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

by leave—I move amendments (1) and (2) as circulated in my name together:

(1) Schedule 1, item 16, page 7 (lines 6 to 15), omit subsection 367C(2), substitute:

(2) An application made to the ART for review of a reviewable migration decision is an application to be reviewed on the papers if the decision is a decision to refuse to grant a student visa.

(2) Schedule 1, item 16, page 7 (lines 24 to 27), omit subsection 367C(4), substitute:

(4) Without limiting paragraph (3)(b), regulations made for the purposes of that paragraph may prescribe kinds of, or circumstances relating to, applications made before, on or after the commencement of those regulations.

I appreciate that we need to create a system that enables decisions to be made efficiently and fairly. I acknowledge the government's point that the Nixon review found that the system of review currently in the ART was being exploited by some to draw out and extend processes again. They particularly highlighted student visas. They recognised that, with student visas now accounting for 40 per cent of all lodgements, this can potentially have the impact of holding genuine reviews that are needed in limbo for months, often at great distress. So I do find there are good grounds for finding efficiencies within the ART system, such as increasing the scope to review cases on the papers.

However, I do currently have concerns about how this legislation is drafted, and these go to the heart of my amendments. There are obvious concerns about mandating that a type of visa class must be decided 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.

That brings me to my amendments. The legislation as currently drafted includes student visas but also allows, within regulations, other visas to be captured by this blanket refusal of oral hearings. I think this is of real concern. A case can be argued that student visas can be determined on the papers, though there are some—I'll be honest—who argue that that is really not the case, particularly seeing that 50 per cent of all study visa cancellations or refusals have been overturned, which says that this is actually an area of great contention.

But the fact that other visas could be included in this could also be problematic. I go back to the Law Council of Australia. While they support the government's decision to exclude protection visas, they argue that it is likely that vulnerable applications could be captured by expanding these powers to other classes, including provisional partner visas, bridging visas and employer sponsored visas. All of these things could be captured without coming back to the House. I'll quote from the Law Council's submission on this bill:

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, again, with the Law Council, who argue that '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'. These reasons and those arguments made by the Law Council have driven me to draft these amendments, which would remove the minister's ability to expand this requirement to other temporary visa classes, instead requiring further changes to be made in primary legislation as recommended by the Law Council.

I think we should take a moment to reflect on what the purpose of the ART is and why this is important. The ART is the final place where individuals who feel that the state has not been fair or accurate in its dealings with them can make a case, and the state has to come up, be honest and adjudicate this fairly to make sure that it has not overreached or made a mistake. This is up for citizens of our community taking those actions . My concern, really, with this legislation in relation to the ART is that it now says to people that they will only be determined on the papers. Vulnerable Australians who may be making those representations to the ART may be representing themselves. I know many from my constituency have gone to the ART and represented themselves. Under this current legislation, they may have no opportunity to be heard, and that this could be extended to other visa classes is of real concern. I argue that the government should, in this case, listen to the Law Council and the protections it is are arguing for, and they should support my amendments in this case.

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