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As the attorney-general considers whether to dissolve the Administrative Appeals Tribunal, freedom of  information documents show the body has been so stacked with government appointments that they are radically affecting its decision-making outcomes. By Mike Seccombe.

Odds stacked against justice in politicised AAT

Attorney-General Mark Dreyfus.
Attorney-General Mark Dreyfus.
Credit: Mick Tsikas / AAP Image

A lucky Iranian asylum seeker hoping for a protection visa in Australia has a 93 per cent chance of success before the Administrative Appeals Tribunal. An unlucky one has zero chance. It depends on which member of the tribunal they appear before.

Among all asylum seekers – not just those from Iran – the chances of success range from zero to 86 per cent, again depending on who is making the decision.

Overall, the great majority of appeals for protection to the AAT are rejected. But here’s the crucial thing: they are almost twice as likely to be knocked back if they come before a tribunal member appointed by the former Coalition government. The hardest of hardliners were appointed by Liberal attorneys-general.

The enormous discrepancy in outcomes emerges from data obtained through a freedom of information request covering all 18,613 AAT decisions in relation to protection visa applications made between January 1, 2015 and May 18, 2020.

To ensure the statistical validity, the research focused on tribunal members who had decided 50 or more cases. Among those 88 members, one did not find in favour of a single person seeking protection. Another 15 members had approval rates of less than 5 per cent. At the other end of the spectrum, three members had approval rates above 50 per cent. One member decided in favour of the asylum-seeker applicants in 86 per cent of cases.

Of course, numerous variables can influence outcomes. For example, the lead researcher – Associate Professor Daniel Ghezelbash, who is now deputy director of the Kaldor Centre for International Refugee Law at UNSW Sydney – notes that 28 per cent of claims were successful when the applicant had legal representation, compared with 4 per cent for those who did not.

When he first took his research to the AAT, the tribunal argued success rates might be affected by the fact members were allocated specific types of claims from specific countries about which they had particular expertise. But when the numbers are broken down by origin – as the above Iranian example shows – that is not the case.

The enormous inconsistency in outcomes is best explained not by the merits of cases but by the merits of the people making the decisions.

As Ghezelbash, his fellow researchers Keyvan Dorostkar and Shannon Walsh, and Asher Hirsch of the Refugee Council of Australia wrote in a submission to a recent senate inquiry into the AAT, it is about politics.

The discrepancies, they said, were a consequence of “the politicisation of appointments” to the AAT.

The stacking of the tribunal with people who had party connections to the previous government did not only result in skewed decision-making; it also contributed to an enormous backlog of cases. Many of those appointed lacked the relevant legal qualifications and expertise – and in the case of some political appointees, the diligence – to do the job in a timely way.

As of June 30 last year, they noted, the Migration and Refugee Division of the AAT had “a total of 32,064 cases pending”. On the figures at the time, the tribunal was finalising just over half of the cases it was receiving. “At this rate,” the researchers said, “it would take over five years to get through the existing backlog of applications, not accounting for further applications.”

Paradoxically, the former government’s stacking of the tribunal, coupled with a lack of proper resourcing, actually resulted in more claims for asylum, because the delays meant “those who are not entitled to stay in the country can stay for extended periods while they are waiting for a decision, creating an incentive to lodge weak claims”.

The review system, wrote Ghezelbash et al, was “completely dysfunctional”.

The AAT does much more than consider claims for asylum, though. It reviews administrative decisions made by government ministers, departments and agencies in a wide range of areas: everything from tax to family assistance and social security to the National Disability Insurance Scheme to freedom of information requests to workers’ compensation. Its remit covers more than 400 federal acts and legislative instruments.

The tribunal’s inconsistency in deciding asylum cases, however, provides a particularly powerful example of the consequences of political meddling – both because decisions can literally be matters of life and death and because the data so clearly shows ideologically driven bias, compounded by incompetence.

The stacking of the AAT does not stop with the Migration and Refugee Division, either.

Until a few months ago, Jennifer Strathearn was member of the AAT, based in Adelaide, doing some work with the migration division, but mostly working within the Social Services and Child Support Division.

She was first appointed to the Social Security Appeals Tribunal in 2005, following what she calls a “rigorous selection process”. When that tribunal was subsumed into the AAT, she was reappointed by the then attorney-general, Liberal George Brandis. Her most recent term was due to run until September 2024.

But she quit in April this year, appalled at the Coalition government’s abrogation of proper selection processes. Strathearn had been increasingly concerned about politicised appointments during the tenure of Christian Porter and then Michaelia Cash as attorneys-general.

