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

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

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

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

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

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

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

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

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

Can I remind the member for North Sydney that you are required to move the amendment

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

I move the amendment circulated in my name:

(1) Schedule 2, item 136, page 60 (line 18) to page 61 (line 3), omit subsections 347(3) to (5).

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

I take the member for North Sydney's comments to be in large part an endorsement of the approach that the government has taken, which is that the ART bill standardises timeframes for a majority of decisions under the Migration Act. When I stood before to speak to the member for North Sydney's second reading amendment, I explained overall the way in which this works, which is that we have legislation before the parliament which standardises timeframes for the majority of decisions under the Migration Act to the standard ART timeframes for making an application for review, which cannot be less than 28 days.

But there are two exceptions, and I will come to them in a minute. Perhaps this is a reflection of the complexity of government decision-making, but there are reasons for the exceptions, and it is for that reason that the government cannot support these particular proposed amendments. I will endeavour to explain why. The two exceptions are first where a person is in immigration detention, for which the timeframe is seven days. So we're taking the opportunity to increase what was formerly two days for some applications—a pretty short time—to seven days. The other exception is where a person's visa has been cancelled on character grounds: the timeframe for that is to be nine days.

In the government's view is not feasible to remove these exceptions. They are required to minimise the amount of time that a person spends in detention and to maintain the overall integrity of Australia's migration system. All that is required within the seven-day window is that the application is made. The requirements for doing so are minimal and the applicant does not need to submit additional documentation until the proceeding is underway. So we have a very special form of administrative decision that is dealt with in these two exceptions. It's decisions relating to immigration detention. We've got a government approach that is, very directly, that the amount of time that a person spends in immigration detention should be reduced, should be minimised. So there would be a problem in applying the standard ART time frames, for making an application for review not less than 28 days, to the immigration detention setting. We've got much shorter time frames, which are required to minimise the amount of time that a person spends in detention. I would hope that reason for having special provisions for immigration detention review matters is understood.

As to extensions of time, which would be the other effect of the amendment that the member for North Sydney is moving, the immigration system does rest on having certainty as to a person's visa status at all times. In order to provide an opportunity for visa applicants to seek a review of a decision, applicants are provided with a bridging visa that expires a short time after the time frame for making an application for review comes to an end. If the tribunal were able to grant an extension of time for making an application for review of these decisions, it wouldn't be possible to determine the end of the application period. That would be incompatible with how the migration system works.

We're here recognising that the migration system is a specialised and quite distinct part of Australian government decision-making. We have tried to, at the same time, as far as possible, standardise all of the review processes for all of the myriad decisions that the Administrative Review Tribunal will look at. There needs to be a recognition that, for a small number of administrative decisions, particularly some decisions under the Migration Act, we need to make special provisions, which is what we're doing. It should not be looked at through the frame of discriminating against some people because they are not Australian citizens. It needs to be looked at through the frame of having a migration system that works. As I've said, if it were possible for the— (Time expired)

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

I thank the Attorney-General for standing and voicing all of that context around why the government won't be supporting these amendments. I would just offer the following back: arguably this reform of the AAT is the most important reform that we've seen in over a decade. I know from personal interactions with the Attorney-General and his staff that they are very committed to re-establishing an administrative review process in this country that Australians can be confident in, and that they can trust that the process is fair and equal for all. The truth of the matter is that, as long as we continue to carve out people who find themselves in a situation within our immigration systems where they are not given the same treatment under law as every other person living in this country, we are creating a two-tier system.

I want to respond to what the Attorney-General said with a number of things. No. 1, I don't think there's any person that has any connection with the refugee and asylum-seeking sector in this country who doesn't know that the two days previously applied under the AAT was completely and wholly unacceptable. It was unworkable. We're not talking about pleasant centres where legal advocates can enter an environment to talk calmly with clients around what their legal recourse may be. Many of the people being held in these immigration detention facilities and awaiting a decision around their status of citizenship are highly traumatised individuals. They come from environments where they've already experienced trauma. They're now arriving and have had to face a number of intersectional discriminatory behaviours when it comes to our country. Many of them have not been fully assimilated when they've arrived. They've escaped violent situations only to find themselves thrust into our community with no appropriate education or appropriate assimilation, and then they find themselves in trouble with the law and back in immigration detention.

The refugee area largely does welcome this reform. We need to be really clear. As the Attorney-General said and as he and I have spoken about, this is 500 per cent better than what we have had in this country to date. If I were a teacher, I'd be giving this a nine out of 10. The reality is, though, that what I'm arguing is that the government could get a 10 out of 10, and they could do it by being braver than the governments we've seen in the past and by stepping forward and saying, 'We are prepared to be the agency of change.' In fact, a change in this legislation could ultimately push changes in our immigration detention systems, which arguably are long past due for reform. As many in this place would know, there are widespread calls for a royal commission into how our detention system works in this country.

What I'm saying here will be no surprise to the Attorney-General, because we have talked about it and his team has been really great in talking to my team about what we're seeking to achieve here. There are some moments, I believe, when a government has the opportunity to step into a true ambition that fundamentally shifts the dial in how a country addresses certain challenges.

It's interesting to see that we have the immigration minister sitting with the Attorney-General. I feel like I have a great audience to have this discussion in front of. If we are going to reform this process meaningfully, in a way that sees us as a nation fundamentally commit to realising our international obligations under all the international treaties that we say we abide by—whether that's the right to seek asylum and be free from persecution under the Refugee Convention; the right to equality before the law and equal protection of law under the UDHR; the right to enjoy the same treatment as a national in matters pertaining to access to the courts, again under the Refugee Convention; the right, in full equality, to a fair and public hearing by an independent and impartial tribunal in the determination of rights and obligations under the UDHR; or the right to recognition everywhere as a person before the law under the UDHR—the time for that is now, with this piece of legislation.

So I thank the Attorney-General and his team for their time, but I continue to argue that the best-case scenario would be that even those in detention would be treated in the same way as every other person under the Administrative Review Tribunal process.

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

I also thank the member for North Sydney for her constructive engagement on these provisions of the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, to which she has moved amendments. To use the language of the member for North Sydney, I think I can say fairly that the government is committed to shifting the dial, and I would hope that the whole of this legislation that we have brought to the parliament and the amendments that we have brought to the parliament, including the amendments that I'm about to move to the consequential provisions bill, show that we have an ongoing commitment to making sure that appropriate reform takes place.

But on these particular matters, although we share the objective of making sure that the whole of the administrative review system, including the review of Migration Act decisions, is done as accessibly and fairly as possible and in the optimum possible way, we've come to a different view about what is presently the appropriately workable provision, bearing in mind what I think are totally agreed objectives: the objective that the amount of time that a person spends in immigration detention should be minimised and the further objective of needing to provide certainty in a migration system, which rests on certainty of a person's visa status at all times. Were we to agree to these amendments as proposed by the member for North Sydney, we would be producing incompatibility with the current working of the migration system and also producing an outcome that would be inconsistent with the government's policy of minimising the amount of time that people spend in detention. For those reasons, I say again the government can't support the proposed amendments, not because we don't have a shared objective with the member for North Sydney but rather because of our view that they would be unworkable in the context of the volume of decisions on visas in the context of the need for certainty as to a person's immigration status and because of the probability that they would lead to people spending more time in immigration detention, which is the opposite of what we would wish to achieve.

