The federal government is in the process of abolishing a powerful independent body that reviews government decisions on everything from child support to migration status. The Administrative Appeals Tribunal (AAT) is being replaced by a new body, the Administrative Review Tribunal (ART), at least in part because of concerns about political stacking.

Appointments to the AAT represent one of the most egregious examples of political stacking in Australia in recent years. However, there is currently no guarantee the new body won’t succumb to the same fate.

To build public confidence in the ART, the government must ensure a best-practice appointments process, at arm’s length from political interference.

Political appointments undermined the AAT

Appointments to the AAT were prestigious, powerful and very well paid (full-time members were paid between $207,310 and $530,630 per year). This made the tribunal an attractive target for political appointments – a nice job for a mate, a place to “park talent”, or perhaps a chance to return a favour.

In 2022, Grattan Institute research showed a staggering 20% of the AAT’s 320 tribunal members had a direct political connection to the government that appointed them. It is unlikely such a high proportion of former politicians, political advisers and party officials would emerge from a completely merit-based recruitment process.

Political appointments to the AAT grew in recent years, as the chart below shows. Many of these appointments were made in the lead-up to the 2019 and 2022 federal elections.

Political appointments to the AAT have increased in recent years

Politicisation of appointments to the AAT undermined the independence of this important expert body. Administrative merits review provides a critical check on government decisions to ensure they are right in all circumstances – recognising that routine government decisions can have a significant impact on people’s lives. Independence is vital to ensure public confidence in these decisions.

The new body must be squeaky clean

The government has decided to cut its losses and start again – creating a whole new tribunal.

In announcing this decision in December 2022, Attorney-General Mark Dreyfus said:

The AAT’s public standing has been irreversibly damaged as a result of the actions of the former government over the last nine years.

Given the government’s concerns about politicisation of the AAT, one would expect a best-practice appointments process for the new body. But the government’s bill to establish the ART leaves a lot of wriggle room on appointments.

A best-practice appointments process

A 2022 Grattan Institute report recommended a better appointments process for all public boards, tribunals and statutory appointments (as shown below).

A better process for public appointments

Key recommendations are:

  • all public board, tribunal and statutory appointments should be advertised, along with the selection criteria for each position
  • an independent panel should do the shortlisting
  • the minister should choose from the shortlist, or redefine and republish the selection criteria, but should not directly select any candidate not shortlisted
  • a new public appointments commissioner should oversee the process and report to parliament.

The ART bill implements some elements of this process. Notably, it requires all positions to be advertised. But other elements are incomplete or absent.

The bill allows for a minister to establish an assessment panel but does not require an independent panel.

The minister must be “satisfied” a candidate “was assessed as suitable” through a “merit-based” process. “Merit-based” is defined in the bill, but not who makes the assessment.

And the new appointments process lacks the oversight of a public appointments commissioner who could report to parliament and provide further information on the process when questions inevitably rise about an appointment.

What should happen now

The government will need to negotiate to get its bill through the Senate, and a Senate committee is considering the bill.

The Coalition, Greens and cross-benchers in the Senate should be calling for a best-practice appointments process to ensure the ART doesn’t suffer its predecessor’s fate.

And if Labor is serious about cleaning up jobs for mates, it should look much further than the AAT. My research shows political appointments are common across many powerful, prestigious and well-paid public boards.

A best-practice appointments process for all public board, tribunal and statutory appointments would reduce jobs for mates, improve our institutions and ultimately enhance Australia’s political culture.

The Conversation

Kate Griffiths

Chief of Staff and Democracy Deputy Program Director
Kate Griffiths is Grattan Institute’s Chief of Staff and Deputy Program Director of the Democracy program. Kate completed her Masters in Science at the University of Oxford as a John Monash Scholar and holds an Honours degree in Science from the Australian National University.