Chapter 2Key issues
2.1Unusually, this is the second parliamentary inquiry into these bills, with the both the Administrative Review Tribunal Bill 2023 (ART Bill) and Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Consequential Bill No.1) referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs (HoR Committee) for inquiry in December 2023. As noted in Chapter 1, the HoR Committee recommended that both bills be passed by the House of Representatives.
2.2While this chapter refers to key amendments passed by the House of Representatives on 21 March 2024, its content primarily reflects the focus of the Senate Legal and Constitutional Affairs Legislation Committee (committee) inquiry, which was the provisions of the bills as originally referred to the committee.
2.3As stated in the Explanatory Memorandum for the ART Bill, 'a strong, user focused administrative review body is fundamental to ensuring government decision-making is as transparent and robust as possible'.
2.4While Australia's administrative review system, including the Administrative Appeals Tribunal (AAT), was 'initially lauded as an innovative model of tribunal reform', it has 'over time faced an ever-increasing range of challenges', including resourcing issues, multiple (ageing) electronic case management systems, delays, and application backlogs.
2.5While some of these challenges resulted from the amalgamation of various merits review tribunals into a single entity, one of the AAT's most serious problems relates to a lack of accountability in appointment processes and 'the perceived politicisation of the AAT'.
2.6As a 2022 Senate Legal and Constitutional Affairs References Committee (References Committee) inquiry found, Australia's merits review system 'is being failed by a tribunal which does not function effectively, efficiently or transparently'. Further, AAT decisions were no longer treated seriously by government agencies, as evidenced by the Royal Commission into the Robodebt Scheme (Robodebt Royal Commission), which found that:
The AAT made hundreds of decisions that the approach to calculating and raising debts under the [Robodebt] Scheme was unlawful—but those decisions, and their obvious implications, were ignored and ultimately buried.
2.7In short, as noted by the Attorney-General in his second reading speech, 'the AAT no longer enjoys the trust and confidence of the Australian community it serves, and is not fit for purpose'.
2.8To address these issues, the ART Bill, Consequential Bill No.1 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024 (Consequential Bill No. 2)—collectively referred to as 'the bills'—would abolish the AAT and establish the ART as a 'new, fit-for-purpose, federal administrative body' with 'flexible powers and procedures that best meet the needs of applicants'.
2.9In doing so, the bills would implement the recommendations of the References Committee inquiry into the performance and integrity of Australia's administrative review system, as well as four recommendations of the Robodebt Royal Commission and two recommendations of the Rapid Review into the Exploitation of Australia's Visa System.
General views on the bills
2.10There was general support for the intent of the bills to deliver a strong, user-focused administrative review body that is efficient, accessible, independent, and fair. For example, Ms Katherine McKernan of National Legal Aid (NLA) told the committee:
We welcome and strongly support the objectives and intentions of the bills and welcome the majority of the changes, particularly the abolition of the Immigration Assessment Authority and the improved focus on monitoring systemic issues, accountability and transparency in decision-making.
2.11Likewise, the Refugee and Immigration National Community Law Coalition (RAINCLC), called the abolition of the AAT:
… a pivotal opportunity for urgent and critical reform, presenting a chance to remedy long-standing defects that impaired the Tribunal's function and inhibited provision of fair and timely decision-making.
2.12The Law Council of Australia (LCA) described the proposed reforms to Australia's administrative law system as 'historic and highly significant'.The Community and Public Sector Union – PSU Group (CPSU) concurred:
The proposed changes would promote the independence and efficiency of the Administrative Review Tribunal (the Tribunal) and fairness in Government decision-making processes. This is an historic opportunity to establish a body that will be the foundation of Australia's administrative law system, and foster accountability, transparency, and confidence in the public service. We commend the emphasis on ensuring a user-focused, accessible review process.
2.13This support appeared to reflect broader views on the operation and standing of the AAT, which were also captured in the report of the HoR Committee inquiry into the first two bills, which stated that:
It is clear the AAT has lost the confidence of the Australian public and there is broad support for establishing the new administrative review regime with the bills' stated objectives. The proposed reforms create a new tribunal that would be a self-correcting system with several backstops to ensure that government and ART decisions are made correctly and transparently, that defective decision-making by government can be held to account and that systemic issues will be escalated and responded to effectively.
2.14While supportive of the bills, some participants, including those mentioned above, contended that further amendments could be made to strengthen the bills. For example, the Aboriginal Legal Service (NSW/ACT) supported reforms to the administrative review system and the establishment of the ART, but argued there were opportunities to improve the bills 'to better promote access to justice for Aboriginal and Torres Strait Islander peoples'.
2.15MrJeff Smith of the Disability Advocacy Network Australia supported many of the bills' provisions but also identified actions that could improve the operation of the administrative review system for people with disability. This included amending the litigation guardian provisions of the bill to remove the term 'guardian' and ensure that the role is one of support, rather than a substitute decision-maker. This proposal was adopted, and implemented by, the Australian Government (government) during the course of this committee's inquiry—noting that the government moved, and the House of Representatives adopted, a number of amendments to the ART Bill on 21 March 2024.
2.16In a similar vein, the Australian Bar Association (ABA) stated that the bill 'goes a long way' towards ensuring an effective merits review process but suggested there were areas where the bill could be improved, including in relation to timeframes for applying for review of migration and protection decisions and the powers and resources available to the Administrative Review Council.
