Administrative Review Tribunal (Miscellaneous Measures) Bill 2024

Senator SHOEBRIDGE (New South Wales) (19:03): I rise to indicate that the Greens will be supporting the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 as a result of amendments that will be moved by the government in committee. This bill came before the Senate last year, and we were told at the time that it was effectively a 'rats and mice' provision, dealing with modest amendments of an administrative nature to the ART bill.

By and large, that's what this bill actually provides for. It is the Administrative Review Tribunal (Miscellaneous Measures) Bill 2024, and the great bulk of the amendments are of a genuinely modest administrative nature. Some of them are needed to deal with some unforeseen stressors that have occurred within Services Australia with the provision of documents, and we think it's important that those amendments get made.

But hidden in this bill were two proposed amendments to sections 347 and 348 of the Migration Act which sought to deal with a High Court decision not on the ART bill but that interpreted certain provisions in the coalition's previously drafted AAT bill. The High Court said that, when there is a challenge to an application being made because there are minor defects in the application, provided an application is genuinely put before the tribunal, the tribunal has an obligation to deal with it.

It doesn't matter if a name is missing or if there is a small piece of information missing. If it's an application in relation to someone's migration status, their refugee status, provided there's a substantive application there, the tribunal has to deal with it. Of course, that is a beneficial interpretation.

It can be absolutely critical that someone's application, once it's filed, is valid. There are so many unfair timeframes and hurdles and prohibitions relating to migration and refugee claims when they're sought to be filed or lodged with what was the AAT and is now the ART. If an application was filed but was found to have some administrative defect in it and therefore was rejected, that person might have lost all their independent review rights, and they might have been stuck with a deeply unfair determination from Home Affairs, as happens thousands and thousands of times a year.

So, to deal with that decision and that interpretation from the High Court on a mirror provision in the former AAT Act, the government proposed amendments to sections 347 and 348 of the Migration Act to provide that an application to the ART in relation to migration matters—that includes refugee matters and people desperately seeking asylum, needing protection—is only properly made where it's made within a specified period, being seven days for those in immigration detention, and is accompanied by the prescribed information and whatever prescribed documents the government sets.

Then it says that, unless that information is provided, the ART would have no jurisdiction and therefore must not review an application that isn't properly made. I want to thank all the NGOs and human rights organisations who reviewed this piece of legislation and belled the cat, saying, 'This is incredibly dangerous.' I want to thank the Asylum Seeker Resource Centre, Refugee Legal, the refugee and immigration national community law coalition, the Refugee Council of Australia and the Kaldor Centre for International Refugee Law, who all raised what an unfairness this was and raised how some of the most vulnerable people in the country would have their applications rejected with no capacity for the ART to even consider them.

It would just be as though they were never made. And that could be because they misspelt their name in the application, got their date of birth wrong or didn't include one of the five documents that were required. This legislation, as initially drafted, as drafted now before amendment, would have meant that those applications would have all been rejected with no discretion.

It would have been like they'd never been made. Of course the coalition jumped onto this and loved it. They like cruel processes.

They like unfair, cruel processes that apply to people seeking asylum. They like unfair, cruel processes that apply to people who are seeking to migrate here or bring their family here. They actually specialise in cruelty, so of course the coalition grabbed these amendments with both hands.

They love that kind of stuff. The ACTING DEPUTY PRESIDENT ( Senator Bragg ): A point of order, Senator Kovacic? Senator Kovacic: Senator Shoebridge is reflecting on the motives of the opposition—that they are intending to be cruel and unfair.

I don't think that's appropriate. The ACTING DEPUTY PRESIDENT: I'm sure the senator will address that in his remarks. Senator SHOEBRIDGE: Because that's what the coalition specialises in—they specialise in meanness and division and cruelty.

So they absolutely celebrate— The ACTING DEPUTY PRESIDENT: Senator Kovacic, a point of order? Senator Kovacic: Acting Deputy President, I don't feel that Senator Shoebridge has taken your advice onboard. He continues to make remarks that— Senator Scarr: He's doubled down!

