On June 1, Crikey ominously reported that Attorney-General George Brandis intended to cull the membership of the Administrative Appeals Tribunal because of a campaign by Immigration Minister Peter Dutton and News Corp newspapers over migration decisions that were unfavourable to the federal government. Twenty-eight days later and Brandis confirmed that report by announcing yesterday 60 appointments and reappointments to the body, which is the independent reviewer of Commonwealth government decisions.
Significantly and disturbingly from the perspective of the AAT’s independence, a number of the appointments made by Brandis are former Liberal Party staffers and members. They include former candidates Hollie Hughes and Nicholas McGowan, and former Abbott government staffers Helena Claringbold and Ann Brandon-Baker. Brandis’ habit of appointing Liberal Party colleagues to the AAT is not a recently acquired one. Last year, he gave former MPs Russell Matheson and Andrew Nikolic — who lost their seats in the July federal election — roles on the AAT, along with a Liberal Party donor and Brisbane lawyer Theo Tavoularis.
The AAT decides thousands of cases each year in areas such as social security, taxation, intellectual property and workers’ and military compensation. But it is its work in the area of immigration that Dutton has relentlessly attacked in recent times. Media outlets such as the Herald Sun, which has run headlines such as “Administrative Appeals Tribunal saves scores murderers, rapists, paedophiles from deportation” and “Tribunal lets fake Iranian refugees stay in Australia”, have joined the fray. The AAT reviews decisions by Dutton and his department to refuse applications for asylum and to cancel visas of individuals who have been jailed for 12 months or more as a consequence of committing criminal offences.
It seems Brandis’ latest effort to populate the AAT with Liberal Party members and government staffers is designed to erode the independence of the tribunal and has been done in response to pressure by Dutton the News Corp media campaign. This conclusion is fortified by the fact that the AAT member who overturned a recent decision by Dutton to deport Jagdeep Singh — who indecently assaulted a woman — was not reappointed.
It is no exaggeration to say that the political manipulation of the AAT by Brandis is unprecedented for any tribunal or court in Australia. Leaving aside that Brandis’ undermining of the independence of the AAT smacks of the sort of conduct one would expect from the first law officer of an authoritarian state, there is the live question of whether asylum seekers and those individuals who have had their visas cancelled because of criminal offences can get a fair hearing if the AAT member hearing the case was appointed yesterday and has strong recent Liberal Party connections.
Or to put it another way. Can it be said that those Liberal Party members and Abbott/Turnbull government staffers appointed by Brandis yesterday will bring to their decision-making in cases involving asylum seekers and criminal offence visa cancellation an impartial mind given the relentless recent campaign by Dutton and his allies in the media?
The issue is one of what is termed apprehended bias. It is not that these former staffers and Liberal Party members might be actually biased, the test is whether a “fair-minded lay observer” might reasonably apprehend that the AAT member might not bring an impartial mind to his or task as decision-maker.
As the University of Adelaide Law School lecturer Anna Olijnyk put in a 2015 article, the apprehended bias doctrine is based on the fundamentally important notion “that judges and other officials — such as tribunal members and royal commissioners — must not only be impartial, but must also appear to be impartial. The rule helps preserve public confidence in the integrity of the justice system.”
The conduct of Dutton and organisations like the Herald Sun in recent months, and the abject failure of Brandis to defend the AAT’s independence, has created a possible apprehended bias problem for the tribunal.
*Greg Barns is a barrister who has appeared for and advised in a number of AAT cases and who is a Spokesman for the Australian Lawyers Alliance