a fig leaf of a merit based system, but it's not an actual merit based system. So the system will continue, when opportunity lent itself to some actual change and reform that would have improved the ability, especially of Australians, to access administrative appeal. The system will go on. Labor will say: 'We've changed the whole world. We've achieved nirvana. This is now a perfect system.' But it will not be a perfect system. For many members here who are very naive about this: the lawyers will continue to make a packet load of money off of this process, especially through the migration division. The most litigated Commonwealth minister is the migration minister. Lawyers are making a lot of money out of this system.

As a parliament, we do need further reform. We do need these bills to be more robust. We would like to see further amendments and change to the ability of people to take matters to the AAT that simply don't need to be there. Student visas being late by five minutes is an example. These things are not required to go to something with a tribunal-like nature, with a person sitting over them and submissions taken on whether you missed a deadline by five minutes. This is wasting the parliament's time, the government's time, the Administrative Appeals Tribunal's time and the time of a lot of people who have very genuine matters that need to be before administrative review and need thorough consideration. There is too much sitting in front of the AAT, and it will be the same under this bill.

My criticism is primarily that this bill does not attempt to actually improve the system. It has no vision. It is merely a classic government changing the badging that we knew. There will be new branding. It might be cheap in some cases: they might just have to drop 'appeals' off and get 'review' added in gold. Perhaps that's why the government has done it that way, so it's cheap to rebadge it! But rebadging it is a lost opportunity. Not making reforms is a lost reform opportunity. Administrative appeal is an important right. They should be taking a burden off of our courts, not providing a vehicle for people to delay matters and cause deliberate delay to their particular resolution of cases against government. We need to do better, and I urge the government to think harder about review and to actually take some serious steps towards fixing our system and working with the parliament to do so.

Gordon Reid (Robertson, Australian Labor Party) Share this | Link to this | Hansard source

In late 2022, the Labor government announced our decision to abolish the Administrative Appeals Tribunal and replace it with a new federal administrative review body. These changes are something that I campaigned on during the election. These changes are something that my community has been calling for now for quite some time. I remember having conversations, prior to the election, when I was doorknocking and when I was speaking to people on the phone. This is not just about people who have direct interactions with the AAT; it also relates to participants of the NDIS. Clinicians, allied health providers—speech pathologists, physiotherapists—you name it, were all calling for significant reform in the area of the AAT. And that is exactly what we're doing. We are the party of reform. We are the government of reform, and that is exactly we're doing here with the Administrative Review Tribunal Bill 2023.

This bill is also part of the Labor government's agenda to restore faith and trust in our institutions, something that was absolutely obliterated when the Liberal Party ruled at a state and at a federal level, particularly on the New South Wales Central Coast. We can look at our reform agenda particularly in the areas of integrity. We need look no further than the Albanese Labor government's creation and establishment of a national anticorruption commission, something that my community was calling for prior to the 2022 election and something that this government has now delivered on. At the end of the day, the people in this room, the people in this chamber, need to be held accountable for the decisions and the actions that they make.

As I said before, this is significant reform. Reform is what Labor governments do. By appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process—including some individuals who have absolutely no relevant experience or expertise in this body—the former government, the former Morrison government, fatally compromised the AAT. They undermined its independence and they undermined and eroded the quality and the efficiency of its decision-making process.

This is not surprising when you look at the Liberal Party's track record of eroding trust and integrity in vital services and infrastructure, particularly on the Central Coast but also right across the country. It was when the Liberal Party were ruling in both the New South Wales state government and in the federal parliament. We had the biggest decline and the biggest destruction of our health services including primary care and general practice, but also our hospital system. The NDIS and the disability sector was absolutely rattled and our aged-care sector infrastructure went into significant decline. This does not only have an effect on those portfolio areas directly; it also has flow-on effects. I'm talking about follow-on effects for our local economies right across the country, particularly on the Central Coast. If you don't have a healthy society, if you aren't assisting people to make sure that they are operating at full functional capacity, then you can't have a boost in productivity growth in your local economy. There are also follow-on effects for the business community. So the Liberal Party in the federal government and the former New South Wales government don't have a leg to stand on with this in mind.

The Albanese Labor government inherited an AAT that was not on a sustainable financial footing. It was beset by delays and an extraordinarily large and growing backlog of applications. That is from operating multiple and ageing electronic case management systems. That's a legacy of the former Liberal's government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.

