Dreyfus faces backlash over new tribunal integrity test

The government of the day would be able to stack its political allies into a new administration tribunal in a repeat of the jobs-for-mates culture that dogged the former Coalition government, critics claim, as a new stoush brews over a key plank of Labor’s integrity agenda.

Attorney-General Mark Dreyfus’ proposal for the new Administrative Review Tribunal is at risk of not securing sufficient support in the parliament, as crossbenchers, legal experts and integrity advocates say it fails to future-proof the body against politicisation.

Dreyfus announced in 2022 that the government would abolish the Administrative Appeals Tribunal, the body charged with reviewing government decisions, asserting that it had been “irreversibly damaged” by the appointment of 85 former Liberal MPs, Liberal staffers and other party associates by the Coalition over the previous decade.

Legal experts and crossbenchers say Attorney-General Mark Dreyfus’ plans for a new administrative tribunal don’t do enough to protect against the political stacking of appointees.Credit: Alex Ellinghausen

He pledged the new tribunal would be governed by a “transparent and merit-based selection process”, and to date the government has made more than 100 appointments to the AAT in consultation with independent selection panels as an interim measure before the new tribunal is established. None of these appointments has been challenged as controversial.

However, the Centre for Public Integrity and the Law Council of Australia are among the groups to raise concerns that the bill to set up the new tribunal hands too much discretion to the minister to be satisfied that positions have been publicly advertised and a merits-based process has been followed, while not setting out a robust process in the legislation for achieving this.

“In its current form, [the bill] will not protect against precisely the kind of behaviour that led to its predecessor’s abolition,” the centre, whose board includes former judges, said in its submission to a lower house inquiry.

The bill gives the minister the power to establish panels to assess candidates but does not make it mandatory, prompting the Law Council to note its concerns that this drafting “will allow the minister to bypass the assessment panel process, particularly in circumstances where the candidate may not have the requisite skills and experience”.

It used its submission to say that while the bill was a clear improvement to Australia’s current administrative review regime, it should be redrafted to mandate the use of panels in the selection process, to require the panels “consist of independent individuals with appropriate expertise”, and for the minister to provide written reasons when selecting a candidate who was not shortlisted.

These concerns have been echoed by key crossbenchers and the Greens, who may be crucial to securing the passage of the laws in the Senate.

Independent ACT senator David Pocock said that it was imperative now that “we don’t recreate the problems of the past with how the new tribunal operates” and he would not support the proposed legislation in its current form.

“I won’t be supporting any legislation that doesn’t require a panel to appoint the members and the attorney-general to provide a public explanation if he does not accept their advice,” Pocock said.

Independent MP Sophie Scamps, who has proposed new laws to counter cronyism in political appointments, said abolishing the AAT was a big move and to retain the loophole in the new body was “crazy”.

“The bill in its current form retains the fatal flaw that underpinned the reason why the AAT was abolished in the first place,” she said.

Greens justice spokesman David Shoebridge said it was “utterly baffling that Labor’s model fails on integrity when this was meant to be the key reason for reform in the first place”.

Shadow attorney-general Michaelia Cash’s office declined to comment, saying they were still reviewing the legislation, but Coalition sources who spoke on the condition of anonymity because the bill has not gone to shadow cabinet expressed scepticism about Labor’s reform.

In a statement, Dreyfus said the bill’s requirements for a “competitive, publicly advertised, merit-based selection process” would be supported by “legally binding regulations which set out detailed procedural requirements”.

“I have made clear my willingness to engage with all members and senators in relation to all of the provisions in the bill,” Dreyfus said.

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