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Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

Views of former High Court judges, on reasoned [sic] government decision making

Here are two rather politically telling comments of former Australian High Court judges from which we may each make our own assessment about how this lucky country is governed, and by whom.

  • Mr Kenneth Hayne – “Trust in all sorts of institutions, governmental and private, has been damaged or destroyed”; and
  • Mr Ian Callinan – “All further appointments …. to the Membership of the AAT should be … on the basis of merit …”.  

Mr Kenneth Hayne recently spoke about his thoughts following his conduct and report in the Banking Royal Commission. These comments from his “On Royal Commissions” are extracted:

“ … ideas of independence, neutrality, publicity and reasoned reports may be contrasted with what some, perhaps many, would see as the characteristics of modern political practice with its emphasis on party difference, and with decision-making processes that not only are opaque but also, too often, are seen as skewed, if not captured, by the interests of those large and powerful enough to lobby governments behind closed doors. …

Reasoned debates about issues of policy are now rare. (Three or four word slogans have taken their place.)

Political, and other commentary focuses on what divides us rather than what unites us. (Conflict sells stories; harmony does not.) And political rhetoric now resorts to the language of war, seeking to portray opposing views as presenting existential threats to society as we now know it.

Trust in all sorts of institutions, governmental and private, has been damaged or destroyed. Our future is often framed as some return to an imaginary glorious past when the issues that now beset us had not arisen”.

Mr Ian Callinan gave a report to the government back in December 2018, on the Administrative Appeals Tribunal, which most will know reviews the administrative decisions of government ranging from refugees, to migration, to tax, social security and bankruptcy. The report was only released in July 2019.  It made recommendations about the process of appointments to the AAT, including that they should be based on assessed merit.  In the meantime between having the report and before releasing it, the government made many new appointments, and re-appointments to the AAT, in April 2019.

Some chosen comments from Mr Callinan’s report follow about the AAT which had:

“53,282 applications on hand on 30 June 2018”

“All further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers … and on the basis of merit ….

“Engagement of external contractors should be reduced. … I have learnt that, even by the time of my discussion with the Registrar on the 13th of November 2018, the AAT had engaged a further external consultant at an unstated cost. This engagement is, to say the least, premature, and I think entirely unnecessary, being undertaken, as it is, before even the Parliament and the Attorney-General have considered and decided which, if any of the measures I suggest, might be adopted.

“Unnecessary time and money should not be spent on travel, meetings and discussions between Registry staff, for example, in furtherance of the “Registry Transformation Program” initiated at a time when this review was imminent or undertaken. There are five people in the Registry who are Senior Executive Staff in the Public Service. Their profession is administration. It is for them not external consultants to administer the AAT and its amalgamation”.

 

 

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