Kate Chaney (Curtin, Independent) Share this | Hansard source

by leave—The short time allocated for this review both for stakeholders to provide comments for hearings and for the report consideration or preparation, means that I've constrained my additional comments to a few key areas—namely, the appointments process and a statutory review. I absolutely recognise the need for reform of the AAT. I've had numerous constituents report to me the long delays and lack of appropriate outcomes from the AAT in its previous form, but institutional reform must be done carefully.

One of the biggest problems with the existing AAT has been the politicisation of the appointments process. I understand that, in the last three years of the coalition government, 40 per cent of tribunal members had political backgrounds. This is unacceptable and undermines trust in our institutions. It's problematic for two reasons. Firstly, the appointments were not necessarily based on merit. This problem is addressed in the new legislation with a merit-based appointment process. Secondly, the appointments were political. They were made as favours to political allies, no doubt on the understanding that the philosophical underpinning of the decisions would be sympathetic to the government and that the tribunal members would avoid doing anything that would embarrass the government.

Given that this was one of the drivers of the reform, it seems particularly important that this structural issue is addressed in the legislation, and it's not. In the hearing, the Attorney-General's Department favoured a regulation model where the appointment process is addressed in regulations, rather than in the legislation. The regulation model relies on the perceived safety net of merit based appointments and future flexible regulations. Given the past issues, I'm not satisfied that these issues can be appropriately addressed in regulation. The bill should enshrine key safeguards to avoid the politicisation of appointments in the future. There are some improvements that could and should be made to the appointments process, which are consistent with the views of many of the integrity experts who made submissions to the inquiry.

There are six changes I'd like to see. Firstly, the minister should be required to use assessment panels, rather than the minister having a discretion to do so. Secondly, panels should be required to consist of independent individuals with appropriate expertise so they're not made up of a majority of Australian government employees, political employees or contractors. Thirdly, the minister should be required to only appoint a candidate shortlisted by the relevant panel, unless there are exceptional circumstances, in which case an explanation should be submitted to the House. Fourthly, 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 of the tribunal until completion of a two-year cooling-off period from the end of their term. We must stop the revolving door between politics and other institutional roles. Fifthly, the qualifications and prior work experience of all members of the ART should be published to build trust in the new tribunal. And, sixthly, all appointments to the ART should be required to resign their political party memberships and resign from the ART before standing for political party preselection.

As well as improvements to the appointments process, I'd like to see a statutory review clause requiring an independent review after three years. Given that the Attorney-General has called the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 the most important reform of the federal system of administrative review for decades, this seems reasonable and is backed by the Law Council of Australia and the Centre for Public Integrity. The majority report refers to the AGD stating that the ART Bill seeks to create a self-improving, self-correcting system, but 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.

No doubt there are more detailed issues that also deserve scrutiny that are beyond my capacity to address in the short time available. For this reason, I'm glad to see that there will be a Senate inquiry into the bill. In the meantime, I urge the government to address these fundamental issues in the House before the legislation is passed.

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