Government Policy AND THE AAT essay PDF

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I INTRODUCTION This essay provides a critical evaluation of the role of government policy in Australian Administrative Appeals Tribunal’s (‘AAT’ or ‘Tribunal’)1 decision-making. It starts by briefly overviewing the role that government policy plays in administrative decision-making. It then outlines the settled guidelines the AAT is to follow when considering government policy in its adjudication. The final section highlights the strongly opposed views regarding how independent the AAT should be when adjudicating administrative decisions that are guided by government policy. It argues that the AAT is in a precarious position. On one hand, it must remain truly independent so as to provide the public with a genuine and accessible 2 avenue of administrative review free from political pressure. On the other hand, it must respect the Constitutional authority of the elected government to set broad policy that reflects the public interest. II GOVERNMENT POLICY AND THE AAT A Inevitable Conflict The AAT is a ‘curial curiosity and a political anomaly.’ 3 It operates as the executive in judicial clothes, existing in a Constitutional ‘no man’s land’ between Chapter III courts and the executive. The Tribunal is clearly a creation of the government. Yet there is a statutoryseparation between the executive and the Tribunal that allows it to review administrative decisions independently. In doing so, it has authority to affirm, vary and substitute4 decisions of the executive to ensure the ‘correct or preferable’ 5 decision is made in each particular case brought for review. As opposed to judicial review, the decision of the Tribunal is held to be a decision of the primary decision-maker.6 The independence of the Tribunal has been widely debated with strongly opposed opinions. As shown in the discussion below, this division is magnified when considering the role 1 This essay uses the terms AAT and Tribunal interchangeably. 2 Chantal Bostock, ‘The Effect of Ministerial Directions on Tribunal Independence’ (2011) 18 Australian Journal of Administrative Law 161, 162. 3 Gerard Brennan, ‘The Administrative Appeals Tribunal: Early Issues’ (2001) 9 Australian Journal of Administrative Law 5, 5. 4 Administrative Appeals Tribunal Act 1975 (Cth) s 43. 5 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 307. 6 Kerrie O’Callahan and Michelle Howard, ‘Promoting Administrative Justice: The Correct and Preferable Decision and the Role of Government Policy in the Determination’ (2013) 32 (1) University of Queensland Law Journal 169, 170. 1

government policy should play in guiding Tribunal decision-making. B Government Policy in AAT Decision-Making Ministers are responsible for decisions made by their respective departments. These decisions often have an intimate impact on citizens’ way of life. In a liberal-democratic society, citizens go to their elected officials to influence how these decisions will be made. Ministers, informed by these elected officials, are able to draft policies that guide administrative decision-making in a way that reflects public interest.7 A well-drafted policy also effectively focuses the decision-maker’s attention to relevant considerations that the Minister judges as appropriate in exercising discretionary power while still allowing for flexibility in individual cases.8 When reviewing administrative decisions, the Tribunal stands in the shoes of the primary decision-maker.9 A key question in this process is whether the Tribunal should wear those shoes ‘faithfully’10 and apply government policy to its decisions or whether it should remain independent and make decisions that represent justice in the individual case. According to Edgar, the principles that guide how the Tribunal will consider policy in its decision-making are well settled.11 In Drake v Minister for Immigration and Ethnic Affairs12 the Federal Court heard an appeal from a decision of AAT that upheld a Minister’s decision to deport a USA citizen under s 12 of the Migration Act 1958 (Cth). Bowen CJ and Deane J, in their joint judgment, set aside the decision of the AAT because the Tribunal, in reaching its decision, had applied the relevant government policy uncritically. Their Honours emphasised the independence of the AAT, stressing that the Tribunal cannot ‘in the absence of specific statutory provision, abdicate its function of determining the correct or preferable decision’ by ‘merely determining whether the decision conformed with whatever the relevant general government policy might be.’13 Further, Their Honours confirmed that in all decisions the AAT would need to demonstrate that it ‘considered the propriety of the particular policy and 7 Gabriel Fleming, ‘“The Proof of the Pudding is in the Eating”: Questions About the Independence of Administrative Tribunals’ (1999) 7, Australian Journal of Administrative Law 33, 36.

