Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) Share this | Hansard source

I thank all senators who have contributed to this debate. The Administrative Review Tribunal and Other Legislation Amendment Bill 2025 supports the tribunal to deliver efficient and high-quality reviews of government decisions. The bill enhances the tribunal's powers and procedures so that merits review processes are proportionate and efficient. Efficient and timely decision-making is particularly important in the context of the tribunal's review of migration decisions, such as reviews of decisions to review visas.

Delays in decision-making can cause backlogs, which creates an access-to-justice issue for genuine visa applicants while incentivising non-genuine applicants to apply for a merits review in order to extend their stay. The bill supports the tribunal by expanding its ability to make decisions based on written materials without holding an oral hearing. The government has considered the report of the Senate Legal and Constitutional Affairs Legislation Committee following the inquiry into the bill. The government agrees with recommendations 1(b) and 2 of the committee's report and will be proposing amendments to the bill to implement those recommendations.

The bill itself would amend the Migration Act 1958 to require the tribunal to make decisions without conducting an oral hearing in reviews of certain migration decisions—specifically, decisions to refuse to grant a student visa. Subject to the passage of government amendments, the new procedure would only apply to reviews of temporary visa decisions prescribed in regulations. The proposed amendments give effect to recommendation 2 of the committee's report. The committee recommended 'that the government consider amending the bill to require a decision to refuse to grant a student visa to be prescribed in order to be an "application to be reviewed on the papers"'. The government's intention is that student visa refusal matters will be the first visa type prescribed to be subject to this process.

Reviews of temporary visas such as student visas are suitable to be determined on the papers, and that's having regard to a couple of things: the nature of the issues of the review, the short-term nature of these visa times, and the low volume and complexity of relevant materials. Applications would still be required to be reviewed on the papers. They 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 having to hold an oral hearing. That means that the applicants would be given the opportunity to present their cases in writing. There would be no limit on the information that they would be able to present to the tribunal to support their case.

Key features of this review procedure include requiring the tribunal to invite an applicant to give the tribunal written submissions and evidence on certain matters relating to the issues under review; requiring the tribunal to give certain information to an applicant and allow the applicant to comment on it; enabling an applicant to request the department to provide access to material given to the tribunal for the purposes of the review; retaining the tribunal's ability to request or obtain additional documents or materials by other means; and requiring the tribunal to make its decision after considering any submissions, evidence and comments given by the applicant and any other material that's given to the tribunal without holding an oral hearing.

The bill would also amend the ART Act to give the tribunal additional flexibility to make a decision based on written materials and without holding an oral hearing in relation to other kinds of cases. The tribunal would be able to do so if it appears to the tribunal that issues can be adequately determined in the absence of the parties and it would be reasonable in the circumstances to make a decision without holding a hearing. This new discretion recognises that whether procedural fairness requires an oral hearing will depend on the circumstances of each case. It 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 party's submissions into account.

The government will propose amendments that would implement recommendation 1(b) of the committee's report. The committee recommended that the government consider, in consultation with the ART, 'amending the bill to further improve the operational efficiency of the tribunal'. These amendments would give effect to the recommendation by enabling a non-judicial deputy president to be appointed to act as the president when the president is absent or unable to perform the duties of the office for a period of up to three weeks. The committee also recommended that the government consider, in consultation with the ART, amendments that might assist the president to better and more efficiently carry out their functions—for example, by expanding the powers that may be delegated to a deputy president.

The government proposes amendments that would enable the president to delegate certain powers related to the management of member performance and conduct to non-judicial deputy presidents. It is appropriate for non-judicial deputy presidents to be able to exercise these powers in association with their existing functions for the management of member performance and conduct. The government has considered the committee's recommendations that the government consider amendments that would give the tribunal greater flexibility to provide oral instead of written reasons while ensuring that the tribunal is required to provide written reasons if a party to a proceeding requests them. The government will further consider and consult on this recommendation.

The government has also considered dissenting reports through the committee process, and the government disagrees with the recommendations in those reports. Recommendation 2 of the dissenting report from the Australian Greens is that the government restore legal funding for applicants in the ART for review of migration decisions. The processes and procedures of the tribunal are designed to promote an informal, less-adversarial tribunal environment to reflect that a large number of applicants across this varied jurisdiction are self-represented. Recommendation 3 of that report also recommends that the Department of Home Affairs urgently review its decision-making procedure to allow for natural justice for applicants, including an express opportunity to provide evidentiary material to reduce the unreasonable case load of the ART. I can say that the department is taking steps to support continuous improvements in its decision-making processes. This includes implementing recommendations of the Commonwealth Ombudsman, learning from a merits review report in relation to incorporating tribunal outcomes in continuously improving processes.

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