Question negatived.

I present the two supplementary explanatory memoranda to the bill, and I ask leave of the House to move government amendments (1) to (45) on sheet TM116 and government amendments (1) to (50) on sheet UP104, as circulated, together.

Leave granted.

I move government amendments (1) to (45) on sheet TM116 and government amendments (1) to (50) on sheet UP104 together:

SHEET TM116

(1) Schedule 3, item 6, page 96 (lines 8 and 9), omit the definition of guidance and appeals panel application in subsection 3(1).

(2) Schedule 3, item 14, page 97 (lines 8 to 14), omit the item, substitute:

14 Section 110 (paragraph beginning "If a person is dissatisfied with a decision of the AAT")

Repeal the paragraph, substitute:

If a decision has been reviewed by the ART, in some circumstances the ART Act allows a person to apply to refer the matter to the ART as constituted by the guidance and appeals panel for further review.

In other circumstances, application may be made for review (a "second review") of the decision by the ART on ART review. Applications for second review are made under the ART Act.

(3) Schedule 3, items 20 and 21, page 98 (lines 4 to 14), omit the items.

(4) Schedule 3, item 25, page 99 (lines 4 and 5), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(5) Schedule 3, item 25, page 99 (lines 9 and 10), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(6) Schedule 3, item 26, page 100 (lines 1 to 22), omit the item, substitute:

26 Subsection 115(2)

Repeal the subsection, substitute:

(2) However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

(7) Schedule 3, item 27, page 100 (lines 25 and 26), omit "(other than a guidance and appeals panel application)".

(8) Schedule 3, page 102 (after line 3), after item 32, insert:

32A Subsection 122(1)

After "subsection (4)", insert "and the outcome of any application under section 294 of the ART Act".

(9) Schedule 3, page 102 (after line 8), after item 33, insert:

33A Paragraph 123(a)

Repeal the paragraph, substitute:

(a) the ART has reviewed:

(i) a decision (a child support decision) on application referred to in section 89 of the Child Support (Registration and Collection) Act 1988; or

(ii) a decision on application referred to in section 131D of the ART Act in relation to a child support decision; and

(10) Schedule 3, item 35, page 102 (lines 15 to 18), omit the item.

(11) Schedule 3, item 60, page 107 (after line 11), after the definition of guidance and appeals panel proceeding in subsection 4(1), insert:

second review has the same meaning as in the ART Act.

(12) Schedule 3, item 64, page 107 (lines 23 to 28), omit the item, substitute:

64 Section 87A (paragraph beginning "The person may")

Repeal the paragraph, substitute:

If a decision has been reviewed by the ART, in some circumstances the ART Act allows a person to apply to refer the matter to the ART as constituted by the guidance and appeals panel for further review.

In other circumstances, application may be made for review (a "second review") of the decision by the ART on ART review, or as the original decision-maker. Applications for second review are made under the ART Act.

(13) Schedule 3, item 73, page 109 (lines 5 and 6), omit the item, substitute:

73 Subsection 92(4)

Repeal the subsection, substitute:

(4) If the ART refuses the extension application, the notice under subsection (3) must include, or be accompanied by, a statement to the effect that:

(a) subject to this Act and the ART Act, the person may apply to the ART for second review of the decision; and

(b) the person may, under section 268 of the ART Act, request a statement of reasons for the decision.

(14) Schedule 3, item 76, page 110 (before line 23), before subsection 95B(1A), insert:

(1AA) However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

(15) Schedule 3, item 76, page 110 (line 23), omit "Subsection (1) does not", substitute "Subsections (1) and (1AA) do not".

(16) Schedule 3, page 112 (after line 24), after item 83, insert:

83A Paragraph 95M(a)

Repeal the paragraph, substitute:

(a) the ART has reviewed:

(i) a decision (a family assistance decision) on application referred to in section 111 of the Family Assistance Administration Act; or

(ii) a decision on application referred to in section 131D of the ART Act in relation to a family assistance decision; and

(17) Schedule 3, item 92, page 114 (line 33), omit paragraph 110Q(b), substitute:

(b) an application to the ART for ART review of that objection or second review of a decision on that ART review;

(18) Schedule 3, item 93, page 115 (lines 8 to 10), omit paragraph 110W(1)(b), substitute:

(b) no application may be made under the ART Act for second review of the decision or to refer the decision to the guidance and appeals panel; and

(19) Schedule 3, item 94, page 115 (lines 13 and 14), omit paragraph 110W(1A)(b), substitute:

(b) an application may be made under the ART Act for second review of the decision or to refer the decision to the guidance and appeals panel; and

(20) Schedule 3, item 96, page 115 (line 24), after "ART review", insert "or second review".

(21) Schedule 3, item 97, page 115 (lines 27 to 30), omit the item.

(22) Schedule 3, item 98, page 116 (line 4), after "panel", insert "or second review".

(23) Schedule 3, item 106, page 117 (lines 15 to 20), omit the item, substitute:

106 Section 4 (paragraph beginning "Part 5-3")

Repeal the paragraph, substitute:

If a decision has been reviewed by the ART, in some circumstances the ART Act allows a person to apply to refer the matter to the ART as constituted by the guidance and appeals panel for further review.

In other circumstances, application may be made for review (a "second review") of the decision by the ART on ART review. Applications for second review are made under the ART Act.

(24) Schedule 3, item 113, page 119 (lines 1 to 7), omit the item, substitute:

113 Section 213 (paragraph beginning "AAT first review is available")

Repeal the paragraph, substitute:

ART review is available for certain claimant decisions (called ART reviewable claimant decisions). People whose interests are affected by ART reviewable claimant decisions may apply for ART review of those decisions.

A person may also apply to the ART for second review if the person is dissatisfied with the decision of the ART on review of an ART reviewable claimant decision. Applications for second review are made under the ART Act.

(25) Schedule 3, item 116, page 119 (lines 20 to 26), omit the item.

(26) Schedule 3, item 122, page 121 (before line 30), before subsection 226(2), insert:

(1A) However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

(27) Schedule 3, item 122, page 121 (line 30), omit "Subsection (1) does not", substitute "Subsections (1) and (1A) do not".

(28) Schedule 3, item 144, page 126 (lines 20 to 26), omit the item, substitute:

144 Section 139 (paragraph beginning "If a person is dissatisfied with a decision of the AAT")

Repeal the paragraph, substitute:

If a person is dissatisfied with a decision of the ART on ART review, the person may apply to the ART for second review.

(29) Schedule 3, item 148, page 127 (lines 8 to 13), omit the item.

(30) Schedule 3, item 169, page 132 (lines 4 and 5), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(31) Schedule 3, item 169, page 132 (lines 9 and 10), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(32) Schedule 3, item 170, page 132 (lines 29 and 30), omit "(other than a guidance and appeals panel application)".

