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JURD7160

UNSW Law

Electronic Assignment Cover Sheet Student Declaration of Academic Integrity https://student.unsw.edu.au/plagiarism

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Z3461428

I declare that this assessment item is my own work, except where acknowledged, and has not been submitted for academic credit elsewhere, and acknowledge that the assessor of this item may, for the purpose of assessing this item:  Reproduce this assessment item and provide a copy to another member of the University; and/or,  Communicate a copy of this assessment item to a plagiarism checking service (which may then retain a copy of the assessment item on its database for the purpose of future plagiarism checking).

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JURD7160

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Joseph Murphy

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INTRODUCTION

z3461428 Joseph Murphy

Joseph Murphy

Administrative Law Chantal Bostock Tues/Fri 9-11 27/3/19 1900 Administrative Appeals Tribunal

JURD7160 While the Administrative Appeals Tribunal (AAT) has long imagined itself as an independent decision-making body,1 specialising in the distribution of “impartiality and fairness,” 2 the AAT has continued to operate at “arms-length” from the executive branch of government. Fleming identifies several factors that encumber tribunal independence.3 Among these factors is the terms of appointment of tribunal members.

This essay will start by providing a general overview of the AAT and merits review. It will then consider the importance of independence and its influence on AAT’s ability to make decisions. Following this it will examine the current practice for appointment members to the AAT, before finally considering areas that may require law reform an suggesting these accordingly.

BACKGROUND The Role of the AAT The primary role of the AAT is to perform independent merits review. Merits review, being the reexamination of a decision by a Government or executive body.4 It is often said that AAT reviews a decision based “on the merits of questions of fact and law.” 5 This phrase alludes to the words used by the Kerr Committee in the Commonwealth Administrative Review Committee Report6 to distinguish a decision based “on the merits” from a decision based on the grounds of illegality. 7

Section 43 of the Administrative Appeals Tribunal Act (1975)8 is a model for the conferral of power on AAT. The key powers expressed are to a) affirm a decision; b) vary a decision and c) set aside and either substitute or remit that decision for reconsideration. Moreover, each case is assessed anew, allowing the AAT to stand “in the shoes of the primary decision maker”.9

Independence of the AAT: why is it needed? Is it being done? While the independence of the judiciary is protected under the separation of powers doctrine present in the structure of the Australian Constitution,10 the same is not abundantly clear for tribunals, 1

Sir Gerard Brennan, ‘Foreword’ in Robin Creyke (ed), Administrative Tribunals: Taking Stock (Centre for International and Public Law, 1992). 2 Robin Creyke, Matthew Groves, John McMillan, Mark Smyth, Control of Government Action: Text, Cases & Commentary (LexisNexis ButterWorths, 2019) 179. 3 Gabriel Fleming, ‘Tribunals in Australia: How to Achieve Independence’ in Robin Creyke (ed), Tribunals in the Common Law World (Federation Press, 2008). 4 Administrative Appeals Tribunal, About the AAT (3 September 2018). 5 Murray Gleeson CJ, ‘Outcome, Process and the Rule of Law’ (Speech, Old Parliament House, 2 August 2006). 6 Commonwealth Administrative Review Committee, Parliament of Australia, Commonwealth Administrative Review Committee Report (1971) (‘Kerr Committee Report'). 7

Ibid. Administrative Appeals Tribunal Act 1975 (Cth) s 43. 9 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 [943]. 10 See generally Australian Constitution.

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JURD7160 including the AAT.11 The AAT belongs to the executive branch of Government. As such, an adherence to the pressures and agendas of the executive branch might be expected of the AAT, 12 even though all tribunals are expected to function impartially and fairly.13

It is fundamentally necessary for the AAT to be independent from executive influence in its thinking, procedure, and interpretation of the law.14 The foundational principle behind this imperative of independence is the importance of maintaining the public’s trust and confidence. 15 If the AAT and other tribunals were to lose public confidence the result would be that the institution would eventually lose support and have resources withdrawn.16

Pamela O’Connor dissects this inherent need for tribunal independence into three necessary components. Firstly, there’s “administrative independence”, which is the ability to control resources. A lack of administrative independence reduces a tribunal’s ability safeguard impartial and effective adjudication. Second is “institutional independence”, which concerns the structural and institutional independence of the tribunal to the executive. Of particular interest to institutional independence is mechanisms to avoid executive influence over tribunal decisions. Finally, “adjudicative independence” considers a tribunal’s ability to make decisions free from executive influence. 17

An independent tribunal is also of great benefit to society. If a tribunal is independent is promotes public confidence in it as a body. Additionally, this enables the political to concentrate on law making instead of the task of administration.18

Current mechanism for AAT Member Appointment With the need for independence at the cornerstone of good decision-making, it naturally follows that there should be mechanisms in place to ensure that the appointment of AAT members reflect this independence. While there are some mechanisms that protects AAT independence, some features of the appointment process suggest that the AAT’s mechanism for appointment has more of a focus on flexibility than independence. 11