It really is just a long list of failures by the former Liberal government. We look at things like robodebt, as I said before. We look at the destruction of our primary care and general practice sector. We look at their inability to take integrity and corruption seriously, by not supporting a national anticorruption commission. With regard to this bill, we can see that it comes at a very real cost to tens of thousands of people who rely on the AAT each year to independently review government decisions that have major and sometimes life-altering impacts on their lives, decisions such as whether an older Australian receives an age pension. This is a really important point for veterans, and the Central Coast, in particular the electorates of Robertson, Dobell and even Shortland, has one of the highest numbers of veterans in the country. This body was making decisions as to whether a veteran is compensated for a service injury or whether a participant of the NDIS received funding for essential support. But it doesn't just have impact on the participant in the NDIS; it also has an impact on the family or guardians or support people for that participant, as well as on the clinicians that have major input into these participants' lives. Think of the physiotherapists, the doctors, the speech pathologists, the nurses—all of whom were significantly let down by the mismanagement of administration by the former Liberal government. From Abbott to Turnbull to Morrison, these former governments were not only a disgrace, but they let down the Australian people and very significantly let down the people of the Central Coast.

The Attorney-General announced the design of the new body would be the subject of consultation in early 2023, and it was. We also made it clear that the AAT cases on foot when the AAT is abolished will be transitioned to the new body automatically, so there won't be bureaucratic hurdles and barriers. As I have said previously, the Labor government is committed to restoring trust and is committed to restoring confidence in Australia's system of administrative review, beginning with the establishment of a new administrative review body that is user focused, that puts people at the centre of what we are reviewing and that is efficient and accessible. We need to make sure it's accessible. One of the big things we saw under the former government, and also with former members from the Central Coast, state and federal, was that these review processes were in no way accessible to the general public. That is something I have been extremely committed to changing at a local level, and I'm proud to be part of a government, part of a team on this side, that makes sure these review processes are accessible to the general public. Also we need to make sure they are independent and above all that they are fair.

A central feature of this new body will be a transparent and merit based selection process for the appointment of non-judicial members. This is a stark contrast to the actions of the former government, who appointed as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process.

This bill implements the Labor government's commitment to establish this new federal administrative review body. The new body will be called the Administrative Review Tribunal and will replace the Administrative Appeals Tribunal, which, as we all know, under the former government significantly failed Australians, particularly on the New South Wales Central Coast. The ART Bill builds on 50 years of experience, learning and broad consultation to establish a tribunal that is user focused, efficient, accessible, independent and fair. The ART bill implements all three recommendations from the Senate Legal and Constitutional Affairs References Committee review into the performance and integrity of Australia's administrative review system, four recommendations from the Royal Commission into the Robodebt Scheme and the government's response to two recommendations from the Rapid review into the exploitation of Australia's visa system.

The tribunal's objective will be to provide an independent mechanism of review that is just and fair; that resolves applications in a timely manner and with as little formality and expense as is consistent with reaching the correct and preferable decision; that is accessible and responsive to the diverse needs of parties, that improves the transparency and quality of decision-making; and that promotes public trust and confidence in the tribunal, which has been lacking due to the former Liberal government's mismanagement of administrative review. The tribunal will incorporate key features to improve merits review, including simpler and more consistent processes and an emphasis on non-adversarial approaches to resolving applications; a suite of powers and procedures to respond flexibly to changing case loads and help resolve cases more efficiently and effectively; a simple membership structure with clear qualification requirements and role descriptions for each level of membership; clear and delineated roles and responsibilities for those who hold leadership positions in the tribunal, including the president and principal registrar; a transparent and merit-based appointment process for members, informed by the operational needs of the tribunal, to ensure that only the highest quality members are appointed to these very important roles; and powers for the president to manage the performance, conduct and professional development of members. We can already see, just from this very brief outline of the bill, how much better the system will be under the current government, compared to former failed Liberal Party policy.

The ART Bill will also have mechanisms to identify, escalate and report on systemic issues in administrative decision-making, including the re-establishment of the Administrative Review Council. The council will monitor the integrity of the Commonwealth administrative review system, inquire into systemic challenges in administrative law and support education and training for Commonwealth officials in administrative decision-making and administrative law. For the first time, this bill will also establish a guidance and appeals panel within the tribunal to resolve matters arising from systemic issues and to review tribunal decisions that may be affected by error. The guidance and appeals panel will provide a mechanism for escalating significant issues and addressing material errors in tribunal decisions. This will promote consistent tribunal decision-making, with rapid responses to emerging issues both within the tribunal and from government departments and agencies. Finally, the bill will enable the tribunal to publish any decision and will require it to publish all decisions involving significant conclusions of law or with implications for Commonwealth policy or administration.

