David Pocock (ACT, Independent) Share this | Hansard source

I rise to speak on the Administrative Review Tribunal and Other Legislation Amendment Bill 2025. I want to recognise the contribution of colleagues in this debate and the very important points raised by both Senator Shoebridge and Senator Scarr.

At its heart, this bill engages with the question of how we balance efficiency in government decision-making with fairness, accountability and access to justice for individuals. The ART is the place people can turn to when the power of the state has been exercised against them and they believe a decision is wrong. For many Australians and the many citizens of other countries living in Australia, it is the final opportunity to be heard. The ART reviews decisions that affect every aspect of people's lives—visas, social security, disability support, veterans' entitlements, workers' compensation and more. These issues determine whether someone can stay with their family, continue their studies, access support or remain in work. When we change how the tribunal operates, we change how justice is delivered in this country.

The tribunal was established barely a year ago, following the abolition of the deeply flawed AAT. I welcomed the decision to abolish the AAT on the basis that it had been deeply infected by political appointments and so had lost public trust. The promise of the ART was clear—a system that was more independent, more transparent and, importantly, more accessible. It was meant to restore confidence in merits review and to put fairness back at the centre of administrative justice.

The problem this bill seeks to address is very real. The tribunal is facing an extraordinary backlog. Delays are long and growing. People are waiting months and sometimes more than a year for decisions that shape their futures. An old idiom rings true here: justice delayed is justice denied. A significant driver of this backlog is the surge in student visa appeals, which now account for roughly 40 per cent of all applications before the tribunal. These delays impose real costs on students, whose lives are put on hold; on families and employers living with uncertainty; on universities and businesses; and on the public purse. The status quo is clearly unacceptable and needs to change. So I welcome the intent of this bill, and I understand the desire to improve efficiency, reduce backlogs and improve the integrity of our migration system.

But efficiency is not a value that exists in isolation. It must be considered in light of the need for fairness, and speed shouldn't come at the cost of fairness. The changes made by this bill represent a substantial shift away from oral hearings and towards paper based decision-making, particularly in migration matters. In many cases, deciding matters on the papers will be entirely appropriate. Written processes can be faster, cheaper and less intimidating. They can help the tribunal deal with the high volumes of straightforward cases more efficiently. The tribunal should absolutely have the flexibility to use these tools where they make sense. But a blanket removal of oral hearings for entire classes of cases raises serious concerns.

Almost half of student visa decisions reviewed by the tribunal are overturned. That alone should give us pause. What I take it to show is that these decisions are not always straightforward. Student visa applications are frequently by young people. Many are navigating complex legal processes for the first time, often without legal representation. Many people do not have English as their first language, and oral hearings allow tribunal members to ask questions, clarify evidence and ensure applicants have a genuine opportunity to present their case.

There is also deeper issue at stake here: who decides how justice is delivered, and executive overreach. The power to expand paper-only decision-making to other visa classes is left to the minister through delegated legislation. That's an extraordinary amount of discretion over a fundamental feature of the tribunal's operation. Decisions that remove the right to be heard should not be made by regulation as a matter of administrative convenience. They go to the design of the system itself. They should be determined by parliament. They should be subject to debate like this and subject to amendments, with, ultimately, the parliament deciding. This should not be up to the executive. I think we are seeing a worrying trend of the executive giving itself more and more powers in this country. From talking to people I represent here in Canberra, they recognise this trend, they're concerned about this trend and they would like the government to not continue down this path.

While recognising the need to reduce the backlog, we should also be honest about the broader risks. If people feel that they have not been given a fair hearing, they are more likely to seek judicial review, as has been pointed out in this debate. So there is a risk that the changes will shift the burden to the courts, increasing costs and prolonging uncertainty. We've seen this before. Paper based systems that prioritise speed over fairness often end up slower and more expensive in the long run.

In case this bill does not get a committee stage, as unfortunately we're increasingly seeing with this government, I want to foreshadow that I will move two amendments. The first would allow the president of the Administrative Review Tribunal to determine that an oral hearing should be held in student visa matters where fairness, complexity or individual circumstances warrant it. This approach—put forward by the member for Curtin, Kate Chaney, in the House of Representatives—preserves efficiency as the default while restoring discretion where justice demands it. The second amendment would introduce a statutory review of these changes. This was proposed by the member for Warringah, Zali Steggall, in the other place. It would require parliament to revisit the operation and consequences of these amendments after a set period, and that matters. The ART is a new institution. We should not be locking in structural changes without committing to review their real-world impact.

These amendments are not radical proposals. They do not undermine the purpose of the bill. I believe they strengthen it. They recognise that good policy is adaptive, evidence based and accountable, and I encourage colleagues to support these changes. Ultimately, this debate is not about being for or against efficiency. It is about recognising that administrative justice is not just a processing function. The speed of decisions must be improved and backlogs must be reduced, but, if we hollow out fairness in the name of speed, then we erode trust, not just in the tribunal but in government itself. I hope the government will engage constructively with these amendments, which they have seen in the House. There is an opportunity to improve the functioning of the tribunal without risking the principles it was created to uphold.