8 Stringer v Minister for Housing and Local Government [1970] 1 WLR 1281, 1298. 9 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 209. 10 Robin Creyke and John McMillan, Control of Government Action (LexisNexis Butterworths, 4th edn, 2015) 796. 11 Andrew Edgar, ‘Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help?’ (2009) 16 Australian Journal of Administrative Law 143, 143. 12 (1979) 2 ALD 60. 13 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 70. 2

expressly indicates the considerations which have led it to that conclusion.’14 The above case was sent back to the AAT to be reheard. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2)15 (‘Drake (No 2)’) Brennan J detailed guidelines on how the Tribunal would consider government policy in its adjudication. His Honour stated that the Tribunal would ‘ordinarily apply’ Ministerial policy16 in reviewing administrative decisions unless the policy was ‘unlawful or unless its application tend[ed] to produce an unjust decision in the circumstances of the particular case.’17 In any case ‘cogent reasons [would] have to be shown against’ applying the policy.18 While Brennan J was clear that the ‘Tribunal is free as the Minister to apply or not apply’ 19 the relevant policy His Honour stated that there were ‘substantial reasons which favour[ed] only cautious and sparing departures.’20 His Honour rightly pointed out that Ministers have Constitutional authority to form policy and that this policy was often approved and scrutinised by an elected government. This authority was not bestowed upon unelected Tribunal members, therefore, it would be inappropriate that ‘general administrative policy … be formulated by an adjudicative tribunal.’21 Drake (No 2) appears to sensibly hold middle ground that respects the Constitutional authority of the executive while still maintaining essential adjudicatory-independence. III OPPOSING VIEWS REGARDING THE ROLE OF POLICY IN TRIBUNAL DECISION-MAKING A Independence Opposing views about the role that government policy should play in AAT decision-making hinge off arguments about AAT independence.22 While the AAT does not exercise judicial power, it is designed with the hallmarks of judicial independence. The President, Deputy

14 (1979) 2 ALD 60, 69–70. 15 (1979) 2 ALD 634. 16 Interestingly, Brennan’s J judgment clearly places greater importance on applying policy formulated at the Ministerial level as opposed to the Departmental level. See Edgar, above n 11, for a critical analysis of the distinction between Ministerial policy and Departmental policy. 17 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 645. 18 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 645. 19 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 644 20 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 644 21 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 643. 22 Fleming, above n 7, 34. 3

President and Senior Members of the Tribunal must all have legal qualifications. 23 Tribunal members also enjoy security of tenure24 and independent remuneration conditions.25 This statutory-distance between the AAT and the executive arguably allows the community to feel confident that Tribunal members ‘will consider the merits of their cases in an impartial way, and make a different decision to that of the relevant government agency where they consider that appropriate.’26 Not surprisingly a legislated objective of the AAT is to ‘promote public trust and confidence in the decision-making of the Tribunal.’27 It is unlikely that the community would hold the same confidence in a Tribunal that blindly and uncritically applied government and departmental policy even when the application would produce an injustice. On the contrary, this model would effectively turn the Tribunal into another ‘unnecessary tier in the administrative structure.’28 Adding to this point, Sir Anthony Mason argues that citizens lack confidence in administrative decision-making because it lacks independence. Under this system, he argues, the administrative decision-maker ‘is 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.’29 Arguably, the AAT’s independence frees Tribunal members from this political pressure and allows them to make politically unpopular decisions with ‘impunity’.30 In 2000 the Coalition government attempted to drastically reduce the independence of the AAT by, amongst other things, introducing performance pay and removing security of tenure for Tribunal members.31 This proposed reform was met with strong opposition. For example Senator Bolkus, argued that reducing the independence of the Tribunal was ‘totally contrary to liberal principles’ and would ‘systematically reduc[e] the rights and capacities of citizens in this country to access their rights and to hold governments accountable.’32 23 Administrative Appeals Tribunal Act 1975 (Cth) s 7. 24 Administrative Appeals Tribunal Act 1975 (Cth) s 8. 25 Administrative Appeals Tribunal Act 1975 (Cth) s 9. 26 Gabriel Fleming, ‘Tribunals in Australia: How to Achieve Independence’ in Robyn Creyke (ed) Tribunals in the Common World (Federation Press, 2008) 87. 27 Administrative Appeals Tribunal Act 1975 (Cth) s 2A(d). 28 Brennan, above n 3, 7. 29 Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 130. 30 Brennan, above n 3, 6. 31 Administrative Review Tribunal Bill 2000. 32Commonwealth, Parliamentary Debates, Senate, 26 February 2001, 24841 (Nick Bolkus). 4

