In other words, the political mates gained cosy jobs in March in exactly the same way Morrison gave himself extra jobs over the past few years: a legal instrument signed by Hurley. In the AAT case, at least, there was a press release to confirm the appointments.
Even so, there was no transparency about the dates of appointment and there was a common problem. Morrison and Cash did not list the appointments in the Commonwealth Gazette.
Mason and Katz put their concerns in writing to Attorney-General Mark Dreyfus this week. Dreyfus has criticised political appointments to the AAT in the past and has talked about doing a review of the system. The new government has begun a more open process to decide the next round of appointments.
But that does not end the questions about those who now sit on the tribunal after an opaque process to install them to statutory positions.
To offer an example, Mason and Katz cited one person: Karen Synon, a former Liberal senator for Victoria. Defeated at the 1998 election, she was appointed to the Refugee Review Tribunal in 2001 and the Migration Review Tribunal in 2004 and then, after the return of the Coalition to power at the 2013 election, to the AAT in 2015. She was made a non-judicial deputy president of the tribunal in 2020. Her appointment was extended by Cash in the instruments signed on March 31 and announced by press release on April 4, so her time on the tribunal now runs until 2027. The full-time salary for a non-judicial deputy president is $496,560 a year.
The legal mystery is that the starting date and terms of her recent appointment are unknown. Synon is only one example of the problem with the process: this is no reflection on her character, her decisions as a tribunal member or her ability to carry out her role. She was just one of 26 members who had their terms extended just before the election, along with 19 new appointments on that day.
“To announce March 2022 appointments as extensions of existing appointments that have months if not years to run is misleading,” say Mason and Katz.
“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? If the latter, was the requisite oath or affirmation taken before 9 May 2022?”
If not, they suggest, the decisions of those 26 members might be open to challenge. These are statutory positions, after all, not office jobs where promotions can be agreed with a handshake or a letter.
The concerns about the AAT are not new. The tribunal is now populated with allies of the Liberals and Nationals after nine years of Coalition rule. It includes former Western Australian Liberal MP and state attorney-general Michael Mischin, former NSW Liberal MP and state minister Pru Goward and former federal Liberal MPs Jane Prentice and Andrew Nikolic.
The most recent years, when the post of Attorney-General was held by two WA Liberals, Cash and Christian Porter, saw the appointment of no less than four former Liberal state MPs from that state: Mischin, Peter Katsambanis, Michael Francis and Michael Sutherland.
This is no reflection on the capability or impartiality of any of these individuals. The Coalition government appointed some former Labor political figures to the AAT as well, among them John Rau from South Australia and Philip Dalidakis from Victoria. But the pattern is the problem.
When the Australia Institute looked into all the appointments to the AAT from the election of the Howard government in 1996 to the end of the Morrison government this year, it found the Coalition made 109 political appointments over its 21 years in power and Labor made 10 political appointments over its 6 years in power. The detailed analysis by Debra Wilkinson and Elizabeth Morison classified tribunal members as political appointments if they had ever worked for one side of politics or another in a paid or unpaid capacity.
More political mates have gained more jobs in recent years. The analysis found that 8 per cent of appointments were political in the three years after Labor gained power in 2007. This rose to 23 per cent in the first term of the Coalition from 2013 and then 35 per cent in the second term. By the time Morrison was in control it reached 40 per cent.
Mason and Katz have been trying to find out more about these appointments for months. Their effort highlights a basic weakness in our system: if prime ministers and ministers want to ignore or bend the time-tested ways of doing things, the safeguards that could stop them are too weak.
Political allies can be the best choice for key posts like the embassy in Washington DC or the high commission in London, but an independent legal tribunal should not be a retirement village for Liberal mates. Any step in that direction is a step toward the toxic politics of the United States.
It is now up to Dreyfus to come up with a better way.
The Opinion newsletter is a weekly wrap of views that will challenge, champion and inform your own. Sign up here.