4.1
Inquiry participants raised serious concerns with the lack of transparency around the appointment of members to the Administrative Appeals Tribunal (AAT). There were repeated claims that the selection of members—particularly in recent years—has been inappropriately influenced by personal connections and political affiliations.
4.2
This chapter first provides background information on the role of AAT members and the current protocol for appointments. It then considers the evidence received from inquiry participants on the AAT member appointment process. Finally, it sets out the various suggestions put forward by submitters to improve the process.
AAT members
4.3
As of 24 November 2021, there were 313 members appointed to the AAT, comprising 112 full-time members and 201 part-time members. The AAT explained that it consists of the following membership:
a President, who must be a judge of the Federal Court;
Deputy Presidents, who may also be judges of the Federal Court or Federal Circuit and Family Court;
4.4
The President of the AAT must ensure the 'expeditious and efficient discharge of the business of the Tribunal', as well as manage the administrative affairs of the AAT. The AAT advised that, in general, the President directs the allocation of applications for review to Divisions, and while the President and Deputy Presidents can exercise powers in any Division, Senior Members and Members may only exercise power in the Division (or Divisions) to which they have been assigned.
Role of members
4.5
Members of the AAT are independent statutory appointees who hear and decide applications for review of government decisions. Members are required to:
interpret and apply relevant legislation to factual scenarios;
conduct hearings and other processes in a procedurally fair manner; and
make well-reasoned and timely decisions based on relevant criteria and evidence.
4.6
Suitably qualified members may also conduct alternative dispute resolution processes.
4.7
The AAT submitted that non-judicial members come from a range of backgrounds and with diverse areas of expertise, including in 'accountancy, disability law, medicine, migration, military affairs, public administration, science and taxation'.
4.8
Members are appointed on a full-time or part-time basis and may be assigned to one or more AAT Divisions. They are remunerated in accordance with determinations made by the Commonwealth Remuneration Tribunal.
4.9
The AAT stated that it supports members to discharge their statutory responsibilities through the provision of administrative, research and case management assistance, as well as professional development programs.
Professional development
4.10
The AAT advised that all newly appointed members participate in its Induction Program, involving an 'orientation seminar, an induction course and practical training' and the provision of information on the Australian Public Service Code of Conduct. In addition, new members are usually paired with experienced members, as part of a 'peer mentoring strategy to assist new members adjust to their new role quickly and effectively'.
4.11
In 2021, the AAT also introduced a Periodic Evaluation and Development program, designed to:
… provide members with feedback early in their term of appointment and identify areas where they may benefit from further support and development. It is based around a detailed curriculum that is aligned with core competencies and promotes opportunities for collaborative learning and professional development sessions.
4.12
An appraisal is then generally completed around 12 months prior to the end of the member's term of appointment, providing 'information the President may take into account in making recommendations relating to reappointment'.
Termination
4.13
Section 13 of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides for the termination of members, excluding judges. The Governor-General may terminate the appointment of a member, following an address presented by each House of Parliament in the same session, on the grounds of proved misbehaviour, physical or mental incapacity or on other specified grounds (as detailed in section 13(2) of the AAT Act).
4.14
Section 13(3) of the AAT Act allows the Governor-General to terminate the appointment of a member to the Migration and Refugee Division (MRD) if the member has a 'direct or indirect pecuniary interest in an immigration advisory service'.
Current selection process
4.15
The legislative basis for appointment is provided by section 7 of the AAT Act, allowing the Governor‑General to appoint members on a full-time or part-time basis for a term of up to seven years. Noting that the President must be a judge of the Federal Court, a person may otherwise be appointed as a Deputy President, Senior Member or Member if:
they have been enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least five years; or
in the opinion of the Governor-General, have special knowledge or skills relevant to the duties of the position.
Protocol for appointments
4.16
In 2019, the then Attorney-General, the Hon Christian Porter MP and the President of the AAT agreed to the Protocol for Appointments to the Administrative Appeals Tribunal 2019 (2019 Protocol). This revised document came into effect on 25 March 2019 and superseded the previous 2015 Protocol. The Protocol operates as an exemption to the Australian Public Service Commission's Merit and Transparency Guidelines.
4.17
According to the 2019 Protocol, vacancies on the AAT are to be filled in the following manner:
(1)
The President of the AAT will, every year, seek expressions of interest by public advertisement. The AAT will establish a register to receive applications that address selection criteria developed specifically for the AAT.
(2)
Subject to the President otherwise determining, expressions of interest will remain on the register for the calendar year they are received. Each calendar year the register will be repopulated.