(33) Schedule 3, item 178, page 134 (lines 10 to 31), omit the item, substitute:

178 Subsections 182(2) and (3)

Repeal the subsections, substitute:

(2) However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

(34) Schedule 3, item 182, page 135 (lines 20 and 21), omit the definition of guidance and appeals panel application in subclause 1(1) of Schedule 1.

(35) Schedule 3, item 184, page 136 (lines 12 and 13), omit the definition of guidance and appeals panel application in subsection 3(1).

(36) Schedule 3, items 190 and 191, page 137 (line 9) to page 138 (line 20), omit the items.

(37) Schedule 3, item 193, page 138 (lines 24 to 30), omit the item, substitute:

193 Section 309 (paragraph beginning "If a person is dissatisfied with a decision of the AAT")

Repeal the paragraph, substitute:

If a person is dissatisfied with a decision of the ART on ART review, the person may apply to the ART for second review.

(38) Schedule 3, item 197, page 139 (lines 8 to 13), omit the item.

(39) Schedule 3, item 200, page 140 (lines 1 and 2), omit subsection 312(3).

(40) Schedule 3, item 201, page 140 (lines 8 and 9), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(41) Schedule 3, item 201, page 140 (lines 13 and 14), omit "unless the proceeding is in relation to a guidance and appeals panel application".

(42) Schedule 3, item 202, page 141 (lines 5 to 26), omit the item, substitute:

202 Subsection 315(2)

Repeal the subsection, substitute:

(2) However, if the President of the ART refers the application to the guidance and appeals panel under section 122 of the ART Act, section 31 (decision cannot be altered outside Tribunal process) of that Act applies to the decision after the referral is made.

(43) Schedule 3, item 209, page 146 (table item relating to paragraph 123(a)), omit the table item.

(44) Schedule 3, item 212, page 153 (table item relating to paragraph 95M(a)), omit the table item.

(45) Schedule 16, items 43 to 50, page 277 (line 6) to page 282 (line 20), omit the items, substitute:

43 Definitions

In this Division:

AAT second review has the same meaning as in the old law.

ART social services decision has the meaning given by the new Act.

second review has the meaning given by the new Act.

44 No second review following AAT second review

(1) This item applies if:

(a) a person applied for AAT second review of an ART social services decision under the old law; and

(b) the AAT second review has begun or has been completed.

(2) The person is not entitled to apply to the ART for second review in relation to the decision.

SHEET UP104

(1) Clause 2, page 2 (after table item 2), insert:

(2) Clause 2, page 2 (table item 3, column 1), omit "items 1", substitute "items 2".

(3) Clause 2, page 2 (after table item 4), insert:

(4) Clause 2, page 2 (table item 5, column 1), omit "items 32", substitute "items 34".

(5) Clause 2, page 2 (after table item 5), insert:

(6) Schedule 2, item 27, page 45 (lines 12 and 13), omit the item, substitute:

27 Paragraph 109(3)(c)

Repeal the paragraph.

27A Paragraph 109(3)(d)

Omit "under Part 5 or 7", substitute "by application under Part 5".

27B At the end of section 109

Add:

(6) Section 267 (decision-maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under subsection (3) of this section.

(7) Section 268 (requesting reasons for a reviewable decision from decision-maker) of the ART Act does not apply in relation to decisions to cancel a visa under this section.

(7) Schedule 2, page 48 (after line 12), after item 49, insert:

49A At the end of section 140N

Add:

(4) If the regulations provide for notification by the Minister of the decision to take action under section 140M, then the following provisions of the ART Act do not apply to the decision:

(a) section 267 (decision-maker must have regard to rules when giving notice of decision);

(b) section 268 (requesting reasons for a reviewable decision from decision-maker).

(8) Schedule 2, item 120, page 56 (line 35), omit paragraph 336P(2)(l), substitute:

(l) section 294 (legal or financial assistance), unless the review is of a decision referred to the guidance and appeals panel by the President of the ART under section 122 of the ART Act.

(9) Schedule 2, item 139, page 63 (lines 30 and 31), omit "under section 105 of the ART Act or section 349 of this Act", substitute "referred to in subsection (1A)".

(10) Schedule 2, page 64 (after line 2), after item 140, insert:

140A After subsection 351(1)

Insert:

(1A) For the purposes of subsection (1), the decisions are as follows:

(a) a decision under section 349 of this Act;

(b) a decision under section 368C of this Act;

(c) a decision under section 105 of the ART Act.

(11) Schedule 2, page 65 (after line 14), after item 149, insert:

149A Subsection 357A(1)

Omit "This Division is", substitute "The relevant provisions are".

149B Subsection 357A(1)

Omit "it deals", substitute "they deal".

(12) Schedule 2, item 150, page 65 (lines 15 and 16), omit the item, substitute:

150 Subsection 357A(2)

Repeal the subsection.

(13) Schedule 2, item 151, page 65 (line 19), omit "this Division", substitute "the relevant provisions".

(14) Schedule 2, item 151, page 65 (line 20), omit "this Division prevails", substitute "the relevant provisions prevail".

(15) Schedule 2, item 151, page 66 (lines 5 to 7), omit "this Division does not require the ART to observe any principle or rule of common law relating to the matters this Division deals", substitute "the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal".

(16) Schedule 2, item 151, page 66 (after line 7), after subsection 357A(2C), insert:

(2D) In this section, the relevant provisions are:

(a) this Division; and

(b) sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.

(17) Schedule 2, item 164, page 67 (line 20), after "the ART", insert "by the Department".

(18) Schedule 2, page 67 (after line 21), after item 164, insert:

164A After subsection 362A(1)

Insert:

(1A) If an applicant makes a request under subsection (1), the Department must provide the applicant with access to the material.

(19) Schedule 2, item 168, page 68 (line 5), omit "366D", substitute "366C".

(20) Schedule 2, page 68 (after line 6), after item 168, insert:

168A Section 366D

Omit "Tribunal", substitute "ART".

(21) Schedule 2, item 174, page 74 (lines 16 to 18), omit section 373.

(22) Schedule 2, item 231, page 81 (lines 20 and 21), omit ", on the Tribunal's own initiative,".

(23) Schedule 2, item 237, page 82 (lines 21 and 22), omit paragraph 474AA(2)(b), substitute:

(b) the ART does not have a duty to consider a request to refer a question of law at the request of a party to a proceeding.

(24) Schedule 2, item 237, page 82 (after line 22), after subsection 474AA(2), insert:

(2A) To avoid doubt, if the ART refers a question of law under section 185 of the ART Act, Division 6 of Part 7 of that Act applies in relation to the proceeding before the Federal Court in relation to the reference.

(25) Schedule 2, item 237, page 82 (line 23) to page 83 (line 2), omit subsections 474AA(3) and (4), substitute:

(3) Subdivision A of Division 2 of Part 7 of the ART Act (appeals on questions of law) does not apply to a decision of the ART under section 185 of that Act (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision.

(26) Schedule 2, item 247, page 84 (lines 23 and 24), omit the item, substitute:

247 Subsection 476A(1) (note)

Repeal the note, substitute:

Note: The Federal Court's jurisdiction referred to in paragraph (d) is limited: see section 474AA.

