Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I understand we are dealing with two bills concurrently, but I rise this evening predominantly to provide comments on the Migration Amendment (Review Provisions) Bill 2006 [2007]. In my examination of this bill, I want to discuss three areas. Firstly, I want to know how this government proposes, through the review provisions bill, to alter the current operation of the merits review bodies known as the Migration Review Tribunal and the Refugee Review Tribunal, or the MRT and the RRT, as they are known in the industry. Then I want to take the opportunity to raise some of the interesting questions that came out of the Senate Standing Committee on Legal and Constitutional Affairs investigation of the act and highlight to the Senate that, of the 15 organisations and relevant stakeholders that made submissions to the inquiry, only the government, it seems, its department and bodies, have found the proposed changes to this act necessary and, what is more, favourable. Finally, I want to examine the fundamental administrative law principles which motivate this bill, with special reference to the continual balancing act between flexibility and maintaining a just and fair merits review system.

Let us have a look at the review provisions bill to identify exactly what it sets out. There are two key elements of the bill. First, the bill will allow the MRT and the RRT to ‘give procedural fairness to review applicants, during a hearing’ by communicating the particulars of any adverse information ‘that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and invite the applicant to comment on or respond to the information’ through oral communication means. Second, the bill provides:

… that the obligation to give an applicant information and invite comment on or a response to the information does not extend to information already provided by the applicant to the Department of Immigration and Multicultural Affairs … as part of the process leading to the decision under review, other than information that the applicant has given orally to the Department …

With regard to the first key element, it was argued by the department and the tribunals in their submissions to the Senate committee inquiry into this bill that the High Court’s interpretation of procedural fairness in what is now known as the SAAP case has placed an undue burden on the MRT and the RRT and has created, according to Minister Ellison, then the minister responsible, serious operational difficulties for the tribunals, as the MRT and the RRT continue to struggle to meet the statutory 90-day limit for finalising decisions.

With regard to the second key element, in lay terms, this is essentially an attempt by the government to remove the requirement to, firstly, deliver the reasons for a decision by the tribunals in writing and, secondly, stop the applicant from providing to the tribunals information previously submitted to the department. So what are the implications of changes of this nature to this system?

This takes me to the second issue I want to raise in the chamber, and that is the response from the relevant stakeholders and the legal minds of this country who presented submissions to our inquiry into this legislation. A cursory examination of the submissions to the inquiry is indicative of the response that this bill has received—that is, only the government department and bodies are supportive of these amendments. All other submissions—let me make that really clear: every other submission we received to this inquiry, including submissions from the broader legal community—demonstrate that there is a very legitimate concern that this bill is simply an attempt by this government to sacrifice procedural fairness and natural justice in the name of flexibility and efficiency.

We heard evidence from pre-eminent legal minds on the area of migration law and administrative law—from well-respected bodies such as the Human Rights and Equal Opportunity Commission, Australian Lawyers for Human Rights, the Refugee Council of Australia and the Law Council of Australia, to name a few. The response of these organisations to the bill was one of grave concern. We were told by Australian Lawyers for Human Rights that this bill ‘represents a regrettable attempt to narrow the scope of the merits review process’ and:

… the Bill fundamentally alters the role of the MRT to the detriment of applicants and the review process more broadly.

The Human Rights Commissioner, Mr Graeme Innes AM, put his view to the committee by stressing that the bill was ‘contrary to the rules of natural justice’ and will lead to unfairness in some cases.

HREOC, in its submission, also stated that, even if the bill does improve efficiency, it is likely to create ‘an unfair process’. In particular, the bill’s ‘reliance on oral communication’ in migration and refugee cases is unfair. This is because there is a grave danger that an applicant may not fully understand the meaning or significance of what they are being told or of what they are responding to. Even when an applicant does understand the case against them, the charges may mean, as HREOC says, that ‘they may not have the chance to fully or adequately put their case to the tribunal’. The Castan Centre for Human Rights Law submitted that the bill’s reliance on oral communication ‘may obfuscate the process and lead to misunderstandings between tribunal and applicant’.

