But even the Coalition, if it was smart, might realise at last the virtues of a commission with teeth, given that the commission could not possibly be established and operating during the term of this government. How delicious it would be to see the probable Shorten government immediately hobbled by what would be, in effect, a standing royal commission beyond its control. Particularly if it operated not just as a scourge of criminality but also of maladministration, incompetence and waste of public resources.
Labor’s conversion to the need for a commission is essentially opportunistic. Polling evidence shows the public wants one, and thinks it essential. Voters are increasingly cynical about the honesty and integrity of ministers and the bureaucracy. Their cynicism extends to both sides of politics, as might be expected by those who have seen Labor governments in action in the states and territories.
In power last time, Labor pretended it had an open mind but “was not convinced” that an anti-corruption agency was necessary. The Liberal Party has been much the same, with even less enthusiasm, if that were possible. Any number of interested parties – not least in police and the public service, including some of the ineffective agencies supposedly protecting us against corruption – insist there is no evidence of a big problem. Any problems occasionally coming to light are the work of bad apples, not of systemic weakness. That is, of course, much the same argument Scott Morrison made about the banks, commercial superannuation and financial planning.
Nearly 40 years ago, a shadow Labor attorney-general, Gareth Evans, used to joke that he would have a bill to reform the Freedom of Information Act ready on the first day of a Labor government. If there was any delay, he said, the reform probably wouldn’t happen, because the public service, then as now quite resistant to the very idea of open government, would get at his fellow ministers. He was right. The reforms he proposed were either watered down or dropped by the incoming Hawke government, once the great and good of the public service had persuaded cabinet that the changes could bounce back on them and embarrass ministers.
Evans was at least of a reforming disposition, even if, sometimes, he tripped over himself coming and going. It would be a brave observer who would expect much in the way of reform of the law, or of the processes of government, from the present shadow attorney-general, Mark Dreyfus. His actual record, as opposed to his publicity, as first law officer in the Gillard and last-Rudd governments shows he was timid on human rights issues. If privately slightly queasy about the modern security state’s overreach and boat people’s rights, he has not had great success in persuading either his leader or colleagues to be anything other than slightly more liberal than conservative governments. And, like his colleagues, including some who became great mates with senior cops while in government, much given to appreciating their regular “heads-up” on anything of political consequence, he has maintained a scrupulous lack of curiosity about the federal police’s incapacity to solve or prosecute politically embarrassing crimes. No one wants the cops as enemies – by itself, a real indication that an increasingly inbred body that has not had a serious external review since its formation 40 years ago is ripe for scrutiny.
If there is any resistance to the idea of an ICAC-style body over the next few months, one can expect the resistance will be organised from within the Attorney-General’s Department, arguing, first, that existing accountability and anti-corruption agencies have covered the field, so there is no need for further expensive duplication of effort, and that, in any event, everyone (from inside the system) who has studied the problem agrees that systemic corruption is rare at the federal level of government.
The AFP will enthusiastically agree, certainly as to any suggestion that such a body have jurisdiction over its own performance in detecting and dealing with any such corruption, were there any. It has never found anything much, other than from matters referred to it from elsewhere, such as, last year, the Tax Office.
The AFP will be deaf to any suggestion that the risk of corruption is much greater, and the prospects of dealing with it much reduced, now that the police fall under the umbrella of the Department of Home Affairs, which draws on a tradition of poor administration and resistance to external scrutiny or independence of thought. The AFP is apt to wrap up even its mundane activities behind national security and border security arguments. Or, failing that, the pretence that the largely unaccountable powers given to the police are saving the nation from child pornography.
This week saw the death of Ted Mack – perhaps, with Peter Andren, one of the most respected and effective independents the House of Representatives has seen in nearly 120 years. Mack served at all levels of the legislature in Australia: federal, state and local government. He did not just talk integrity, including a very parsimonious attitude to putting his hand in the taxpayer’s pocket. He acted and encapsulated it, right down to eschewing a big parliamentary pension.
It’s important to remember that his influence came from his capacity to persuade, and from his own reputation for honesty; he never exercised any sort of balance of power in Parliament, and, consequently, had nothing to horse trade for his vote, as did the independents of the Gillard government, Brian Harradine (in the Senate) with everyone, or Bob Katter and others in the present Parliament. (There are some who would raise eyebrows to heaven about the favours, whether for electorates, regions or hobby horses, that have been traded for votes over the past 11 years, but there is a good argument that this sort of bargaining is of the essence of political compromise, particularly for those not attached to a party. As was remarked of Harradine, who was generally consistent in his broader attitudes, his vote was for rent, not for sale, and mostly it was traded (generally for jobs) on issues on which he was agnostic. Or, less creditably, was traded in exchange for an administrative deal that aid, or other money, would not go to people who supported or counselled abortion rights.)
