House of Representatives

Second Reading Speech

Mr DREYFUS (Isaacs - Attorney-General and Cabinet Secretary)

I move:

That this bill be now read a second time.

The Administrative Review Tribunal (Consequential and Transitional Amendments No.1) Bill 2023 supports the establishment of the new Administrative Review Tribunal (Tribunal), which will be created by the Administrative Review Tribunal Bill 2023 (the ART Bill).

It makes consequential and transitional amendments to 138 Commonwealth acts, covering approximately 93 per cent of the tribunal's caseload. Those amendments are needed to effectively implement this significant reform.

Further technical amendments will be required to approximately 120 acts which refer to the AAT, and these will be introduced in parliament as soon as possible. Decisions under these other acts collectively account for approximately seven per cent of the AAT's jurisdiction by caseload.

Abolishing the AAT

The consequential and transitional bill repeals the AAT Act and other legislative provisions that provide for the operation of the Administrative Appeals Tribunal. The Administrative Review Tribunal, established by the ART Bill, will replace it.

Consequential amendments

The bill contains consequential amendments to acts in 14 Commonwealth portfolios. These include Social Services, Treasury, Veterans' Affairs and Home Affairs, as well as matters affecting the National Intelligence Community.

The changes in this consequential and transitional bill focus on addressing the highest-volume caseloads within the tribunal and the most complex consequential amendments. They also make simple but essential reference changes.

Migration Act

The Migration Act will be amended to harmonise and improve the review process for migration and protection visa applicants. To provide for more effective and efficient reviews, the exhaustive statement of the natural justice hearing rule will be adjusted so that it applies in limited, critical, areas.

The Immigration Assessment Authority, which provides a 'fast track' style of review for certain protection visa applicants, will be abolished. These applicants will have their matters reviewed in the same way as any other protection visa applicant.

The reform significantly standardises the availability of tribunal powers and procedures for migration and protection matters, supporting consistency and collaboration across the tribunal. This includes the ability to hold directions hearings, case conferences and to use broader dismissal powers, directions powers and summons powers. Administrative and procedural tasks will be able to be delegated to registrars and staff.

It is no secret that the Migration and Refugee Division of the AAT is beset by delays. The Nixon report found that these delays were 'motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection'. This has come at a cost to people in genuine need of protection and to the broader Australian community.

Together with the changes introduced by the Administrative Review Tribunal Bill 2023 and the government's recent appointment of over 90 additional members, the changes to the Migration Act in this consequential and transitional bill will give the tribunal the tools it needs to swiftly resolve unmeritorious applications that cause delays in the migration system without sacrificing fairness for genuine applicants.

Social Services and NDIS

The consequential and transitional bill provides for a more flexible, robust and fit-for-purpose style of review for social security and child support decisions. Among other things, the amendments reflect the fact that the new guidance and appeals panel will be able to hear social security and child support matters on appeal that raise a significant issue in administrative decision-making or where the decision of the tribunal may contain a material error. In light of the new structure, social security and child support matters will be triaged from the outset, and resolved according to the complexity of the matter and whether the participation of the decision-maker will assist its effective and efficient resolution.

The consequential and transitional bill also updates references in the National Disability Insurance Scheme Act, to ensure reviews of these decisions can continue in the new tribunal. The new tribunal is focused on flexible, informal and accessible reviews, and has the power to appoint practitioners - where needed - to assist people with disability. The tribunal is expressly required to promote accessibility in proceedings, ensuring that parties can effectively participate, and be responsive to the diverse needs of parties to the proceedings.

Treasury portfolio

A range of modifications which currently apply for taxation and charity matters in the AAT will be retained to, among other things, protect tax revenue collection, and to uphold longstanding core tax principles and practices. For example:

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mandating private hearings to protect taxpayer confidentiality,

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retaining rules which require the initial lodgement with the tribunal of all documents that are necessary to the review (rather than all documents relevant to the review), and

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maintaining rules which provide that the applicant has the burden of proof for tax and charity matters, to ensure the workability of such proceedings and consistency with Australia's tax system being based on self-assessment.

Veterans' reviews

The arrangements for veterans' matters that currently apply in relation to the AAT are retained in the context of the new tribunal, including the ability to seek review in the tribunal following consideration by the Veterans' Review Board. Given the complex nature of the issues relating to the determination of liability and compensation, modifications such as application time limits will continue to apply, to ensure veterans and their dependants are not disadvantaged. Provisions setting out protections for matters involving national security information are contained across various acts and will be harmonised to ensure clarity.

Transitional amendments

The consequential and transitional bill also facilitates the smooth transition from the AAT to the new tribunal.

The bill makes provision for institutional and corporate arrangements, such as the transfer of staff, assets, liabilities and records from the AAT to the new tribunal. The bill provides that all ongoing and non-ongoing staff will transfer to the new tribunal.

It provides clarity by ensuring that applications that have already been made to the AAT, or proceedings already in progress, will automatically transfer to the new tribunal when it commences operations. Parties with matters in the tribunal at the time of transition will be notified, and will not need to reapply to have their matter continue.

AAT members who are judges will have their appointments transferred to the ART. Moreover, AAT members (including the President) who have been appointed since 1 January 2023 through a transparent and merit based selection process will also transition to the tribunal for the remainder of their terms.

All other current members have been given the opportunity to apply for roles in the new tribunal through the merit based appointment process that has already commenced.

Current full-time AAT members who are appointed to the new tribunal and whose appointments would have continued beyond the commencement date will have their remuneration preserved at their current AAT rate for up to four months, unless their remuneration would be higher in the ART.

Current full-time members who are not appointed to the new tribunal and whose appointments would have continued beyond the commencement date of the new tribunal will be paid an amount equivalent to up to four months of their current salary.

This arrangement ensures that compensation payments are fair and reasonable but not excessive.

Conclusion

The consequential and transitional provisions bill makes essential consequential amendments to legislation across the Commonwealth, and outlines robust transitional arrangements needed to support the smooth establishment of the new Administrative Review Tribunal.

It also harmonises, streamlines and enhances the operation of provisions across a range of jurisdictional areas, simplifying the process for applicants and promoting a more efficient, accessible and cohesive tribunal.

I commend the bill to the House.

Debate adjourned.