Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to speak on the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024. In commencing this debate, it's almost amusing, quite frankly, because this is the Attorney-General of Australia's third attempt at making adequate legislation to abolish the AAT and replace it with the ART. That's right, ladies and gentlemen: the Attorney-General of Australia couldn't get it right the first time, he couldn't get it right the second time, and this is now his third attempt, in terms of the legislation.

In terms of the first attempt, there was a set of two bills introduced in December 2023, almost a full year after he announced that he didn't like the AAT anymore and he was going to abolish it. Fast-forward two months to February 2024, and, as I said, we're onto the Attorney-General of Australia's third attempt—due to his sloppy drafting—at getting this bill right. Either way, as we know, the legislation has passed. As a result, we have transitioned from the AAT to the ART. What has been put to me now by so many people who understand what this is all about is that it is a transition which might unkindly be compared, as somebody said, to a smouldering dumpster fire. That person also said to me: 'Hey, hold on. That is actually unkind to dumpster fires, because dumpster fires do not smell as bad as this sloppy drafting by the Attorney-General.'

But, leaving operational issues to one side, the reason we are here right now, as I said, for the third time, talking about this issue is that, yet again, the Attorney-General of Australia, despite having a department full of legal brains, unfortunately settled legislation in which, in the first instance, there were mistakes. In the second instance, there were still mistakes, and, as Senator Scarr has said, this might be the third attempt, but I wouldn't put a fourth attempt past it. That is basically how we now get to this bill. It's called a 'miscellaneous measures' bill, but really it is legislation that, as I said, corrects errors the Attorney-General made in his first and second attempts at getting the legislation right to establish what is now known as the ART.

What are the unintended consequences of this sloppy drafting that we are fixing? What are the pressing issues in this bill on which the Attorney-General wants us to legislate? Well, to quote from the explanatory memorandum:

The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to the AAT in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.

Hmmm, yes: 'operates as intended'. So, this bill makes changes to 52 acts. But the dead giveaway is in those last few words. The bill is meant to 'ensure the legislation operates as intended'. In other words, the Attorney-General of Australia needs to pass this legislation because right now we have a tribunal in place and legislation that isn't operating as intended. We all know why, though, because for the first 18 months of the Albanese Labor government the Attorney-General wasn't focused on good legislation; he was focused on and completely distracted by working on the government's disastrous and divisive Voice campaign. In fact, at the time it would appear to have been his only interest. His work in every other area of his portfolio was incredibly sloppy. So here we are, as I said, at not the first attempt, not the second attempt but now the third attempt to get a piece of legislation right.

What are the unintended consequences that this bill is addressing? The first is in relation to the migration system. It's well known—it's a fact—that Labor governments can't manage migration and can't defend our borders. That is of course why more than a million people have arrived on our shore in less than two years, massively overshooting even Labor's own target for net overseas migration. The initial indications are that Mr Dreyfus's new Administrative Review Tribunal is now compounding that issue, because we are now seeing a massive blowout in the tribunal's case load. In fact, despite Mr Dreyfus saying on his first attempt that is what he was seeking to address, the situation is now far worse under Mr Dreyfus than it was in May 2022, when Labor were elected to office.

But let's look at the statistics. If you take the statistics from 30 June 2022, just after the coalition left office and before this parliament sat for the first time, and compare them with the most recent information from the ART, from November of last year, the picture these statistics now paint, considering that the cost of this bill to the Australian taxpayer was a billion dollars, is grim. When the coalition left office there were 37,025 refugee cases on hand. By 30 November last year, despite the Attorney-General's attempt to spend a billion dollars of taxpayers' money, there were 42,997 protection cases—not a decrease but an increase. When the coalition left office there were 19,104 migration cases before the AAT. That number has risen quite extraordinarily, to 35,898, under this Attorney-General—an 88 per cent increase. In fact, across the whole tribunal, when the coalition left office, there were 67,720 cases on hand. Now let's have a look at what's on hand under the Attorney-General's $1 billion 'let's change the middle letter from A to R' tribunal: 90,000 cases on hand, including 6,000 new migration and protection cases—6,000—in just the first six weeks of operation. To say that that is extraordinary growth, quite frankly, is an understatement, and it is entirely unsustainable for any tribunal. What it also shows is that Labor's approach to migration isn't working and that, as this tribunal gets more and more bogged down and the backlog grows, as shown in the statistics, our migration problems will get worse.

