Dave Sharma (NSW, Liberal Party) Share this | Hansard source

When we're looking at very complicated legislation like this—the Administrative Review Tribunal Bill 2024, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024—we need to ask ourselves: 'What's the purpose? Has the case been made for the reforms that have been put in front of us?' I'm not intimately familiar with the work of the AAT, but I am broadly familiar with it, and I have read the committee's report looking into the legislation and also the dissenting report provided by my colleague Senator Scarr.

I happen to know a number of members of the AAT, both full-time and part-time members, including some with Labor connections and credentials and some who've worked for the coalition. I know all of them to be hardworking and diligent. We need to remember that the AAT body, which has been with us for some 50 years, has over that time developed quite a complex and detailed level of jurisprudence and a high degree of specialisation in some of the topics it considers. As it operates at the moment, there are specialist parts of the AAT that deal with particular matters. So I think we should be hesitant before we propose a wholesale reform, to recognise the expertise and value we might be losing.

If you have a look at whether the case has been made for a new tribunal, I think we need to start by looking at the tribunal's performance. If you look at the AAT's annual reports, which are tabled in the parliament and are subject to audit by the Australian National Audit Office and oversight by other bodies, they overwhelmingly tell a story of a body that is performing well—not perfectly but well. Indeed, I think many parts of the government, the Public Service or the executive would be pleased with the sorts of metrics that the AAT reports in its annual statements. The user experience rate, for instance, was 72 per cent for the year to 30 June 2023. This is the level of satisfaction that people who use the AAT report having in that body, and bear in mind here that often applicants to the AAT will leave frustrated or disappointed with a decision. So the fact that you're getting a satisfaction rating or user experience rating of 72 per cent, above the target of 70 per cent, is quite extraordinary.

If you look at the decision-making quality, at whether the AAT is taking decisions that are sound in law and firmly based in fact, in 2022-23, the year that was covered in the AAT's last annual report, the proportion of appeals allowed against AAT and IAA—Immigration Assessment Authority—decisions was just 2.1 per cent, well below the benchmark of five per cent. If you translate that into actual decision-making, in 2022-23 the AAT handed down some 21,625 decisions—quite a prodigious workload—and appeals were allowed in just 324 cases. So, in the overwhelming majority of cases—almost 98 per cent of cases—the overseeing judicial bodies concluded that the AAT's reasoning in law and fact, and their decision-making, was sound.

In relation to performance more broadly, to getting through a case load, the AAT met its performance benchmark of 5,000 decisions published in the financial year to 30 June 2023. The clearance ratio, the number of cases cleared, was quite remarkable—104 per cent, indicating the AAT has been eating into a backlog above the target of 100 per cent. In terms of output, which is the raw number of AAT applications and referrals finalised or dealt with: in the 2022-23 financial year the AAT finalised 42,862 matters. That is better than their performance benchmark, which is 42,024 cases.

If you look at these metrics, you see a body that has quite a prodigious workload and is working quite hard. The parties are largely satisfied with its performance. But we've heard from the government, in the majority report of the committee looking into this, the argument that the AAT has lost the confidence of all stakeholders. I would suggest that if you're getting a satisfaction rate of 72 per cent you cannot say that stakeholders are dissatisfied.

If you have a look at some of the other figures: with respect to fairness, namely the courtesy and respect shown by members and registrars and the opportunity given to parties to present their case, and overall perceptions of fairness of the reviewing and independence of the AAT, the satisfaction rating of users was 77 per cent. This suggests the client load of the AAT is overwhelmingly quite pleased with how the body operates. You see the AAT is dealing with decisions in a timely manner. It's clearing a backlog. It's satisfied clients, and it's meeting all its performance benchmarks. It's hard to see how you can possibly make the case on that basis that the AAT has lost the confidence of all stakeholders, as the government has chosen to do.

I recognise that a body that has been around for 50 years could undoubtedly be improved, and there are areas where there's a legitimate need for reform of the AAT and improvements could be made. Just like with any body that has been operating over a period, circumstances change, the caseload changes, the level of expertise changes and the use of technology changes. When you have a body with a remit as wide-ranging and complex as the AAT's, that is only to be expected. The AAT reaches into nearly all portfolios of government decision-making, from tariff concessions to freedom of information to veterans affairs, national security, immigration decisions and everything else. But the question is: do we need to abolish the AAT, the old body, entirely and create a wholly new body, or could this be done in a much simpler and cleaner way—and, importantly, in a way that preserves the jurisprudence, the expertise, the experience, the processes and the corporate memory of a body which now has a substantial corpus of work behind it over 50 years?

