Carol Brown (Tasmania, Australian Labor Party, Assistant Minister for Infrastructure and Transport) Share this | Hansard source

I table revised explanatory memoranda relating to Administrative Review Tribunal Bill 2024 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024. I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speech es read as follows—

ADMINISTRATIVE REVIEW TRIBUNAL BILL 2024

Today, the Governments introduces three Bills that together will abolish the Administrative Appeals Tribunal and replace it with a new and much improved Administrative Review Tribunal.

In doing so, these Bills represents the most important reform of the federal system of administrative review for decades.

Effective administrative review is critical to Australia's system of government.

A strong, user-focused administrative review body provides an avenue for community members to seek independent review of government decisions that have major and sometimes life-altering impacts on their lives.

This function is critical to protecting the rights and interests of individuals and organisations, including the most vulnerable members of our community.

And critically, high quality review of government decision-making can—and, if this Bill is enacted, will—encourage better quality decision-making across government.

Background

The Administrative Appeals Tribunal commenced on 1 July 1976, following reports by the Commonwealth Administrative Review Committee in 1971 and the Committee on Administrative Directions in 1973.

The Commonwealth Administrative Review Committee report, in particular, recognised the need for individuals to be able to challenge a growing range of government decisions, and recommended the creation of a comprehensive and 'essentially Australian' system of administrative law.

In the second reading speech for the Administrative Appeals Tribunal Bill 1975, then Attorney-General, the Honourable Kep Enderby QC, outlined the intention to establish a single independent tribunal and a vision of the AAT as the main tribunal for Commonwealth administrative review.

The foundational principles of administrative review are as relevant today as they were in 1976. An independent person 'stepping into the shoes' of the original decision-maker still lies at the core of merits review. The objective of ensuring that government reaches decisions that are correct or preferable is, and remains, the goal.

Unfortunately, the AAT no longer enjoys the trust and confidence of the Australian community it serves, and is not fit-for-purpose. The previous government's record of appointing dozens of individuals from the same political party to the AAT is well known.

However, the AAT's problems extend beyond the absence of a merit-based selection process under the former government.

Government inherited an AAT that is not on a sustainable financial footing, that is beset by delays and a large and growing backlog of applications, and an AAT that is operating multiple and ageing electronic case management systems—a legacy of the poorly executed amalgamation of multiple tribunals into the AAT in 2015.

The Government also inherited an AAT that is no longer taken seriously—or, at least, seriously enough—by government departments and agencies. As the Robodebt Royal Commission highlighted, the AAT made hundreds of decisions that the approach to calculating and raising debts under the Scheme was unlawful—but those decisions, and their obvious implications, were ignored and ultimately buried.

In developing this package of legislation, the Government has had the opportunity to look at the original vision for the AAT afresh, and consider how it can best be realised now and into the future.

We have the benefit of nearly 50 years of experience since the AAT was established and multiple reviews—old and new—into the AAT and the administrative review system more generally.

We have drawn on the knowledge and wisdom of an Expert Advisory Group. That Group is led by former High Court Justice, the Honourable Patrick Keane AC KC, and comprises Ms Rachel Amamoo, Professor Anna Cody (now the Sex Discrimination Commissioner), Emeritus Professor Robin Creyke AO, Emeritus Professor Ron McCallum AO, Former Federal Court Justice, the Honourable Alan Robertson SC, and Emeritus Professor Cheryl Saunders AO.

And over the course of the last year, the Attorney-General's Department has undertaken significant consultation with AAT staff and members, AAT users, peak bodies, legal assistance providers, advocates and other experts.

The Government thanks those involved in Committee consideration of these important reforms and recommendations to support their passage.

Overview of reform

This package of legislation is transformative. It is ambitious and comprehensive—we are building an institution that is intended to serve the community and drive better decisions for many years to come.

Consultation has provided the Government with an in-depth understanding of what works and does not work within the current system.

The outcome of this process is legislation that aims to create a unified, cohesive Tribunal with flexible powers and procedures that best meet the needs of applicants.

We are proposing to create an adaptive framework with flexibility for the Tribunal to continuously improve its operation, and to support best practice across its entire caseload.

Of course, not all problems can be fixed by legislation. Close attention will be given to implementation, practice, monitoring and evaluation to ensure ongoing improvement into the future.

Legislative package

Today the Government is introducing three Bills:

The Government recognises the importance of setting up the new Tribunal with the best chance of success and has continued to listen and respond to stakeholder feedback. The Government has moved amendments to implement suggestions raised through the parliamentary scrutiny process, including by civil society stakeholders. The other place has passed the Bill with those amendments.

