SPENCER ZIFCAK. The Federal Government Corrodes the Independence of the Administrative Appeals Tribunal

Mar 13, 2019

The Federal Government Corrodes the Independence of
the Administrative Appeals Tribunal

The Commonwealth Administrative Appeals Tribunal (AAT) is a quasi-judicial body designed to promote the rule of law and good government by enabling citizens to call into question the decisions of public sector departments and agencies. The Tribunal reviews government decisions on the merits of questions of law and fact. Its jurisdiction is extensive including, among other things, jurisdiction with respect to migration and refugees, taxation, social security, the NDIS, veterans affairs and freedom of information. Given that the Tribunal may overrule decisions taken within government and substitute its own, the relationship between the two bodies is not always easy. It is critical, therefore, that the Tribunal should operate independently, free from improper or undue political influence. Its independence, however, is now under concerted political attack.

The most recent instance of governmental incursion upon the AAT’s independence has been the Attorney-General’s decision in late February to overhaul the Tribunal’s membership. Christian Porter announced thirty four new appointments to the Tribunal, of whom six were former Coalition parliamentarians and nine were Coalition staffers. A further fifty two members, many of whom had been appointed by the previous Attorney-General, George Brandis, were reappointed well before the end of their terms.

This ‘stacking’ of the Tribunal is not new. It was commenced with vigour by George Brandis in 2017. At one stroke he made 60 new appointments to the Tribunal, including several with Liberal party links. Among Brandis’ appointees have been his own chief of staff, Scott Morrison’s chief of staff and a Tony Abbott staffer.

Some 42 of 76 non-judicial members were not reappointed. These members shared the characteristic of having made decisions about which the Attorney had expressed reservations. Unsurprisingly, the majority had been members of the Tribunal’s migration and refugee division. Neither the Minister for Immigration, Peter Dutton, nor his Departmental Secretary, Mike Pezzulo, have been noted for their tolerance of disagreement whether as to fact or law. Mr Dutton has described the AAT’s decisions as ‘infuriating.’

The importance of tribunal independence was lucidly described by the former President of the Victorian Civil and Administrative Tribunal, Justice Iain Ross:

Like other judicial institutions, tribunals rely ultimately on public confidence and the consent of the governed. The extent to which a Tribunal is independent of the Executive influences public perception about the tribunal’s impartiality. Impartiality is essential for the determination of just, predictable, decisions and the acceptance of those decisions by the community. It is for this reason that tribunal independence matters.

The independence of the AAT may be regarded as having three interrelated components. The first is institutional independence. Institutional independence is about ensuring that the Executive makes proper appointments to the Tribunal. It is concerned with ensuring that the executive power to appoint and remunerate members does not influence the outcome of tribunal decisions.

Next, there is administrative independence. Administrative independence involves ensuring that an administrative tribunal has a proper measure of control over its budget, finance, staffing and accommodation so as to underpin independent and effective decision-making.

Then there is adjudicative independence. This involves making sure that tribunal members have the capacity to make impartial decisions free from external influence or improper interference from any source, including from executive government.

The Federal Government has sought to undermine the AAT’s independence in all three ways. Following George Brandis’ deliberate intervention to alter the complexion of the Tribunal’s membership to favour partisan affiliation, the incursion upon institutional independence has continued with his successor.

In November 2018, for example, Christian Porter appointed five new Tribunal members two of whom were prominent in Liberal party circles. One was former chief of staff to finance minister, Matthias Cormann. The other was a former Liberal member of the Victorian Legislative Council. To be fair, the other three appointees seemed well qualified.

As to the Attorney-General, Christian Porter’s February round of eighty four appointments, the President of the Law Council remarked that:

The independence and integrity of the AAT depends upon an apolitical, open and merit-based appointment system. The Federal Government’s announcement of thirty four new appointments to the AAT made without community consultation is concerning…In the context of the upcoming federal election, this may give rise to a reasonable apprehension that decisions are affected by political considerations and therefore compromises the reputation of the tribunal.

There are problems too, with administrative independence. The AAT currently has a backlog of some 40,000 cases. This situation is critical. The existing tribunal membership clearly cannot cope. The backlog increases every year. In part, this problem has been caused by the influx of partisan political appointees who are plainly not qualified to deal with complex legal matters. More importantly, however, it has been the government’s year upon year decreases in the AAT’s funding that has caused the problem. Even now, with the backlog crisis worsening, the government’s most recent Mid-Year Expenditure Outlook, proposes a reduction of funding to the Tribunal of 7% over the next five years.

There are also problems with adjudicative independence. It used to be the case that tribunal members were chosen on merit. Positions were advertised, candidates were short-listed, an independent panel was chosen to interview all applicants, and the panel made final recommendations to the Minister as to who should be chosen. In almost all cases the Minister accepted the recommendations. Under the current government, this independent selection process has been dispensed with. So, under qualified applicants are selected as favours, personal connections predominate in selection, the tribunal membership is politicised, and the quality of decision-making declines correspondingly.

Many of those recently appointed have little or no decision-making experience in the jurisdictions to which they are assigned. Very experienced and capable Tribunal decision-makers are not reappointed, creating a big loss in knowledge and delays caused by new members learning decision-making skills and knowledge of jurisdictions (former Tribunal member).

Further, in recent years, Tribunal decisions have been subject to relentless political attack so as to pressure the membership to conform to governmental practices. Tribunal members with independence of mind are not reappointed. Minister Dutton initiated a parliamentary review of the Tribunal’s operation. Dutton has urged tribunal members to make their decisions not principally pursuant to law but rather in accordance with ‘community expectations’. Former Law Council of Australia President, Fiona McLeod responded to this suggestion, criticising the Minister, stating that ‘tribunal members should make decisions in accordance with the law, not personal preference or ideology’.

The former Chief Justice of the High Court, Sir Gerard Brennan has written that:

A tribunal of independence and competence…provides a manifest benefit to the community by giving an assurance of integrity and legality in administrative justice…when the chips are down, it is not the Parliament that secures our freedom and our rights, it is certainly not the executive government that does so; it is the law in the hands of a fearless and independent judiciary and, nowadays, in the hands also of a peak administrative tribunal.

We trade away independence and impartiality at our peril.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and formerly President of Liberty Victoria.

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