While the promise of a federal integrity commission has buoyed a sense of optimism in restoring faith in government and public institutions, repairing the harms done over the past nine years will take more than that.
Over the course of almost a decade, the independence of vital institutions like the Administrative Appeals Tribunal has been called into question over its perceived political stacking (including by this masthead). Though it sounds dull (of course it does — it has the word administrative in it), an AAT which fails to be seen as independent is a serious worry and the consequences cannot be underestimated.
Failing to properly address this, and continuing with the precedent set by previous governments, risks putting Australia on a path towards ongoing politicisation of decision-making bodies, a path that is dangerously similar to what we see in America today.
Who cares?
Outside of law and political nerds, the AAT is not a particularly well-known entity. Indeed, perhaps one of the reasons controversies around appointments to it have not been covered adequately is, well, it sounds pretty boring. Yet as a review body it is extremely significant and one which regular citizens are often more likely to encounter than a court.
The AAT is not a court but a tribunal that has the power to review decisions made by the federal government and its departments. While it can review government decisions made under different legislation, it is commonly called upon to review decisions relating to migration and refugee matters, freedom of information requests, social security, welfare and NDIS matters, among others. In a nutshell, the AAT reviews myriad decisions made by the government on issues that often affect everyday Australians.
Successfully appealing AAT decisions to court can be particularly difficult given courts generally can only review questions of law (such as whether an applicant received procedural fairness or if the AAT failed to consider relevant factors) as opposed to reviewing the merits of a case. It goes without saying that a body dedicated to reviewing government decisions must be and be seen to be independent of that government, rather than an extension of it.
What’s the issue?
The government of the day enjoys a very broad discretion to appoint and reappoint members of the AAT.
Since Federation, Australia has followed a political tradition and remained remarkably successful in maintaining the independence of judicial and review bodies. Even in more recent times, under Liberal and Labor governments between 1996 and 2013, only 5%-6% of appointments to the AAT could be characterised as political. However, since then, under the Abbott, Turnbull and Morrison governments that figure skyrocketed to an average of 32%.
Compounding the issue has been the fact that a significant portion of those appointments include members who do not have legal qualifications.
Michael Manetta, a member of the AAT, said: “I think there’s a problem with non-legally qualified people being appointed to the higher levels of what is a quintessentially legal institution.” Manetta had further alleged that he had been demoted for making too many decisions against the then Morrison government.
In defence of its appointments at the time, the Morrison government said all its appointments to the AAT met the requirements of the Administrative Appeals Tribunal Act.
Ironically, that’s actually the problem. There is no specific requirement in legislation for members of the AAT to be appointed independently. Current legislation gives the government of the day an especially wide discretion to appoint members to the tribunal with limited accountability — aggravated further by a mainstream media apparently too biased or too busy with pop quiz-style “gotcha” questions to cover those appointments properly.
Until now, Australia has relied in good faith on politicians to ensure they use this discretion appropriately. Over the past nine years, that convention has been thrown out the window and we should be worried. It’s a trend that is not exclusive to the AAT. Alleged political appointments to the Australian Human Rights Commission (AHRC) are being scrutinised globally, with the AHRC at risk of having its A-status accreditation being downgraded, potentially affecting Australia’s ability to participate in human rights debates at the UN.
This precedent set by Liberal governments post-2013 is dangerous; one where you can win government and “win” the ability to stack tribunals and independent bodies with political mates who in theory will be less likely to make decisions against the government. It’s a concerning mess that Attorney-General Mark Dreyfus has to deal with. There are several options available to him. Picking the wrong one, however, risks permanently fracturing faith in Australia’s review bodies.
The path ahead
One option is to do nothing and quietly “rebalance” the AAT with its own political appointments. I imagine that after nine years in opposition, a tit-for-tat approach would be pretty tempting. Of course, beyond the dangers already discussed, this path would be especially catastrophic. It would entrench the notion that “both sides do it” and mean that, much like the US, appointments to important independent roles are irretrievably politicised and dependent on the outcome of an election.
An alternative is to take the “when they go low, we go high” approach and return to a pre-2013 era of sensible appointments with a soft commitment to avoiding political appointments. However, this solution is temporary and only as strong as any one government’s resolve. It can also only last as long as the government remains in power.
What is needed is a response that has the capacity to outlast government: legislative reform. It doesn’t have to be particularly complex either. The establishment of a statutory independent appointment committee, with appointments to the AAT restricted to those names shortlisted by that committee, would hardly be groundbreaking. Furthermore, if the AAT is to operate as a quasi-judicial body, a condition restricting tribunal members to only those who hold valid legal qualifications would also help to strengthen the quality of the tribunal and equip it with qualified members who deal with decision-making, procedural fairness and due process on a daily basis.
The incoming government finds itself at a critical juncture where its next move has the potential to permanently alter the strength, fairness and independence of our review bodies — for better or for worse. Let’s hope it chooses wisely.
The article looks only at future appointments and entirely fails to address in any way the current AAT membership which is stacked with Liberal cronies to the point where it is beyond redemption. It is not possible to dismiss individual members except in very limited circumstances (good thing too) so the answer is to scrap the AAT in its entirety. All its functions must be given to a new body, properly constituted with firm requirements for the qualifications of all members and protected from any direct ministerial influence on its operations or appointments.
Not a lawyer but was thinking the same. Put Samson in the temple and start again – but this time aware of the dangers. Only problem is that a future govt of an ilk similar to Abbott/Morrison would also sack them all and start again with its own crew. Or, as Morrison did with the ABC Chair position, just ignore the independent panel established by the Rudd Govt, and indulge in Captain’s Picks.
