Sophie Scamps (Mackellar, Independent) Share this | Hansard source

I rise today in support of the Administrative Review Tribunal Bill 2023 and the associated bills. This bill will establish a new administrative review tribunal to replace the abolished Administrative Appeals Tribunal. I congratulate the Attorney-General and his team, and welcome the work they have done to both strengthen the integrity and improve the efficient functioning of the review tribunal. It is one of the most important institutions underpinning our democracy.

A welcome aspect of the new ART is that it re-establishes the Administrative Review Council. This council was abolished in 2015 under the Abbott government. The function of the Administrative Review Council will include monitoring the integrity of the Commonwealth administrative review system, inquiring into and reporting on systemic challenges in administrative law, and supporting education and training for Commonwealth officials in relation to administrative decision-making and the law system. It is an important body.

Like the old Administrative Appeals Tribunal, which was established in 1976, the ART will conduct merits reviews of administrative decisions made under the Commonwealth laws, including decisions made by Australian government ministers, departments and agencies. This means that when people feel the government has made a decision affecting them that is wrong or not fair they can apply to the tribunal for a review of that decision. Such a review takes all the facts into account and does so from the perspective of the original decision-maker.

However, I also rise today to call for crucial amendments to this bill that ensure the integrity and competence of the new ART cannot be easily compromised by allowing the door to remain open for future jobs-for-mates style appointments. I am concerned that the proposed appointments process for members to the new tribunal as proposed in this bill is not adequately independent or robust, as it remains at the discretion of the minister.

Section 209 of the bill reads:

The Minister may, from time to time, establish one or more panels … of persons to assess a candidate or candidates for appointment as a member.

Hardly a watertight, independent appointment process. Let's not forget it was the exploitation of the appointments process by previous ministers that led to the Administrative Appeals Tribunal being stacked with cronies and needing to be abolished.

As currently drafted, there is nothing in the Administrative Review Tribunal Bill 2023 which would prevent appointments to the ART from being misused for political purposes or cronyism in the future, in the same way we saw happen with the AAT. The good news, though, is that, in partnership with the Centre for Public Integrity, I have already done a lot of the work to address this incredibly significant issue. The Centre for Public Integrity has deep expertise in the integrity of Australia's political system.

In February 2023 I introduced a private member's bill, the Transparent and Quality Public Appointments Bill 2023—otherwise known as my ending-jobs-for-mates bill. This bill aims to transform the process of appointments to major Commonwealth positions by making it far more independent of political influence. Underlying my ending jobs for mates bill was the critical and urgent need to restore the public's trust in our democratic processes and institutions after a decade of cronyism and political appointments that eroded that trust.

In this term, the new government has made some very significant steps to boost the integrity of our political system. These include the establishment of the National Anti-Corruption Commission and the abolition of the Administrative Appeals Tribunal. As mentioned, the abolition of the Administrative Appeals Tribunal was necessary because the independence and competence of that institution had been too deeply compromised by political appointments in recent years. This was a highly significant decision as the AAT was a crucial pillar of our democracy, tasked with holding governments and departments to account by reviewing their decisions.

It is this ART Bill, which we are currently debating, that will establish the AAT's replacement institution. Unfortunately, this ART Bill, in its current form, does little to address the very flaw which resulted in the demise of the Administrative Appeals Tribunal. The bill lacks a mechanism to ensure the independent assessment of candidates for important ART roles or any transparency mechanism to give confidence in that assessment and selection process.

My ending jobs for mates bill would ensure that all major Commonwealth public appointments were made within such an independent and transparent framework. The bill would legislate a public appointments commissioner and departmental independent selection panels, which would be overseen by a parliamentary joint committee on appointments. The oversight committee would not have a government led majority, guaranteeing independence from the government of the day. Under my ending jobs for mates bill, a degree of ministerial discretion would be maintained, as this is an important element of our Westminster system of government. So the final decision regarding a successful candidate would remain with the relevant minister; however, the minister may only choose from a shortlist of candidates approved by the independent selection panel. Such a framework would ensure that key positions in our democratic institutions are filled through an independent, transparent and expertise based appointment process. Not utilising an independent assessment panel for appointments to the ART will see it beset by the same fatal flaw which resulted in the abolition of its predecessor. I refer to my ending jobs for mates private members bill today to demonstrate that introducing amendments that embed an independence requirement into the ART appointments process is straightforward if there is the political will to do so.

