Administrative Review Tribunal Bill 2023
Transcript
Date: 19 March 2024
TRANSCRIPT
Ms WARE (Hughes): I rise to speak on the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023. At the outset, I'll say: these bills are now the subject of a Senate committee review, and, in the circumstances, it would be most appropriate that they are dealt with following the Senate's consideration. I say that also as a member of the House Standing Committee on Social Policy and Legal Affairs, which also had a very brief window of opportunity to look at this legislation during the Christmas period.
But I will turn to a more fundamental aspect of this legislation: that a robust administrative law jurisdiction is absolutely pivotal to Australian democracy. It ensures accountability and transparency in government decision-making processes. By providing avenues for judicial review of administrative decisions, it upholds the principles of legality, ensuring that government agencies act within their legal authority and in accordance with established laws.
Administrative review is the process by which a person or a body other than the primary decision-maker reconsiders the facts, laws and policy aspects of the original decision and determines the correct and preferable decision. The idea is that the new decision-maker steps into the shoes of the original, primary decision-maker, and so it is a review on the merits of a decision rather than being so much a legal challenge. But, if the reviewer considers that the original decision was not the correct and preferable decision, they can then step into those shoes, as I've said, and substitute their decision for the original decision. This strengthens the rule of law by fostering public trust in the fairness and integrity of governmental actions, ultimately safeguarding the democratic rights and freedoms of Australian citizens.
Under our common law system, any Australian citizen or person with the appropriate standing in a legal sense may seek judicial review of administrative action by decision-makers. So the administrative law process we have in our country is an opportunity for a merits review of administrative action that is fair, just, economical, informal and quick—or that is the way that the AAT was initially established. I believe strongly in the rule of law and I do believe strongly in a robust administrative law system.
I think that, with the AAT having now been in existence for several decades, reform may be warranted but the overall merits of these changes are questionable. Since 2015, for example, the AAT has experienced a significant spike in the number of lodgements of cases. It has increased from 41,400 in 2015-16 to a peak of 60,595 in 2018-19. This spike has been driven by a range of factors, including the legacy case load that arose from Labor's unauthorised maritime arrivals. In addition, the amalgamation of different tribunals into the AAT in 2015 created legacy issues, such as different systems and processes operating in parallel with different parts of the tribunal. These are certainly issues that I say do warrant scrutiny and reform.
However, what the government is proposing is the wholesale abolition and replacement of the AAT, and this creates significant transitional challenges, such as transferring a large existing case load, rolling out new systems and dealing with staff turnover and recruitment lags. So these challenges may, in fact, lead to additional and unintended delays. It remains to be seen whether the legally significant changes, particularly in the migration space, will drive further lodgements or lead to a further spike in litigation. So the systematic and downstream impacts of these changes are unclear, and, while it might be appropriate that there is a system of review, the AAT is one part of a complex system and changes to one part of this system could well affect various others, with unintended consequences.
The reforms in the bills, as proposed by the Attorney-General and the government, only address one part of the system, and it is again unclear what those unintended consequences may be. By way of example, to explain that proposition: if the AAT were to significantly increase the rate at which it processed reviews of visa refusals, it is almost inevitable that the federal courts would then be hit with a wave of judicial review applications. These broader impacts should be considered as part of a committee inquiry, and that is only one reason why I say that it is appropriate that this is first of all dealt with by the Senate committee.
Going back to look at the stated purpose of this bill, it's to establish the Administrative Review Tribunal, to replace the Administrative Appeals Tribunal. The new bill sets out 11 different provisions, or parts, that relate to the new proposed tribunal's membership structure, review procedures and various other matters. The proposed legislation also re-establishes a body known as the Administrative Review Council and also makes consequential amendments to a number of Commonwealth acts. As I said, these three bills have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for both inquiry and report by 24 July 2024.
By way of further background, the AAT and the entire Commonwealth administrative review system was initially lauded as an innovative model of tribunal reform. But over time it has faced an ever-increasing range of challenges, and since the eighties numerous inquiries and government reports have documented these challenges and recommended a series of major reforms. Some of those major reform recommendations have been picked up by successive governments and others have not.
