Senate debates

Thursday, 28 July 2022

Committees

Legal and Constitutional Affairs References Committee; Report

4:02 pm

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

I move:

That the Senate take note of the Legal and Constitutional Affairs References Committee report entitled The performance and integrity of Australia's administrative review system.

This is not my first speech. It's a basic principle of law that decisions should be made on the merits of the case and by applying the law to the evidence and the evidence to the law. It is pretty clear not just from this document but from other material in the public domain that the AAT is failing on this principle. It is also a basic principle of good governance—or it should be—that appointments, particularly appointments to senior and influential positions, are made on merit. The AAT, in its current form, is failing on that principle.

The outcome of a case shouldn't depend on which tribunal member hears it; it should depend upon the facts and the law. But, in the AAT, it does depend on which member you draw. Research published in the Saturday Paper examined more than 18,600 AAT decisions in relation to protection visas. This ranged over a more than five-year period from 1 January 2015 until mid-May 2020. What did that research show? It showed that, of members who had considered more than 50 cases—so the analysis was done only where there was a statistically sufficient sample—one member did not find in favour of a single person seeking protection. Not one case!

Fifteen members found in favour of less than five per cent of the cases that came in front of them, while three members approved more than half and one member approved some 86 per cent of cases.

It's hard to imagine what it would be like to be a person seeking protection from this country, after often receiving appalling mistreatment from the country they've fled from, to come to a country that's meant to be under rule of law and that protects human rights. You finally get to the tribunal. You rock up to court after, sometimes, two or three years of delay, and when you get to the court your lawyer turns around and says, 'Well, actually, do you know what? You can't win this case.' You've got nought per cent chance of winning this case. And it's not about the facts. It's not about the law. It's because you've drawn Joe Bloggs, who's going to slot you. And he or she does it every single time. That's not a justice system, that's a lottery.

The Grattan Institute's analysis of the AAT gives some insight into why this is happening. It showed that, of the 320 members of the tribunal that it had reviewed at that time, 22 per cent had an overt and direct political affiliation. Of course, you add to that the spray of appointments that the former coalition government made as it was heading out the door, lucrative gifts to very senior mates, and you can see just how politically skewed the AAT has now become. And jobs for the mates compounds the other injustices that people before the AAT have.

In a submission from the AAT—and credit to them for, at least, giving it a go and putting in a further submission—in response to the issue about merit based appointments, they say that the AAT supports merit based appointments; it's just that no such system exists. It is the most politically slanted tribunal in the country.

The coalition's election-eve handout delivered a lucrative senior member position—paid more than the President, is my understanding, of this place—to former New South Wales Liberal minister Pru Goward as well as appointing a former Scott Morrison chief of staff and four other now members of the AAT with direct and overt links to the former coalition government. That's not about justice. It will do nothing to reduce the continued backlogs of the AAT. It's just more jobs for the mates. And it's at the cost of the litigants who appear in front of that tribunal, and it's at the cost of the integrity of the justice system.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Senator Shoebridge, would you resume your seat for a moment, thank you. On a point of order, Senator Scarr?

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

On a point of order. I've been listening very closely to the senator in the context of—

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

What is the point of order?

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

standing order 193(3)—

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Yes.

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

in relation to senators not imputing improper motives to judicial officers, in particular. I was listening very carefully, and I think the senator crossed the line when he referred to Pru Goward and to another judicial officer by name. I would ask him to withdraw those reflections of improper motives.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Thank you very much, Senator Scarr. I have been listening very carefully, and I do acknowledge that there were some comments that were negative about the AAT. I don't know that they were mentioned in the context of those particular names simultaneously. Nonetheless, I believe it would be of assistance to the chamber if you were to withdraw, Senator Shoebridge.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

Could I speak to the point of order?

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Yes, you have the call.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

I was impugning the motives of the government that made the appointment, which I maintain. But, to make it clear, I am in no way impugning, and, to the extent there was any imputation—

The ACTING DEPUTY PRESI DENT: If you could hold it there, Senator Shoebridge.

taken, I withdraw any imputation against the member.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Thank you, just hold on. I want to be clear. This is not a time for debate. But you have the option to make a point of order, and now you have declared that you are withdrawing. Is that correct?

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

I want to make it clear that I withdraw any imputation against the member.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

You don't need to make a speech about it in this place. Just 'I withdraw' will suffice. If you could do that for me, Senator Shoebridge, that would be very helpful.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

Indeed, I withdraw any imputation against the member.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Thank you. You may continue your remarks. You have 33 seconds remaining.

David Shoebridge (NSW, Australian Greens) Share this | | Hansard source

It is clear that the AAT is cooked. It is clear that it is one of the most highly politicised tribunals in the country, if not the most politicised tribunal in the country, and this is largely as a result of 10 years of overtly politicised appointments by the former coalition government. It is the task of this parliament and the new government to reverse this, not just for the individuals but for the status— (Time expired)