Lawyers defend vital role of Administrative Appeals Tribunal in an era of Ministerial decision by algorithm

June 4, 2018

For immediate release: 4 June 2018

Australian Lawyers for Human Rights (ALHR) is alarmed by a number of recent attacks on the Administrative Appeals Tribunal (AAT) which it says amount to attacks on democracy and the rule of law. In response to criticism of the AAT’s role, ALHR President Kerry Weste said:

“The independence of the judiciary, and respect for the role of courts and tribunals, is at the core of the Australian legal system. It is dangerous and highly undemocratic for any government to be attacking principles so fundamental to the rule of law.”

“Hundreds of Commonwealth Acts provide for avenues of appeal to the AAT, and the tribunal plays a vital role in making sure that Federal government agencies use their decision-making powers appropriately and correctly. 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.”

“Bureaucrats and officials in government departments and agency don’t always get these decisions right, and instances where the government’s decisions are overturned demonstrate the importance of a system of merits review that protects the rights of all Australians.

“The integrity of independent tribunals is an essential part of the system of checks and balances on government decision-making. 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.** As we all know, software is only as good as its programmer. And it is very unlikely that programmers will be aware of, or able to replicate, the multitude of interpretive issues that are involved in ensuring that a Ministerial decision is made legally. Programmes reflect the intrinsic social biases of the programmers and are not necessarily neutral. 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. 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.”

“In each and every tribunal decision, tribunal members are bound to apply the law as determined by Parliament according to our democratic system. In any case where the tribunal fails to apply the law, its decisions can be reviewed and overturned by the courts. This system has served Australia well over many decades.”

In response to criticism of the cost of the Tribunal’s biennial national meeting, Ms Weste said, “The AAT needs to be better resourced in order to do its job properly. It must be emphasised that the AAT is a very efficient part of the legal system because it resolves many cases that would otherwise end up in the courts.”

The creation of Minister Dutton’s new ‘super portfolio’, the Department of Home Affairs, has recently led to an unprecedented concentration of ministerial powers, by combining four existing Ministries and adding functions

from yet more Ministries. This necessarily reduces the independence of all the bodies now subsumed within the ‘mega Ministry’. 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.”

“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” says Ms Weste.

Media Contact: To arrange an interview please contact Matt Mitchell M: 0431 980 365 E: media@alhr.org.au

* Simon Elvery, “Howe algorithms make important government decisions – and how that affects you”, 21 July 2017, ABC News online, http://www.abc.net.au/news/2017-07-21/algorithms-can-make-decisions-on-behalf-of-federal-ministers/8704858

** Australian Passports Amendment (Identity-matching Services) Bill 2018 – see ALHR submission at:par 6.1 and following and ALHR media release ‘Human Rights of Millions Threatened By Turnbull Government Identity Matching Bills’