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FOR – Bills — Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023; Consideration in Detail

Kylea Tink

I rise to speak to amendment (1) as circulated in my name. The package of bills moved through this House in the last few days—the Administrative Review Tribunal Bill 2023, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024—will deliver much-needed reform to the Administrative Appeals Tribunal. However, it must be noted that, as it currently stands, the provisions within the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill mean that, ultimately, this reform will fall short of meeting its objective of creating a unified system because of its unequal treatment of migrant and refugee applicants.

Quite simply, because of the provisions in the piece of consequential legislation, some of the benefits sought to be introduced by the overall reform will not apply to the Migrant and Refugee Division. Given the backlog and ongoing work of that division, this means a significant number of the key reforms will not apply to most cases currently seeking redress. It has taken years of advocacy from civil society groups, human rights bodies and refugee and migrant communities to get us to where we are today with this legislation. But we must take it further.

The amendment I am moving addresses the different and unfair time limits that apply for some refugees and migrants seeking an administrative review. It has been put to me by advocates as one of the key elements of the separate procedural code that must change if we are to truly realise just treatment for all.

Indeed, the Refugee Advice and Casework Service submission on the ART Bill sought to draw our attention to the fact that the general rule that provides for 28 days to lodge an appeal will not be extended to those seeking a review from within detention. Rather, these refugees and people seeking asylum would have only seven days to apply for a review of a decision. I want to recognise that this is significantly more than the two days currently provided under the existing AAT. But the truth is that it's still not enough time when, in the majority of cases, we are talking about people who are already facing structural exclusion and intersecting barriers to accessing justice. These barriers include the impacts of trauma, language barriers, mental health issues, financial distress and cultural differences. In the pursuit of equality before the law, any reform to the administrative review processes in this country must account for this. Section 347(5) of the bill stipulates that the power of the ART to extend these deadlines under clause 19 of the bill would also not be applicable to reviewable migration and protection decisions, further excluding applications with a migrant or refugee background from the benefits of this refreshed ART.

This amendment seeks to change that. This amendment, quite simply, removes sections 347(3) through to 347(5) of Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 so that the general timing rule for making an application for review under division 3 of the ART would apply to migration and protection applicants as it does for all others. If Australia is serious about having systems that uphold our human rights obligations, I appeal to the government to take these amendments seriously and strengthen this legislation. In the words of North Sydney constituent and long-time human rights advocate Professor Mary Krock: 'Where it is separate for migration applicants, the code is always more punitive and restrictive than the general ART provisions.'

It is very disappointing that migrants should continue to be treated as persons with inferior procedural entitlements, specifically at a time when almost one in two Australians were either born overseas or have an overseas-born parent. We should stop seeing migrants as less worthy of procedural entitlements just because they are non-citizens. The law should apply equally to all people regardless of race, colour, gender, language, religion, political beliefs, status in society, or any other unlawful reason.

As a nation Australia recognises the following rights and treaties: the right to seek asylum and be free from persecution; the right to equality under the law and equal protection of the law; the right to enjoy the same treatment as a national in matters pertaining to access to the courts; the right in full equality to a fair and public hearing by a fair and impartial tribunal in the determination of rights and obligations; and the right to be recognised everywhere as a person before the law. Ultimately, citizen or non-citizen, all people deserve to be treated with dignity and have their basic human rights respected. We must ensure that this new system is one that delivers on that obligation. I believe this amendment does just that. I commend the amendment to the Attorney-General.

Steve Georganas

Can I remind the member for North Sydney that you are required to move the amendment

Kylea Tink

I move the amendment circulated in my name:

(1) Schedule 2, item 136, page 60 (line 18) to page 61 (line 3), omit subsections 347(3) to (5).

Mark Dreyfus

I take the member for North Sydney's comments to be in large part an endorsement of the approach that the government has taken, which is that the ART bill standardises timeframes for a majority of decisions under the Migration Act. When I stood before to speak to the member for North Sydney's second reading amendment, I explained overall the way in which this works, which is that we have legislation before the parliament which standardises timeframes for the majority of decisions under the Migration Act to the standard ART timeframes for making an application for review, which cannot be less than 28 days.

But there are two exceptions, and I will come to them in a minute. Perhaps this is a reflection of the complexity of government decision-making, but there are reasons for the exceptions, and it is for that reason that the government cannot support these particular proposed amendments. I will endeavour to explain why. The two exceptions are first where a person is in immigration detention, for which the timeframe is seven days. So we're taking the opportunity to increase what was formerly two days for some applications—a pretty short time—to seven days. The other exception is where a person's visa has been cancelled on character grounds: the timeframe for that is to be nine days.