Stephen Skehill, ‘The Impact of the AAT on Commonwealth Administration: A View from the Administration’ in John McMillan (ed), The AAT – Twenty Years Forward (Australian Institute of Administrative Law, 1998) 56. 12 Robin Creyke, Matthew Groves, John McMillan, Mark Smyth, Control of Government Action: Text, Cases & Commentary (LexisNexis ButterWorths, 2019). 13

Ibid. Sir Gerard Brennan, ‘AAT – 30th Anniversary Speech’ (Speech, Old Parliament House, 2 August 2006). 15 Stephen Skehill, Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio (Report, January 2012). 14

16

Sir Gerard Brennan, ‘Foreword’ in Robin Creyke (ed), Administrative Tribunals: Taking Stock (Centre for International and Public Law, 1992). 17 Pamela O’Connor, Tribunal Independence (Australasian Institute of Judicial Administration, 2013). 18 Sir Gerard Brennan, ‘Foreword’ in Robin Creyke (ed), Administrative Tribunals: Taking Stock (Centre for International and Public Law, 1992).

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JURD7160

The current system of appointment of the AAT members is covered by s 6 of the Administrative Appeals Tribunal Act (1975).19 In short, members are appointed by the Governor General.20 Where a judge is appointed to the tribunal they must be appointed to the position of president or deputy president.21 A person who is not a judge may be appointed as a deputy president, senior member or member.22 Finally, a person who is not a judge may be appointed as either a full-time or part-time member.23 These rules for the appointment of AAT members are subject to the qualifications of s 7 of the AAT Act.

AAT members do not enjoy security of tenure until retirement age but are given fixed term appointments of up to 7 years.24 Additionally, there is no disclosed minimum fixed term period. As such, the executive has a non-exhaustive power to make short term appointments to the AAT.

PROPOSED LAW REFORM SUGGESTIONS Tenured appointments Prior to 2005 the Governor-General could make tenured appointments to presidential members that were also judges. This did not impede on the Governor-General’s ability to give fixed term appointments. Subject to the Administrative Appeals Tribunal Amendment Act (2005),25 and the repeal of subsections 8(1) and 8(2), members could only be given fixed term appointments.26

In the second reading speech Attorney General, Phillip Ruddock provided reasons for the removal of all tenured appointments. 1) Tenured appointments decrease flexibility of the AAT with respect to its fluctuating case load; 2) with this removal of tenure, Ruddock reasoned that the AAT would be able to ensure that the available members would correspond with the needs of the AAT. 27 This argument aligns with the many arguments that distinguish tribunals from courts.28 Ruddock’s point is arguable as the needs of the AAT are susceptible to persistent change.29 It is therefore expected that members of the AAT are subject to the same persistent change.

19

Administrative Appeals Tribunal Act 1975 (Cth) s 6 (‘AAT Act’). AAT Act (n 8) s 6(1). 21 AAT Act (n 8) s 6(2). 22 AAT Act (n 8) s 6(3). 23 AAT Act (n 8) s 6(4). 24 AAT Act (n 8) s 8(3) 25 Administrative Appeals Tribunal Amendment Act (No 38) 2005 (Cth). 26 Administrative Appeals Tribunal Amendment Act (No 38) 2005 (Cth) s 21. 27 Commonwealth, Parliamentary Debates, House of Representations, 11 August 2004, (Philip Ruddock, Attorney-General). 28 Peter Cane, ‘Judicial Review in the Age of Tribunals’ (2009) 479 Public Law 494. 29 Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995).

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JURD7160 However, it is inevitable that the removal of tenured appointments entirely, will result in a substantial drop in public confidence in the AAT as an independent body. 30 It has been argued that security of tenure is the cornerstone of independence. 31 Accordingly, AAT members should enjoy the same security of tenure as that of the judiciary. There were also concerns that this amendment may also result in an increase in political appointments and appointments according to practices in public service.32

While it is important that the AAT maintains its ability to respond to its fluctuating caseload, it is clear that total removal on tenured appointments creates an increased risk of government influence. Without the public confidence in the AAT as an independent body, the institution altogether would lose its support as a functioning body. It is advised the senior members; deputy presidents and presidents should not be excluded from the possibility of obtaining tenured appointments.

Power to appoint AAT members This section will consider the need for reform in regard to the positions responsible for the appointment of members to the AAT. Legislation vests the discretion to appoint in the office of the Governor-General, on the advisement of the Federal Executive Council.

Governor-General While the decision to appoint is guided under s 7 of the AAT Act, the Governor-General is given wide discretionary powers as to how to carry out this appointment.33 In the words of the AAT Act “a person must not be appointed as a Deputy President/senior member or other member unless the person in the opinion of the Governor-General, has special knowledge or skills relevant to the duties” of their office.34 As such, the Governor-General has the power to ignore the relevant guidelines.

