The former premier outlines what he sees as some of the important issues at stake in the contemporary debate about accountability and how to properly guarantee it in our national politics and government.
A real choice faces us, rather like that we faced in WA following the report of the WA Inc Royal Commission: Do we hesitate and go halfway in respect of the systemic changes they recommended for tackling corruption, or do we fully embrace the model they suggest, including the establishment of an independent and powerful anti-corruption agency?
My predecessor, Richard Court, chose the former course, creating an anti-corruption agency that fell short of what was required. Consequently, the accountability agenda fell into the hands of the state opposition, becoming one of the factors that led to its election in 2001. A new body with the structure, jurisdiction and powers required was subsequently established.1 The lesson to draw is that accountability is a political issue and measure to give it teeth in law and practice are received well by the general public.
However, before I start, I wish to make a left-field point about the issues of political lobbying and donations.
I’m confident that reforms in this area are possible. Indeed, there is a coherent reform agenda on the table for discussion at this very Accountability Round Table.2 Quite rightly, the public is concerned that there is an all-too-close relationship between some interests and some governments, perhaps all governments.
Tackling this trust-destroying perception isn’t just a matter for external regulation but also for internal conduct. Governments and parliaments now have the well-practised option of models of decision-making or policy advice that take us beyond the “usual suspects” and “vested interests” by creating “mini-publics” randomly selected and independently facilitated to inquire, deliberate and recommend. It’s all about “helping our democracy to work better”.3
A good starting point would be the wider use of such juries and assemblies in the consulting stage of parliamentary committee work. In saying this I declare my interest as the Chair of the New Democracy Foundation’s Research Committee.
With that irritant off my chest, let me move onto to the current debates in Canberra about where to take accountability reform.
For those of us interested in such reform, be it couched in either cultural or institutional forms, the times ahead in our national parliament look to be most interesting.
There’s Uluru and the proposal to create a Voice to Parliament. It has important accountability implications and may or may not finish up as a referendum question. That’s a story for another day, although for those interested, I have given it some attention in my Daniel Deniehy Lecture as part of a wider discussion about what it means to establish a truly democratic and reconciled republic.4
Our concern today is with politics and the public sector and what’s needed to ensure both are working to protect and promote the public interest.
In relation to these issues, there’s already plenty on the table courtesy of the work of those present here today. Whoever wins the election won’t be starting from scratch when it comes to law and regulation related to elections and political and democratic necessities like lobbying, fund-raising, and campaigning.
At the heart of all of this advocacy is the question of how to create an effective anti-corruption commission for the Commonwealth.5 Note, too, the ongoing work of the Australian Public Service (APS) Review where there’s hope that reforms impinging on the “the APS integrity framework” will be given serious attention.6
Achieving all of these objectives in the real world of government and without unintended consequences isn’t easy, but it is the challenge we must accept if we are to add public value and not just rhetoric.7
To start, let me go to the WA Inc. Royal Commission Part II Report (1992) and what it says are the “fundamental principles” of our system.
Firstly, the democratic principle that “it is for the people of the State to determine by whom they are to be represented and governed” and, second, the trust principle that “the institutions of government and the officials and agencies of government exist for the public, to serve the interests of the public”.
The first takes us to the need for free and fair elections and second to “the standards of conduct to be expected of our public officials”.8
It’s important to note that there is an implicit tension between these two principles.
The first gives us an account of how best to find our legislators and governments. Putting it simply, we have elections and add up the numbers to see who has the most votes. From this emerges concepts like “the will of the people” or “a mandate to govern”.
The second gives us an account of how we expect our politicians to behave, whatever their politics left, right or centre. So too, it gives an account of what we expect of our public servants. It takes as concepts like “due process”, “transparency” and “conflicts of interest”. In this frame it’s not so much the numbers that matter but rather the way that they are won and then marshalled in and out of our parliament. Because of this, we add to the vertical accountability related to elections the various horizontal accountabilities monitored by bodies like the Ombudsman and the various anti-corruption commissions.1=9
As citizens, we ask of our political class that they subject themselves to two obligations. First, to ensure our votes are meaningful and will result in laws, regulations and policies that reflect the outcome of the election. We expect honesty and a will to govern. Second, to ensure that the process of electing, legislating and governing is properly conducted and to that end monitored by a range of accountability agencies, including parliament itself.
