Exclusive: Stacking claims at new tribunal

Labor’s moves to take the politics and well-paid perks out of the administrative justice system is under a cloud, with a large group of former tribunal members claiming preferential stacking at the powerful new body.

After the attorney-general announced he would dissolve the backlogged and much-maligned Administrative Appeals Tribunal (AAT) in late 2022, the Administrative Review Tribunal (ART) finally began operations this week.

Mark Dreyfus says the 360 people who make up the replacement body’s foundational membership are the “very best, the brightest, the most qualified and most committed”.

Behind the scenes, however, the rebirth has proved difficult for some and there’s a warning the way the former members’ terms were ended may have been unconstitutional.

Despite the assertion that the process is independent, The Saturday Paper can reveal that cabinet intervened to veto three names that were highly recommended by the selection panel. They were: Amanda Mendes Da Costa, a barrister and the wife of former Labor MP Michael Danby; Peter Katsambanis, a former Western Australian and Victorian Liberal MP; and William Frost, a former senior adviser to Liberal attorney-general Christian Porter.

A group of about 20 former members, some with Labor or Liberal affiliations and others with no affiliation, argue the selection process has not been adequately transparent.

“I think that there is then a bit of a cloud over the ... new members of the ART, because it’s not entirely clear that each and every one of them do meet that very, very high standard,” one former member tells The Saturday Paper.

“I think that’s sad, really, that the ART is going to start off with the cloud hanging over it, and perhaps the public not being confident that the process has been de-politicised, and especially when you look at those three appointments that fell at the last hurdle, I think ... it clearly demonstrates that politics was at play.”

The previous tribunal had been stacked over time with as many as 85 Liberal or National Party-linked appointees, such as former MPs and other party people. The Labor Party had also made politically aligned appointments to the AAT, but the stacking under the Coalition was more aggressive and the absence of expertise among some appointees led to serious delays and dysfunction.

“I agree that the Liberal Party appointed some real fricken idiots, and they were appointing some people to very senior positions and they weren’t lawyers, but they would get less complex work than me. That was a problem,” one former member said.

“And then they come and ask me, ‘Oh, how do I do this?’ It’s like, well… But I was professional. I helped them because that’s the right thing to do. But the Liberals also appointed some very good people.”

How to address and reform what Dreyfus had called a “fatally compromised” tribunal with a “completely unacceptable” record of bullying complaints has been a formidable challenge.

About 290 AAT members applied to be members of the new tribunal through what Dreyfus described as a “thorough and publicly advertised” merit-based selection process.

The Saturday Paper has seen a detailed list of Coalition-affiliated members appointed to the ART that is being circulated. In all, 21 Liberal-tied members have survived to serve on the new tribunal. The list shows 14 members tied to the Coalition who were not appointed.

Another group of former members were placed in a so-called “merit pool” for possible future appointment – although people in this pool say there is no clarity on how it would function.

Karen McNamara, the former Liberal member for Dobell, was placed in the merit pool, as was Pru Goward, the former federal sex discrimination commissioner and NSW Liberal minister.

The former chief of staff to Scott Morrison, Ann Duffield, was added to the merit pool. Antoinette Younes, a one-time adviser to Michaelia Cash, was found suitable to be appointed as a senior member but was instead placed in the merit pool.

There are 12 Coalition-affiliated members who are listed as retiring or not seeking reappointment, including former federal Liberal senator Karen Synon and former Victorian Liberal candidate Rachel Westaway.

Of the 21 Liberal-connected members who will sit on the ART, prominent names include Damian Creedon, a former chief of staff to Christian Porter; Andrew Nikolic, a former federal Liberal MP; and Justin Meyer, a former adviser to former Victorian premier Denis Napthine.

Among those who were not reappointed, there is a view that their tribunal experience has not been taken properly into account.

“I swear to God, sometimes I go a whole week, and in every single hearing, people would be crying. It’s valuable experience,” one former member said.

“So, if you’re putting outside candidates who may be very clever academics or very clever solicitors into that situation – well, they don’t have that experience that the members who are already there have. They’re going to have to get it. And are they going to be any good at it? We don’t know.”

The Saturday Paper has previously reported that the individuals chosen for the new ART – which will act as the independent reviewer of decisions in areas such as refugee visas, pension payments, freedom of information appeals, veterans’ entitlements and the National Disability Insurance Scheme – included scores of solid legal appointments and a clutch of notable reappointees with political affiliations. The latter group includes the former Labor deputy premier of South Australia, John Rau, and former Labor speaker Anna Burke.

Dreyfus has been clear that party affiliation should not automatically disqualify a potential tribunal member. He says it “shouldn’t be the only qualification”.

The attorney-general has been on a mission to restore public trust and confidence in the delivery of administrative justice outside of the courts. The new tribunal members, who will be paid between $214,570 and $549,210 a year, were sought from outside and within the precursor tribunal.

An expert advisory group, chaired by Patrick Keane, a former High Court judge, guided the creation of the new tribunal.

“A great responsibility rests on members, but it is also the government’s responsibility to ensure that the very best, the brightest, the most qualified and most committed of our community are appointed,” Dreyfus said this week, as he opened the new tribunal in a special sitting attended by senior judges and lawyers.