2.17Similarly, the Public Interest Advocacy Centre maintained the views expressed in its submission to the House of Representatives inquiry, which supported many provisions of the ART Bill but sought changes to particular elements. These included the development of practice directions, reviews in the absence of the decision maker, and funding for legal and advocacy assistance services.
2.18Other participants supported the bills but underscored the role adequate resourcing would play in ensuring the success of the new administrative review arrangements.
2.19In addition, several participants, including the Centre for Public Integrity, the Accountability Round Table, Economic Justice Australia (EJA), and the Australia Institute, advocated for the inclusion of a statutory review provision to assess the operation of the changes within a specified time period.This proposal was also adopted, and implemented, by the government during the course of this committee's inquiry.
2.20The general support for the bills was acknowledged by the Attorney-General's Department (AGD), which stated that it was 'encouraged that the objectives and intended aims of the reforms have received broad support from the stakeholders throughout the [inquiry] process'.
2.21The AGD also noted the extensive consultation process that had informed development of the bills and expressed its gratitude for the guidance of the expert advisory panel led by the Hon Patrick Keane AC, KC:
I wanted to note that the design draws on lessons from numerous inquiries into the Commonwealth administrative review system from the mid-1970s to, I think, most recently the Robodebt Royal Commission. It's been informed by extensive consultation over the past year, including a detailed public issues paper which asked 67 questions about all aspects of the tribunal's design and operation, and a national consultation tour where we spoke at 80 consultation events with 147 stakeholders including tribunal users, academics, advocates and various peak bodies, including many of the people who you've heard from today. We've consulted over 400 AAT staff and over 150 AAT members; have held small-group page-turns on draft legislation with key stakeholders to test and develop key concepts in the drafting; and have been undertaking ongoing engagement with a range of interested stakeholders since the bill was introduced.
Throughout the process, the department has worked closely with and been guided by an expert advisory panel. I won't read all of their names, but it is chaired by the former High Court justice the Hon. Patrick Keane AC, KC. I want to express our gratitude to the expert advisory group for their expert insights, which have been central in the final design of the tribunal and the legislation that would establish it.
2.22Further, as noted above, the bills passed by the House of Representatives on 21March 2024 included a range of amendments in response to suggestions made by stakeholders during the parliamentary scrutiny process. These amendments included:
strengthening requirements around merit-based appointments by requiring the use of assessment panels;
renaming litigation guardians as 'litigation supporters' and more clearly reflecting supported decision-making (as opposed to substituted decision‑making);
providing a pathway for parties to reviews of social services decisions to seek second review of ART decisions;
clarifying drafting, improving the operation of certain provisions, and ensuring consistency across matters in the Migration Act 1958(Migration Act); and
inserting a requirement for a statutory review of the operation of the bills to commence within three months before the five-year anniversary of the commencement of the ART Bill.
2.23While proposing further improvements to the bills, the agreed amendments were welcomed by the LCA, which also emphasised its support for passage of the bills more broadly:
… it would be erroneous to conclude that because we have outstanding recommendations, the bills should not proceed. Overall, it is clear to us that the bills represent an improvement to the current regime, and are likely to promote greater integrity, accessibility, consistency, flexibility, and transparency in our administrative law framework. The bills—and the principles underpinning them—are a positive step forward and, as such, we do not seek to undermine or obstruct their passage beyond making constructive suggestions for refinement.
2.24Finally, the committee was urged by multiple participants, such as the Centre for Public Integrity, to 'move quickly' in establishing the new ART:
… we welcome the overall reform. We think it is a good thing and that it's a necessary reform. But I'll say this: I know that the work of the committee is very important, but there is a reason why the centre would urge you to move quickly—that is, there has been some dissent over the current form of the AAT, and this reform, which we welcome, would fix that. It should happen as soon as it can.
View on specific aspects of the bills
2.25In addition to broad support for the original bills, there was also support for specific aspects of the bills, including re‑establishing the Administrative Review Council; abolishing the Immigration Assessment Authority (IAA),and establishing the Guidance and Appeals Panel (GAP).
2.26While participants reiterated other concerns raised in evidence to the HoR Committee inquiry, the remainder of this section summarises evidence provided to the current inquiry in relation to the following key issues:
the ART appointments process;
two-tier review for social security and family assistance matters; and
review process for migration and visa protection applications.
ART appointment process
2.27The lack of transparency and perceived politicisation of appointments to the AAT is 'perhaps the most significant issue impacting the AAT and its credibility'. While a relatively long-standing concern, 'public complaints about partisan appointments increased greatly during the Morrison Government's time in office, particularly when large numbers of people with connections to the Coalition were appointed to the AAT just before the calling of elections'.
2.28Analysis by the Grattan Institute found that in 2022, the percentage of AAT members with direct political affiliations was 22 per cent—higher than would be expected from a merit-based recruitment process. According to the Grattan Institute, 91 per cent of the politically affiliated members were connected to the party that appointed them, with politically affiliated members also appointed, on average, for longer than other members. The politicisation of appointments, it argued, 'risks undermining the performance and independence of the AAT, as well as public confidence in its decisions'.
