Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Administrative Review Tribunal (the ART) commenced operation on 14 October 2024, replacing the former Administrative Appeals Tribunal as Australia's federal merits review body.

The ART provides an independent mechanism of review of government decisions made under more than 400 Commonwealth acts—a function that is critical to Australia's system of government and maintaining public confidence in our institutions.

This government created the ART to replace its dysfunctional predecessor based on the fundamental belief in the importance of merits review.

And, in that spirit, this government is therefore committed to ensuring the ART has the tools it needs to deliver efficient and high-quality review of government decisions.

One of the tribunal's objectives under the Administrative Review Tribunal Act 2024 (the ART Act) is to ensure that applications to the tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits.

This objective recognises that not every review is the same and that the tribunal should provide a meaningful opportunity for review in a way that is appropriate to the circumstances of the matter.

That is: merits review processes should be proportionate.

The time and resources expended to determine a matter should reflect the complexity of the issues, and the importance of what is at stake.

To be clear, this does not mean that efficiency should come at the expense of quality decision-making.

Rather, it requires that a balance be struck.

Proportionate and efficient review procedures ensure that the tribunal can make decisions efficiently and without delay.

Efficient and timely decision-making is particularly important in the context of the tribunal's reviews of migration decisions—such as reviews of decisions to refuse visas.

Onshore applicants seeking 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 to reduce delays in decision-making, provide genuine applicants with the benefit of a timely and effective remedy, and strengthen the integrity of the migration system.

Backlogs and extended wait times at the tribunal stage create incentives for non-genuine applicants to apply for review in order to extend their stay in Australia.

For genuine applicants, this creates an access-to-justice issue as the large volume of applications that must be dealt with, including from non-genuine applicants, means that they can wait months or years for a decision.

This point was emphasised in the Rapid review into the exploitation of Australia's visa system, delivered by Ms Christine Nixon AO, APM in March 2023.

Since early 2024, the tribunal has experienced a significant surge in applications for review of decisions to refuse student visas.

This has further highlighted the importance of ensuring the tribunal is equipped with the tools it needs to provide quick and efficient merits review.

The Administrative Review Tribunal and Other Legislation Amendment Bill enhances the tribunal's powers and procedures to ensure the tribunal can achieve this objective.

In particular, the bill expands the tribunal's ability to make decisions based on written materials, without holding an oral hearing.

Currently, the tribunal is required to conduct an oral hearing in all proceedings before it, unless narrow exceptions apply. Oral hearings are time and resource intensive. A one-size-fits-all approach that requires that oral hearings be conducted in all matters is unnecessarily rigid.

The bill would give the tribunal additional flexibility and ensure that review procedures are proportionate to the circumstances of the case.

Amendments to the Migration Act

The bill would amend the Migration Act 1958 to require the tribunal to make decisions without conducting an oral hearing in reviews of certain migration decisions.

This will specifically include decisions to refuse to grant a student visa, and could be expanded by regulation to include decisions in relation to other kinds of temporary visas.

Critically, permanent and protection visas are excluded from this regime in recognition that the matters in contention can be more complex—and in the case of protection matters—generally involves a more vulnerable cohort of applicant.

Informed by the Nixon review, which noted that the merits review process should be proportionate, the government believes it is appropriate that reviews of student visas be determined 'on the papers', having regard to:

These amendments would establish an efficient and proportionate method of review, while ensuring that applicants are given a meaningful opportunity to present their case to the tribunal in writing.

Applications which would be required to be reviewed 'on the papers' would be subject to a new review procedure set out in the Migration Act.

The review would be conducted entirely on the basis of written materials, without the tribunal holding an oral hearing.

There would be no limit to the information applicants would be able to present to the tribunal in support of their case, and nothing to constrain an applicant from making their full and forthright case in writing.

Key features of the review procedure include:

To be clear: the bill is not a reaction to the current migration case load facing the tribunal.

That case load is a symptom of the inflexibility of the current framework, a policy issue that this bill seeks to cure.

The bill would also empower the Governor-General to prescribe other temporary visa types that should be considered on the papers.

As an important safeguard, the parliament would of course retain its ability to disallow regulations if it judged it appropriate to do so.

Amendments to the ART Act

This bill would also amend the ART Act to give the tribunal additional flexibility about how it makes decisions in relation to other kinds of cases.

The bill expands the circumstances in which the tribunal can choose to make a decision based on written materials and without holding an oral hearing.

The tribunal would be able to do so if it appears to the tribunal that:

This recognises that procedural fairness does not require that an oral hearing is required in every case. What is required to conduct a fair review will hinge on the facts of each matter.

In light of this, it is appropriate that members have discretion to adapt tribunal procedure to achieve fair and just review in a manner that is efficient and proportionate to the complexity of the matter before them, across the tribunal's varied jurisdiction.

This new discretion will ensure that simple matters with straightforward issues can be determined as efficiently as possible, enabling a proportionate allocation of tribunal resources.

An important safeguard is that, before deciding to dispense with an oral hearing, the tribunal must consult the parties about this and take the parties' submissions into account.

Conclusion

The Administrative Review Tribunal has a crucial role in enabling members of the community to seek fair, quick and inexpensive review of government decisions.

This bill will support the tailoring of the tribunal's procedures in a way that is proportionate to the matters and issues before the ART.

This government is committed to merits review and maintaining public trust in the ART.

This bill further strengthens the tribunal by empowering it with the tools necessary to make decisions in an efficient and timely manner, while ensuring applicants have a meaningful opportunity to present their case to the tribunal.

I commend the bill to the House.

Debate adjourned.