David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to indicate that we will be supporting the Administrative Review Tribunal Bill 2024 and related bills. It is fair to say that this bill has had a rocky path to getting to its final stages in the Senate. The Greens believe it is critical for public accountability and for fair, effective and impartial oversight of the Commonwealth's administrative action that the parliament gets this reform right. It is for that reason that we joined with, I think, every other political party in this chamber, except for the government, to insist that this bill went off to an extensive inquiry earlier this year. I think the referral happened in February, and it reported earlier this week. We had extensive submissions and we also had the benefit of submissions that were put to a very rushed and wholly inadequate House of Representatives inquiry that the government, for their own reasons, thought was a sensible idea to hold over the Christmas and new year period. We have heard from a series of critical stakeholders, not just me but other senators and other engaged members who have had repeated meetings with stakeholders to try and get this reform right.

I want to be clear that, when it was initially introduced to parliament—in the last sitting week of last year, a ridiculous time to introduce a reform of this scale—this bill, which replaces the Administrative Appeals Tribunal, was not supportable. It should not have been waved through this chamber and it should not have been waved through the other place. It had significant defects that, unattended, would have undermined the new tribunal's independence and removed important rights for thousands of marginalised people who want to challenge social security entitlements or family support payments, and it had a series of other untested provisions in it. It also retained a significant number of seriously unfair elements for people seeking asylum and for people challenging migration matters. For those reasons, we were not willing to just push it through.

There was a fairly aggressive campaign, from the government and from the Attorney, for us to just wave it through with minimal scrutiny. The Attorney and the government said that they'd had detailed consultations in the 12 months prior to the introduction of the bill, that they'd had their own review council, that they'd consulted with stakeholders and that, therefore, we as parliamentarians should say, 'Fine, we'll wave it through.' I don't think any independent upper house should ever do that—just take the government at their word and just take whatever consultation the government did to be adequate. I've got to tell you that, when we spoke with innumerable stakeholders, many of them said that, yes, they had been consulted by the government—they'd been asked; they'd had meetings; they'd sat around and raised their concerns in the baldest possible terms; and the government had sat on the other side and nodded. But then, when they saw the actual bill introduced, none of their concerns had been addressed. The unfairnesses that they saw in the legislation were retained in the legislation that was introduced into parliament at the end of last year.

I will give you just one example. Probably one of the most egregious examples was that the Centre for Public Integrity, who have been very clear about the need for any new tribunal to have the highest levels of integrity, had had a look at and been very critical of—for good reason—the series of political appointments that the former coalition government had made to the AAT. They'd done analysis of it, as had a number of other stakeholders. One of the primary reasons for introducing this legislation, the government said, was to establish integrity in the appointment process. Because the previous government appointed all their political mates, they had to wipe the slate clean and start again—that's what the government said. Then when my office, on behalf of the Greens, read the bill and the Centre for Public Integrity read the bill and looked at the integrity measures in the new bill that was introduced at the end of last year, they were discretionary. The Attorney could or could not apply the integrity measures for the appointment of new tribunal members. Who in their right mind thinks you can put in place optional integrity measures when the whole political basis for you doing this reform is the need for unambiguous integrity in appointments? Stakeholders couldn't believe it.

When it comes to the tier 1 and tier 2 review rights that people have when they're challenging decisions on social security rights or family assistance payments that are coming out of Services Australia—previously Centrelink—we heard from countless stakeholders and individuals that those two-stage review rights were absolutely essential for them. Because there's such asymmetry of power between Services Australia and applicants in that space, often people are facing enormous stresses if they have had social security benefits or family assistance cut off. They're often in economically and socially distressing circumstances, and the only way they have a fair chance of trying to get their entitlements back is if they have this very informal initial stage, where it's largely them and the tribunal. That's often the first time ever they understand why the government says their benefits are being cut. Then, once the issues are fleshed out in that very informal initial first-tier process, if they succeed and get their benefits re-established, that's absolutely the best outcome. But, in the thousands and thousands of cases where they don't, they can then go to a community legal centre. They can then go to other supporters. They have the information to hand that explains why they didn't get their benefits. A two-tier process means that they can then put forward the information they need to to get a fair hearing.

