Quis custodiet ipsos custodes? “Who guards the guards?” was the Roman poet Juvenal’s famous question. In the case of Australia’s vast legal octopus, the Administrative Appeals Tribunal, the answer is very simple: nemo — nobody.
The stacking of the AAT with political cronies has carried on unabated because there is no active official body with the power to raise the alarm over a government’s appointments.
Actually such a body — with specific power to keep a check on the credentials of AAT members and the overall integrity of the tribunal — does exist in the AAT’s legislation. The only problem is it ceased to function after the Abbott government removed its funding.
The Administrative Review Council — made up of independent statutory office holders such as the Commonwealth Ombudsman and the Law Reform Commission president — was identified as an “efficiency saving” under the National Commission of Audit 2013-14, run by businessman Tony Shepherd.
At the time, Finance Minister Mathias Cormann abolished the council as one of a series of cuts “eliminating waste and duplication”, aimed at making the public sector “as effective and transparent as possible”, though the precise cost-saving has never been detailed. For the Liberal Party, the decision to remove the council is a remarkable turnaround from early parliamentary debates on the AAT, when then-opposition leader John Howard considered the establishment of the Review Council to be particularly important.
When former president of the Australian Human Rights Commission and former dean of Sydney University Law School Gillian Triggs was appointed as a member of the Council from 2012 to 2017, she was “very honoured”, she said, “because it has such an important role as a check and balance … on government behaviour”.
Triggs recalls that nothing happened for the first few months after her appointment, and when she asked the head of the attorney-general’s department why she hadn’t received any information about the next meeting she was told, “Oh, don’t worry, it hasn’t met for a long time. And we don’t have any plans to meet in the future.”
A year later she asked again, but was informed that the Review Council “was just a superfluous body” and was told “not to worry about it”.
Triggs can see the comical side to being on a high-powered Canberra body that didn’t actually do anything, but it comes with regret: “We have a growing power of the executive, a growing discretion of the executive, and a diminution in the capacity to challenge those government decisions.”
Another former Council member, former ombudsman and information commissioner John McMillan AO, confirmed that the council effectively ceased to operate in 2013 — prior to being defunded — when the attorney-general’s department stopped convening meetings of the council.
John McMillan said he has “no doubt” that if the council was still meeting it would take an active interest in the appointments process — “even without a [directive] from the attorney general’s office to do so”.
“Having a merit-based, apolitical, independently-run appointments process is important for the AAT. It is a matter of great importance to the integrity of the administrative law system,” McMillan said.
“The council always stood ready to … define the basic principles that should be followed to oversee the administrative law system,” McMillan told Inq.
Abolishing the ARC meant there was no independent body to ensure the attorney-general adhered to the laws governing the AAT. That legislation says a person “must not” be appointed as an AAT member unless he or she is a legal practitioner of the High Court or Supreme Court and has been “so enrolled for at least five years”. The exception, according to the legislation, is for someone who “in the opinion of the governor‑general has special knowledge or skills relevant to the duties of a senior member or member” — a provision designed to allow, for example, specialist medical input, rather than for the government of the day to appoint political fellow-travellers.
The government officially abolished the ARC in May 2015, in the month before the new enlarged AAT began — at the same time as then-attorney-general George Brandis changed the AAT’s appointments process, giving himself the right to appoint who he wished, without interviews or a selection panel. He could waive the appointments process if he had found a “suitable person who is appropriately qualified, to quote the official ‘Protocol for Appointment’”.
While the selection process is cloaked in secrecy, it’s also impossible to discover information about the qualifications, experience, background or salaries of AAT members through government publications or websites.
In response to a series of detailed questions about members’ credentials, the AAT refused to provide Inq with any specific information.
“The Administrative Appeals Tribunal Act 1975 provides for the appointment of members on the basis of their relevant ‘special knowledge or skills’ or enrolment as a ‘legal practitioner’,” an AAT spokesperson told us. “The AAT is reviewing the report of the scheduled statutory review undertaken by the Hon Ian Callinan AC, former justice of the High Court of Australia. We are working closely with government as they consider the recommendations. Appointments to the AAT are a matter for government.”
As for Attorney-General Christian Porter, he provided us with a succinct response: “I have and will continue to ensure that any appointments are made on merit.”
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