(3)
The President of the AAT will establish a process to assess the suitability of applicants who have provided expressions of interest to the register.
(4)
The President of the AAT will supply the Attorney-General with:
(a)
the AAT's assessment of what positions need to be filled and at what level; and
(b)
advice about which members whose terms are expiring have sought reappointment; and
(c)
the President's recommendations regarding whether reappointments should be offered and at what level; and
(d)
the President's recommendations regarding suitable candidates for appointment that should be offered and at what level for positions where the President has recommended that reappointments should not be offered.
(5)
The process described in paragraph 4 will be conducted every six months and six months ahead of the vacancies arising, or as otherwise requested by the Attorney-General.
(6)
The President of the AAT's recommendations to the Attorney‑General will be made having had regard to the outcomes of the process to assess the suitability of applicants who have provided expressions of interest to the register.
(7)
The Attorney-General is not limited to candidates recommended by the President of the AAT and may choose to recommend to Cabinet a candidate for a position that has not been suggested by the President of AAT or is not on the register.
(8)
The Attorney-General will consult ministerial colleagues who must be consulted in respect of potential appointments to particular Divisions.
(9)
The Attorney-General will then recommend appointments to Cabinet. If the appointment(s) receive Cabinet's approval, the Attorney-General will recommend the appointment(s) to the Governor-General for consideration.
Required competencies
4.18
In relation to point 1 of the 2019 Protocol, individuals seeking to lodge an expression of interest in becoming an AAT member are provided with a list of identified competencies required for the member roles at different levels, compiled by the AAT.
4.19
The competencies are:
Conducting hearings and other Tribunal proceedings
Decision-making and reasoning
Writing and communication skills
Independence, integrity and collegiality
Productivity, diligence and resilience.
4.20
Additionally, occupants of the role of Deputy President and Senior Member must also demonstrate an additional competency of leadership.
Assessing the suitability of applicants
4.21
The AAT advised the committee that it consults the register of expressions of interest (EOI) when a need is identified for particular member positions. It explained:
The processes for assessing expressions of interest differ depending on the seniority of the position(s) and the urgent need for the position(s) to be filled. In all instances, candidates are assessed against the competencies listed in the advertisement and any additional criteria relevant to specific roles.
4.22
Additionally, information published online explaining the selection process to applicants advises that:
Recommendations by the AAT will be made on the basis of merit and the AAT's current and future needs and will include a recommendation as to the appropriate division or divisions to which a potential member should be assigned. The AAT may decide to conduct an interview process to assess the suitability of candidates.
Recommendations to the Attorney-General
4.23
As set out in point 4 of the 2019 Protocol, the AAT President provides the Attorney-General with recommendations on the appointment and reappointment of members.
4.24
The AAT advised that its Heads of Divisions regularly communicate information about the operational needs of the AAT and possible future membership requirements to the President. This in turn informs the President's advice to the Attorney-General.
4.25
The AAT President's recommendations for new appointments are made by reference to the register of EOI, with candidates assessed against the published member competencies outlined above.
4.26
In regard to reappointments, the President's recommendations are informed by a member appraisal process, involving an external reviewer preparing a report 'based on a range of information', which might include:
… a self-assessment by the member, observation of a hearing or listening to a hearing recording, review of written decisions and statistical information and a meeting with the member.
4.27
The reviewer assesses a member's performance against the member competencies, and, if any issues are raised, the following takes place:
… the member is invited to an interview before an independent panel, which usually comprises current and former judges and tribunal members and a representative of the Attorney-General's Department. The independent panel makes recommendations to the President about suitability for reappointment.
4.28
Under section 17C of the AAT Act, the Minister must consult with the President, prior to assigning a non-presidential member to one or more Divisions of the AAT (some Divisions require additional considerations by the Minister, such as whether the member has relevant training or experience in the subject matter for the Division).
4.29
Section 8 of the AAT Act provides that an appointed member holds office for at most seven years 'but is eligible for reappointment'. The length of appointment is specified in the instrument of appointment; terms and conditions on a member can also be determined by the Minister, in writing.
Role of the Attorney-General's Department
4.30
The Attorney-General's Department (AGD) advised that it does not hold a 'prescribed role' under the 2019 Protocol. It advised that it supports the AAT and the Attorney-General by:
(a)
managing public advertising for the EOI register;
(b)
hosting the EOI register on the department's IT infrastructure;
(c)
providing information to the AAT about the EOIs received;
(d)
providing advice to the Attorney-General on the President of the AAT's assessment of the AAT's appointment needs and the candidates that have been recommended for appointment (this does not typically include an analysis of the merits of the candidates appointed)
(e)
following the Attorney-General's identification of suitable candidates, supporting the Attorney-General to process candidates through the Government's appointment process, including seeking curricula vitae and Private Interests Declarations from proposed candidates and drafting appointments documentation.