(27) Schedule 2, page 85 (after line 30), after item 253, insert:

253A Paragraph 494B(5)(d)

After "Minister", insert "by the recipient".

(28) Schedule 2, item 257, page 86 (lines 11 to 13), omit the item.

(29) Schedule 2, item 259, page 86 (lines 16 to 25), omit the item.

(30) Schedule 2, item 269, page 87 (after line 24), after subsection 500(6CA), insert:

(6CB) A failure to comply with subsection (6C) in relation to an application does not affect the validity of the application.

(31) Schedule 3, page 105 (after line 25), after item 52, insert:

52A After subsection 161(1A)

Insert:

Publishing reasons for ART decisions

(1B) Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:

(a) a party to the review concerned (other than the Secretary or the Child Support Registrar); or

(b) a person (other than the Secretary or the Child Support Registrar) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or

(c) a witness in the review concerned.

(1C) Without limiting subsection (1B), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:

(a) the name, title, pseudonym or alias of the person; or

(b) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

(c) the physical description or the style of dress of the person; or

(d) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

(e) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

(f) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(g) any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

(32) Schedule 3, page 118 (after line 23), after item 110, insert:

110A After subsection 126(1)

Insert:

Publishing reasons for ART decisions

(1A) Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:

(a) a party to the review concerned (other than the Secretary); or

(b) a person (other than the Secretary) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or

(c) a witness in the review concerned.

(1B) Without limiting subsection (1A), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:

(a) the name, title, pseudonym or alias of the person; or

(b) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

(c) the physical description or the style of dress of the person; or

(d) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

(e) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

(f) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(g) any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

No effect on operation of the Freedom of Information Act 1982

(33) Schedule 3, item 165, page 129 (starting at line 15) omit the item, substitute:

165 Section 147 (cell at table item 8, column headed "Provision of AAT Act")

Repeal the cell, substitute:

(34) Schedule 3, item 166, page 129 (starting at line 18), omit the item, substitute:

166 Section 147 (cell at table item 8, column headed "Application or modification of provision of AAT Act")

Repeal the cell, substitute:

(35) Schedule 3, page 135 (after line 4), after item 180, insert:

180A After subsection 201(1)

Insert:

Publishing reasons for ART decisions

(1A) Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:

(a) a party to the review concerned (other than the Secretary); or

(b) a person (other than the Secretary) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or

(c) a witness in the review concerned.

(1B) Without limiting subsection (1B), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:

(a) the name, title, pseudonym or alias of the person; or

(b) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

(c) the physical description or the style of dress of the person; or

(d) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

(e) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

(f) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(g) any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

(36) Schedule 3, page 141 (after line 26), after item 202, insert:

202A After section 315

Insert:

315A Hearing of certain ART reviews in private

(1) This section applies in relation to a proceeding for ART review if the ART is constituted for the purposes of the proceeding otherwise than by the guidance and appeals panel.

(2) The hearing of the proceeding must be in private.

(3) The ART may give directions, in writing or otherwise, as to the persons who may be present at the hearing of the proceeding.

(4) In giving directions, the ART must have regard to the wishes of the parties and the need to protect their privacy.

(5) Section 69 (hearings to be in public unless practice directions or ART order requires otherwise) of the ART Act does not apply in relation to the hearing of the proceeding.

(37) Schedule 3, Part 1, page 142 (after line 10), at the end of the Part, add:

207A Section 350

Before "Nothing in", insert "(1)".

207B At the end of section 350

Add:

Publishing reasons for ART decisions

(2) Nothing in this Division prevents the ART from publishing in written or electronic form the reasons for a decision of the ART on ART review if the publication does not identify:

(a) a party to the review concerned (other than the Secretary); or

(b) a person (other than the Secretary) who is related to, or associated with, a party to the review concerned or is, or is alleged to be, in any other way concerned in the matter to which the review concerned relates; or

(c) a witness in the review concerned.

(3) Without limiting subsection (2), a publication of reasons for a decision of the ART is taken to identify a person if it contains any particulars of:

(a) the name, title, pseudonym or alias of the person; or

(b) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

(c) the physical description or the style of dress of the person; or

(d) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

(e) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

(f) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

(g) any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

(38) Schedule 4, item 66, page 179 (line 19), after "proceeding", insert "or Tribunal case event".

(39) Schedule 4, item 66, page 179 (line 21), after "proceeding", insert "or Tribunal case event".

(40) Schedule 4, page 180 (after line 4), after item 67, insert:

67A Subsection 61A(2)

Omit "AAT", substitute "Tribunal".

(41) Schedule 15, item 5, page 240 (after line 2), after paragraph 354(1AA)(c), insert:

(ca) paragraph 61(1A)(b);

(42) Schedule 15, item 28, page 245 (line 3), omit "Administrative Appeals Tribunal Act 1975", substitute "Administrative Review Tribunal Act 2024".

(43) Schedule 15, item 28, page 245 (after line 15), after paragraph 176(1)(g), insert:

(ga) paragraph 61(1A)(b);

(44) Schedule 15, item 36, page 247 (line 6), omit "167", substitute "176".

(45) Schedule 16, item 26, page 268 (line 4), omit "new Act", substitute "new law".

(46) Schedule 16, heading to Part 7, page 269 (line 1), at the end of the heading, add "and Chief Executive Officer and Principal Registrar".

(47) Schedule 16, item 28, page 269 (lines 7 to 11), omit paragraph (b), substitute:

(b) holds office as the President of the ART for the remainder of the term for which the person was appointed as President of the AAT.

(48) Schedule 16, item 29, page 269 (lines 17 to 21), omit paragraph (b), substitute:

(b) holds office as a Judicial Deputy President for the remainder of the term for which the person was appointed as Deputy President of the AAT.

(49) Schedule 16, Part 7, page 273 (after line 17), at the end of the Part, add:

33A Appointments to commence at or shortly after the transition time

AAT President to be consulted on member appointments before transition time

(1) Subitems (2) and (3) apply to any appointment of a person made in the exercise before the transition time of a power conferred by section 206, 207 or 208 of the new Act.

(2) Paragraphs 206(2)(b), 207(2)(a) and 208(2)(a) of the new Act do not apply to the appointment of the person.

(3) Before the Minister makes a recommendation to the Governor-General to appoint the person, the Minister must seek, and take into account, the advice of the President of the AAT in relation to:

(a) whether the appointment would meet the operational needs of the Tribunal; and

(b) unless the appointment is as a Judicial Deputy President—the financial capacity of the Tribunal for the appointment; and

(c) the effect of the appointment on the relative numbers of Judicial Deputy Presidents, Non-Judicial Deputy Presidents, senior members and general members.

Members assessed before the transition time

(4) Paragraphs 207(2)(b) and 208(2)(b) of the new Act do not apply to the appointment of a person assessed as suitable for the appointment through a selection process that:

(a) is conducted in accordance with the Guidelines for appointments to the Administrative Appeals Tribunal; and

(b) commences on or after 1 July 2023.

Note: For appointment of non-judicial members, the Guidelines require public advertising of the position and an assessment, by a panel of persons, of candidates' suitability for the appointment against core selection criteria.

(5) Subitem (4) ceases to be in force 6 months after the transition time.