The list of comments indicating concerns with this bill goes on. In fact, I highlighted this to the department when they appeared before the legal and constitutional committee. I highlighted that suggestions include: that speed does not lead to fairness; that there will be flawed decisions in the future; that questions of jurisdictional error will be asked; that there is ambiguity in the use of oral evidence—particularly when you may not be able to speak the language or when English may be your second, third or even fourth language, if you understand it at all; that interpretive skills are lacking in some cases, and we heard many evidences of that during this inquiry; and that there are numerous inconsistencies between tribunal members in the way they conduct the tribunal, in the way they handle cases and in the way they inconsistently deal with individual cases.

I clearly remember asking the department during the hearing that, if so many eminent lawyers and legal practitioners in this field do not believe that the changes to this act are in the best interests of the people to whom they are most applicable, why was it that the department’s submission was the only one we had before us that responded positively to such changes. I think the answer was quite clearly inadequate. The response of the department to these concerns was simply:

If you follow the logic of a lot of the submissions you have received we would not have hearings at all because everything could be done in writing.

I think that was a pretty poor response, but it was indicative of most of the responses from the department. They did not try to provide a factual response to moot the points raised, and they failed to engage with most of the concerns raised by our non-government legal and academic minds in this country.

All of the non-governmental agencies and groups resoundingly agreed that, under the status quo, if you were to measure procedural fairness against administrative efficiency, the scales are currently equally balanced. If you were to add further weight to procedural fairness, this would tip the scales and result in undue administrative complexities and red tape. But, on the other hand, if you were to add to administrative efficiency then you would tip the scales the other way and compromise any attempt to establish a just and fair outcome for applicants.

I believe that, as the workloads increase for the MRT and the RRT, the solution is not to add or subtract from either procedural fairness or administrative efficiency but to get a better set of scales that balances the outcome and benefits both the tribunal and the applicant.

What I believe is needed is the adequate provision of resources to the MRT and the RRT by this government. That is really the nub of the problem here; not amending legislation so that applicants are unduly biased or disadvantaged in order to cover up the inefficiencies of the MRT and the RRT. By looking at the annual reports for the tribunals, it can be observed that staffing levels are under budget. For example, 73 members of the tribunal are part time and only 24 are full time. The reports also show that the tribunal, which is predominately staffed by part-time employees, is required to adjudicate many of the department’s mishandled decisions. In fact, it was put to us at the inquiry that more than half of the department’s decisions are overturned. The tribunals surely need to have better resources available to them, rather than simply moving resources back and forth between the MRT to the RRT, like a little butter that is spread over too much bread. I believe this is completely unacceptable.

What we have got here is a government that is not dealing with the real issues at heart: the under-resourcing of the MRT and the RRT, the inadequacy of the number of part-time members of the tribunal and the total inadequacy of the decision-making processes and the outcomes within the department. So what this government is doing is in line with its philosophy of always attacking the victim, of blaming the victim, of having a go at these people who are seeking to prove their refugee or migration status. They are having a go at these guys now and, instead of being required to provide everything they want to communicate to them in writing, now there is an option to do it orally.

It is no wonder that the Senate committee’s report recommended that the main guts of this legislation—the main elements of this legislation—be deleted. Although it is only three lines, the committee recommended that the proposed sections 359AA and 424AA be amended. That might seem fairly innocuous, but that is really the hub of this legislation. It goes to the fact that adverse material may only be provided orally at the election of the applicant. The Senate committee wanted to put the onus back on the applicant, to say that if they actually requested it orally—that is, they understood it and they were happy to have it orally—so be it. But that is not the way this government wants to operate, and I have no doubt that they will not pick up the recommendation of the Senate committee report.

What can we observe of this government from the introduction of this bill? We can see that this government has failed to address the big picture problems. It is not introducing a bill to properly resource the MRT and the RRT. It is not introducing a bill which will reduce the amount of inaccurate decisions made by the department. Instead, this government is only tinkering at the edges. The government is introducing a bandaid solution at the cost of procedural fairness and natural justice.

This takes me on to my third and final point, which goes to the heart of the legal principles that are being undermined by this bill and this government. I stress that I support the tribunals in the exercise of their responsibilities, and you would have to concede that the workload of the tribunals is significant. I also believe the tribunals should be just, fair, informal, cost-efficient and speedy, in ways that cannot be facilitated by the judicial system. However, I do not believe that procedural fairness or natural justice need to be compromised in this manner for the sake of speed.

