Dr WOODRUFF – Last year, a TASCAT selection panel recommended 17 candidates for appointment. You rejected four of those candidates and appointed another six. You said you did that on the basis that these people had been advocates on political issues, and you claimed that you needed to preserve the tribunal’s independence from politics and prevent the perception that members were not independent or impartial. What happened is that you, as minister, overruled an independent assessment panel; rejected recommended candidates who have been critical of your Government’s policies; and appointed six candidates who weren’t recommended. If the public believes that you can veto anyone who has ever criticised your Government’s policies, how do you think that’s going to improve the perception of the tribunal’s independence from politics?
Ms ARCHER – Chair, I absolutely reject that allegation that I have made decisions based on someone’s criticism of the Government. I get criticised every day, and that is fair game. But, in the appointment of a judicial officer or, in this case, a quasi-judicial officer, what is important to me is preserving that institution’s independence. These appointments are my appointments to recommend to the Governor, for the Governor to make, and they then become the Governor’s appointments. Let’s go back to the process of judicial appointments as well. They will always be the subject of the Attorney-General and Minister for Justice of the day. In this instance – and let me be clear – we have a panel that is put together to undertake a process to then make recommendations to me on suitability or otherwise.
I reject the allegation also that I replaced four with six. I looked at everyone that was interviewed and I also have knowledge of past people who have been considered suitable for appointment. I didn’t appoint anyone who was unsuitable for appointment. I stress that I followed that process to a T, to the point of meeting with the president of TASCAT and discussing these things. Discussing section 43 of the Act. Discussing the Code of Conduct for members that become ordinary members of the tribunal, and the importance that they are not, their perception of the lack of independence or impartiality, and my advice to the Governor was very clear, and based on appointments that were suitable for appointment.
I know that members have constructed, who has been on and off the list, and quite frankly I think that practice has been quite appalling, because there have been certain assumptions made and that certain things shouldn’t have been discussed as well. I am also cognisant of the fact that two people spoke out publicly and they are entitled to do that. But I wouldn’t have identified any person that has applied for positions of this nature, because they should remain as part of the process, and it’s certainly not for me to make those comments publicly.
Dr WOODRUFF – Isn’t the problem that all this stuff is not made public, and the fact that we have somebody like Robin Banks, former Anti-Discrimination Commissioner, like Greg Barnes, SC, highly credentialed and esteemed people in the legal profession or in the Tasmanian community, put aside by you when they were recommended by the panel? It calls into question the independence of that panel, and the whole process. It is a de facto criticism of the panel itself and their capacity to make a decision. It is clearly the case that you have intervened. You made decisions about two people who just happened to be incredibly outspoken against this government’s policy.
Ms ARCHER – Chair, it again shows the member’s lack of understanding of a process. It is a decision for the Minister for Justice to make. It is not an intervention. It is a decision to make out of suitable or unsuitable candidates. I have said to you I have not made any appointment of unsuitable people. Only suitable people. The amount of people that have been appointed as ordinary members of TASCAT I discuss with the President how many he requires. We discuss the suitability or otherwise of what the panel has recommended. It’s not the panel’s decision to make. It’s my decision to make recommendations then to the governor based on information that’s been presented at interview and assessment of the materials by the panel, which is not a selection panel. I consider it to be an advisory panel.
Dr WOODRUFF – Correct. What you’ve done is you’ve slapped down some of the foremost people in this community for speaking out publicly about issues. What you have done, whether you agree or not, is you send a message for people to keep quiet. Keep quiet about politics or you will not be able to reach positions like this.
Ms ARCHER – I think you are going to run out of time. I am going to read selection criterion six for the committee:
“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 behavior.”
In other parts of the process, I’m bound to look at not only someone’s suitability, but we need to avoid the perception of there being a lack of independence and impartiality. If someone holds a position where they are spokesperson for something that is an organisation that comments on any sort of being publicly, how can you be an independent judicial officer if you like of a tribunal, when you still have that role?
Dr WOODRUFF – What’s the point of having an advisory panel if you don’t take any notice on these critical issues of independence of the judiciary?
Ms ARCHER – I do take notice, and I did take notice.
Dr WOODRUFF – You disregarded six of them.
Ms ARCHER – No.