AAT President's agreement required for appointment of Chief Executive Officer and Principal Registrar before transition time

(6) Subitems (7) and (8) apply to any appointment of a person made in the exercise before the transition time of the power conferred by section 227 of the new Act.

(7) Paragraph 227(2)(c) of the new Act does not apply to the appointment of the person.

(8) Before the Minister makes a recommendation to the Governor-General to appoint the person, the Minister must obtain the agreement of the President of the AAT to the appointment.

Chief Executive Officer and Principal Registrar assessed before the transition time

(9) Paragraph 227(2)(b) of the new Act does not apply to the appointment of a person assessed, by a panel of persons, as suitable for the appointment through a selection process that:

(a) is merit-based; and

(b) includes public advertising of the position; and

(c) commences on or after 1 February 2024.

(10) Subitem (9) ceases to be in force 1 month after the transition time.

(50) Schedule 16, page 284 (after line 14), at the end of the Schedule, add:

Part 10 — Consultation before transition time

52 Consultation in relation to rules before the transition time

(1) This item applies to rules made in the exercise before the transition time of the power conferred by section 295 of the new Act.

(2) Subsection 295(6) of the new Act does not apply to the making of the rules.

(3) Before making rules that would affect the practice, procedure or operations of the Tribunal, the Minister must consult the President of the AAT.

The government is moving amendments to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023. The amendments flow from the amendments that I moved earlier to the Administrative Review Tribunal Bill, which were accepted by the House, and that bill has now passed.

Specifically, these amendments support the reinstatement of a second review process as a right for parties to review social services decisions where the two-tier review currently exists before the AAT. They make the necessary consequential changes to social security laws. These amendments also make a range of technical changes to clarify and improve the operation of the Administrative Review Tribunal.

I'll leave it there, given that I outlined the substantive content of these amendments earlier in this debate.

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

I have a couple of questions on this set of amendments. The first one is on accessibility. There has been significant concerns raised, as we mentioned in our second reading debate, about the accessibility of the tribunal, particularly for people who require translators. I have experiences in my own electorate of people having issues with acquiring translators and needing translators when they're accessing the AAT and numerous other government services. What steps are you taking to deliver on these concerns?

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

I'm very happy to answer the member for Brisbane's question. The legislation ensures that the tribunal is accessible. A priority of the reform is ensuring that the tribunal meets the needs of its users. The tribunal's objective would require that the tribunal provide an independent mechanism of review that is accessible and responsive to the diverse needs of parties. This reflects the fact that many tribunal users may require adjustments to participate meaningfully in tribunal processes.

The tribunal is also required to be accessible under clause 51. This applies as far as is practicable and requires the tribunal to consider the needs of parties. The president may make practice directions in relation to accessibility. There's a definition of 'accessible' in the AAR bill. The definition reads, 'Enables persons to apply to the tribunal and to participate effectively in proceedings in the tribunal'. I can assure honourable members that the department intends to engage with the tribunal and key stakeholders prior to implementation to ensure that accessibility remains a key focus.

I've had a personal long history of looking at this. Accessibility to public buildings is the subject of Australian standards. It's something that I think Australian government departments, instrumentalities and agencies have taken some time to come to. But increasingly public buildings, including premises occupied by the current Administrative Appeals Tribunal and premises to be occupied by the Administrative Review Tribunal, are physically accessible. As to the language needs or other needs of people with a disability, not just the current Administrative Appeals Tribunal and its successor, the Administrative Review Tribunal, but also courts and government departments generally are I think becoming increasingly aware of the need for government services for review processes like the ones the Administrative Review Tribunal will be delivering to indeed be accessible and properly responsive to the diverse needs of the whole of the Australian community.

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

In regard to the two-tier system, we understand that the government amendments seek to address concerns raised by stakeholders regarding the fact that the tier 1 system that is currently available for social security matters won't be preserved under the new ART. A number of my constituents have raised these concerns with me. Can you advise on how these amendments work to deliver a low-cost, accessible jurisdiction comparable to the tier 1 system?

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

For the assistance of honourable members who are perhaps not familiar with the way review of social services decisions currently operates in the Administrative Appeals Tribunal, we have the situation that most parties to a review of social services decisions—which include certain social security, family assistance, student assistance, paid parental leave and some child support decisions—have an automatic right to seek a second tribunal review of a decision after it has been reviewed by the Administrative Appeals Tribunal for the first time. It's often referred to as tier 1 and tier 2.

The Administrative Review Tribunal Bill introduces improvements to the conduct of tribunal review of social services decisions so that the correct or preferable decision can be reached during the tribunal's first review, minimising the burden that seeking further review has on applicants. The settings for the reinstated second review for social security matters, which is the effect of the government's amendments, would be harmonised with other jurisdictional areas in the tribunal where possible and will broadly mirror existing settings for the second tier of review in current legislation. If a person is dissatisfied with a tribunal decision on a social services matter, they may seek a second review of that matter at the tribunal.

The improvements to the first review in the current bill would be retained. These settings would enable the tribunal to direct the decision-maker to participate in some proceedings where the tribunal deems it relevant and appropriate. It would ensure that matters can access dispute resolution and single-party case conferencing at the first review and would allow the tribunal to publish deidentified social services decisions to improve the transparency of tribunal decision-making while protecting the privacy of applicants. These improvements would assist the tribunal to make the correct or preferable decision at an earlier point of review while also keeping tribunal review of social services decisions inquisitorial, non-adversarial, informal, timely and accessible.

So, in essence, we are seeking to make improvements to the first tier. With these amendments we're going to preserve—because it seems to be the wish of the sector for the time being, because of the need for further reform in Services Australia—the possibility of a second tier of review. But there will be a very substantial improvements in the first tier.

It's notable that, if the ability of the tribunal to publish first-tier decisions had existed at the time of the robodebt scandal and disaster, it would have been possible for the Australian community to know, at a much earlier stage, about the unlawful decision-making that the former government engaged in. There were some 90 decisions made by the Administrative Appeals Tribunal in tier 1, not one of which was published, not one of which was appealed by government, and all of which made clear that the former government had engaged in unlawful conduct, and, because they didn't have to be published, the public were unaware of that scandal for a lot longer than should have been the case.

The second review for social security matters would replace the appeals function of the guidance and appeals panel that we're providing for, for the whole of the ART jurisdiction, where a party can seek a review of a tribunal decision on the basis that there may have been a material error, or the matter raises an issue of significance to the administrative decision-making. The president would retain a power to refer a matter, on their own initiative, to the guidance and appeals panel, at either the first or second review, on the basis that it raised a matter of significance to administrative decision-making. That will allow the guidance and appeals panel to exercise its function to review significant social security decisions while preserving the rights of applicants to access a second review with as little cost and formality as possible. So we have acceded to what advocates have sought, which is: for the time being, we're going to persist with the second tier—it's something that people are used to—but meshing it with what we hope are very much improved processes.

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

I have a related question, and I know that the Attorney-General referred to Services Australia. Noting that many of the issues currently experienced in the AAT are actually caused by Services Australia's poor engagement and communication processes, which often have really significant impact on individuals—and I do have constituents who have had this experience—what steps have actually been taken to ensure that this is resolved?

