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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Transparent and Quality Public Appointments Bill 2023
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
the Member for Mackellar, Dr Sophie Scamps MP
Transparent and Quality Public Appointments Bill 2023
1. This Bill is for an Act to establish a framework for making transparent and quality public
appointments, and to establish Independent Selection Panels and the Office of the Public
Appointments Commissioner.
Purpose
2. The Bill is designed to reform the appointments process for all major Commonwealth public
appointments. The Bill seeks to ensure that the process for making major public appointments is
transparent, robust and independent. This will serve to restore public confidence in the quality and
impartiality of public appointments, and in turn, trust in the public institutions that underpin
Australian democracy.
3. While some are indubitably meritorious, there has been a disturbing increase in the politicisation
of major public appointments. This requires a strong legislative response as articulated in this Bill.
The process articulated in this Bill will circumvent the unchecked politicisation of public
appointments in the first place. Further, this process is applicable for all major federal public
appointments, bypassing the need for individualised mechanisms for each public institution.
Background to the problem
4. The processes relating to Commonwealth public appointments frequently lack transparency,
undermining public confidence in appointees' independence and merit.1 As at July 2022, about 7
per cent of all federal government public appointees had a political connection. Among the most
desirable appointments (well-paid, powerful, or prestigious positions), 21 per cent of appointees
had political connections, bolstering the public's perception that 'plum jobs go to political
mates.'2 These figures are comprised of appointees to public roles who have direct political
experience rather than other political or ideological links to the government that appointed them.
This narrow classification indicates the level of politicisation of major public appointments is, in
real terms far greater.
5. In the absence of a strong legislative framework, there has been a significant and growing
percentage of public appointees who have political connections to the government that appointed
them. The politicisation of appointments to the Australian Administrative Appeals Tribunal
(AAT) provides a salient example. During the Howard administration, political appointees
accounted for 6 per cent of all appointees, and in the Rudd/Gillard/Rudd administrations; 5 per
cent. This increased sharply during the Abbott/Turnbull/Morrison administrations, when political
appointees accounted for 32 per cent of all new appointments (40 per cent during the 2019-2022
Morrison Government).3 Alarmingly, a week before the Morrison government entered caretaker
mode, the former Attorney-General made six political appointments to the AAT that were
reportedly linked to the Liberal Party (including Scott Morrison's chief of staff, appointed as a
senior member).4 Unchecked politicisation of appointments to the AAT has led to a loss of faith
1
The Centre for Public Integrity (June 2022). Public Appointments Framework: Guaranteeing merit and
Independence.
2
Wood, D., Griffiths, K. and Stobart, A. (2022). New Politics: A better Process for Public Appointments.
Grattan Institute. P.11.
3
Wilkinson, D. and Morison, E. (2022). Cronyism in appointments to the AAT: An empirical analysis. Australia
Institute. P.1.
4
Karp, P. Pru Goward among six Liberal appointments by Coalition to Administrative Appeals Tribunal, The
Guardian, 4 April 2022.
2
in the institution, compromised its competency and undermined the public's access to justice.
This culminated in the Attorney-General's December 2022 announcement that the AAT will be
abolished.5
6. The Fair Work Commission provides another important example. The Grattan Institute has found
that about 10 percent of Fair Work Commission members have direct political affiliations.6
However, these numbers rise if the categorisation of 'political' is broadened to incorporate
'ideological' appointments; largely, Coalition governments' appointees have employer
backgrounds and Labor governments appoint former union officials. With the Fair Work
Commission's responsibility for determining minimum wages and employment conditions, it is of
particular concern when one party holds power for a significant period.
7. In addition to widely reported cases such as the AAT, publicly available information about
appointment processes in other public institutions suggests that they frequently lack sufficient
robustness, resulting in high percentages of political appointments to well paid, powerful and
prestigious roles:
a) Highly paid Government Business Enterprises (GBEs) board positions are often political
appointments. Political appointments account for 22 per cent of GBE board members (of
which 93 percent are linked to the Coalition). As at July 2022, half the board members of
Australia Post (a GBE) are former Coalition politicians, senior staffers or party officials.7
b) The most powerful appointments are often politicised. Regulators and independent
commissions hold significant power in the exercise of their function; to regulate industries,
enforce legislation or provide independent research and/or advice. Accordingly, they are
mandated to exercise independence. However, among Australia's most powerful public
boards, 20 percent of board members appointed by the Coalition worked for the Coalition. Of
note, as at July 2022, half the board members of the Productivity Commission and
Commonwealth Grants Commission had political connections to the government that
appointed them.8
c) An important aspect of 'jobs for mates' appointments are those which bestow prestige or
status upon the appointee. As at July 2022, the boards of the Australian War Memorial
(comprising 40 per cent political appointees), Australian Sports Commission (comprising 33
per cent political appointees), Old Parliament House (comprising 62.5 percent political
appointees) and Sydney Harbour Federation Trust (comprising 37.5 percent political
appointees) 9 illustrate the politicisation of such appointments.