Digging deeper into the real-world working of the principles outlined by the WA Inc. Royal Commission, I see a tension between the need to incorporate considerations of power and politics along with those of process and principles. There’s an energy about the politics that comes with freedom, and it works in different directions and to different ends.
On the one hand, we see the active power principle (“getting things done on behalf of the people”) and on the other the integrity principle (“making sure things are done properly, and according to law”).“Machiavelli added to all of this the insight that there is ‘bad’ as well as ‘good’ in politics and to assume otherwise would be foolish. Those who wish to make a profession of goodness in everything, he said, ‘must necessarily come to grief among so many who are not good’.
It should be relatively straightforward, you would think, to bring consistency between these two principles, but it isn’t. Getting things done is never easy, as we live in a world of ambitions, interests and ideologies. Pressure is applied and alliances are formed, and conflict is, more often than not, par for the course. Machiavelli added to all of this the insight that there is “bad” as well as “good” in politics and to assume otherwise would be foolish. Those who wish to make a profession of goodness in everything, he said, “must necessarily come to grief among so many who are not good”.10
In an open and free society politics is, as Bernard Crick observed, “the master science”.11 It’s the peaceful way to solve conflict, and when practised effectively, it makes things happen in a world of interests, conflict and pressure. It lines up against all forms of fundamentalism, whether they are represented religiously, ideologically or bureaucratically. Negotiation and compromise are essential, as is leadership and management.
Recognising this leads me to add another element to our definition of the public interest as a mix of the representative and trust principles. As it stands, it leads us to “free and fair elections” and “due process and an avoidance of conflicts of interests”.
However, to ensure that the liberal democracy implicit in these requirements is more than just “form”, it needs to provide room for executive power (leadership) and politics (negotiation and compromise).
Strong leadership involves the capacity for both “hard” and “soft” power, and the former may look ugly even though it is necessary. This is recognised by those that support a Charter rather than a Bill of Rights. A charter, say Williams and Reynolds, “should be enacted by parliament as ordinary legislation” and “would not transfer sovereignty from parliament to the courts, and would not give courts the power to strike down laws”.12
Sometimes in politics, logjams have to be broken, vested interests tackled, and the interests of minorities protected. In this space, it’s not just a case of appropriate leadership but also political skills and all that goes with it — marshalling the numbers à la LBJ, deal-making, compromising and even “biting your tongue in the face of provocation” or being evasive about intentions.
And, as Mark Philp has reminded us, partiality, partisanship and parochialism are part-and-parcel of a free society and the core of much that is politics. “This means”, he says, “that elements that are integral to winning, keeping and exercising office sit together in an unstable and potentially conflicting mix with positional obligations, strategic political action and prudential behaviour”.
He goes on to note that politics can be corrupted but isn’t of itself a corrupt activity.13
This leads us to the key question: What type of frame is needed that recognises both the reality of power and its pursuit and the need to hold the public sector to account?
Two models of accountability
In the history of the Westminster system, we can point to two phases within which these tensions between power and principle were resolved.
It all started with parliament and its powers and principles as a monitoring body, backed up by a public service board and auditor-general. Add to this our police as investigators and our courts as adjudicators. In all of this the media played a role, as did the occasional commission of inquiry.
However, what we’ve found through the history of democracy is that these monitors, whilst indispensable to the system, are inadequate to the tasks at hand.
Parliament has its parties and they have their factions, the police aren’t comfortable with and don’t handle these issues well, and the media is limited in its power and all too often in it’s objectives too.
Much that we would today call serious misconduct or outright corruption escaped scrutiny either because of a weakness of oversight or, more tellingly, because it wasn’t then seen as such or because the doctrine of “whatever it takes” reigned supreme.
It’s true that from time to time, and when the incentive or pressure to inquire was great, royal commissions could be called into play. They demonstrated the extent to which so much that happened within government was below the radar or off limits to scrutiny. Add to that the growth in expectations about what constituted good and proper government and new thinking about how to protect and promote the public interest was bound to emerge. So began the long march of public sector reform, with its changes to existing agencies like the Auditor-General and the Public Service Commission and the creation of a range of new agencies of accountability, like the Ombudsman and the FOI Commission, with the power to scrutinize and report on the way we are governed.“Much that we would today call serious misconduct or outright corruption escaped scrutiny either because of a weakness of oversight or, more tellingly, because it wasn’t then seen as such or because the doctrine of “whatever it takes” reigned supreme.”
