Administrative and Judicial Review Legislation Amendment Bill 2026
Dr RYAN (Kooyong) (18:12): The Administrative Review Tribunal exists to provide an independent, merit based review of government decisions. It's a key accountability mechanism within our administrative law system, which allows Australian citizens, visa applicants, businesses, veterans, NDIS participants and others to seek review if they believe that a government decision is wrong.
A healthy democracy requires not only that governments make decisions but that those decisions can be independently scrutinised. The ART process helps ensure that government power is exercised fairly, consistently and according to our laws, so it's absolutely essential that the tribunal is accessible to all who require it, that it is adequately resourced and that it's capable of delivering timely decisions.
The intent of this legislation is to meet some of those objectives. The Administrative and Judicial Review Legislation Amendment Bill 2026 seeks to improve the efficiency and responsiveness of the migration review framework to assist the Federal Circuit and Family Court of Australia and the ART to manage quite substantial migration caseloads, to streamline processes, to reduce administrative burden and to support more timely decision-making by government.
These are sensible objectives. No Australian would ever suggest that people seeking a review of government decisions which profoundly impact their lives should be kept waiting years for an outcome. Similarly, no-one would ever suggest that the tribunal should be burdened by unnecessary procedural complexity.
The challenge is not determining whether efficiency in decision-making is important. We know that it is. The issue is how we can achieve that efficiency and whether expedited outcomes should be accomplished at the expense of risk of procedural fairness.
The tribunal is currently operating under pretty significant pressure. The tribunal received 83,640 applications in 2024-25, of which 65,586, or 78 per cent, related to migration and protection matters. That was up from 43 per cent of a much smaller caseload five years ago.
The Federal Circuit and Family Court of Australia received 7,503 migration filings in the same year. That was an increase of 116 per cent since 2022-23. Migration now represents three-quarters of all non-family-law matters before the court.
Meanwhile, the tribunal may have as many as 80 budgeted member vacancies unfilled. The consequences of those vacancies are quite predictable: an ever-growing backlog and increasingly lengthy delays for applicants who are seeking reviews. Nowhere is that pressure more acute than in protection matters.
The tribunal's protection division alone has an active case load of over 37,000 cases, with a median wait of 155 weeks—that's almost three years—to finalise a case. The Federal Court's protection case load sits at roughly 6,300 matters, with many first hearings not listed until 2029. Behind each of those numbers is a person whose safety, and often whose family's safety, depends on how and when their claim will be decided.
So that raises a pretty important question: if the principal problems confronting the tribunal are overwhelming case loads and insufficient capacity, is streamlining the tribunal's review processes really the best solution that the government can come up with? I ask: has the government adequately explored whether the tribunal has sufficient resources and staffing and the membership necessary to perform its statutory function?
Recently, I sent a number of questions on notice to the Attorney-General concerning the operations of the tribunal, about its appointment processes for members, about the operation of merits lists and about reports that more than 80 budgeted member positions remain vacant despite the rapidly growing case loads. I look forward to receiving considered responses from the minister.
Notwithstanding the importance of improving the responsiveness of the tribunal, I'm concerned that this bill could enable procedural reform to become a substitute for adequate resourcing. We have to be cautious about solving capacity problems by reducing opportunities for the applicants to have their cases heard fairly. I want to test this concern against three specific measures in this bill, each of which was closely examined by the Senate Legal and Constitutional Affairs Legislation Committee.
The first is the proposal to allow the president to authorise registrars, not appointed tribunal members, to dismiss applications on the basis that they have no reasonable prospects of success. The bill itself contains no definition or criteria for 'reasonable prospects of success'. That's left entirely to the discretion of individual registrars.
Of the tribunal's 112 registrars, only about half hold a law degree or an equivalent qualification. Less than a third hold both legal and dispute resolution qualifications. In contrast, the tribunal members are subject to a rigorous merit based appointment process, specifically because they are normally trusted to weigh the substances of such claims.
So there are real concerns that registrars could be asked to undertake merits based assessments without the training or the experience that that role demands. That's particularly concerning given how many applicants to the ART are unrepresented and may not be able to argue the facts that are at issue. The Kaldor Centre for International Refugee Law has warned that this change could well generate further litigation and appeals which would simply shift delays downstream to the Federal Circuit and Family Court rather than actually resolving them.
The department has claimed that this power would only be used in objective cases. The example given was of an applicant who's left Australia and plainly can't meet a visa criterion of being onshore. But migration decisions are rarely that clear or that objective.
They generally require a level of assessment that would sit more properly with a member, not a registrar. The Law Council has proposed a sensible set of safeguards around this issue: that only registrars with legal qualifications and sufficient post-admission experience should exercise this power; that a registrar should consult a senior member before making a dismissal finding that they're uncertain about; that applicants should be given notice and an opportunity to be heard before dismissal; and that dismissal should not foreclose a request for ministerial intervention.
But none of these safeguards appear in the bill, and the Senate committee failed to recommend their adoption. The concerns are magnified in protection matters, where there's rarely an objective fact that the registrar could point to. Community legal centres have told the Senate committee that applicants often arrive at the tribunal with a claim that looks incomplete, not because it lacks merit but because the department never interviewed them, because a dishonest migration agent lodged a claim on their behalf without properly recording their circumstances or because trauma just made it too difficult for them to disclose the full basis of their fears at the first opportunity.