The problem with the politicisation of public appointments
8. There are compelling reasons why the politicisation of public appointments damages Australian
democracy. First, such appointments undermine the efficient functioning of Australian
institutions, compromising government regulation and oversight. Appointments based on political
connection, rather than the skill set and quality of the appointee erodes the leadership of important
5
Butler, Josh. Administrative appeals tribunal axed with Labor declaring it 'irreversibly damaged' by
Coalition. The Guardian, 16 December 2022.
6
Grattan analysis. Fair Work Commission members typically have long appointment terms (referred to in Wood
et al (2022) p.20).
7
Wood et al (2022) pp.12-13.
8
Wood et al (2022) pp.14-16.
9
Wood et al (2022) pp. 16-17.
3
institutions. Australian and international studies10 indicate that political appointees often lack
requisite skills and experience to effectively perform their role. In the AAT, data shows that
members with political affiliations perform worse on average than those without. Similarly,
political appointees to the AAT are less likely to have a legal qualification,11 compromising their
ability to perform their oversight function. Accordingly, a political appointment is not an
'efficient, effective, economical, and ethical' use of public funds, as required by the Public
Governance, Performance, and Accountability Act 2013 (Cth).
9. Second, political appointments undermine public trust in Australian institutions, compromising
their actual or perceived independence. Impartiality is crucial, particularly in institutions
mandated to scrutinise government decision-making. In reference to the re-appointment of AAT
members just before elections, the Law Council of Australia argued that the practice may give rise
to "a reasonable apprehension that decisions are affected by political considerations and therefore
compromise the reputation of the tribunal."12
10. Third, political appointments promote a culture of political patronage, with appointees less likely
to provide "frank and fearless" advice. As highlighted by the Grattan Institute, appointees
"become more afraid to speak their minds, including valid criticism of government policy, lest
they cut off their chances of a future appointment or reappointment".13 Further, political
patronage heightens the risk of corruption.14 International studies indicate countries with lower
incidence of political appointments are less susceptible to corruption.15
Scope
11. The Bill captures almost all major Commonwealth public appointments via its application to any
group of persons or person who is the 'accountable authority' of a Commonwealth entity under
the Public Governance, Performance and Accountability Act 2013 (Cth). This structure enables
the Bill to capture the vast majority of public appointments; however, insofar as the definition of
'accountable authority' does not capture all relevant appointments, the Bill also allows for
appointments to be captured via their inclusion in a Schedule (cl. 6).
12. The Bill will not apply to each and every Commonwealth appointment. In recognition of the
thorough process that it establishes, as well as the cost that process will entail, it will apply only to
those appointments warranting it.
Appointments process
13. The Bill's operation is centred around the establishment of a Public Appointments Commissioner
(PAC), and Independent Selection Panels (ISPs).
10
Edwards, M. (2006). Appointments to Public Sector Boards in Australia: A comparative assessment. Issues
Paper Series No. 3. University of Canberra; Gallo, N. and Lewis, D. E. (2012). "The Consequences of
Presidential Patronage for Federal Agency Performance". Journal of Public Administration Research and
Theory 22.2, pp. 219-243.
11
Wilkinson, D. and Morison, E. (2022). P.2.
12
Wood et al (2022) P.23.
13
Wood et al (2022) P.3.
14
Rose-Ackerman, S. and Palifka, B. J. (2016). Corruption and Government Causes, Consequences, and
Reform. Cambridge University Press; and Heywood, P. and Meyer-Sahling, J.-H. (2013). "Danger zones of
corruption: How management of the ministerial bureaucracy affects corruption risks in Poland". Public
Administration and Development 33.3, pp. 191-204.
15
Dahlström, C., Lapuente, V. and Teorell, J. "The Merit of Meritocratization: Politics, Bureaucracy, and the
Institutional Deterrents of Corruption". Public Administration and Development 65.3, pp. 656-668.
4
Independent Selection Panels
14. Each Department will have an ISP. The ISP will always consist of:
a) the PAC (who will be Chair of the ISP); and
b) the Secretary of the relevant Department.