This bill does go some of the way to ending Liberal Party stacking of our institutions. It breaks down the Liberal nepotism that became all too familiar under the Morrison, Turnbull and Abbott governments. I believe in institutional integrity. My community believes in and, rightly, demands institutional integrity, and that is exactly what the Labor Party is doing with this bill. That is exactly what we did with the National Anti-Corruption Commission, that is what we will continue to do as a government of the people, and that is what we will continue to do on the Central Coast in New South Wales.

Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

It is a privilege to rise after the member for Robertson, who gave an outstanding account of the importance of this bill, the Administrative Review Tribunal Bill 2023. He clearly demonstrated his commitment to institutional integrity and to all the reforms the Attorney-General has laid out in this bill. I commend the member for Robertson on his fine contribution to this important reform.

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 are important bills because, like with so many things when coming into government, we faced a deluge of Liberal mess, of Liberal fingerprints all over the different aspects of government and government administration. We had to take the broom and sweep out the mess because it was messy here when we walked in.

Thankfully, these bills go a long way to rectifying some of the more egregious aspects of the way in which the former government administered the AAT and made it a Liberal Party retirement village. Anyone involved in the Liberal Party was able to just submit a CV to the former Attorney-General, and away you went—you got your ticket into the AAT, and you got your parking spot and your salary; you didn't have to bother turning up for work but you could certainly collect your salary. That was the classic example of the way in which the former coalition government administered the AAT. They were not worried about things like whether or not someone had any experience in administrative matters. That is a detail the Liberal Party did not bother themselves with: 'Have you had any experience in administering or being a decision-maker on a tribunal in any way, shape or form? Yes? Sure, come on down. No? No problems; you're welcome in the Liberal Party AAT. This is the place for you.' That was according to the former government.

But we have a different approach. That is not how you should be administering these important institutions. We actually believe in the integrity of our institutions. We saw the approach of the former government around a national anticorruption commission. They promised a national anticorruption commission, promised they were going to deliver one, promised they were going to restore faith and trust in politics—and what did the former Prime Minister do? He made an exposure draft of a national anticorruption commission bill. He didn't bother bringing it into the parliament. It's going to be hard to set up a national anticorruption commission if you don't actually bring the bill into the parliament. That was a classic example of the way the former Liberal government managed these things.

Then you have the AAT. You would have thought: 'Look, maybe there's one former Attorney-General or one credentialled member of the Liberal Party who was a candidate who narrowly missed out. It shouldn't preclude you from having an appointment if you are qualified.' But that's not what happened in the former government. I make the comment that there were some good members of the AAT that were appointed, and we thank them and anyone who was diligently working through these matters in order to try and bring about a timely result for people. But that wasn't the approach of the Liberal Party. The biggest piece of evidence of that was the fact it wasn't just one or two former members of the Liberal Party who were appointed to these positions; they appointed 85 former Liberal MPs, unsuccessful candidates, ex-staffers and other close associates. That is an extraordinary amount of former Liberal Party apparatchiks who were appointed as administrators on a tribunal which decides real-world matters for the people of Australia. What does that say to the people who are turning up to the AAT—that, instead of having someone who has experience in deciding these matters, they're going to get a Liberal Party operative? What an appalling thing to say to the people of Australia.

Going back to the fact of whether or not these people had any expertise: some people did, but to appoint people without expertise and without relevant experience is frankly insulting to the Australian people. But it was a reflection of the way in which the previous government were Liberals first and worried about the proper administration of government second. What was the consequence of that? It's hardly surprising when you appoint apparatchiks as important administrators or decision-makers on tribunals. The first thing was that public faith in the institution completely tanked. The public did not have confidence in the AAT. There was a complete erosion of the independence of the Administrative Appeals Tribunal, because, when you have that many political appointments, how many of them are still communicating about matters to government members? How many of them are still carrying potential links and ties with their political affiliations? Were they managing it correctly? All of these things come into question when you have that many people being appointed to roles that should not be political.

