The Coalition’s legal appointments
Providing cover is as much a political as a military art form, distracting the enemy with a few grenades in one direction while forces scuttle more freely in another.
It doesn’t get any more sophisticated in Canberra. Peter Dutton, the immigration minister, has a huge bellyache about how the Administrative Appeals Tribunal is handing out protection and bridging visas to refugees like confetti, while Attorney-General George Brandis from behind the shrubs wheels out a trolley-load of fresh tribunal appointments.
Out with members who had been unfaithful to the government’s agenda, specifically on migration and refugee matters, and in with others who bring with them higher expectations of conformity. These include unemployed former Liberal members of parliament, advisers to Liberal politicians, unsuccessful Liberal candidates, lawyers who have acted for the families of Coalition politicians, or just good ol’ boys and girls who are Coalition favourites and ideological cohorts.
The AAT is the threshold body that reviews the merits of a vast array of the Commonwealth’s administrative decisions – taxation, child support, workers’ comp, veterans’ entitlements, family assistance, migration and refugee visas, deportations, citizenship, customs, freedom of information, disability, passports, security assessments. You name it, there are more than 400 Commonwealth acts and legislative instruments where the AAT can exercise its quasi-judicial functions.
In February Dutton had a go at Queensland magistrates, declaring for the benefit of 2GB listeners that they are “hopeless left-wing softies” – mostly Labor appointees. “If you appoint civil libertarians to court benches … you will get soft sentences … exactly what’s happened here.”
This outburst followed a bail decision in which an offender was released and then murdered his wife. It was left to the Judicial Conference of Australia to point out that the bail decision had nothing to do with being left-wing or soft or aligned to a political party.
The minister was just warming up. In May, again on 2GB, he announced that the decisions of the AAT were also ideologically motivated.
“When you look at some of the judgements that are made, the sentences that are handed down, it’s always interesting to go back to have a look at the appointment of the particular Labor government of the day. Anyway, it’s a frustration we live with.”
Apart from introducing the novel idea that the AAT hands down “sentences”, Dutton was clearly having a crack at the retiring president of the tribunal, Duncan Kerr, a justice minister in a former Labor government.
This was soon followed by stories in News Corp papers about the case of an Indian taxi driver, Jagdeep Singh, who had indecently assaulted a passenger resulting in Singh being dispatched to immigration detention. Initially, he secured a bridging visa after Miriam Holmes at the AAT heard a body of psychological evidence.
Dutton set that aside and subsequently Singh applied again for a limited bridging visa, which was granted by Justice John Logan, the acting president of the AAT.
Melbourne’s Herald Sun went to town, claiming Logan had “thwarted Immigration Minister Peter Dutton by again saving sex creep Jagdeep Singh from deportation”.
Quite apart from the fact the AAT was not hearing this as a deportation case at all, the newspaper story neglected to point out the salient fact that Singh by this stage had voluntarily undertaken to leave Australia and what Logan had done was to allow him to organise his departure, subject to conditions.
In the process the judge made a determined point about the independence of the tribunal. “Any member [of the tribunal] 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 placed in him or her.”
Again, the Judicial Conference of Australia had to defend the patch and this was reported by the Herald Sun under the headline: “Judges’ professional body backs visa decision on taxi driver convicted of sex attack.”
The JCA had not “backed” the visa decision at all and issued another statement saying that it had merely corrected the errors in the paper’s report. It amounted to a correction of the story reporting the correction, but it showed that the judiciary was not going to take these distortions lying down.
Miriam Holmes was not reappointed by the government in the latest round and John Logan has been replaced at the top of the tribunal by Queensland judge David Thomas, president of the Royal National Agricultural and Industrial Association of Queensland, and deputy chairman of the Queensland Ballet.
We’ve also had the minister’s proxies in the media conjure some obliging statistics. The Herald Sun, again, claimed the tribunal had “overturned Mr Dutton’s visa decisions” 4389 times in the past year. The newspaper claimed 39 per cent of 11,323 “ministerial visa decisions reviewed by the AAT” had been rejected.
“The AAT also overturned 37 per cent of the minister’s rulings on migration visas that were appealed against in 2015-16.”
The essential fallacy of these claims is the fact that the AAT doesn’t have the power to overturn the visa decisions of the minister. Its remit is confined in these cases to decisions of ministerial delegates – bureaucrats and clerks, the ones at the front line of assessing migration and refugee visa applications.
