Some from Torrenside will remember John Rau, the former Attorney-General and Deputy Premier for South Australia.
In 2016, there was a hue and cry among the state’s silks that Rau had successfully applied to become an SC.
His application was submitted after the usual June 30 deadline, and his name was not on the list circulated to the great and the good for consultation.
At the time, Bar president, Ian Robertson SC, was asked whether the appointment undermined members’ confidence in the appointment system:
“There’s a disquiet amongst a number of senior members of the Bar Association. I couldn’t say it applies to all members …”
Now, a decade later, John Rau is a senior member of ART (a handy place for a retired AG), where he came in for a comprehensive birching from Justice Lisa Hespe of the Federales.
It seems the Senior Member addressed the wrong question and did a bit of scissors and pasting from other decisions to arrive at the incorrect outcome in a migration case, TSXN v The Minister.
The decision under review concerned the refusal to grant a protection visa, not the revocation or cancellation a visa.
In the previous month Senior Member the Hon Rau SC had decided Kelly v The Minister where he transported errors from that case into his reasons in TSXN, among other things failing to update the wording which referred to “refusal” instead of “revocation”.
Rau copied into his reasons the text of the former ministerial Direction 99, which is no longer in force.
The Senior Member’s incorrect formulation in TSXN “may have been the result of the Tribunal cutting and pasting from other decisions in the preparation of its reasons”.
Rau repeatedly referenced the wrong statutory question, thereby mischaracterising his task and so failed to exercise the tribunal’s jurisdiction to review the decision of the minister’s delegate.
There were three days between the hearing and Rau’s reasons, but as Bromwich said in another case (DVRL at 63), this short time will not “save the reasons if the error is more than an infelicity, which actually affects the decision”.
Hespe J added:
“Although the Court appreciates the very significant demands made upon Tribunal members, this is at least the third recent occasion in which errors have arisen which might appear to have resulted from use of a ‘cut and paste’ technique: see also CRI026 v Republic of Nauru and Peralta Montes [at 59]. The errors in this case, as in Peralta Montes, have resulted in jurisdictional error.”