However, it soon became clear that all of these institutions, both basic and new, had their limitations when it came to uncovering and preventing corruption throughout the public sector and involving elected as well as non-elected officials and commercial partners, contractors and consultants as well as public servants.
Major royal commissions in Queensland (Fitzgerald) and Western Australia (WA Inc.) recommended the establishment of permanent bodies to investigate claims of misconduct and corruption that included all involved in the business of government. So too, could they become educators and advisers to government about how to create resilient organisations and prevent corruption.
Nick Greiner’s New South Wales led the way, then Queensland and WA, followed by others but not the Commonwealth. However, make no mistake, this new set of accountability arrangements had and still has its critics.14
Some judges don’t like the “imprecision” of definitions and the way investigations and hearings are necessarily conducted. Some politicians yearn for the secrecy that allows them to practise the “dark arts”, all in the interest of outcomes they see as part of their mandate. Some bureaucrats fear the constraints within which they now have to operate, and too many business people resent disclosure of what they see as commercially necessary influence-pedalling.
Importantly, though, we see consistently demonstrated public support for this wider definition of accountability. What we need to note, however, are the three assumptions that lie behind this public support. The public attitude requires the new regime to:
- ensure adequate powers exist to properly investigate “behind the scenes”
- ensure there is the opportunity to conduct public hearings
- ensure the use of corrupt means in the interest of party and faction (what I would call political corruption) is addressed as well as corruption in the interest of personal enrichment
Making these claims is, of course, a matter for judgment, but my experience from Western Australia in the 1990s was that, as outlined in the start of today’s address, it is so. The half-hearted response of the Court government to the type of anti-corruption body required undermined the all-important public confidence needed for such a body to be effective. Then Police Royal Commissioner and previously WA Inc Royal Commissioner Geoffrey Kennedy reported to the Labor government in December 2002 that, “the identifiable flaws in the structure and powers” of the then Anti-Corruption Commission had “brought about such a lack of public confidence in the investigation of corrupt and criminal conduct that the establishment of a new permanent body is necessary”.15
What role for corruption commissions?
When it comes to how such commissions should relate to the rest of the criminal justice system, I concur with the view of Kevin Zervos that their role “is to minimise the incidence of official corruption…by disclosure of the facts and the discovery of the truth”.16 That, in and of itself, is a most important function distinguishable from criminal investigation and trial.
As Zervos noted of New South Wales’ ICAC:
“The prevailing attitude to corruption seems to be that important though it is that those who commit crimes be brought to justice, this is an area in which disclosure of the facts and discovery of the truth can be more important than punishment of the individual. By giving the Commission coercive powers Parliament has placed greater emphasis upon the Commission getting to the truth than upon securing convictions”.17
The imperative in all of this is to discover the what, how and why of what happened, not only when it’s public servants but also when politicians, including ministers, are involved.
Greiner/Metherell: a case study
As a case study in all of this, I turn to the ICAC findings in the so-called “Greiner/Metherell Affair” of 1992. Terry Metherell had been elected as a Liberal in the previous general election but had subsequently resigned from the party and become an Independent. ICAC Commissioner Ian Temby’s reading of the subsequent efforts to bring about Metherell’s departure from parliament have been summarised as follows:
“Commissioner Temby reached a general finding in the Report that a job was given in exchange for Metherell’s resignation, since Metherell made his appointment to a “creative and constructive” position in the Cabinet Office or the Environment Protection Authority (EPA) a precondition to his resignation from Parliament. The appointment to a fifth director’s position within the EPA was to be made by secondment from an initial appointment to the Senior Executive Service in the Premier’s Department, by-passing the normal procedure of advertisement, interview and merit selection required by the Public Sector Management Act 1988 (NSW). An appointment was made by the Governor in Council pursuant to Division 3 of Part 2 of the Public Sector Management Act 1988 (NSW) on the recommendation of the Director-General of the Premier’s Department under section 13 of that Act, and without advertisement or interview, within hours of Metherell’s resignation. The secondment never took place. The consequence of Metherell’ s resignation was, as expected, that the number of Independent Members of Parliament was reduced from five to four, and the Liberal Party could expect to win a by-election in the vacated seat and improve the government’s control of the Legislative Assembly.”18
Commissioner Temby concluded that the action of the premier and Environment Minister Moore involved the partial exercise of official functions and was a breach of public trust. Further to that, he said that the behaviour of both was such as to provide “reasonable grounds” for their dismissal. However, he stressed that it was for was for the parliament “to decide how seriously they view the conduct in question”, ICAC’s role being to expose and report.19
In a sense, there is an analogy here with the charters of rights that have been established in some of the states and now territories. They create commissions to report on the human rights implications of laws and practices, the aim being “to facilitate dialogue between the legislature, the executive and the judiciary. It does this without undermining the pre-eminence of Parliament”.20 It means human rights issues can’t be ignored but that there may be circumstances where politicians accept the “incompatibilities” exposed.