Recent calls for expressions of interest
4.31
The most recent call for EOI was made on 16 April 2021. It will remain open until 29 April 2022, or until a new call is advertised. The AGD stated that as at 3 December 2021, there were 439 applications on the register.
4.32
Prior to 2021, the last call for EOI was on 8 August 2019, and the register remained open until 8 September 2019. This was the first instance of the EOI register and 800 applications were received. The process informed 30 member appointments announced in 2020. The committee was informed that no EOI process was conducted in 2020, with the AGD advising:
The reason was largely a practical one. On 23 April 2020, the President of the AAT wrote to the Attorney-General with recommendations to address member needs for the 2020 year, with the 2019 EOI register informing new appointments. These appointments were not finalised until December 2020.
4.33
In response to questions from the committee, the AGD acknowledged that 'the absence of an expression of interest process in 2020 is not consistent with the text of the [2019] Protocol'.
Concerns with the selection process
4.34
As point 7 of the 2019 Protocol makes clear, the Attorney-General is not bound by the recommendations put forward for appointment by the AAT President. The Attorney-General may instead choose to recommend to Cabinet a candidate for a position that has not been suggested by the President, or is not on the EOI register. As the AAT submission emphasised, appointments are 'ultimately a decision for the Government'.
4.35
This scope for ministerial discretion was considered by several submitters to lead to adverse outcomes for the AAT and how it is perceived by the public. Concerns were repeatedly put forward in evidence that a lack of transparency and independence in the appointment process was significantly undermining the public credibility of the Tribunal.
Ministerial discretion and political patronage
4.36
The committee heard that the current process for appointing AAT members carries the risk of appointments based on political patronage, rather than on merit.
4.37
A number of inquiry participants submitted that the appointment of AAT members—particularly in recent years—has been unduly influenced, or perceived to be unduly influenced, by personal connections and political affiliations. They observed that this trend (or at the very least the perception of this trend) undermined the promotion of public trust and confidence in the decision-making of the AAT.
4.38
For example, the Grattan Institute put to the committee that the current appointment process of the AAT did not adequately protect the independence or quality of the institution. It characterised the process as being 'very opaque' and operating with a high degree of ministerial discretion, arguing that this resulted in insufficient safeguards to uphold the actual and perceived independence of the system.
4.39
The Australian Lawyers Alliance (ALA) asserted that there had been a history of partisan appointments to the AAT. It expressed concern that the AAT's public credibility was at risk of criticism due to the repeated occurrence of partisan appointments.
4.40
Dr Jason Donnelly, an administrative law barrister and senior lecturer at the School of Law at Western Sydney University, set out the dangers stemming from a perception of such undue political influence:
Members of the public may very well form the view that a person has received a statutory appointment not necessarily because they are the best person for the job but rather because of some political connection. Whether that hypothesis is true, with respect, is beside the point. Critically, what ultimately matters is the perception of the Australian community.
4.41
The Law Council of Australia (Law Council) argued that the current method 'affords the Attorney-General significant discretion in the appointment process'. It drew attention to public comments it had made previously suggesting that the appointment process was 'secretive with the potential to undermine public confidence', and that 'any lack of transparency impacts on the reputations of all members of the AAT, which is unfair'.
4.42
The Law Council made strong public statements following a number of appointments to the AAT in the lead-up to the 2019 federal election. The Law Council drew attention to the nature of these appointments:
The Federal Government's announcement of 34 new appointments to the AAT made without community consultation and 52 reappointments 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 reappointment 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.
4.43
The Grattan Institute provided the committee with 2019 analysis suggesting that 69 of the then 336 AAT members (or 29 per cent) had a 'direct political affiliation'. Of those 69 politically affiliated members, 64 were affiliated with the Coalition Government, the same party that appointed them to their positions.
4.44
The Grattan Institute advised that the politically affiliated members were less likely to have had legal training, with approximately 52 per cent having had some legal training, compared to 75 per cent of non-politically affiliated members. Additionally, AAT members with political affiliations were also, on average, appointed for longer terms that those members without political affiliations. As set out earlier in this chapter, the length of appointment and the decision to reappoint a member is at the discretion of government, subject to a maximum term of seven years.