When you look at the annual reports of the AAT, there are 10,000 or so of these cases working their way through the system every year. The government's initial bill just abolished that process. It just abolished it. Again, the stakeholders said that they'd raised this issue repeatedly with the government and said, 'Don't do this.' The government consulted with them, they sat across the table with them, they read their submissions and then they ignored them.

So thank goodness we didn't just wave this through. Thank goodness the Senate insisted on a lengthy inquiry. Why is it being brought forward now? Why is it being brought forward in May? We had an inquiry that could have extended through to July. Why is it being brought forward now? It's being brought forward now because those two issues that I've just articulated—the optional integrity matters and the tier 1 and tier 2 matters—have been addressed by amendments that have now been presented and put through in the other place. We tested those amendments in the inquiry and the answer we got back from stakeholders was, 'They work.' They reinstate the two-tier process in a near like manner and they make the integrity measures mandatory. And, having tested them in the inquiry, that addresses a number of our concerns.

The bill also makes some improvements for administrative review matters. One of the things it does is it abolishes the IAA, this deeply unfair fast-track process for migration matters, which has created thousands and thousands of unfair outcomes, denying legitimate asylum claims from people, and is notorious for its injustice. It will be abolished with this bill. We think that's a significant reform and worth getting in place in a timely fashion.

The structure of decision-making within the ART will also have some quite useful procedural improvements with this bill. I think the jury is still out on how the guidance and appeals panel will work. I have some personal concerns about how those guidance decisions will be implemented by tribunal members and the extent to which it potentially impinges upon the independence of tribunal members. But I heard from an array of stakeholders in the inquiry who said they thought, on balance, it was a positive reform. They thought it would provide greater consistency without unduly or inappropriately binding tribunal members. I'm happy to accept what I thought was a weight of well-informed opinions in that space that would suggest that the guidance and appeals panel is supportable. I still have some personal misgivings about how it will operate, but I accept the weight of very informed and capable opinions that said that will be a positive reform.

I think there are concerns about the extent to which the president has an array of administrative tasks, and they can be quite powerful administrative tasks that are normally exercised by a non-judicial officer in a tribunal like this. But, again, they broadly got support. I think there's a watching brief on these things, which is why it's going to be essential to have a review.

But I also note that while these reforms, which are meant to create a uniform, positive, single kind of architecture for administrative appeals in the Commonwealth sector, broadly provide a uniform architecture—which I think has improvements on the current AAT architecture—they do it for everybody except for people challenging migration, asylum and refugee determinations. The bill retains an array of deeply unfair elements in administrative challenges to determinations for migration and refugee matters, elements like: deeply unfair three-day time limits in which to bring an application and/or seek a review; other short and unfair time limits of sometimes seven days; and provisions that require the tribunal to make adverse inferences against applicants if they raise evidence late, often in circumstances where they have compelling reasons why they brought evidence to the table late.

All of this, of course, produces countless jurisdictional challenges in the courts, alleging jurisdictional error by the tribunal, which costs the Commonwealth heaven knows how much in having to defend it and delays proceedings indeterminably. Why didn't the government seize this opportunity and actually create a genuine, uniform system? I think the answer is that both Labor and the coalition continue to believe that there should be an unfair and cruel system for people challenging migration and refugee matters.

I'm glad to see that the majority report recommended these matters be reviewed by the Administrative Review Council, and we think that's a positive recommendation. We're glad we've had a sensible negotiation with the Attorney in this space, and we think that to get it reviewed by the Administrative Review Council and for that to be done as a matter of urgency once the Administrative Review Council is established is a good outcome. But the bill, by itself, is a very real missed opportunity.

I believe the second reading amendment has been circulated in my name, which addresses that matter in some detail. I move:

At the end of the motion, add ", but the Senate notes:

(a) serious ongoing concerns about the differential treatment of applicants within the refugee and migration division including:

(i) shorter timeframes to bring applications or appeals,

(ii) the lack of capacity to extend times, and

(ii) the lack of access to legal assistance; and

(b) that these concerns together work against the principles that are said to underpin this bill of uniform, fair and ready access to just decision-making".

I look forward to further debate on the bill. It's not perfect. The process is inadequate, but we've got to a point where it's supportable.