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

I move the second reading amendment as circulated in my name:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that this bill maintains the carve out of a separate, more restrictive procedural code for the Migration and Refugee Division in the Migration Act 1958;

(2) further notes that the bill falls short of meeting its objectives because of its unequal treatment of migrant and refugee applicants;

(3) notes that non-citizens, including those seeking asylum, refugees, and the stateless, already experience structural exclusion and intersecting barriers to accessing justice once they enter into Australia, including impacts of trauma, language barriers, mental health issues, financial distress, and cultural differences; and

(4) calls on the Government to ensure all applicants can equally access a fair and just review and accordingly remove the separate set of procedures under the Migration Act 1958, from this bill so the procedures that apply to applicants generally, also apply to migrant and refugee applicants in the same way".

The package of bills moved through this House in the past few days—the Administrative Review Tribunal Bill 2023 and the consequential and transitional bills No. 1 and No. 2—will deliver much-needed reform to the administrative review processes in this country, and this is welcomed by my community in North Sydney. Indeed, as a community, we've long argued that the decisions of government should always be open to public scrutiny and that elected representatives should do everything in their power to ensure that the people they represent not only participate in the decisions that affect them but also ultimately find ways to make decisions for themselves.

In this context, the administrative review system is one of the most important lines of defence when it comes to protecting individuals' rights from unfair use of power, and its effective operation is therefore essential for public confidence in government. Yet, sadly, the current Administrative Appeals Tribunal has been plagued with inefficiencies and failures after years of abuse. Consequently, this reform cannot come soon enough.

But, in pursuing this reform, this government has ultimately missed an opportunity to finally redress a fatal flaw in our democracy and one that has long stained our international human rights reputation, that being our continued pursuit of the idea that not all people are equal before the law, as, while much of this legislation represents an improvement to the administrative review process in Australia, it falls short of meeting its overall stated objective of creating a unified system because of its unequal treatment of migrant and refugee applicants. Quite simply, many of the benefits sought to be introduced will not apply to the migrant and refugee division, which, given the workload of that division, means they will not apply to the majority of cases currently seeking redress.

It has taken years of advocacy from civil society groups, human rights bodies and refugee and migrant communities to get us to where we are today with this legislation, and I commend the Attorney-General and his team for bringing us this far. But we can take it further.

The amendment I am moving today calls on the government to note that, by maintaining the carve-out of a separate and more restrictive code for the migrant and refugee division in the Migration Act of 1958, the bill ultimately falls short of meeting its objectives. At the same time, it notes that noncitizens, including those seeking asylum, refugees and the stateless, already experience structural exclusion and intersecting barriers to accessing justice once they enter into Australia, including the impacts of trauma, language barriers, mental health issues, financial distress and cultural differences. Finally, it calls on the government to ensure that all applicants can equally access a fair and just review. Accordingly, it removes the separate set of procedures under the Migration Act 1958 from this bill so the procedures that apply to applicants can apply to one and all.

If Australia is serious about having systems that uphold our human rights obligations, then we need to address the current weaknesses we have every step of the way. I call the government to take these amendments seriously and strengthen this legislation, as it is incredibly disheartening to see that those who are seeking our protection continue to be treated as persons with inferior procedural entitlements, when we live in a country where nearly one in two Australians were either born overseas or have an overseas-born parent.

Every human being is born equal and deserving of justice. No-one is above the law. And the law should apply to all equally, regardless of their status in society. This means that the same standards must apply to all when it comes to our Administrative Review Tribunal processes, regardless of race, colour, gender, language, religion, political beliefs, status, or any other unlawful reason. Citizens or noncitizens, all people deserve to be treated with dignity and respect for their basic human rights. We must ensure this new system is one that sees human rights protected for all, equally. Let's give this Administrative Review Tribunal the very best shot we have and ensure that every applicant before it receives equal and fair treatment.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

Deputy Speaker, I second the amendment and reserve my right to speak.

Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I just want to say that we welcome the creation of this new body to replace the AAT—especially, as I said before, 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 and death for people.

Delays in the AAT are very real, and it is hoped that this new tribunal is not characterised by these delays 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 families. There are a number of defects with the legislation as drafted, which we believe will need to be remedied. This new body will be in place for decades and will have a broad jurisdiction to deal with critically important matters relating to people's rights and entitlements under federal law. We cannot afford to rush it or get this wrong.

We have worked with stakeholders, including the Centre for Public Integrity, to address the bill's provisions for fixing appointments to the new body to make these measures mandatory, rather than optional, and it's good to see amendments from the government to that effect, as this was a key promise by the ALP regarding the new tribunal. It's extremely positive that, after significant public pressure and growing political opposition, the government amendments will now go some way to addressing this. The Greens have consistently advocated for a proper review of the operation of this new tribunal. We have been joined in this by numerous NGOs and engaged stakeholders. The government is now responding to that pressure by bringing amendments in to require such a review.

One of the core requirements for support of 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 that 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 or Services Australia. This existing two-tier review process is critical to providing 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 them through. While they appear to go some way towards reinstating the original two-tier review process, the drafting is somewhat 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 this 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 in the transitional provisions.

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

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I want to briefly address the second reading amendment that has been moved by the member for North Sydney. The government opposes this second reading amendment, and I want to make some general comments about these bills. The ART bills substantially harmonise procedural arrangements for review of decisions under the Migration Act, which is a very substantial improvement compared with the current system.

Under the current arrangements—that's the Administrative Appeals Tribunal and the Administrative Appeals Tribunal Act—none of the provisions relating to the AAT's powers and procedures apply at all to reviews of migration and protection decisions. Instead—and this has happened over many years—there's a separate set of powers and procedures that are set out in the Migration Act called codes of procedure. The Administrative Review Tribunal bills remove this dichotomy. They apply standard tribunal powers to migration and protection matters.

As far as possible, that's the approach that we've taken with the new Administrative Review Tribunal: it's to have standard processes for all of the tribunal's jurisdictions, including—and this is a very major change—migration and protection matters. There are a small number of special procedures retained, as there are in separate legislation for many jurisdictions, to ensure that tribunal reviews are workable within the framework of the migration system. Of course, it's the case that we're going to have to make sure in the coming years—if the Administrative Review Tribunal legislation passes the Senate and we create the tribunal, as we sincerely hope will happen in short order—that the intent of these reforms it being achieved. That's what the statutory review enables us to do.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendment moved by the member for North Sydney be agreed to.