Appointments to AAT … Questions of constitutional invalidity … Pre-election Coalition gifts … Unsuitable appointments … Dreyfus responds … Former judges raise issues of legitimacy … Extended and overlapping terms … Theodora reports
Their letter this month to the federal attorney general Mark Dreyfus raises the issue that the last batch on appointments to the tribunal, made by then AG Madam Cash, are constitutionally unpalatable and therefore prospectively void.
Let’s hope their legal thinking holds water as it would be good to be rid of AAT deputy president and ex-Liberal senator Karen Synon, whose front fence was adorned in election material for the now-dumped member for Kooyong, Josh Frydenberg.
Here is a person with little understanding of the proprieties for the job and therefore is unsuitable for it.
There have been selective reports of the Mason-Katz letter in some of the Nine newsprints. Justinian is bringing the document to you, unexpurgated.
By reappointing members for lengthy extended terms just before an election, Madam Cash effectively pre-empted an incoming government’s selection choice.
There are 26 AAT appointments who were promoted or had their term extended – made by an instrument of appointment signed by governor general Hurley on March 31, 2022, a fortnight before parliament was dissolved for the May 21 election.
The appointments have not been gazetted and other information is incomplete, which raises doubts about their validity and leaving decisions open to challenge.
It appears that several serving members of the AAT whose terms would have expired this year have now been locked-in by Cash with longer appointments and in some cases promotions.
Mason & Katz identify this as falling foul of a constitutional principle – an element of which requires notice of resignation to be provided before a new appointment can be secured.
Further, the Freedom of Information Act requires agencies to publish online details of appointments and the term of each appointment.
This has not happened in respect to Cash’s pre-election announcement.
The two former judges asked the president of the tribunal, Justice Fiona Meagher, to confirm that the recent appointments were in accordance with those announced by the then AG.
A snitty reply came back from the registrar:
“If, as you say, the matters you are interested in could possibly raise constitutional issues, it would be inappropriate for Her Honour, as a Chapter III judge, to engage.”
Apply instead to the AG’s department or the AAT’s public record.
The registrar is Michael Hawkins, who is well-connected in Coalition circles.
He had been appointed as a part-time AAT member in May 2016 and held a position, courtesy of the previous Arts minister Mitch Fifield, on the board of Screen Australia – being a former CEO of Multiplex Cinemas.
He’s also Queensland’s honorary consul for Sweden, and did time as a member of the Queensland State Library Foundation, and the governing board of Queensland Business Leaders Hall of Fame. He’s also a past president of the Brisbane Club.
Sources also say he’s a neighbour of Peter Dutton.
His appointment as registrar was announced by Cash on April 10, the day the election was called.
Fiona Meagher’s move to the Federal Court and as president of the tribunal also took place amid the spray of pre-election Coalition gifting. Serendipitously, she is the daughter to Tubby Callinan who, for the previous government did a review of the AAT.
According to Mason & Katz, the AAT has not provided the starting dates of the new appointments.
In cases where someone has been reappointed before their current term has expired various problems arise. The former judges ask:
“How is it possible to simply superimpose a second appointment on an existing one? … Which of Ms Synon’s appointments is the one currently operative? The original one commencing in 2020 and expiring in 2023 or the one made in 2022 and expiring in 2027 …
“There would at least be a question as to the lawfulness of her continuing to hold her stated office after 16 December 2023, in light of the constitutional principle …”
Further, the former judges say Synon never tended to the governor general her resignation from the earlier office she held at the tribunal and there’s no information whether Cash’s appointees took an oath of office as is required under the AAT Act
To announce the March 22 appointments as extensions of existing appointments that have months, if not years, to run “is misleading”.
In May, Justinian published a table of 79 shameless political appointments to the AAT made by former attorneys general Bookshelves Brandis and The Christian Porter.
AG Dreyfus said at a media conference on September 29:
“I can assure everyone that I’m looking hard at the lawfulness of those extended appointments …
I’ve drawn attention in the past, with increasing alarm, at the way in which the former government treated the Administrative Appeals Tribunal, a really important government institution, as if it were a Liberal Party job agency.”
The Coalition sought to neuter the tribunal so that it would not disturb the government’s decision making and administrative process, believing that the appointment of political allies was the best way to ensure that.
If that meant trashing the independence of the AAT, so be it.
Here is the Mason & Katz letter …