Proposed expansion of ministerial power rash and overreaching – Law Council

The proposal to give the immigration minister veto over citizenship decisions made by the Administrative Appeals Tribunal undermines vital checks and balances, the Law Council says

Proposed expansion of ministerial power rash and overreaching – Law Council
The proposed expansion of ministerial power over certain Administrative Appeals Tribunal (AAT) decisions has been slammed by Australia’s top lawyer organisation as rash and overreaching.

Part of the changes being introduced to Parliament in the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, the immigration minister may be given the power to overrule independent citizenship decisions made by the AAT.

Fiona McLeod SC, president of the Law Council of Australia, said that the decision is based on a small set of cases, when the AAT makes thousands of immigration-related decisions every year.

“It is concerning that a small sample of cases, where the full facts are not entirely known, is being used to legitimise the expansion of ministerial power. The Administrative Appeals Tribunal made some 76,000 decisions in the past two years, and around 33,000 relating to immigration,” McLeod said. "The immigration minister already has the power to appeal AAT citizenship decisions that he disagrees with. The minister also has wide powers to cancel an individual’s visa on character grounds before a citizenship application is made. This new legislation effectively allows the minister to override citizenship decisions or to render his own decisions unreviewable.”

The Law Council said that important checks and balances will be undermined by the proposed new powers.

“The AAT exists to provide an important check and balance on ministerial power. This will be substantially watered-down through this legislation,” McLeod said. “Without checks on ministerial power, scrutiny of government decision-making is severely curtailed. Such scrutiny is important because mistakes are made and due process not always observed.

"The AAT was established nearly half a century ago, because the Australian government recognised that ministers and their departments could make incorrect decisions on the basis of incomplete or erroneous information,” she added. "There has been much recent discussion on the importance of protecting Australian values. A core element of these values is surely fairness and proper checks on executive power. We urge Parliament to refer the bill for a comprehensive committee review, with sufficient time to consider the potential effects of these changes.”

In addition to the new powers, the Turnbull government is proposing stricter requirements to citizenship tests, including a standalone English language test where applicants need to demonstrate a “competent” level of reading, writing, listening, and speaking. It is also proposing a longer residency requirement and that applicants demonstrate their integration into the Australian community.

The administration said that the proposal is being made to strengthen the integrity of the citizenship process in the face of heightened threats around the world.

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