The first part of Temby’s response was to the effect that the conduct came within s 8 of the ICAC Act. Section 8 outlines the various examples of what is corrupt conduct by a public official, and includes, amongst other matters, a partial exercise of official functions, a breach of public trust and the misuse of information acquired in the course of duty.
The second part was based on his understanding of s 9(1)(c) of the Act, which stated that s 8 conduct wouldn’t be deemed “corrupt” unless it met three conditions, one of which was that it “could constitute or involve … reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official”.
On the finding that conduct revealed came within s 8 of the Act, two of the three Appeal Court judges (Gleeson and Mahoney) agreed, but when it came to whether s 9(1)(c) of the ICAC Act was applicable, the majority went the other way (Gleeson and Priestley v Mahoney). To put it as simply as possible the majority ruled that because no “objective and reasonably clearly defined criteria” for the dismissal of a Premier or Minister existed, the requirements of s 9(1)(c) were not fulfilled.21
That is not to say that the actions of Greiner and Moore were not “partial” and a “breach of public trust”. Temby was right to say, said Gleeson, that the whole scheme was “seriously flawed”.
He went on:
“In the practical and political circumstances of Dr Metherell’s appointment, Mr Greiner and Mr Moore would have required the powers of detachment of anchorites to give proper consideration to Dr Metherell’s comparative merit, and their actions must have put Mr Humphry in a position of extreme difficulty in fulfilling his responsibilities….In my view, on the facts found, the case falls within s 8”.22
In the censure debate that preceded the establishment of the ICAC Inquiry into Metherell’s appointment, Nick Greiner put up a vigorous defence of his actions, landing a few punches on NSW Labor along the way, and arguing that “political considerations” of the sort he utilised were necessary if we were to have “a workable system of democracy”. Surely, he said, it can’t be “against the law” to make decisions of this sort, as is often done with a range of political appointments and marginal seats, for example.23
This takes me back to my point about executive power, leadership and politics as a necessary part of a good system of government.
Nick Greiner draws upon these not unimportant factors to justify his behaviour. He’d won the election with Metherell as a Liberal and therefore it was only right and proper that the balance of numbers be restored. That was the end being sought, but what about the means? Was the use of “political considerations” in this case acceptable?
Political considerations – the net tightens
Here it was clear, but perhaps not so much then back in 1992, that Greiner’s 1988 ICAC legislation was transformative in that it took the many debates about “impropriety” and “corruption” beyond the normal political battles and delivered them to an independent and permanent commission for examination and recommendation.
Politics was never a completely free-floating activity, and government never a complete secret, but, since 1988 in NSW, both are now put to the test in and through the work of ICAC and the definitions of corruption it has been given by Parliament.
Indeed, I would maintain that it was the revelation of the full range of facts and their meaning — which only an ICAC-type body can reveal — that was the most important legacy of the Metherell affair rather than the specific question of whether or not the requirements of s 9(1)(c) were met. Certainly, that was reported as the view of the Independents, who had the crucial balance of power in the assembly.24
Given a similar set of circumstances, I’m pretty sure in saying no premier, including Nick Greiner, would now do what was done in 1992!