2.29Evidence provided to the References Committee's inquiry reinforced the view that the AAT appointment process was 'not open, rigorous or fair, with an ever-present risk of political patronage being the basis of appointments'. Given the recognised impact on the public credibility of the AAT, the References Committee recommended 'that a transparent, independent and merit-based process be established for the appointment of AAT members'.
2.30Further, the importance of merit-based appointments to the integrity of administrative review was emphasised by 'an overwhelming majority of participants' during the AGD's consultations on the bills.
2.31Part 8 of the ART Bill as referred to the committee responded to this need by enshrining a 'transparent and merit-based selection process for members' to ensure independent, high-quality decision-making within the ART. Other than Judicial Deputy Presidents, all ART positions would be filled via a competitive, publicly advertised merit-based selection process.
2.32According to the AGD, merit-based appointments would allow the ART to provide 'independent, high-quality review of administrative decisions … by ensuring members have relevant expertise and experience'. The new process would also 'safeguard and enhance public trust and confidence in the integrity of the [ART]'.
2.33The link between independent appointments and public confidence in the ART was also highlighted by Mr Bill Browne of the Australia Institute:
Public confidence in the ART and the independence of appointments made to it is essential if the tribunal is to make a clean break from the AAT and the doubt and suspicion understandably associated with that tribunal.
2.34To meet the definition of merit-based, appointment processes would need to:
include an assessment of the comparative suitability of candidates for the duties of the office, using a competitive selection process;
be based on the relationship between candidates' skills, expertise, experience and knowledge and the duties of the office; and
consider the need for a diversity of skills, expertise, lived experience and knowledge within the ART.
2.35The original bill would also have permitted—but not required—the Minister to establish panels to assess candidates for appointment to the AAT based on their record and performance at interview. The intention of this provision was to set an expectation that the assessment process would be undertaken by a separate panel prior to Ministerial consideration of suitable candidates.
2.36The HoR Committee inquiry found 'strong support' for the aims of the new AAT appointment process. However, it also noted concerns from some stakeholders that, in its current form, the ART Bill would fall short of ensuring transparent, merit-based appointments to the AAT. Participants in that inquiry also raised concerns about:
the discretionary nature of decisions to establish assessment panels;
the absence of a requirement that the Minister appoint candidates recommended by an assessment panel; and
a lack of barriers to political appointments to the AAT.
2.37Similar observations on the proposed appointment process were made during this inquiry. For example, the NSW Council for Civil Liberties (NSWCCL) stated that the appointment process in the ART Bill provides a 'chance to rebuild trust in administrative review'. According to the NSWCCL, 'this would mark a significant departure from the politicized and opaque approach currently employed in AAT appointments'. At the same time, the NSWCCL identified a need to further refine the appointments process to ensure the new model delivers on the aim of restoring public trust.
2.38Likewise, while Mr Geoffrey Watson SC of the Centre for Public Integrity described the appointment process as 'too weak', he noted that it could easily be strengthened by requiring the Minister to establish assessment panels to shortlist candidates and to table in Parliament a statement of reasons for appointing a person who is not on the panel's shortlist.
2.39In addition to mandatory selection panels—and the appointment of candidates assessed as suitable by those panels—participants such as Ms Lyn Allison of the Accountability Round Table also argued for former members of Federal Parliament to be 'barred from appointment to the ART for two years after leaving office'. Similar recommendations were also made by the Australia Institute, with the overall aim to:
… formalise the appointment process further, to limit the opportunity for revolving door or party political appointments, to legislate for panels, to limit the minister to selecting from among candidates that those panels recommend, to require that those panels consist mostly of experts at arm's length from the government, and, finally, to make the process more transparent by publishing the qualifications and prior work experience of all ART members.
2.40According to Mr Bill Browne, the Australia Institute's recommendations would help keep the AAT at arm's length from the government and ensure that AAT members, 'who are required to make the legally correct decision about life-changing matters' are 'highly legally qualified and beyond reproach'.
2.41Amendments to the proposed appointments process, including mandatory use of selection panels, were also supported by other participants, including the CPSU, LCA, NSWCCL, the Grattan Institute, the Asylum Seeker Resource Centre (ASRC), the RAINCLC, Emeritus Professor Terry Carney AO, Mr Michael Toby, and DrSophie Scamps MP.
2.42Some of the further concerns raised by participants in relation to the appointment process, included the potential for judicialisation of the ART via an increased focus on legal qualifications, as well as the potential impact of the bills on existing AAT members' appointments and remuneration.
2.43In response to suggestions that use of assessment panels be mandated in the bill, the AGD explained that there was an 'expectation that assessment panels would always be used'.
2.44This was underscored by the HoR Committee inquiry report, which encouraged the government to consider adopting the suggestion for mandatory panels but also acknowledged that it was 'not strictly necessary (given the Government has indicated that such matters can and will be provided for by legally-binding regulations'.
2.45However, in order to put the matter 'beyond doubt', the ART Bill was amended to explicitly require the use of assessment panels as part of the process for appointing the ART President, members of the ART (apart from the Judicial Deputy Presidents), and the CEO and Principal Registrar. This means the Minister would not be able to recommend a candidate for appointment unless they had been assessed as suitable by an assessment panel through a merit-based process.
Two-tier review for social security and family assistance matters
2.46Consequential Bill No. 1 as referred, amends various Acts in the social security portfolio. Principal to the proposed changes is the establishment of a new structure that would remove provisions that allow social security and some child support matters to be reviewed a second time by the AAT.
