Second Reading Speech - Administrative Review Tribunal (Miscellaneous Measures) Bill 2024

I rise to speak on the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024. This bill is yet more evidence, should any be required, that the Attorney-General is simply not very good on administrative detail. This is the Attorney-General's third attempt at putting in place adequate legislation to abolish the Administrative Appeals Tribunal and replace it with the Administrative Review Tribunal.

His first attempt was almost a full year after he first announced he was going to do it. He introduced the first two bills in December 2023. That was the first attempt, but he was a bit sloppy, and he didn't quite get it right. Just two months later he had to have another go. In February this year he made his second attempt. He introduced another bill which made changes to the first one. He then made a deal with the Greens to try to limit scrutiny of the legislation and push it through with a degree of urgency. But, again, he'd been a bit careless—a little bit hazy on the details. The fact is that the Attorney-General is pretty hopeless without an instructing solicitor.

Now we're on to attempt No. 3, the so-called miscellaneous measures bill. This is legislation that amends attempts Nos 1 and 2. There is a certain irony to this attempt, because the legislation he passed through his first and second attempts has not yet even commenced. The government has announced that the Administrative Review Tribunal will now commence on 14 October. Clearly, at some point in the winter break, after he'd rushed off to Government House for the royal assent and announced a commencement date, the Attorney-General must have had the horrible realisation that there were yet further problems in the legislation that he'd drafted. Suddenly, the Attorney-General was in a great rush to introduce legislation to make yet further changes. We know he wants this bill to pass before the Administrative Review Tribunal is up and running. Presumably, this is to prevent his mistakes from spawning even bigger problems. The net result is that the Attorney-General, the member for Isaacs, is now racing to clean up his own mess before he hits his own deadline.

Perhaps the Attorney-General should have paused to take a breath and to try to get things right the first time. Better still, perhaps he should have practised what he certainly loved to preach in opposition and tried some proper parliamentary scrutiny and openness. If we'd had a proper inquiry, instead of the sham process that the Attorney-General foisted on the parliament, perhaps the issues in this bill would have been identified and addressed properly at the time. We'll never know. It is worth spending a few minutes reflecting on what exactly this bill is trying to achieve. This bill is part of a package of legislation that is intended to abolish the Administrative Appeals Tribunal and replace it with the Administrative Review Tribunal. As the shadow Attorney-General said in the other place, debate on this package of legislation should be framed by asking two simple questions: what did Australians have before these Administrative Review Tribunal bills, and what will they get afterwards? Before the Administrative Review Tribunal bills Australians had an administrative tribunal that reviewed government decisions. After the Administrative Review Tribunal bills Australians will get an administrative tribunal that reviews government decisions—oh, at a cost of $1 billion.

Before those bills Australians could apply for merits review of a government decision that affected them. Afterwards Australians can apply for merits review of a decision that affects them. Before the Administrative Review Tribunal legislation we had a body of tribunal members, roughly half of whom were appointed by a Labor government. Afterwards we will have a body appointed entirely by a Labor government. What we've learnt from the whole grandstanding palaver of the Attorney-General's approach to this issue is it would seem that the letter R is the most expensive letter of the alphabet, because the budget papers make it very clear that the change from the AAT to the ART is costing Australian taxpayers $1 billion. This may just be the most expensive recruiting and rebranding exercise in Commonwealth history. 

The coalition has repeatedly said that we are not opposed in principle to reforms to Australia's system of administrative review. We have said that we recognise there are areas where there's a legitimate need for reform and that improvements could be made. The question we now have for every Australian taxpayer, a question brought to the forefront of our collective minds—and it certainly should be—by this bill, is: do taxpayers think it is worth spending $1 billion of their money to establish a new body that does the same thing as the old body did? It's a question that every Australian mum or dad who's having to stretch to pay their insurance or power bills might want to turn their mind to. It's a question that every Australian who has a mortgage and who knows that the Albanese government's reckless spending is fuelling inflation and keeping interest rates higher for longer might want to turn their mind to. 

Indeed, there are other questions we could ask. What is it about changing a single letter on the letterhead and replacing half a cohort of tribunal members that is worth $1 billion of taxpayer money? For every member in this place—and I suggest that is every member—who cares about women's safety, why is it better to spend hundreds of millions of dollars on a new tribunal rather than having that money going directly to women fleeing domestic violence? For members from Western Australia, particularly Labor members, an obvious question is: why would you support spending more money on a new tribunal than is being spent on the transition for the live sheep export industry? For every member of this place who values good process, an obvious question is: why is it acceptable that the sloppiness and repeated patch jobs from the Attorney-General are taking up so much of the precious time of this parliament? 

What are the pressing issues in this bill on which the Attorney-General wants us to legislate with urgency? Let me quote from the explanatory memorandum:

… The Bill would make further amendments to 52 Commonwealth Acts (including the ART Act), to update references to—

the Administrative Appeals Tribunal—

in legislation that has passed or been introduced to Parliament since the introduction of the ART Act and to make technical amendments to support the efficient conduct of Tribunal review and ensure the legislation operates as intended.

To be clear, we are amending the bill this parliament passed in May this year and which has not yet commenced. We are making changes, by way of the bill that is now before the parliament, to 52 acts. If we are to do our best to reflect positively on the Attorney-General's dismal performance, it must be acknowledged that at least he is doing better than he did at earlier stages of this farcical and convoluted procedure. After he introduced the primary Administrative Review Tribunal bill, the Attorney-General introduced two tranches of consequential amount legislation. His first consequential amendments bill changed 138 acts, his second consequential amendments bill changed 110 acts, and this time he's down to 52. It may be that when he next rushes in here, urgently demanding that we legislate to fix up some other mistakes that he discovers, we may be asked to deal with just 10 or 20 different acts of the Commonwealth parliament. We will simply have to wait and see what further the Attorney-General may be desperately seeking the assistance of this House to deal with.