Sian Leathem is the registrar of the tribunal and in May she had the job of straightening out the newspaper’s reported statistics on visa determinations. According to her evidence at a session of senate estimates, the figure of 39 per cent “rejection” related to general migration matters: bridging, business, family, partner, student, visitor and work visas.
The contentious area of protection visas for refugees are dealt with by the tribunal’s general division, where we find that since July 1, 2014, a total of 60 decisions of ministerial delegates to cancel protection visas were set aside, usually by referring the case back to the department. This was less than 1 per cent of the total number of protection visas finalised by the tribunal in that period.
On character-related deportation decisions, from July 2014 to April 30, 2017, 156 cases had been reviewed and the delegate set aside in 35 of them, or 22 per cent.
When pressed on this at the senate estimates hearing, the attorney-general said: “The statistics are merely an exercise in arithmetic.”
Even so, Dutton appears to misunderstand the way the tribunal functions, and this is something that new appointees will no doubt bear in mind. Contrary to the minister’s grasp of the process, the more difficult decision for a member of the AAT hearing immigration and refugee cases is not to set aside a delegate’s decision but to uphold it. An administrative decision that is upheld means, almost certainly, an appeal to the Federal Circuit Court and a full review of the first instance reasons.
That requires a far more exhaustive deliberation on the part of a member of the tribunal than the easy option, which is to remit the decision back to the department for reconsideration, where in due course it is likely to come back to the tribunal for a fresh merits review by a different member.
For Dutton not to appreciate this shows a minister quite out of his depth, but why should he worry – he’s protected by a great vortex of misinformation.
This gets us to Attorney-General Brandis. He appeared before senate estimates in May armed with some highly selective research into the law of contempt. He’d trawled through Borrie and Lowe’s textbook on the subject and some 1968 reasons of Lord Denning in R v Commissioner of Police, ex parte Blackburn (No. 2).
Out of this cherrypicked mishmash the attorney synthesised a view that Dutton could not be in contempt because he was only criticising “the way in which certain matters have been handled”, rather than attacking the tribunal’s integrity.
This is an exciting breakthrough: to attack judges or members of an independent tribunal, alleging they are politically motivated in their decision-making, is not now to be regarded as an attack on their integrity.
It was not always so. In 2006 Brandis was reported as saying: “The attorney-general does not have to cease to be a politician to explain to the public, and indeed to political colleagues, the importance of the independence of the judiciary and of the impartial application of the rule of law: indeed it is difficult to imagine that any politician who lacked a strong sense of those values would be a suitable person to be the attorney-general.”
Yet we can imagine an attorney-general who lacks a strong sense of those values, because we have one right now. Among other things, he’s attacked the independence of the Human Rights Commission and the solicitor-general and he’s stood by while courts and tribunals have been scandalised by his ministerial colleagues. As arts minister he also sought to strip the Australia Council of its independence.
So where are we now with this important cog in our administrative law apparatus? Until June 30, the AAT had 322 members, including 18 judges – so 304 non-judicial members. Of those 304, the appointment of 76 (or 25 per cent) was to expire on June 30. Fifty-one of the 76 were not reappointed, although nine of them did not seek reappointment.
There were therefore 42 members who wanted to be reappointed but were not.
In June, Brandis announced 64 appointments, 30 of whom will be new to the task, the remainder being current members. All of them have been appointed for the maximum term possible under the AAT Act – seven years. The appointments, elevations and extended terms of office carry a total estimated cost of $100 million.
With 51 members gone and only 30 new-but-inexperienced ones arriving, membership has been reduced by about 7 per cent. Even before these appointments were announced, the tribunal had about 40 fewer members than it needs for the workload. It now has about 60 fewer than it needs.
And the process of selection is utterly foggy. No public advertisements, no need to be interviewed and no due-diligence panels. One recently appointed member just wrote to Brandis asking whether any jobs were available because he was out of work at the moment.
Bingo, he secured an appointment worth up to $275,000 a year.
The Herald Sun warned us what was ahead when it was puffing the immigration minister last month: “Mr Dutton is ideally placed to have a role in shaping what the AAT of the future looks like.”
The subtext is this: because politicians get elected every few years and we have a sort-of democracy, there’s no need to be so fussed about the rule of law.
This article was first published in the print edition of The Saturday Paper on Jul 8, 2017 as "Grenade solutions". Subscribe here.