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

by leave—I move government amendments (1) to (3) on sheet GJ111 together:

(1) Schedule 1, item 9, page 5 (lines 23 to 24), omit "relates to a refusal to grant a student visa or another decision", substitute "is for review of a decision relating to a temporary visa, and is".

(2) Schedule 1, item 16, page 7 (lines 9 to 12), omit paragraphs 367C(2)(a) and (b), substitute:

(a) the decision is a decision relating to a temporary visa; and

(b) the application is of a kind (if any) prescribed for the purposes of this subsection.

(3) Schedule 1, page 15 (after line 13), at the end of the Schedule, add:

Part 3 — Other amendments

Administrative Review Tribunal Act 2024

22 Subsection 212(2)

After "President" (first occurring), insert "in the circumstances mentioned in paragraph (1)(a) (vacancy in the office of President)".

23 After subsection 212(2)

Insert:

(2A) A person must not be appointed to act as the Presidentin the circumstances mentioned in paragraph (1)(b) (absence, etc.) unless:

(a) either:

(i) the person is qualified, as mentioned in subsection 205(3), to be appointed as the President; and

(ii) the Minister has consulted the Chief Justice of the Federal Court; or

(b) the person is a member who is a Non-Judicial Deputy President.

(2B) An appointment of a member who is a Non-Judicial Deputy President to act as the President as mentioned in paragraph (2A)(b) must not be for a period of more than 3 weeks.

24 Subsection 212(7)

Repeal the subsection, substitute:

(7) The extension must not be for more than:

(a) unless paragraph (b) applies—12 months; or

(b) in the case of a Non-Judicial Deputy President appointed to act as the President as mentioned in paragraph (2A)(b)—3 weeks.

25 After paragraph 279(2)(a)

Insert:

(ab) other than in accordance with subsection (2A)—a function or power under section 200 (giving directions) or subsection 203(3) (restricting member's duties); or

26 Subsection 279(2) (table items 8 and 11)

Repeal the items.

27 After subsection 279(2)

Insert:

Functions and powers that may only be delegated to a Non-Judicial Deputy President

(2A) The President may, in writing, delegate the President's functions or powers under section 200 (giving directions) or subsection 203(3) (restricting member's duties) to a member who is a Non-Judicial Deputy President.

I also table the supplementary explanatory memorandum relating to the government amendments which I have moved to the Administrative Review Tribunal and Other Legislation Amendment Bill 2025.

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

I ask that, when we get to the vote, amendment (3) be put separately to (1) and (2).

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

The amendment refines the original bill by replacing references to student visas with temporary visas for decisions to be reviewed on the papers. In doing so, it broadens the scope to include temporary visa refusals rather than restricting it to student visas only. It also allows for prescribing of additional types of decisions eligible for on-the-papers review. The amendments also introduce provisions to assist the president in their functions, including rules for acting appointments and delegation of powers to non-judicial deputy presidents. The opposition supports measures that make the review system faster, fairer and more efficient.

By embracing on-the-papers review, the ART can direct its limited resources to matters that genuinely need oral examination while resolving simpler disputes promptly. However, as noted in the Senate inquiry report, there are concerns about delegating power to expand on-the-paper reviews via regulation rather than by legislation. Any future extension beyond student and temporary visas should be subject to clear consultation, transparency and disallowance. Parliament, not the executive, should determine when the right to an oral hearing is limited.

This bill serves as an admission that the opposition has been right all along on the ART. It acknowledges Labor's failure in replacing the AAT with the ART, which was promised to be faster and more efficient. Instead, under Labor, the ART has become slower, more expensive and overwhelmed by a record backlog, with case times ballooning and the case load growing significantly. The bill acknowledges that Labor's changes have not delivered the promised reforms, and the system is now struggling.

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

I note the summary provided by Senator Kovacic, and I agree with the factual summary about the effect of these amendments. Amendments (1) and (2) remove the express reference to student visas from the bill and, instead, give a broad regulation-making power to expand the types of matters that can be decided in the ART on the papers. The history shows that both Labor and the Liberal Party will use that power to expand the number of matters and the classes of cases that will lose the right to an oral hearing and be determined only on the papers. Given that both Labor and the Liberal Party are of one mind about removing the rights, the pretend protection by putting it in the regulations is no protection at all.

