1.1        The Australian Greens consider that the bill should not be passed.

1.2        Most seriously, the bill would compromise a number of natural justice principles and the right of applicants to the Administrative Appeals Tribunal (AAT or Tribunal) to receive a just and fair hearing. In turn, this could increase the number of cases subject to judicial review—which would be in contravention of the bill's stated goal of improving the tribunal's efficiency.

1.3        The committee received compelling evidence that the provisions of the bill would seriously compromise the procedural fairness of the AAT in its assessment of asylum seekers and refugees looking to have their cases reviewed.[1]

1.4        Several submitters noted that the bill would remove the right of applicants to access all documents being considered by the Tribunal to assess their case. For example, regarding the bill's repeal of section 362A of the Migration Act 1958 (Migration Act), the Refugee Advice & Casework Service argued: 

...in order to afford procedural fairness to the applicant, it is fundamental that he / she has the ability to access the materials given or produced to the Tribunal for the purpose of the review.[2]

1.5        The bill also proposes to remove the right for applicants to request a translator to assist with them giving evidence to the Tribunal (repeal and replacement of section 366C).[3] Submitters raised serious concern with this provision, and argued it would create serious problems for people not proficient in English giving evidence.[4] For example, RACS submitted:

The replacement of section 366C with the text of section 427(7) would significantly alter the nature of the Tribunal’s obligation to provide an interpreter from one that is mandatory to one that is merely discretionary, and it would also remove the right of a person appearing before the Tribunal to request an interpreter.[5]

1.6        Additionally, the removal of section 366C would be applied retrospectively, meaning that it could be applied to cases already underway when the bill commences, should it be passed. This would be incompatible with natural justice principles and the rule of law.[6]

1.7        The Law Council of Australia also noted that the bill would also negatively affect the high number of unrepresented persons appearing before the Tribunal. It noted that:

...the new powers given to the Tribunal and the opting out of informing the Applicant how to prepare for his/her case by putting the onus on the Applicant to provide appropriate notices about witnesses, may be contrary to article 14 of the [International Covenant on Civil and Political Rights] which states that 'everyone shall be entitled to a fair and public hearing'.[7]

1.8        Schedule 2 of the bill provides for several cases before the Tribunal to be 'bundled', so that they can be assessed together.[8] The committee received evidence that suggested there is a lack of clarity about how this measure would be applied.[9] For example, RACS noted that the bill is unclear whether this would only relate to cases relating to the same family, as stated in the Explanatory Memorandum.[10]

1.9        The Australian Greens are also concerned that the bill provides that information about bundled cases given to one applicant, would count as having been supplied to all applicants in that bundle. However, the bill is unclear whether family members under 18-years old would be deemed appropriate recipients for such documents.[11]

1.10      There is a serious risk that these deficiencies in the bill's proposed amendments to procedural fairness of the Tribunal, and that access to substantive justice for applicants may increase the number of legal cases subject to judicial review.

1.11      This could increase the burden on Australia's justice system, and thereby compromise the bill's stated goal of improving the AAT's efficiency. As Victoria Legal Aid noted:

Some of the changes are also likely to increase the risk of successful legal challenge with decisions being subject to judicial review and then remitted back to the Tribunal, creating inefficiency and delay.[12]

1.12      The Australian Greens oppose the bill, not only on the grounds that it will reduce the rights of applicants to receive a fair and just hearing before the Tribunal, but also that it will not achieve the bill's stated goals of making the Tribunal more efficient.

Recommendation 1

1.13      The Australian Greens recommend that the Senate reject the bill.

Senator Nick McKim
Senator for Tasmania 

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