The coalition would probably have a little more sympathy for the Attorney-General if this were not a problem that he insisted on creating for himself. As we said, when the first three bills were rushed through the parliament after the Attorney-General did a grubby deal with the Greens, at that time what was before the parliament was 692 pages of new primary legislation and 760 pages of explanatory materials. Those bills were intended to directly affect the 67,000 or so cases which at that time were before the Administrative Appeals Tribunal. The Senate inquiry into those bills was a perfunctory process. It was a Labor-dominated committee. It permitted just six hours and 55 minutes of committee hearings. This committee was prepared to spend less than a single day of work examining the legislation to establish the Administrative Review Tribunal. That equates to less than 40 seconds per page of legislation. It is hardly surprising, then, that the committee failed to pick up some obvious errors in the bill. As a piece of work, it was rushed, sloppy and unimpressive.

It is worth mentioning some of the specific technical changes in this bill, because they do highlight the point about sloppiness. A central responsibility of the Administrative Appeals Tribunal is dealing with migration and protection visas. One of the key issues corrected by the bill now before the House also relates to migration and protection visas. Of the 76,514 matters before the Administrative Appeals Tribunal as at 31 July this year, 66,241 of them are in the migration and refugee division. In other words, it is 87 per cent of the Administrative Appeals Tribunal's current caseload. You would think, therefore, that the Attorney-General would take the time to get this right before rushing ahead.

It's worth pausing to examine these numbers in a bit more detail. The Attorney-General's amendments abolishing the Administrative Appeals Tribunal and establishing the Administrative Review Tribunal passed the parliament on 28 May this year. Government statistics show that, just three days later on 31 May this year, the Administrative Appeals Tribunal had 69,312 cases on hand, with a median time to finalise of 38 weeks. In the two short months since the Attorney-General passed his reforms—trumpeting efficiency amongst other things—as of 31 July 2024 the caseload was sitting at 76,514 cases on hand, with a median time to finalise of 53 weeks. Since the Attorney-General's reforms, the performance of our administrative review system has gone materially backwards. The Attorney-General, in just two months, has increased the backlog by more than 10 per cent and has increased the wait time by almost 40 per cent, adding an extra 15 weeks to the time required to hand down a decision. It will now take you more than a year to get an answer out of the Administrative Appeals Tribunal.

Let me highlight the substantive issue here in dealing with the migration and refugee division of the Administrative Appeals Tribunal, an issue which will shortly affect the equivalent jurisdictional area in the Administrative Review Tribunal, and that is whether or not the tribunal has jurisdiction to hear a matter, whether a review application becomes another case that adds to the tribunal's burgeoning workload or not. The amendments in part 12 of the bill now before the House reveal a potential problem in the Administrative Review Tribunal legislation in relation to this particular critical issue. You might very well think that one of the first issues you'd want to be clear about in establishing a new review body is exactly which cases it has to deal with. That would particularly be so if you are talking about the area of jurisdiction which makes up 87 per cent of the tribunal's workload. Apparently, though, that did not happen. It is worth reading directly from the explanatory materials for the provision of the bill which amends subsection 348(2) of the Migration Act, which concerns the jurisdiction of the Administrative Review Tribunal to review migration and protection decisions.

To be clear, we are not talking about the version of section 348 of the Migration Act that the coalition drafted and that is currently in force. We are instead talking about changes to the version drafted by the Attorney-General which were rammed through the parliament in May and which are due to become law on 14 October this year. The Attorney-General, during his winter break, as I referred to earlier, evidently realised there was a problem with his drafting, and so he is now moving to fix it in item 119 of the bill before us today. The explanatory materials state as follows:

226. This item repeals and replaces subsection 348(2) of the Migration Act to explicitly state that the Tribunal must not review an application made under sections 347 and 347A of the Migration Act that is not properly made. The effect of this amendment is that the Tribunal will not have jurisdiction to review an application made under Part 5 of the Migration Act if it is not properly made. This sits alongside existing subsection 348(1) which provides that the Tribunal must review an application which has been properly made. Together, these provisions put beyond doubt how the Tribunal is to deal with applications for reviewable migration decisions and reviewable protection decisions.

What is the effect of these changes? It certainly sounds as if there were significant doubts about whether the tribunal was required to hear a case or not. It sounds as if the tribunal might have been required to review an application even if the application was not properly made. That is the risk that this provision in the bill seeks to close off. You do not have to be a genius to realise that, if a tribunal is forced to review applications that are improperly made, you are potentially creating a very big loophole. You may be creating a pathway for people to remain in Australia simply while their case is resolved, simply by lodging an incomplete or incorrect application. If you were in a position where you were told that simply by lodging paperwork even if it is incorrect you could stay in Australia for an extra 53 weeks, you might very well decide that it is a good idea to lodge that paperwork even if it was incorrect. Is this what we are dealing with here? We simply do not know, but it warrants careful examination.

The government may wish to describe this bill as containing simply technical and machinery provisions, but time and time again the coalition have learnt, through experience, that we cannot trust this government and this Attorney-General to get the basics right. This bill requires scrutiny, and the opposition intends to examine this bill in detail to help the Attorney-General help himself. I thank the House.