ART Appointments: Is this the start of something beautiful?
This post is part of AUSPUBLAW's forum discussing the abolition of the Administrative Appeals Tribunal and the proposed Administrative Review Tribunal.
18.3.2024
Judicial (and quasi-judicial) appointments are one of those topics that judicial scholars can get really animated about, but which for the majority of the public and political classes is a bit of a nothing burger. For the purposes of this post, I will use the term ‘judicial appointments’ and ‘judges’ to refer to quasi-judicial tribunals and their decision-makers. There is, of course, a whole literature on the nature of ‘fourth branch’ integrity bodies, including administrative review tribunals. However, the need for impartial, arms-length review with aspirations of decision-making independence akin to judges makes it appropriate to draw on the language and theory of judicial appointments in the context of this post.
We are blessed in this country with a judiciary with a well-deserved high reputation for quality and integrity. Not for us the high theatre of US approach to appointment: fiery Senate confirmation hearings, shadowy judicial appointment lists, and then lingering concerns of politically and economically ‘bought’ justices. Of course, a truly modern judicial appointment mechanism is also not for us either. In contrast to the UK (with an formal Judicial Appointment Commission that brings transparency to all appointments, including posting ads for Supreme Court positions) we rely on the old school model of having the Attorney-General tap their preferred candidate on the shoulder. Occasionally we toy around with minor reforms – a bit more consultation here, a bit more openness there. But these largely depend upon the whims and will of the current government, and this is not an issue that shifts the political dial.
It takes something pretty extraordinary for the public to care about judicial appointments, and for the media to pay any attention.
Unfortunately, the recent history of appointments to the AAT provides just such a cautionary tale. The politics of appointments became so toxic that the Tribunal itself came to be seen as ‘irreversibly damaged’, its legitimacy corroded to the point that it necessitated abolition.
This post unpacks that background context of the role politicised appointments played in the death of the AAT, before examining how the ART Bill reforms Tribunal appointment procedures. In the final part, it explores the potential broader implications of these new processes.
Judicial Appointments in Australia
By and large, the reason the issue of judicial appointments is not one that really animates the public is because Australians seem to have faith that our judges are not partisan hacks. As Chief Justice Gleeson observed in 2007, Australians ‘largely take for granted the political independence of judges.’
Of course, the political inclination of a judge does influence their decision-making, even when acting with full impartiality and integrity. Both conceptually and empirically it is clear that individual judges matter. This is why the issue of judicial appointments is so critical to institutional legitimacy. As Kate Malleson argues:
the judicial system assumes that bias at an individual level is a highly exceptional event, then the collective impartiality of the judiciary must be safeguarded by ensuring that the process for appointing judges … is demonstrably impartial…
While Australia continues to largely have an approach of secretive unfettered executive appointments to judicial positions, we also have strong political conventions to augment this secretive process. These have largely resulted in an apolitical bench populated by eminent judges, supporting a judiciary of high legitimacy and reputation for quality and integrity.
There have, of course, been instances of both nakedly political judicial appointments, and of appointees with significant political antecedents. The mere fact of prior political experience is not, of course, disqualifying. We have a long history of such appointments since Federation itself: Griffith, Barton, Barwick, Evatt, Murphy, and more recently Duncan Kerr, to name but a few. The problem arises where there is a strong perception that the only relevant distinguishing qualification the appointee has is their political connections. At this point we are no longer debating the political context of an otherwise meritorious appointment, but have entered the realm of cronyism – where connections are the only real merit. Perhaps the most blatant recent example was when, in 2014, Queensland premier Campbell Newman controversially appointed the wildly unqualified Tim Carmody, as chief justice of the Queensland Supreme Court. This set off what has been described as Australia’s ‘greatest judicial crisis’. But even this pales into insignificance in light of the patent cronyism that ultimately brought down the AAT.
The Politicisation & Demise of the AAT
The rumblings over AAT appointments under the Coalition government had been building throughout their tenure, but came to prominence in the lead up to the 2019 Federal election.
After Parliament rose ahead of that election, the Coalition government announced a suite of 86 appointments to the AAT. Then Shadow Attorney-General Mark Dreyfus observed that the ‘Liberal Government seems to think that public positions are just theirs to give away to their mates’. This concern that the AAT was coming to be seen as simply ‘full of Liberal mates’, was not confined to the political classes. In an extraordinary intervention, the Law Council of Australia stated that it was ‘concerned and troubled” by the ‘lack of transparency’ regarding AAT appointments, and claiming those processes were ‘secretive with the potential to undermine public confidence’.