Key features of new Tribunal

The primary Bill sets out the objective of the new Tribunal, which will guide its operations and the actions of all members and staff.

The Bill's objective is to provide an independent mechanism of review that:

To ensure it is able to achieve this objective, the Bill would establish a Tribunal with the following key features:

Structure and membership

The Tribunal will be made up of the President, Deputy Presidents (both Judicial and Non-Judicial), senior members and general members. This streamlined membership structure responds to feedback that the AAT's seven membership levels are confusing and arbitrary.

The Tribunal's President will have clear functions, including hearing particularly significant and complex matters as a member, managing the business of the Tribunal, managing the performance and conduct of members and consulting with civil society.

A single Chief Executive Officer and Principal Registrar (Principal Registrar), will assist the President to manage the administrative affairs of the Tribunal, and will be responsible for managing corporate and registry services.

The Tribunal will be made up of eight jurisdictional areas:

Within these jurisdictional areas, the President can establish 'lists', led by senior members or Deputy Presidents, to ensure the Tribunal can build specialist knowledge to deal effectively with distinct caseloads.

This structure builds in flexibility to ensure an enduring, responsive foundation for the Tribunal's work into the future.

Each jurisdictional area will be led by a Non-Judicial Deputy President who will be responsible for identifying and managing trends in and changes in the caseload of their jurisdictional area, and managing the performance, conduct and professional development of members assigned to that area.

The President will have the power to assign members within the Tribunal to work in different jurisdictional areas. Vesting this power in the President will allow members to be deployed more flexibly.

A Tribunal Advisory Committee will provide strong collective leadership to the Tribunal. Comprised of the President, Principal Registrar and the jurisdictional area leaders, the Committee will ensure these leaders are individually and jointly responsible for promoting the Tribunal's objective.

Transparent and merit-based selection process

A transparent and merit-based selection process for members is provided for in the Bill.

The suitability of prospective members (other than Judicial Deputy Presidents) will be assessed through a thorough, competitive, merit-based and publicly-advertised process. The legislation requires the Minister to establish an assessment panel to conduct this assessment process. The Minister cannot recommend a candidate for appointment to the Tribunal unless they have been assessed as suitable by an assessment panel through a merit-based process.

The assessment will consider how well candidates fulfil the skills, expertise, experience and knowledge required to be a member of the Tribunal.

This assessment must also consider the need for a diversity of skills, expertise, and lived experience, noting that the Tribunal should reflect the community it serves.

Performance, conduct and professional development of members

The Bill would give the President powers to manage member performance, conduct and professional development.

The power to adequately address allegations of member underperformance, bullying and harassment was noticeably absent from the AAT Act. The Bill provides powers and processes that will help ensure the Tribunal is a safe and respectful workplace, and the public can be confident in the quality of the Tribunal's decision-making.

User-focused accessible design

The Bill strengthens the Tribunal's objective of providing independent merits review that is accessible and responsive to the diverse needs of parties, including people with disability and people who do not speak English as a first language (or at all).

The legislation implements a supported decision-making model for people with a disability. It provides that a person may participate in a proceeding by, or with the support of, a litigation 'supporter' and that parties to a proceeding are assumed to have decision-making ability. This presumption cannot be rebutted solely on the basis that a person has a disability.

Enhanced powers and procedures

The Bill provides the Tribunal with a range of powers and procedures that can be applied flexibly across all jurisdictions within the Tribunal. This will allow the Tribunal to tailor its processes to best suit each matter.

The Bill also introduces procedures around party participation to make proceedings more flexible and less adversarial. Specifically, the Bill provides a mechanism for decision-makers to elect not to participate in the review process. Some kinds of proceedings will be better suited to a less formal process of review involving only the applicant. The majority of AAT reviews are already conducted in the absence of a decision-maker and the more inquisitorial nature of these reviews is valued by applicants.

The ability of decision-makers to elect not to participate in proceedings will be subject to limits set out in the Bill, including that the Tribunal may order a decision-maker to participate.

Retaining powers and procedures that work

The new Tribunal will also have all of the essential powers, procedures and requirements currently applicable in the AAT.

Social services reviews

Reviews in the Tribunal must be informal, accessible and quick, and responsive to the diverse needs of parties. The speed, informality and non-adversarial nature of the current AAT first review in social services matters is important to retain under the new model.

The Government has listened to stakeholder feedback that it is important to retain a second review 'by right' for matters where two-tier review currently exists before the AAT.