Essentially, the problems and failures of the AAT appear to have risen as a result of the proliferation of specialist merit reviews tribunals and the subsequent attempts at amalgamating these separate bodies into a single unified tribunal, which was the original intention of the legislation. Of course, with this there have also been significant resourcing pressures, with a corresponding dramatic rise in the matters being reviewed resulting in enormous backlogs preventing the timely and final resolution of matters. These problems have been particularly evident in migration and review matters, where the delays are enormous and therefore unfair and certainly need to be addressed. Overall, there are 11 parts to the way that the bills are structured that deal with things such as the powers and proceedings, membership and structure, any special tribunal procedures and, particularly, processes in intelligence and security matters.
As a background overall to the Australian merit review system, the foundations of our merit review system were laid, as I said before, in the mid-1970s, and the AAT commenced operations on 1 July 1976. It's probably appropriate to look briefly at the legislative framework under which the AAT currently operates. It is the Commonwealth's largest tribunal, in terms of both its membership and its scope to hear cases. When the AAT was initially established it was stated it would be the merits review tribunal for all Commonwealth administrative decisions, unless specific policy considerations support review conducted by an alternative body. As I said, one of the issues that has been highlighted by successive reviews and inquiries is the proliferation of other tribunals, which has led to unintended consequences within the AAT.
Presently the AAT members consist of a president, who must be a Federal Court judge, and various members known as deputy presidents and senior members as well as members. It currently has a workload of nine divisions which cover areas of Commonwealth decision-making, including migration, the NDIS, freedom of information, taxation and some other miscellaneous Commonwealth legislation. As I've said, the challenges that the AAT faces are that it is beset by delays, dramatic increases in workload and an extraordinarily large backlog of applications. These problems have been particularly highlighted in the migration and refugee division, where the latest figures confirmed that in the 2020-21 year the percentage of cases finalised within 12 months was 20 per cent. Clearly, 80 per cent of cases are taking more than one year to conclude, and that is not a just and fair outcome.
There have been a number of concerns raised by various bodies and stakeholders about these figures. The Law Council in particular has said that there is the need to increase the number and timeliness of decisions as well as to increase the number of appropriately qualified and experienced members, particularly in the migration and refugee division and other divisions. The New South Wales Bar Association took the view that AAT members should have a sufficient level of competence to make the 'correct or preferable administrative decision'. The Bar Association also described the negative impacts that cascaded from members lacking relevant expertise. So, while there are certainly some changes that have been highlighted by specialist bodies and sectors, it is still not clear as to why the Attorney-General is suggesting that the entire AAT regime be ripped up and a new body put in its place.
The other major change within this legislation is the re-establishment of a body called the Administrative Review Council, its task being to monitor and provide advice to the government in relation to Commonwealth administrative review. Whether that is just a symptom of a desire for larger government, or a body that will provide sound advice and will be an important part of the administrative law regime remains to be seen. I think we should wait to hear what the Senate inquiry has to say about that.
I sat on the House of Representatives Standing Committee on Social Policy and Legal Affairs. We adopted an inquiry into this legislation on 14 December 2023 and we were required to present that report to the Attorney-General in February 2024. That was, of course, right over the Christmas period. Although the recommendations of the committee overall were that the legislation be supported, the coalition comments were that, while we did not provide dissenting comments, we—I and the other coalition member the member for Menzies and Mr Conaghan—said we strongly believe that such a large change to Australia's system of administrative appeals needs in inquiry where stakeholders from across the board are given ample opportunity to express their views. That was in the context of only one day of public hearing into what is a significant change to our whole system of administrative law.
To conclude, administrative law is a tenet of our legal system but, based on the current delays and backlog of cases, it is appropriate that consideration is given to the way that the tribunal functions. However, it is unclear why this legislation was rammed through a House committee process and why it is now being rammed through parliament when it has been referred to a Senate inquiry. I would say that the most appropriate thing is to wait until July and consider the comments from the Senate inquiry.