Therefore, the Tribunal requires genuine independence, even from government policy, to genuinely adjudicate. However, as discussed below, this independence from government policy can go too far. B Tribunal to Adjudicate not Legislate The Tribunal’s ability to disregard policy is a ‘challenge to the theory of responsible government.’33 Elaborating on this, some state that the AAT has become too independent34 by not giving enough weight to government policy. It appears that the statutory distance between the executive and the AAT is a double-edged sword as there is a temptation for the Tribunal to extend its broad powers into the policy setting arenas of the government beyond what is ‘necessary to do justice to the individual before it.’35 The Tribunal’s role is to adjudicate executive decisions in individual cases that come before it and not to inappropriately ‘disrupt’36 policy objectives set by an elected government. In reaching its decisions, the Tribunal should be careful to outline broad principles applicable to the present case before it rather than narrow statements that foreshadow the substantive conclusion of future cases.37 Brennan J echoes this point of constitutional-correctness explaining that policy setting is best left to the executive as they are held responsible to the elected parliament and are supported with public service resources to make these decisions.38 In His Honour’s opinion, the Tribunal entering the broad policy arena was liken to being ‘adrift on a sea of uncertainty without any anchor of either law or fact to keep it within the harbour of its own competence.’39 This view was echoed by Phillip Ruddock in relation the AAT’s apparent disregard for the government policy concerning criminal deportation. He stated ‘I have been concerned for some time that the Government's views … were not being given due weight by the Tribunals.’40 33 Fleming, above n 7, 34. 34 Bostock, above n 2, 162. 35 Peter Cane, ‘Merits Review and Judicial Review – The AAT as Trojan Horse’ (2000) 28 Federal Law Review, 213, 237. 36 Re Becker (1977) 1 ALD 158, 162–163. 37 Linda Pearson, ‘Policy, Principles and Guidance: Tribunal Rule-Making’ (2012) 23 Public Law Review 16, 29. 38 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 644. 39 Brennan, above n 3, 12. 40 Joint Standing Committee on Migration, House of Representatives, Deportation of Non-Citizen Criminals (1998) 2. 5

The point above is highlighted when comparing the outcome of two deportation cases that came before the AAT. In Re Nevistic and Minister for Immigration and Ethnic Affairs41 Davies J upheld a decision to deport a Yugoslavian citizen, convicted of drug offences. His Honour explained that he would have come to a different conclusion if it were not for the government’s policy. Even though His Honour was critical of the policy he gave weight to it as it was ‘properly … formulated in the political context and [was] an exercise of political power.’42 This decision respects the Constitutional right of the executive to set the direction for complex and sensitive topics such as deportation. Also, the decision acknowledges that citizens often lobby their respective members of parliament to set policy in relation to matters like this.43 However, in Re Gungor and minister for Immigration and Ethnic Affairs 44 Smithers J overturned a decision to deport a Turkish citizen convicted of drug crimes. Interestingly, Smithers J had the similar concerns45 to Davies J in Nevistic however, His Honour stated, ‘…it is clear that there is a danger of inflicting injustice and hardship in cases of various individuals if that policy is applied according to its terms.’46 His Honour went on further to state that the government’s policy was ‘not compatible with good government or the best interests of Australia.’47 Arguably it was inappropriate for an unelected Tribunal member to criticise and disregard government policy that had been developed through a process of parliament scrutiny.48 Ironically, the public hold the government responsible for Tribunal decisions that disregard scrutinised government policy.49 C Balancing Justice and Consistency Another compelling reason why the AAT should apply government policy is that it produces consistency in decision-making. It has been acknowledged that ‘a policy has virtues of

