Additional comments by Kate Chaney MP

Additional comments by Kate Chaney MP

As a community independent elected in part on bringing greater transparency and integrity to political processes and with limited time to review the Bill, I have focused my review of the Administrative Review Tribunal Bill 2023 (ART Bill) on the process of the appointment of members to the Administrative Review Tribunal (ART). I am encouraged that there is an impending Senate inquiry of the proposed legislation that may address material matters beyond my focus.

The appointments process is key to the ongoing integrity of the Administrative Review Tribunal and the respect afforded to it.This is particularly important in light of the increased politicisation of appointments to the Administrative Appeals Tribunal (AAT) by previous governments, which is one of the primary reasons the AAT needed to be replaced[1].

Appointment of ART members to be genuinely transparent and merit-based

One of the critical features of the new ART is to establish and enshrine a transparent and merit-based appointment process for members, who are responsible for making ART decisions[2].

Enshrining a transparent and merit-based process will:

  1. ensure the ART is able to meet its objective to provide independent, high-quality review of administrative decisions by ensuring ART members have relevant expertise and experience; and
  2. safeguard and enhance public trust and confidence in the integrity of the ART.[3]

My concern is that to ensure an effective transparent and merit-based process, the appointment process must be protected from politicisation.Appointments to the ART should not be able to be used as a reward for political allies.

The appointment process and related integrity would be improved by:

  1. (require Panels) the Minister being required to use Assessment Panels (Panels) rather than the Minister having a discretion to do so;
  1. (composition of Panels) the Panels being required to consist of independent individuals with appropriate expertise, so Panels are not made up of a majority of Australian Government or political employees and contractors;
  2. (appoint shortlisted candidate or table reasons) the Minister being required to appoint only a candidate shortlisted by the relevant Panel unless there are exceptional circumstances, with such an exceptional circumstances appointment only taking effect after the Minister has tabled a statement of reasons for the appointment process in the relevant house of parliament;
  3. (cooling-off period for former parliamentarians) for integrity reasons and to prevent the politicisation of the ART, a former member of the Commonwealth parliament should not be eligible to be appointed as a member until completion of a two year cooling-off period from the end of their term;
  4. (publication of details of members) requiring publication of details of the qualifications and prior work experience of all members of the ART; and
  5. (post-appointment obligations) requiring all appointees to the ART to resign political party memberships, and to resign from the ART before standing for political party pre-selection.

The Attorney-General's Department (AGD) favours details of appointment processes being addressed in regulations (a ‘regulation model’), rather than including safeguards in the ART Bill.Concerns have been raised that clause 209 of the ART Bill neither requires the Minister to establish a Panel, nor requires the Minister to appoint the candidates the Panel recommends.The AGD's response is that the process is merit-based and further requirements in relation to the selection of members through selection panels will be set out in regulations.[4]Further, the AGD's belief is the 'regulation model' would allow flexibility in the future[5], given that a high number of appointments will need to be made.

The regulation model relies on the perceived safety net of 'merit-based' appointments and future flexible regulations.Given past issues with politicisation of appointments, I am not satisfied that these issues can be appropriately addressed in regulations. The Bill should enshrine key safeguards to avoid the politicisation of appointments in the future.Future governments could reduce the appointment process safeguards by changing the legislation, but this would be subject to greater scrutiny of the parliament if it requires a change of legislation rather than only a change in regulation.

There are two fundamental safeguards that, as a minimum, should be included in the legislation - the requirement that the Minister establishes a Panel and the requirement that the Minister can only appoint a candidate shortlisted by the Panel.The politicisation of appointments is not a matter to be dealt with by a gentle regulatory model.

I provide further detail on some of these recommended changes to the ART Bill below.

Require Panels

It is fundamental to the appointments process that the use of Panels be required in the ART Bill.

As the Law Council of Australia suggests, section 209 of the ART Bill should be redrafted as follows:

"The Minister must establish one or more panels (assessment panels) of persons to assess a candidate or candidates for appointment as a member"[6] (emphasis added).

Each of the Centre for Public Integrity, The Australia Institute and Accountability Round Table support the mandating of Panels.[7]

Appoint short-listed candidate or table reasons

I support the ART Bill being amended to require the Minister to appoint only a candidate shortlisted or recommended by the relevant Panel except in exceptional circumstances.