One scarcely hears of the Commonwealth Ombudsman’s activities or findings.
Mack did not promote himself as an alternative government, with a policy and a view on every issue under the sun. There were issues, such as the environment, on which he was passionate, where he argued his case, sometimes with success. He accepted that governments had a right to govern and generally did not stand in their way, provided they went about it openly and honestly, and followed the rules. He wanted transparency, accountability and the virtues supposed to be included in governance of honesty and integrity – such as open tendering, an equal opportunity to all comers, and decisions that were recorded and accessible. He was a foe of decisions by discretion, insider appointments, closed tenders, secrecy, and the power and influence of lobbyists, particularly undeclared ones, with a private door to the minister’s office.
Mack would have excoriated, far better than Labor has done, some recent government decisions, such as the decision to hand over half a billion dollars to a small Great Barrier Reef charity run by people from the big end of town, many engaged in activities, such as mining, that are causing the damage. He would have felt much the same about ad hoc $500 million decisions that massively favoured one Australian cultural institution at a time other institutions, including the ABC, have faced steady cuts. But as obvious as such targets might be, they have had to take their place alongside an increasing pattern of arbitrary and largely unaccountable decisions that have passed important government work away from the public service to private contractors, without evidence or expectation of superior performance or outcomes. And stewardship by favourites, rather than by people chosen for their experience, integrity and independence of mind. Heaven knows what he might say of the decision, by Home Affairs, that it is no longer interested in performance reviews.
An independent attitude on such matters does not come from ideology or convictions about individualism versus collectivism. In the right circumstances, these are proper decisions for ministers, or, in matters of contracts and appointments, usually public servants. Provided, that is, that the decisions follow open and accountable processes, where the evidence is reviewed, where the right factors are considered, and where decision-makers follow the law and procedures in a fair-minded way, and are not actuated by bias, interest or extraneous motive.
Even more so, alas, when we now have public watchdogs who do not bark. If the Australian Commission for Law Enforcement Integrity achieves anything behind the scenes with an enormous staff and public resources, it is not obvious from the public record, or any list of convictions. One scarcely hears of the Commonwealth Ombudsman’s activities or findings.
House of Representatives committees have not troubled recent governments; Senate committees, more obviously able to be accused of being partisan, are usually ignored. While important functions are performed by quasi-judicial bodies, many of them have their effectiveness, authority and legitimacy sapped because they have been blatantly stacked, at huge public expense, with friends and relations of people in government.
As the findings of the banks inquiry has shown, the public has also been badly let down by the bodies that were supposed to protect consumers, promote competition, and prevent fraud and dishonesty. While these agencies sometimes suffered from a lack of will, or from being gun shy, they also failed because they were deliberately starved of funds by government. Far from having, or funding, “tough cops on the block,” as Morrison was apt to say, cabinet was making it almost impossible for them to perform their policing functions. That’s when the Coalition was not seeking to weaken laws designed to prevent rip-offs and conflict of interest, at the behest of banks and those in the financial advice industry found to have ripped off clients. The economic triumvirate in the present government may disingenuously claim that recollection of this is “looking backwards”. But it may prove to be the thing for which they are remembered by history, showing typical deafness to public opinion and the public interest, as well as partisan governing for mates and cronies.
One can confidently expect that the public service review, supposedly mimicking the fundamental one by the Coombs royal commission of more than 40 years ago, will not ask why the modern public administration seems to lack the clout, or the character, to prevent some of the modern abuses. Appointed without public consultation, whether as to personnel or terms of reference, the inquiry was commissioned by Malcolm Turnbull, largely from his friends and acquaintances in the banking industry. It is not clear that either the Morrison government, or a future Shorten government, has any great interest, or investment, in what it may recommend.
It would be nice to think and expect that the next government will have much higher standards of public stewardship. We can take it that everyone will mean to be good. The crowds of people and interests clamouring for favours from Labor politicians tends to be different from those in Coalition governments.
But many of the senior members of the shadow ministry have had experience as ministers in previous Labro governments, and form for being prepared to take shortcuts with due process or sound principle. And they will take charge of a public administration with much the same personnel, much the same systemic weaknesses, and much the same passivity in the face of poor leadership as now. If experience is any guide – and, alas, it usually is – the new lot will very soon be smug and comfortable in power, arrogant and impervious to sham. And soon addicted to secrecy, hostile to accountability, and practised in the art of using police to intimidate public servants.
That’s why the public should wish success to the independents in getting up effective laws before the transition. Legislation cannot create good character. But we have learnt that the big check on those inclined to be slipshod, or bad, is the prospect of getting caught and publicly shamed. Barring the Auditor-General – who despite an assault of his functions by the security state is still defending the public interest – the evidence suggests that new ministers know they have little to fear from old checks and balances.
Jack Waterford is a former editor of The Canberra Times.