Question – TASCAT Appointment Process

Question asked by the Hon. Meg Webb MLC on 14 November 2022 and answered by the Attorney-General and Minister for Justice on 22 November 2022.

Noting material released under RTI relating to appointments to TASCAT, including a letter from the President of TASCAT to the Attorney General, dated 21 June 2022, and media comments by the Attorney General on 12 November 2022 in which she said that she did not follow the recommendation of an independent selection process to appoint four individuals to TasCAT, because they are “active public advocates”, can the government advise:

Question 1: Where in the selection criteria for appointment to TASCAT is it stated that public advocacy disqualifies an individual for appointment?

Answer 1: Ordinary members of the Tasmanian Civil and Administrative Tribunal (TASCAT) are appointed by the Governor under section 44 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the Act). Section 44(3) of the Act provides that members are to be appointed having regard to any selection criteria applying under section 43(a), any advice provided by the selection panel under section 43(b), and the range of knowledge, expertise and experience required within the membership of the Tribunal.

The selection criteria are set out in the Information Package, that was publicly available at the time the positions were advertised.

Selection criterion 6 in the Information Package was:

Preparedness to adhere to the TASCAT Member Code of Conduct and to maintain the Tribunal’s independence and reputation, as well as personal independence and integrity, and to promote the highest standard of behaviour.

The TASCAT Member Code of Conduct (Code of Conduct) is publicly available on the TASCAT website and a link to the Code of Conduct was contained in the Information Package.

The Code of Conduct states:

Fairness requires a Tribunal Member to make unbiased, impartial decisions and to give all parties the opportunity to put forward their positions.

More specifically, Members are to: apply the law equally, and act in an impartial manner in the performance of their decision making functions, so that their actions do not give rise to a legitimate apprehension of bias or amount to actual bias;

…

In addition, Members should:

• if engaged in another profession, occupation or business, take care to ensure that those activities do not conflict with or undermine the discharge of their responsibilities as Members and otherwise comply with s52(2) of the TASCAT Act;
• refrain from partisan political activity which is directly related to the work of the Tribunal or which may impinge upon the perception of impartiality of the Member or the Tribunal.

The issue of whether an applicant’s public advocacy gives rise to a perception that the applicant does not demonstrate the required degree of independence is directly relevant to criterion 6. Further, matters that impact on an applicant’s impartiality are directly relevant to the applicant’s ability to adhere to the Code of Conduct, which is incorporated in the selection criteria by virtue of criterion 6, particularly activity which may impinge upon the perception of impartiality of the Member or the Tribunal.

Question 2: What specific criteria to assess “active public advocacy” did the Attorney General apply to determine the exclusion of those four panel-recommended candidates and where is this assessment documented?

Answer 2: As already detailed in response to question 1, the criterion applied to assess the suitability of candidates in respect of their public advocacy was selection criterion 6.

In the letter from the President of TASCAT to the Attorney General, dated 21 June 2022, Mr Schyvens notes that the Attorney General has “recommended 6 applicants be appointed who were not recommended for appointment by the selection panel.”

Without identifying individuals, can the government confirm:

Question 3: Whether or not any of the six people recommended for appointment by the Attorney General were among candidates rejected by the selection panel during the recruitment process, specifically, were they among the six candidates deemed by the Selection Panel in the short-listing stage as not suitable for interview, or the eight candidates interviewed by the Panel who were subsequently deemed not suitable for appointment?

Answer 3: The six applicants who were recommended for appointment by the Attorney-General were applicants who were deemed suitable for interview by the panel. These were consulted on with the President as required under the Act.

Question 4: What specific criteria were used by the Attorney General in recommending the appointment of six candidates to TASCAT who were not recommended for appointment by the TASCAT selection process and where is this assessment documented?

Answer 4: The Attorney-General has publicly stated that her intention with regard to the appointment of applicants deemed unsuitable by the panel was to appoint applicants who were existing suitable members of TASCAT whose terms of appointment were expiring and/or who had been through previous relevant appointment processes and deemed suitable and had been interviewed in the most recent process, and/or to ensure continuity and prevent the loss of expertise. All six applicants were currently in the roles, or had been deemed suitable in previous rounds or for higher office.

Noting section 44(4) of the Tasmanian Civil and Administrative Tribunal Act 2020 (the Act) which states: “The Minister must consult with the President before a person is appointed” to TASCAT, and further noting in the letter to the Attorney General, dated 21 June 2022, the comment from the President of TASCAT that the Attorney General’s recommendations “represent a significant divergence from the views of the appointed selection panel” and the President’s request for a meeting, can the government advise:

Question 5: Did the Attorney General consult the President of TasCAT, as she is required to do under section 44(4) of the Act before making appointments to the Tribunal? If not, why not?

Answer 5: The Attorney-General did not make any appointments to the Tribunal in this process. As set out in response to question 1, ordinary members of TASCAT are appointed by the Governor under section 44(1) of the Act. Pursuant to section 44(2), a person may only be appointed as an ordinary member of TASCAT if the person is: 

(a) is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or

(b) has, in the Governor’s opinion, extensive knowledge, expertise or experience relating to a type of matter in relation to which functions or powers may be performed or exercised by the Tribunal and, where the Governor thinks it required, holds a particular qualification or an authority to engage in a profession that relates to that type of matter.

Section 44(3) of the Act provides that members are to be appointed having regard to:

(a) any selection criteria applying under section 43(a); and

(b) any advice provided under section 43(b); and

(c) the range of knowledge, expertise and experience required within the membership of the Tribunal.

Section 43 of the Act, to which 44(3)(a) and (b) refer, provides:

The Minister may from time to time appoint a panel of persons who, at the request of the Minister –

(a) are, after consultation with the President, to recommend the selection criteria for the senior members, supplementary senior members, ordinary members and supplementary ordinary members; and

(b) are to assess a candidate, or candidates, for appointment as a senior member or ordinary member of the Tribunal and, as appropriate, to provide advice to the Minister for the purposes of section 44(1).

Appointments under section 44 are made by the Governor-in-Council, on the advice of the Attorney-General. As the minister responsible for the administration of the Act, and responsible for advising the Governor in relation to the appointments, it was incumbent on the Attorney-General to be satisfied that the people recommended for appointment met the eligibility requirements under section 44(2) and were suitable for appointment having regard to the matters in section 44(3). The Attorney-General was entitled to reach a different view about the suitability of applicants than was reached by the selection panel after having regard to the panel’s advice.

Section 44(4) of the Act provides that the Minister must consult with the President of TASCAT before a person is appointed under section 44. The appointments to the Tribunal were made by the Governor-in-Council on 22 August 2022.

Pursuant to section 44(4) of the Act, the Attorney-General met with the President of TASCAT on 1 July, prior to the appointments being made by the Governor, to discuss the advice of the panel. Any views the Attorney-General expressed to the Department of Justice about who should be recommended for appointment prior to that meeting did not—and could not—amount to an appointment.

Question 6: If, contrary to what appears implied in the letter, the Attorney General did consult with the President of TasCAT prior to making the appointments in June 2022, when did such consultation take place?

Answer 6: The appointments to the Tribunal were made by the Governor on 22 August 2022. Pursuant to section 44(4) of the Act, the Attorney-General met with the President of TASCAT on 1 July 2022.

See more of Meg’s questions in Parliament.