The Greens will be opposing government amendments (1) and (2) for the clear reasons we said in the contribution in the second reading. People should have a right to an oral hearing. Oral hearings are important for justice. We keep hearing the refrain of 'faster, fairer and more efficient'. Well, it might be faster in the first place, but it sure as heck isn't fairer, and, by the time you take into account judicial reviews and the broader unfairness in the system, it sure as heck won't be more efficient at the end of the day. Amendment (3) gives some greater flexibility to the president to delegate powers. The rationale for that was set out in the report, and we don't oppose amendment (3).

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

If there are no further contributions from senators on those amendments moved by Senator Green, I will put the question as per Senator Shoebridge's request. I will put the question on amendments (1) and (2) on sheet GJ111 separately, and then we will come to amendment (3).

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet GJ111 be agreed to.

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

The question now is that amendment (3) on sheet GJ111 be agreed to.

Question agreed to.

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

by leave—I move amendments (1) and (2) on sheet 3527 and amendment (1) on sheet 3528, circulated in my name, together:

SHEET 3527

(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".

(2) Page 2 (after line 12), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.

Timing of review

(2) The persons conducting the review must complete the review before the end of the 3-year period staring on the day this section commences.

Minister to be given report of review

(3) The persons conducting the review must give the Minister a written report of the review.

Minister to table copy of report of review

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

_____

SHEET 3528

(1) Schedule 1, item 16, page 7 (after line 20), after paragraph 367C(3)(a), insert:

(aa) the President of the ART notifies the following, in writing, that the President considers that in all the circumstances Division 4 ought to apply in relation to the application instead of this Division:

(i) the applicant;

(ii) the decision-maker;

(iii) any other person who is made a party to the proceeding for the review by an Act or an instrument made under an Act; or

Minister, I'm interested in your view on having an independent review of the operations of those amendments. What is the government's position?

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

While we appreciate the arguments that you quite often make about reviews of certain legislation, the government will be opposing this amendment.

With respect to these reforms, it may give you comfort to hear that the ART regularly publish data on case loads and are accountable to the parliament through Senate estimates—they will appear next week. These processes provide clear insight into the effectiveness of these measures, both on managing the tribunal's case load and supporting access to merits review that is quick, informal and effective. The government also notes that the Administrative Review Tribunal Act already contains an independent statutory review at section 294A, which states:

The review must start within the 3 months before the fifth anniversary of the commencement of this Act.

Finally, the Administrative Review Council, which was re-established by this government, serves to provide continued scrutiny of our system of administrative law. The ARC is already reviewing migration related provisions of the ART Act. On this basis, there is clear scrutiny of the tribunal, and it's enabling our legislation. The government considers it is unnecessary for there to be a further statutory review on top of this scrutiny.

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

The amendment on sheet 3528 would allow the president of the ART to determine that an oral hearing should be held in student visa matters where fairness, complexity or individual circumstances warrant it. This would better balance the need for fairness with the need for faster decisions. Will the government support this amendment? If not, why not?

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

The government will be opposing this amendment. The government considers that review on the papers is an appropriate and proportionate method of review for temporary visa refusal matters. Having a standard process for these matters, particularly student visa matters, ensures there is certainty and consistency in how the tribunal deals with this high-volume cohort.

Giving the president discretion to exempt individual matters would likely result in a high number of applications to the president for that exemption, which would be time consuming and undermine the efficiency gains of this new process. Further, an applicant could seek judicial review of the president's exercise of discretion, or their failure to exercise discretion, in relation to this case. This would likely give rise to significant litigation and further delays in the resolution of matters.

Importantly, the bill already gives the Governor-General the ability to make regulations to proscribe certain types of applications, which would be exempted from the on-the-papers process. This gives the government flexibility to adapt these new procedures if it becomes clear, based on operational experience, that hearings would be preferable for certain cohorts.

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Stronger Families and Stronger Communities) Share this | Link to this | Hansard source

The opposition does not support this amendment, which introduces mandatory, independent review of the operation of the amendments made by the bill within three years of commencement. The opposition is concerned it will add additional administrative burden on an already stretched ART.

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 3527 and amendment (1) on sheet 3528 be agreed to.

Slade Brockman (WA, Deputy-President) Share this | Link to this | Hansard source

We will now move on to senators' statements.