15. In addition, in each selection process conducted by an ISP, the Chair must appoint at least one
(and no more than four) additional members. In making these appointments the Chair must have
regard to the desirability of additional members having relevant expertise and experience, as well
as the need to achieve a diversity of representation on the ISP.
Public Appointments Commissioner
16. As well as chairing departmental ISPs, the PAC will be able to issue guidelines on the making of
public appointments (cl. 13) and report annually in respect of public appointment selection
processes (cl. 47).
Recruitment
17. Upon a Minister determining selection criteria relating to a vacancy (via disallowable legislative
instrument), the relevant ISP is required to:
a) advertise (for at least 10 consecutive business days, in at least three separate locations);
b) run an interview process; and
c) shortlist at least three candidates. If more than three candidates are listed, they must be
numerically ranked (cl. 10).
18. The criteria upon which the panel must base its selection of shortlisted candidates include:
a) the relevant selection criteria (to be determined by the Minister);
b) quality;
c) experience; and
d) integrity (cl. 10).
19. In assessing candidates, the ISP must also specifically consider opportunities to promote diversity
in the public sector (cl. 10).
20. Upon conclusion of the selection process, the ISP must provide the Minister with a report setting
out the shortlisted candidates and a comparative assessment of them (as well as a numerical
ranking of the candidates, if there are more than three individuals shortlisted) (cl. 10). The ISP
must also provide the Minister with a 'certification statement' for each shortlisted candidate (cl.
10): this statement, which is simply a certification by the ISP that a person is eligible for
appointment - and includes their rank, where ranking has taken place - is used to promote
transparency (see below).
21. The Minister is then able to appoint any candidate shortlisted by the ISP (for the avoidance of
doubt, the Minister will not be able to appoint a candidate who has not been shortlisted by the
ISP) (cl. 11).
Promotion of transparency
22. Within 7 days of the making of a public appointment that is not a 'significant integrity officer
appointment' (see below) the Minister must table in Parliament the certification statement
prepared by the ISP in respect of the individual appointed (cl. 12). In the case of a significant
integrity officer appointment, the parliamentary oversight committee established by the Bill (see
below) must report to Parliament on whether it supports a proposed appointment before that
5
appointment is made (NB: this is not a veto power: see below in respect of interaction with veto
provisions under other Acts) (cl. 52).
Significant integrity officer appointments
23. The Bill creates additional protections for a subset of appointments known as 'significant integrity
officer appointments' (cl. 7). These include a requirement that a former superior court judge sit on
the ISP when such an appointment is being made (cl. 18), and a requirement that the
parliamentary oversight committee report on whether it supports such an appointment before it is
made (cl. 52).
Interaction with other appointment provisions
24. The Bill makes clear that where any other Act requires that a parliamentary committee approve a
proposed appointment before it can be made (as, for example, the National Anti-Corruption
Commission Act 2022 (Cth) does), that requirement is unaffected.
Oversight
25. Oversight of the Bill's operation and compliance with its provisions will be promoted by the
ability of the PAC to report annually in respect of public appointments (cl. 47), as well as by the
establishment of a Parliamentary Joint Committee on Appointments (cl. 50).
26. In recognition of the importance of oversight committees not being dominated by the executive,
this committee cannot be composed of more than 50 per cent of government members, and the
Chair must not be a government member (cl. 51).
27. As well as reporting to the Parliament in respect of significant integrity officer appointments, the
committee's functions include reporting annually to the Parliament on public appointments (cl.
52, cl. 54).
Financial impact
28. Funding will be sought to support the implementation of the Bill, if passed.
29. The reallocation of resources within each relevant Department to implement the processes
outlined in this Bill (for example to convene an ISP) should be cost-neutral. Any administrative
costs associated with the function of an ISP should be minimal. For example, it is anticipated that
external members of the ISP could seek to be reimbursed for reasonable expenses.
30. The reallocation of resources within Parliament to implement the processes outlined in this Bill
(for example to establish the Parliamentary Joint Committee on Appointments) should be cost-
neutral.
31. Any costs associated with the implementation of the processes outlined in this Bill will be cost
effective when weighed against the cost of an under-performing institution, compromised by the
politicisation of key leadership positions. Further, in cases where unchecked politicisation of
appointments to an institution culminates in a decision to abolish that institution (for example the
AAT), the costs of dismantling and replacing the institution are exorbitant.
6
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Transparent and Quality Public Appointments Bill 2023
1. This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
2. This Bill is for an Act to establish a framework for making transparent and quality public
appointments, and to establish Independent Selection Panels and the Office of the Public
Appointments Commissioner.