2.47The current system under the AAT comprises two-tiers of review, and according to AGD, this is 'a residue of the amalgamation of the former Social Security Appeals Tribunal (SSAT) with the AAT in 2015'. The first-tier review uses processes retained from the SSAT, which include the decision-maker not being required in the hearing and being able to provide written submissions. Theprocesses are regarded as relatively informal and efficient.
2.48The second-tier review is a more 'formal and adversarial' process that includes the decision-maker as a party. The second tier was added in 1988 to provide a mechanism for more 'complex and difficult cases'.
2.49In the bills as referred, the second tier would be the new GAP that would hear 'matters on appeal that raise a significant issue in administrative decision-making or where the decision of the tribunal may contain a material error'.
2.50The purpose of the GAP, subject to referral by the President, is to:
… review any matter involving systemic issues or Tribunal decisions that may be affected by error o decisions of the GAP must be published, and the President has discretion to refer matters to the GAP, ensuring that patterns of administrative error or injustice are reviewed and addressed.
2.51The intent behind its establishment is to promote 'consistent decision-making and an effective response to emerging issues through the President's ability to refer novel or representative matters for GAP review'. In addition, it would:
… simultaneously enhance decision-making at a systemic level, providing clarity and certainty for others seeking review, as well as for the original decision maker and the Tribunal, on similar issues.
2.52According to the Attorney-General, the proposed amendments would provide 'for a more flexible, robust and fit-for-purpose style of review for social security and child support decisions'.
2.53The HoR Committee inquiry reported that AGD did not agree with the 'characterisation of the reform as the loss of the two-tier model of review and instead referred to it as … a different two-tier model' because the GAP would be a second tier in the process.
2.54Overall, AGD argued that the new system would have significant benefits over the previous processes, by retaining the best features of the system with more flexibility and accessibility:
The ART Bill seeks to improve the external merits review process by combining the best features of first and second tier review, and by making enhancements that will ensure effective outcomes through a single tier of review. The ART Bill expands the Tribunal’s ability to determine the complexity of matters, the best options for resolution, and to triage accordingly…Resolving matters through dispute resolution processes is often more efficient and cost effective for parties, provides applicants with greater opportunity to engage in their matter, and leads to a higher rate of compliance with the final outcome.
2.55Similar to the previous procedures under the AAT, the second-tier would consider more complex matters:
Complex matters and Tribunal decisions affected by error can be escalated to the GAP on a discretionary basis – by referral or leave. These matters attract a more formal approach, proportionate with their significance, including by a more senior member determining the matter, mandated decision-maker participation, and compulsory publication of these decisions.
2.56The AGD also committed to monitoring the implementation of the new system to ensure that participants are supported at each stage of the process:
Ensuring that the Tribunal is accessible, user-friendly and effective for all applicants, including the most vulnerable, is an important objective of this reform…the department will work with affected stakeholders, departments and the Tribunal to ensure that the shift to the GAP review model is effective for social security and child support applicants.
2.57However, the original proposal to remove the so-called two-tier process caused significant concern among contributors to both the inquiry by the HoR Committee inquiry and to this inquiry.
2.58EJA told the committee at its public hearing, that it, and its members, were firmly of the view that the current structure be retained:
We are deeply disappointed by the proposed dismantling of the two-tier structure for social security matters. In our view, this is a retrograde measure, undermining the government's intention to effect structural reform to ensure that the administrative review system is accessible and fair. In our view, this fundamental change will have the converse effect. The loss of the two-tier structure will make administrative review less accessible for clients in social security matters in terms of deterring potential applicants from lodging applications, in terms of increasing attrition by way of withdrawal of appeals and in terms of ensuring fairness and equity, especially for unrepresented applicants.
2.59In addition, EJA argued that a two-tier system has been recognised as best practice in several reviews of the AAT system, and moreover, produces effective results at the first level without having to move on to the more formal and adversarial second tier.
2.60NLA concurred with EJA's perspective. In its appearance before the committee, it was strongly supportive of retaining the two-tier system in the social security and child support areas, at least until an assessment is made of how the new system operates:
Like EJA, we consider that the current two-tier process within the social services and child support division is an essential component that should be retained until the range of federal government reforms are in place and we've had time to see how the new Administrative Review Tribunal components such as the council and the guidance and appeals panel are implemented and are being effective.
2.61NLA also submitted that, not only did the effectiveness of the process provide cost-effectiveness and value for money, but it also freed up time and resources for itself, and the courts:
Not only is this better for clients and a better experience in terms of rapid decision-making; it also enables Legal Aid to target our resources as effectively as possible. It reduces the risk of significant backlogs, protracted matters and reliance on prolonged Federal Court processes to appeal the ART decisions.
2.62In response to questions from the committee on the impact of removing the two-tiers—specifically on whether it would have unintended consequences compared to the current high level of effective outcomes at the current tier-one level—EJA expressed concern that the proposed new process would slow things down that were previously 'very accessible, quick and efficient':
We're dealing with decisions that have very significant impacts, particularly on disadvantaged and vulnerable people. The value of the current two-tier system is that the current first tier is very accessible, quick and efficient. The concern is that the proposed system will slow things down, and there will be a lot of additional steps in the process which will slow down decision-making significantly. We're also concerned that it is going to create additional barriers for people who are not represented to get quality decisions.
