Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Administrative Review Tribunal and Other Legislation Amendment Bill 2025. Replacing the previous Administrative Appeals Tribunal, the Administrative Review Tribunal operates as Australia's federal merits review body and provides an independent review of decisions made by Australian government agencies, departments and ministers. Its jurisdiction is incredibly wide. It provides a review mechanism for decisions made under more than 400 Commonwealth acts. That being the case, it needs to be equipped with the right tools to deliver reviews that are efficient and effective, that are of high quality, that are accurate and sustainable and that are tailored to the decision being reviewed—recognising, of course, that not every review is the same. Every review needs to be determined on its own merits.

The system of reviewing the decisions of agencies, departments and ministers provides the Australian public with trust and confidence in our institutions, and this review mechanism is critical to our system of government. It is indeed the job of the Administrative Review Tribunal to consider each case on its merits by taking a fresh and objective look at the facts, law and policy relating to the original decision and also considering new information. In applying this fresh lens, the tribunal can agree with the original decision, change the original decision or make a new decision.

Overall, however, the objective of the tribunal as set out in the Administrative Review Tribunal Act 2024 is to provide the independent mechanism of review that is fair and just, that ensures that applications to the tribunal are resolved as quickly and with as little formality and expense as possible as a proper consideration of the matters before the tribunal permits, and that is accessible and responsive to the diverse needs of the parties to proceedings. It must also improve the transparency and quality of government decision-making in a way that promotes public trust and confidence in the tribunal.

The 400 Commonwealth acts and legislative instruments that the tribunal can review decisions in relation to cover a very broad range of topics. The relevant act, regulation or other legislative instrument must state that the tribunal can review the decision, because there is no general power of review. The most common types of decisions that the tribunal reviews are in relation to visas, including migration and refugee visas, and Centrelink payments, including family assistance, paid parental leave and student assistance. The tribunal reviews decisions in relation to the National Disability Insurance Scheme, child support, taxation, Commonwealth workers compensation, and veterans entitlements.

In addition, the tribunal's review jurisdiction includes reviewing decisions relating to Australian citizenship, bankruptcy, civil aviation, corporations and financial services regulation, customs, freedom of information, passports, and security assessments by the Australian Security Intelligence Organisation. Again, given the breadth of this jurisdiction, it must operate efficiently and effectively to ensure that fair and just reviews of complex and in some cases life-changing decisions for the applicants are delivered promptly and accurately.

The Administrative Review Tribunal Act itself is home to the description of the tribunal's standard powers and proceedings relating to the conduct of a review. These provisions are subject to modification made in other acts or instruments so that the powers and procedures can, if necessary, be adapted for the unique features of particular case law. For example, the Administrative Review Tribunal and Other Legislation Amendment Bill 2025 would amend the ART Act and the Migration Act 1958 to expand the circumstances in which the tribunal may make a decision without holding an oral hearing and to require the tribunal to make decisions in relation to certain kinds of applications without holding an oral hearing.

This will be done by amending section 106 of the Administrative Review Tribunal Act. That section provides that the tribunal may make decisions without hearings in certain circumstances, including if all the parties to the proceeding consent to that matter being determined without the hearing of the proceeding and it appears to the tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties. Other reasons include where the only parties to the proceeding are the applicant and a non-participating party; where the hearing of the proceeding and the reviewable decision is wholly in favour of the applicant already; and where the applicant requests the tribunal to make its decision without holding a hearing of the proceeding. In all those circumstances, it must also appear to the tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties.

A further reason is if a party fails to comply with the act or an order of the tribunal in relation to the proceeding within a reasonable time, and it still appears to the tribunal that the issues are capable of being adequately determined in the absence of the parties. Similarly, if a party fails to appear, subject to that party being a non-participating party of the proceeding, and the tribunal is satisfied that that party received appropriate notice of the date, time and place of the hearing, directions hearing or dispute resolution process, and if the matter can be determined in the proceeding adequately without a hearing, this is also covered.

