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You’re out! How a government tamed the AAT

Members of the Administrative Appeals Tribunal are steadily losing their jobs and being replaced with people less qualified.

Terry Carney lost his job as a member of the Administrative Appeals Tribunal (AAT) via a short, blunt email. It arrived five months after he delivered a tribunal decision which declared Centrelink’s robo-debt scheme to be illegal — a finding that angered the federal government. 

“I had one of those feelings in my bones,” he remembers as the day approached for his contract to be renewed — or not. “I actually sort of paused and looked around in the hearing room when I completed what I knew might have been — proved to be — my last hearing.”

Terry Carney (Image: Matthew Abbott)

The email, sent in September 2017, was an abrupt end to Carney’s long career as a member of the AAT. Together with his work on the Social Security Appeals Tribunal, Carney had put in around 40 years of service. He has an Order of Australia plus a list of legal qualifications and publications in social security as long as your arm. 

But none of that mattered when his contract came up for renewal and he was given a day to clear out his desk at the AAT. “It was disturbing,” Carney told Inq. “It’s disappointing for people. But a lot of highly qualified people, particularly in recent years, have been quote unquote ‘cleared off the books’ of the AAT.”

Dozens of AAT members have been moved on since the Coalition government came into power in 2013. Some have been given the Terry Carney treatment, removed without explanation, despite meeting their professional targets.

Others saw the writing on the wall and jumped first. Their replacements include 65 former Coalition staffers, election candidates and former state and federal MPs — many of whom don’t possess any legal qualifications.

Sue Raymond has been a close observer of the AAT’s unravelling independence. A lawyer by training, she held positions on various tribunals and was a senior member in the AAT’s Adelaide office until she decided to leave in 2017. 

Since 2015, Raymond has watched experienced members, who were recommended for reappointment, pushed out in favour of those who arrived with political patronage.

“I’m not saying none of [the political appointments] have the right skills,” she tells Inq, “but even if they do, it smacks of cronyism. If you see people just being appointed with no openness, and some of them have been former staff or failed candidates or whatever, it just devastates the morale …  it devalues the skills required to do the job and it does chip away at that notion of an independent tribunal.”

When Raymond was hired in 2012 to the Migration Review Tribunal — later merged with the AAT — there was an open appointments process. She replied to an advertisement and was interviewed by a panel, including the tribunal head, a department official and a community representative.

“As well as that you were given one or two fact scenarios before going to the interview to indicate how you would approach making a decision,” she explains. It led, she says, to appointees from varied backgrounds who were “whip smart and really well suited for the role”.

Several former AAT members hired before 2015 told Inq they had gone through a similar hiring process, including a written application, interviews and providing multiple referees. 

As well as stacking the AAT with party loyalists, the Coalition has singled out decisions it doesn’t like, usually on the grounds that they don’t reflect “community values”. The government’s modus operandi is to attack the individual AAT member who made the decision, often with the help of its media allies.

In 2017, senior tribunal member Miriam Holmes was on the receiving end of a media mauling over her decision to grant a bridging visa to an Indian man who’d been convicted of sexual assault, under headlines like “Tribunal allows sex creep to stay” and “Tribunal lets migrant riffraff run rings around us”.

Former colleagues describe Holmes as someone with all the attributes needed in a senior member — strongly independent, an accomplished lawyer and a good caseload manager — but her contract was not renewed when her term expired in 2017. 

In his review of Holmes’ decision, the AAT’s then-acting president, Justice John Logan, called on the government to respect the separation of powers that underpins Australian democracy.

“The very existence of the Tribunal and the independent, quasi-judicial model adopted for it means that, inevitably, there will be tension from time to time between Ministers and others whose decisions are under review,” the judge wrote. 

“That does not mean that Tribunal decisions are immune from criticism. Any member who allowed himself or herself to be persuaded as to an outcome by partisan or political rhetoric by a Minister, any other administrator or the popular press would be unworthy of the trust and confidence placed in him or her by His Excellency the Governor-General and untrue to the oath or affirmation of office which must be taken before exercising the Tribunal’s jurisdiction. For those members who do not enjoy the same security of tenure as judges, that may call at times for singular moral courage and depth of character.”

Miriam Holmes, now assistant Victorian Government Solicitor, declined to speak about her time at the AAT. Sue Raymond, who watched the attack on her former colleague, questions the government’s motives. “There’s pressure to make decisions that reflect ‘community values’,” she says. “But what are ‘community values’? As a member you have to apply the law.”

Another former member (an experienced lawyer) who left rather than wait to be pushed — “I walked out in anger” — described adjudicating a case that found in favour of an ALP politician. “I remember thinking ‘oh my God’, I felt pressured that the decision could jeopardise my reappointment. I had friends working in the migration tribunal and got to know what they went through on a daily basis. They told me they feared that if they ever found against a minister they would get rolled. I advised them that they just have to find according to the law.”

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