Julian Leeser (Berowra, Liberal Party) Share this | Hansard source

There's a cancer in modern politics—a cancer corroding the core of our national life. The cancer relates to misunderstanding the purpose of politics in our national life. The foundation of our liberal democracy is the understanding that we will, at times, disagree—that we will bring different philosophical perspectives to debate and discussion of issues. The recognition that we will disagree is at the heart of our system of government.

Every day this House sits, we see children up in the glassed-in public galleries watch us through that soundproof glass. We teach our children about the architecture of our civic life: the parliament, the courts, the Crown, the free press, our democracy. But, sadly, we don't teach them the ethos that lies behind them. That ethos is that there will always be differences and that good people can disagree—that they can disagree on one thing and work together on another—and, though there are differences, those differences shouldn't disqualify anyone from making a contribution.

There are many things wrong with the government's approach towards the reconstitution of the AAT, but the foundational error is the belief that a good system should be overturned because of the party affiliation or involvement of some within it. The Attorney's fundamental argument for overturning a system in place for decades is that there have been Liberals involved on the AAT—not just people who'd served in this place or in the Senate, or who'd worked as advisers, but people who did nothing more than join a political party. If it sounds McCarthyist, it's because it is McCarthyist.

Can I let the government in on a secret? There are Liberal Party supporters and National Party supporters, and, I dare say it, a few Labor Party supporters, who are members of the ADF, who work in the Public Service, who are AFP personnel, who contribute to our national life. They aren't a fifth column; rather, they are Australians enjoying their right to participate without fear or favour. This is so different from the American path. That path believes that all who disagree with you should be excluded from public life. It's a bad path to walk along, because it corrodes the shared approach to our civic life.

Sadly, this bill, the Administrative Review Tribunal Bill 2023, isn't about justice or about making our system better. It's about purging and then stacking—stacking from the start. This bill is not about removing politics from the AAT; it's about the full-scale left-wing politicisation of it.

This is a purge that will inevitably result in unintended second- and third-order consequences. We saw this from the very moment that the Attorney announced the abolition and replacement of the AAT. On 16 December 2022, the Attorney-General issued a media release entitled 'Albanese Government to abolish Administrative Appeals Tribunal'. I'll read you the Attorney's central argument in the release:

By appointing as many as 85 former Liberal MPs, failed Liberal candidates, 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.

I think it's interesting that the department was so concerned about this media release that it does not appear on the department's website. The department would not put it up on its website. It appears on the Attorney-General's personal website. Could this be on the basis that the release lacks truthfulness, or the aspersions placed on people's character or potential legal doubts it created around the decisions and processes of the AAT? I pay tribute to the Attorney-General's Department for standing up to the Attorney on this. They also knew that, as it pertained to law, the AAT was working to the highest standards.

The AAT has been a uniquely Australian institution. It's an institution that has allowed Australians to seek reviews of decisions made by the federal government. Importantly, many Australians do so without costly legal representation. It allows them to challenge decisions of government that directly affect them.

In 2022-23, an average of 788 applications for review were lodged every week. This was down from 850 applications a week in 2021-22, a decrease of around seven per cent.

Many of the decisions are complex and deeply personal. There's nothing easy regarding decisions about migration, citizenship, child support, social security, the NDIS, taxation, veterans and workers compensation. The decisions that are made directly determine the course of people's lives. In 2022-23, 20,600 migration and refugee cases were finalised, as well as 11,100 social services and child support decisions and 5,600 NDIS decisions. Nobody should be under any illusion that these are difficult decisions. Yet benchmarking of user feedback indicates strong support for the responsiveness of the level of service given.

In the last year prior to the Attorney's announcement, which was 2021-22, the user satisfaction survey rate was 74 per cent, above the AAT's own target of 70 per cent. Keep in mind there were many cases where participants were dissatisfied with the final result, yet satisfaction rates of how they were dealt with by the tribunal were still high. It outperformed its target.

As well, the decisions, because they can be subject to appeal, must be robust. The AAT takes incredible pressure off our courts. The best test of the quality of the decisions is not the Attorney-General's rhetoric; it's the rate of successful appeals. The AAT sets itself a benchmark with fewer than five per cent of successful appeals on appellable decisions. In 2021-22 the result was 1.9 per cent. That's well under target. It's worth noting that after the Attorney-General's great leap forward was announced, satisfaction rates fell to 72 per cent in 2022-23, and the successful appeal rate rose to 2.1 per cent.

Also of concern is the decline in the rate of publication of key decisions since the Attorney's announcement. Publication is a means of providing confidence in decision-making. In 2021 the number of published decisions exceeded 5,400. By 2022-23 it had fallen to a smidgen over 5,000. It's also worth recording that at the end of 2021-22 the number of cases on hand was 56,100. The Attorney was quite damning about this backlog. Yet, even with the seven per cent fall in new cases, the backlog has now grown to 66,100—an increase of 18 per cent. This is a direct result of the Attorney playing games with a system that was working well.

I warned a year ago, when I was shadow Attorney, that the AAT could potentially go backwards. It has, and the staff know it too. In the 2023 APS Employee Census staff were asked the question: am I proud to work in my agency? The results for the AAT, by its own admission, were 12 points lower than for any other medium-sized federal government agency. Fifty-one per cent said yes when asked: does my agency really inspire me to do my best every day? Again, this was 10 points lower than for the medium-sized agencies. The decline in staff morale is directly linked to the Attorney's planned purge. It's hard for staff to feel proud when the Attorney disparages the people they work with, and the people that have been working well. By the relevant measures, the AAT has been performing well.