What does the government's ART bill propose for appointing members, and how is it inadequate? The bill, as currently drafted, says that the minister may establish assessment panels to assess candidates for appointment, but they are not required to do so. Additionally, there is no requirement for the minister to act on the advice of any panel if they choose to establish one, nor is there a requirement that the minister report to parliament if they choose a candidate that the assessment panel did not recommend. The use of selection panels in the current proposal for ART appointments is entirely discretionary and therefore cannot be relied upon to ensure independence in this selection process.

In summary, there are a number of steps lacking in the process for appointments to the ART for it to be independent and transparent. As set out in the draft of this bill: it lacks any specificity on the requirement to advertise positions; it lacks a clear definition of merit; it lacks a mandated requirement to involve assessment panels in the selection process; it lacks a requirement to appoint from a shortlist of candidates as proposed by an independent panel; and it lacks a requirement to report to parliament if the minister selects a candidate not approved by an independent assessment panel.

Since introducing my ending jobs for mates bill in February 2023, I have sought to negotiate amendments to other government bills, which would have established independent selection processes for major appointments under those bills. Examples include: the Infrastructure Australia Amendment (Independent Review) Bill 2023, the Parliamentary Workplace Support Service Bill 2023, the Jobs and Skills Australia Amendment Bill 2023 and the Safeguard Mechanism (Crediting) Amendment Bill 2022. Each time I have proposed these amendments and sought to negotiate them with government, the government has relied upon the existence of merit provisions in each piece of legislation as the basis for rejecting my amendments. Each time I have explained that there is a difference between merit and independence. Merit, of course, is critical. We must ensure that these important positions are filled only with the highest calibre of applicants with expertise in the relevant fields. But a candidate could fulfil that requirement, and have the right qualifications for the job, but also have been the best man at the minister's wedding or could take summer holidays with them. Ministers could, hypothetically, hand-pick well-qualified friends for a role and then be in a position to have significant influence over them in the execution of their duties. Merit and independence are not the same thing.

When the Attorney-General announced the abolition of the AAT in December 2022, he stated:

The AAT's public standing has been irreversibly damaged as a result of the actions of the former government over the last nine years.

Analysis by the Australia Institute found that up to 40 per cent of appointments to the AAT under the Morrison government were jobs-for-mates-style political appointments. However, this bill, in the way it is currently drafted, will not prevent this happening again. It is clear there is a problem that requires a solution. To fail to address this problem in the new Administrative Review Tribunal would be to make the very same mistake that caused the AAT to be abolished in the first place and has cost the taxpayer a huge sum. Right now, we have the opportunity to learn from this mistake and to rectify it. The question remains: why would the government take the extraordinary step of abolishing one of the Commonwealth's most crucial democratic institutions because its appointments process was faulty and flawed, only to replace it with a new institution which suffers the same flaw? It simply does not make sense.

The solution to genuinely end the jobs-for-mates culture that has pervaded federal politics in recent years is simple: my 'Ending jobs for mates' bill, or a similar framework in relevant legislation. The process it establishes would be effective, cheap and not difficult to implement. The National Anti-Corruption Commission is tasked with investigating alleged corruption after it has occurred. However, parliament should strive to strengthen the integrity infrastructure of our democracy wherever possible, in order to prevent the erosion of our democracy from occurring in the first place. To not legislate a mandated, independent appointments process in the new ART would be to leave a critical pillar of our democracy weakened and vulnerable to distortion and political influence.

To summarise, this bill to create a new administrative review tribunal needs to include the provision that, when new members are being appointed to the tribunal, an independent assessment panel must—not just 'may'—be used. This provision needs to be legislated to ensure it happens. Prior to the 2022 election, the Albanese government promised to rebuild trust in the integrity of our democracy and democratic institutions. Without a mandated and legislated independent selection process for the ART, in this instance the government would be failing to do this.

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