The worst thing about it is that the role of the AAT is crucial. This is an institution that helps decide and determine real-world matters for Australians. I remember when we came into government we were presented, in Macnamara, with tens of cases that were before the AAT in relation to unresolved NDIS matters. These were people who were sent to the AAT, basically, by the former government to have their NDIS case resolved, only to be greeted by a handful of former Liberal Party apparatchiks. It was an outrageous way in which to govern and an outrageous way in which to have a mechanism which people can access in order to resolve matters and resolve access to schemes as important as the National Disability Insurance Scheme.

The other thing about the AAT that was extremely important was that it was about giving people access to a fair hearing. Not everybody can afford the full court, and not every decision needs to go to a full court, but having an institution or a tribunal that can decide matters in a cost-effective and timely way is essential. So why would you not give that institution the respect of having people with experience, having people with independence and having people with the expertise to administer that properly?

That wasn't the approach of the former government, and that's why these bills today are so important. That's why these bills today are essential not just for the proper administration of the new Administrative Review Tribunal but also for the Australian people who need access to that tribunal. These reforms are essential for the Australian people who need their cases resolved, who need access to a decision-making body that can resolve disputes and do so in a timely and cost-effective manner. It is for those Australian people that this reform and the establishment of the Administrative Review Tribunal are so important.

What are some of the key aspects of this? The first one is that any new appointment to the new body will be done as part of the merit based selection process. That doesn't mean carrying a political party's membership card; that means demonstrating experience, expertise and judgement to be able to manage these cases. I think that seems pretty reasonable, and this is a completely different approach to that which the former government took.

The previous speaker mentioned this, but I think it's worth repeating that this bill also implements the three recommendations from the Senate Legal and Constitutional Affairs References Committee inquiry into the performance and integrity of Australia's administrative review system. It implements four recommendations from the Royal Commission into the Robodebt Scheme—another shameful episode in the former government's mismanagement of government programs and its impacts on ordinary and vulnerable Australian people. The robodebt royal commission revealed one of the most shameful episodes in government administration. Every step should be taken to ensure that that sort of shameful neglect and illegal activity towards the Australian people is never repeated again. I'm glad that there are recommendations from that royal commission that are implemented in this bill, as well as the government response to two recommendations from the Rapid Review into the Exploitation of Australia's Visa System. This is a comprehensive approach. It will be filled with people who are appropriate, who are experienced, who are independent and who can do the job on behalf of those people who are seeking the decision-making capability of this tribunal.

There are also aspects and objectives of the tribunal that will be included to provide an independent mechanism of review. That is around making sure that the objectives of the tribunal will be fair and just and that any application will be resolved in a timely matter and with as little formality and expense as is consistent with reaching the correct or preferable decision. I know that my good friend and colleague the member for Burt—who has deep experience in the law and who is in the chamber right now—would understand, as well as many others, the importance of access to affordable decision-making processes and access to some form of justice in a timely and affordable way. This is an important step as part of this Administrative Review Tribunal.

It is also around improving the transparency and quality of decision-making. That is an important objective of all of this. One of the key objectives of this tribunal is to promote public trust and confidence in the tribunal. This is a system where we are trying to make things fair and just and trying to do things in a timely manner, in a way that is accessible and in a way that is designed to assist those people who require it—and to do so in a timely and transparent manner. All of this is designed to help build confidence in the public so that they can access this tribunal with confidence.

There are also key features to improve merits review, including: simpler and more consistent processes, an emphasis on non-adversarial approaches to resolving applications; a suite of powers and procedures to respond flexibly to changing caseloads and help resolve cases more efficiently and effectively; and a number of others that I'm not going to mention in this speech because time is running out.

This is an important reform. When we came into government the AAT was in complete disarray. It was a financial mess. There were backlogs and delays that were facing those people who needed it. There was a history of mismanagement. Worst of all, it was basically a Liberal Party branch meeting, with many tribunal members lacking the qualifications required in order to perform the role. The people who missed out and the people who that affected were the Australian people.

Rick Wilson (O'Connor, Liberal Party, Shadow Assistant Minister for Trade) Share this | Link to this | Hansard source

This is the longest 15 minutes of my life!

Josh Burns (Macnamara, Australian Labor Party) Share this | Link to this | Hansard source

I'm not going to mention the interjection from those opposite, although it was mildly humorous.

