Australia’s courts and senators are not of an accountability mind

Jul 15, 2020

What would happen if an Australian senate committee, dominated by Labor and the Greens and an independent, decided by majority to demand the tax return of a coalition minister, perhaps in pursuit of allegations of abuse of power for some personal gain?

Such a committee might not pretend to be a court trying an alleged crime. It might say it was investigating whether the existing public and parliamentary regulatory regime was strong enough to prevent abuses, and remember aloud the great work of Senators Peter Rae and George Georges 50 years ago in exposing abuses of the securities and exchange system of the day. They might also invoke the unfinished work of the Hayne Royal Commission into banking and rorts, facilitated by government, in the financial advising and for-profit superannuation industry.

On paper, there is nothing in the constitution, the law or parliamentary practice forbidding such a subpoena, even of a politician. No parliamentary privilege could be claimed. First up, the committee’s power to enforce its subpoena, if resisted, would be for the senate as a whole. As I remarked earlier, my prediction is that Labor would grandstand for a while, but then go away. But imagining it saw the point and formed part of a senate majority upholding the subpoena, the minister would have a choice of ignoring it — probably with the support of the House of Representatives on whatever ground the prime minister could make up. A determined senate could put a lot of pressure on. Perhaps the minister would go to the courts in search of an order that the subpoena, at least for the purpose sought, was beyond the senate’s power.

Good luck with that. But if courts upheld the power, when used for a proper purpose, but thought it depended upon the circumstances, one would soon land in a host of convenient “conventions” that would tend to suggest that a minister could be subpoenaed only over official functions.

As in the US, our courts and our parliament recognise the official, political and private personality of our executive branch figures. But they lazily tend to regard only official activities as being fit for public inspection or public accountability. No law or principle requires this, but for those in any form of public office, including the judiciary, it is a nice protection against any sort of embarrassment.

Thus, both parliament and the courts have generally regarded a minister’s dealings with her ministerial staff, ministerial colleagues, or party folk as being matters primarily involving their political duties — not their official duties. Official duties tend to be regarded as the making of formal decisions within portfolio responsibilities and promulgated for action to departments. It does not usually include the discussions, especially with staffers, lobbyists, or party urgers, about what the decision should be. On such principles ministers, including Attorneys-General, have resisted providing FOI access to their diaries, and flatly refused to allow their staff to appear before Senate committees.

A similar political shroud is allowed to hang over anything a minister does in her capacity as a mere member of parliament. There are some parliamentary practices, a few even covered by legislation, involving rules requiring disclosure of assets, external income, gifts from outsiders, and the receipt of funds or goods in kind for electioneering purposes, but the power of others to demand further and better particulars is very limited.

Moreover, as a recent report on government management of its rules about the registration and conduct of lobbyists demonstrates, those tasked with enforcement of the principles are very slapdash or do not even pretend to monitor adherence.  I remember an earlier time when an independently-minded head of prime minister’s declared that his department would never assume a responsibility it wouldn’t perform, and would continually if quietly, monitor minister’s adherence to the standards the government proclaimed. The new deaf, dumb and blind rules relegate code enforcement to Siberia, presume such regularity that no-one actually investigates evidence when there is a blatant breach, and accepts without reservation assurances from anyone accused that they did not breach the rules, did not realise that they did, had pure intentions, and could be trusted to act with honour at all times.

Australia has never developed a political habit by which those aspiring to high public office release tax returns and financial records to show their long history of public and private propriety, including their lack of involvement in tax dodges, corporate collapses and dubious associates. Political enemies can and do smear candidates, but usually with no help from the public record or inquiries focused at issues such as the need to regulate certain areas of business, such as financial advisers, or insider trading or other breach of the law.

Perhaps this reflects our gentility and naiveté. The idea that all of our senior politicians are beyond temptation or that any misbehaviour would be discovered and punished  is a nonsense, as are nearly all of the excuses being trotted out to have a thoroughly compromised and powerless integrity commission. One can take it as read that the primary reason for political opposition or lack of enthusiasm is fear of what an effective body might discover, even among those presently in government or administration.

That Americans generally take a more robust view, and are generally more suspicious of government is mostly a plus for them, and a negative for us. Forget America’s conspiracy theory nonsense,  Trump idiosyncrasies, evangelical fantasies, and those of Trump’s supporters seemingly begging to be culled by coronavirus. Their nuttiness is part of the rich fabric of American life and a reason for America’s slow but certain decline. But the fear of an over-reaching and unaccountable government is a longer, and more honourable tradition. Indeed, with the Bill of Rights, it is part of the constitutional cloth. It has made America, by and large, a better polity.

Remember too that this was a conservative court writing the rules, just as it was a court dominated by conservatives that blew the whistle on Richard Nixon. These were not, are not, the activist judges so often attacked by Trump.

But we would be doing well to get our judges, and our representatives, to display a fraction of the guts. Measures taken by recent Australian governments to make themselves less, not more, accountable to the law or the public are one of many reasons why Australia is slipping significantly down international lists on corruption and transparency.

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