An appointment made in exceptional circumstances should only take effect after the Minister has tabled a statement of reasons for the appointment process in the relevant house of parliament.

Proposals in similar terms have the support of each of The Law Council of Australia, The Centre for Public Integrity, The Australia Institute and Accountability Round Table.[8]

Require a cooling-off period before former Parliamentarians can be appointed

For integrity reasons and to stop the 'revolving door' between politics and government appointments, a former member of the Commonwealth parliament should not be eligible to be appointed as a member of the ART until completion of a two year cooling-off period from the end of their term.

Statutory Review clause

The ART Bill is the primary bill, to establish the new ART and the Administrative Review Council (ARC).It is comprehensive and wide-ranging.The Attorney-General has called the ART Bill and the Consequential and Transitional Bill the most important reform of the federal system of administrative review for decades.[9]

Given the scope and significance of the ART Bill, I support including a statutory review clause requiring an independent review before a prescribed period.

The Law Council of Australia recommends the ART Bill should be amended to provide for an independent review after 3 to 5 years which would be consistent with an independent general review after a set period for most State and Territory civil and administrative tribunals.[10]

The majority report refers to the AGD stating that the ART Bill seeks to create 'a self-improving, self-correcting system'.[11]The AGD has further said it does not want a statutory review mechanism to detract from the role and discretion of the ARC.[12]However, the continuous monitoring by the ARC within the new system is part of the system itself.An independent review after a set period would review the whole of the system including the operation of the provisions in relation to the ARC.

Any such statutory review clause should:

  1. specify who is qualified to undertake the review;
  1. mandate the minimum issues to be considered;
  2. require that the review report be commenced within a specified time, and completed within a specified time; and
  3. require that the completed report be tabled within a specified time.

I support a form of review clause in terms of The Centre for Public Integrity submission being an independent review that commences no later than 3 years and one month after the ART Bill commences.[13]

My support for recommendation 1 (The Committee recommends the House of Representatives pass the Administrative Review Tribunal Bill 2023) is contingent upon the ART Bill being amended in terms of these Additional Comments including the appointment process and related integrity being strengthened by:

  1. requiring the Minister to use Panels;
  1. the Panels be required to consist of independent individuals with appropriate expertise;
  2. the Minister being required to appoint candidates shortlisted by the relevant Panel or table a statement of reasons;
  3. former members of the Commonwealth parliament not being eligible for appointment as a member until completion of a cooling-off period;
  4. publication of qualifications and work experience of members; and
  5. requiring all appointees to the ART to resign political party memberships.

I support recommendation 2 (The Committee recommends the House of Representatives pass the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 without amendment).

Ms Kate Chaney MP

Independent Member for Curtin

Footnotes

[1]The Attorney-General, the Hon Mark Dreyfus KC MP, House of Representatives Hansard, 7 December 2023, page 9198.

[2]The Attorney-General, the Hon Mark Dreyfus KC MP, House of Representatives Hansard, 7 December 2023, page 9200.

[3]Australian Government Attorney-General's Department, Submission 6, page 3.

[4]Majority report paragraph 2.134 and Ms Samios, Attorney-General's Department, Committee Hansard, 9February 2024, page 6.

[5]Majority report paragraph 2.135 and Ms Virtue, Attorney-General's Department, Committee Hansard, 9February 2024, page 9.

6Law Council of Australia, Submission 28, paragraph 165.

[7]The Centre for Public Integrity, Submission 17, The Australia Institute, Submission 19, page 1, Accountability Round Table, Submission 15, page 2.

[8]Law Council of Australia, Submission 28, page 44, The Centre for Public Integrity, Submission 17, page 6, The Australia Institute, Submission 19, page 1, Accountability Round Table, Submission 15, page 2

[9]The Attorney-General, the Hon Mark Dreyfus KC MP, House of Representatives Hansard, 7 December 2023, page 9198

[10]Law Council of Australia, Submission 28, page 15.

[11]Majority report paragraph 2.18.

[12]Ms Virtue, Attorney-General's Department, Committee Hansard, 9 February 2024, page 19.

[13]The Centre for Public Integrity, Submission 17, page 8.

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