You might say, 'That's all very well, but what's that got to do with a miscellaneous measures bill?' Well, the answer is actually in the explanatory materials for this bill, because one of the things that this bill does is to amend the ART's jurisdiction to review migration and protection decisions. This item repeals and replaces section 348(2) of the Migration Act—a provision that was inserted by the Attorney-General when he did his deal with the Australian Greens to push this billion-dollar piece of legislation through—to explicitly state that the tribunal must not review an application made under sections 347 and 347A of the Migration Act that is not properly made. The effect of this amendment is that the tribunal will not have jurisdiction to review an application made under part 5 of the Migration Act if it is not properly made. Together, these provisions put beyond doubt how the tribunal is to deal with applications for reviewable migration decisions and reviewable protection decisions.

Now, that's all pretty technical, so let's break it down into plain English for those who aren't lawyers. What these changes are doing is making it clear that the tribunal is not required to hear a case if there is no proper application. You've then got to say to yourself: 'Well, hey, hold on. Why would the Attorney-General of Australia need to make that clear? You don't clarify things if they are working as intended.' You see, this is the problem with the sloppy drafting. It's because mistakes in the Attorney-General's legislation inadvertently created a loophole. Can you believe it? At a cost of $1 billion to the taxpayer, they could not get the legislation right on the first go.

What this meant was quite serious. It meant that the tribunal could potentially be required to go through the hearing of a case even if there is no proper application. I bet the Australian taxpayers love that loophole! That would mean forcing the tribunal to deal with vastly more cases than it was ever intended to deal with. What it also meant, potentially, is creating a pathway for people to remain in Australia while their case is resolved, simply by lodging an incomplete or incorrect application, even if they have no lawful entitlement to actually remain here. One might say that perhaps the Australian Greens were alive to this issue and that's the reason that they agreed to Mr Dreyfus's deal in the first place. Perhaps this sort of error is the reason. You look at the increase in case load. The new tribunal had 6,000 new migration and protection cases in just its first six weeks. We'll never know, but it clearly now falls upon all of us in this Senate to clean up the Attorney-General's sloppy drafting and the unintended consequences.

But the unintended consequences don't stop there. This is very serious, and the Attorney-General hasn't been upfront with the people of Australia in relation to the second example of the type of serious issue we are fixing, which was again created entirely by the Attorney-General's sloppy drafting. It relates to women's safety in child support matters. Perhaps he needs to talk to Mr Bill Shorten about what occurred here. Because of the initial passage of the administrative review tribunal legislation—get this—Services Australia is now inadvertently in a position where it is forced to manually review each customer file that is before the tribunal every 28 days. This is a requirement that was introduced by the Attorney-General of Australia. It is incredibly intensive. It involves reviewing thousands of documents, applying redactions to protect from family and domestic violence risk and then sending the documents out to thousands of parties.

Anyone who has dealt with the child support system knows what a sad and difficult area this is, particularly when you are talking about disputes that are before a tribunal for a resolution. The sad fact is that, in about 40 per cent of matters where there is no family and domestic violence indicated on the file, there is a need to seek a nondisclosure order because of the inherent risk of either parent reacting adversely to the content of those documents and then triggering a family and domestic violence incident. They are worried about a very real risk of violence. Services Australia staff must be terrified that they will miss something, that they will make a mistake in going through this incredibly inefficient monthly process that the Attorney-General has imposed on them and then that they will trigger a domestic violence event. This, quite frankly, is sloppy drafting at its worst. It is bureaucracy at its worst. It is quite frankly a stupid and unnecessary requirement that is actually having adverse consequences for women's safety in child support matters.

To be clear, though, this wasn't the Attorney-General's intention. It was actually a mistake. He wanted the president of the tribunal to be able to deal with this issue by issuing practice directions, but, because of the mistake and the sloppy drafting, the legislation did not give sufficient power to the president to do just that and, again, for the third time, we are now here in the Australian Senate fixing up what in this case is a very dangerous mistake by the Attorney-General. There is a real concern that, unless we pass item 2 in schedule 4 on page 47 of this bill to fix the legislation, women and children around Australia will be exposed to an increased risk of family and domestic violence. Again, this isn't an issue that we raised; this is a genuine and very real concern that was raised with the coalition late last year by multiple areas across government.

The government knows about this problem. It has known for months about the risk it created when it rammed the legislation through—$1 billion to establish the ART. We accept their advice that they have, indeed, created a safety risk—which is shameful—for women and families using the child support system. We will, of course, pass the bill and fix the problem that the Attorney-General of Australia has created. But certainly we would hope that, despite our experiences to date—as I said, there was a first attempt and a second attempt and we are here on now the third attempt to get this legislation right—there are no other egregious errors created by what is quite frankly a rolling debacle of a process.