Law Council of Australia notes equity issues in ART reform bill

The legislation amendment bill ultimately modifies the operation of the ART, the Migration Act 1958, and related courts to adjust decision-making rules, registrar powers, and identity requirements.

The Law Council identified several issues for the committee’s attention, which were set out in the submission to the inquiry.

The Law Council’s prominent concerns with the bill included the expansion of powers for registrars to make orders that involve merits review assessments, such as when an application for review has no reasonable prospects of success.

It was also concerned with provisions to the effect that, when the ART gives an oral decision, written statements of reasons for decisions will only be provided at the request of a party to the application – especially in the migration jurisdiction.

Removal of the ART’s capacity to reconsider its own decisions and the lack of detail in primary legislation about the identity verification processes in Part 12 of the AJRLA Bill were also cited.

Highlighting the pressure on the tribunal, Law Council of Australia president Tania Wolff provided context regarding the current operational environment.

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“The workload of the ART is significant, and the number of applications to it is growing,” Wolff said.

“We understand why steps to improve the efficiency of the ART are necessary and support a range of measures outlined by this bill.

“However, efficiency cannot come at the cost of procedural fairness. We have concerns with several aspects of the draft legislation.

“The bill gives additional powers to registrars, including the power to dismiss an application if they are satisfied it has no reasonable prospect of success.

“Our position is that this power is more appropriately exercised by ART members, who are subject to rigorous merits-based appointment requirements that registrars are not.”

Wolff further explained how these new powers could negatively impact the most at-risk individuals seeking review through the tribunal.

“Applicants to the ART include vulnerable cohorts for whom dismissal of an application without a hearing can have serious implications,” she said.

“The bill lacks clear, objective criteria to guide the registrar’s discretion.

“If Parliament proceeds with this measure regardless, additional safeguards are needed at a minimum to mitigate the risk of inappropriate dismissals and prevent injustice occurring – including qualification requirements for registrars exercising the power, and a right for applicants to be heard before their application is dismissed.”

Lawyers Weekly asked the Law Council of Australia what qualification requirements it would propose to ensure registrars are equipped to exercise power.

In response, the council alluded to the additional safeguards aspect within the submission: “a requirement that only registrars who have legal qualifications and sufficient post-admission experience may exercise the dismissal powers.”

This recommendation aims to ensure that those exercising dismissal powers possess the necessary legal expertise to uphold procedural fairness.

Moreover, the Law Council of Australia emphasised a lack of detail about the proposed identity verification processes in Part 12 of the bill.

The council highlighted that this may disadvantage genuine applicants with limited access to identity documents, for example, protection visa applicants who may have left their home country without documents, or who are stateless.

“To promote fairness, the ART should have the power to waive these requirements, as the bill allows the Federal Circuit and Family Court of Australia to do,” Wolff said.

“Legislative reform is not the only lever available to the government.

“If efficiency is the primary purpose of the bill, we also encourage the government to ensure the ART is adequately resourced and address the structural funding crisis affecting legal assistance services across Australia.”