Administrative and Judicial Review Legislation Amendment Bill 2026

Mr LEESER (Berowra) (12:11): I rise to speak on the Administrative and Judicial Review Legislation Amendment Bill 2026. In speaking on this bill we need to be clear about why we're here. Sadly, we are here cleaning up yet another mess left behind by the former attorney-general Mark Dreyfus, the member for Isaacs.

The member for Isaacs abolished the Administrative Appeals Tribunal. He committed around $1 billion of taxpayers' money to establish its replacement and deal with the associated pressures in the migration system, and he told Australians the new system at a cost of $1 billion would be better. What a total joke that statement is!

He was warned, but he refused to listen because, as always, he knew better. Politics came before the efficient use of taxpayers' money. Less than two years after the Administrative Review Tribunal commenced operation, parliament is once again being asked to fix it up.

This isn't the first repair; it is another bill, another set of amendments, another round of changes to a tribunal which Labor told Australians had been properly designed and another reminder that the member for Isaacs's signature reform was nowhere near as settled or successful as he and Labor claimed it was. This bill is not a triumph of reform; it is another clean-up job.

The scale of this exercise matters. Australians who work, who run businesses, who pay mortgages and who pay their taxes are entitled to expect competence from their government in return. They're entitled to expect that parliament will not have to keep returning to the same legislation to correct omissions and operational problems.

The Administrative Review Tribunal commenced operations on 14 October 2024. Since then, there's been the original legislation, there have been miscellaneous measures, there have been further amendments to the ART and related legislation, and now there's this bill. At the same time, the Albanese Labor government has committed a further $69 million to continuing to deal with the backlog of tribunal cases created by the mess left by the member for Isaacs.

So, after the upheaval, after the abolition of the Administrative Appeals Tribunal, after around $1 billion was committed to the new system, there is a very simple question: is this new Administrative Review Tribunal actually delivering the better system that Australians were promised? The tribunal's own figures answer that question, and they are damning. As at 31 May this year, the tribunal had more than 131,000 cases on hand.

Five years ago, under the former coalition government, that figure was around 65,000. What an indictment on the Albanese government. The caseload has doubled.

Over the same period, the median time to finalise an application has blown out by 22 weeks, and only 43 per cent of the applications are now finalised within 12 months of lodgement, well below the tribunal's own target. That is a record, and it's after around $1 billion was committed by the former Attorney. The test of an administrative review system is whether it actually works for the Australians who rely on it, not the press release, not the ministerial announcement and not the new name on the door.

On the tribunal's own figures, the new system is an abysmal failure. Governments make thousands of decisions that affect people directly—decisions about taxation, social security, veterans' entitlements, disability services, aged care and migration. For the person affected, a review application may involve their livelihood, their finances, their family or their future.

One of the most significant changes in this bill to clean up the mess left behind by the former Attorney involves the role of registrars. The bill expands the powers which the president may authorise a registrar to exercise. Those powers include dismissing an application which has no reasonable prospect of success.

They include requiring the tribunal's leave before further applications of a specified kind may be made and reinstating an application in circumstances where a registrar has the power to dismiss that application. There's a clear case for these reforms. Tribunal members are a finite resource.

Their time should be focused on substantive disputes. Matters which plainly have no reasonable prospect of success should not consume resources indefinitely while other Australians wait for their cases to be heard. The explanatory memorandum gives a straightforward example—an applicant who cannot meet a visa criterion requiring them to be in Australia when they are in fact outside Australia.

That's not a matter which should consume disproportionate tribunal resources. Some submitters argued that allowing registrars to make decisions about reasonable prospects goes beyond an administrative function because it involves judgement, but the legislation contains safeguards around the use of those powers. The president may impose conditions on an authorisation, and a dismissal is not necessarily the end of the road.

The legislation provides mechanisms for an application to be reinstated where appropriate. It's also worth remembering who these registrars are. At the end of July, based on the statistics provided by the tribunal, it had 112 registrars, and more than nine in 10 held qualifications in law, dispute resolution or both.

These are appropriately qualified people being asked to undertake functions that can free tribunal members to focus on the matters which genuinely require their attention. The bill also makes it easier for obvious errors in decisions or statements of reasons made by registrars to be corrected. Again, that's sensible.