3. The Bill is designed to reform the appointments process for all major Commonwealth public
appointments. The Bill seeks to ensure that the process for making major public appointments is
transparent, robust and independent. This will serve to restore public confidence in the quality and
impartiality of public appointments, and in turn, trust in the public institutions that underpin
Australian democracy.
4. While some are indubitably meritorious, there has been a disturbing increase in the politicisation
of major public appointments. This requires a strong legislative response as articulated in this Bill.
The process articulated in this Bill will circumvent the unchecked politicisation of public
appointments in the first place. Further, this process is applicable for all major federal public
appointments, bypassing the need for individualised mechanisms for each public institution.
5. The Bill captures almost all major Commonwealth public appointments via its application to any
group of persons or person who is the 'accountable authority' of a Commonwealth entity under
the Public Governance, Performance and Accountability Act 2013 (Cth). This structure enables
the Bill to capture the vast majority of public appointments; however, insofar as the definition of
'accountable authority' does not capture all relevant appointments, the Bill also allows for
appointments to be captured via their inclusion in a Schedule (cl. 6).
6. The Bill will not apply to each and every Commonwealth appointment. In recognition of the
thorough process that it establishes, as well as the cost that process will entail, it will apply only to
those appointments warranting it.
Appointments process
7. The Bill's operation is centred around the establishment of a Public Appointments Commissioner
(PAC), and Independent Selection Panels (ISPs).
Independent Selection Panels
8. Each Department will have an ISP. The ISP will always consist of:
a) the PAC (who will be Chair of the ISP); and
b) the Secretary of the relevant Department.
9. In addition, in each selection process conducted by an ISP, the Chair must appoint at least one
(and no more than four) additional members. In making these appointments the Chair must have
regard to the desirability of additional members having relevant expertise and experience, as well
as the need to achieve a diversity of representation on the ISP.
7
Public Appointments Commissioner
10. As well as chairing departmental ISPs, the PAC will be able to issue guidelines on the making of
public appointments (cl. 13) and report annually in respect of public appointment selection
processes (cl. 47).
Recruitment
11. Upon a Minister determining selection criteria relating to a vacancy (via disallowable legislative
instrument), the relevant ISP is required to:
a) advertise (for at least 10 consecutive business days, in at least three separate locations);
b) run an interview process; and
c) shortlist at least three candidates. If more than three candidates are listed, they must be
numerically ranked (cl. 10).
12. The criteria upon which the panel must base its selection of shortlisted candidates include:
a) the relevant selection criteria (to be determined by the Minister);
b) quality;
c) experience; and
d) integrity (cl. 10).
13. In assessing candidates, the ISP must also specifically consider opportunities to promote diversity
in the public sector (cl. 10).
14. Upon conclusion of the selection process, the ISP must provide the Minister with a report setting
out the shortlisted candidates and a comparative assessment of them (as well as a numerical
ranking of the candidates, if there are more than three individuals shortlisted) (cl. 10). The ISP
must also provide the Minister with a 'certification statement' for each shortlisted candidate (cl.
10): this statement, which is simply a certification by the ISP that a person is eligible for
appointment - and includes their rank, where ranking has taken place - is used to promote
transparency (see below).
15. The Minister is then able to appoint any candidate shortlisted by the ISP (for the avoidance of
doubt, the Minister will not be able to appoint a candidate who has not been shortlisted by the
ISP) (cl. 11).
Promotion of transparency
16. Within 7 days of the making of a public appointment that is not a 'significant integrity officer
appointment' (see below) the Minister must table in Parliament the certification statement
prepared by the ISP in respect of the individual appointed (cl. 12). In the case of a significant
integrity officer appointment, the parliamentary oversight committee established by the Bill (see
below) must report to Parliament on whether it supports a proposed appointment before that
appointment is made (NB: this is not a veto power: see below in respect of interaction with veto
provisions under other Acts) (cl. 52).
Significant integrity officer appointments
17. The Bill creates additional protections for a subset of appointments known as 'significant integrity
officer appointments' (cl. 7). These include a requirement that a former superior court judge sit on
the ISP when such an appointment is being made (cl. 18), and a requirement that the
parliamentary oversight committee report on whether it supports such an appointment before it is
made (cl. 52).
8
Interaction with other appointment provisions
18. The Bill makes clear that where any other Act requires that a parliamentary committee approve a
proposed appointment before it can be made (as, for example, the National Anti-Corruption
Commission Act 2022 (Cth) does), that requirement is unaffected.