4.45
Based on its analysis, the Grattan Institute argued that the number of AAT members with political affiliations had increased in recent years. In the 12 years before 2015–16, 4 per cent of appointees had political affiliations, compared to 29 per cent in the five years since.
4.46
Based on material obtained through a Freedom of Information (FOI) process, the Grattan Institute set out a case study related to a round of AAT appointments commencing in late 2018 and finishing in early 2019. It argued that the example clearly illustrated that politically affiliated appointments are concentrated among 'captain's picks' by the Minister:
The documents show the President of the AAT wrote to the Attorney‑General's Department in late-2018 with recommendations for appointments, reappointments, and promotions of AAT members.
Email exchanges between the Attorney-General's office and the department, after the department received the President's recommendations, show that the Attorney-General then recommended several additional appointments. Many of these candidates, who were subsequently appointed to the AAT were not known to the department.
Of the 18 additional appointments advanced by the Minister [the Attorney-General] and disclosed in these FOI records, 10 (55 per cent) had a direct political affiliation with the Coalition and three had other connections to the Coalition but do not meet our definition of a direct political affiliation.
4.47
In setting out the case study, the Grattan Institute emphasised that it was not arguing that any specific AAT appointees with political affiliations were not appointed on merit. However, it made clear its position that the high share of member appointments with direct political affiliations, coupled with the fact that these affiliations were almost exclusively from the 'same side' of politics as the appointing Attorney-General, raised concerns that factors other than merit may be influencing choices.
4.48
The Law Council submitted that all appointments and reappointments to the AAT should be, and be seen to be, non-political, in order to ensure public confidence in the institution and the soundness of decision-making. It recommended that AAT appointments be subject to a merit-based protocol that promotes greater transparency and involves consultation with key stakeholders, including members of the Australian legal profession.
4.49
Specifically, it drew the committee's attention to a policy on the process of judicial appointments (extending to appointments of members and presidents of the AAT) endorsed by its Directors in June 2021:
The Appointments Policy sets out a process for identifying candidates, consulting with members of the Australian legal profession as part of the assessment of candidates, conducting interviews, considering candidates, making recommendations to the Attorney-General, and preserving accountability and confidentiality. It is submitted that the adoption and adherence to such a process will go a long way to restoring public trust in the appointment process for AAT members, and the Law Council commends the Appointment Policy to the Committee.
Suitability for the role
4.50
As referenced earlier in this chapter, subsection 7(3) of the AAT Act outlines:
A person must not be appointed as a senior member or other member unless the person:
(f)
is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(g)
in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member.
4.51
Submitters identified that the 'special knowledge or skills' criterion could be abused through ministerial discretion to make appointments based on political expediency, rather than on merit as the AAT Act intended.
4.52
They also highlighted the minimal transparency surrounding the Attorney‑General's decision-making process when recommending candidates to Cabinet, identifying that this was particularly problematic when it came to additional candidates who had not been recommended by the AAT President.
4.53
For example, in regard to ministerial 'captain's picks', the Grattan Institute argued that:
This lack of transparency provides the opportunity for ministers to nominate their political friends and colleagues, without having them tested through a merit selection process.
4.54
The Melbourne Law School likewise commented:
Not all members are appointed having lodged an expression of interest. The precise process concerning the nomination and appointment of many members remains a mystery.
4.55
The Grattan Institute contended that the inappropriate use of ministerial discretion for appointments carried several risks, namely:
that appointees will lack the necessary skills and experience to effectively carry out their responsibilities, given they have not been tested through a merits-based process or actively compared to other candidates, and
that appointees with political affiliations may be less willing to make a decision that might embarrass or upset the government that appointed them, thereby undermining the actual and perceived independence of the AAT.
4.56
In a similar vein, Emeritus Professor Terry Carney AO, an expert on social security law with extensive experience as a member of the AAT, observed that when appointments are made without any proper evaluation of suitability, or against the advice of that process, harm is done to both applicants and to the institution of justice.
4.57
The New South Wales Bar Association (NSWBA) took the view that AAT members should have a sufficient level of competence to make the 'correct or preferable administrative decision'. It detailed the negative impacts that cascaded from members lacking relevant expertise:
A lack of experience, qualification or skills results in a poor quality of administrative decision making. Poorer quality decision-making can result in the needless expenditure of public money in judicial review proceedings. More importantly, it results in injustice in individual cases, whether that is because the party must then expend further funds and time seeking judicial review, or because the decision made is not the 'correct or preferable' one.
