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Lessons from the ‘mercy killing’ of the AAT

The Administrative Appeals Tribunal is set to be abolished. While such bodies are “critical” to Australia’s legal system, they are also open to consequential political cronyism, says one law professor.

user iconJerome Doraisamy 06 April 2023 Politics
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In mid-December, Attorney-General Mark Dreyfus announced the abolition of the Administrative Appeals Tribunal (AAT), which he said “once commanded universal respect”.

In announcing the decision, the A-G cited what he called “a disgraceful exhibition of cronyism” in appointments made over the last decade.

The public standing of the AAT, the A-G declared, has been “irreversibly damaged” by the actions of Coalition governments in the nine years prior to Anthony Albanese’s election.


“By appointing 85 former Liberal MPs, former Liberal staffers and other close Liberal associates without any merit-based selection process — including some individuals with no relevant experience or expertise — the former government fatally compromised the AAT, undermined its independence and eroded the quality and efficiency of its decision making,” A-G Dreyfus submitted.

The “dysfunction” of the AAT, he continued, has “had a very real cost” to the tens of thousands of people who rely on the AAT chair to independently review government decisions that “have made major — and sometimes life-changing — impacts on their lives”.

“Decisions such as whether an old Australian receives an aged pension, whether a veteran is compensated for a service injury, or whether a participant in the NDIS received funding for support,” he said.

Shortly after, legal advocates called for an effective merits review, noting that such a body must remain a cornerstone of Australia’s administrative law system.

The federal government’s decision followed a review, published in May of last year by independent public policy think tank The Australia Institute, detailing how AAT appointments had “become increasingly political”, as well as how few political appointees to the AAT have spent their careers in law.

As of mid-February, the Attorney-General’s Department was seeking at least 75 additional members to help address the current backlog of cases in the AAT and is also recruiting for a new president — who will become the inaugural head of the new administrative review body, once established.

And, earlier this week, the department opened consultation for the design of the new review body.

In a statement issued by Deakin University, the associate head of that institution’s law school, Professor Matthew Groves, detailed what Australia’s common law legal system must learn from what he described as the tribunal’s “mercy killing”, in determining what comes next.

Professor Groves recently published a paper in the Australian Law Journal – titled, “Tribunal Justice and Politics in Australia: The Rise and Fall of the Administrative Appeals Tribunal” — in which he explained how supposed efficiency-driven reforms laid the groundwork for controversial appointments that followed, and argued that, while independence and suitability of members are important, the standing of institutions such as the AAT depends on various environmental factors.

“The AAT is a special tribunal that operates at a federal level, reviewing the decisions of just about every area you can think of — tax, social security, child support, migration, freedom of information, the NDIS and much more,” Professor Groves said.

“Plus, the one particularly important aspect of the AAT is that it doesn’t just review decisions; it can make a new decision. So, whatever a bureaucrat has decided, the AAT can overturn and make its own decision.”

The independence of such review, Professor Groves mused, had been challenged.

“In recent years, many people appointed to the AAT have been former members of parliament or have worked in the private offices of MPs. The number and timing of these appointments have caused considerable public controversy,” he submitted.

“The AAT hears more than 40,000 cases per year, with a backlist of 67,000 and growing, meaning applicants are waiting more than a year to find out about important decisions like a Centrelink payment or a visa review.

“This backlog is one example of a negative outcome from potentially unmeritorious tribunal appointments, with members struggling to keep on top of their caseload.” 

Tribunals like the AAT, Professor Groves continued, are “indispensable” to common law legal systems.

This said, their distinct character means that they are more vulnerable to political interference than courts, he noted.

It is therefore essential, the professor went on, that the same scrutiny placed on judicial court appointments be directed at those made to the AAT, and now to its successor.

“Tribunal decisions are often of great consequence and shape lives just as much as those of the courts, yet the appointment of tribunal members rarely attracts widespread attention,” Professor Groves opined.

“That relative lack of attention almost certainly enabled the previous Australian government to engage in the appointment practices that it did.”

“We need to keep a close eye on what comes next,” he warned.

“This government review will determine what body will replace the AAT, and if it will be broken down into small tribunals. We don’t have any details yet on what that will look like, and probably won’t until the government has considered the public submissions.”

The important things to watch out for, Professor Groves concluded, are “who is going to head any new tribunal, what is going to happen to these crony appointments, and will the current government do the same thing they’ve accused their predecessors of doing and continue to make political appointments”.