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As the new Administrative Review Tribunal prepares to begin operating on October 14, an analysis of 364 appointments shows Labor has been sincere in reforming the stacked body it replaces. By Karen Barlow.
Labor and merit-based appointments
When Attorney-General Mark Dreyfus announced the dismantling of the Administrative Appeals Tribunal in December 2022, he said the body had become “fatally compromised” by “disgraceful” cronyism.
The backlogged tribunal – an independent reviewer of decisions in areas such as refugee visas, social security payments, freedom of information appeals, veterans’ entitlements and the National Disability Insurance Scheme – had been purged of quality experience under the Coalition and was seen largely as a very well-paid perk, stacked over time with as many as 85 Liberal Party- or National Party-associated appointees, such as former MPs and other party people. Full-time members are paid between $214,570 and $549,210 a year.
“It appeared to have become a special home … [a] soft landing place for them, which of course affected the tribunal’s ability to perform its functions efficiently and that compromised public trust,” Catherine Williams from The Centre for Public Integrity tells The Saturday Paper.
“When you have the apex tribunal that performs merits reviews of administrative decisions that affect significantly the lives of everyday Australians being compromised in that way, that cannot but have a deleterious impact upon public trust.”
From October 14, the failed body will be replaced by a new Administrative Review Tribunal.
Integrity advocates have welcomed its new merit-based selection process but are disappointed Finance Minister Katy Gallagher has not released a review conducted into public sector board appointments.
The review, by former public service commissioner Lynelle Briggs, was ordered in February 2023 and the final report was handed to the government on August 4, 2023. No parts of it have been released.
“We find that inexplicable,” Williams says. “The commissioning of the report was a positive step. Why can we not see what the report says?”
Transparency International Australia also wants the report released. “The government should explain why the Briggs review of public sector board appointment processes seems to be sitting on the minister’s shelf collecting dust,” chief executive Clancy Moore tells The Saturday Paper.
“Whilst the government’s abolition of the AAT and creation of the ART is a welcome step, there are still questions around the ongoing politicisation of Commonwealth appointments.”
The finance minister has told The Saturday Paper the Briggs review remains before the government as it considers its response.
“Our government takes integrity and transparency seriously, which is why we commissioned this review,” Gallagher said in a statement.
“We have implemented a range of transparency measures, including openly advertised positions for all board vacancies and strengthening processes to ensure appointees have relevant qualifications.
“Astonishingly, these basic guardrails were not in place when we came to government.”
Independent MP Sophie Scamps has tried, with former crossbench senator Rex Patrick, to get the report from the Briggs review through freedom of information laws. That attempt has been unsuccessful.
“I actually don’t know what to think. I think it should just be released. I don’t think anything good can come of not releasing it,” she tells The Saturday Paper.
“Sitting on a report like this that is all about transparency and integrity is probably somewhat hypocritical. I think the report needs to be released. Again, if we are building confidence and trust in our government, then reports like this need to be released in a timely way.”
The member for Mackellar introduced a private member’s bill last year, proposing the creation of a public appointments commissioner as well as independent selection panels that would still have an element of ministerial discretion. The bill did not advance, but Scamps recently got amendments passed on the setting up of the new Administrative Review Tribunal.
“When that legislation came in to create the new tribunal, there was no guarantee, or [it] wasn’t written into the legislation, that there had to be an independent selection process or independent selection panels,” she says.
“It was going to be still at the discretion of the minister or the attorney-general as to whether there would be independent selection panels used. That is now mandated and legislated.”
Over the past two years of appointments, the Albanese government has been making a point of returning to a merit-based selection process for the review body.
It appointed an expert advisory group in early 2023 to guide the creation of the new tribunal, chaired by Patrick Keane, a former High Court justice. It also included new Sex Discrimination Commissioner Anna Cody and former president of the Administrative Review Council Cheryl Saunders.
While in opposition, Dreyfus was clear that party affiliation should not automatically disqualify a person from being appointed to the tribunal. He just argued it “shouldn’t be the only qualification”.
The Saturday Paper has scrutinised all 364 full and part-time appointments to both the outgoing tribunal and the new tribunal since an expert advisory body was announced in February 2023. These are decisions made during Labor’s term, although The Saturday Paper notes there is a clutch of other politically affiliated members whose terms have not expired.
Some of the appointments made under the new merit-based system were short-term, as terms were expiring and the ART was being set up. Only the most senior appointments had attached biographies.
“It should be easily accessible who these people are and what their experience is, so those bios should be readily available and, I think, published on the website,” Scamps says.
There has been a significant influx of appointments with considerable legal backgrounds, particularly in migration and human rights law, as the government sought to address a massive backlog in the tribunal’s largest division.
Seventy appointments were made in July and August, including the naming of AAT veteran member and registrar Michael Hawkins as the inaugural chief executive and principal registrar of the new tribunal. This followed the naming in June 2023 of Justice Emilios Kyrou as the AAT and soon-to-be ART president.
There were 72 reappointments in June, including two non-judicial deputy presidents, Kathryn Millar and Shahyar Roushan, both veterans of the tribunal.
