Proposed amendment of subsections 7(2)(c) and 7(3)(b) of the Administrative Appeals Tribunal Act 1975
The Australian Greens thank all the submitters to this inquiry and extend our thanks to the committee secretariat.
These proposed amendments in the bill would remove the role of the Governor General in the appointment process in both subsections 7(2)(c) and s7(3)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act) and replaces them with the minister, and in so doing giving the minister exclusive power to appoint someone who is otherwise not qualified for the crucial roles of Deputy President, Senior Member and Member of the Administrative Appeals Tribunal (AAT).
The AAT, at least in theory, is an independent body tasked with undertaking independent review of the minister’s decisions, therefore it is inappropriate for the minister to have any role in appointing members of the AAT as this is a clear conflict of interest.
This amendment of subsections 7(2)(c) and 7(3)(b) is contributing to the sad history of the AAT becoming the retirement fund of former government staffers and MPs. This amendment would further expand the minister’s powers to appoint unqualified or unsuitable people to the AAT, who are unlikely to perform the independent review required of them.
Proposed immunity for Immigration Assessment Authority (IAA)
This proposed amendment to the AAT Act would grant the same protection and immunity to members of the Immigration Assessment Tribunal (IAA) as the protection afforded to a Justice of the High Court of Australia.
IAA reviewers are not independent decision makers, they are public servants engaged under the Public Service Act 1999. They are responsible for implementing the policies of the Executive. It is inappropriate of the highest order to give IAA reviewers the protections afforded to independent judicial officers.
Since the inception of the IAA, reviewers have performed their roles as public servants and nothing more. They lack independence, impartiality, and transparency. Unlike judicial officers and AAT members, IAA reviewers do not take an oath, they are not required to declare conflicts of interest, they do not have independence of remuneration and they do not have fixed term appointments. They do not even have to have legal qualifications.
As the Asylum Seeker Resource Centre have stated:
In short, the IAA provides not only deeply unfair and likely incorrect outcomes, it also fails to meet even the minimal threshold of lawful decision making in almost half of its cases. In our submission the IAA is a deeply flawed body which has no place in Australian law. It should not be bestowed with any privileges or immunities which may create the impression that it is akin to a credible legal merits review body or anything other than a public service provided extended arm of the Government, implementing Government policy to deter future asylum seekers arriving by sea.
Further, the Josephite Justice Office in their submission states that:
We believe that these employees need to be held accountable and liable for the performance of their duties, as are other public servants. In the long term it is apparent to many organisations working with people seeking protection that the IAA needs to be abolished and replaced by a body designed to provide justice, protection and the right for those appealing to have their appeals responsibly and fairly heard. The current "refusal culture" of the IAA, and the summary treatment of vulnerable people is opposed to all that we claim as justice in this country.
What is actually needed, and what those helping people seeking asylum have asked for, is a major boost to the number and quality of AAT members through an independent and transparent appointment process that guarantees that only those who are suitably qualified and experienced are appointed.
This bill does not do this.
The proposal for short-form judgements for the Federal Court
This bill would allow the Federal Court to provide judgements in short for a decision dismissing an appeal if the Court unanimously decides that the appeal does not raise any question of general principle.
The Australian Greens are sympathetic to the Federal Court’s heavy workload, however providing detailed, reasoned judgments is an inherent aspect of justice, including natural justice, that cannot be interfered with.
The provisions in this bill effectively remove the right to a proper court judgement for people appealing migration decisions.
This bill should not proceed in its current form.
The Australian Greens recommend that the government reject the proposed amendments to subsections 7(2)(c) and 7(3)(b) of the Administrative Appeals Act 1975 from the bill to remove the role of the Governor-General in AAT appointment processes. Instead the government should abolish the IAA and establish a fairer process for persons seeking asylum.
The Australian Greens recommend that the Senate reject proposed amendments to section 60 of the Administrative Appeals Act 1975 from the bill to grant High Court judge privileges and immunities to IAA reviewers.
The Australian Greens recommend that the Senate reject proposed amendment to section 28(5) of the Federal Court of Australia Act 1976, which would allow the Federal Court to provide short form judgments. Instead, the Government should properly resource the AAT, and appoint more relevantly qualified and experienced AAT members to address the current backlogs.
The Australian Greens recommend that the government create an independent body to make AAT appointments to strengthen the independence of the AAT appointment process and ensure that only relevantly experienced and qualified people are appointed.
Senator Lidia Thorpe
Senator for Victoria