Merit go round

There’s a gap between Labor’s rhetoric on merit-based appointments and its score settling actions against members of the Administrative Appeals Tribunal. BY Amanda Stoker.

First published in the Australian Financial Review.

Shakespeare put it well in Hamlet: “The lady doth protest too much, methinks.”

And so it is with too many politicians who claim to stand for higher standards of integrity, and too readily cast aspersions on political competitors.

John Barilaro has been wholly cleared by the NSW Independent Commission Against Corruption. His will be another career and reputation destroyed by referral, not to be restored by the fact that the commissioner “did not identify any evidence of corrupt conduct”. The mud sticks. That’s precisely why it is thrown.

Labor enthusiastically tore down the reputations of the overwhelmingly professional and effective members of the Administrative Appeals Tribunal to construct a “jobs for mates” narrative. It allowed now Attorney-General Mark Dreyfus to claim to stand for merit and integrity on this issue. He has used it as an excuse to shut down and “re-establish” the AAT, giving himself the right to appoint all members. Apparently he was not content to appoint only those positions that become vacant during the government’s term.

One glance at the performance data of tribunal members exposes the irony of Mr Dreyfus’ campaign.

Barrister and part-time tribunal member Vanessa Plain was the highest-performing member of the migration division, responsible for merits review of migration and refugee cases. She was appointed by the Coalition for a four-year term expiring on November 22 last year. Despite deciding the highest number of cases of any member in the division, with one of the lowest overturn rates on appeal, she is one of only two members from her cohort that sought reappointment but was not granted it.

Her “crime” may have been accepting a brief to act for a Melbourne restaurateur that challenged the legality of Victoria’s lockdowns in the matter of Loielo v Giles [2020] VSC 722.

Perhaps unsurprisingly, the only other member in that cohort to be refused reappointment was also counsel in the matter, barrister Jason Harkess. He was the fourth-most productive member of the division.

Part-time AAT members are often members of the private Bar, and as everyone knows, acceptance of a brief should not be mistaken for alignment with the cause of a litigant. But upon accepting the brief, Ms Plain and Dr Harkess say they found themselves the subject of backgrounding in the media and attacked under the cover of privilege in Senate committees with suggestions their remuneration at the tribunal had not been honestly claimed.

Unsurprisingly, careful examination by the registrar of the AAT showed that the remuneration of Ms Plain and Dr Harkess was entirely proper.

That did not stop Senator Murray Watt using privilege to challenge the integrity of these barristers; members of a profession where such an action would see them stripped of the right to practice.

Ms Plain and Dr Harkess ran a similar case against lockdowns in NSW, and faced no such retribution.

If Labor cared at all about the oft-repeated “backlog” at the AAT – the existence of which is questionable because it reflects higher filing rates rather than lower output – it would not show its most productive members the door.

A culture of retribution for action against a Labor government is no better than the so-called “jobs for mates” culture against which Labor had much to say. Senator Katy Gallagher is quoted in this paper complaining that “the AAT was stacked with appointments with clear Liberal Party links”. Perhaps unsurprisingly, she didn’t say much about the host of former people with Labor links who also had roles on the AAT.

The oppressive nature of this approach should prompt great concern about the appointments process that will be adopted for the new National Anti-Corruption Commission. Candidates for commissioner are appointed by the Governor-General on the recommendation of the minister. While that candidate must be approved by a parliamentary committee, its composition has been legislated so that the government will always have the numbers to approve any candidate it likes. If you think that’s the kind of transparency that will deliver a consensus candidate, you’re dreaming. There is even less rigour for the appointment of CEO.

It seems the pseudo-independent teals have fallen into the same error. Teal Member for Mackellar Sophie Scamps has now presented a private member’s bill to establish a commissioner for merit-based appointments, forcing ministers to appoint from a list of the top three candidates selected by an independent selection panel. She says: “Whenever you have humans, you have bias … you can’t remove completely any bias, but this plan minimises it as much as possible.”

Ms Scamps is right to say that wherever you have humans, you have some form of bias, as we all bring to the table our life’s experiences and our views of what a good outcome for our country looks like. With that in mind, isn’t it far better to have the people responsible for appointments in roles for which they can be held accountable?

The fatal flaw in this process is that it shifts power and responsibility from an elected, accountable minister to a wholly unaccountable bureaucrat or panel thereof. With the word “independent” to protect them, no matter how good or bad, politicised or impartial their decisions may be, Australian electors are denied yet another of their opportunities to have a say.

A substantial part of Australians’ disenchantment with the state of democracy comes from the sense that even when governments change, too little changes on the ground. A big part of the reason for this sentiment is the hiving off of too many of the executive functions of government to bodies that operate outside the process of political accountability.

It would be better to lean into the idea that the processes of democracy will always deliver some degree of political decision-making – but provide correspondingly robust measures for Australians to hold politicians accountable for these appointments and the political beliefs that underpin them.

Amanda Stoker is a former LNP senator for Queensland and a distinguished fellow of the Menzies Research Centre.