Senator Kovacic: Yes, he has. The ACTING DEPUTY PRESIDENT: I'm sure that Senator Shoebridge is going to get to his point soon. Senator SHOEBRIDGE: I'll follow any ruling that's coming from you, Acting Deputy President.

There's no valid point of order. The ACTING DEPUTY PRESIDENT: Feel free to continue, Senator Shoebridge. Senator SHOEBRIDGE: Thank you.

That's what the coalition does. It likes cruelty. It likes nastiness.

They specialise in it, and these provisions of the bill were designed to be nasty to people. I know the coalition doesn't like it when we speak the truth about their motivations on particular bills. I know it's uncomfortable.

I know the history of being mean to people, to refugees—being deliberately cruel, having intentionally cruel policies—is awkward for some members in the coalition, and I accept that their own personal values are sometimes challenged by what they have to vote for. I accept that on a personal level. But the institution of the coalition specialises in this cruelty.

They actually deliberately inflict cruelty on refugees and migrants as part of the coalition's DNA. The ACTING DEPUTY PRESIDENT: A point of order? Senator Kovacic: If that is not impugning the motives of the opposition— The ACTING DEPUTY PRESIDENT: I'll seek some advice from the Clerk.

Senator Shoebridge is not reflecting on any particular senator, so he's in order and these are effectively political debating points. Senator SHOEBRIDGE: I know the coalition are very touchy about this and would like to shut down criticism of their long history of cruelty in this space, and I understand why the coalition want to stop this debate, because it's awkward actually looking the coalition's decades of cruelty in the face.

It's awkward. As I said, I understand that some individual senators find it really personally challenging when they have to join in with these attacks on refugees. But they keep voting for this stuff, they keep electing leaders who produce this kind of cruelty and they were doubling down and backing in these changes.

We heard it from the Leader of the Opposition here in the initial contribution—that they actually want this to be mean and nasty. But, again, I want to go back to those NGOs, those human rights organisations— The ACTING DEPUTY PRESIDENT: Senator Kovacic, a point of order? Senator Kovacic: I note that previously Senator Shoebridge did not reflect on any individual member of the opposition, just the opposition more broadly, but he has now directly attempted to impugn, or has impugned, the Leader of the Opposition, Mr Dutton, in his remarks.

The ACTING DEPUTY PRESIDENT: I remind Senator Shoebridge not to impugn the motive of any member of the House, and I invite you to proceed in making your remarks. Senator SHOEBRIDGE: To be clear, my comments were not in relation to the Leader of the Opposition, who I don't think has spoken on this today, in the other place, but the Leader of the Opposition here in the Senate and the comments that were made, and I'm echoing back those concerns.

But, again, I want to thank the Asylum Seeker Resource Centre— The ACTING DEPUTY PRESIDENT: Senator Kovacic? Senator Kovacic: Just to clarify, I misheard. I just want to clarify that my statements reflected the Leader of the Opposition in the Senate, not the House.

That was my error. Thank you. Senator SHOEBRIDGE: Again, I want to thank the Asylum Seeker Resource Centre, Refugee Legal—all of those NGOs that have come in.

They engaged with the inquiry and asked the government to be better, to pull this part of the bill. It is so obviously not necessary, because, the High Court has made it clear that these applications should be able to be considered, that there should be a discretion and the ability in the tribunal to consider these applications. I want to give credit to those organisations and also give credit to the government, who has, over to break, further reflected on the submissions that have been made and said that in fact the law as it exists currently, without this bill, should stand and that these provisions will be removed from the bill in the committee process.

I want to commend the government, the AG's office, for listening, for taking on board the concerns and seeing those provisions removed in the committee stage. It's a modest but real win for decency and for fairness, so that the tribunal can actually consider the merits of claims and they won't be struck out on the kinds of legal technicalities that bring the law into disrepute.

