Allegra Spender (Wentworth, Independent) Share this | Hansard source

I rise to speak on the Administrative Review Tribunal and Other Legislation Amendment Bill 2025. The ART commenced operation in October 2024 in place of the Administrative Appeals Tribunal. The ART is responsible for reviewing administrative decisions made under various Commonwealth acts and instruments, including disputes on matters ranging from visas, the NDIS, Centrelink, PPL and workers compensation. This bill amends the Administrative Review Tribunal Act 2024 and the Migration Act in an effort to increase the efficiency in the processing of visas. It does this in three ways. Firstly, it expands the circumstances in which the ART can make decisions based on the papers. Currently, most matters are dealt with through an oral hearing, with the circumstances for dispensing with the hearing limited to occasions where both parties consent, or where one party has failed to comply with the requirements of the tribunal. This bill, instead, gives the tribunal discretion to dispense with a hearing when it appears avoidable, based on the facts of the case. Secondly, this bill amends the Migration Act such that the reviews of student visa claims must now be determined on the papers. Finally, the bill grants the minister the ability to extend this provision to other temporary visas via regulations.

I want to recognise that the ART is a really important institution in our democracy. This is the last port of call for citizens when they feel that the government has let them down or has not served them accordingly. It is actually pretty fundamental to making sure that government is accountable, even to individuals in individual cases. I also want to acknowledge that access to the ART and the speed with which it makes determinations are critically important, because justice delayed is justice denied. In some cases, this can truly have a significant effect on people's lives. That's the context in which I approach this bill. I look at this and go, 'Yes, I want to see the ART work more efficiently,' because, frankly, some of the delays that I have heard about in my electorate, around people's access to and work with the ART, are not acceptable and have significant costs to the community.

I do agree that the ballooning number of review decisions, particularly for student visa refusals, which now account for 40 per cent of all lodgements, holds genuine reviews in limbo for months, often at great distress. I acknowledge that the Nixon review found that the system of review was being exploited by those looking to draw out and extend that process—again, particularly focusing on student visas.

For that reason, I do see good grounds for extending the discretion of the court to review cases on the papers, as in schedule 1, and to dispense with oral hearings wherever possible. However, there are obvious concerns around mandating that a type of visa class must be determined purely on the papers. As the Law Council of Australia argues, the blanket refusal of oral hearings for all cases represents a 'disproportionate response' to the issue at hand. In the last two financial years, almost 50 per cent of all student visa cancellations or refusals heard in the ART have been overturned, bringing serious doubt to the assumption that even student visas are clear-cut cases to be determined purely on written submissions.

This brings me to another issue, and the one my amendment deals with. This is the ability of other visa classes to be captured in the future by this blanket rule, simply by regulation. While it may be the case that many student visa cases can be suitably determined on the papers—although, as I have already pointed out, even this is questionable—certain other temporary visa classes could be problematic. The Law Council of Australia, while supporting the decision to exclude protection visas, argues that it is likely that vulnerable applicants would be captured by expanding these powers to other classes, including provisional partner visas, bridging visas and employer sponsored visas. The Law Council's submission to the inquiry into this bill by the Senate Standing Committee on Legal and Constitutional Affairs states:

These decisions go to the core of how the Tribunal operates for potentially wide groups of people, and relate to its overall design, as determined by Parliament only a year ago. Such decisions should not be left to delegated legislation.

While I acknowledge that these regulations are disallowable, for something so fundamental to the role of the ART I would agree with the Law Council, who argue:

… decisions that remove the ability of whole classes of individuals to have a hearing should, if included in legislation at all, be determined by Parliament under primary legislation.

I take the view of the Law Council very seriously in these matters, because this is about making sure—as I said at the start of my speech—that people can access justice when they believe that government has not served them, as individuals, whether they have been excluded on visas or whether they see a decision by government as unjust.

There are some amendments to this particular bill that I urge the government to accept. The first amendment, from the member for Warringah, would require these changes to be reviewed within three years, allowing the parliament to determine if there have indeed been unintended consequences. A simple review after three years will make sure we have accountability on these decisions. The second amendment, from the member for Curtin, will maintain some level of discretion within the tribunal to hold oral hearings for student and other temporary visa categories if they find sufficient reason to do so. I think that is very practical and simple. The default will be towards determination on the papers. However, that amendment still allows the tribunal discretion if they find sufficient reason to hold an in-person hearing. The final amendment, my amendment, would remove the minister's ability to expand this requirement to other temporary visa classes, instead needing further changes to be made in the primary legislation, as recommended by the Law Council of Australia. If the government were to accept the member for Curtin's amendment, I would see no reason to move my own.

I conclude by saying that no-one disputes that lengthy delays in the tribunal process increase costs, reduce the effectiveness of our entire visa system and unnecessarily hold up genuine visa applicants. There is a human cost as well as a financial cost to the problems of this current system. I strongly urge the government to consider the consequences of such blunt instruments and caution the government, and, indeed, future governments, against using the powers enabled in this bill to bring in other visa classes. I urge the government to accept the amendments made in good faith by members of the crossbench. They are very moderate amendments that will add to the protections in the bill without taking away from the overall purpose and, hopefully, impact of the bill on people's processing times.

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