In the government's view is not feasible to remove these exceptions. They are required to minimise the amount of time that a person spends in detention and to maintain the overall integrity of Australia's migration system. All that is required within the seven-day window is that the application is made. The requirements for doing so are minimal and the applicant does not need to submit additional documentation until the proceeding is underway. So we have a very special form of administrative decision that is dealt with in these two exceptions. It's decisions relating to immigration detention. We've got a government approach that is, very directly, that the amount of time that a person spends in immigration detention should be reduced, should be minimised. So there would be a problem in applying the standard ART time frames, for making an application for review not less than 28 days, to the immigration detention setting. We've got much shorter time frames, which are required to minimise the amount of time that a person spends in detention. I would hope that reason for having special provisions for immigration detention review matters is understood.

As to extensions of time, which would be the other effect of the amendment that the member for North Sydney is moving, the immigration system does rest on having certainty as to a person's visa status at all times. In order to provide an opportunity for visa applicants to seek a review of a decision, applicants are provided with a bridging visa that expires a short time after the time frame for making an application for review comes to an end. If the tribunal were able to grant an extension of time for making an application for review of these decisions, it wouldn't be possible to determine the end of the application period. That would be incompatible with how the migration system works.

We're here recognising that the migration system is a specialised and quite distinct part of Australian government decision-making. We have tried to, at the same time, as far as possible, standardise all of the review processes for all of the myriad decisions that the Administrative Review Tribunal will look at. There needs to be a recognition that, for a small number of administrative decisions, particularly some decisions under the Migration Act, we need to make special provisions, which is what we're doing. It should not be looked at through the frame of discriminating against some people because they are not Australian citizens. It needs to be looked at through the frame of having a migration system that works. As I've said, if it were possible for the— (Time expired)

Kylea Tink

I thank the Attorney-General for standing and voicing all of that context around why the government won't be supporting these amendments. I would just offer the following back: arguably this reform of the AAT is the most important reform that we've seen in over a decade. I know from personal interactions with the Attorney-General and his staff that they are very committed to re-establishing an administrative review process in this country that Australians can be confident in, and that they can trust that the process is fair and equal for all. The truth of the matter is that, as long as we continue to carve out people who find themselves in a situation within our immigration systems where they are not given the same treatment under law as every other person living in this country, we are creating a two-tier system.

I want to respond to what the Attorney-General said with a number of things. No. 1, I don't think there's any person that has any connection with the refugee and asylum-seeking sector in this country who doesn't know that the two days previously applied under the AAT was completely and wholly unacceptable. It was unworkable. We're not talking about pleasant centres where legal advocates can enter an environment to talk calmly with clients around what their legal recourse may be. Many of the people being held in these immigration detention facilities and awaiting a decision around their status of citizenship are highly traumatised individuals. They come from environments where they've already experienced trauma. They're now arriving and have had to face a number of intersectional discriminatory behaviours when it comes to our country. Many of them have not been fully assimilated when they've arrived. They've escaped violent situations only to find themselves thrust into our community with no appropriate education or appropriate assimilation, and then they find themselves in trouble with the law and back in immigration detention.

The refugee area largely does welcome this reform. We need to be really clear. As the Attorney-General said and as he and I have spoken about, this is 500 per cent better than what we have had in this country to date. If I were a teacher, I'd be giving this a nine out of 10. The reality is, though, that what I'm arguing is that the government could get a 10 out of 10, and they could do it by being braver than the governments we've seen in the past and by stepping forward and saying, 'We are prepared to be the agency of change.' In fact, a change in this legislation could ultimately push changes in our immigration detention systems, which arguably are long past due for reform. As many in this place would know, there are widespread calls for a royal commission into how our detention system works in this country.

What I'm saying here will be no surprise to the Attorney-General, because we have talked about it and his team has been really great in talking to my team about what we're seeking to achieve here. There are some moments, I believe, when a government has the opportunity to step into a true ambition that fundamentally shifts the dial in how a country addresses certain challenges.

It's interesting to see that we have the immigration minister sitting with the Attorney-General. I feel like I have a great audience to have this discussion in front of. If we are going to reform this process meaningfully, in a way that sees us as a nation fundamentally commit to realising our international obligations under all the international treaties that we say we abide by—whether that's the right to seek asylum and be free from persecution under the Refugee Convention; the right to equality before the law and equal protection of law under the UDHR; the right to enjoy the same treatment as a national in matters pertaining to access to the courts, again under the Refugee Convention; the right, in full equality, to a fair and public hearing by an independent and impartial tribunal in the determination of rights and obligations under the UDHR; or the right to recognition everywhere as a person before the law under the UDHR—the time for that is now, with this piece of legislation.

So I thank the Attorney-General and his team for their time, but I continue to argue that the best-case scenario would be that even those in detention would be treated in the same way as every other person under the Administrative Review Tribunal process.

Long debate text truncated.

Summary

Date and time: 11:48 AM on 2024-03-21
Allegra Spender's vote: Aye
Total number of "aye" votes: 14
Total number of "no" votes: 48
Total number of abstentions: 88
Related bill: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024

Adapted from information made available by theyvoteforyou.org.au

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