News

19 March 2024

It is critical that the Australian public can trust that our democratic institutions are working properly. They need to be sure that these institutions are independent, impartial and free from politics. If you have an administrative decision that you feel has been wrongly decided and needs to be challenged then the Administrative Appeals Tribunal was the place of recourse. If that system is not working fairly, we have a situation where you cannot challenge those decisions.

The new review body proposed under the Administrative Review Tribunal Bill 2023 will, under the provisions of this legislation, be more transparent, more accountable and, more importantly, have an appointment process that cannot be overtly tainted by political appointments. Whether it's your visa application being denied, your NDIS application being rejected or being subject to an unfair or adverse small-business taxation decision, these are the types of matters this tribunal deals with. So this matters to everyone. Decisions on child support, citizenship, social security, freedom of information, immigration, security assessments, veterans' affairs, workers compensation—the list is long on why an appeals tribunal is incredibly important. Decisions on these issues will affect people's lives and livelihoods.

The AAT, the Administrative Appeals Tribunal, was meant to be the body empowered to review the merits of those types of decisions. However, for too long it failed to do the job properly. There remain 66,131 cases before the AAT awaiting finalisation. Most of these cases, some 83 per cent, were in the migration and refugee division. This has led to untold harm and distress to many, many people.

This long-awaited bill is an opportunity to fix the serious problems with the AAT. This set of bills will abolish the Administrative Appeals Tribunal and replace it with the new, much improved Administrative Review Tribunal. Australians must feel that they will get a fair hearing by an administrative review body that can make key decisions affecting people's lives. So many communities, including mine of Warringah, are crying out for reforms to integrity in public life and administrative bodies. The most high-profile case or issue of late that has been dealt with by the Administrative Review Tribunal was in fact robodebt. It's incredibly sad to think that, whilst the AAT made an adverse finding in relation to robodebt being unlawful back in 2017, that was never published. So it took another two years of more victims and more trauma and distress before the Federal Court was able to highlight and get a successful challenge to robodebt.

I have to say it's disappointing to hear the Coalition's debate and argument on this bill, in that they still fail to acknowledge responsibility for such a failed program. Really, you can't come to this debate discussing the question of an administrative appeals body that will work without acknowledging the errors and the problems that we've had in the past and also acknowledging where government gets it wrong. Where government gets it wrong or where departments and administrative decisions get it wrong, you need to acknowledge the importance of there being a process of clear review; a clear process of appeal.

The question of who the decision-makers are under a body becomes incredibly important. There is clear evidence that for too long it has been overtly politicised. Research by the Australia Institute shows that, under the previous nine years of the coalition government, political appointments averaged 32 per cent. What was concerning was that, in a number of instances, we had the appointment of people who did not even have legal training or expertise. They were completely unsuited to sit or determine the administrative review process. We know that under previous governments—in the Howard era and even the Rudd-Gillard-Rudd era—a percentage of political appointees were there as well, but not to the same extent. It was identified by the previous government as being a system that could, essentially, be abused to get political outcomes and really tarnish this process. There was a blatant jobs for mates process in the scheme, and it was directly affecting the ability of the AAT to function.

In 2018 Mike Seccombe from the Saturday Paper did an investigative piece that showed how far the rot had spread. In the 2017-18 annual report on the AAT, something that would usually make for quite ordinary reading, he noted that in 2017-18 the number of cases lodged in the tribunal's reporting period increased dramatically, while the number of cases dealt with fell. So, the numbers reported at the time were staggering, yet the government of the day did nothing about it. It looked the other way, when it was its responsibility to ensure that there is an administrative review process that is robust and working. The annual report noted that the AAT faced an enormous backlog of appeals dating back some four years and that the total number of applications in front of them had grown to over 53,000 cases as at 30 June 2018.

Speaking to theSaturday Paper in 2018, the former AAT members said:

There was really big spill of old experienced members and the introduction of people who, in some cases, were not interviewed at all by the panel set up to consider appointments. There was a process of appointments of people for which it was jobs for mates but not suitability for the job.

The ruin of the AAT was done very much by that appointment process. It purged experienced people and expertise within the tribunal, totally abandoned any pretence of merit based appointments and stacked the tribunal with political mates. Some of those political appointments—including party members, donors, failed candidates and retired politicians—although not all, at times lacked, incredibly, relevant experience to even do the job they were appointed to do. The legacy of mismanagement continues today, unfortunately. The most recent annual report from the AAT shows that they finalised 61 per cent of applications within 12 months, which is below the performance measure target of 75 per cent.