In the lead up to the 2022 election, the Morrison government repeated the antics of 2019, with a third of new appointments having strong links to the Liberal party. By the end of the Morrison government, the view that the AAT had become a place of ‘jobs for mates’ had become pervasive. One headline in April 2022 stated simply ‘Tribunal appointments: “They should call it the ATM, not the AAT”’.
This perception was not just political griping. Analysis showed that, whereas under the Howard and Rudd/Gillard administrations around 5% of appointees had political backgrounds, in the Morrison era, over 40% appointments had political backgrounds. In the lead up to the 2022 election, Australia Institute director Ben Oquist observed, in relation to these concerns of cronyism:
It’s not just terrible for the AAT, but terrible for our democracy. It’s a key part of legal and democratic infrastructure … And it’s got so bad, it’s going to need radical solutions to fix it.
These words have proven to be prophetic. In December 2022, six months after taking office, the Labor Government announced that the AAT would be abolished and replaced with a new federal administrative review body. In announcing the abolition, Attorney-General Dreyfus argued that its reputation had been ‘irreversibly damaged’ through a ‘disgraceful exhibition of cronyism’:
By appointing 85 former Liberal MPs, failed Liberal candidates, 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,
By this point, the ABC could simply state that the AAT was ‘[o]ne of the most notoriously politicised bodies’. The collapse of confidence in the body was no longer hypothetical. There were also serious claims regarding bullying at the Tribunal. The Robodebt Royal Commission found that, as Bill Shorten observed, ‘successive Coalition governments effectively neutered the Administrative Appeals Tribunal,’ minimising its protective role. As Hardarker wrote in 2023, the ‘hollowing-out of the AAT — and the Abbott government's disbanding of the ARC — rendered guards for welfare participants impotent’. (The Administrative Review Council (ARC) was an independent policy advisory body established under the AAT Act that issued reports and best practice guides on administrative law issues.)
Despite AAT member Terry Carney handing down five ‘explosive’ decisions in 2017 outlining why Robodebt was unlawful (see Carney’s follow up article here), there were many instances of the Tribunal continuing to back the program's legality. Rather than appeal Carney’s decision – at which point it would become public – the Government adopted a practice of ambiguous deniability. For Carney, though, the result was unequivocal: he lost his job at the AAT five months after delivering those judgements. Rigorous independence and impartiality in decision-making were no longer seen as an ideal, but a liability.
Robodebt was a catastrophic indictment on the capacity of the AAT to promote a culture of legality and administrative integrity through meaningful review. The Royal Commission ultimately found that in 424 cases the AAT said that the use of the income averaging was wrong, yet this had no impact on the willingness of the government to continue to rely on this system. As Shorten stated, the ‘government neither had the intestinal fortitude to appeal the decisions, nor did it have the courage to actually say we're going to stop it. They just ignored the problems.’
The AAT was no longer a fit-for-purpose system of administrative review. And the issue of cronyism and appointment was at the heart of its demise.
Of course, there is a silver lining to every cloud, and the demise of the AAT is no exception (and I am not just talking about this wonderful ballad by Daniel Estrin of Voyager fame). For out of the ashes of the old Tribunal is rising a new, contemporary review body with new appointment procedures.
Appointments in the ART
One of the centrepiece features of the new ART is, according to the Attorney General, a ‘transparent and merit-based selection process for all members’. This new process has a number of key features that distinguish it from the old AAT model. (The following discussion focuses on appointments for senior and general members, and not on appointment for President and Deputy Presidents – which are subject to separate provisions.)
The Tribunal will retain a model of appointment by the Governor-General on recommendation of the Minister, which is seen as appropriate given that ‘while the Tribunal is independent of government, it remains part of the executive government.’ The relevant provision sets out:
208 Appointment of senior members and general members
Appointment by Governor General
(1) A senior member or general member is to be appointed by the Governor General, by written instrument, on the recommendation of the Minister.
(2) Before the Minister makes a recommendation to the Governor General, the Minister must:
(a) seek, and take into account, the advice of the President in relation to:
(i) whether the appointment would meet the operational needs of the Tribunal; and
(ii) the financial capacity of the Tribunal for the appointment; and
(iii) the effect of the appointment on the number of senior members and general members relative to the number of Non-Judicial Deputy Presidents; and
(b) be satisfied that the person was assessed as suitable for the appointment through an assessment process that:
(i) was merit based; and
(ii) included public advertising of the position; and
(iii) complied with the requirements (if any) prescribed by the regulations.
