Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

The opposition was intending to move amendments in similar terms for the removal of schedule 4. Schedule 4 as it is currently presented—and if the Senate agrees—would have the effect of removing access to the Refugee Review Tribunal for certain asylum seekers to whom the government has given fast-track applications—a somewhat Orwellian concept. Now, in lieu of the Refugee Review Tribunal, the government is proposing that asylum seekers who have had their application for protection denied will be directed to a new body called the Immigration Assessment Authority. And one of the fundamental principles of administrative arrangements in this country is the access that people have to review of decisions that are taken by officers, providing—I think appropriately—a provision for natural justice and the opportunity to have decisions actually reviewed. And because of the very high percentage of cases that are actually overturned by the review mechanism, it is quite clear that such a body is necessary.

The new body the government is proposing—and if you support the measures in this bill you will be supporting this new body—will conduct only limited merit review of decisions, and it would deny the application for protection of applicants on the basis of a paper review. It will be on the papers; it will not necessarily be through any proper judicial standard of review. Unsuccessful asylum claimants will not have an opportunity to appear before such a body to actually argue their case. The review will be conducted by bureaucrats in a closed office. Asylum seekers will not have the opportunity to even make written submissions. Asylum seekers will not have the opportunity to be notified of adverse findings about them or respond to those findings. They will be denied the right of legal representation.

Now, I ask you to think about the implications of that. In any proper judicial process in this country you would have an expectation of legal representation. You would have an expectation that you would be told about the proceedings. You would have an expectation that you would actually be able to present your case. But under this measure none of those basic provisions or legal protections in this country are allowed. There are no prescribed grounds for a review to be conducted by such a body. It is a process that is entirely at the discretion of the reviewer. This strikes me as being fundamentally at odds with the judicial principles that we would have expected in this country.

Furthermore, the immigration assessment authority lacks institutional independence from the executive of government, which I would put to you is one of the touchstones of judicial review. But you do not have the minister ring up and put the fix in, and that is what these proposals would allow. You must have a legal process that stands up to scrutiny. And the IAA reviewers will not be employed by an independent statutory authority—which of course is the case with the Refugee Review Tribunal, or the Administrative Appeals Tribunal. Rather, these reviewers will be regular public servants employed under the Public Service Act. In performing their reviews, they will be required to comply with the practice directions and guidelines imposed by their superiors.

So, this is a proposition that provides no confidence of independent judicial review. What this measure suggests to me is a somewhat pale imitation of current practices with the Refugee Review Tribunal and falls dramatically short of the basic principles of fairness. I ask this chamber to consider the implications of endorsing such a process for people who have a genuine need to have their decisions reviewed by a proper, fair process. Simply put, if this proposition is upheld, asylum seekers will not be afforded natural justice. The basic principles of reasonable administrative decision making that we have all come to expect will be abandoned.

I think we would all defend an open and transparent review process, which of course the Refugee Review Tribunal upholds. That is to be scrapped and replaced with a team of bureaucrats, sitting in closed offices, subject to the direction of government and lacking the institutional independence of the Refugee Review Tribunal. That would mean that the government would take control of the review processes, when administrative decisions—as we all know, because of the representations we all have to take—have so often been demonstrated to be incorrect. The proposition that you have been asked to endorse is a 'trust me, trust the government' approach to justice. That is fundamentally contrary to the principles of the way in which our legal system is operated in this country. Rights and obligations of asylum seekers should not be at the mercy of executive government. Asylum seekers are entitled to a fair and independent, a transparent and credible, forum to have their claims assessed properly. That is why Labor senators will be opposing schedule 4 of this bill.