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Independent arbiters crucial in Australia’s new ‘mega-ministry’ era
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Independent arbiters crucial in Australia’s new ‘mega-ministry’ era

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Representative legal bodies have raised the alarm about “dangerous” attacks on courts and tribunals from the Australian government, with a reminder that the rule of law is a core part of a healthy democracy.

Criticism of the Administrative Appeals Tribunal (AAT) by the Australian government has been described by a leading advocacy group as tantamount to an attack on national democracy.

President of the Australian Lawyers for Human Rights (ALHR), Kerry Weste, said that recent reproach of the independent tribunal was like attacking the fundamental principles of the rule of law.

“Politicians will always disagree or be displeased with some decisions of courts and tribunals, especially those whose role it is to scrutinise whether government has made the correct decision according to the law. However this process is the very basis of the rule of law — a doctrine upon which Australia’s democracy depends,” Ms Weste said.

The Victorian Bar, meanwhile, slammed what it described as “inaccurate” media reports about the AAT overturning decisions to cancel or refuse visas on character grounds. President Dr Matt Collins QC said that scrutiny of institutions was vital for a healthy democracy but that was undermined when the criticism was “ill-founded”.

“Recent media reports suggesting that the AAT sets aside more visa cancellation decisions than it affirms are wrong,” Dr Collins said.

He noted that the AAT’s independent function was to review decisions made by Federal Government officials. The option to have a decision reviewed was an essential part of ensuring access to justice for the Australian community and holding government officials accountable for their decisions, he said.

“The ability to seek a review of decisions to cancel visas is important in a country governed by the rule of law.

“Cancellation of permanent residency visas, in particular, is a very serious matter that can result in families being permanently separated,” Dr Collins said.  

Ms Weste added that the independent role of the AAT as a mechanism to provide checks and balances of ministerial decisions had become vital, given the new federal Department of Home Affairs “super portfolio”, led by Peter Dutton.

Ms West said that, as a result of the bulked-out new ministry, by combining four existing ministries and adding functions from yet more departments, there was now an unprecedented concentration of ministerial powers which sat under one Home Affairs umbrella.

“This necessarily reduces the independence of all the bodies now subsumed within the ‘mega-Ministry’,” Ms West said.

“This reduction of independence highlights the vital importance of the AAT’s role in undertaking merits based review of ministerial decisions. These decisions often fundamentally affect the lives of real people.”

According to the ALHR, the number of Commonwealth Acts which provide an avenue of appeal to the AAT number into the hundreds. This ensured the appropriate and correct use of decision-making powers by federal agencies.

Ms Weste pointed out bureaucrats could not be expected to always make the right decisions and that the number of instances where government decisions had been overturned demonstrated the importance of the merits review system.

“The AAT reviews tens of thousands of decisions every year by identifying the applicable law, applying it accurately and ensuring that the rule of law is effectively brought into administrative decisions. It deals with cases about workers’ compensation, tax, veterans’ appeals, social security, visa decisions and the NDIS,” she explained.

“Such checks and balances are particularly necessary when our federal government already makes many decisions by computer algorithms and is proposing legislation that will allow even important Ministerial decisions to be made in this way.”

The algorithm-based decisions Ms Weste alludes to relate to a report by the ABC last year, which suggested at least 11 federal departments were administering their relevant legislative instruments with computerised decision-making clauses.

“A computer is not capable of adding extrinsic facts to moderate the information it receives. It cannot take account of community values and expectations, considerations of fairness or common sense,” Ms Weste said.

“A risk of resultant incorrect, unfair or arbitrary decisions is therefore very real and oversight by independent tribunals is absolutely essential in an era when life-changing decisions are being delegated by ministers to their computers.”

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