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The ‘mercy killing’ of the Administrative Appeals Tribunal

Claims of egregious political cronyism led to the axing of the Administrative Appeals Tribunal (AAT). DLS administrative law expert Prof Matthew Groves outlines the machinations behind its recent demise.

As lead author, Alfred Deakin Professor Matthew Groves, Associate Head of Deakin Law School, analysed the AAT's collapse, in a recent article in The Australian Law Journal.

Professor Groves, also lays out what Australia’s common law legal system must learn from what he describes as the tribunal's "mercy killing", in determining what comes next.

At the end of 2022, Federal Attorney General Mark Dreyfus announced that the AAT would be dismantled this year because its independence and public trust had been damaged beyond repair by a series of politically motivated appointments.

"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 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."

How the Administrative Appeals Tribunal fell victim to political cronyism

Professor Groves said the independence of that review had come under challenge in recent years, through a series of institutional reforms made in the name of public sector efficiency and without the need for legislative changes, laying the groundwork for the controversial appointments that followed.

"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 said.

"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."

Professor Groves said tribunals like the AAT were indispensable to common law legal systems, but their distinct character rendered them more vulnerable to political interference than courts.

He said that it was critical that the same scrutiny placed on judicial court appointments were levelled at those made to administrative tribunals like the AAT, as well as 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. That relative lack of attention almost certainly enabled the previous Australian government to engage in the appointment practices that it did," he said.

Replacing the Administrative Appeals Tribunal with a nonpartisan body

Professor Groves welcomed the Federal Government's plans to appoint 75 new interim members of the tribunal through an open, merit-based application process, to help work through the case backlog as a replacement body was developed. And this week, the Attorney General's department released an 'issues paper' seeking public comment on the likely structure and guiding principles for a body to replace the AAT.

"We need to keep a close eye on what comes next. 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," Professor Groves said.

"The important things to watch out for 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."

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