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Tuesday, 15 March 2005
Page: 78

Senator LUDWIG (5:42 PM) —As there do not appear to be any amendments I can move together, I move opposition amendment (1) on sheet 4550:

(1)    Schedule 1, page 6 (after line 24), after item 21, insert:

21A  Subsection 8(3)

Repeal the subsection, substitute:

         (3)    Subject to this Part, a member holds office for the period specified in the instrument of appointment, provided that:

              (a)    the instrument of appointment must specify a period of not less than 5 and not more than 7 years; and

              (b)    a member is eligible for re-appointment.

With this amendment we seek to provide for a minimum term. I think the Better decisions report also recommended a minimum term. If my memory is correct, it wanted something between three and seven years. The concept was to ensure that there was a fixed period. If we concentrate on the idea of a fixed period, we think that one of the deficiencies about the period that a member of the tribunal can be appointed for is that there is no ability to determine what the term will be. I think it was an issue that was ventilated in the committee, and the government has failed to adopt this.

We are concerned by what could happen. The government conceivably could make rolling or short-term appointments, leaving members in the unenviable position of constantly trying to determine whether they would be reappointed and depending on the vagaries of the government of the day. In our view, it is more desirable to have a term of at least five years so that there is some certainty to their employment. It is not unusual to ensure these sorts of things, and there is now that ability. I do not think the government can dispute—although they may try to—that, once we complete some of these amendments, there will be a broader power for the minister, in consultation with the president, to be able to remove people from their positions, take them off panels and otherwise appoint them. That opens up greater control by the president and the minister in terms of panels and better oversight. I suspect that is what the amendments proposed by the government go to—to ensure there is more flexibility in the way the president will be able to exercise control over the members and that decisions basically adhere to the original principle of being informal and fast.

Once you have that ability, you then say, ‘It is appropriate to ensure there is a minimum term.’ We suggest, and have sought to persuade this chamber, that that term should be five years, because it has those other safeguards built around it. It does allow the president to intervene if other things happen to cause them to reconsider a term. It then gives the member the ability to say, ‘Well, I am here. I have a term for five years. I can act fearlessly in the tasks ahead of me and I can continue to make decisions without constantly looking over my shoulder, as I would if I were given a six-month, three-month or one-year rolling appointment.’ I am not suggesting that the government would do that, but ministers and policy initiatives change.

I recall that in the Migration Agents Registration Authority’s changeover periods—I probably need the government’s help to recall this matter accurately—some appointments were left in considerable doubt. Harking back a couple of years, I remember that in one tribunal there were some short-term appointments that left some members in doubt and in limbo for a while. I cannot recall—and I will find out before we finish this debate—whether that was the Refugee Review Tribunal. Those sorts of circumstances, as I recall from estimates questioning, made members uncomfortable. They did not know precisely how their careers would pan out. It is a bit hard to plan for your future at a tribunal if you do not know the length of your tenure and you are at the government’s mercy, awaiting its decision as to whether you will be rolled over on appointment, terminated or employed on an almost casual arrangement.

I do not think this measure will detract from the AAT having sufficient flexibility. In fact, I think it will enhance it. It will ensure that members of the AAT have the ability to address their role of decision making without looking continually over their shoulder and worrying about the length of their appointment—whether it will expire in 12 months and whether the government will consider reappointing them. It will also allow external participants who come to the tribunal to have confidence that the person who makes the decision will remain for some time. If the case continues for some time or there is a lengthy appeal process, participants will be able to see that the tribunal does have continuity, and its members will be able to place some reliance on their ability to make decisions with confidence and without concern about how those decisions might impact on the executive government and jade their chances of being reappointed.

Labor’s amendment provides for a minimum term of appointment of five years. In so doing, we recognise that tenure for senior members, other than the president, has been largely replaced over a decade and a half by appointments of shorter periods of time. This is consistent with the way the majority of federal tribunals work. But, as I have said, a minimum term of appointment, as proposed in our amendment, provides some stability and certainty for tribunal members and it goes some way to resolving this issue.

The Senate committee report recommended the need for a term and settled for a minimum period of three years; Labor’s amendment takes it slightly further by proposing five. That is still within the gamut of the Better decisions report which, from recollection, indicated a term from three to seven years. That will provide a level of certainty that decisions are free from political influence or political bias and separate and far enough away from the administrative arm of government. It is not unusual in the business world to have terms or contracts of five years. It is not unusual in government, in other tribunals and agencies, to have contracts of five years. On that basis, we are pursuing that amendment and will expect the government at least to listen intently. I know they listened intently to the committee’s recommendation earlier regarding other amendments, and we are pleased that they have taken those on board. Given that there has been almost a clean sweep of the recommendations of the committee, we hope that they might pick this one up also.