Susan Templeman (Macquarie, Australian Labor Party) Share this | Hansard source

I was very pleased to be here to hear the member for Nicholls, and I just want to clarify some of the things he finished with—the conclusion he drew—that there was no need to change the previous AAT and create the Administrative Review Tribunal. In fact, there was a great need to undertake significant reform of the AAT. One reason is that that tribunal had been stacked with Liberal and Nationals appointments. There were 85 former Liberal MPs, staffers, candidates and mates on the AAT, and that was something that had to change. The AAT was also not properly funded to do the work that it was required to do. Those opposite just saw it as an employment opportunity for failed Liberal and Nationals candidates, hacks, cronies and mates. It is now a fundamentally different process. In order to be appointed to the new Administrative Review Tribunal, the ART, you have to have certain qualifications and standards. It is a merit based appointment, and that is absolutely appropriate for a body that is doing a merit based review of decisions that have been made by government departments and agencies. That was one of the fundamental changes that was made.

As someone who sat on and chaired a committee that reviewed the legislation before it was adopted, I delved deeply into the new legislation for the ART, and I was very privileged to have done that. One of the things that we spent quite a bit of time talking about, which the records of the public hearings will show, was about when you review this tribunal. Do you do a two-year review or a five-year review? In fact, what was embedded in the design of the ART is that you make changes as you notice things happening. This piece of legislation that we have here is an absolute example of why that process is so important to have as part of the ART, and that is that, when we see things that need to be fixed and need to be changed, we can do it. We don't have to wait for some formal review of the legislation for that to happen.

I'm really pleased to be speaking today about these changes to the ART. When I think about the ART, I think about an organisation that makes really big decisions that reflect on the quality of life for people. It might be that people are unhappy with a Centrelink decision that really affects their life, and they may not have felt that the circumstances were fairly looked at. It might be an NDIS decision. There is not a government agency where a decision that's made isn't impactful for someone, so to have a body to do this is important. Notably, the ART is not a court. It's not bound by the same formal rules of procedure and evidence. This is not actually about having your day in court, because it isn't a court; it's a review tribunal, and it's designed to support quick and fair decision-making to provide applicants with outcomes as soon as practicable.

So committed to merits review is the Albanese Labor government that we took the very bold and ambitious step to completely get rid of the AAT. That showed that we didn't think what was left was fixable; we thought that it really needed a total wholesale work-out, and that's what we've had. The new ART came into being in October 2024. What would that be? Oh, that would be a year ago. In that year, we've seen certain things and certain things have changed, and we're responding really promptly to those. The reason behind the ART is to restore public trust and confidence in an independent system of merits review in this country. We know that building trust takes time. I think these changes will be one more step to demonstrate our commitment to that and will be deserving of trust. Governance processes have been significantly improved, with merits based selection determining the appointment of those decision makers. That's a really good first step, and these proposed reforms build on that.

Let's talk about the challenge. One of the most significant challenges that the ART faces is that there is limited flexibility to dispense with matters without an oral hearing. Generally speaking, the tribunal is required to hold an oral hearing to determine a matter even in circumstances where it's not necessary to do so. There are some circumstances where an oral hearing is not necessary, but those circumstances are limited—for example, where the issues in contention could be reviewed in written submissions because they go to objective facts, such as whether an applicant has a certain document or not. It might be things that they're required to have in order to be eligible for a visa. That's a factual evaluation—objective facts. The tribunal reviewing applicants like this without a hearing would therefore save time and money and mean more applicants can have their matters considered.

The current inflexibility, coupled with an unprecedented spike in applications to the tribunal—particularly for the student visa cohort—is putting considerable pressure on the tribunal and demonstrating why there needs to be greater flexibility in the policy around oral hearings. The current model also has the outcome of leading to a system that could inadvertently incentivise non-genuine applicants to seek merits review to extend their stay. That would be to the detriment of genuine applicants. When we see that there is a possibility that non-genuine applicants or the people advising them are being incentivised to use this process, particularly where it is to the detriment of genuine applicants, then we absolutely want to act. These changes will support the ART to be quick, efficient and reliable as an avenue for merits review.