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

I can assure the member for Ryan that there's been a huge amount of work done by the Attorney-General's Department, by the expert panel headed by former justice of the High Court Patrick Keane, with affected departments. Obviously, one of those departments is the immigration part of the Department of Home Affairs, another is the Department of Social Services and yet another is Services Australia. There's obviously a tremendous interaction between the way in which the current tier 1 and tier 2 in the social security division of the current AAT interact with Services Australia. It's accepted by the government that there's a need for reform of processes at Services Australia. I would suggest to the House that the improvements that I've outlined in my previous answer to the member for Ryan—about very substantial changes being made to what is currently referred to as tier 1—will, if these amendments are accepted, continue to be a first stage or tier 1 of review. They will be very substantially improved. The second tier of review, that will continue to be available, will also operate with improved processes.

The new tribunal, the Administrative Review Tribunal, is going to be empowered, as I've made clear, to give directions—which, relevantly to the member for Ryan's question, will be directions to Services Australia—to participate, in a way which doesn't always occur now, and, further, to participate in ways that the tribunal regards as relevant and appropriate. So it won't be just left up to Services Australia to decide how it's going to participate. The tribunal will have a far more hands-on power of direction, but equally there will be alternative dispute resolution and single-party case conferencing that can all take place at the first review.

We are genuinely hoping, I can say in answer to the member for Ryan, for very substantial improvements in the review of social services decisions across the board. We are hoping that these changes at the administrative review level will in turn lead to improved decision-making across government, and that includes improved decision-making at Services Australia.

Question agreed to.

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

I move the amendment circulated in my name:

(1) Schedule 2, item 170, page 68 (lines 11 to 24), omit section 367A.

This amendment simply removes section 367A from the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, and the reason for this amendment is also simple: section 367A goes against the very principles of natural justice. Indeed, as drafted, section 367A would replace section 423A of the Migration Act, thereby maintaining a process which has always been unfair to refugees and asylum seekers. In essence, the provision would require the newly formed Administrative Review Tribunal to draw an unfavourable inference as to the credibility of the claim or evidence provided by an applicant if such information was not raised in the primary decision in circumstances where the tribunal is satisfied the applicant does not have a reasonable explanation for the delay. The provision only applies to applicants seeking a review of protection decisions, meaning it will create a disproportionate and unfair disadvantage to refugees and asylum seekers.

There are many reasons protection applicants might not include certain information within their original claims—for example, asylum seekers and refugees often face language barriers when completing applications, which is especially problematic when considering that applications must be completed in English. Moreover, with inadequate government funding for translation and interpreting services as well as limited availability for funding for legal services in this area of law it's unsurprising that some asylum seekers don't provide all relevant information in their original application. Hence, it might only be after an original application is refused that they seek legal advice and find that they should have included additional evidence. Yet, if the section is included in the bill, the tribunal may not be able to consider this additional information.

Furthermore, it is well established that people seeking asylum typically experience trauma both before and during their arrival in the country they are seeking protection from, and as the Refugee Advice and Casework Service explains in its submission to the Standing Committee on Social Policy and Legal Affairs inquiry into this bill:

Studies have revealed that trauma, particularly of the kind experienced by people seeking asylum, often leads to memory loss or gaps, loss of concentration, impairment in cognitive function and the deterioration of mental health.

The RACS goes on to note:

For some people seeking asylum, the need to cope with past traumas may lead to avoidance, suppressing memories, or dissociation when prompted to recount their experience of these traumatic events. This can explain why there may be a lack of detail, incoherence or gaps in an applicant's retelling of an event …

Additionally, some asylum seekers may not include vital information in their initial application because of stigma, shame or a fear of authorities. For example, people seeking asylum because of their diverse sexual orientation, gender identity, gender expression or sex characteristics may be hesitant to include such important information in their initial application for fear of retribution. Indeed, some asylum seekers come from countries where they can be imprisoned or even executed simply for being gay, so this hesitance is not surprising.

As you can see, there are a myriad of reasons why applicants may not have included vital information in their initial application, and, despite the fact that they may have a strong case for review, the way that section 367A is drafted has the potential to deny them access to protection and ultimately justice. Indeed, under subsection (2), unless the tribunal is satisfied there is a 'reasonable explanation' for the applicant's delay in providing the information or evidence, the tribunal is required to draw an unfavourable inference to the credibility of the claim. Here we come to the next problem, because reasonable explanation is not defined in the legislation. So, if an applicant were to rely on any of the examples I have spoken about, there is no guarantee that these valid explanations would be accepted by the tribunal. This is simply unconscionable and reflective of the way successive governments have continued to treat refugees and people seeking asylum appallingly in this country.

The removal of section 367A is supported by many leading organisations, including the United Nations High Commissioner for Refugees, the Law Council of Australia, the Asylum Seeker Resource Centre and the Refugee Advice and Casework Service. Experts in this area have made strong recommendations for the government to remove this provision from the legislation, and I echo these calls because every person, including those significantly vulnerable, such as refugees and asylum seekers, should have a right to justice in this country.

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

In response to the amendment from the member for Clark, I can say directly that the government does not support this amendment, which would remove the new clause 367A from the Migration Act.

The new section 367A replicates the effect of the existing section 423A of the Migration Act. It requires the tribunal to draw an adverse credibility inference if a protection visa review applicant raises a new claim in the tribunal without a reasonable explanation as to why the claim was not raised before the primary decision-maker. I will repeat that. It's important that it be understood that it doesn't prevent a protection visa review applicant from raising a new claim. What it does is require the tribunal to draw an adverse credibility inference if that new claim is raised without a reasonable explanation as to why it wasn't raised before the primary decision-maker.

The context for this is that it's relatively unusual for a new claim to be raised in this kind of proceeding. Bear in mind that, importantly, applicants are able to put forward an explanation as to why the claim hadn't been raised earlier or why the evidence wasn't presented earlier. The tribunal may choose to accept that explanation and not make the adverse inference.

The purpose of provisions like this is to contribute to the integrity of the onshore protection status determination process. Protection visa applicants are required, at the time that they apply for a visa, to make specific claims about why Australia's protection obligations are satisfied in their case. This section sets a clear expectation that protection applicants raise all claims and present all available evidence at the earliest possible stage. That's to ensure that the decision made by the primary decision-maker is as accurate as possible.

Of course there are going to be circumstances in which a late raised claim is explicable or late raised evidence is explicable. It'll be explanations such as, 'I couldn't find a witness,' 'I couldn't find a document' or 'I wasn't able to get the document.' That allowance is made in this provision.

Retaining section 367A reduces opportunities for exploitation of the migration system and supports expedient resolution of reviews and decisions. It does so in a way that preserves rights and recognises the degree of difficulty that, very often, applicants are faced with in getting their material together.

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

In that case it all seems to hinge on what the tribunal decides is a 'reasonable explanation'. Perhaps I could just quickly whizz through a few historic examples and at the end of these examples put to the Attorney-General the question, do any of these fall within the criteria for a reasonable explanation?