2.63One of the factors that witnesses thought was not taken into account in the proposed new system was the administrative burden it would create for those bodies involved in the process:
The department's proposal doesn't really factor in the reality of the time-consuming nature of case management. A two-tiered system is a built-in case-management system, essentially. They're suggesting that, in order to prevent 15 per cent of people having to go through a few stages, 100 per cent of people have to be put through a case-management process, which potentially puts in place barriers and slows it down.
2.64EJA explained in how it currently supports clients at the first stages of their appeals process, and how that would change under the new process:
…if I know that a client has got a tier 1 hearing and I don't have the resources, I just give them the initial advice and send them on their way knowing that there is a second backup. At that point, if they're successful and it's resolved, which the vast majority are, I then don't have to commit resources.
2.65To illustrate its points, EJA provided the committee with some real-world case studies as examples of how the system currently operates.
Case studies
Case Study 1
One of Economic Justice Australia's (EJA's) members' client contacts today with a Centrelink debt. She has had a review by an Authorised Review Officer (ARO - internal review) and the debt was affirmed. After speaking to her quickly it is apparent that she has grounds to seek waiver of the debt as the debt was caused by administrative error and she has special circumstances. Neither of these grounds were considered by the ARO. Our member centre's advice is that if she seeks first tier review today (Social Services and Child Support Division of the Commonwealth Administrative Appeals Tribunal) she will receive the hearing papers within 28 days and then can have a hearing listed in a week or so after that. The hearing can be by phone—an in-person hearing will take longer to organise. The only people on the call will be the Tribunal member and her. Centrelink will not be represented. She can explain her circumstances and the Tribunal member will ask her questions. She may get a decision on the day or a written decision within 14 days. The decision will not be published. If she disagrees with the decision, she has a further right of appeal and can call EJA's member centre back to assist with that. They then run through with her the issues she should raise at the hearing and answer any questions she has. If the proposed changes are introduced, EJA's member centre would instead tell her that after she lodges the request for review the matter will be listed for one or more conferences, Centrelink may be represented by a lawyer, and the decision may be published. This is her only opportunity to have the decision reviewed unless the Administrative Appeals Tribunal (AAT) decision contains an error of fact or law. The client says she does not wish to go ahead as all her interactions with Centrelink have been traumatic. |
Case study 2: Current First Tier Review – When Properly Constituted Accessible for Clients in Remote Area
EJA's member centre, Welfare Rights and Advocacy Service WA (WRAS) had a client who was an Aboriginal woman in a regional area. She had parenting payment, family tax benefit and childcare subsidy debts raised against her. She contacted WRAS for advice, and they identified that there was a technical issue and administrative error that had caused all the debts. The ARO decided to waive the family tax benefit debts but not the parenting payment and childcare subsidy debts. The decision did not explain why a different outcome had occurred. WRAS assisted their client to request a first-tier review of the AAT—she had experienced significant family and domestic violence and was involved in family court proceedings as well as a contested hearing to get a final order family violence order at the time and was very intimidated by the lawyer acting for the other party. WRAS represented her at the first-tier review hearing which was able to be listed quickly and a decision to waive her debts was made on the day of the hearing. Centrelink then raised 2 more debts and this time she was able to lodge the appeal to the AAT and represent herself. She said that because she knew there would be no Centrelink lawyer there and she had experienced the process and understood how quick and informal the hearing was she was confident to represent herself. The new debts were waived immediately after the hearing. |
Case Study 3: Informality of First Tier Review – Deciding Factor in Client Lodging a Request for Review
EJA's member centre's client escaping family and domestic violence had a large debt raised on the basis that she had received payments as a single person while she was partnered. She had asked for review of the debt as she was in severe financial hardship, but it was affirmed by the ARO. When she sought advice from EJA's member centre, she disclosed family and domestic violence for the first time and was advised that EJA's member centre could lodge at the first-tier review level of the AAT and provide evidence that the debt should be set aside on the ground that she should not be considered a member of a couple. She was resistant to asking for a review which she assumed would be like 'going to court'. Once it was explained how first tier review operates and that there would be no one there from Centrelink she agreed to seek review of the decision. A decision was made setting aside the debt. |
Case Study 4: Importance of Two-Tier Review Structure Where Client Only Understands Decision and Gets Advice After First Tier Review Stage
A client applied for Disability Support Pension, but the claim was rejected. Both the ARO and first tier level of review affirmed the decision, but the first-tier decision maker explained each of the qualification criteria and why the claim was rejected. The client sought legal advice, and one of EJA's member centres was able to get a further medical report and provide submissions contending that the existing evidence met the requirements. The second-tier decision maker agreed, and the client's claim was granted. |
2.66Other contributors to this inquiry raised similar concerns about the removal of the current two-tier system. The Aboriginal Legal Service (NSW/ACT) supported a 'fulsome consideration of the issue', while Townsville Community Law raised questions about the potential increase in costs for legal representation for both clients and departments.
