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Merits review ‘critical’ following announced abolition of AAT
In the wake of the Albanese government’s decision to abolish the Administrative Appeals Tribunal, an effective merits review system must remain a cornerstone of Australia’s administrative law system, say legal advocates.
Jerome Doraisamy
Last Friday (16 December), Attorney-General Mark Dreyfus announced at a press conference that the government is abolishing the Administrative Appeals Tribunal (AAT), which he said “once commanded universal respect”, citing “a disgraceful exhibition of cronyism” by the former government in appointments made over the last decade.
“By appointing 85 former Liberal MPs, 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,” he submitted.
“This was a disgraceful exhibition of cronyism by the Liberal Party.”
The “dysfunction” of the AAT, A-G Dreyfus continued, has “had a very real cost” to the tens of thousands of people who rely on the AAT chair to independently review government decisions that “have made major — and sometimes life-changing — impacts on their lives”.
Mr Dreyfus’ announcement followed a study, conducted earlier this year, from the Australia Institute, showing how political appointments to the AAT had “skyrocketed”, as well as how few political appointees to the AAT have spent their careers in law.
In a statement, Law Council of Australia president Tass Liveris said that an effective merits review system remains a cornerstone of Australia’s administrative law system and, in many ways, promotes the observance of the rule of law.
“Decisions of the Australian government play a significant role in the regulation of public life, and the administrative law system provides the critical ability to test the correctness and appropriateness of administrative decisions,” he submitted.
“Merits review also has a broader, longer-term objective of improving the quality and consistency of the decisions of primary decision makers and ensures that the openness and accountability of decisions made by the government are enhanced.”
“The establishment of the AAT was, at the time, an immense achievement and the result of high levels of bipartisan political support and commitment towards a comprehensive administrative law framework,” Mr Liveris reflected.
“More recently, there have been concerns that the current administrative law system is not functioning optimally, primarily due to a perceived lack of political commitment to the integrity of the system.”
To this end, the LCA has welcomed the government’s commitment to reassessing the member appointment process.
“The Law Council has long called for these appointments to be conducted through a merit-based, transparent process,” Mr Liveris said.
“This will assist with reducing delays and improving quality of decisions while fostering public confidence in the independence and impartiality of the new body.
“The continued backlog and delays within the AAT have concerned the Law Council, especially as they relate to migration and refugee matters. The Law Council therefore welcomes today’s announcement from the Attorney-General that an additional 75 members will be appointed to address the current backlog of cases and reduce wait times while the new body is being established.
“The Law Council continues to strongly support the continued role of merits review in the Australian administrative law framework.
“It will be working closely with the government to ensure that any new administrative body will have the effect of improving the quality of future agency decision making so as to benefit all Australians. Any new body must be fit for purpose and properly resourced to uphold its vital functions.”
The comments follow remarks from the LCA from July that the AAT must be independent and well funded.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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