A test of 'no reasonable prospects of success', applied by a registrar on the papers, risks screening out genuine refugees before their claim ever reaches a tribunal member. It's my belief that, if the government wants this House to trust that a subjective, undefined test will be applied consistently and fairly by staff who don't hold statutory independence, it shouldn't be doing it in this circumstance, and it should be willing to write basic safeguards into this legislation around those powers.
The second measure allows the tribunal to give reasons for a decision orally, with a written statement only being required if a party requests it—with the clock for judicial review running from the oral decision, not from the receipt of written reasons. This could potentially lead to applicants being forced to file for judicial review without ever having seen the reasons for the very decision that they're appealing—remembering that two-thirds of applicants at the merits review stage are self-represented and that, for many, English is a second language.
Community legal centres report that more than one in five of their tribunal clients seeking protection need an interpreter. An interpreter's role is to translate language, not to explain complex legal concepts. Many of these applicants already find a written statement of reasons difficult to absorb, even with a lawyer's help.
Expecting them to grasp an oral decision on the day, in a language not their own, and then correctly identify a legal error in it before a 14-day window closes is an unrealistic safeguard. The third measure is the new identity verification requirement for applicants to the tribunal and the court, with detail for that being entirely left to regulations which are yet to be drafted, and mandatory dismissal for applicants to the tribunal who are unable to comply.
This measure will affect most those people who are stateless, who arrived in this country without documents or whose nationality is genuinely contested—in some cases, people whose entire claim for protection turns on a dispute about their identity. Control over identity documents is a recognised tool of coercive control in family and domestic violence, and it's a recognised tool of exploitation by unscrupulous employers and migration agents.
This measure could well exacerbate the vulnerability of victims in such circumstances. It would punish them rather than the bad actors that it is putatively aimed at. These matters engage Australia's non-refoulement obligations under the Refugee Convention, the convention against torture and the International Covenant on Civil and Political Rights.
Many protection applicants are stateless, having fled without identity documents or had documents destroyed or confiscated along the way of their travels. Requiring them to satisfy an as yet unspecified identity check before their claim can even be considered risks them being returned to danger because of the very persecution that forced them to flee without papers in the first place.
The government's stated aim with this measure is to address fraudulent representation and applications lodged without a person's knowledge, which is legitimate. But a legitimate aim does not justify legislating a mandatory dismissal power while the safeguards for its most vulnerable subjects remain, on the government's own evidence, as yet undesigned. Some measures in this bill are reasonable and appropriate.
The case load pressure on the tribunal and the court is real. Clarifying the president's jurisdiction, correcting the Taxation Administration Act timeframe and excluding the Christmas period from document deadlines are uncontroversial. But I have concerns regarding the qualifications evidence on registrars, the compounding effect of the reasons timeframes and the government's own admission that it cannot yet say how a stateless applicant will be treated under a mandatory dismissal power.
Grandmothers for Refugees, which traditionally supported people seeking asylum through the fast-track era of the AAT, is still seeing the human damage caused when the integrity of a merits review system is compromised in the name of speed. The Kaldor centre's review of Switzerland's asylum centre reached the opposite conclusion—that fairness and efficiency reinforce each other and that a well-resourced, properly staffed process is the best way to actually clear a backlog.
Switzerland has cut its average time from application to finalisation from close to four years to about 3½ months without stripping away procedural protections in the way that this government proposes. Migration reviews undertaken by the tribunal have the power to determine whether or not individuals are permitted to stay in this country. We are, fundamentally, a nation of migrants.
Our prosperity, our culture, our identity and our social fabric have all been shaped by generations of people who've come to this country and made Australia their home. Australians support migration when they believe it is fair, orderly and well administered and when they believe that the institutions responsible for migration decisions are performing those functions effectively.
I accept that action is needed to improve the timeliness and efficiency of our migration processes. The current situation, in which the ART is swamped by tens of thousands of applications that it can't service, is not sustainable. But our reforms should be guided by the principles of efficiency and fairness together.
A system which is fair but takes years to deliver decisions is failing, but so is the system that is fast but denies people meaningful opportunities to be heard. Australians deserve an administrative review system which is efficient, fair and properly resourced. If this parliament is serious about administrative justice, we have to ensure that all three objectives are achieved, not just the first.
For those reasons, I move the amendment circulated in my name: That all words after "That" be omitted with a view to substituting the following words: "whilst not declining to give the bill a second reading, the House: (1) notes that the bill: (a) does not exempt protection visa matters from the proposed discretion to give oral rather than written reasons, notwithstanding that such an exemption is provided for social security, veterans' entitlements, aged care and NDIS matters; (b) extends to registrars, who are not required to hold legal qualifications, the power to dismiss protection visa review applications on the subjective ground that they have no reasonable prospects of success, a function hitherto reserved for tribunal members; and (c) introduces a mandatory identity verification requirement for tribunal applicants without prescribing, in the bill itself, the criteria or safeguards that will apply, notwithstanding that many protection applicants are stateless, undocumented, or have had identity documents withheld by an abusive partner or exploitative employer; and (2) calls on the government to amend the bill to: (a) exempt protection visa matters from the oral reasons provisions in Part 10; (b) restrict the dismissal power in Part 1 to tribunal members, or in the alternative, require that any registrar exercising that power hold appropriate legal qualifications and consult a senior member before dismissing a protection visa application; and (c) ensure that the identity verification framework in Part 12 cannot result in the mandatory dismissal of a protection visa application without the applicant first being given notice and a reasonable opportunity to respond".
The DEPUTY SPEAKER ( Ms Sharkie ): Is the amendment seconded? Ms Chaney: I second the amendment and reserve my right to speak.