Mindy fled Nigeria having experienced serious gender based violence from her family. She was fearing harm as a member of the LGBTQI+ community. She was afraid to disclose her sexuality to the department because of stigma and a fear that her family or others in Nigeria might find out. It was only after obtaining legal assistance that she could articulate her claim and the reasons for delay in raising it. Ultimately she was recognised as a refugee.

Another example is Mariama, who fled Sierra Leone having experienced female genital mutilation. She did not raise it at the primary stage because she did not know it was relevant to her case because of how prevalent and normalised the practice is in Sierra Leone. Had she not had a lawyer, the presumption in the section could not have been exercised against her with what is a clear claim not considered, and her status as a refugee would not have been recognised.

Achiva, a divorced woman from Ethiopia, arrived in Australia having experienced physical and sexual violence from her former husband, and persecution for her political opinion. Due to trauma and cultural taboo, she was not able to disclose the violence she had experienced until she had established a relationship of trust with a lawyer, which took months. Without the lawyer, she would probably not have been able to raise her claims or articulate the reason she could not raise them earlier. Working through it with a lawyer, the presumption was able to be rebutted eventually.

Litiana fled Fiji having experienced severe gender based violence. She lodged an application raising these claims and it was rendered invalid. Her second application, made with the assistance of a support person, did not include these claims due to the support person's negligence. After she was denied an interview at the primary stage, the tribunal raised the presumption against her and required submissions post hearing, using significant resources. I can say that in this case a decision is pending.

Elnaz experienced physical and sexual family violence, including threats to kill and violence against her children from her husband, in both Iran and Australia over a period of years. She couldn't previously raise it because her application was joined with her husband's. Further, she was afraid her family in Australia would learn what happened to her and she feared her community's judgement of her if she disclosed the violence in her relationship. But, with the assistance of a lawyer, Elnaz was able to rebut the presumption, leading to her recognition as a refugee.

Finally, there is the example of Mubashir—these are not their real names—fled Pakistan fearing harm from the Taliban. He did not disclose at the primary stage that he had been targeted by military intelligence, as he feared that information would be shared with authorities and he feared severe consequences.

In other words, there are any number of applicants for protection, who, for very good and very legitimate reasons, were not able to, or did not think to, provide a full and detailed explanation of their circumstances. Surely, in all those cases the presumption should not have applied and they should have been allowed to add information subsequently—for example, after they had been able to trust a lawyer or after they were made aware of the scope of our laws and in what circumstances protection might be applied. So I am concerned that the section remains and that, if it is going to remain, that it remains ill-defined as to in what circumstances the tribunal will be able to accept additional information.

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

Very briefly, the examples that were given just then by the member for Clark—with the greatest of respect to him—simply prove that there is a discretion currently, that there has been a discretion, and that late raised material is capable of being accepted without the tribunal choosing to draw an unfavourable inference to the credibility of the claim in those matters. I'm indebted in a way to the member for Clark for bringing forward those examples, because what we have here with the proposed new clause 367A from the Migration Act would replicate the effect of the existing section 423A of the Migration Act, that being the provision under which all of the examples that the member for Clark referred to were made.

No-one doubts the degree of difficulty or the degree of pain and suffering that has been experienced by very many applicants for protection status in Australia or the cultural barriers that exist that might indeed provide a reason why certain evidence wasn't brought forward at the earliest possible stage. No-one doubts the difficulty of obtaining appropriate legal advice, which sometimes means that unrepresented applicants at an earlier stage don't put their cases as well as they might, and that with the assistance of a lawyer they were enabled to put their cases better. The current tribunal, the Administrative Appeals Tribunal, applying the current section 423A of the Migration Act, has proved itself able in the past to see those difficulties, to make appropriate decisions, to recognise that there were reasons why late raised material hadn't been raised earlier. I certainly haven't seen here in the examples put forward by the member for Clark, with respect, a reason for not continuing with the new proposed section 367A of the Migration Act, which, as I said, preserves appropriate discretion in the tribunal to receive late raised evidence.

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

I thank the Attorney-General for that explanation. This all seems to hinge on what is the definition of 'reasonable explanation'. I think we could bring clarity to this matter right now if the Attorney-General could read into the record his or the government's understanding of 'reasonable explanation'?

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

I thank the member for Clark for his suggestion, but I won't do that. I'm not seeking to fetter the future Administrative Review Tribunal with whatever thoughts I might have on the infinite variety of circumstances that can occur in protection applications and review of protection decisions. It's simply not possible to do so. That's why we use in legislation phrases like 'reasonable explanation'. That's why we preserve discretions in administrative decision-makers so they can tailor their decisions to the particular circumstances that arise in the particular case. There is always a degree of difficulty in the minister, or me in debate, seeking to set out an exhaustive list of what I think might constitute a reasonable explanation, let alone attempting to do so in the legislation itself. There's got to be some scope for discretion, some scope for administrative decision-makers to match their decision-making to the particular circumstances and the infinite variety of human life that comes before them.

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

Finally, briefly, I will take this opportunity to acknowledge the many people right around the country who do come to the assistance of asylum seekers to allow them to work their way through the processes that we're discussing and in the case studies that I've given. I would particularly like to single out my friends at the Asylum Seeker Resource Centre, who, along with countless lawyers and other people around the country, have worked tirelessly to take hold of an asylum seeker and understand their circumstances and help them make that application, particularly when the application is complex and there is a need ultimately to provide that additional information and to achieve the protection they seek.

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

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

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

I move amendment (3) as circulated in my name:

(3) Schedule 2, item 160, page 67 (lines 1 to 6), omit the item.

This amendment is not dissimilar in theme or tone to the previous amendment from the member for Clark or the amendment moved by the member for North Sydney. However, this amendment goes to information that is required or not required to be given to an applicant for comment.

I did move the amendment. Thank you for the advice, Attorney-General. I did move the amendment as circulated in my name.

This amendment goes to the issue that, under this legislation, the ART is not required to notify the applicant of information that it intends to rely on to affirm the decision under review if this information is included in the original decision. Arguably, this is a significant departure from procedural fairness requirements where the tribunal is required to notify applicants of adverse information in the decision under review which it intends to rely on. As written, the legislation will permit the ART to refuse an application based on material mentioned in the applicant's department decision, even where this material wasn't relied on by the department in making its decision, without providing any notice to the applicant that it intends to rely on this material in a different manner to the department.

There are several issues with this. One is the potentially unjust outcome for applicants who will be denied an opportunity to comment on that adverse information before a tribunal decision is made. Also, it forces applicants into a position where they will have to address every single issue in their department decision without knowing which bit of that decision is or is not being relied on to make an adverse decision. This will mean more lengthy submissions, voluminous materials to the tribunal, and potentially higher legal fees for the preparation of these materials. So there's potentially an inefficiency factor for the tribunal.