Attorney-General This wide-ranging power is restricted in its reliance on the recommendations by the Federal Executive Council which is principally led by the Attorney-General. Attorney-General’s department is understood to be a “neutral” department without a vested interest in the cases the come before the AAT.35 Furthermore, the Attorney-General may be required to consult the relevant ministers of the

30

Commonwealth, Parliamentary Debates, House of Representations, 11 August 2004, (Graham McDonald). Commonwealth, Parliamentary Debates, House of Representations, 11 August 2004, (The Law Society of NSW). 32 Commonwealth, Parliamentary Debates, House of Representations, 11 August 2004, (The Law Society of NSW). See also 33 AAT Act (n 8) ss 7(2)(c), ss 7(3)(b). 34 AAT Act (n 8) ss 7(2)(c), ss 7(3)(b). 35 Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995). 31

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JURD7160 affected departments before making recommendations.36 An example is the requirement to consult the treasurer regarding appointments to the taxation division of the AAT. 37

Assessment Panel Prior to appointments, the selection of tribunal members relies on the findings of the assessment panel on the suitability of potential tribunal members.38 The assessment panel comprises a senior member of the tribunal, a representative from the relevant government department, and a “third person”. 39 In practice there is a general approach of selecting someone independent from government as this third person.

The following recommendations are advised as potential areas of law reform with respect to the various powers to appoint outlined above. Firstly, the repeal of subsections 7(2)(c) and 7(3)(b). Despite these wide discretionary powers of the Governor-General being confined by the entrenched constitutional convention to adhere to the recommendations of the Federal Executive Council, the removal of these powers will instil public confidence in the AAT. There are no recommended areas of reform for the Attorney-General. Finally, in considering the assessment panel is it advised that ministers from the relevant department be precluded from a position on the panel. It is imagined that this will help retain credibility in the assessment process and ensure that the panel is not tilted in favour of the interests of the department.40

Minimum Fixed Terms Although the possibility of tenured appointments has been advised in this paper, it is also worth raising the possible reform of minimum fixed terms as a means of securing independence. At present, there is no express minimum term for appointment provide by statute.41 This is worth considering as means of limiting the amount of structural control over the AAT is held by the executive. While terms of appointment are typically between three to seven years, there have been appointments made as short as six months.42

36

Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995). See also; 37 Deirdre O’Connor, ‘Administrative Decision-Makers in Australia: The Search for Best Practice’ (Speech, Quebec, 17-20 June 2001). 38 Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995). 39 Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995). 40 Deirdre O’Connor, ‘Administrative Decision-Makers in Australia: The Search for Best Practice’ (Speech, Quebec, 17-20 June 2001). 41 AAT Act (n 8) s8. 42 Robin Creyke, Matthew Groves, John McMillan, Mark Smyth, Control of Government Action: Text, Cases & Commentary (LexisNexis ButterWorths, 2019).

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JURD7160 Additionally, an absence of an express minimum term reduces the security felt by a member in that position. A compelling argument is made by former president of the AAT Garry Downes. It was stated most members that are appointed for a short term are likely to seek renewal at the end of their term. Pursuant to their interest in obtaining reappointment they may uphold a government decision where discretion is involved.43 Indeed this argument appears on its face far-fetched, however, it succeeds in casting a light on potential areas where government influence may present itself to members with less secure positions.

It is advised that a minimum appointment of three years is conferred on to all members of the AAT. This is the view shared by the Administrative Review Council in their Better Decisions Report.44

CONCLUSION The fundamental tenets of merits review are consistent and reliant on the independence of the Administrative Appeals Tribunal. AAT independence is demonstrated the absolute control of resources, the mechanisms that regulate the executive’s discretion to make decisions relating to tribunal members, and the AAT’s ability to impartially make decisions free from external influence. As the AAT is a part of the executive branch, member appointments are largely at the hands of the members of the executive. This might make the AAT vulnerable to executive influence in decision making. The terms and processes of appointment of members to the AAT are conferred by the AAT Act.45 It is found in this paper that changes to the current mechanism for the appointment of AAT members may serve to secure the independence of the AAT. These changes are the possibility of tenured appointments for senior members, deputy presidents, and presidents; the repeal of the AAT Act provisions that unfetter the Governor-General’s ability to appoint Deputy Presidents, Senior Members and ordinary members, namely subsections 7(2)(c) and 7(3)(b); the requirement that the “third person” sitting on the assessment panel precludes the relevant minister in which department is seeking to select, and the express implementation of a minimum appointment to the AAT of three years.

43

Commonwealth, Parliamentary Debates, House of Representations, 11 August 2004, (Garry Downes). Administrative Review Council, ‘Better Decisions: Reviews of Commonwealth Merits Review Tribunals’ (Report no 39, Administrative Review Council, 1995). 45 AAT Act (n 8). 44

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