In the days before the caretaker period, the Morrison government has made 19 appointments to the Administrative Appeals Tribunal, many of whom have links to the Liberal Party. By Rick Morton.
Coalition stacking Liberals across the boards
After cutting funding to the overwhelmed Administrative Appeals Tribunal in last month’s budget, the Morrison government has appointed 19 new members and deputy presidents to it, almost half of whom have links to the Liberal Party or conservative politics.
Announced on Monday, the AAT appointments are in addition to a flurry of other positions across the work of the Commonwealth that have been filled or extended with people linked to the Coalition or from the gas and resources sector. Most notably, Resources and Water Minister Keith Pitt tapped Australian Petroleum Production and Exploration Association chief executive Andrew McConville to lead the Murray–Darling Basin Authority from June this year, and selected former LNP Queensland politician John McVeigh to chair a Murray River panel “which will look for water infrastructure opportunities that could improve delivery and reliability of water right across the southern Basin”.
Origin Energy chief financial officer Lawrence Tremaine has had his tenure as an acting member of the Financial Reporting Council extended for three months from April 29, covering the election period.
Former adviser to Josh Frydenberg and PwC lead partner Martin Stokie has also been made a commissioner of the Productivity Commission by his former boss, appointed for a period of five years. In this role he will join Professor Alex Robson, newly appointed deputy president of the Productivity Commission, who served as chief economist during Malcolm Turnbull’s prime ministership.
While the Coalition government has been busy filling a slate of empty positions immediately before caretaker provisions come into effect, the most consequential of these are in the Administrative Appeals Tribunal, which has been seen internally as a source of embarrassment and an executive block on government decisions.
The AAT is a quasi-judicial body whose role is to inhabit the position of original government decision-makers during merits review and to test whether those decisions in areas such as social security, migration, taxation or support under the National Disability Insurance Scheme were made properly. It featured prominently in early test cases regarding the unlawful $2 billion robo-debt welfare scheme and has routinely found in favour of applicants forced to argue for disability support denied through the NDIS.
On Monday, Attorney-General Michaelia Cash announced 19 new appointments to the tribunal and extended the tenure of 26 existing members. The new deputy president of the AAT, appointed by Cash, is former West Australian Liberal attorney-general Michael Mischin, who will be joined by former WA Liberal MP and regular Sky News Australia contributor Peter Katsambanis as a member. Among the roster of new members is Ann Duffield, Scott Morrison’s former chief of staff and an adviser to Philip Ruddock during a particularly acidic period for refugees in Australia.
Self-described “Red Tory”, barrister and conservative commentator Graham Connolly has also been selected for the tribunal, as has former NSW Liberal minister Pru Goward, current Coalition federal adviser Kate Chapple, and Brygyda Maiden, general counsel for IVECO Trucks Australia.
Cheryl Cartwright, a former chief of staff to then Nationals MP Warren Truss and the current chief executive of the Australian Pipeline and Gas Association, was also vaulted onto the tribunal.
“She’s highly qualified. I don’t believe she is legally qualified,” Cash told a senate estimates hearing on Tuesday morning.
“But I would argue as a CEO of the Australian Pipeline and Gas Association she is someone who is able to work under pressure, she is someone who is clearly able to make decisions. Given her previous work with government, she understands legislation, she understands the nature of the decisions that need to be made.”
At the hearing of the senate legal and constitutional affairs committee on Tuesday morning, the attorney-general revealed six of the 19 new appointees were not on the expression-of-interest register created a year ago to fill positions on the tribunal.
“The [protocol] clearly states 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 the AAT or is not on the register,” Cash said.
“So, again, clearly the protocol has at all times been followed. I challenge you to point out which one of those 19 new appointments are not qualified.”
Cash said 15 of the new appointments are “legally qualified, including eight barristers”.
Labor’s Senator Kim Carr pushed the point, however. “Well, let’s go through that, if you want to raise that issue,” he said. “So for instance, Michael Mischin, who is appointed to a $496,000-a-year position as deputy president, being a member of the Liberal Party and a former Liberal MLC, was that relevant?”