Observations from the Callinan Report
4.58
The 2018 statutory review of the AAT, completed by the Hon Ian Callinan AC QC in 2018 and tabled in Parliament in 2019 (the Callinan Report) examined the issue of AAT appointments and the qualifications of members.
4.59
In considering the criticisms of 'political appointments' received by the review, the final report observed that political engagement (either as a politician or an employee of one) is no more a disqualification for office than employment as a public servant, and that service of those kinds may prove useful experience in undertaking merits review. Notwithstanding these views, Justice Callinan concluded:
But no matter what other qualifications a candidate for appointment to the AAT might have, overwhelmingly submitters favour, as I do, the appointment of people of good character, even temperament, diligence, possessing legal qualifications, and selected as a result of a transparent process.
Conduct and conflicts of interest
4.60
The AAT advised that it promotes and encourages high standards of personal integrity and ethical behaviour by members and staff. The Conduct Guide for AAT Members provides guidance on the appropriate conduct and behaviour of members, both in public duties and in private conduct.
4.61
In regard to managing perceptions of bias and conflicts of interest, the AAT submitted that its members have a 'responsibility to understand and adhere to their professional obligations'. These obligations include the need for impartiality and independence, and 'the need to behave with honesty, integrity, courage and professionalism in all aspects of their duties as a member'.
4.62
Section 14 of the AAT Act requires disclosure of conflicts of interest (pecuniary or otherwise) by members, for the purposes of a proceeding before the Tribunal and where the interest 'could conflict with the proper performance of the member's functions in relation to the proceeding'.
4.63
During the 2021–22 Supplementary Budget Estimates proceedings of the Senate Legal and Constitutional Affairs Legislation Committee, there was discussion with the AAT about their inadequate processes to identify potential conflicts of interest.
4.64
The then AAT Registrar, Ms Sian Leathem, accepted that there was a 'pressing need' for improvement in that area and advised that 'work was underway' to rectify the situation.
4.65
In its November 2021 submission to the inquiry, the AAT provided the committee with general information on how it handles conflicts of interest; however, it did not provide a specific time frame for the introduction of the new processes as identified by Ms Leathem. It advised:
In addition to ensuring information is made available to members about their [conflict of interest] obligations, further steps are being taken to raise and reinforce awareness of them. The Attorney-General's Department has recently initiated processes to facilitate providing the AAT with notice of any personal interests declared by a member as part of the appointment process, offering the opportunity for the AAT to raise any potential areas of concern with the member.
4.66
The AAT continued that:
To facilitate ongoing consideration by members across all Divisions of these matters, the AAT will introduce a declaration process for new members and an annual declaration process for existing members relating to these and other relevant obligations. This will supplement the process already undertaken where new members assigned to the Migration & Refugee Division are asked to complete a potential conflict of interest declaration, which is kept on an internal register to assist with appropriate case allocation.
Duration of appointments
4.67
As previously noted, appointments to the AAT can be made for a period of up to seven years.
4.68
The Law Council expressed concern about a lack of consistency in the duration of appointments, suggesting there was no 'clear basis for the duration of any given appointment'. It was of the view that appointments for a limited time carried the 'potential to damage the perceived independence of the AAT' because:
… it may be apprehended that members whose reappointment is imminent could be concerned about deciding matters adversely to government agencies. This would tend to undermine the public perception in the fair and impartial administration of justice. Conversely, appointing members for a longer term runs the risk of a tribunal having members who underperform or lack the skills, or legal or specialist knowledge, to make objective and effective decisions.
4.69
The Law Council's preferred approach was for long-term appointments to 'go hand in hand' with improvements to the appointments process, to ensure that the 'independence, skills and knowledge of members is appropriate for their role'.
4.70
The Asylum Seeker Resource Centre (ASRC) stated that the duration of regular AAT appointments should be consistent, provided by law, and not at the discretion of the Attorney-General. It argued for this because:
… the variable length of AAT appointments also makes appointments more vulnerable to politicisation and is done on an unclear basis. For example, appointments in 2019 were for a mix of 3, 5, and 7 years, without explanation for this variation. The issue of the length of appointment can have implications for adjudicative independence, as Tribunal appointees holding shorter terms may be perceived by the public as incentivised to placate the government through upholding its decisions on review and thus earn reappointment.
4.71
The Tax Institute submitted that member tenure should be extended beyond the current standard, as it would better facilitate an increased consistency and organisational memory in AAT decisions.
