A Senate inquiry chaired by outgoing Labor senator Kim Carr is expected to reiterate its call to “disassemble” the Administrative Appeals Tribunal, lobbing an explosive idea in the lap of attorney general, Mark Dreyfus.
Dreyfus has made no secret of his concern about the Coalition’s practice of appointing former staffers and politicians from its ranks to the powerful tribunal, which reviews the merits of government decisions in areas including welfare, immigration and the NDIS.
Carr’s Legal and Constitutional Affairs Committee released an interim report in March finding the tribunal “wanting”, but Dreyfus has never endorsed its central recommendation to scrap the body and start again.
The report called on the government to “re-establish a new, federal administrative review system, by no later than 1 July 2023”. The committee is expected to hand down its final report on Thursday, Carr’s last day as a senator.
“I trust you’ll find that it is absolutely consistent with the interim report,” Carr said.
“I hope the government will act on it,” he said, stressing he would not “pre-empt” consideration by Dreyfus.
On Tuesday, Dreyfus did an extended interview with Radio National’s Law Report, referring to the Administrative Appeals Tribunal (AAT) 13 times, with no mention of abolishing or replacing the body.
When asked if he intended to reverse particular appointments, Dreyfus replied he would “be fully reviewing the operations of the [AAT] to make sure that it is fit for purpose, to make sure that it is working at the optimum level”.
Dreyfus said the tribunal affects the rights of “hundreds of thousands of Australians every year”, who “deserve to know that the very best people have been selected to sit on those merit-based review processes”.
“At the moment, you cannot have that confidence in the Administrative Appeals Tribunal,” he said, citing the appointment of “90 former Liberal members, failed Liberal candidates, former Liberal staffers”.
Dreyfus said the Albanese government wants to “return to a transparent and merit-based appointment system” for courts and the AAT.
On Wednesday Dreyfus said partisan appointments had “contributed to huge backlogs as people wait months, and in some cases years, to have their cases heard”.
“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, not just the Liberal party and its mates.”
In 2018 a review by former high court chief justice, Ian Callinan, called for major changes to fix the tribunal’s backlog of cases, particularly in the migration division, which it partly attributed to members without legal training struggling to write decisions.
The Senate committee’s interim report said that “review after review” had found “the AAT needs to enact significant reforms to its functions and processes, and importantly to its member selection processes, to no avail”.
“Something is fundamentally broken in the way the AAT currently operates.”
In May Guardian Australia revealed allegations from a member of the AAT who said he was benched from hearing social security cases because he decided too many against the government.
Michael Manetta said he was benched in September in a bid to increase “consistency” between tribunal members’ decisions, a move he called “completely incompatible with the rule of law”. Manetta’s complaint is being independently investigated by former family court judge, Jennifer Boland.