Mischin, according to Cash, has been an admitted lawyer since 1982 and a former crown prosecutor.
In addition to the members, at least seven of the reappointments are for people with links to the Liberal Party or who ran for office. These include former Eric Abetz adviser Donald Morris, Cash’s former adviser Antoinette Younes, lifetime member of the Sydney University Liberal Club Justin Owen, former Victorian state Liberal MP Donna Petrovich and former candidates or preselection nominees Rachel Westaway and Denis Dragovic. Two, however, have links to Labor.
“You were very happy to spruik their Labor credentials,” Cash said. “These are two serving members who have discharged their duties admirably and as such both were promoted.”
There are now about 320 members of the AAT, but workloads at the organisation have been reaching historic highs despite a slight dip caused by the Covid-19 pandemic in 2021. The estimated actual funding made available for the tribunal in 2021-22 was $232.1 million, but government funding in the budget is due to fall by about $5.5 million in the next financial year.
“Applications to the AAT have grown steadily in 2021-22. Lodgements continue to grow significantly in the NDIS division and there is a return to higher lodgement levels in the migration caseload of the migration and refugee division,” registrar Jamie Crew told the hearing on Tuesday.
“While we were able to make some inroads in 2021, there remains a significant backlog in cases. There has been a small decrease in the AAT’s overall base appropriation in the 2022-23 financial year announced in the recent federal budget.
“Addressing our large and ageing backlog within existing resource constraints represents a significant challenge for the AAT in 2023-24 and the forward years. We will continue to engage with the government regarding our ongoing resourcing needs.”
Crew told the hearing that, as a proportion of the caseload, NDIS matters have increased threefold, the largest of any division in the tribunal. With the new arrangements, the NDIS division will have three new full-time senior members and one part-time senior member, in addition to a replacement for former NDIS division head Justice Fiona Meagher, who was appointed a Federal Court judge and president of the AAT on April 1.
“What it has meant is the opportunity to progress things including a new practice direction which has gone for internal consultation this week,” Crew said. “So it is another opportunity for people to look at ways in which we can finalise matters more quickly or improve the … applicants’ experience.”
In 2018, former High Court judge Ian Callinan completed a review of the Administrative Appeals Tribunal, which was scathing in its findings, especially on the lack of a proper “merit-based” process for the appointment of new members. The review was published by the then attorney-general in the middle of 2019 but has received no official response from government.
“An effective mediator engages in a process of gaining the confidence of the parties, gentle testing and coaching of parties in their cases, and needs to have a good knowledge of the applicable law and the relevant facts,” Callinan wrote in the review.
“It is wrong to think that a person who possesses merely training and formal qualification will for those reasons enjoy the confidence of the parties and possess the knowledge and versatility required to conduct ADR [administrative decision reviews].”
Callinan was adamant 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”.
On the same day Michaelia Cash’s AAT appointments were being scrutinised in the senate, the attorney-general announced the appointment of former resource industry human relations manager Paul Schneider as deputy president of the Fair Work Commission.
Schneider, who can serve on the commission until he is 65, is another Western Australian and his appointment was welcomed by the Australian Mines and Metals Association.
“He brings significant experience from across the resources industry – the powerhouse of Western Australia’s economy,” the association’s chief executive, Steve Knott, said, “and in particular the offshore and maritime support sectors where industrial relations can be both complex and challenging.”
There was an end-of-school energy in the senate estimates hearing as Kim Carr continued his push for more detail about the selection process of various government appointments.
“Can someone get Senator Carr a cup of tea,” committee chair Sarah Henderson joked at one point, to which Cash added: “And slip something into it quietly.”
In an election, the attorney-general will have no such luck.
Ahead of the election, The Saturday Paper surveyed readers on which issues they wanted to see covered in more detail. This piece is the second in a series based on your responses.
This article was first published in the print edition of The Saturday Paper on April 9, 2022 as "Stacks on the hill".
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