That is why the legislation provides a pathway to seek second review for parties in social services decisions who are dissatisfied with the outcome of the first review. Second review is intended to support a smoother transition to the new Tribunal for this cohort.

The Government expects that the greater ability to tailor the first review to the particular matter will reduce the reliance on second review over time, while retaining the speed, accessibility and informality of the first review. However, these amendments provide time to ensure the objectives of the new model are being met.

The outcome is to retain the focus on an informal, accessible, trauma-informed first review, with a second chance for people who need it. This pathway complements a range of improvements to ensure that every Tribunal review is as effective and efficient as possible.

Improved administrative decision-making

A key objective of the Tribunal will be to improve the quality and transparency of decision-making across government.

The Bill achieves this important objective in a number of ways, including by re-establishing the Administrative Review Council. This was a key recommendation of the Robodebt Royal Commission.

The Council will comprise members with administrative law expertise and knowledge of the needs of people significantly affected by government decisions.

The Tribunal's senior leadership will also be directly responsible for identifying and monitoring systemic issues in government decision-making, and bringing them to the attention of government and the Administrative Review Council.

The President's functions include engaging with civil society on the performance of the Tribunal's functions, to ensure that users' voices are heard directly by the most senior leaders in the Tribunal.

The Bill also strengthens requirements for the publication of Tribunal decisions, in line with the recommendations of the Robodebt Royal Commission.

Guidance and appeals panel

The Bill establishes a guidance and appeals panel within the Tribunal to resolve matters raising systemic issues and review Tribunal decisions that may be affected by error. This will promote consistent Tribunal decision making and more rapid responses to emerging issues.

The guidance and appeals panel will be able to hear matters on appeal that raise a significant issue in administrative decision-making or where the decision of the Tribunal may contain a material error.

The President may also refer a matter to the guidance and appeals panel if it raises an issue of significance to administrative decision-making.

A decision of the guidance and appeals panel on a systemic issue will provide clarity for others seeking review and will enhance the quality of future administrative decisions, both by the original decision-maker and by the Tribunal, on similar issues. Tribunal members will be required to treat these decisions as guidance decisions.

Conclusion

Before I conclude, I would like to thank, on behalf of the Government, the many organisations and individuals who have contributed to the development of this legislation, including the members of the Expert Advisory Group, staff, members and users of the AAT and the many legal assistance providers, advocates and other experts who have made submissions to, or met with, the Attorney-General's Department and the two parliamentary committees that have considered the Bills.

I also want to thank all of the officers at the Attorney-General's Department who have worked on these bills for their excellent work.

This legislation represents an opportunity to significantly improve Australia's administrative review system—a key pillar of our democracy.

The new Tribunal is intended to serve as a safeguard against abuses of power.

It is intended to play a vital role in protecting the rights and interests of members of the community, and ensuring that government and the public service act within the bounds of the law.

It is intended to lead to better government and better government decision-making.

As the Robodebt Royal Commission noted:

Effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader important role in improving the quality and consistency of government decisions.

With this legislation, the Government is seeking to restore trust and confidence in Australia's system of merits review.

After listening to the commentary on the legislation while it was being considered in the other place, the Government refined the bills through enhancements to appointment processes, the mechanism for review and the model for social security and other social services appeals. The other place supported this legislation and passed it with those enhancements. I now look forward to the support of the Senate.

I commend the bill to the Senate and present the accompanying explanatory memorandum.

ADMINISTRATIVE REVIEW TRIBUNAL (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS NO. 1) BILL 2024

The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 supports the establishment of the new Administrative Review Tribunal (Tribunal), which will be created by the Administrative Review Tribunal Bill 2023 (the ART Bill).

It makes consequential and transitional amendments to 138 Commonwealth Acts, covering approximately 93 per cent of the Tribunal's caseload. Those amendments are needed to effectively implement this significant reform.

The second consequential and transitional Bill makes technical amendments to 110 Acts which refer to the AAT. Decisions under these other Acts collectively account for approximately seven per cent of the AAT's jurisdiction by caseload.

Abolishing the AAT

The first Consequential and Transitional Bill repeals the AAT Act and other legislative provisions that provide for the operation of the Administrative Appeals Tribunal. The Administrative Review Tribunal, established by the ART Bill, will replace it.

Consequential amendments

The Bill contains consequential amendments to Acts in 14 Commonwealth portfolios. These include Social Services, Treasury, Veterans' Affairs and Home Affairs, as well as matters affecting the National Intelligence Community.

