Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

by leave—in relation to the Legal and Constitutional Affairs Legislation Committee report Annual reports (No. 1 of 2023), I move:

That the Senate take note of the report.

In doing so I would first like to commend the secretariat of that committee in relation to the preparation of that report and, of course, the usual collegiate way in which members of that committee conducted themselves under the chairmanship of Senator Nita Green.

The particular point I would like to make about this report is on the performance of the Attorney-General's Department. Colleagues in the chamber will quickly realise the reason why I'm making these observations. If one turns to paragraphs 2.6 to, approximately, 2.12 it can be seen that the Attorney-General's Department, under its rigourous reporting standards, actually—and I'll quote from paragraph 2.11 of the report:

Of its 29 performance targets, 73 per cent were achieved (21 targets) and ten per cent were partly achieved (three targets). AGD reported that 17 per cent of its targets were not achieved (five targets). This is a lower rate of achievement than reported during the previous reporting period. During the previous reporting period, 87 per cent of targets were achieved, 11 per cent were partly achieved, and one target was not achieved.25 AGD explained that the lower rate of achievement is due to the reduction in the number of targets under its performance measures and the rigorous system of assessment it applies to the analysis of each performance measure.

In the first place, I would like to make the observation that I think it's incredibly important that our government departments, whether or not it's the Attorney-General's Department—whichever department—adopt performance measures which are appropriate, fit for purpose, are set at a reasonably high level and, importantly, are assessed rigorously for performance. That's the first point that I want to make.

The second point is that there are a number of explanations given with respect to targets which were not satisfied. As I said, of its 29 performance targets, 73 per cent were achieved, at 21 targets; 10 per cent were partly achieved, at three targets; and 17 per cent of targets were not achieved. One of these targets is target 1.5.2:

Satisfaction of government lawyers with initiatives provided by the Australian Government Legal Service (AGLS) greater than 80 per cent.

That's the stated key performance indicator benchmark. It goes on:

Results from the department's stakeholder survey indicated that 66 per cent of respondents were 'somewhat' or 'very satisfied' with the AGLS and its initiatives, compared to 32 per cent of respondents in 2020-21.

That is quite a reasonable uplift, from 32 per cent to 66 per cent, and it is a pleasing result.

What confuses me is that, in that context, when I look at those results in the Attorney-General's own department and then I look at the results in the Administrative Appeals Tribunal annual report, which is referred to in this report, the Administrative Appeals Tribunal, the AAT, actually performs better on some of the relevant, analogous key performance indicators than the Attorney-General's Department. The AAT actually performs better, and let me give you an example. In terms of the AAT user experience rating, the result was 74 per cent against a benchmark of 70 per cent. So 74 per cent of users, who include practitioners and individuals whose case was coming before the AAT—a 74 per cent approval rating against the benchmark of 70 per cent. Then I compare it. I go back to the quote I gave in relation to perceptions of the performance of the Australian Government Legal Service, and the benchmark was greater than 80 per cent. So it's a more aggressive benchmark for that stakeholder user experience rating than the AAT had—80 per cent versus 70 per cent—but the result was only 66 per cent. They failed to meet that benchmark by an amount of 14 per cent. They're going in the right direction. I'm not critical of the Attorney-General's Department. What I'm critical of is a government which, notwithstanding the performance of the Administrative Appeals Tribunal based on key objective data, key performance indicators, which indicate that the AAT is actually performing—in the face of that key objective evidence that the AAT is actually performing—is hell-bent on a course of abolishing the AAT.

If the Attorney-General applied the same rigour to his own department, he'd abolish his department because the satisfaction with his department is less amongst government lawyers than the satisfaction of lawyers with the AAT and of users of the AAT. If he applied the same logic to his own department, he'd look at abolishing his department first before looking to abolish the AAT. In my view, it demonstrates that the motivations in relation to the abolition of the AAT are political. They're not based on objective evidence. It's political. In the course of estimates, when I asked the minister at the table what objective evidence the Attorney-General, Mark Dreyfus, had obtained with respect to the performance of the AAT which was contrary to the objective evidence contained in the annual report of the AAT, I was told the Attorney-General is in contact with his community; he gets feedback across the community. It was general waffle. Absolutely no objective evidence whatsoever was provided. So, Attorney—through you, Mr Acting Deputy President O'Sullivan—if you think the AAT should be abolished when it is actually meeting its performance metrics in relation to stakeholder perceptions of its performance, what about your own department? What do you say about your own department?

Let's go on in terms of the AAT performance in its annual report, which is referred to in this report of the Legal and Constitutional Affairs Legislation Committee. To me, this is a key benchmark: the proportion of appeals against Administrative Appeals Tribunal decisions allowed by the courts. The benchmark of the AAT—the KPI it set—was less than five per cent. So less than five per cent of appeals to the Federal Court should be successful. That's a reasonable benchmark—fewer than one in 20. What result did the AAT achieve? Fewer than one in 50 were successfully appealed against in the Federal Court. It's an outstanding result. If you look at the data over time, the results have actually been improving.

The Attorney-General is going down the course of abolishing the AAT. He's made extraordinarily prejudicial comments about many members of the AAT. One cannot accept the proposition that the Attorney should be in any way involved in assessing the performance of those members over which he has cast a general slur. He shouldn't be involved in assessing their performance at all, and he should absolutely recuse himself from the process of considering those members. One is left to ponder how it is that, on the one hand, we have an agency in the same portfolio, the Administrative Appeals Tribunal, which is exceeding, at 74 per cent, its target regarding user satisfaction, and, on the other hand, we have, within the same department, the Australian Government Legal Service, which is not meeting its target—in fact, it's 14 per cent under its target. So, Attorney, why are you picking on the AAT? It's become a monomaniacal obsession of the Attorney. It's like Captain Ahab with Moby-Dick the whale—it's become his monomaniacal obsession—and it is not based on any objective evidence.

I agree with the Attorney when he says the AAT is absolutely crucial as an institution to protect the rights of Australian citizens—I absolutely agree with the Attorney—but if you are going to embark on a great reform such as this, where you're actually abolishing this body at the cost of millions and millions of taxpayer dollars, base it on objective evidence. This report from the Legal and Constitutional Affairs Legislation Committee demonstrates that the Attorney-General's policy in this regard is not based on objective evidence and he should reconsider.

Question agreed to.