It has been the express purpose of this bill to attempt to give the tribunal the ability to opt out of the fundamental legal principles upheld by the High Court in the SAAP v MIMIA case. The Legal Aid Commission of NSW stated in its submission that the bill removes an important protection for applicants that was established by that case:

... applicants are notified in writing of information ... which can be used to refuse the review application.

It is rightly pointed out by the commission:

Natural justice requires that applicants are afforded a meaningful opportunity to respond to adverse information.

I believe that this is a fundamental tenet of our legal system. However, the government wishes to fly in the face of this legal principle by introducing an oral process, a process which the commission believes:

... will not allow many applicants the opportunity to comment on the [Tribunal’s] concerns.

I know that in defending this legislation the minister will say that that is not the case, but one needs to look at the critical comments we received about the inadequacies of some of the interpreters that are used, the lack of understanding of English by some of the applicants and also just the cultural background of some of the applicants, who are pretty stressed. By the time your case gets to the MRT or the RRT, you are pretty stressed about this.

There was evidence that a lot of applicants actually just agree and say ‘yes’ to anything that is said to them, mainly those who come from South-East Asia and Asia. Because of their cultural background they are not used to challenging or questioning a body of the status of the tribunal or questioning a government. In fact, a lot of them have been through torture and trauma and so, out of politeness, because they do not know otherwise or because they are too frightened to say otherwise, they will not question decisions. So to now put the onus back on the applicant is an extremely unfair way to deal with this situation.

Natural justice and procedural fairness are long-held tenets of our legal system. It should be an upheld and maintained right that every person should be given the opportunity as best as practicable, whether that is orally or in writing, to receive adverse information about their application for review in a form which they desire and can best understand. However, this government tarnishes natural justice with this bill.

The Migration Review Tribunal and the Refugee Review Tribunal by the nature of their jurisdiction have a significant burden to discharge. Not only do the tribunals have a responsibility to make the correct or preferable decision; they have to fulfil this responsibility in an environment where they are dealing with many applicants who have extremely limited or no English language skills. Similarly, the tribunal is also communicating with applicants with very little experience in dealing with bureaucracies in democratic nations. Instead—and this is particularly relevant to the RRT—they may have only experienced dictatorial regimes, as I said before, and may come from a background or a culture where it is considered polite to simply agree with authority figures.

To implement oral communication as a means of delivering outcomes is an obvious attempt to discharge this responsibility in favour of expediency. Rather than recognising that language and cultural barriers create a gap that needs to be filled, the tribunals have tried to ignore their responsibilities in this area and have failed to see the bigger-picture justice issues that arise from this legislation.

It should be the responsibility of the tribunal to stand in the shoes of the government department and of the applicant, and also to take a de novo, or fresh, approach to decisions under review so that the correct or preferable decision is made. It is not acceptable that the obligation of the tribunal to hear, examine and consider correspondence from the applicant to the department be removed, as the tribunal must be able to review all of the factors before it and respond to the applicant in a manner which reflects all considerations that are relevant to the case at hand and in accordance with procedural fairness rules. However, this government through this bill undermines the function of the MRT and the RRT and waters down procedural fairness requirements in order to ensure that the MRT and the RRT can fulfil their statutory obligations without adequate resources.

Let’s be fundamentally clear about this. This is about the government getting around or getting out of the requirement in the decision of the SAAP case, where it was ruled that there were serious operational difficulties for the tribunal and it must provide communication in writing to the applicants. This government wants to step around that decision by the introduction of this bill. Also, this is another way of papering over the cracks of the inefficiencies of the department, which we have seen time and time again, particularly in the last two years. You have a situation where most of the decisions of the department are overturned—and we know that funding has shifted between the MRT and the RRT, instead of providing adequate funding for both tribunals, and also that a lot of people are on those tribunals in a part-time rather than a full-time capacity.

This bill is flawed. It is purely a bandaid solution by this government to a significant resourcing issue that the tribunal faces. It shows that the government is uninterested in correcting the poor track record of the department on migration and refugee applications. And it shows the callous disregard that this government has not only for legal principles but also for applicants who seek to migrate to this country under this process.