Legal qualifications of members
4.72
As canvassed earlier in this chapter, under the AAT Act it is a requirement of appointment to the AAT that members have either five years enrolment as a legal practitioner, or have special knowledge or skills relevant to the duties of the position.
4.73
According to the AGD:
The mechanism for appointing members under section 7 is intended to ensure that the AAT is constituted by individuals who have a wide range of experiences which make them well placed to undertake merits review. These individuals do not necessarily need a legal background, but instead may be appointed for their professional and technical expertise, knowledge or skills. For example, this knowledge could be in relation to accountancy, medicine, taxation, defence or public administration.
4.74
Inquiry participants expressed varying views as to whether members should be required to hold legal qualifications.
4.75
In relation to the qualifications of members, the Callinan Report observed that given much of the work of the AAT is 'difficult, factually and legally', it was essential that members had the capacity to undertake forensic analysis and write reasoned judgments.
4.76
It also opined that, with one exception, there was no necessity to appoint professionals other than lawyers to the AAT, given that courts and tribunals are 'well accustomed' to deciding issues in disciplines other than legal ones by analysing differing expert opinions.
4.77
Consequently, Measure 6 of the Callinan Report proposed that:
All further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia, and on the basis of merit (a possible exception is appointment to the Taxation and Commercial Division to which competent accountants might be appointed). This may happen without repeal of s 7(3)(b) of the AAT Act, although repeal is, for certainty, desirable.
4.78
Some submitters endorsed the sentiments expressed in the Callinan Report and argued for the need for legal qualifications, citing the increasing complexity of the cases before the AAT.
4.79
For example, Dr Donnelly submitted that legal practitioners and judges are best suited to undertake the 'complex and progressively difficult nature of work' undertaken by the AAT.
4.80
The Law Council commented that while it did not think it necessary that all AAT members have legal qualifications, it acknowledged that the complexity of legislative schemes considered by the AAT should necessitate a 'baseline quota of legally qualified members at any one time'.
4.81
Other submitters also argued that members working in the MRD needed to be legally qualified. For example, the Refugee Council of Australia (RCA) drew attention to the delays in MRD, positing that the delays were in part due:
… to the politicisation of appointments, especially where members appointed to the MRD do not have legal qualifications or expertise in refugee law. We believe the appointment of independent, qualified and expert decision makers at the MRD will also significantly improve the ongoing backlog.
4.82
The RCA recommended that, given the complexity of refugee and migration law, MRD matters should be heard by qualified members well-trained in those areas to ensure that they possessed the requisite skills to assess protection claims accurately and fairly. On a similar basis, the ASRC recommended that all AAT members have legal qualifications and a minimum of 5 years relevant legal experience.
4.83
Professor Greg Weeks of the Australian National University College of Law (who submitted in a private capacity) echoed the Callinan Report observations. He noted that many AAT decisions are made within a highly complex matrix of legislation and policy, and therefore in such cases, legal qualifications are 'likely to equip members to make better decisions'.
4.84
However, he also observed that AAT members without legal qualifications but who have relevant 'special knowledge and skills' nonetheless have that capacity to contribute enormously to the merits review jurisdiction, saying:
Their contribution includes serving as a reminder that the AAT was not designed to function as a court, something that might be forgotten if almost all members were legal practitioners.
There is a view that the increased formality in tribunal decision-making in England and Wales has been caused by the loss of "specialist tribunal members who had accumulated a wealth of knowledge and experience which enabled matters to be dealt with more expeditiously and with greater compassion shown to litigants". Such a state of affairs should not be allowed to befall the AAT.
4.86
Professor Weeks proposed two ways forward on the matter. The first was to constitute the AAT of more than one member, at least one of whom is legally qualified, in a greater number of proceedings. Alternatively, he suggested that an undergraduate law degree from an Australian university be considered to meet the statutory requirement of 'special knowledge or skills' as a qualification for appointment. He explained:
Expanding this qualification to include legally educated persons, who possess relevant experience but do not necessarily work as legal practitioners, is likely to expand the pool of appropriately qualified potential members. It could also bring the benefits of legal experience to more AAT decisions without necessarily making the AAT more closely resemble a court due to the increased involvement of legal practitioners.
4.87
Professor Carney indicated that he 'flatly rejected' the suggestion originating in the Callinan Report that only legally qualified members be appointed. He elaborated:
Lawyers from outside a background or understanding of administrative law (and sometimes those within it) can be the least capable of understanding what is entailed in 'standing in the shoes' of the original decision-maker, of eliciting facts or shedding a 'pleadings' and passive approach to hearings. And the expertise of other disciplines and domains of life (especially public administration) is a vital component of merits review of administrative decisions.