You’re absolutely right, and because no parliament can tie the hands of any future parliament it’s something we all have to live with. It would still be a lot better than the current position, where the last government could keep on quietly packing the AAT year after year and say, truthfully, it was in full compliance with the relevant legislation and, rather less truthfully, it was therefore all good and proper.
If the AAT was replaced with a body where ministers could not at will appoint anyone they were minded to pick it, any government that wanted to do that would be forced before doing anything else to get a bill through parliament to give it that power. This would certainly attract more attention (and one would hope opposition) than anyone gives at present to these routine appointments, as well as taking up some of that government’s limited resources for new legislation, and therefore be a considerable impediment.
Since, as the article points out, the AAT doesn’t arouse much public interest, the new government might be able to get away with this.
A Transparent, Legal, Oversight Committee or Tribunal is absolutely necessary to ensure that Corruption and Dealing under the table is stamped out. Our hard earned tax dollars are being spirited away into the Accounts of Pigs with Snouts in the Public Money Trough. Cheers from Michael. Australia.
Just a little AAT story: I had a client who was denied a disability support pension, in my view wrongly, and whom I encouraged to appeal as many times as he was allowed to. He finally reached the AAT. The appeal was denied and the tribunal member (?) asked him if he’d tried some inconsequential, non-evidence-based allied health treatment and, if not, suggested he go and do that. I shake my head to this day. It was more like an unpleasant chat to an ill-informed neighbour over the back fence than a review of the rules and decisions – a chat that had important consequences for the client.
Two points:
Less likely the LNP stacked the AAT to achieve desired appeal outcomes; more likely they were just sinecures for party loyalists.
Second, I consider it critical not all AAT members are lawyers – ideally there’d be diverse backgrounds. The AAT should not be deciding matters on legality alone, but also considering whether matters are fair and reasonable.
For much the same reason Ben Clark proposes the RBA Board should not solely comprise economists and company directors: https://uat.crikey.com.au/2022/06/20/sally-mcmanus-reserve-bank-board/
Apples and oranges. Ben Clark is right about the RBA board for the reasons he gives. The function and purpose of the RBA board is quite different to a legal tribunal hearing appeals and the suggestion of including someone like McManus makes very good sense. It does not make any sort of case for diluting the competence of the AAT or any similar body.
And haven’t economists covered themselves in glory since the Dismal Science was unleashed on an unsuspecting world?
When has one of them anywhere ever made an accurate prediction about the future?
Pretyy crap at predicting the past as well.
“I consider it critical not all AAT members are lawyers”
No. It is quite possible for lawyers to consider whether matters are fair or reasonable (they do this all the time), but it is crazy to put those with no legal training on a body that decides legal questions. Might as well insist on appointing unqualified persons as surgeons or power-plant technicians too.
Ratty, I don’t want to drag this out, but administrative appeals are not solely legal appeals; and a tribunal is not a court. Best regards, Jeb.
I don’t want to drag it out either, but this is important. The AAT is not a court, we all know that and the article says so, but it is a legal tribunal and all the cases it considers come in a legal framework. If its members are not legally qualified it is doubtful they are able to consistently apply the legal reasoning necessary to make decisions that accord with the law, which is the whole reason they are there. There is already abundant evidence that the current unqualified members are typically incapable of processing their work load at a decent rate, which is another problem.
If as a matter of policy some of the members are legally qualified and others are not, does anyone applying to the AAT get to choose which will hear their case? Who decides which cases will be heard by somebody who knows what they are doing and which cases go to the enthusiastic amateurs? Are we going to set up a panel for every case consisting of a number of qualified professional members and another number of unqualified lay members, proportionally increasing the cost and complications of the tribunal in order to provide all cases with a level playing field?
The idea that being legally qualified ipso facto renders anyone unable to be fair or reasonable is the most absurd furphy I’ve seen in a while.
The key is “Administrative”. The review may be administrative, quasi-legal or legal. If the legal argument is successful then all managers and politicians should be lawyers. In the words of SCOMO “Heaven help us”.
After countless decades of dealing with lawyers in the corporate sphere, I have no evidence that legal training improves anyone’s ability to care, let alone decide, what is fair and reasonable.
Of course it does not ‘improve’ that. Why would it? Legal training is also unlikely to improve their cake-baking skills, for much the same reasons.
I had a neighbour who was appointed to such a civil tribunal (not the AAT) because she was a retired government school principal and such people were considered to be aware of society’s expectations and experienced in finding the balance between the views of differing groups. She held the role for many years and her work on this tribunal was very highly regarded.
It was many years ago now – before teachers and schools had been subjected to a constant barrage of political criticism.
Unfortunately, the AAT as a legal entity, prioritises the law over fairness and reasonableness.
I helped someone appeal to the AAT about a Centrelink decision that was unfair and based on unreasonable expectations (Centrelink decided it was not required to correct an acknowledged underpayment of $400 because the customer took >13 weeks to realise that Centrelink had made two mistakes, mistakes that were so complex that it took a helpful Centrelink worker over an hour to work out). The AAT judgment was: ‘Sorry. Yes, that’s not fair and happens all the time, but the law is written by Centrelink in its favour and we can’t overturn a Centrelink decision that is within the law, notwithstanding that it is unfair and puts an unreasonable responsibility onto the customer’.
There must be a review of all appointments to AAT, FWC etc to weed out all the LNP mates and staffers, and set up a proper process. First you get the boot us Sophie Mirabella who knows only about feeding herself from the public trough.
And she’s going to need it now because the Palmer UAP stooge got up to fill the 6th Senate place in Victoria, thus leaving Greg Mirabella, spouse of Sophie, unemployed.