Oversight
19. Oversight of the Bill's operation and compliance with its provisions will be promoted by the
ability of the PAC to report annually in respect of public appointments (cl. 47), as well as by the
establishment of a Parliamentary Joint Committee on Appointments (cl. 50).
20. In recognition of the importance of oversight committees not being dominated by the executive,
this committee cannot be composed of more than 50 per cent of government members, and the
Chair must not be a government member (cl. 51).
21. As well as reporting to the Parliament in respect of significant integrity officer appointments, the
committee's functions include reporting annually to the Parliament on public appointments (cl.
52, cl. 54).
Human rights implications
22. The proposed Bill engages the following right under the International Covenant on Civil and
Political Rights (ICCPR):
a) the right to take part in public affairs (Part III, Article 25).
23. The proposed Bill further engages the following right under the International Covenant on
Economic, Social and Cultural Rights (ICESCR):
a) the right to work (Part III, Article 6).
24. The proposed Bill further engages the right to equality and non-discrimination. Rights to equality
and non-discrimination are contained in:
a) the ICCPR (articles 2, 14, 24, 25 and 26)
b) the ICESCR (article 2.2)
c) the Convention on the Elimination of All Forms of Racial Discrimination (articles 1, 2, 4 and
5)
d) the Convention on the Elimination of All Forms of Discrimination Against Women (articles
2, 3, 4 and 15)
e) the Convention on the Rights of Persons with Disabilities (articles 3, 4, 5 and 12).
The right to take part in public affairs
25. The right to take part in public affairs is contained in Article 25 of the ICCPR. This right provides
that 'every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions, to take part in the conduct of public
affairs.' None of the distinctions mentioned in Article 2 of the IPCC are relevant to the provisions
of the Bill.
26. The Bill only seeks to limit the right to take part in public affairs, to the extent that an individual's
right to participate is regulated by the imposition of processes for making transparent and quality
public appointments, by which each person seeking such participation must abide. The processes
9
for making transparent and quality public appointments ensures equal opportunity to each person
seeking to take part in public affairs.
27. These limitations are necessary, reasonable and proportionate for the reasons outlined above. The
Bill does not otherwise impose any restrictions on individuals participating in public life.
28. The Bill is compatible with the right to take part in public affairs.
The right to work
29. The right to work is contained in Article 6 of the ICESCR which provides that Article 6 of the
ICESCR:
1. "The States Parties to the present Covenant recognize the right to work, which includes the
right of everyone to the opportunity to gain his living by work which he freely chooses or
accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of
this right shall include technical and vocational guidance and training programmes, policies
and techniques to achieve steady economic, social and cultural development and full and
productive employment under conditions safeguarding fundamental political and economic
freedoms to the individual."
30. The Bill only seeks to limit the right to work, to the extent that an individual's right to work is
regulated by the imposition of processes for making transparent and quality public appointments,
to which each person seeking such appointment must be subjected. The processes for making
transparent and quality public appointments ensure equal opportunity to each person seeking
appointment. The processes also serve to ensure the best candidate is appointed.
31. These limitations are necessary, reasonable and proportionate for the reasons outlined above. The
Bill does not otherwise impose any restrictions on an individual's right to work.
32. The Bill is compatible with the right to work.
The right to equality and non-discrimination
33. The right to equality and non-discrimination are principally contained in Article 2 of the ICCPR
which provides that:
1. "Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to
the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such laws
or other measures as may be necessary to give effect to the rights recognized in the present
Covenant."; and
34. Article 26 of the ICCPR which provides that:
"All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
10
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status."
35. Equality affirms that all individuals are born equal, having the same rights to be treated equally
and deserving of the same level of respect. It follows that laws, policies and processes should not
be discriminatory, and that public authorities ought not apply those laws, policies and processes in
a discriminatory or arbitrary manner. Non-discrimination ensures that no one is denied their rights
because of factors such as race, colour, sex, language, religion, political affiliation, age,
nationality, marital status, disability and sexual orientation.
36. The Bill does not limit the right to equality and non-discrimination; it enlivens it. The imposition
of robust and transparent processes for making major public appointments ensures equal
opportunity to each person seeking a major public appointment. These processes will protect
against the conscious or unconscious biases of those making the public appointments, which tend
to be geared against non-dominant groups. These processes will serve to mitigate conscious and
unconscious bias on the individual and organisational levels, facilitating the dismantling of
structural and historical biases which have constrained the participation of non-dominant groups
in leadership roles in Australian public institutions.
37. The Bill is compatible with, and further protects an individual's right to equality and non-
discrimination.
Conclusion
38. The Bill is compatible with human rights because to the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate.
11