A federal ICAC is a start, but an overhaul of the AAT is also a must

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.