The Australian people were the ones who were impacted by this—by the fact that the Liberal Party treated the AAT as a retirement village for their colleagues. But that's not how we're going to do business; that's not what this bill is about. This bill is about ensuring that the AAT is replaced by a body that ensures integrity, independence, experience and accountability and builds public trust. This is to ensure that people who require it—people who may need compensation for being a veteran, NDIS participants and people accessing all of the other range of government services or decisions that are required as part of this tribunal—will be able to access it in an appropriate and timely manner. That is an objective worth supporting because, as the previous speaker mentioned, institutions matter in this country. The way we govern those institutions matters and it reflects on all of us in this place. I for one am proud that we are ensuring that the ART will be there for the Australian people, filled with experienced, independent administrators, and I commend this bill to the House.

Alicia Payne (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

Australians have a fundamental right to have their voices heard. In this country, a liberal democracy, every Australian counts and every Australian is valued. That means that, when an individual interacts with the government and a decision is made that impacts their life, that individual should have confidence that they are able to question that decision and challenge it if they think it is wrong, because, whether it be a decision about immigration, about tax, about social security, about the NDIS or about veterans' affairs, unfortunately, mistakes can be made and they can have disastrous personal consequences.

All of us in this place will have experienced countless times when a constituent comes into our office, writes to us or calls us on the phone, in distress because they've just received some devastating news: their parents were denied a visa to move to Australia, leaving families separated; their NDIS plan was slashed, leaving them without crucial supports which help them to live; or they received an eye-watering debt notice from Centrelink and can't understand where it came from. Often our offices are able to assist in these matters, but often we can't, and that is exactly why review bodies such as the Administrative Appeals Tribunal are so necessary. They are a place for people to go when they think something has gone wrong.

The AAT was established in 1976. Since its establishment, it has become an essential institution in the legal framework of our nation. It's a body which stood as a cornerstone of our justice system, ensuring fairness, transparency and accountability in government decision-making. The AAT was unique when it was established. It was a body unlike a traditional court, providing a higher level of procedural fairness and accessibility. It was also one with far less formality than a court, and it was there for every Australian. Crucially, it operated independently of government.

Unfortunately, the AAT has been undermined and politicised beyond repair by the former coalition government. The former government treated the AAT as a job agency for former MPs, candidates, staffers, and Liberal donors and associates. They treated this incredibly important Australian institution as if it were an extension of their party room. They treated the AAT and the Australian people with absolute contempt. There was no merit based selection process. No qualifications, experience or expertise were required. A Liberal connection was often enough.

The Liberal Party fatally compromised the AAT. They shattered its independence and eroded the quality and efficiency of its decision-making. It was jobs for the boys in the most egregious way, and the consequences for the people who rely on the AAT were real. How is someone who has received a robodebt to trust a body when the person hearing their complaint might have previously worked for the social services minister? How is a veteran who has been denied access to additional mental health support to trust a body when the person hearing their complaint might have previously worked for the veterans' affairs minister? How is an Australian with disability appealing a cut to their NDIS plan to trust a body when the person hearing their complaint may have had a personal relationship with the minister who directed the NDIA to reduce funding for participants? I'm not accusing any member of the AAT of bias in any particular case, but, when an apprehension of bias occurs, trust disappears, faith in the institution is eroded, and people will not use their right to appeal a decision made wrongly against them.

I just note as well that to take something to the AAT, in and of itself, is a huge thing for most Australians to embark upon. It is often a last resort after battles over these decisions have been going on for a while. Already many things would seem prohibitive about that process, so the need to have trust in that institution is absolutely crucial.

All of this was compromised in order for Liberal ministers to reward Liberal affiliated individuals, not for their service to their nation but for their service to their political party. The positions are prestigious. They are well remunerated. They are vitally important to the administration of good governance and justice in this country. What the Liberal government did was cronyism at its absolute worst. Unfortunately, such behaviour from those opposite when they were in government was not surprising. It was so disappointing, but it was to be expected because self-interest, not national interest, was the name of the game. Through their conduct, they showed a contempt for our democracy and the institutions which support it.

No-one is saying that a political background taints a future career in government. It shouldn't. But, when merit is ignored, when experience does not matter and when subject matter expertise isn't a requirement in hiring processes, that is when there is a serious problem. Those are the things that should be important, regardless of political background. Those are the things that should have been considered most closely for appointments.