Where there is a clear clerical or administrative error, there should be a straightforward mechanism to fix it. A person shouldn't have to navigate an unnecessary additional process because the tribunal lacks a simple power to correct an obvious mistake. But, if registrars are being given more powers, parliament should also know how those powers are being used.

How many applications are dismissed and how many are reinstated? Are these powers actually helping bring the backlog down? Are they freeing tribunal members to determine more substantive matters?

After the amount of taxpayers' money committed to this tribunal, Australians are entitled to answers. That's why the coalition supports stronger annual reporting—so parliament can see whether these changes are producing measurable results. We will move such an amendment in the Senate.

The bill also makes a series of other practical changes to the internal operation of the tribunal. It clarifies that the president is assigned to every jurisdictional area. It provides greater flexibility in the appointment and status of non-judicial members.

It deals with the correction of particular errors. It updates the definition of an exempt security record decision. It excludes the period of 24 December to 14 January from the calculation of time for decision-makers to provide certain documents to the tribunal.

Individually some of those measures may appear technical, but collectively they're directed at making the tribunal operate more efficiently and, given the backlog confronting the tribunal, efficiency matters. The bill also contains significant measures relating to migration review. Once these provisions commence, applications for review of specified migration and protection decisions will be required to be lodged using an approved form.

That should reduce the amount of time spent seeking information and help the tribunal identify the actual issues in the dispute earlier. The bill also clarifies that, although a person has no entitlement to examine or cross-examine a witness under section 366D of the Migration Act, the tribunal may permit a person who is appearing before it to examine or cross-examine another person giving evidence.

And it removes duplication in notifications that the tribunal must give the Secretary of the Department of Home Affairs when an application is dismissed. Again, these are sensible changes. The bill creates a new regime under which, in appropriate migration matters, the tribunal may make its decision orally and give its reasons orally, with a written statement of reasons available on request.

Written reasons will continue to be required for social security, veterans entitlements, aged-care and NDIS matters, and any other categories prescribed by the regulations for matters decided on the papers and for decisions confirming a dismissal. The coalition supports that change. Under the bill, the 35-day period for applying to the Federal Circuit and Family Court for judicial review will run from notification of the oral decision.

Some submitters argued that this period should instead begin when written reasons are provided. The coalition doesn't agree. Where the tribunal gives an oral decision, the applicant is told both the outcome and the reasons for that outcome when the decision is made.

They're not left wondering why their application failed. If written reasons are required, an applicant in a migration matter will ordinarily have 14 days to request them and the tribunal will ordinarily have 14 days to provide them. Importantly, the court retains the power to extend the 35-day period where it's satisfied that an extension is necessary in the interests of the administration of justice.

There's also a practical problem with tying the commencement of the judicial review period to a request for written reasons. An applicant could prevent the clock from starting simply by never making the request. That would undermine finality and allow matters to remain unresolved unnecessarily.

Australians are entitled to a review system where decisions eventually bring proceedings to an end, and finality serves genuine applicants most of all. Every matter that drags on unnecessarily is another matter consuming resources while someone else waits. This bill is not confined to the tribunal.

It also deals with judicial review in the Federal Circuit and Family Court of Australia, which hears challenges to the legality of migration decisions, including decisions of the tribunal itself. Migration is now the largest part of that court's work after family law. More than 18,000 migration applications were pending at the end of the last reporting year.

That pressure is being felt across the system, and Australians involved in every other kind of case before that court are affected when its resources are consumed by an ever-growing migration case load. The bill introduces identity verification requirements for prescribed migration and protection review applicants who are not in immigration detention at the time the application is made.

In the tribunal an applicant may be required to verify their identity in accordance with the prescribed processes. An application must be dismissed where that applicant does not comply. An applicant will retain the ability to seek reinstatement under the existing Migration Act mechanism and the tribunal may reinstate the application where it considers that appropriate.

In the Federal Circuit and Family Court the bill appropriately preserves judicial discretion, consistent with the court's status as a chapter III court. That distinction is appropriate. Unlike the tribunal, the court exercises judicial power and the bill leaves the court with discretion over the consequences of noncompliance.

An applicant who doesn't comply with the identity requirement will generally require the leave of the court to continue. The court will have discretion to dismiss the proceedings. The principle behind these provisions is straightforward.