4.88
The NWSBA recommended the enactment of more detailed suitability criteria for AAT members, to ensure that those selected had relevant legal qualifications (excluding the Taxation and Commercial Division, where the relevant criteria should include being an accredited accountant).
4.89
The Melbourne Law School suggested that, rather than repealing and narrowing section 7(3) of the AAT Act to require all members to be experienced and enrolled legal practitioners, it should be amended to ensure that all AAT members demonstrate specific core competencies, as well as specialist expertise in any of the respective jurisdictions within the AAT (for example, migration, taxation, social security) if they do not possess the legal practice experience currently required by the AAT Act.
We acknowledge that legal practice skills and experience are vital to a properly functioning tribunal, because lawyers have a deep conceptual and practical understanding of independence and adjudication. Legal skills and experience may be a core competency but other professional skills and expertise in accountancy, aviation, cultural heritage, environmental science, indigenous laws and culture, health and veteran affairs are also core to some of the AAT's jurisdictions.
The need for an open, competitive process
4.91
The majority of inquiry participants strongly argued for a more open, rigorous appointment process to allay integrity and independence concerns and bolster the public credibility and efficiency of the AAT.
4.92
For example, the ALA submitted that there was a pressing need to ensure that the appointment process was open, fair, transparent, and merit-based in order to promote equity and diversity, as well as reduce the potential for appointments made on the basis of political patronage.
4.93
Submissions to the committee outlined various proposals to achieve this goal, with many suggesting the use of an independent panel or body. The following section briefly outlines a selection of these recommended approaches.
4.94
Assistant Professor Narelle Bedford from the Faculty of Law at Bond University (who submitted in a private capacity) highlighted that the selection process for AAT members had been 'a matter of debate' for some time. She pointed out that sound proposals for reform had been recommended by various expert bodies over many years, but that successive governments had failed to implement them. She argued that any reform should draw on past recommendations by experts, rather than be delayed by a process seeking to 'reinvent the wheel'.
4.95
The Council of Australian Tribunals (COAT), drew the committee's attention to its publication Tribunal Independence in Appointments – A Best Practice Guide (COAT guide), which was released in 2016 following research and consultation with stakeholders. The guide is designed to assist governments and tribunal heads to develop processes for the appointment of tribunal members. It proposes that the appointment of tribunal members be merit-based and provides guidance for assessing merit.
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According to the best practice model outlined in the COAT guide, an appointment process for tribunal members should have five stages, as follows:
Recruitment is the process of identifying potential candidates for appointment.
In the assessment stage, applicants are assessed for suitability for the position and those found to be unsuitable are excluded from further consideration.
The Minister then makes a selection among assessed applicants to determine who shall be nominated (or recommended) for appointment.
The nomination stage includes the checks, inquiries, consultations and other steps required to obtain Cabinet approval of the Minister's proposed nomination.
The process is formally completed when the Executive Council makes an order of appointment.
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The COAT guide noted that most tribunals conduct 'open recruitment' for tribunal positions, in which positions are advertised and applications invited. It set out the value of such an approach:
By conducting open recruitment, the Minister and the tribunal signal to the public that tribunal appointments are made from a wide and inclusive pool of applicants, through a competitive, merit-based and transparent process. The practice enhances public confidence in the independence and the excellence of the tribunal.
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The ALA urged the committee to consider the 1995 review of the Australian federal merits review system conducted by the Administrative Review Council (ARC) which included recommendations (numbers 33 to 42) on the selection process of AAT members and terms of appointments. The ALA advised that it considered the ARC recommendations to be a sensible framework for reform and recommended they be formally adopted by the Government.
Panel assessments of applicants
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The COAT guide stated that when one or more tribunal positions are advertised, best practice requires that a panel is established to assess the applicants against the assessment criteria and report to the Minister. It further explained that where an assessment panel is used, it is best practice for the panel to give the Minister a guided choice from a shortlist of candidates, noting:
The panel should give the Minister a clear indication of its preferred candidate or candidates, with reasons. The panel may indicate its preference by ranking the suitable applicants or the shortlisted applicants.