But the Albanese Labor government is cleaning up this mess. In 2022, the government announced its decision to abolish the AAT and replace it with a new federal administrative review body. That is what we are debating today, a very significant reform. The new Administrative Review Tribunal will build on 50 years of experience, learning and broad consultation which will ensure that it is user focused, efficient, accessible, independent and fair. The ART Bill implements all three recommendations from the Senate Legal and Constitutional Affairs References Committee's review into performance and integrity of Australia's administrative review system. It implements four recommendations from the Royal Commission into the Robodebt Scheme and two recommendations from the Rapid Review into the Exploitation of Australia's Visa System.

It is crucial that we have an accessible and responsive tribunal that promotes public trust and confidence. Public trust and confidence in the previous AAT were lost, and it is important that this new ART will ensure that the Australian people have a transparent, low-cost and timely way for merits review. Merits review is a key way for Australian citizens to hold governments to account, to challenge government decisions that are unfair and to ensure a check and balance on government power. Australia is stronger when the public has confidence in government administration. This was eroded not only by the decline of the AAT under those opposite but also through scandals such as robodebt or the former prime minister's penchant for secretly collecting ministries, some of the sorriest chapters of Australian history.

The Albanese Labor government is committed to ensuring public trust in government. In order to improve the merits review system, we will be implementing several key features under the ART: a simpler and more consistent process that is non-adversarial to resolve applications; powers and procedures to respond flexibly to changing case loads and to ensure that cases are resolved efficiently and effectively; and a simple membership structure that includes clear qualification requirements and job descriptions for all members, no matter what their level of membership. This final point will include clear, delineated roles and responsibilities for those in leadership positions, a transparent and merit based appointment process for members and performance and conduct management of the ART members by the president. These features will ensure that the ART is fit for purpose, efficient and trusted in order to serve the Australian people best.

Specifically, this bill will also have the ability to identify, escalate and report on systemic issues in administrative decision-making. This will encourage review of the system to ensure Australians can have faith in the work of the ART. This reporting mechanism will be undertaken through the re-establishment of the Administrative Review Council. The council will monitor the integrity of the administrative review system and inquire into the systemic challenges of administrative law. The council will also take responsibility for the education and training of Commonwealth officials to support their administrative decision-making and knowledge of administrative law.

The bill also establishes, for the first time, a guidance and appeals panel within the tribunal to resolve matters raising systemic issues and review tribunal decisions that may be affected by error. This will provide a mechanism for escalating significant issues and addressing material errors in tribunal decisions, promoting consistent tribunal decision-making and rapid responses to emerging issues from the tribunal and government departments and agencies. The bill also requires the tribunal to publish any decision involving significant conclusions of law or with implications for Commonwealth policy or administration. This is the implementation of a recommendation of the robodebt royal commission. But it takes it a step further so that it applies for all decisions, not just for decisions in the social security portfolio. This will ensure that the ART is something Australians can have faith in, and it a step towards restoring public trust after the robodebt disaster.

Today's debate is also a cognate debate on the consequential and transitional bill to repeal the AAT Act 1975 and allow for the tribunal to be replaced by the ART as established by the ART Bill. It amends 138 Commonwealth acts to ensure that the existing legislation continues to operate as intended for the new tribunal. This transitional bill retains essential modifications to the operation of the merits review framework for tax and charity matters, which ensure the workability of these frameworks and protect tax revenue collection or otherwise uphold longstanding core tax principles and practices.

It also abolishes the Immigration Assessment Authority and harmonises provisions relating to reviews of migration and refugee decisions, which will provide a broader suite of tools for the efficient and effective resolution of these matters. It adjusts the exhaustive statement of the natural justice hearing rule for migration and protection matters and enables flexibility for the tribunal to reduce delays and backlogs in migration and refugee matters, increasing fairness for genuine applicants and maintaining the integrity of the migration system.

The consequential and transitional bill will also alter the approach to reviews of social security and child support decisions, providing a fit-for-purpose style of review. Matters will be triaged with resolution pathways adapted according to the complexity of the matter and whether the participation of the decision-maker will assist its effective and efficient review. It also continues existing pathways and protections for the review of matters involving sensitive national security or intelligence information, with enhancements to simplify drafting and promote consistent effective approaches.

This bill will retain merits review in two separate bodies as a unique feature of veterans entitlement law, with matters reviewed by the Veterans' Review Board continuing to be appealable to the ART. It also promotes consistency and simplicity by repealing special arrangements that overlap, duplicate or unnecessarily displace core provisions of the ART Bill. The consequential and transitional amendment bill will also help the transition from the AAT to the ART, transitioning the tribunal's active, pending and potential case loads, including matters currently before the courts, to minimise disruption and to maintain review rights. The bill also contains conditions for certain AAT members, including the president, to transition to the ART and sets out arrangements for certain members who do not transition to the new tribunal.

