Australian Greens Senators' additional comments

1.1It is critical for public accountability and for fair, effective and impartial oversight of the Commonwealth's administrative actions that the Parliament gets this reform right. After significant wrangling, one rushed and one expedited parliamentary inquiry, the Administrative Review Tribunal Bill 2024 (the ART Bill) is now at a point where it is supportable. This reform will create a superior Commonwealth administrative tribunal to the one that currently exists.

1.2To be clear the ART Bill as initially introduced in the last sitting week of the Parliament in 2023 was not supportable. It had significant defects that would have, unattended, undermined the Administrative Review Tribunal's (ART's) independence and removed important rights for thousands of marginalised people. The bulk of these concerns have now been addressed but there remain very real limitations in this reform that multiple stakeholders have identified.

1.3One repeated issue raised by stakeholders across all sectors was that the consultation process undertaken by the Attorney General's Department (AGD) that led to the introduction of the ART bills in December 2023 was lengthy but unsatisfactory. They described how they had repeated meetings with the AGD and the consultative committee where they raised their concerns, they were assured they had been heard, but then the initial draft of the legislation failed to address the issues.

1.4These concerns covered multiple elements in the ART bills from the integrity measures, the review of Centrelink and Services Australia decisions, migration and asylum matters, the absence of a guaranteed statutory review and certain key operating elements of the proposed new ART. Consultation that hears from informed stakeholders and then ignores their primary concerns is frustrating, to say the least.

1.5Once the ART bills were introduced into Parliament, the procedural history to get to this point was also rocky, unnecessarily so. Without any consultation with the crossbench or the majority of members in the Senate, the Government referred the ART bills to a Government-controlled committee in the House of Representatives for a rushed inquiry over the end-of-year break.

1.6Stakeholders who were frustrated by being ignored in the consultation process then felt railroaded and were forced to make hurried representations over the end-of-year break. This did not breed goodwill.

1.7When Parliament returned this year every non-government member in the Senate voted to refer the ART bills to a proper inquiry with sufficient time to properly explore the issues raised in the ART bills. Unfortunately, this was opposed by the Government who made the disingenuous political argument that this Senate scrutiny was grounded in political opposition to the core reform. This response was both unhelpful and inaccurate.

1.8The Greens have acknowledged for a number of years that former Governments had made far too many political appointments to the Administrative Appeals Tribunal (AAT). This politicisation reached its worst point under the former Morrison Coalition Government. We stated clearly that this was, in itself, a powerful reason to reform the AAT. The reform also makes some modest positive changes to how migration and asylum matters are dealt with and produces a more streamlined overall administrative tribunal with the proposed ART.

1.9Given this, we have attempted to cooperate with all parties to ensure this review was as expeditious as possible, but also that it was consistent with actually reviewing this complex reform. The Chair's report fairly details the hearings, submissions and process that resulted.

1.10During the three months of this inquiry, we have had the benefit of evidence from multiple stakeholders and we have also seen a series of detailed amendments moved by the Government to the ART bills. These amendments have substantially addressed many concerns.

1.11First, the ART Bill's initial measures for the appointment of ART members were discretionary. This meant that the current, or any future, Attorney-General could choose to follow a merit-based selection process or not. When the entire political case for this reform was past politicised appointments, this was inexplicable. Thankfully the amendments have now made these integrity measures mandatory.

1.12There remain issues with the content of these mandatory integrity measures which still rely on regulatory and administrative decisions to flesh out their substance. Once the new ART is in place this will require ongoing parliamentary scrutiny.

1.13Second, the ART bills as introduced abolished the long-standing two-tier review process for social security and family assistance matters. The Chair's report details why this change was so vociferously opposed by the sector. Again, amendments were introduced that have sought to unwind these changes and retain these essential rights for claimants. For the Greens, this issue was a core reason not to support the ART bills as introduced. We have now heard from the key stakeholders who say the amendments largely address their concerns. This is critical for our support.

1.14Other amendments include a statutory review and greater clarity of certain novel measures introduced in the ART bills. These are positive. With bills this complex (where the Explanatory Memorandum and Consequential and Transitional Provisions are each longer than the substantive ART Bill) there are likely additional matters that we have not been able to identify, let alone address, given the need to expedite this inquiry.

1.15However, there remain significant outstanding concerns. The nature of the Guidance and Appeals Panel process raises some ongoing legal uncertainty. The expanded administrative and policy role for the President raises issues of structural independence for ART members and, most significantly, the new ART retains a discriminatory and unfair process for people seeking review of migration and asylum matters.

Migration and Asylum Matters

1.16Multiple submissions from migration and asylum organisations and experts supported the abolition of the deeply unprincipled Immigration Assessment Authority (IAA). The Chair's report identifies the history and failings of the IAA and why its abolition is well past time.

1.17Despite this, the ART will continue to operate with arbitrary and unfair processes designed to undermine genuine asylum and migration claims. This reform was a chance to fix this and produce a uniform and fair process for everyone challenging unfair government decisions, including for migration and asylum matters. Matters concerning migration and asylum that remain outstanding include the following.

1.18The proposed ART bills maintain short and arbitrary timeframes for asylum applications. If the Government was truly seeking its stated goal of a uniform and fair tribunal these timeframes should be amended to provide for one standard 28-day period to apply for review of migration/refugee and character decisions.

1.19There should also be a general power given to the tribunal to extend the timeframes for making applications for review of migration and refugee decisions. This should include character matters and decisions made under s500 of the Migration Act 1958 (Migration Act). The absence of fair timeframes leads to expensive, slow and unproductive administrative law appeals. Fixing this will reduce delays and costs for both claimants and the Commonwealth.

1.20Application fees for refugee and migration cases should be in alignment with the rest of the ART, instead of the excessive and sometimes plainly punitive fees that apply in the AAT. The ART needs a full fee exemption for vulnerable applicants including the following:

those suffering financial hardship;

victim-survivors of family and domestic violence and their dependent children;

minors;

people detained in prisons, immigration detention and other public institutions;

other marginalised people including protection visa applicants, bridging visa applicants/holders, and people who qualify for concession cards;

in relation to protection visa decisions (currently under Part 7), retain the requirement that payment be made only upon unsuccessful review; and

in relation to other migration decisions (currently under Part 5) provide a discretion to extend the time period in which fees are payable.

1.21The ART should also not maintain adverse inferences in migration and asylum matters. This can be achieved through the removal of both (a) the evidentiary onus on the applicant (s 5AAA of the Migration Act), and (b) the requirement for the ART to draw an adverse inference in relation to 'new' evidence not raised before the primary decision was made (s 423A of the Migration Act).

1.22The applicant should also be notified of any adverse information in the primary decision and provided with an opportunity to comment. Further, there should be a legislative duty established to reflect the review body's responsibility to ascertain all the relevant facts in order to meet the legal test and provide the correct and preferable decision.

1.23There should also be a right to a hearing, which has not been the case under the AAT. Due to the nature of asylum cases, an oral hearing should occur, except where a favourable decision may be made on the papers (cf clause 101 of ART Bill). An interpreter should also be provided wherever an applicant requests one (cf clause 68, ART Bill).

1.24Despite the lack of advance in the ART bills, it is hoped that many of these matters can be addressed by a timely review from the re-established Administrative Review Council.

Conclusion

1.25We look forward to the implementation of the changes above and for the establishment of the ART.

Senator David Shoebridge

Member