The Law Council of Australia has described the Morrison government’s processes in appointing members to the Administrative Appeals Tribunal as “secretive with the potential to undermine public confidence”.
LCA’s comments come after last Thursday’s announcement from Attorney-General Christian Porter of 86 appointments to the AAT, with 14 of those appointments being former state and federal MPs.
The legal profession is “concerned and troubled” by such developments, argued LCA president Arthur Moses SC.
“The lack of transparency compromises community confidence in the independence of the tribunal and the quality of its decision making. The independence and integrity of the AAT depends on an apolitical, open and merit-based appointment system,” he said.
“The federal government’s announcement of 34 new appointments to the AAT made without community consultation and 52 re-appointments for existing members is concerning, as a number of members have been re-appointed before the expiration of their current terms.”
“There is a concern that re-appointment of members well before the expiry of their current terms, in the context of an upcoming federal election, may give rise to a reasonable apprehension that decisions are affected by political considerations and therefore compromises the reputation of the tribunal.”
The appearance of a conflict of interest “can be just as damaging to the AAT’s integrity” as an actual conflict, Mr Moses continued.
“Appointments should be made transparently and in consultation with the community, including the legal profession, to safeguard their quality and improve their diversity. The AAT deals with a significant number of cases that directly impact on the lives of Australians. It is important those appointed have the necessary skills to discharge its functions according to law and community expectations,” he posited.
“An AAT that reflects the community it serves better enhances public confidence in the administration of justice, including respect for the rule of law. The Law Council calls on the federal government to implement a transparent appointment process based on merit, similar to that recently announced by the federal opposition.”
Any lack of transparency impacts on the reputations of all members of the AAT, which is unfair, Mr Moses concluded.
The majority of the appointments made by the Morrison government are for five years, with others being for a period of either three or seven years.
The Honourable John Pascoe AC CVO will serve as full-time deputy president, Dr Stewart Fenwick, Chris Furnell and Damien O’Donovan were all appointed as full-time senior members and Paul Ehrlich QC and Damien O’Donovan were made part-time senior members.
12 full-time members were appointed: David Cox, David Crawshay OAM, Phoebe Dunn, Shane Evans, The Honourable Joseph Francis, William Frost, Steven Griffiths, Dr Keith Kendall, Peter Ranson, Lynette Rieper, Peter Smith and Michael Sutherland.
Sixteen part-time members were appointed: The Honourable Robert Baldwin, Anthony Barry, Stephen Barton, Mr Terrence Baxter OAM, Jane Bell, Anthony Durkin, Dawn Fitzgerald, Ian Fletcher AM, John Griffin, Alex Grossman, De Anne Kelly, Andrew McLean Williams, The Honourable Stephen Parry, Susan Reece Jones, Dr Matthew Reid and Fiona Zuccala.
The government appointed Gary Humphries and Bernard McCabe as full-time deputy presidents, Major General Aziz Gregory Melick AO FRD SC as a part-time deputy president, Kathryn Millar, Jason Pennell and Adria Poljak as full-time senior members, and Michael John McGrowdie, Shahyar Roushan and Rania Skaros as part-time senior members.
Eight further full-time members and 35 part-time members were also re-appointed.
“On behalf of the government, I congratulate the appointees and I look forward to the contribution they will make to the tribunal,” Mr Porter said.
“All new appointments commence on 25th February 2019 whilst re-appointments commence at the conclusion of the current term.”