2.67Professor Michael Head from Western Sydney University School of Law concurred with the concerns raised by the NLA and EJA, and was also sceptical of the AGD's position that the GAP will in effect be the second tier of the new system. Professor Head based his concerns on how matters will be referred to the GAP, and the impact the process will have on applicants:
…this submission agrees with the warnings made that the ART Bill’s provisions for the referral of decisions to the GAP are unclear, confer significant discretion on the President of the ART, and may not be adapted to the circumstances of disadvantaged applicants. As the Monash Law Clinics noted, applicants may be prevented from seeking further review where they were unable to provide relevant material to the ART in the first instance.
Before referring an application to the GAP, the President must be satisfied that the application raises an issue of significance to administrative decision-making, and that it is in the interests of justice for the GAP to consider the matter and must have regard to the circumstances of the parties to the proceeding. This process is onerous, narrowly focussed and likely to be discouraging, if not intimidating, for disadvantaged applicants.
2.68The government responded to the concerns of stakeholders by introducing a series of amendments to the bills that would effectively reintroduce the second‑tier review for social services decisions to ensure that the new process would not be losing a key protection for applicants, or adding to the administrative burden on organisations supporting those applicants.
2.69The amendments include a new Part 5A that would establish 'a framework for a person whose interests are affected by an ART social services decision to apply to the Tribunal for a second review of the decision'.
2.70The Supplementary Explanatory Memorandum explains in more detail the legislative methodology and purpose of the amendments:
Placing the second review framework in a discrete Part of the Bill, rather than through consequential amendments to the7 Acts containing decisions that are eligible for second review, simplifies and clarifies arrangements for second review of these decisions. It ensures that Tribunal users can easily ascertain the processes and procedures relating to such reviews.
This approach supports the objective of the Bill as a whole, to create a unified and cohesive Tribunal, by ensuring that powers and procedures available on second review are, as far as practicable, the standard powers and procedures set out under the Bill.
2.71Division 2 of the new Part 5A clarifies that the rules for a second review are 'broadly modelled from second review settings in social services legislation and the AAT Act prior to amendment through the Bills and Consequential Bill 1'.
2.72The Division sets out who can apply, the definition of a social services decision, as well as and the operational aspects of the legislation in relation to the new Part.
2.73Following the amendments passed in the House of Representatives, the committee held a further public hearing which included discussion of the new Part 5A. In response to questions around his view of the amendments, Emeritus Professor Terry Carney AO provided his views in a written response on notice.
2.74With regard to the government's proposals to essentially retain the second-tier review mechanism, and the legislative methodology utilised in doing so, Professor Carney was broadly supportive:
I applaud both the decision of government to introduce amendments that retain rather than remove two tiers of as of right review of social security matters and to do so by way of a separate Part rather than by amending clause 124 of the Administrative Review Tribunal Bill 2023 (see paragraph [14] of my original Submission).
2.75Professor Carney was also supportive of how the amendments would interact with the new GAP:
The articulation between two tier as of right review and the ability for a matter to be referred to the Guidance and Appeals Panel at the discretion of the President (cl 131W) in my opinion strikes the appropriate relationship between these two distinct avenues and functions.
Review process for migration and visa protection applications
2.76According to the AGD, around half of all review applications to the AAT relate to decisions originating in the Home Affairs portfolio. Where appropriate, Consequential Bill No. 1 (as referred to the committee) would amend the Migration Act to harmonise the review process for migration and protection matters with other caseloads at the AAT. This would facilitate use of a broader range of powers and procedures, which would help reduce delays and backlogs by simplifying processes and allowing ART members to be more flexibly allocated in response to caseload demands.
2.77However, given the volume, distinct nature and complexity of visa-related decisions, some features of the existing review process specific to migration and protection matters would be retained or enhanced. These include features related to:
exhaustive statement of the natural justice hearing rule;
timeframes to apply for review;
extensions of time to apply for review; and
providing documents to review applicants.
2.78Consequential Bill No. 1 would also abolish the IAA to ensure that persons seeking asylum in Australia are provided with a fair, thorough and robust review process.
Abolition of the IAA
2.79 As described in the HoR Committee inquiry report, the IAA was originally established to 'allow for the review of refugee status decisions made under legislation passed to deal with the "legacy" caseload of asylum seekers who came to Australia by boat between 2012 and 2013'. While the intention was to speed up consideration of these legacy decisions, the IAA system generated numerous judicial review applications, with over 12 000 cases still unresolved in February 2023.
2.80A number of participants, including the LCA, NLA, the ASRC, the Refugee Advice and Casework Service (RACS), and the RAINCLC, supported the proposed abolition of the IAA. For example, MsRachelSaravanamuthu of the ASRC told the committee about a lack of fairness in the IAA system and called its abolition 'long overdue' and 'the end of a really sad and devastating era for our clients':
As we mentioned, the process of the department is not fair and often results in unlawful decisions. The IAA provided a very limited merits review. It's much more limited than what the tribunal provides—no right to a hearing or interview, five-page submissions and very strict rules on raising your protection claims, and that has resulted in many unlawful decisions being made by the IAA. You just have to look at the remittal rates to see well over 30 per cent being remitted from the courts because of these unlawful decisions that have really dire consequences of people being returned to persecution, being permanently separated from their family and/or facing prolonged detention.