The tradition of making “political-type” appointments to diplomatic posts and statutory authorities is one thing – and not without its public interest issues — but quite another is the case of the public service where Greiner himself had made it clear in legislation that appointments there “will be based on merit and merit alone”. He continues: “Merit is to be determined by reference to abilities, qualifications, experience, standard of work performance and personal qualities and will be the only criterion for appointments to the public service”.25
Starting with Greiner’s reforms in 1988, the message is now out there in NSW and certainly too in Queensland and WA, with their now-lengthy experience in this field of independent activity.
Make not just self- and family-interested considerations, but also party or factional “political considerations” in how you work, and careful investigation and full disclosure may follow, not just in parliament and the media, which has always been the case, but now by independent commissions with the power and authority to determine “the truth of the matter” according to the high standards we now set for ourselves as self-governing communities. They take us from addressing the question “what happened in this case” to another: “What really happened in this case?” Besides the all-important education and prevention work of such commissions, it is their ability to provide parliament and the people with soundly based findings on this question that is their strength.26
This article is based on a speech delivered at the National Integrity Forum event “Our Choices” in Canberra on April 15, hosted by The Accountability Round Table in partnership with the Australian Open Government Partnership Network, Transparency International Australia and Griffith University.
- See Jim McGinty, Second Reading Speech, Corruption and Crime Commission Bill, 15 May 2003.
- See A J Brown et. al, Governing for integrity: A blueprint for reform, Draft Report Transparency International and Griffith University, April 2019.
- See Geoff Gallop, “Helping our democracy work better”, Meanjin Quarterly, Volume 74, No 3, Spring 2015, pp.146-149.
- “Where to for an Australian Republic?” in The Mandarin, 20 August 2018.
- On the politics see A Commonwealth Integrity Commission – Proposed Reforms (December 2018) and Mark Dreyfus “Why Australia needs a National Integrity Commission”, QUT, Brisbane, 21 January 2019.
- See Nikolas Kirby and Simone Webb, Being a Trusted and Respected Partner: The APS Integrity Framework, an ANZSOG Research Paper, Australian Public Service Review Panel, March 2019.
- I’ve also contributed a short article on the case for a Federal ICAC. See “Federal ICAC needed to save the Commonwealth”, The Mandarin, 24 April 2017.
- Report of the Royal Commission into Commercial Activities of Government and other matters, Part 2, 12 November 1992, esp. Ch 1.
- On this distinction between “vertical” and “horizontal” accountability see Mark Schacter, When Accountability Fails: A Framework for Diagnosis and Action, ISUMA: Canadian Journal of Policy Research, 2001.
- The Prince, New American Library Edition, 1952, p.84.
- See In Defence of Politics (1962, and five subsequent editions, the last in 2002).
- George Williams and Daniel Reynolds, “How a charter of rights could protect Australians’ fundamental freedoms”, The Conversation, 07 August 2017.
- The Corruption of Politics.
- See Second Report on Investigation into the Metherell Resignation and Appointment (September, 1992) for a list of the criticisms and rebuttals.
- Kennedy is quoted in Second Reading Speech, Corruption and Crime Commission Bill, 15 May 2003.
- “The Independent Commission against Corruption: The Role of the Commission in Law Enforcement and the Need for Special Powers”, classic ASUTLII.edu.au.
- The summary is from Margaret Allars, “In Search of Legal Objective Standards and the Meaning of Greiner v Independent Commission Against Corruption”, Current Issues in Criminal Justice, Vol 6, No. 1, p. 109.
- Report on Investigation Into The Metherell Resignation And Appointment, ICAC, June 1992.
- Geoff Gallop, “The case for a Charter of Rights”, The University of Notre Dame Law Review, Volume 12, December 2010, p. 38.
- Margaret Allars has made a convincing case that the majority in the Appeal Court were wrong on this matter. See “In Search of Legal Objective Standards…”
- Greiner v Independent Commission Against Corruption, Court of Appeal, 1992, 28 NSWLR: p. 145.
- The speech is quoted in Report on investigation into the Metherell resignation and appointment.
- Michael Gleeson, Toni Allan and Michael Wilkins, An Act of Corruption? (ABC Book, 1992), p.228.
- See Nick Greiner, Second Reading Speech, Public Sector Management Bill, 1 June, 1988.
- See also Geoff Gallop, “Federal ICAC needed to rescue Commonwealth”, The Mandarin, 24 April 2017.