What I will concede is that, given the backlog, it needed more appointees. In this regard the government could simply have made additional appointments. Instead, this change was not about performance; it was about politics. That's why the government said there would be no changes to AAT staff—only to its members. The Attorney-General's media release announcing his purge claimed that as many as 85 people serving on the tribunal had associations with the coalition. It's worth unpacking that claim. It's a claim that's as dubious as the PM saying, 'My word is my bond,' or a Labor promise to cut your power bills and keep interest rates low. Yet this dubious claim was taken from Crikey and the left-wing Australia Institute.

The people who were on the Dreyfus/Crikey/Australia Institute hit list include people who've done nothing more than be a volunteer member of the Liberal or National parties. It is a hit list. It simply judges people on the link to a party rather than on the quality of work they've done. The danger of this approach is the idea that it seeds—that political involvement, support or engagement should be seen as a disqualifier for any form of service to this country. Instead we're seeing something much more sinister: a check on one government being removed that seeks to replace any person with a link to a former government. In other words, they want either a rubber stamp or a blank cheque, rather than a considered response to tens of thousands of issues raised at the tribunal.

It's worth recalling who the Attorney targeted in his hit list. He targeted people who meet the statutory qualifications for appointment to the Administrative Appeals Tribunal—namely, they're either enrolled as legal practitioners for at least five years or have special knowledge or skills relevant to their duties. It's worth recording who the Attorney thinks is unqualified. The Attorney's purge includes peoples with masters degrees from Ivy League and Oxford universities, people with doctorates in law, people with first-class honours degrees and at least two university medallists. The purge also includes senior decorated military officers—people who have put their lives on the line for this country. It includes senior public servants, academics, barristers, partners in law firms and police officers with decades of experience. It includes people who have served on tribunals at the state and territory level. It includes public servants who headed departments and agencies, including public servants who have been awarded the Public Service Medal. It also includes people with life experience that includes being a former deputy registrar of the state supreme court, a former sex discrimination commissioner, the Chair of the Accounting Standards Board and the editor of the legal service on practice and procedure for one of the state tribunals. As you can see, these are people who are highly qualified to serve on this tribunal.

I believe serving in this House or in the Senate, or in a state or territory parliament, or joining a political party should be seen as a commitment to Australia and to public service. It's not a black mark that should disqualify people from continuing their service either on a tribunal or in other places across government. By making political affiliation a black mark, we send a message about this place and the people in it. It makes parliamentary service something of a disparagement, rather than the deep responsibility that it is. Ultimately, it diminishes the political process, which is to the detriment of our whole country.

The Attorney likes to argue that he is pursuing an independent selection process, but let's look at section 209 of the bill:

(1) The Minister may, from time to time, establish one or more panels (assessment panels) of persons to assess a candidate or candidates for appointment as a member.

(2) The regulations may make provision for and in relation to assessment panels.

(3) Without limiting subsection (2), the regulations may make provision for and in relation to the following:

(a) the establishment of assessment panels;

(b) the composition of assessment panels;

(c) the operation and procedures of assessment panels;

(d) the methodology to be used by assessment panels in assessing candidates for appointment as a member;

(e) the provision of assistance by the Department to assessment panels, including secretariat services and clerical assistance.

In other words, everything to do with the assessment panels remains in the minister's hands. This is a process where the Attorney will establish the panels, their composition, their operations, their procedures and their methodologies. In other words, these so-called assessment panels are a bit like a scene in Charlie and the Chocolate Factory, with a committee of Oompa-Loompas all bearing the face of the Attorney. All the Oompa-Loompas will be aware of what happens if you don't keep in line: they will get a 'please explain' phone call from the Attorney.

We all recall the 'please explain' phone call made to the former tribunal president Justice Fiona Meagher. On 12 November 2022, Justice Meagher put out a statement detailing the progress the tribunal had been making since her appointment just eight months before. Then there was a mysterious call from the Attorney which the AFR called a 'please explain' call. Within weeks, Justice Meagher was gone from the AAT, silently moved to full-time duties at the Federal Court. All references to her were scrubbed from the AAT website. It's chilling. She was simply disappeared. This is not the sort of activity you expect to see in an Australian administrative law institution—not in a democracy such as ours. Again, we see the mistreatment of a respected figure, removed for not toeing the line. We don't know the exact words spoken or the exact tone of the call, but we do know the result of it. And what we do know is that the Attorney's actions were unbecoming.

The Administrative Appeals Tribunal has dealt with hundreds of thousands of cases. It has done so free of scandal or malfeasance. It has done so in the best traditions of justice and fairness under the Australian legal system. The Attorney has decided to play politics with a core aspect of the Australian administrative law system—something I think is world-beating; something we can be proud of, from the origins of the idea of the AAT back in the days of the Kerr committee. That was a committee headed by former Chief Justice of New South Wales and later Governor-General of Australia Sir John Kerr, a committee that also had on it people like Sir Anthony Mason and the late Bob Ellicott—a really terrific group of Australians who helped design the administrative law system, which is unique to Australia and has been investigated and copied in several other places.

The Attorney's decision to play politics with the Administrative Appeals Tribunal is deeply regrettable. History shows that, when you do that, it plays itself out in unintended second- and third-order consequences. That will ultimately be to the detriment of justice and, importantly, to Australians who have relied on this unique and important Australian institution.

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