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Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

The AAT strikes back

Mr Dutton, the immigration minister, has been found wanting in refusing an application by a Mr Singh for a 6 week bridging visa, based upon his conviction (Singh’s), on a plea of guilty, of indecent assault.

Justice John Logan of the Administrative Appeals Tribunal (AAT) rejected Mr Dutton’s decision to refuse the visa, giving his reasons in a 23 page judgment, based on the law, and on hearing from Singh.   

In obvious reference to recent newspaper articles about the AAT and Mr Dutton, and his “personal involvement” reported in the “popular press”, the Judge gave an assurance of his and the Tribunal’s independence, in the nature of administrative law 101 for lawyers, but perhaps directed, in simple terms, more at politicians and newspapers writers and their followers.

Problems with government decision making

Justice Logan explained that a reason for the establishment of the AAT in the 1970s was the identification of five deficient features of administrative decision-making by Ministers and public servants:

1)                  A lack of independence, the administrative decision-maker being, and perceived to be, more susceptible to political, ministerial and bureaucratic influence than a judge;

2)                 A lack of openness in making decisions;

3)                 not giving reasons for decisions, assuming they have reasons;

4)                 not always observing the standards of natural justice or procedural fairness; and

5)                  being more inclined to “subordinate the claims of justice of the individual to the more general demands of public policy and sometimes to adventitious political and bureaucratic pressures”.

Right of review by the AAT

Rather pointedly, Justice Logan said that the very nature of the merits review he was undertaking as the Tribunal meant that it was “neither necessary nor even appropriate” that he comment at all as to whether any of these negative features seemed to be present in the Minister’s delegate’s decision in relation to the present visa application.

He was not critiquing that decision, rather was making a decision on the merits afresh, as the AAT must do.

Criticism of the AAT

The Judge said that Tribunal decisions are not immune from criticism but it cannot respond, indeed, one would imagine it would not need to.  

“It does mean that, in respect of such individual decisions, Tribunal members speak via their reasons and otherwise not at all. It would be subversive of the very independence from the partisan or political that is a feature of the Tribunal were it otherwise.

Any AAT member who allowed himself or herself to be persuaded as to an outcome by partisan or political rhetoric by a Minister, any other administrator or the popular press would be unworthy of the trust and confidence …”.

Most AAT members have no security of tenure. 

“For those members who do not enjoy the same security of tenure as judges, that may call at times for singular moral courage and depth of character”,

although, it must be said, that no-one would want to be part of any agency where that sort of popular pressure was imposed. 

The decision of Justice Logan is hereSingh (Migration) [2017] AATA 850.

Postscript

Other visa decisions of the AAT have been the subject of adverse comment by Mr Dutton and newspapers writers, with comments about judges 

“saving murderers, rapists, paedophiles and journalists from deportation”. 

 

 

On my inquiry of Mr Dutton to get access to these decisions, a departmental lawyer – Greg Phillipson – replied that Dutton was unable to respond to my request for access to the AAT decisions because I was not able to be specific about what decisions I wanted; my reason being that Mr Dutton was not so specific himself.  As the lawyer said, Mr Dutton has said a lot.

Nor did Janet Albrechtsen nor Nick Cater respond to me, both themselves having written about the various AAT visa decisions; with the Attorney yet to reply.

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One Response

  1. The position being discussed is very much the type of issue recently dealt with in a lecture by the Lord Chancellor in the UK on 15 June 2017 where he dealt with the structure and need for independence of the judiciary (including I believe the AAT) from parliament, the executive and the media fulfilling that role according to the law.

    Political decision making must be able to be reviewed as it has been in the AAT and the parliament and executive must accept the “rule of law”.

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