The system should be satisfied that the person whose matter is before the tribunal or the court is genuinely participating in it. The detail of this scheme will sit in regulations made under the Migration Act, and the coalition expects those regulations to be subject to the ordinary disallowance processes so that this parliament retains oversight. Another important part of the bill concerns taxation review.

The bill restores the standard 28-day period for seeking review of certain decisions by the Commissioner of Taxation, refusing an extension of time. The coalition supports that correction. But this provision also tells us something about the quality of the original exercise.

When Labor abolished the AAT and created its replacement, that time frame was not properly carried across. The explanatory memorandum itself describes the amendment as correcting an unintended consequence of the establishment of the tribunal. For the government, that might be described as a technical correction.

For the taxpayer who is affected by it, it is anything but technical. The statutory deadline can determine whether a person can seek review of any decision at all. So, yes, this bill corrects the problem, but, once again, we're correcting something that should not have required correction in the first place.

There's one further issue which arose through the examination of this bill. It concerns cases where there is a clear and objectively identifiable administrative error in an original migration decision. Under section 85 of the Administrative Review Tribunal Act, the tribunal may remit a decision to the original decision-maker for reconsideration while the review remains on foot.

That's already a power which the president may authorise a registrar to exercise. The department confirmed to the committee that the president has done so, limited to cases where the parties agree. Migration matters are different.

The Migration Act expressly provides that section 85 does not apply to reviews of reviewable migration decisions or reviewable protection decisions. Instead, section 349 provides a separate power to set aside a decision and remit it to the original decision-maker for reconsideration where the decision relates to a prescribed matter. But critically that remittal is itself a substantive decision on the review.

It's not the same kind of interim remittal available under section 85 while the review remains on foot, and that raises a practical question. If an obvious administrative error has been made in the original decision and that error can be readily identified, should the applicant, the department and the tribunal really have to proceed to a substantive merits review outcome simply to correct it?

The tribunal's principal registrar at the hearing into this bill described such a mechanism as, and I quote, 'certainly an efficiency'. The coalition believes there is merit in the government considering a tightly confined mechanism within the framework of the Migration Act developed in consultation with the tribunal and the Department of Home Affairs. If everybody can see the mistake and it can be corrected quickly, there is little sense in forcing the machinery of merits review to continue merely to arrive at the same point.

That would save the tribunal resources. That would save the department resources. That would save taxpayers' money, and that would allow other Australians waiting in the queue to have their matters heard sooner.

There's a broader lesson in all of this. Governments should be judged by what their reforms actually deliver. The member for Isaacs was very keen to abolish the administrative tribunal.

A major institution was abolished. A new one was announced. Around $1 billion was committed.

Australians were told, promised, that the system would be better. Making it work has proved so much harder, and this bill is further evidence that the job was nowhere near finished when Labor claimed it was. If it had been, we wouldn't be back here yet again.

The coalition will not oppose these sensible reforms. Where the bill improves the system, we will support it. Where it gives appropriately qualified registrars sensible powers, we will support it.

Where it removes duplication, we will support it. Where it provides greater finality, we will support it. Where it makes the migration review system operate more efficiently, we will support it.

But our support should not allow this government to rewrite the record. A tribunal that Australians were told was properly designed is already back before this parliament for further significant surgery. Australians are entitled to know where the waiting times are improving.

They're entitled to know whether the backlog is coming down. They're entitled to know whether the expanded registrar powers are producing results and they're entitled to know whether the institution the member for Isaacs created is actually delivering the improvements he promised. The Senate Legal and Constitutional Affairs Legislation Committee has recommended the bill be passed.

The coalition supports that recommendation. Ultimately, there is one simple measure of success: does the system work better for Australians? It is not 'does it generate more legislation', not 'does it require more taxpayer money' and not 'does it allow another minister to announce another reform'.

Does it reach decisions more efficiently? Does it bring hopeless matters to an end? Does it use skilled tribunal members where their expertise is genuinely required?

Does it correct obvious mistakes quickly? And does it give Australians value for the extraordinary amount of their money already committed to this project? Those are the tests that the Albanese government must now meet.

The coalition will support this bill because Australians deserve a tribunal that works. We will support the clean-up, but Labor should not expect us to pretend there was no mess to clean up in the first place. The former Attorney-General, the member for Isaacs, created all this.

Taxpayers have paid for it and, once again, the parliament is being asked to fix it. Debate adjourned.