By way of case study—and I am in part, like the previous speakers, relying on advice from the ASRC, which has done amazing work in providing examples and case studies of people who have been affected by these sorts of rules—this case study goes to Jibrail, a Hazara man from Afghanistan, who sought asylum in Australia and applied for a protection visa but was refused one by the Department of Home Affairs. Jibrail sought a review of his department decision. As the department accepted he couldn't return to his hometown or Mazar-i-Sharif, Jibrail focused his submissions to the tribunal on why he could not return to Kabul. The tribunal then notified Jibrail that it considered he could safely return to Mazar-i-Sharif, and Jibrail had an opportunity to address this matter before the tribunal. If the subsection as written in this new iteration of the legislation had been in place, arguably Jibrail would have been denied the opportunity to respond to the adverse information the tribunal intended to rely on regarding relocation to Mazar-i-Sharif as the matter was considered in the department decision, even though the department reached a different finding.

The issue I'm trying to get to here is that these are life-and-death decisions for people. I know that the Attorney-General understands that, and that that's the whole point of what we're trying to do here, but the crux of the matter is that these are some of the most vulnerable people in our community who are facing immense pressure, immense anxiety, financial issues, language issues and a whole range of barriers as they work through these processes. These issues of procedural fairness are really critical, and we need to get this right.

I will finish by saying that, in conversations with the Attorney-General, he has made the point about not wanting to overlegislate in order to give the tribunal the flexibility to do its job. I hear that completely. But we also don't want to underlegislate when what we're trying to do is protect due process for some of the most vulnerable people who interact with the system.

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

The government does not support these amendments. I thank the member for Goldstein for withdrawing her earlier amendment because of the interaction with the government amendments. On this amendment, with respect to the member for Goldstein and those who provided her with the example she gave, there seems to be some misconception about what these new paragraphs, 359A(4)(d) and (e), of the Migration Act will do. What they do is clarify that the tribunal is not required to give to the applicant information that was included or referred to in the written statement of the decision that's under review or that's prescribed by the regulations. Because the written statement of the decision is the primary document that is relevant to the decision under review, applicants will already be aware of the contents of the written statement. They will have the opportunity to respond to any of that information during the review process, particularly at the hearing. It's not actually necessary for the tribunal to separately draw this to an applicant's attention. Very importantly, proposed section 359A does not prevent the tribunal member from putting information to an applicant if they consider it necessary and conducive to the review process.

The government and I accept the vulnerability of many applicants in migration review processes, but, as far as possible, I can assure the member for Goldstein that, contrary to her suggestion to the House that this might lead to longer decisions or hearings, or her suggestion that applicants were somehow being denied the right to put submissions, that is not what this provision deals with.

This provision is a very narrow procedural provision. It relieves the tribunal from any obligation to give information to the applicant that's already included or referred to in the written statement of the decision. This narrow procedural provision won't lead to longer decisions. It won't lead to longer hearings. It won't deny applicants the right to put submissions on any matter that they believe is relevant to their situation. It's a very narrow procedural provision, and I would suggest to the House that it is likely to improve the way in which the decision-making process takes place in the tribunal.

Question negatived.

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

I move my amendment:

(1) Schedule 2, item 171, page 69 (line 15), at the end of subsection 368(1), add:

; and (e) inform the applicant, where possible, of any further steps needed to be taken by the applicant in order to have their matter finalised.

As we've heard this morning from the member for North Sydney, the government's Administrative Review Tribunal Bill is actually a great improvement on the previous Administrative Appeals Tribunal legislation. I have previously shared the experience of my constituents' woes with the AAT. There are recurring issues that derive from their experiences where they've struggled with accessibility due to language barriers, cost and the stress of waiting for correspondence without knowing if they would get a favourable outcome or not.

The introduction of the ART is an expensive exercise and it must be done right. In considering the experience of my constituents, my proposal for this amendment is to address the lack of notification. We often get constituents coming to our office and English is their second language, as the member for Brisbane initially mentioned. The AAT deals a lot with people from non-English-speaking backgrounds, and in my electorate of Fowler, where 70 per cent of the population have a parent or two parents born overseas, English is often a second language. Therefore, in seeking this amendment, I'm really just asking the government to consider that people need to know and to be informed about what's happening with the decision so that they can actually plan ahead. This is about procedural fairness and, basically, giving people the opportunity to plan to know what to do, and communication, as we know, is very important.

The ART, the new executive body, is a big beast, and I appreciate the cases that the ART will face and will have to consider. But I think it's a matter of fair process to just inform the review applicant of what they have to do and what they need to present to the AAT. We've been talking about the review process this morning. We've been talking about decisions being made, but are those decisions and review processes being given to clients, in particular to people of non-English-speaking backgrounds? We make legislation in this House all the time, and the legislation we make is in English and predominantly, if not 100 per cent of the time, aimed towards people whose first language is English. My hope is that the ART, as we progress to implement this legislation, will ensure that the tribunal is cognisant of the needs of multicultural communities and of those who are fronting the ART. Often, when you go into these institutions, there's a lot of stress and there are a lot of fears, because language is such a big barrier. Not being informed about what's happening with their case then adds to further stress.

As I said, there have been so many cases of people coming to see me at my office not knowing what the AAT's position is. They have not heard from the AAT. They've been waiting for years—12 months, two years or three years—without a simple notification of what's required of them or even a notification saying: 'You've been rejected. The case is concluded.' I really don't think a simple notification is too much to ask the tribunal to include in their decision.

I know that the minister will stand up and reject this amendment, but I really urge the government to consider our multicultural communities in making legislation, and such important legislation as the ART, especially in the reviewing process. Thank you.

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

The member for Fowler's amendment would alter section 368 of the Migration Act so as to require the tribunal's notice of decisions and statement of reasons to clearly outline 'next steps and action required' for applicants.

I can say directly that the government does not support the proposed amendment but not because we don't share entirely the objectives of the member for Fowler in making the processes of the Administrative Review Tribunal and administrative decision-making in respect of Migration Act matters as accessible, clear and available to applicants as they can possibly be.

We accept entirely the observations of the member for Fowler about the difficulty that is faced by many applicants, created by cultural and language barriers in their lives, to accessing the processes of the tribunal. It's for that reason that the provisions of the Administrative Review Tribunal Bill and the consequential bill that is now before the House require that applicants be given written notice when a tribunal case event is scheduled or where the tribunal has given a direction for something to be done. That requirement is already there in the legislation as proposed. This ensures that applicants understand what they're required to do and the time frames for doing so.

The particular section of the Migration Act to which the member for Fowler's amendment would attach is section 368. It applies to the tribunal's final decision in a migration or protection matter—that is, not procedural decisions and not directions in running but the decision whether to affirm, overturn or remit the original decision-maker's decision.

Section 368 of the Migration Act modifies section 111 of the Administrative Review Tribunal Bill to require that tribunal decisions provide additional information for reviewable migration and protection decisions. In particular, the decision must include the time and the date of the decision, which are essential to meet the need for certainty here. I referred to that need for certainty earlier in this debate about Migration Act processes. It's essential to meet the need for certainty about when a decision on a review of these decisions is final.

I can assure the member for Fowler that, in the government's view, not only does the legislation already require that there be clarity given to applicants and that applicants have the effect of a decision absolutely clearly spelled out for them, as well as the time and the date of a decision, but the government intends to work with the new tribunal over coming months to ensure that all communications with all parties to a review are clear, are accessible and are comprehensive.

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

The question is that the amendment moved by the honourable member for Fowler be agreed to.