Notable reappointees were former federal Liberal MP Andrew Nikolic, former deputy premier of South Australia John Rau, former Labor speaker Anna Burke, former Liberal staffer Rachel Da Costa, Liberal Party SA branch president George Hallwood, former Liberal policy adviser David McCulloch, former Liberal adviser Maria Gagliardi, Liberal Party member and councillor Nora Lamont, and Damian Creedon, who was the former chief of staff to former Liberal attorney-general Christian Porter.
Among the members who received short-term AAT reappointments last December but have not received further appointments are former Nationals MP De-Anne Kelly, NSW director of the Nationals and former Liberal staffer Namoi Dougall, former George Brandis staffer Margaret Forrest and former Liberal staffer Brendan Darcy. The Saturday Paper is not suggesting anything improper in their original appointments.
The Attorney-General’s office said it would be inappropriate to comment on individual appointments but said the AAT’s public standing was “irreversibly damaged as a result of the actions of the former government over the last nine years”.
“The Albanese government is delivering an accessible, sustainable, trusted and truly independent federal administrative review system that serves the best interests of the Australian people,” a spokesperson said.
“Unlike the former government, appointments to the AAT and ART under the Albanese government are made following a transparent and merit-based process.”
There have been scores of solid legal appointments. One is Kim Boyd, who was reported to have lost her position from the AAT precursor body, the Refugee Review Tribunal, 20 years ago.
There’s Harvard Law School and Princeton University graduate and lecturer Micah Burch, migration and administrative law specialist Arti Chetty, co-founder and principal of boutique law firm Abode Migration Samantha Fitzsimons, and leading Melbourne barrister and expert in immigration and refugee law Roz Germov.
The Saturday Paper asked the Attorney-General’s office about the terms of current division heads, former Liberal senator Karen Synon and former WA Liberal attorney-general Michael Mischin, but again questions about individual appointments were “inappropriate”.
It is understood the roles of division heads do not exist in the new tribunal.
“Appointments are ongoing and the government will announce further appointments to the AAT and the ART in due course,” a spokesperson said.
The tribunal is being set up for the better, according to Scamps.
“I do think that the government has been adhering to a merit-based process,” she says. “So, I do think that … the public can have a lot greater confidence in who are the members of the Administrative Review Tribunal.”
Williams, of The Centre for Public Integrity, said the appointment process had been “gold standard” and needed to be extended to the appointment process for all public officials.
“This issue of a need for independent and transparent appointments doesn’t exist only there. It exists in relation to a huge range of public appointments, and, to my mind, there is no justification for not extending those processes to other appointments also.”
The Albanese government has made a number of appointments of people connected to the party.
Former Queensland premier Annastacia Palaszczuk was appointed to the Australia Post board and former Labor frontbencher Terri Butler to the Fair Work Commission as deputy president. Palaszczuk swaps out for a Liberal appointee, former John Howard chief of staff and Liberal Party director Tony Nutt, whose term has expired.
Former minister for climate change and union leader Greg Combet was appointed to head the new Net Zero Economy Agency, a position he left to become chair of the Future Fund.
Chris Barrett, a former chief of staff to Wayne Swan, was appointed to lead the Productivity Commission but did not take up the job and instead became secretary of Victoria’s Department of Treasury and Finance. Treasurer Jim Chalmers described him as a “very experienced and very well-regarded economist and public servant”.
Former Labor minister Craig Emerson recently drew on his former portfolio of competition policy and consumer affairs to review Australia’s Food and Grocery Code of Conduct and has been appointed to the National Competition Council.
Former Labor senator Chris Ketter drew fire after being appointed as Australia’s consul-general and senior trade and investment commissioner in San Francisco, with Trade Minister Don Farrell explaining, “We have followed all of the usual processes.”
The appointment of former Labor minister Jenny Macklin to chair of the Economic Inclusion Advisory Committee was questioned on independence grounds, but the group pushed the government to substantially raise the rate of JobSeeker.
Former Labor minister Warren Snowdon was also recently appointed to lead a review of the Northern Australia Infrastructure Facility.
The Saturday Paper notes there has been what the government terms a “rebalancing” in the workplace relations portfolio during Labor’s term, with a significant number of union appointments to bodies such as the Fair Work Commission.
Former prime minister Kevin Rudd has been posted to Washington as Australia’s ambassador to the United States and former minister Stephen Smith has been posted to London as high commissioner to the United Kingdom. Former Victorian Labor premier Steve Bracks has been made Australia’s special representative for the Greater Sunrise project.
“I don’t think politicians should be refused opportunity or jobs after they leave politics, but they need to bring skills,” Katy Gallagher told the ABC last week.
“We’ve been going through a very thorough process of skills-matching, making sure that each board has the right skills mix. We’ve been advertising appointments. We’ve been going through a selection process.
“It’s often you face some difficulty getting the right people onto government boards. So, I want more people to come forward.”
This article was first published in the print edition of The Saturday Paper on August 31, 2024 as "Unstacking the deck".
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