20 March 2024


I acknowledge the member for Menzies for his role on the Standing Committee on Social Policy and Legal Affairs, which I chair, that looked into the bills that we are discussing today, the Administrative Review Tribunal Bill 2023 and related bills. Just to give context to it, ours was a narrow inquiry to ensure that the bills met the intended policy objectives of streamlining the administrative appeals process. It wasn't about questioning how we change it or if we should change it. Those discussions happened long ago.

We long ago determined that the Administrative Appeals Tribunal needed to go. It had been irreversibly damaged by the behaviour of those opposite when they were in government. Eighty-five former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close liberal associates were put on the AAT with no merit-based selection process. That included some people who had no relevant experience or expertise. In that way, the former government fatally compromised the AAT. Once its independence was undermined and, quite frankly, when its credibility and integrity was under question by the wider community—who turned to it at sometimes the worst possible times—we made the decision that the AAT needed to be replaced.

To reassure the member for Menzies, there will be a very thorough Senate inquiry, and I'm sure we will both enjoy reading the transcripts of the hearings that are held for that.

This bill, for me, is about restoring integrity in the system. My community expects that. The AAT is one of the
bodies that they had no faith in. They had no faith that, if they were a child-support payer or recipient and they took an issue through the processes of the child-support agency and then were dissatisfied with how it was handled and therefore went to the AAT for an independent expert review, what would come out the other end would be fair and just. That was the same for all the different areas that the AAT covers—everything from family assistance, paid parental leave, social security and student assistance to taxation matters, migration and refugee visa issues and visa related decisions, Australian citizenship decisions, bankruptcy decisions, civil aviation matters, freedom of information matters and the National Disability Insurance Scheme, which would be the one where we, from my office, have seen the greatest flow-through of matters to the AAT. So I think it's vital that this institution is given some credibility again, and I'm very pleased that the legislation and the circulated amendments that are before us are going to provide something that Australians can have faith in and have confidence in

When we inherited the AAT, not only was it not on a sustainable financial footing but it was beset by delays. There is a huge backlog of applications that are operating through the system, and it's operating with an ageing electronic case management system. All of this is the legacy that has had to be dealt with.

I can't stress how much of a cost those failures of the previous government have for regular constituents in the electorate of Macquarie, for people who just want to be able to get on with things. In reality, there are tens of thousands of people who rely on the AAT each year to review government decisions that can often have life altering impacts. It can be about whether an older Australian actually receives a pension or not. That's a pretty profound decision. It's whether a veteran is compensated for a service injury. Again, those opposite understand the profound impact that can have on a veteran, where there are delays in that process, let alone whether they are fighting a decision that they're uneasy with. It's whether an NDIS participant  actually receives the support that they feel they deserve.

The Attorney-General announced that the design of the new body would be subject to consultation, and it has been. It has been subject to consultation throughout 2023. We did what we said we'd do. We also made it clear that AAT cases that are underway when this change occurs are going to be automatically transitioned to the new body. I know that is an area that some people raised as a concern, but that transition is embedded in the way that we will do this.

We are committed, as a government, to restoring trust and confidence in the way we run government. That includes, in Australia, a system of administrative review, beginning with this new administrative review body that will be user focused, efficient, accessible, independent and fair.

A key feature of how the body works is the transparent and merit based selection process for the appointment of non-judicial members. I want to paint the contrast: where the previous regime appointed as many as 85 people just because their qualification was Liberal, ours will be merit based. We are determined to do that.

During the inquiry we ran, we thought it was important to consider the sort of experience we will expect people to have, including a requirement to have legal experience. For instance, senior members of the ART must have been enrolled as a legal practitioner for at least seven years, or the minister must be satisfied that the person has at least seven years specialised training or experience in a subject matter relevant to the jurisdiction of the ART, and general members must have been enrolled as a legal practitioner for at least five years.

I note that under the amendments that have been circulated this merit based appointment process is strengthened even further, to put beyond any doubt the legislative requirement for there to be an assessment panel as part of the merit based process for appointments to the tribunal. That alone is going to be a game changer in building confidence that the people on the Administrative Review Tribunal will have the qualities, the expertise, the skills, the knowledge and the experience that are needed to fairly evaluate complex cases. Remember, by the time something gets to this level of review, it's been through a lot of steps, and there's been a lot of disquiet along the way.

The ART Bill builds on 50 years of experience, learning and broad consultation. It draws on what we know works in a tribunal and it looks at what hasn't worked. The ART Bill implements all three recommendations from the Legal and Constitutional Affairs References Committee review into the performance and integrity of Australia's administrative review system. That was one of the first reviews. But it also fulfils four recommendations from the Royal Commission into the Robodebt scheme and the government response to two recommendations from the Rapid review into the exploitation of Australia's visa system. So to say that it has been well thought through is evident. I'd also point to the 30 submissions that we received from some individuals and many organisations and respected bodies, who provided feedback on the bill.

The whole objective of the tribunal is that it be an independent mechanism that is fair and just and that resolves applications in a timely manner and with as little formality and expense as is consistent with reaching the correct or preferable decision. That came through very clearly in the hearings that we held with the Attorney-General's Department. They had a real desire for this to be a place where people could actually have dialogue. It also needs to be and will be accessible and responsive to the diverse needs of parties, and that means accessibility in a whole lot of ways. The consequence will be improved transparency and quality of decision-making and increased public trust and confidence in the tribunal.

I want to point to some of the recommendations that our committee made and some of the amendments that have picked up those recommendations. I've already referred to the circulated parliamentary amendments focusing on strengthening the merit based appointment process. That was something that members of the committee were very keen to see, and it is terrific to see that in the circulated amendments. One of the amendments is a response to stakeholder concerns regarding the role of litigation guardians, including changing the name. For some people this might seem like a small thing, but language has power. One of the discussions we had during the hearings was around the use of the term 'litigation guardian'. As was explained, that language was questioned by a number of stakeholders. As a consequence, there was discussion around alternative language. Even changing just one word, from 'guardian' to 'supporter', changes the mindset of the person who has that person by their side. I really welcome that.

There was a lot of discussion about the review process. One of the things that came through very clearly in our hearings was the understanding that this is designed to be a self-improving, self-correcting system which doesn't rely solely on a review at a fixed point in time. But, as the Attorney-General's Department said, the review is built-in. If there's a problem, we should be able to identify that and have an opportunity to look at ways to fix it much sooner than if there is a statutory review. At the same time, I think there's always merit in having a formal place where review occurs, and our introduction of a statutory review to commence around five years after the commencement of the ART Bill is another step that will provide confidence.

There is also the capacity for a second review for social security matters. While the process is designed to allow for those matters to be dealt with as in the normal course, stakeholders during our parliamentary scrutiny did raise ideas around how it might be handy to have that additional, second review, and the circulated parliamentary amendments certainly look to reinstate that.

Another one of the amendments is to ensure that the tribunal decisions can be published, by amending secrecy provisions in family assistance law to allow de-identified decisions to be published. That was seen as something that would be very useful, for there to be ongoing education and accountability around decisions.

Another issue that came up during our inquiry that has been addressed is around the Migration Act. I think it's important to know that these changes will help address those crippling delays in the Migration and Refugee Division of the AAT, which, quite frankly, are motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection. This comes at a real cost to people who are in genuine need of protection. There will be, subsequently, amendments to the Migration Act to ensure the original policy intention is clear and reflected in that legislation.

These circulated amendments build on the highly consulted package that has come forward. I commend the package to the House.