I do acknowledge that the government has put more resourcing into tackling the backlog, but the mismanagement under the previous government will take some further time to clean up. The government is doing the right thing, and I very much support the abolishing of the Administrative Appeals Tribunal. The previous government did its level best to essentially destroy the AAT and the functioning review body from within and for its purpose. It's incredibly important for the Australian public to understand the essential role such a body plays for all of you. At some point in time you may need to have an administrative appeal.

The Administrative Review Tribunal Bill 2023 establishes the Administrative Review Tribunal and abolishes the Administrative Appeals Tribunal. When introducing the bill last year, the Attorney-General noted that the aims of the new Administrative Review Tribunal are that it will be, in essence, an independent body of review for federal decisions that is fair, just, timely and accessible to those who need it. Most importantly, the bill aims, by establishing a new framework for the Administrative Review Tribunal, to improve public trust and confidence in a key democratic institution and bring greater transparency to the quality of government decision-making.

The bill will mean that the key features of the Administrative Review Tribunal will include a simple membership structure with clear qualification requirements and role descriptions for member of the tribunal. And I repeat that: clear qualification requirements—that those people making decisions must be qualified to do the job. It will have clearly defined roles and responsibilities for those who hold leadership positions within the tribunal, and a transparent and merit based appointment process for members of the ART—and I will come back to that in a moment. The president of the ART will be allowed to manage the performance, conduct and professional development of its members. It will have a suite of powers and procedures allowing the tribunal to respond flexibly to changing case loads, and there will be mechanisms to identify, escalate and report on systemic issues in administrative decision-making, as well as the re-establishment of the Administrative Review Council. Finally, the bill will mean the abolition of the Immigration Assessment Authority.

I want to thank all those, especially those out with our communities and in organisations, who have taken the time to make submissions on this bill. Many of those submissions have noted that the bill lays out a solid framework to improve the current appeal review process. However, there are still some shortcomings that will require remedy and which I know the government is actively considering. First is the question of the independence of merit based appointments, and that can be strengthened. I know the member for Mackellar has proposed amendments to do exactly that, to ensure that the use of assessment panels in the appointment process is mandated and to require that the minister make appointments from these panels' shortlisted candidates. I note that there have been discussions with the government in this respect, and I certainly hope and expect that the government will introduce amendments themselves during consideration in detail. Of course, in cases where a suitable candidate can't be found through the process, the minister is required to table a statement of reasons in any case where an appointment is made against panel advice and merit based process. We must get to that merit based process and explanations as to departures from recommendation. These amendments will ensure that the political cronyism and jobs for mates culture which we saw under the old Administrative Appeals Tribunal can be a thing of the past.

Another omission of this bill is a statutory review clause, so I have proposed an amendment in relation to providing a statutory review provision, because we have to be realistic and make sure that we review this to make sure that it works as intended. Again, I note discussions with the Attorney-General and his team and thank his office for their engagement. I also note that, whilst I have an amendment that I have proposed for the consideration in detail stage, there may well be progress from the Attorney-General's office themselves.

The previous AAT had fallen into such a depth of disrepute that a statutory review of its replacement must be made at reasonable intervals to ensure that the same mistakes are not made again. The public has a right to know whether or not the ART is functioning as intended, free from political manipulation.

I acknowledge that the reinstatement of the Administrative Review Council will provide an internal review mechanism to ensure that best practice is followed and that the quality of decision-making by the ART is of a high standard, given the effect it has on so many lives. Nevertheless, an independent, external statutory review process is essential.

Finally, public confidence in our institutions is vital for their legitimacy. I thank the Attorney-General and his office for hearing from many of us from the crossbench on proposed amendments. I will be supporting this bill. This is an important piece of legislation and the biggest reform of our system of federal decision-making in some time. I urge the government to consider constructive amendments, as I've said, put forward around these final areas that can be improved. We need to make sure that people's lives are not upended or frustrated through an inadequate review system of administrative decisions, as has been the case for too long.

We saw, through the debacle of robodebt, the incredible level of harm that poor administrative decision-making in government decisions can cause. There must be a review process that is robust, that is fair and that is independent of political persuasion or political influence. The Australian public must be able to have confidence that they can bring an appeal to an administrative decision and have a fair hearing. I commend the bill to the House.