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Tuesday, September 27, 2022

AAT member says he was benched after too many decisions against government | Welfare

A member of the Administrative Appeals Tribunal has said he was benched from hearing social security cases because he decided too many against the government.

Michael Manetta says the AAT deputy president, Karen Synon, a former Liberal senator, expressed concern in June 2021 about the number of appeals against his decisions by the Department of Social Services before he was benched in September in a bid to increase “consistency” between tribunal members’ decisions.

After months of internal complaints Manetta has blown the whistle on a move he called “completely incompatible with the rule of law” that “undermines the impartiality and independence of the tribunal”.

Synon told Guardian Australia she categorically denies “any implication or inference that I have acted in any manner that is not fair, impartial and just in the exercise of my statutory duties at the AAT”.

The AAT is an independent tribunal that conducts merit reviews of government decisions, such as DSS decisions to refuse welfare payments or to recoup jobseeker and jobkeeper overpayments.

The AAT was the forum in which welfare recipients argued against robodebts before the government later conceded after court action that the process of raising debts based on income-averaging was unlawful.

Manetta told Guardian Australia “exactly the same” dynamic is at play in a variety of other social security decisions, in which he has rejected the department’s interpretation of the law on a number of points that have never been definitively decided on appeal.

Although not on the same “catastrophic” scale of the robodebt scandal, which resulted in the government paying out a $1.8bn settlement, Manetta warned there were many more “unresolved potential time bombs” litigated in the AAT’s social security division.

These include what compensation moneys are counted when calculating the preclusion period before an injured person can receive welfare and time limits for the department to recover allegedly overpaid jobseeker and jobkeeper payments.

Manetta, a part-time member first appointed in May 2016, said of the 300 decisions he has made, 24 have been appealed, a level he described as “hardly controversial”. Only nine appeals were successful.

Manetta was reappointed for a further five-year term in May 2021, after a positive performance review by a retired federal judge, he said.

But in June, Synon queried the number of appeals against Manetta’s decisions, he said.

“I said it should be a matter of indifference to members whether parties appeal,” he said.

“They have a right to do that but I stand by my decisions.”

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According to Manetta, he and Synon discussed the possibility of setting up an appeal panel to hear cases involving “errors of law of a recurrent nature” but the idea “came to nothing”.

In September, Manetta was removed from social security cases and given only child support cases, which are revenue-neutral for the government. Manetta objected in writing to Synon, the AAT president and later to the acting president.

In February 2022, Manetta spoke to Synon about being benched and she said “she was concerned at the high level of my decisions against the department (around 65%) as out of kilter with most of the other members”, he said. “She wanted consistency of decision-making across the division.”

But Manetta said that decision was “entirely incompatible with the rule of law”. “We’re independent adjudicative officers. You can’t take sides, you can’t even start with a presumption that the government’s interpretation of the law is probably right.”

Manetta also claimed that at this meeting Synon revealed the secretary of the DSS had met with the AAT president and Synon about one of his decisions. Manetta said he was “staggered” a party before the tribunal was given “special access” rather than making representations at the ministerial level.

Manetta refused to do only child support work, and was delisted, meaning he is not currently hearing cases despite holding an appointment to May 2026.

He complained again to the new AAT president, Justice Fiona Meagher, on 19 April, receiving an acknowledgement but “nothing since”.

“I believe that the removal of competent decision-makers because of the trend of their decisions is an affront to fundamental principles of fairness; it undermines the perception of impartiality and independence which is essential to the work of the tribunal; it offends the rule of law and erodes public confidence in the quality of administrative justice.”

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Manetta, a barrister and former South Australian state Liberal candidate, said his complaint “isn’t about politics”, but it is “essential” that only lawyers should be appointed to the AAT.

An AAT spokesperson said “the president is aware of matters raised by member Michael Manetta and these are currently being considered in consultation with deputy president Synon”.

Jo Dyer, the independent candidate for Boothby, said Manetta’s complaint “goes to the heart of how this government serves the people of Australia, in this case some of the most vulnerable people … those reliant on social security who believe they have been wronged by the government”.

“These people have every right to appeal government decisions … if they do so, they should be able to expect fairness and rely on the rule of law.

“After its heroic role in revealing the illegality at the heart of the government’s robodebt scandal … the AAT has now been compromised.”

Synon said it was “inappropriate for me to respond to questions about a member within my division” beyond her denial of any improper conduct.

The DSS denied meeting with senior tribunal members to discuss. Manetta’s decisions.

“This is incorrect,” a spokesperson said. “The secretary of the department has a regular meeting with senior members of the AAT as part of routine of stakeholder engagement to discuss strategic issues and changes in policy that may impact on the AAT.”

“There is no discussion about the actions of any member of the AAT or specific cases during these meetings. This would be improper.”

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