I will talk a bit about the specifics. The bill is seeking to address these challenges through amendments to both the Administrative Review Tribunal Act and the Migration Act. The proposals contained in the bill are informed by both the experience of the tribunal over the last 12 months and the rapid review into exploitation of Australia's visa system, which took place in 2023. These are changes based on inquiry and digging deep into what's going on and listening to what the ART says about what it's seeing now and how things might be dealt with more effectively.

The first point in the changes is around new broad general discretion for the ART, because this bill empowers the tribunal to make more decisions about how best to allocate its resources. In addition to the limited set of circumstances in which the tribunal can currently dispense with oral hearings, the bill provides a new broad discretion for the ART to determine matters using the phrase 'on the papers', so based on the documents that are available. That's allowable if the issues for determination can be adequately determined in the absence of the parties to the proceedings and that it's reasonable to do so in the circumstances.

The legislation constrains the discretion to ensure that the tribunal must give the parties opportunity to make submissions in relation to whether a matter proceeds without an oral hearing, and the tribunal has taken those views into consideration. The change means that ART members will be able to spend more time scrutinising information and making decisions and less time in hearings or case management processes. Overall, what does that mean? It means faster access to review for applicants balanced against appropriate safeguards of reasonableness and the opportunity to put the case, through submissions, on why a matter should instead be considered through a hearing. So there's plenty of opportunity for that process.

I want to talk about 'on the papers' for student visas. Importantly, the bill will require that all student visa refusal matters considered by the tribunal be determined on the papers—that is, without an oral hearing. The tribunal is currently experiencing this unprecedented surge in the number of student visa refusal matters lodged for review. In 2024-25, these applications accounted for almost 40 per cent of all lodgements to the ART. So, 40 per cent student visa lodgements; 60 per cent every other government agency and process. It's disproportionate. Requiring oral hearings for this visa class is simply not sustainable for the ART. The growing backlog in these matters is a symptom of the current inflexibility of the procedures.

I mentioned earlier the rapid review into the exploitation of Australia's visa system, which was done in 2023. It identified that decisions of certain temporary visas, including student visas, are suitable to be reviewed on the papers because it's appropriate for reviews of short-term temporary visas to be proportionate, quick and efficient, and expeditious review procedures reduce delays in decision-making and backlogs and support the overall integrity of Australia's migration system, which is something we worked very hard on in our first term of government, and continue to work hard on in this term. The review procedure included in the bill would enable the tribunal to achieve efficiency in addressing its significant case load while ensuring applicants are still given an opportunity to present their case in writing.

Reviews of decisions to refuse a student visa are well suited to be reviewed on the papers; you take into account the nature of the issues under review, the temporary and short-term nature of a student visa and the low volume and complexity of written materials relevant to those proceedings. However, there will be other things that the tribunal would be required to do. They would need to invite applicants to give the tribunal written submissions and evidence on certain matters relating to it. They'll also be required to continue to give applicants certain adverse information and to invite them to comment on it. They will have that opportunity. They will also be required to continue to request or obtain additional materials by other means, including making requests or orders for the applicant to provide certain documents. The tribunal will also be required to make its decision on the basis of the written materials provided without holding a hearing. Ensuring the tribunal can consider student visa matters quickly will absolutely disincentivise the abuse of merits review by non-genuine applicants who are seeking to prolong their stay here.

We appreciate that some stakeholders may argue that the changes aren't fair, because they effectively deny the applicant their day in court. However, this is a different process. It's a merit review, and nothing in this proposal stops an applicant from putting their best case forward. A genuine applicant would seek the ability to do so, whether the pathway was orally or in writing. That's the advice and the thinking that has gone into making this decision.

Finally, the bill is also going to allow the minister to apply on-the-papers processes together for certain temporary visa decisions prescribed in the regulations. It gives the government flexibility to identify additional cohorts to be brought into the on-the-papers review procedure in future as appropriate. Importantly, this power would not apply to protection visa matters, in clear recognition that these applicants generally involve complex issues and are a much more vulnerable cohort of applicants.

I'm very pleased with the way the ART was established, which allowed there to be ongoing improvement, and I would expect we will see more ongoing improvement as different issues arise and emerge—and the Albanese Labor government will respond to those as they occur. I commend this bill to the House.

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