“No matter how diligent, gracious and committed Ms Yates has been this past five years, the timing and manner of her re-appointment is inappropriate for a couple of reasons. First is the issue of paying due regard to an announced public inquiry,” writes legal columnist HUGH SELBY.

ACT Human Rights Minister Tara Cheyne announced the re-appointment of Heidi Yates as the Victims of Crime Commissioner on Thursday (January 19)..

This is an appointment made under our Legislation Act and our Human Rights Act and it is for a five-year term. Her new term will start in two months.

No matter how diligent, gracious and committed Ms Yates has been this past five years the timing and manner of her re-appointment is inappropriate for a couple of reasons.

First is the issue of paying due regard to an announced public inquiry. The terms of reference for the Inquiry into the handling of Ms Higgins and her complaint of sexual assault are to be announced this month. Ms Yates’ public support for the complainant during the trial is one of the matters before that
inquiry.

By reference to media coverage of the trial, Ms Yates held a second, albeit unofficial, appointment as a Complainant’s Commissioner. The propriety of that role needs to be publicly examined as it is qualitatively different to a complainant being seen to be ‘comforted’ or ‘assisted’ by a close relative. While it is common for complainants in sexual assault cases to have a support person sitting in the remote room where most choose to give evidence, that support person is not seen or heard by media and the public.

True it is that the Victims of Crime Act expressly confers on the Commissioner the right to be present at court to advance the functions of her office (sections 11 and 13); however, active ‘courthouse’ advocacy for a specific complainant seems to be outside the listed functions, even on a generously wide interpretation.

The second issue is the transparency of the process followed before this week’s reappointment. Ms Yates, because of her appointment, is one of the Commissioners in our Human Rights Commission (Human Rights Act, section 12). Under section 18D of the Human Rights Commission Act, the Executive rather than the Minister has power to appoint Commissioners. Was the executive not aware of the pending inquiry?

There is the broader issue applying to ‘statutory appointments’ generally of whether there were widely published calls for expressions of interest in the position so as to attract the best possible candidate. To be clear, the Legislation Act does not require that such appointments be advertised; however, open government would naturally advertise such positions.

For example, just as we attract judicial officer applicants from interstate (and have a vetting process that the government may or may not accept) so there may be excellent candidates with fresh perspectives from interstate for senior roles in our Human Rights Commission.

As of July 2022 the position held by Ms Yates has a salary of $238,765 as determined by our Remuneration Tribunal (Determination No 4 of 2022). For that money we, the ratepayers, are entitled to know that the best person is appointed.

The failure to follow that open and accountable process lead to the abomination that was the Morrison Government’s many appointments of political staffers/advisers to the Commonwealth Administrative Appeals Tribunal. So destructive was that disregard for merit-based appointments that the Albanese government is abolishing that tribunal and setting up a new one.

Once upon a not so long ago, it was recognised that those appointed to statutory offices with broad powers to investigate and criticise other agencies of government should not be re-appointed when their term ended. Those who held positions such as Ombudsman, Integrity Commissioner, Chair of a Public Service Board, Head of an anti-corruption Agency or Crime Commission took the job on the understanding that it was for a fixed term with no renewal.

This practice recognises that the ‘heart and soul’ of an organisation reflects the senior management. Respectfully our Human Rights Commission should lead in this respect, constantly seeking new talent among its Commissioners.

All of which takes us back to our starting point: that the announcement of Ms Yates’ reappointment to apply from mid March was ill-conceived, premature, and contrary to some rather obvious principles of ‘good governance’.

Can our politicians unite to improve the processes of statutory appointments so that even the hint of ‘appointed on connection, not merit’ can be put aside?

Can our politicians ensure that statutory appointments in our town attract the very best talent for a fixed term?

Victims of Crime Commissioner gets another five years