Parliamentary Updates

20/08/2026

 I have to disagree with the assistant minister as to whether or not the Administrative and Judicial Review Legislation Amendment Bill 2026 strikes the right balance in terms of achieving procedural fairness and ensuring that it remains at the heart of the processes around the Administrative Review Tribunal. This bill contains measures that are in some ways sensible and practical, and I support clearer governance within the Administrative Review Tribunal, the correction of obvious errors in registrars' orders and procedural improvements that can help the tribunal manage a demanding caseload. But—and there's a big 'but'—administrative efficiency cannot be pursued by weakening the safeguards that make review meaningful, especially where the decision made determines whether a person remains safe in Australia or is returned to persecution or serious harm. A review system that is quick but wrong is not an efficient system; it's merely fast, and then it will produce the next appeal. That is the central concern raised by the Asylum Seekers Centre, the Asylum Seeker Resource Centre, the Refugee Council of Australia, the Law Council of Australia and the Kaldor Centre for International Refugee Law, and I share their concerns.
The government should improve this bill before pushing it through. In its present form, several measures risk reducing procedural fairness, shifting pressure downstream to the courts and falling most heavily on the people who are least able to navigate a complicated system, by creating yet another technical hurdle.
The first major concern is the proposal to allow the tribunal to give its decisions and reasons orally, with written reasons supplied only if a party asks for them. Sure, the bill preserves the automatic written reasons for social security, veterans' entitlements, aged-care and NDIS matters, yet it doesn't provide the same protection for migration or protection decisions, despite the obvious vulnerability of many of those applicants and the potentially life-altering consequences. So we're getting two tiers or two standards of justice here through this tribunal now.
Written reasons are important. For anyone who hasn't had to go to court or to be involved in those kinds of proceedings or in a tribunal, written reasons are at the heart of understanding how a decision has been reached, and hearing them orally is simply not the same thing. Written reasons explain what evidence was accepted, what was rejected, what legal test was applied and why the decision was reached. They allow an applicant to understand the outcome and to obtain legal advice specifically to decide whether there is a proper basis for judicial review, and there's also discipline for the decision-maker. It supports consistency, transparency and public accountability. We will not get that in solely oral reasons.
Under the proposed migration provisions, an applicant who receives oral reasons generally has 14 days to request written reasons. The tribunal then has up to 14 days to provide them. But the usual period for commencing judicial review is, in fact, 35 days from the decision, so, in the worst case, an applicant may receive written reasons with only a handful of days left to find a lawyer, understand a complex decision and then prepare a court application for an appeal. The Kaldor centre's research indicates that almost two-thirds of protection applicants are unrepresented at merits review. If you then add the language barriers that you frequently have, limited understanding of the review process, and the effects of trauma, supposedly simple request requirements become a real barrier to justice.
The Senate committee recommended clear written notice of the period for requesting reasons and the applicable judicial review deadline and that requested reasons be provided as quickly as possible. That is a welcome recommendation, but I would say it's a pretty minimum standard and safeguard, not a solution. Protection visa matters—and I urge the Attorney-General and the government to consider this—should be expressly exempt from oral reasons. At the very least, written reasons should be automatic where the tribunal affirms a refusal or cancellation—that is, when there is a really significant decision, like a refusal or cancellation, where someone's safety, security and circumstances will be immediately impacted, written reasons should be provided. The judicial review clock should not expire before reasons have been provided and the applicant has had a fair opportunity to act—and a handful of days is not a fair opportunity.
The second major concern is the proposed identity verification regime for prescribed migration and protection reviews in the tribunal and prescribed judicial review proceedings in the Federal Court and the Federal Circuit and Family Court. Preventing applications lodged without a person's knowledge or consent is a legitimate objective; so is ensuring that applicants engage with their proceedings. But the response must be proportionate to the problem, and parliament has not been given any evidence needed to judge that proportionality. The bill establishes the consequences of noncompliance but leaves much of the identity verification scheme to later regulation, including which review matters will be covered, and when, where and how identity must be verified. The government has not explained what evidence will be accepted and how applicants without conventional identity documents will be accommodated.
Again, I ask you to turn your mind to the most vulnerable applicants in these situations. This is particularly troubling for refugees, stateless people and others who may have fled without a passport or a birth certificate, whose documents were confiscated or destroyed, whose name has been transliterated in different ways, or whose identity has never been recorded through systems comparable to Australia's. How are they to meet these requirements? Identity is not the same thing as possession of an approved document. A procedural failure is not proof of fraud, and an applicant's difficulty satisfying a new administrative process tells us nothing about whether Australia owes that person protection. The government should not proceed with requiring the ART to dismiss a migration or protection review automatically because an applicant has failed to satisfy an identity verification requirement.
I want to talk about fairness and efficiency. None of this is an argument for endless delay or for allowing clearly abusive applications to clog the system. I agree: backlogs harm everyone. They undermine confidence and prolong uncertainty for genuine applicants. Fairness and efficiency are not opponents. Fair procedures improve the quality and finality of decisions. Applicants who understand the process and the reasons for an outcome are better placed to accept it and to seek review only where a genuine legal issue arises. That's why I'd urge the government to consider that there are clearly two streams of applicants often before the tribunal. We have people coming from nations that we know are not subject to discrimination, they are not in fear and they are not persecuted. People coming from OECD countries, from the UK or from trading partners are not going to be the same applications as those of applicants coming from countries where there are concerns that are clearly identified for the government, and I think there should not be the same process. Someone overstaying a tourist visa trying to stay because they'd like to work here, someone from the UK, should not be treated as a person as vulnerable as a person coming from a very different country with very different risks.
The Administrative Review Tribunal was created to be fair, just, accessible, responsive and transparent, and to promote trust and confidence in the administrative review process. Those objectives must remain more than words on a page. We must protect those values. Good administration is not measured simply by how quickly a file is closed, but by whether the correct and preferable decision is reached through a process people can understand and trust, and where procedural fairness has been provided. Justice in that sense is the only thing that upholds a system that ensures trust. For people seeking Australia's protection, the consequences of error are significant. They're profound. They are life-changing. They can put people's lives at risk. Parliament should insist on efficiency and excellence in public administration, but never at the price of justice and safety.