A threat to fairness: Administrative Injustice Bill explained

Administrative Injustice Bill

Amidst Home Affairs Minister, Tony Burke’s threatened removal of the work rights of people seeking asylum and an abrupt u-turn from the Prime Minister on cutting Australia’s humanitarian intake, the Government has snuck a Bill into Parliament that poses serious harm to the appeal rights of people who have come to Australia fleeing war and persecution.

While the outcome of internal Labor Party wrangling on migration remains uncertain, it is clear that the Government is moving towards an asylum system increasingly focused on restriction and control at the expense of compassion and the basic rights of people fleeing danger. 

In 2024, the Albanese Government addressed concerns about politicisation and a loss of public confidence in Australia’s administrative merits-review tribunal by replacing the AAT with a new body; the ART. The objective was to provide administrative review that is fair and just, efficient, accessible, responsive, transparent, and that promotes public confidence. 

Less than two years later, reforms to ART processes contained in the new Administrative and Judicial Review Legislation Amendment Bill directly contravene the aspiration of creating a system with fairness and justice at its heart. 

A critical safeguard

The ART plays a vital role in Australia’s refugee status determination process, ensuring that errors in decisions made by the Department of Home Affairs are reviewed by an independent body. It supports accurate and fair decision making and is often a key safeguard preventing forced return to danger. 

The Government’s new Bill aims to reduce the significant backlogs faced by the ART and address the 3 year average case completion time.

Yet the proposed amendments will only increase the administrative burden, while threatening the effectiveness and integrity of the merits review system.

Particularly concerning are the abandonment of decisions issued in writing, the expansion of registrar powers, and the mandatory dismissal of cases should an applicant fail to satisfy the identity verification requirements.

All of these risk weakening the important procedural safeguard of the ART and eroding the integrity of Australia’s protection regime. 

Cases thrown out without a hearing

The Bill grants tribunal registrars extraordinary new powers to throw out applications before they are heard based on their judgement of a case’s prospects of success.

In protection cases, this may include assessments of complex legal issues, judgments on country of origin information or personal circumstances, and the credibility of a claim; decisions that should only be made by Tribunal members with appropriate expertise. Incorrect decisions, or unjust dismissals, may have serious consequences for protection claims, potentially resulting in a person being forced to return to the danger they are fleeing. 

This expansion of powers may even increase delays in the system if cases are incorrectly dismissed, or create more scope for decisions to be challenged legally.

Decisions not issued in writing 

The Bill also proposes to scrap the standard issuing of case outcomes in writing, instead routinely issuing decisions orally.

Written decisions are an essential component of fair and transparent legal due process. Not only do they clearly communicate the justifications for a decision to the applicant but they also serve as an administrative record of the tribunal’s proceedings. 

Oral decisions are more likely to create confusion and diminish accountability in the system. By only issuing written notice upon request, the Government is undermining the fairness and integrity of a system that exists to remedy where decision making has failed people who are fleeing war and persecution.

In doing so they are placing yet another burden on applicants who are already navigating an unfamiliar and complex legal process while dealing with the effects of trauma, displacement, and uncertainty. 

Exclusion of people without identity documents

The Bill also seeks to create strict new identity verification requirements.

Cases will be automatically dismissed should an applicant fail to complete the identity verification.

These measures ignore the fact that many people seeking asylum may be without identification documents, meaning that many people may have their applications blanket-dismissed.

Without appropriate safeguards, this verification process risks unfairly excluding vulnerable people from accessing protection.

Call for fairness and justice

It is in everyone’s interests to ensure Australia’s merits review system runs quickly and efficiently.

It is possible to do this without placing further burden on those seeking safety by focusing on alternatives like streaming based on case complexity, improving oversight over unregistered “migration advisors”, and allocating greater resourcing to the tribunal itself.

The ART was intended to create a merits review system that is fair and just.

In addressing backlogs in the system, the government must not lose sight of these principles nor allow change to come at the expense of people this system serves to protect.

The ASC recently responded to the Senate Committee scrutinising the Bill. You can find a copy of our letter to the committee, raising concerns here.

Written by
Ciara Thatcher
Volunteer – ASC Advocacy team