The changes in this Consequential and Transitional Bill focus on addressing the highest-volume caseloads within the Tribunal and the most complex consequential amendments. They also make simple but essential reference changes.

Migration Act

The Migration Act will be amended to harmonise and improve the review process for migration and protection visa applicants. To provide for more effective and efficient reviews, the exhaustive statement of the natural justice hearing rule will be adjusted so that it applies in limited, critical, areas.

The Immigration Assessment Authority, which provides a 'fast track' style of review for certain protection visa applicants, will be abolished. These applicants will have their matters reviewed in the same way as any other protection visa applicant.

The reform significantly standardises the availability of Tribunal powers and procedures for migration and protection matters, supporting consistency and collaboration across the Tribunal. This includes the ability to hold directions hearings, case conferences and to use broader dismissal powers, directions powers, and summons powers. Administrative and procedural tasks will be able to be delegated to registrars and staff.

It is no secret that the Migration and Refugee Division of the AAT is beset by delays. The Nixon Report found that these delays were 'motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection'. This has come at a cost to people in genuine need of protection and to the broader Australian community.

Together with the changes introduced by the Administrative Review Tribunal Bill and the government's recent appointment of over 90 additional members, the changes to the Migration Act in this Consequential and Transitional Bill will give the new Tribunal the tools it needs to swiftly resolve unmeritorious applications that cause delays in the migration system without sacrificing fairness for genuine applicants.

Social Services and NDIS

In accordance with stakeholder feedback, the primary legislation retains a pathway for applicants to seek second review for parties in social services decisions who are dissatisfied with the outcome of the first review. The Consequential and Transitional Bill contains amendments to ensure that the Tribunal operates as intended when providing second review for social services applicants.

The second review pathway would be available instead of the appeals function of the guidance and appeals panel under Part 5 of the primary Bill. The President of the Tribunal may still refer an application for review of a social services decision to the guidance and appeals panel on the basis it raises an issue of significance to administrative decision-making, on either first or second review.

The Consequential and Transitional Bill also updates references in the National Disability Insurance Scheme Act, to ensure reviews of these decisions can continue in the new Tribunal. The new Tribunal is focused on flexible, informal and accessible reviews, and has the power to appoint litigation supporters—where needed—to assist people who do not have decision-making ability to participate meaningfully in Tribunal proceedings. The Tribunal is expressly required to promote accessibility in proceedings, ensuring that parties can effectively participate, and to be responsive to the diverse needs of parties to the proceedings.

Treasury portfolio

A range of modifications which currently apply for taxation and charity matters in the AAT will be retained to, among other things, protect tax revenue collection, and to uphold longstanding core tax principles and practices. For example:

Veterans' reviews

The arrangements for veterans' matters that currently apply in relation to the AAT are retained in the context of the new Tribunal, including the ability to seek review in the Tribunal following consideration by the Veterans' Review Board. Given the complex nature of the issues relating to the determination of liability and compensation, modifications such as application time limits will continue to apply, to ensure veterans and their dependants are not disadvantaged.

Security matters

Provisions setting out protections for matters involving national security information are contained across various Acts and will be harmonised to ensure clarity.

Transitional amendments

The Consequential and Transitional Bill also facilitates the smooth transition from the AAT to the new Tribunal.

The Bill makes provision for institutional and corporate arrangements, such as the transfer of staff, assets, liabilities and records from the AAT to the new Tribunal. The Bill provides that all ongoing and non-ongoing staff will transfer to the new Tribunal.

It provides clarity by ensuring that applications that have already been made to the AAT, or proceedings already in progress, will automatically transfer to the new Tribunal when it commences operations. Parties with matters in the Tribunal at the time of transition will be notified, and will not need to reapply to have their matter continue.

AAT members who are judges will have their appointments transferred to the ART. Moreover, AAT members (including the President) who have been appointed since 1 January 2023 through a transparent and merit-based selection process will also transition to the Tribunal for the remainder of their terms.

All other current members have been given the opportunity to apply for roles in the new Tribunal through the merit-based appointment process that has already commenced.

Current full-time AAT members who are appointed to the new Tribunal and whose appointments would have continued beyond the commencement date will have their remuneration preserved at their current AAT rate for up to four months, unless their remuneration would be higher in the ART.

Current full-time members who are not appointed to the new Tribunal and whose appointments would have continued beyond the commencement date of the new Tribunal will be paid an amount equivalent to up to four months of their current salary.

This arrangement ensures that compensation payments are fair and reasonable but not excessive.