2.81This was echoed by Mr Ahmad Sawan of the RACS, who described the proposed abolition of the IAA as 'monumental' and 'a huge step forward' given it was a system that 'severely underdelivered and which has caused some great pain for a lot of our clients':
A lot of the concerns that we've brought today, in terms of the negative inference and adverse information, were all exhibited by the IAA. We have, foremost, very clear evidence as to how it can function incorrectly when you don't give people the opportunity to an adequate review and a chance to submit their claims, engage in a hearing and engage with a member.
Like Rachel said, the IAA operated solely on efficiency. Once the matter was refused by the department, the IAA sought to make a decision in 21 days. They only allowed you to make submissions that were limited to five pages long with very strict conditions regarding margins and fonts and those sorts of things. You couldn't provide any new information unless it was 'exceptional circumstances', and it was an incredibly high bar.
Going on from that—which was raised earlier—are the rates of success at the judicial review stage for IAA decisions, in terms of remittals, showcasing the level of jurisdictional errors and legal errors that came out of that process. Again, with Rachel, I think the abolition of the IAA could not come soon enough for those reasons.
Other issues raised by participants
2.82While there was support for abolition of the IAA, participants such as the RACS raised concerns that the bills maintain a 'separate procedural code for non‑citizen applicants', which excludes them from 'equal access to a fair, just and independent mechanism of merits review'. According to Mr Sawan, this includes a continued 'presumption of disbelief for new claims and evidence raised by refugees and people seeking asylum', strict and inflexible timeframes for applicants, limits on applicants' access to documents regarding their cases, and a lack of procedural fairness for refugees, migrants and people seeking asylum.
2.83Ms Saravanamuthu of the ASRC concurred and shared the stories of Kamal and Mariam (below) to illustrate how the bills would 'maintain an unfair and different set of rules for refugees, people seeking asylum and migrants' and would 'disproportionately impact the most disadvantaged people in our community, such as women fleeing gender-based violence and people with severe mental health conditions'.
2.84The ABA also pointed to a particular lack of fairness for individuals in immigration detention, who are in a vulnerable position and are likely to have 'limited access to legal advice and other assistance'. Accordingly, the ABA proposed longer timeframes for people to apply for review of migration decisions, as well as the introduction of a discretionary power for the ART to extend time, where appropriate.
2.85A similar view was expressed by the RAINCLC, which contended that the bills would exclude protection and migration applicants from certain procedural fairness standards, which would compound the challenges facing refugees and people seeking asylum face when seeking to access justice—including language barriers, trauma and immigration detention. Accordingly, the RAINCLC argued for the bills to be amended to 'ensure that the ART fulfills its objectives to provide an independent review mechanism that is fair, just and accessible'.
2.86Removal of the separate procedures for refugees, migrants and people seeking asylum was also supported by the NSWCCL, which argued the procedures in the ART Bill should apply equally to these cases.
I would like to share the story of Kamal. He came to Australia after fleeing serious harm on the basis of his sexuality. Kamal's protection claims were not fairly assessed by the Department of Home Affairs, and he was subjected to biased questioning. Kamal did not have a lawyer and was unaware of his rights. Kamal's protection visa was refused by the department. He sought review before the tribunal; however, he missed his deadline by one day. Sadly, this is a common situation for people seeking asylum, given the difficulties they face in accessing information about their rights, including language barriers and insecure housing, in addition to intersectional barriers such as their race, sexuality and gender. Kamal's only option to seek review was to bring proceedings in the High Court of Australia. The High Court held that the department decision was unlawful. His case was remitted to the department, and after several years Kamal was finally granted a protection visa. Had Kamal not been able to access legal representation by the ASRC, he would have been returned to his home country and faced persecution. A remedy came at significant public cost and after delay, causing severe harm and distress. |
Another common experience is that of Mariam. She fled gender-based violence in her home country and sought asylum. Mariam also experienced violence in Australia and was scared to disclose the experiences in her protection visa application. The department refused Mariam's protection visa without inviting her to an interview. Mariam sought review before the tribunal. She received legal advice for the first time and became aware that she could seek asylum on the basis of experiencing gender-based violence. Mariam's tribunal hearing was the first opportunity that she had to discuss her protection claims. However, as there had been a delay in raising her claims about gender-based violence, the tribunal advised that it may not accept them due to the current law. Mariam is still waiting to know if she will be forced to return to her home country and face violence. |
2.87In response, Mr David Gavin of the AGD noted that the bills would abolish 'over 100 separate pieces of codification for migration review decisions'. He also spoke of the need for the system to best support both the interests of review applicants and community expectations:
Generally, the reforms have been crafted to ensure the system overall works in the best interests of the review applicants and meets community expectations. This balances objectives of having a fair system that is not subject to delays or misuse, where genuine applicants are not impacted by backlogs before the tribunal and where the review system, in particular, can operate at scale, which it needs to do in the migration context.