“The quality of the foundational membership bears out the success of our reform in this regard.”

Regulations published in September outline the selection process for future tribunal appointments, including publicly advertising roles. The process requires assessment panels to review applications, interview applicants and seek referee reports before making recommendations.

Safeguards include the requirement that the names of panellists be published after the end of the assessment process and that panellists can’t be directed by a minister or be political staffers.

The rejected members say they were interviewed before the rules were in place, although guidelines for merit-based appointments to the former tribunal published in late December closely informed the new tribunal’s appointments.   

The former members say they were invited to apply and there was an initial short interview with departmental staff. Some members cite “bizarre” clerical questions about whether they knew how to open electronic documents or use templates.

“I used to type judgements,” one said. “I’m not an idiot. It’s just a stupid question.”

The former members ask how they could be found officially suitable, even expressly recommended for a role, and then be left in a merit pool or effectively demoted.

A number of former members say they had raised complaints of harassment and bullying at the former tribunal and that this contributed to them not being appointed, although they admit this is difficult to prove. At least one complaint was investigated and resolved by the Australian Human Rights Commission.

Senate estimates heard in November 2022 that 19 members and deputy presidents of the AAT were the subject of bullying and harassment complaints. One individual was the subject of multiple complaints.

“I think it’s just been stacked in a different way, whatever that way is. I mean, I think people have been targeted who they wanted to get rid of,” a former member tells The Saturday Paper.

“It’s turned out to be a pretty awful process that clearly there are people who were considered suitable, who were just targeted not to be appointed.”

Another former tribunal member, without political connections, points to personal grievances and tribunal gossip.

“I had friends who were in the tribunal. Some were Liberal people, but that’s just because I sat next door to them, and they’re perfectly nice people, and then you sometimes, I think, just turned into guilt by association,” the former member explained.

“That’s how I went through the process, and then this one. I wasn’t successful. I hadn’t been appointed. But quite frankly, it’s just so toxic and horrible. I’m glad to be out of there.”

Another former member expressed doubts about Dreyfus’s decision to abolish the Administrative Appeals Tribunal in the first place.

“He made it clear from the start when they came to government, that he was going to get rid of the, you know, horrible, terrible, lazy Liberals. And I think he’s basically only lost about 10 of us,” the former member said.

“And the ones he has kept, some are good members, good performing members, but some of them, yeah, okay, they never actually met their performance targets, never.”

The Saturday Paper reached out to both the Administrative Review Tribunal and the attorney-general over the concerns of the former members.

A tribunal spokesperson said tribunal appointments are a matter for government.

The Attorney-General’s Department said that the applications attracted a “large and very strong field” of candidates.

“As a result,” a spokesperson said in a statement, “there are more candidates assessed as suitable than positions.”

The department said political affiliations or connections were “not relevant” to recruitment of members and insisted all candidates, internal and external, were assessed in the same process and against the same criteria.

The department said candidates were judged by assessment panels as either suitable or not suitable and were not ranked. The panel’s report was then sent to the attorney-general to inform recommendations for an appointment.

A balance of expertise and the needs of the tribunal were among the factors that were then taken into account.

“Previous political connection was not relevant to a candidate’s assessment of suitability or eligibility for appointment,” the spokesperson said.

There were no direct responses to The Saturday Paper’s enquiry about the possibility of personal grievances or complaints playing an adverse role in the selection process for members.

The Attorney-General’s Department outlined the package of information on each suitable candidate sent to Dreyfus by an assessment panel. They include a referee report, curriculum vitae, areas of expertise, salaried or sessional availability, and the location or locations for appointment.

The package for reapplying members included caseload data as well as an internal referee report, which may have a candidate response.

The department says candidates who were assessed as suitable but still in the merit pool will remain there for six months.

Under the legislation that set up the ART, former members whose terms had not ended at the AAT but who were not reappointed are offered the equivalent of four months’ pay as compensation for the loss of office, not the usual 12 months’ pay.

In April, barrister Tony Vernier, who was representing eight former AAT members, gave evidence to the Senate Legal and Constitutional Committee that the situation was unfair and unconstitutional.

“The proposed cost saving could result in a wave of legal challenges,” Vernier warned in his submission.

“The resources that would be required by the Federal Government to defend any challenges and the legal costs that would be incurred in those legal challenges could outweigh any savings estimated by the Federal Government in the reduction of the compensation for loss of office. Any costs savings may be superficial.”

Former members accept that they are speaking out because they did not get the appointment, but they say they have legitimate questions over how the new tribunal is being formed.

“‘I’m very upset and I think I have every right to be,” one said.

“How can any government organisation argue that a committee found me to be suitable and found many other people to be suitable to be appointed, yet the government saw it fit not to give us anything whatsoever and to boot us out of legitimate and lawfully appointed roles.

“They may not like the way it was done, but tough titty. That’s the way it is. They have done exactly the same, hidden behind a merit-based process.” 

This piece was modified on October 19, 2024, to make clear that Ann Duffield was added to the merit pool.