The other aspect of this bill that I think is important—and, again, it will be reflected in the amendments—is that this was an opportunity to remove some of the systemic unfairness, the two levels of justice—one for people challenging migration and refugee matters and one for the balance of people—because there were so many unfair timeframes that applied to challenges, reviews of migration decisions.

Often, it's just seven days that people have to bring an application, and, if you're in immigration detention, you don't have access to a phone, you don't have access to a lawyer and an adverse decision is made against you, how can you seriously bring an application within seven days? We heard again from those organisations that that doesn't work, and it can't work, and it's unfair, and it only applies in migration.

We would love to see all of those unfair time limits removed. Everybody should have access to the 28 days in which to review a decision, and there should be a discretion to extend it. I commend Senator Pocock, who's bringing amendments to that effect, but I will, again, give the government some credit.

They have listened to those NGOs. They've listened to concerns that we have repeatedly raised on behalf of the Greens, and there will be amendments to move the minimum time from seven to 14 days. Again, it's still not the same as applies in non-migration matters.

There will still be active discrimination against people challenging migration decisions, but I think it is much better, and it is clearly a significant improvement. The advocates and the NGOs in this space that we've spoken to absolutely want the Senate to support that amendment and to see at least that improvement happen. Again, I just want to acknowledge that this is a significant improvement for people in detention, to give the government credit and to give those NGOs credit for the ongoing campaigning and advocacy in that space.

It is a win. It's something the Greens have been asking for, for over a decade, and it's a significant win. There's one amendment from the coalition, seeking to ensure that there will be a minimum of at least one ART registry in each state and territory.

This is something that my colleague Senator McKim has been regularly asking for in Tasmania. I know he's on the record repeatedly as saying the AAT—the ART now—should absolutely be guaranteed to have a registry, and the people of Tasmania are entitled to a registry. And that should be written in the law.

We agree. We absolutely agree. Small states, large states and territories should all have a minimum of at least one registry.

We understand, from our discussions with the government, that that is their current intent, and, for that reason, I understand the government also will not be opposing that amendment, and we actively endorse it and support it. We are also putting forward amendments proposing a credible pathway for permanency for those who have been subjected to the coalition's cruel and unfair fast-track system.

Everybody agrees that the thousands of people who were rejected under the fast-track system were rejected in an unfair process—everyone, of course, except the coalition, who still can't accept that their cruel and nasty fast-track process was unfair. There have been some people who came to Australia before 2013 who have been given a possible pathway to permanency by the government, but, for those thousands of people—some 7,000 people—who were unfairly rejected by the coalition's unfair fast-track process, there is no pathway to permanency being offered by the government.

All the government says is that they may consider them at some point, one by one, as individual ministerial discretion cases. How could any minister seriously get their head around 7,000 cases? It's a ridiculous proposal from the government.

They know it's not fair. They know it's not true. This would put a pathway in for those who have been unfairly rejected by fast track to have their application fairly reviewed before the ART—to be able to bring their application, bring the original documentation, add fresh documentation and finally have a fair assessment of their claims before the ART.

I commend those amendments to the Senate. While I'm speaking to those, I want to give credit to those people, particularly from the Tamil community, who have been consistently asking for this—not just the Tamil community but also the Bangladesh community and the Pakistan community. But the reason I raise the Tamil community is that they were here in parliament today.

They were here in parliament today, again advocating for a fair process for fast track and again advocating for the Tamil people's rights to be respected, for their genuine concerns about the human rights abuses and the ongoing attack against Tamil culture to be recognised and for their asylum claims to be accepted. They were here today. They're doing it not just for the Tamil community but for communities across the board.

I want to commend them for their work, for their advocacy and for their strength. We don't say that our amendment is the only way. There are perhaps better ways to do it—just, on class, accepting their claims—but this is a credible, fair and available pathway for fast track to be resolved, and we commend those amendments to the chamber.