2.88Further, the amendments made to Consequential Bill No. 1 prior to it being passed by the House of Representatives on 21 March 2024 would:
clarify who can apply for a review of a visa cancellation decision under
section 500 of the Migration Act;
ensure that the Minister can substitute a more favourable decision for an applicant if the ART has dismissed their application for review;
in particular, this power would be available where an application was dismissed (under clauses 99, 100 and 101 of the ART Bill) and the applicant failed to apply for reinstatement and the ART confirmed the decision to dismiss the application, or where an applicant applied for reinstatement and the ART confirmed the decision to dismiss the application;
ensure that an applicant's failure to provide certain documents to the ART as part of an application for review of certain decisions under section 500 of the Migration Act does not invalidate their application for review;
provide that an applicant for review of a reviewable migration or protection decision may apply to the Attorney-General for legal or financial assistance if the proceeding is referred to the GAP (consistent with settings for social security and child support reviews);
clarify that, where an applicant requests access to documents provided by the department to the ART for the purposes of a review, the department must provide access to those documents;
clarify that a party to a reviewable migration or protection decision proceeding may request that the ART refers a question of law to the Federal Court of Australia; and
clarify provisions relating to the exhaustive statement of the natural justice hearing rule and notification requirements, to ensure consistency and certainty for applicants, and ensure they operate as intended.
Committee view
2.89There was strong support, expressed through both the House of Representatives inquiry, and in this inquiry, for the abolition of the Administrative Appeals Tribunal (AAT). The regime had lost the confidence of all stakeholders and the merits review system was badly in need of a complete overhaul.
2.90As discussed at the beginning of this chapter, Australia's administrative review system, including the AAT, had 'over time faced an ever-increasing range of challenges', including resourcing issues, multiple (ageing) electronic case management systems, delays, and application backlogs.
2.91For many, the biggest problems were the erosion of trust brought on by the lack of accountability in appointment processes and 'the perceived politicisation of the AAT'. This is in addition to the AAT's lack of effectiveness and failure to prevent defective government decision making on a systemic level, as exposed through the Royal Commission into the Robodebt Scheme.
2.92The establishment of a new administrative review scheme was, therefore, broadly welcomed. However, through its inquiry the committee heard concerns about aspects of the new scheme that were broadly focussed on three areas: the proposed new appointments process; the perceived abolition of the two-tier process for considering social security and child support matters; and changes to the review processes for migration and protection matters.
2.93Given the controversy around the appointments process under the AAT, the new appointments proposals understandably attracted significant attention. While submitters welcomed evidence from the Attorney-General's Department that there was an expectation that assessment panels to appoint candidates 'would always be used', there were calls for this to be mandated in the ART Bill. This is a position the committee agrees with, and it welcomes the amendments the government introduced to put this in place.
2.94Likewise, the proposals to restructure the two-tier process for review of social services and child support matters attracted significant comments from submitters. While the creation of the Guidance and Appeals Panel was welcomed, some submitters did not think it retained the protections and benefits of the current two-tier model. The Australian Government again has responded to these concerns by introducing amendments that retain all the protections for applicants as per the previous system, while creating a coherent pathway through the appeals process that intersects appropriately with the Guidance and Appeals Panel.
2.95The amendments to the review process for migration and protection matters also take into account evidence received throughout the inquiry. The amendments clarify the obligations on the department to provide appropriate support and transparency in their processes, which in turn ensure that the principles of natural justice are applied to each application.
2.96The committee recognises that, while there was near-universal agreement that the bills represent a significant improvement on the current system of administrative review, some submitters would have liked the committee to recommend further amendments, particularly in the areas of social security and migration.
2.97Importantly, the committee notes that the Administrative Review Council will be tasked with keeping the Commonwealth administrative law system under review, and will be well-placed to consider further improvements to the system after the bills are enacted (and ahead of the five-year statutory review provided for in the bills). The committee notes that the Attorney-General is able to refer matters to the Council for inquiry and report.
2.98Given the areas of social security and migration represent the majority of the AAT's caseload—and will continue to represent the majority of the Administrative Review Tribunal's (ART's) caseload—the committee believes that, following passage of the bills, the government should consider making two referrals to the newly established Council. First, the government should consider a referral in relation to the amendments to the Migration Act 1958 in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024. Second, once the ART has been in operation for a reasonable period of time, the government should also consider a referral in relation to the social security-related amendments in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024.
2.99The importance of effective administrative review, particularly in relation to social security, was underscored by the Robodebt Royal Commission. The committee notes that the bills would implement a number of recommendations of the Robodebt Royal Commission, which found that 'effective merits review is an essential part of the legal framework that protects the rights and interests of individuals; it also promotes government accountability and plays a broader important role in improving the quality and consistency of government decisions'. The committee agrees and notes that the bills include numerous mechanisms that are intended to thwart a future Robodebt.
2.100Overall, the committee is assured that the bills as amended represent a historic and highly significant reform to Australia's system of administrative review, which will see major improvements to the current design and operation of the AAT. This view is supported by the majority of submitters and witnesses, and demonstrated by the evidence received from the Law Council of Australia who said in their evidence before the committee that the 'bills represent an improvement to the current regime and are likely to promote greater integrity, accessibility, consistency, flexibility and transparency in our administrative law framework.
2.101The committee recommends that the Senate pass the bills.
2.102The committee recommends that, on the establishment of the Administrative Review Council, the Australian Government should refer to the Council the amendments to the Migration Act 1958 in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024 and the matters raised in evidence to this committee regarding the operation of the Administrative Review Tribunal in relation to migration and asylum matters.
2.103The committee recommends that, following the establishment of the Administrative Review Council, the Australian Government should also consider referring to the Council the operation of the social security-related provisions as set out in the Administrative Review Tribunal Bill 2024 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024, having regard to the findings of the Robodebt Royal Commission.
Senator Nita Green
Chair
Labor Senator for Queensland