Cash’s appointment of another batch on April 4, just six days before Scott Morrison called an election, was “the straw that broke the camel’s back”, Strathearn tells The Saturday Paper. On April 9 she submitted her resignation.

The most senior of the new Cash appointments was Michael Mischin, a fellow Western Australian who lost his seat in the state parliament in the 2021 election landslide to Labor. He became deputy president of the AAT, on a salary of almost $500,000. Another loser from the state election, Peter Katsambanis, became a member, while former New South Wales Liberal frontbencher Pru Goward was made a senior member. Three other appointees were former federal Liberal staffers. One of them, Ann Duffield, former chief of staff to Scott Morrison, was made a part-time senior member. Tribunal members are paid between $193,990 and $249,420 a year, while senior members are paid $329,930 to $391,940.

Strathearn does not impugn any of the most recent appointments personally. Her point is that because the minister is free to appoint whomever he or she likes, regardless of qualifications or a merits assessment, the overall quality of decision-making declines.

“Some of them are legally qualified and able to do the job. Sadly, there are some who are not,” she says. “I’d still be there if I could have confidence that it would be an organisation based on accountability, integrity and the rule of law. And I had no confidence at all about that.”

Strathearn set out her concerns in a submission to a senate inquiry into the AAT.

“Unfortunately, some of these AAT appointees have lacked sufficient qualifications, have obvious conflicts of interest, have not performed to the required standards, have caused backlogs in AAT reviews due to incompetence or lack of motivation, and some have been paid high remuneration for achieving precious little or anything of use to the AAT or its work,” she wrote.

“This has amounted to blatant cronyism and is now widely understood in Australian political and administrative circles to be the case. One cannot help but draw a conclusion that it may be incumbent upon this cohort of persons to do the current government’s bidding.”

The cohort Strathearn describes is large. According to a report released by the Grattan Institute this week, of 320 members of the AAT, 70 have a “direct political affiliation”.

Other counts put the number higher. When Cash announced the latest round of appointments, then shadow attorney-general Mark Dreyfus tweeted the six Liberal “mates” among them: “That’s at least 85 Liberal mates on the AAT now since 2013.”

It depends on who you consider a political appointment. In its report “New politics: A better process for public appointments”, Grattan counted an appointment as political only if the person had previously worked as a politician, candidate, political adviser, or employee of a political party.

It did not include members of political parties, political donors, prominent supporters, union officials, friends, relatives or those engaged in “other forms of political activity”. Nor did it count appointees who “appear to be chosen for their loyalty to a particular ideological position”.

So, its count is likely a significant underestimate, as the report conceded. And the problem had worsened significantly in recent years, along with general standards of behaviour in political life.

Overall, about 7 per cent of the 3600 public roles covered by the report had a direct political connection, Grattan found.

“But,” the report continued, “these public positions vary widely in terms of pay, power, and prestige. The more desirable tend to be more attractive targets for politicisation: 21 per cent of federal appointees to high-paying, powerful, and/or prestigious boards have political connections.”

The AAT, supposedly “an independent expert body that plays a critical role in government accountability and access to justice”, was a particular focus of the report.

“AAT appointments have the trifecta for risk of politicisation: roles on the tribunal are prestigious, pay well (members earn between $193,990 and $496,560 per year), and come with considerable power given members make consequential judgments on government decisions.”

The only requirement to become an AAT member is that a person has been enrolled as a legal practitioner for at least five years or has “special knowledge or skills relevant to the duties of a member”. This “special knowledge” is broadly interpreted and the report noted “only about half of the politically affiliated AAT members have a law degree”.

In the 12 years to 2015, its analysis showed, just 3 per cent of new members had political connections to the appointing government. In the seven years since – correlating to the years of the Abbott–Turnbull–Morrison government – 18 per cent of new members had political connections to the appointing government. The figure was 31 per cent since 2017-18.

Worse, Grattan pointed out: “Many of these appointments were made on ‘election eve’ – in the final days before the caretaker period commenced in the lead-up to the past two federal elections.”

Furthermore, political appointees tended to get more senior roles, for longer terms, and to underachieve in their jobs. Almost a quarter of political appointees were “well under” their performance targets.

Some consequences of a corrupted system are less easy to measure. Politicisation also puts pressure on non-political appointees to do the bidding of government. Jennifer Strathearn claims knowledge of at least two instances within the final six months of her tenure where colleagues were warned they were overturning departmental decisions too often.

