By Jenna Price, originally published in the Sydney Morning Herald 4th May 2021.
Seriously, this is the worst. In the last five months, 13 former Liberal MPs and political staffers have been appointed to federal government jobs. Don’t imagine it’s a burst of recent activity though. By 2019, the Liberal government had managed to appoint 65 decision-making members to the Administrative Appeals Tribunal, of whom 24 had no legal qualifications.
This is an egregious case of jobs for mates and those mates never undergo serious scrutiny. According to veteran reporter David Hardaker, the vast majority of those new to the AAT were appointed without a transparent selection process.
Unless you consider cronyism to be a selection process.
So, you say, what’s new and who cares? It’s just the AAT. Or it’s just the Fair Work Commission, where former Liberal Sophie Mirabella now has a $387,960 a year job as a commissioner. Mirabella won’t be alone. Former Liberal deputy mayor of Campbelltown Alana Matheson, with previous gigs at the Australian Chamber of Commerce and Industry and at KPMG, scored the same lucrative prize. There is no suggestion that Mirabella and Matheson were not appointed on merit or aren’t up to the task.
Here’s the problem. Cronyism and political favouritism is having a direct impact on Australians even at the level of appointments to the High Court. It’s called the loyalty effect. These people may be the best suited to their jobs. Or not. We never get to see the art of the trade, how the sausage gets made. But it seems their decisions are nevertheless influenced by the way they came to the bench.
New research from the Australian National University’s Zoe Robinson and others shows justices appointed to the High Court are more likely to find in favour of the federal government when the Prime Minister who appointed them is in office, looking at appointments made between 1995 and 2019. Imagine how the loyalty effect plays out in the lower courts with less scrutiny and reputational pressure on the judicial officers.
The phenomenon in the High Court is a little less fixed when the prime minister who made the appointment goes. But here’s the thing. It only holds true for appointments made by Liberal governments. In other words, the loyalty effect holds for justices appointed by the Howard and Turnbull governments, not by those appointed Rudd or Gillard.
Anthony Whealy is a former NSW Supreme Court judge (appointed by Labor in 2000), former assistant ICAC commissioner and currently chairs the Centre for Public Integrity. He says the findings match up with his anecdotal experience and says judges appointed by the Liberals are conservative to begin with, often with an inability to free themselves of their prejudices.
“You’ll find Labor appointees tend to be more woke,” says Whealy. Woke, he explains, is the term adopted by the right to deride anyone who shows care or compassion for others.
He says the stacking of various positions now means we are on the downward run to an election. Definitely no excuse, but there it is. In Australia, we are not alive to the concept of political appointments. We think we have an independent judiciary but it is not always the case.
“What is perceived to be the stacking of the judicial branches is one of the worst features of Australian life. In reality, especially in bodies such as the AAT, it is trying to shape policy by influencing courts to make decisions, which is really unpleasant.”
He calls for a complete reshaping of the process. In the short term, Whealy says governments should ditch the political spin about appointments being on merit and face up to the debate. “Defend yourself openly if you can.”
In the long term, we as a community need to get more involved, to call for accountability and then demand it. Australia could be a world leader in devising a truly independent body to make judicial appointments. UNSW law professor George Williams has argued for this for for decades.
He tells me when these appointments are made politicians keep an eye on selecting candidates they think will be sympathetic. These are political appointments in the hope that the appointee will make judgments to match the world view of the government at the time.
Robinson says the ideological effect and the loyalty effect are expected, considering the highly political mechanism for selecting judges in Australia where the executive has the exclusive right of appointment.
We get very exercised by the appointment of Amy Coney Barrett, who replaced the sainted Ruth Bader Ginsberg, may she rest in power, in the US Supreme Court. But in a less overtly political way we have the same problem as the United States.
In America, even teenagers know and understand the partisan nature of judicial appointments, what’s the go here? Turns out Australians have very little understanding of the High Court. Professor of economics at Monash University Russell Smyth has researched the High Court for years and says most people don’t know who our High Court judges are or even what the High Court does.
It doesn’t get publicity and that’s partly he says because Australia doesn’t have a Bill of Rights, whereas the US Supreme Court adjudicates personal rights, more likely to attract public attention. In the United States, there are also public confirmation hearings. All the dirty washing pegged out for all to see.
A lovely prospect. All the sheets, all the time. Here our dirty laundries have closed doors and we don’t know who’s behind them.