I also have to ask the question: are the resources necessary to undertake this task warranted? In the budget papers, in Budget Paper No. 2:

The Government will provide $1.0 billion over five years from 2023-24 … to establish and support the sustainable operation of the new Administrative Review Tribunal.

This new body is costing us $1 billion. That's a substantial sum of money.

We saw in the budget announced last night by the government that the government like to run an expansionary budget and don't have much concern for inflationary pressures, for the role of the Reserve Bank in trying to keep a lid on inflation or about the interest rates mortgage holders are paying, having now injected something in the order of $305 billion in extra discretionary spending into the economy in their two years in office and spent four out of every $5 of the extraordinary windfall that bracket creep and high commodity prices have delivered to them. I know the government doesn't have much of a problem; to them, $1 billion is small change. To the taxpayer, it's a significant sum of money. I have to ask: has the case been made? I don't think it has been.

Let me also turn, though, to the process that has been engaged in here. This is an extraordinarily complex set of legislation. There are three bills altogether here, abolishing an old system entirely and creating a new system. We've got 692 pages of new primary legislation, 760 pages of explanatory materials, a package establishing an entirely new Administrative Review Tribunal—or ART—plus 33 schedules of amending legislation, which in turn affect and impose changes on literally hundreds of Commonwealth acts. There are also, of course, 67,000-odd cases currently on foot before the AAT. What will happen to those? What will be the transition process for those cases that are currently before the AAT when it transitions to the ART?

We've heard—including from my colleague Senator Scarr, who was on the Senate inquiry into this—just how little time has been devoted to providing any proper scrutiny of this and, frankly, to ensuring that mistakes which a little more oversight, time and interrogation would reveal are apparent in incredibly complex legislation. We had in this place just under seven hours of committee hearings. The committee has spent a very short amount of time scrutinising this. The Administrative Appeals Tribunal—the body being abolished—was called to appear for just 40 minutes. Now we've had this legislation introduced, and it's likely to be rushed through by the government at short notice. Presumably, they will seek to guillotine debate at some point and move this to a vote.

It's an extraordinarily cavalier way to treat the parliament. That's not just the coalition members but the crossbench members as well. But it's also quite dangerous. When you're dealing with something this complex, sometimes scrutiny, questioning and interrogation conducted by any members of parliament can bring out unintended errors and unintended, second-order consequences that can make the implementation of this legislation difficult. But the government doesn't seem to be interested in this.

We've already seen the Attorney-General having to introduce a whole suite of changes just two months after introducing his primary legislation, before a single committee hearing had taken place, presumably on the advice of the Attorney-General's Department. There were a whole lot of unintended consequences and complications from the legislation that was initially introduced. The risk of rushing this process now, as the committee itself was rushed, is that similar mistakes, errors or unintended consequences, unforeseen at the time of drafting, will make themselves manifest.

That will affect not only the administration of justice in this country and the accountability of the executive but also a large number of the parties currently before the AAT. If the ART has set up and established that it's not able to transition smoothly from the AAT, then we will have a real mess. Part of the Attorney-General's rationale was to clear a supposed backlog. As I quoted in those figures, the AAT is actually managing at 104 per cent of efficiency. It's processing more cases than it hears, which means it is eating into the backlog. But, if there are time bombs and unintended, unforeseen consequences and errors in this bill, then this system will grind to a halt until parliament can deal with it again. That's all because the parliament and the Senate have not been allowed the time by the government to scrutinise this legislation properly.

I say again that the case here has not been made for the abolition of the AAT. Certainly there are arguments to be made for its reform and improvement. But, if you look at its performance as measured against its own performance benchmarks, its annual report and the degree of satisfaction from existing stakeholders, the best case you can make is that reforms and incremental improvements can be made. But to undertake a risky process like this—because setting up an entirely new body carries risks—to go to the expense of $1 billion, as announced in the budget last night, and to risk the loss of expertise, jurisprudence speciality and everything else that the AAT has built up over a number of years is an irresponsible and reckless course to be taking. That is why I will be opposing this legislation.