It’s a glittering prize: a job as a member of the Administrative Appeals Tribunal, one of the plummest appointments within the gift of a federal government.
Tenure of up to seven years, renewable. Annual salary of up to $385,000 for senior members. Removal only by order of the governor-general after a vote from both houses of parliament. No compulsory retirement age. The prestige of effectively being a judge sitting atop a multi-pronged legal institution whose annual budget is nine times more than the cost of running the High Court.
As for qualifications, none are needed. Even though the AAT makes legal judgements every day about important, often life-changing government decisions, its members don’t need a law degree, or any kind of degree, or any experience, in anything.
All that’s required is a federal government willing to hand out the gift — and how those gifts have been flowing under the Abbott/Turnbull/Morrison governments over the past six years.
During that period, the Coalition has replaced 70% of the 333 AAT members with its own appointments — a turnover that has decimated the ranks of the members and senior members who deal with the bulk of the tribunal’s daily caseload.
These are all senior quasi-judicial positions that, in the AAT’s own words, conduct “independent” merit reviews of migration, refugee, social security and other decisions by government ministers, departments and agencies.
But how “independent” are those members? This is what Inq has discovered:
- 65 of the 333 AAT decision-making members are former Liberal Party staffers, former Liberal or National politicians, party donors, members, unsuccessful Liberal candidates or Liberal government employees
- All bar one of the 65 were appointed to their roles in the last six years
- 24 of those 65 appointees have no legal qualifications, including seven of the AAT’s senior members
- The vast majority were appointed without a transparent selection process
In contrast, when the Labor Party left office in 2013, only 15 members across the AAT, and associated migration, refugee and social services tribunals, had any sort of political connection.
And many of them hadn’t been first appointed by an ALP government.
To break it down further: the Rudd and Gillard governments appointed former Labor MP and Federal Court Judge Duncan Kerr as AAT President, and South Australian Labor Senator Linda Kirk to the Migration Review Tribunal. There was another member who appeared to have connections to the Liberal government who was appointed in 2009. Former ALP Legal Advisor Stephanie Forgie was still sitting on the AAT, having been first appointed under Labor 1988.
By the end of 2013, there were also four people with connections to Labor connections and five with connections to the LNP serving on the tribunals who had been originally appointed under the Howard government. We understand two others on the Social Securities Tribunal had connections to the ALP, but because that tribunal didn’t publish the start of dates of their members, we don’t know for sure which government appointed them.
This has all happened under the umbrella of the Administrative Appeals Tribunal Act 1975, which stipulates that a member “must not” be appointed unless the person is a legal practitioner of the High Court or Supreme Court and has been “so enrolled for at least five years”, or — and this clause has given the government legal carte blanche to appoint dozens of non-lawyers and political cronies — “in the opinion of the governor‑general, has special knowledge or skills relevant to the duties of a senior member or member”.
But in a review of the AAT, published earlier this year, former High Court judge Ian Callinan QC — a noted conservative — recommended that “all further appointments, re-appointments or renewals of appointment … should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia”. The AAT, he observed, is “difficult, factually and legally” and “capacity to undertake forensic analysis and write reasoned judgements is essential”.
The AAT was set up over 40 years ago to provide a quick, affordable quasi-judicial forum to appeal against government department decisions. For much of that time it operated invisibly, frequently dealing with the grievances of the most vulnerable in the community: welfare recipients, NDIS users and veterans living on compensation. It also deals with visa and refugee claims, where it has earned the public ire of Coalition ministers over decisions the government claims are out of step with community values.
Although the AAT is part of Australia’s legal machinery, it doesn’t have the same protections as the judiciary — and that’s the technicality that has enabled the government to intervene to dilute the AAT’s independence.
Ministers have also publicly attacked decisions and singled out tribunal members, typically with the vigorous support of some of their media supporters.
The government has subverted the established appointments process, halting job advertisements and interviews, handing unfettered power to the attorney-general to hand-pick new members, and nobbling the statutory review body of senior public officials (established to provide independent oversight of the tribunal) by withdrawing its funding.
The sheer number of new members, some of whom have no experience in the legal profession, has led to a slowdown in decision making. In 2013/14, before the government began its assault on the AAT, the migration and refugee tribunal decided 24,729 cases. In 2016 that number fell to 16,111 and is slowly building up to an estimated 20,500 for 2019. That amounts to a 25% drop in productivity.
Justice and independence: they’re the two big losers in the government’s brazen, systemic politicisation of one of Australia’s most important legal institutions.