The Minister must hence consult with the President on the operational and financial impact of the appointment. Additionally, the Minister is empowered to establish ‘assessment panels’ to assist in assessing a candidate or candidates for appointment as a member.
The most significant changes, however, are with respect to eligibility, merit selection and transparency.
Eligibility
The rules on eligibility have been significantly tightened. Under s 208(4), a person will only qualify for appointment as a member if they are a legal practitioner and have been enrolled for at least 5 years, or can satisfy the Minister they have ‘at least 5 years’ specialised training or experience in a subject matter relevant to the jurisdiction of the Tribunal’.
This is significantly more onerous than the equivalent provision under the Administrative Appeals Tribunal Act, which required only that the person possess ‘special knowledge or skills relevant to the duties of a senior member or member’. The undefined and open-ended nature of that provision left it wide open to the abusive cronyism that came to define the late period AAT.
Merit Selection
Secondly, the new model not only requires that members shall be appointed on merit (a factor shockingly absent from the AAT Act), but provides a substantive definition of what this means:
4 Definitions
In this Act:
…
merit based: an assessment process for an appointment to an office is merit based only if:
(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and
(b) the assessment is based on the relationship between the candidates’ skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and
(c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.
The Explanatory Memorandum explains that these provisions are ‘similar to the approach to appointing non‑executive Directors to the boards of the ABC and SBS, with updates to match the needs of the Tribunal’. These updates include the ability to consider ‘an applicant’s technical skills as well as their broader skills, such as their ability to write clear decisions’
Transparency and Openness
The third major change is the legislative requirement for an appointment process which includes ‘public advertising of the position’. The objective of this public advertisement requirement is that it ‘provides transparency, and ensures a wide cohort of potential applicants are made aware of, and can apply, to the position’. Such a requirement is unusual – it appears that the only other example of such an express provision is found in the Australian Human Rights Commission Act.
Conclusion: Broader Implications?
The various reforms to the appointment process can be seen in the following table contained in the ART Bill’s Explanatory Memorandum:
Table 1: Appointment process elements, by level
Given how important the issue of appointments was to the collapse of legitimacy of the AAT, it is critical that the new ART gets this issue right. These reforms go a long way to addressing these concerns, though ultimately, success of the scheme will depend upon a culture of openness and integrity in appointments which no legislative regime can create.
It is important to recognise, though, that the significance of the reforms seen in the new ART appointment processes go beyond the new tribunal. A more transparent merit-based judicial appointment system is needed for all courts in Australia. This need was recognised by the ALRC in its Without Fear or Favour Report, where it called for a ‘more transparent process for appointing federal judicial officers on merit’. In that Report, it noted that there was ‘almost universally supportive’ for such reforms in submissions to the Inquiry.
For too long the discussion of systemic problems in appointment processes have been treated as taboo in the legal community. As I have argued previously, we have tendency to not ‘talk about such things in polite company.’ For example, when the journalist Jan Fran revealed that 60 per cent of NSW Supreme Court judges went to one university (and 17 per cent to a single elite private school), for example, nobody from that jurisdiction — lawyer or academic — would go on the record to comment. The reality is, though, that the individual identity and values of judge can profoundly affect and shape the development of the law. As a result, the institutional legitimacy of any court is intimately bound up in the nature and practices of its appointment processes.
The current models of judicial appointment in Australia are highly dependent on political conventions that judges should be appointed on a largely apolitical basis. It is those conventions alone that push back against the unsettling potential for nakedly political appointments. However, as I argue elsewhere, these conventions are impermanent and vulnerable:
…[o]nce conventions shatter, the social legitimacy of public institutions — including courts — can quickly evaporate. The politicisation of the US Supreme Court is a case in point, with appointments now becoming a matter of base politics.
The AAT now provides a cautionary case study far closer to home. However, the ART promises a future where we can start taking the socially critical issue of judicial appointments more seriously.
So while it may be gone days for the AAT, we may be seeing – in its successor ART – a modern administrative review mechanism that aspires to a truly open, transparent merit-based appointment process. This could be the start or something truly beautiful in reforming judicial appointments in this country.
Joe McIntyre is an Associate Professor at the University of South Australia.
Suggested citation: Joe McIntyre, ‘ART Appointments: Is this the start of something beautiful?’ (18 March 2024) <https://www.auspublaw.org/blog/2024/3/art-appointments-is-this-the-start-of-something-beautiful/>