But it need not be so overt. It can simply result from decision-makers divining for themselves the will of government.

In the area of asylum-seeker applications, says Sarah Dale, centre director and principal solicitor at the Refugee Advice & Casework Service: “I think that we can definitely say that we have seen decision records change with the politics of the day. We have seen the mood at the tribunal change when it comes to our applicants, and that is obviously impacted by politics.”

Terry Carney, who served almost 40 years in the AAT Social Services and Child Support Division and its predecessor body, also wrote a submission to the senate inquiry. It said, in part: “Public trust and confidence in the work of merits review tribunals hinges on the calibre of its membership. Independence, technical competence and understanding of the role, and what may be termed ‘tribunal-side manner’ are critical. Those qualities cannot be ascertained other than by a purpose-built and arms-length screening and assessment process.

“When appointments are made without any proper evaluation of suitability, or against the advice of that process, harm is done both to applicants and to the institution of justice.”

During most of his tenure, he tells The Saturday Paper, there was a rigorous selection procedure, resulting in generally high-calibre decision-makers. But the appointments process of the former government “unquestionably … stunk to high heaven”.

The AAT is arguably the worst example of the politicisation of public jobs, but the legacy of the previous government is much broader.

Grattan found about 22 per cent of board appointments to government business enterprises such as Defence Housing Australia, the Australian Rail Track Corporation and Snowy Hydro were political, and 93 per cent of those were aligned to the Liberal–National parties. In the case of Australia Post, half the board are Coalition political appointees.

About 20 per cent of federal government appointments to other “prestigious” boards – such as the Australian War Memorial, Australian Sports Commission, National Library, Australia Council et cetera – also have political connections.

At “powerful” bodies, including key regulatory agencies such as the Australian Competition and Consumer Commission (ACCC), Australian Human Rights Commission, Australian Charities and Not-for-profits Commission and Infrastructure Australia, the ratio is also about 20 per cent. In the case of the Productivity Commission and the Commonwealth Grants Commission, it is 50 per cent.

No doubt many of those who have been handed government jobs are well qualified for their roles, even if they also are “mates”. But equally there is reason to suspect there are many who are installed either for ideological reasons or as sinecure rewards for their past dedication to the party.

This should be a concern, particularly in the case of government business enterprises. As the report noted: “Researchers in the US have found that federal programs administered by political appointees don’t perform as well on average as programs run by other appointees or career executives.”

For Danielle Wood, chief executive of the Grattan Institute and lead author of the report, the politicisation smacks of the US “spoils” system, by which incoming administrations hand out public roles to their supporters. Wood recalls that in one of her former jobs, at the ACCC, she would deal with counterparts in the US Department of Justice. “They could never believe I didn’t know the political allegiance of my boss,” she says.

The difference is that, in America, when the government changes, a whole new set of people is appointed to share the spoils. In Australia, they are much harder to get rid of. The former government has effectively salted the earth for its successor, ensuring its influence continues even after electoral defeat.

Again, the AAT illustrates the problem. Members are appointed for fixed terms of up to seven years. Must the new government simply wait until the terms of the current members expire, no matter if they are ideologues or simply duds? The senate legal and constitutional affairs committee, in its recent report on the AAT, proposed a more dramatic solution. Among the recommendations of its majority report was this: “The committee recommends that the Attorney-General disassemble the current Administrative Appeals Tribunal (AAT) and re-establish a new, federal administrative review system, by no later than 1 July 2023.”

That is, blow the whole thing up and start over. The new body, it said, should implement clear selection criteria and advertise them broadly. It should set up an independent panel to assess the merits of applicants, ensure all appointments are of the same duration, and limit the power of the attorney-general to make appointments “not in accordance with the recommendations of the independent panel”.

Grattan’s report advocated similar measures, except that they should apply to all public board, tribunal and statutory appointments, at both state and federal levels. It did not suggest blowing up the AAT.

Australia’s new attorney-general, Mark Dreyfus, was approached for his reaction to the senate committee report. His response alluded to the AAT as a “Liberal Party employment agency” and referred to the backlog of cases that has resulted in people waiting “months, and in some cases years, to have their cases heard”. He said, “I am now carefully considering how I can undo the damage of the last nine years, and ensure the AAT once again serves the interests of all Australians…”

It is a less than definitive answer but, in fairness, he has been saddled with an enormous problem. 

This article was first published in the print edition of The Saturday Paper on July 23, 2022 as "Odds stacked against justice".

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Mike Seccombe is The Saturday Paper’s national correspondent.

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