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Melbourne Law School recommended that an open, competitive and merits‑based appointment process could be achieved by reforms to the AAT Act. In particular, it advocated that the executive should not be involved in the initial recruitment phase. It suggested that an explicit provision be introduced into the AAT Act for the establishment of an appropriately diverse and balanced 'assessment panel'. It detailed its proposal:
This panel should convene when a recruitment process commences and applications are received. With support from the Attorney-General's department, we submit that this panel should be responsible for shortlisting applicants for initial and further assessment by the panel at interview. Shortlisted candidates must be assessed by this panel against statutory criteria ...The panel should have the power to produce a ranked shortlist of suitable applicants that either exceeds the number of positions to be filled, or fills the number of available positions. In the former instance, responsibility for recommending proposed appointments to the Governor-General would be given to the Attorney-General. In the latter instance, the list of proposed appointees would be given directly to the Governor-General and the Governor-General would then appoint the persons on that list.
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It also suggested that the considerations relevant to the assessment of applicants should be explicitly stated in the AAT Act, and that the AAT Act should be amended to provide that a person may not be appointed as a member unless that person has been recommended to the Attorney-General by the assessment panel.
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A private capacity submission from academics at the Faculty of Law and Justice at the University of New South Wales also recommended that a revised appointment process incorporate an independent panel. Further, the academics argued that any deviation from the recommended shortlist resulting from the process should be publicly explained to ensure transparency. They suggested that the appointment process include the following requirements:
all positions are advertised;
the criteria against which a candidate is assessed are publicly available, and include merit-based criteria (including legal and relevant knowledge, skill and expertise, and personal qualities including integrity, independence and good character), and diversity;
the candidates are assessed and shortlisted against these criteria by an independent body, composed of a diverse range of members with relevant expertise, including former judges and tribunal members;
before shortlisting candidates, the body must consult widely, including with relevant professional bodies and officeholders, and representatives of women and First Nations and other minority stakeholders;
if the government appoints a member outside of the recommended shortlist, there must be a public explanation of why this has occurred.
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The Grattan Institute put forward recommendations for an improved, merit‑based process involving the following key elements:
All appointments should be advertised with published selection criteria.
An independent panel should undertake shortlisting.
The Attorney-General must select from the shortlist of suitable candidates.
Independent oversight by the Public Service Commissioner of all appointments and reappointments.
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The NSWBA suggested that human rights norms and principles should be used to guide the AAT member selection process, if it was to 'fulfill the promise of an independent and impartial tribunal'. The International Covenant on Civil and Political Rights provides that everyone before a court and tribunal is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law', and the NSWBA noted that this has been considered to apply to decisions made by administrative bodies, and not just judicial forums.
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It called for a 'rigorous and transparent appointment process, preceded by public advertisement, and overseen by an independent appointment body or panel', with similar processes adopted for reappointments to:
… prevent a perception that an AAT member could be denied reappointment as a result of political dissatisfaction with, or reprisal for, decisions that the member has made.
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In relation to the independent assessment body, the NSWBA said that such a body should be established to conduct shortlisting and interviews, and consist of politically neutral representatives, including legal professionals and the AAT, and publicly publish its shortlist of candidates. It noted that while the ultimate power of appointment would remain with the Attorney-General, any 'deviations from the short list would require public justification'.
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A submission from the Faculty of Law at Monash University provided evidence around the rigorous appointment processes in place for comparative situations in the United Kingdom (UK) and Canada. Based on these processes, it recommended that an independent judicial appointments commission be set up to select AAT members (and judicial officers), with a statutory duty to attract diverse applicants from a wide field. It proposed that the process should include a public call for expressions of interest and publication of criteria for appointment, which could be modelled on the UK Judicial Appointments Commission.
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Dr Bruce Baer Arnold also referenced the potential of an independent commission. He suggested that the AAT should be 'depoliticised' by transferring the selection of members from a minister to an independent body that would operate on a non-partisan basis. He emphasised that such a proposal was not new or radical, given the similarity to a judicial appointments commission, where merit (rather than an expectation to produce decisions favoured by a minister) was of utmost concern. He proposed that such a selection body could comprise former judges and distinguished members of the community (from outside the legal profession), tasked with assessing applicants on the basis of expertise and publishing a list of recommended individuals. The government would then be expected to fill every vacant position on the AAT on that basis.
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Dr Baer Arnold made clear that this process would require expenditure; however, he argued that such expenditure would be appropriate:
It is consistent with funding of courts, tribunals and the national legislature: in essence it is one of the legitimate costs of a liberal democracy and a price worth paying for the legitimacy of administrative review.
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Dr Donnelly likewise argued for the establishment of an independent statutory authority which would have the absolute legal power to recommend the statutory appointment of members to the AAT via the Governor-General. He noted:
Critically, the statutory authority should be entirely independent of government to ensure transparency and legitimacy in the appointment of statutory members to the Tribunal.