Just before ousted Prime Minister Scott Morrison called an election, his Attorney General Michaelia Cash charged the Administrative Appeals Tribunal with a host of Liberal Party comrades. Political appointees are out of control and the AAT must be killed, writes Greg Barns SC.
The Attorney General’s office is the one that has been tarnished by the Morrison government. Christian Porter and Michaela Cash used it to destroy the independence of the Administrative Appeals Tribunal (AAT) by turning the AAT into an offshoot of the Liberal Party.
They also endorsed the shameful prosecution of Bernard Collaery, the man who exposed Howard government spying on East Timor in the early 2000s. And, as has been the case since 9/11, both were under the grip of the authoritarian security state bosses in ASIO, ASIS and others and passed a law regardless of the heinous attack on freedom served upon them by these agencies.
What the current (and likely temporary) Attorney General, Senator Katy Gallagher, could do immediately, and should, is ensure that the Attorney General is no longer used to undermine the rule of law by shutting down prosecutions. against Canberra lawyer Bernard Collaery. She and Mark Dreyfus (the likely permanent AG) should also promise to abolish the AAT.
Kill the AAT
The AAT has become so full of Liberal Party members, former MPs and staff that it must be eliminated. This mechanism was established in 1977 by the Fraser government to ensure that ordinary citizens could challenge decisions on taxes, pensions, migration visas, etc., cheaply and quickly.
For many years, the AAT fulfilled this role admirably. While there have always been a handful of appointments that could be called political, since Tony Abbott became Prime Minister the number of appointees who could be called political is obscene.
Just before the election was called, then-GA and Senator Michaelia Cash shamelessly appointed a number of Liberal and government members and staffers to the AAT, where they will earn between $190,000 and $380,000. dollars per year.
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How rotten this piling practice has become is clearly illustrated by a recent report from the Australia Institute. He calculated that, whereas in “the Howard and Rudd/Gillard/Rudd administrations, political appointees represented 6% and 5% of all appointees, respectively”, “under the Abbott/Turnbull/Morrison administration, political appointees accounted for 32% of all new appointments. In the case of the Morrison regime, 4 out of 10 appointments have been a government supporter or sympathizer.
Mr. Dreyfus should pass urgent legislation abolishing the AAT and creating a new body where all appointments are freshly made. The appointment process should be conducted by an independent committee that makes recommendations to the Attorney General.
Would such a drastic measure be considered an attack on judicial independence? No. What Mr. Dreyfus would do is restore the independence of decision-making where the government is still involved.
And empty the floor of Collarery
Regarding Mr. Collaery, if the Labor Party is serious about protecting citizens who expose the corruption and wrongdoing of security agencies like ASIS, Mr. Dreyfus should withdraw Senator Cash’s consent to the prosecution of the former ACT Attorney General. The Commonwealth DPP’s prosecution of Mr Collaery in the ACT Supreme Court has been going on for almost five years.
This is a case where Kafkaesque laws allowing secret evidence are used, and where the legal bill paid by taxpayers is in the millions of dollars. And why? For the Commonwealth to send a message that if you have a conscience and refuse to remain schtum on actions such as ASIS bugging the cabinet of the poorest country in the world at the time, you will be hunted down and sent to prison.
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There is no public interest in pursuing this matter. The offenses against Mr. Collaery had to be checked off by the Attorney General and Senator Gallagher can say enough is enough. Mr Dreyfus has also signaled that he is thinking along these lines, according to The Guardian.
What else could the new AG do immediately to remove the stench that has clung to the office since the days of the Abbott government when the pompous George Brandis held the portfolio?
It has been more than 20 years since the first batch of post-war on terror laws were passed. Since then, more than 80 bills have become law and they have, without exception, eroded fundamental rights such as the right to silence, the right to independent legal advice, freedom of association, freedom of expression and freedom of movement. What is needed is a review of these laws and the drafting of a serious bill of rights that at least offers protection against abusive executive government in this policy area.
The Albanian government will find that the new independent MPs and the Greens will most likely support each of these initiatives. All the more reason to strike now.
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A version of this article first published by Pearls & Irritations, here.
Greg Barns is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019).
Greg graduated BA LLB from Monash University in 1984. He has been a member of the Tasmanian Bar since 2003. He is the former national chairman of the Australian Republican Movement and director of the human rights group, Rights Australia. He has written three books on Australian politics, is a director of the Australian Lawyers Alliance and a member of the Australian Defense Lawyers Alliance.