41 (1980) 3 ALN no 7. 42 Re Ratimir Nevistic v Minister of Immigration and Ethnic Affairs (1981) 51 FLR 325, 331. 43 Michael Kirby, ‘Administrative Review: Beyond The Frontier Marked “Policy–Lawyers Keep Out”’ (1981) 12 Federal Law Review 121, 145. 44 (1980) 3 ALD 225. 45 The effectiveness of the policy to deter and the whether the policy enacted double punishment on nonAustralians. 46 Re Gungor and the Minister for Immigration (1980) 3 ALD 225, 228. 47 Re Gungor and the Minister for Immigration (1980) 3 ALD 225, 233. 48 Kirby, above n 43, 146. 49 Joint Standing Committee on Migration, House of Representatives, Deportation of Non-Citizen Criminals (1998) 24–25 (DIMA’s submissions). 6

flexibility which rules lack, and virtues of consistency which discretion lack.’50 In Drake (No 2) Brennan J stressed consistency as one of the ‘substantial reasons’ for not departing from government policy.51 His Honour argued that inconsistencies in decision-making suggest arbitrariness and brings the ‘process of decision-making into disrepute.’52 However, the sensible and self-restrained53 approach in Drake (No 2) also recognized that policies are inherently limited in that they cannot be drafted to effectively deal with every possible situation. In some cases the ‘rigidities’ 54 of a policy will produce injustice in a particular case. This requires the AAT to depart from the consistent-policy-parameters and bring the individual case into the safety of flexible and independent adjudication where ‘correct or preferable’ decisions are more likely achieved. As stated in Nevistic ‘[t]he desire for consistency should not be permitted to submerge the ideal of justice in the individual case.’ 55 III CONCLUSION Therefore, the above analysis demonstrates that the AAT’s role in considering government policy in its adjudication is precarious. It must respect the Constitutional authority of the government to set policy while still maintaining its independence as a genuine adjudication tribunal.56 Arguably, Brennan’s J approach in Drake (No 2) represented sensible middle ground in this difficult equation. This approach, acknowledges that Tribunal members are unelected, unequipped and unaccountable to disrupt broad policy. Careful and limited departure from policy also ensures consistent decision-making. On the other hand, the approach acknowledges that Tribunal independence maintains public confidence in its adjudication. This also allows for flexibility to ensure ‘correct or preferable’ decisions are made in individual cases.

50 R V Secretary of State for Education; Ex Parte Begbie [2000] 1 WLR 1115, 1132. 51 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 644. 52 Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634, 639. 53 Kirby, above n 43, 134. 54 Robin Cryeke and John McMillian, Control of Government Action (LexisNexis Butterworths, 4th edn, 2015) 798. 55 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325, 334–335. 56 Brennan, above n 3, 11. 7

IV BIBLIOGRAPHY A Articles/Books/Reports Bostock, Chantal, ‘The Effect of Ministerial Directions on Tribunal Independence’ (2011) 18 Australian Journal of Administrative Law 161 Brennan, Gerard, ‘The Administrative Appeals Tribunal: Early Issues’ (2001) 9 Australian Journal of Administrative Law 5 Cane, Peter, ‘Merits Review and Judicial Review – The AAT as Trojan Horse’ (2000) 28 Federal Law Review, 213 Creyke, Robin and John McMillan, Control of Government Action (LexisNexis Butterworths, 4th edn, 2015) 796 Creyke, Robyn, (ed) Tribunals in the Common World (Federation Press, 2008) Edgar, Andrew, ‘Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help?’ (2009) 16 Australian Journal of Administrative Law 143 Fleming, Gabriel, ‘“The Proof of the Pudding is in the Eating”: Questions About the Independence of Administrative Tribunals’ (1999) 7, Australian Journal of Administrative Law 33 Kirby, Michael, ‘Administrative Review: Beyond The Frontier Marked “Policy–Lawyers Keep Out”’ (1981) 12 Federal Law Review 121 Mason, Anthony, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122 O’Callahan, Kerrie and Michelle Howard, ‘Promoting Administrative Justice: The Correct and Preferable Decision and the Role of Government Policy in the Determination’ (2013) 32 (1) University of Queensland Law Journal 169 Pearson, Linda, ‘Policy, Principles and Guidance: Tribunal Rule-Making’ (2012) 23 Public Law Review 16 B Cases Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 R V Secretary of State for Education; Ex Parte Begbie [2000] 1 WLR 1115 Re Gungor and the Minister for Immigration (1980) 3 ALD 225

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Re Becker (1977) 1 ALD 158 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Ratimir Nevistic v Minister of Immigration and Ethnic Affairs (1981) 51 FLR 325 Re Nevistic and Minister for Immigration and Ethnic Affairs (1980) 3 ALN no 7 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Stringer v Minister for Housing and Local Government [1970] 1 WLR 1281

C Legislation Administrat...