The bill will amend section 106 by inserting the additional circumstance in which the tribunal may make its decision in a proceeding without holding a hearing. That additional circumstance also includes a safeguard that it must appear to the tribunal that those issues for determination can be adequately determined in the absence of the parties; that it appears to the tribunal that it's reasonable in the circumstances to make its decision in the proceeding without holding a hearing; that the tribunal has given the parties to the proceeding a reasonable opportunity to make submissions to the tribunal in relation to the tribunal making its decision without holding a hearing; and that the tribunal has taken into account any submissions received. There are significant safeguards around this new additional circumstance.

Given the volume of case load and the breadth of the tribunal's jurisdiction, the need to deliver review decisions promptly is imperative. This new discretion provides additional flexibility to the tribunal in relation to the procedures to be followed in a proceeding without compromising the integrity of the process or the quality of the review determination. Exercise of this new discretion would be conditioned by the appropriate safeguards to ensure that it would be able to be exercised compatibly with the tribunal's existing obligation to afford the parties an opportunity to present their case. This supports the objective of the tribunal, which is to resolve matters as quickly and with as little formality as possible and with proper consideration of the matter—especially given the time and resources required to conduct a substantive hearing.

The bill also seeks to amend the Migration Act to require the tribunal to make decisions in relation to applications for review of certain kinds of reviewable migration decisions on the papers without conducting an oral hearing. The objective of this is that enabling decisions of this kind to be reviewed on the papers would facilitate an efficient and proportionate method of review whilst ensuring genuine applicants are given a meaningful and fair opportunity to present their case to the tribunal in writing. Specifically, this new requirement will apply to applications for review of decisions to refuse a student visa. Having regard to the nature of the issue under review, the low volume and complexity of written materials relevant to proceedings of this kind, and the temporary and short-term nature of student visas, decisions of this kind are entirely appropriate for review without an oral hearing.

It is also contemplated that the requirement will apply to applications for the review of decisions relating to a temporary visa of a kind prescribed in regulations. In addition to expediency of determinations, this framework would provide further flexibility for the Migration Regulations 1994 to prescribe additional kinds of applications relating to temporary visas as being subject to this new requirement for a review to be able to be conducted on the papers.

Applications which are required to be reviewed on the papers would be subject to a new, bespoke review procedure set out in new division 4A of part 5 of the Migration Act. The review would be conducted entirely on the basis of written materials without the tribunal holding an oral hearing. The applicant would be given an opportunity to present their case to the tribunal in writing. Importantly, and to be absolutely clear, it will not be possible for reviews of decisions relating to permanent visas or reviewable protection decisions, within the meaning of the Migration Act, to be subject to this new requirement.

These amendments seek to further one of the key objectives of the tribunal, which is to ensure that applications to the tribunal are resolved quickly, with as little formality and expense as proper consideration of the matters permits. The amendments further the principle that the merits review process should be proportionate, with the time and resources expended to determine a matter being directly proportionate to the complexity of the issues and the importance of what is at stake. The amendments are not designed to rush decisions without due and proper consideration being given to them. They are designed to promote proportionate and efficient review procedures that mean the tribunal can make decisions efficiently and without delay.

We heard earlier from the member for Blair, who described over 100,000 decisions being made on an annual basis. This is critical when decisions are being made about refusing visas. For example, onshore applicants seeking a review of a decision to refuse the grant of certain visas are entitled to stay in Australia on a bridging visa for the duration of the merits review process. In this context, efficient review procedures are important in order to reduce delays in decision-making, providing genuine applicants with the benefit of a timely and effective remedy, thus strengthening the integrity of the migration system. Backlogs and extended wait times at tribunal stage create an incentivised environment for non-genuine applicants to apply for review, simply to extend their stay in Australia. This is not fair for genuine applicants because it creates an access-to-justice issue, as the large volume of applications that must be dealt with, including from non-genuine applicants, means genuine applicants could wait months or years for a decision.

The amendments proposed by this bill will provide additional flexibility in the tribunal's procedure in a way that is proportionate to maintaining public trust and confidence in the decision review process. Decisions can be made in a more efficient and timely manner, without compromising the critical right of the applicant to have a meaningful opportunity to present their case to the tribunal. I commend the bill to the House.

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