When we came to government, the AAT was in disarray. This bill is an important reform and a really important step towards restoring trust in our institutions. It is important for the Australian people, who have a right for their voices to be heard and a right to appeal government decisions when they believe those decisions are wrong, often with disastrous personal consequences. As I said before, for people trying to appeal these decisions, trying to take this on, this can be an incredibly difficult time—involving a local member in trying to resolve the issue, sometimes without success. It is so important that this review tribunal will be a trusted body that people can go to and know that the people appointed to it have the right experience and expertise. It is most important that they are seen as trusted appointees that Australians can go to when they most need help from their government.

We have seen some really shameful things in recent years. The robodebt scandal was a particular low point in the governance of this country and a particular low point in relation to undermining Australians' trust in government—particularly for vulnerable people, people on low incomes and people who were given debts that they didn't even understand.

Steve Georganas (Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

Member for Moncrieff, on a point of order?

Angie Bell (Moncrieff, Liberal National Party, Shadow Minister for Early Childhood Education) Share this | Link to this | Hansard source

On relevance—coming back to the Administrative Review Tribunal Bill, which we're talking about today.

Steve Georganas (Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

I am listening carefully and making sure that the member is within the relevance of the bill.

Alicia Payne (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

I believe it's relevant because it's a reason that we need to do this, and we need to do this now. I commend the bill to the House.

Tania Lawrence (Hasluck, Australian Labor Party) Share this | Link to 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.

Kate Thwaites (Jagajaga, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to be speaking today on the Administrative Review Tribunal Bill 2023 which will legislate our government's decision to abolish the Administrative Appeals Tribunal and replace it with a new federal administrative review body. This is a significant reform. Make no mistake, we are here because the former Liberal and National government fatally compromised the AAT. They did that by appointing as many as 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit based selection process, including some individuals with no relevance, experience or expertise, to the AAT. They fatally compromised it. In doing so, they undermined the independence of the AAT. They eroded the quality and efficiency of its decision-making. When this government came to power, we inherited an AAT that was not fit for purpose, that was not on a sustainable financial footing and that has been beset by delays and an ever-growing backlog of applications, operating multiple and ageing electronic case management systems, a legacy of the former government's mismanagement of the amalgamation of the AAT with the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.

That this situation became as bad as it did is another demonstration of the many ways that those opposite, when they were in power, neglected the parts of government and the parts of administration that should be there to support people in our community, that should be there to uphold integrity and trust in systems and processes and governments, all things that those opposite thought were not important. The failure to support a modern fit-for-purpose tribunal is part of a long list of issues that come from the nine years of drift and denial we had under successive coalition governments.

These issues with the AAT come at a very real cost to the tens of thousands of people who rely on the tribunal each year to independently review government decisions that do have major and sometimes life-altering impacts. These are decisions of everything from whether an older Australian will receive the age pension, whether a veteran is compensated for a service injury or perhaps whether an Australian with disability receives an NDIS package for essential support. I have seen far too many of these people in my office, struggling to work out a system that was not supported by those opposite, struggling to navigate a system that they should be able to navigate without assistance from their federal member's office. These are the situations our government is trying to fix on behalf of the Australian people with this bill. People go to the AAT quite often as a last resort. Those people have been let down and let down badly by a system that has not been working as it should be.

So it is important that our government are taking this significant reform, reform that we are undertaking in a sensible, considered manner. We have consulted widely. We are putting in place systems that have been through processes, that have been reviewed, that are the result of consultation. We are determined that we will not find ourselves in the situation that those who came previously have left us in—where we have a tribunal stacked with Liberal mates, a tribunal that's not fit for purpose, a tribunal that should have been there to make the lives of people who often need support clearer, a tribunal that should have been there as a last resort. That tribunal was clearly not fit for purpose.

It is entirely appropriate that the Attorney-General has consulted widely and that the Attorney-General has taken action to put together what will be a new reformed body. In passing this legislation through this House, we, as a parliament, are saying that Australians should expect better, that Australians should be confident that this type of institution is free from political interference and is set up to serve the interests of people who most need it, and that is what people will get through this bill and through this work that the government is doing.

Debate interrupted.