Conclusion

The Consequential and Transitional Bill makes essential consequential amendments to legislation across the Commonwealth, and outlines robust transitional arrangements needed to support the smooth establishment of the new Administrative Review Tribunal.

It also harmonises, streamlines and enhances the operation of provisions across a range of jurisdictional areas, simplifying the process for applicants and promoting a more efficient, accessible and cohesive tribunal.

I commend the bill to the Senate and present the accompanying explanatory memorandum.

ADMINISTRATIVE REVIEW TRIBUNAL (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS NO. 2) BILL 2024

The Administrative Review Tribunal (Consequential and Transitional Provisions No.2) Bill 2024 forms part of the package of Bills that would abolish the Administrative Appeals Tribunal and establish the Administrative Review Tribunal.

It supports the establishment of the new Tribunal, which will be created by the Administrative Review Tribunal Bill 2023. Together with the Administrative Review Tribunal (Consequential and Transitional Amendments No.1) Bill 2023, this Bill would also make the consequential and transitional amendments needed to effectively implement the reform.

Consequential Bill 2 makes consequential amendments to 110 Commonwealth Acts to ensure continuity for the Tribunal and its users. Decisions under these Acts collectively amount to approximately seven per cent of the AAT's jurisdiction by caseload.

Consequential amendments

The Bill contains consequential amendments to Acts across the Commonwealth, as well as amendments to a number of Commonwealth Acts requiring State and Territory consultation.

The changes in the Bill are predominantly technical amendments that will ensure consistent terminology, concepts, structure and other policy settings. The changes also ensure that the new Tribunal has the same jurisdiction as the AAT and that various provisions operate in substantively the same way as they operate in the AAT.

Consequential Bill 2 would make changes to harmonise and streamline provisions where appropriate. It also would implement changes to the review pathway for preventative detention orders, and allow external merits review of decisions not to provide evidence of a person's Australian citizenship, under the AustralianCitizenship Act 2007.

Standardising processes

Where possible, Consequential Bill 2 would repeal special procedures in other Acts, so that the default provisions in the ART Bill would apply.

The use of standard procedures in the Tribunal would better support users, with increased similarity and predictability in how their matters progress through the Tribunal. It would reduce complexity within the Tribunal, which means there will be more scope to use shared technology, forms, staff and member resources, and create greater efficiencies than is currently possible within the AAT.

In circumstances where the Tribunal's proposed standard powers and procedures need to respond to the unique features of a particular caseload, Consequential Bill 2 would make the necessary amendments to other Acts to preserve existing arrangements.

We have the benefit of nearly 50 years of experience since the AAT was established, and over eight years since it was amalgamated with multiple other tribunals in 2015. We also have the benefit of extensive consultation over the last year on what does, and what does not, work within the current system.

Preventative Detention Orders

Consequential Bill 2 would remove the administrative review pathway for preventative detention order decisions, and leave this entirely to the courts.

Importantly, the remedies currently available to an affected individual through the administrative review mechanism are also available, and would continue to be available, through judicial review.

Among other things, these changes address the risk that sections 105.51(5) and (7) of the Criminal Code could be construed as vesting federal judicial power in a body other than a court, contrary to Chapter III of the Constitution. They do this by ensuring that the power to award compensation to a person for false imprisonment is only exercised by the courts.

Merits review for evidence of Australian citizenship

The Bill would confer jurisdiction on the new Tribunal to review a decision to refuse to provide a person with evidence of their Australian citizenship under the Australian Citizenship Act 2007.

Allowing the new Tribunal to review those types of decisions would be consistent with the review pathways available for other citizenship and migration related decisions. It would provide applicants with an accessible independent review process. This is a simple change we can make to ensure that people affected by these decisions have an effective administrative review pathway in the Tribunal.

State and Territory consultation requirements

Finally, Consequential Bill 2 would also make minor amendments to 14 Commonwealth Acts which are subject to requirements for the Commonwealth to consult with, or seek the agreement of, the States and Territories before introducing amendments into Parliament. These requirements arise from intergovernmental agreements. The Commonwealth has satisfied these requirements and appreciates the cooperation from the States and Territories.

The creation of the Tribunal may require the States and Territories to make consequential amendments to their own legislation. The Commonwealth has worked closely with the States and Territories to assist them to identify and progress any amendments that may be required.

Conclusion

Consequential Bill 2 makes technical and essential consequential amendments to legislation across the Commonwealth, ensuring a smooth transition to the new Tribunal. The Bill completes the package of legislation that is required to establish a new and much improved Administrative Review Tribunal—the most important reform of the federal system of administrative review for decades.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.