Corruption and Australia’s Parliament

Glyn Davis
G’day. I’m Glyn Davis and this is The Policy Shop, a place where we think about policy choices.

Presenter 1
Seven Nightly News presents the Fitzgerald Enquiry Report.

Presenter 2
Well, it’s been a remarkable day for Queensland with the long-awaited release of the Fitzgerald Enquiry Report.

Presenter 3
It recommended a Corruption Watchdog and widespread political reform, but what did Sir Joh know? Police Commissioner Terry Lewis and his officers would do anything to subdue critics of Joh.

Presenter 4
To ensure that sort of service from the police he was prepared to turn a fairly blind eye to whatever else they might be up to.

Politician
If this government was serious about tackling corruption we’d have a National Anti-Corruption Commission, a National ICAC, a National Corruption Watchdog like they have in New South Wales because this government thinks that the only place that wrongdoing happens is on one side of the fence in the industrial arena. They are kidding themselves.

Glyn Davis
Tony Fitzgerald AC QC is a well-known name to many Australians. The Fitzgerald Enquiry into corruption in Queensland was a defining moment for the government in that state and, in many ways, for Australia. The state-based anti-corruption agency is becoming a feature of public administration after this time in several states. In New South Wales, Queensland, and Western Australia initially, but more recently in Tasmania, Victoria, and South Australia as well.

Separate from the Fitzgerald Enquiry, Tony Fitzgerald has had a distinguished judicial career. He was the youngest person appointed a Judge of the Federal Court, and was later a Judge of the Supreme Courts both of Queensland and of New South Wales. He was Chair of the Australian Heritage Commission and the inaugural Chancellor of the University of the Sunshine Coast.

In retirement from the courts Tony Fitzgerald continues to care deeply about the state of governance in Australia, and naturally his occasional public comments on the use and misuse of power are sometimes controversial. In one scathing statement about a state government in 2014 he said, “unless there is effective parliamentary opposition to advocate alternative policies, criticise government errors, denounce excesses of power, and reflect, inform, and influence public opinion, the checks and balances needed for parliamentary democracy are entirely missing.”

Tony Fitzgerald has recently devised what we can call the Fitzgerald Principles, some key principles for good government in the twenty-first century, which we’ll discuss today along with the idea of an Anti-Corruption Commission not just for states but for the Commonwealth Government of Australia. Tony Fitzgerald, welcome to The Policy Shop.

Tony Fitzgerald
Thank you very much Glyn. It’s a great pleasure to be speaking with you.

Glyn Davis
Tony, you’re clearly deeply concerned about the way Australian parliamentary democracy works, or fails to work. I’d like to start at the beginning, given that we will have many students - and potentially first-year Politics students - listening. How would you characterise the form of government we have in Australia?

Tony Fitzgerald
Well, Glyn, I think it’s well-known that Australia is a representative democracy. When the Commonwealth was established by an Act of the British Parliament in 1901, Australia was given a constitution based on the Westminster system of parliamentary or responsible government. Under the Westminster system, parliament is supreme. Those elected are not required to act in the public interest or tell the truth, or forbidden to act in their own interests and the interests of their supporters. Everything is left to conscience.

I think a lot of people believe that the courts are an effective control on political excess.

Glyn Davis
Indeed.

Tony Fitzgerald
But, with parliamentary supremacy that’s not the case. Australian courts have power to enforce the Constitution’s division of power between the Commonwealth and the states, but the core principle of the Westminster system, parliamentary supremacy, means that laws made by parliament cannot be questioned on any other basis. Unjust laws are valid. With minor exceptions, courts can only protect individuals or minority rights when permitted to do so by parliament, which can effectively oblige the judiciary to be complicit in injustice.

Glyn Davis
So, how complicit? How is it that the judiciary can’t challenge an unjust law?

Tony Fitzgerald
It’s simply the core at the very heart of the Westminster system of parliamentary supremacy. We saw a very clear example of it in South Africa, which has - or had - a similar system. South African judges were required to enforce apartheid, a truly terrible injustice. I suppose one could look at the refugee laws and wonder whether they are really just, or in my case, I am convinced that they’re not, but the courts are required to enforce them.

Glyn Davis
So, how did we end up with this system of government and these sets of values?

Tony Fitzgerald
Democracy was first - as I understand it - experimented with in some of the city-states of Greece in the period before Christ, hundreds of years before Christ.

Glyn Davis
And in India before that.

Tony Fitzgerald
And in India before that. It then vanished, at least so far as Western nations are concerned, until the seventeenth and eighteenth centuries. Thomas Paine, who participated in both the American and French Revolutions, which occurred - as you know better than me - in the second part of the eighteenth century, pointed out in his seminal work, Rights of Man in 1791, that parliamentary supremacy might result in a new tyranny in which the majority oppressed individuals and minorities.

There’s an echo of that in Lord Acton’s famous statement that "power corrupts and absolute power corrupts absolutely". It was Lord Acton who also pointed out, although it’s less well-known, that even the majority can’t make just that which is unjust.

In any event, the historical development in England, the transition from royal power to parliamentary government, proceeded without a formal constitution on the very English assumption, as I understand it, that political office would be exercised by people who knew how to behave properly and could be trusted to do so.

Glyn Davis
That’s right; a government of chaps. So, as…

Tony Fitzgerald
A government of chaps because that was the system at the time.

Glyn Davis
As of March this year there were over 15.8 million Australians enrolled to vote at elections, but you’re telling us something important here about what voting means; that the idea that the majority of citizens having a say in government isn’t necessarily the reality. Again, how did we end up with this circumstance?

Tony Fitzgerald
Well, it’s a little difficult to understand, I suppose, except that these things developed in England. They developed in a society that was divided into deeply entrenched classes, where there was no concept really of individual and minority rights for the lower classes, the middle classes I suppose. Even the right to vote, now regarded as a fundamental element of democracy, was very limited. The Second Reform Act in 1867 extended the voting population, but even then, there was only about one third of the adult male population that had a right to vote. Although Queen Victoria was on the throne females did not have a right to vote.

The view that was expressed at that time by Walter Bagehot, the British economist and journalist who was the author of a major work on the English Constitution and the Westminster system, was that the masses of Englishmen were not fit to vote. They add nothing to public opinion and, as it were - as you said a moment ago, we’ll get on with it chaps.

Glyn Davis
As you’ve written about this and thought about it you have focused often on the role of political parties and the separation, in a sense, from the idea of representation because political parties have a strong say, or even a dominant say, in what it is that representatives do. You see ethical considerations as very much at the fore here. How did we end up with political parties in such a dominant position?

Tony Fitzgerald
If we go back to the basis on which this has really started to emerge and has emerged, it’s the Westminster system. We have this doctrine of parliamentary supremacy, underpinned by a fundamental assumption, based on the perceptions of the time, that those elected would voluntarily act with integrity, make decisions for the public benefit, and as it was put by Professor Julius Stone in his Social Dimensions of Law and Justice, "exercise power subject to the restraints of shared socio-ethical conventions", in other words, act ethically.

Parties were really seen as consistent with that, and in theory they are. There was some very sound thinking behind it, although it hasn’t stood the test of time. It’s proved too optimistic, but it had a substantial foundation.

It’s in everyone’s rational self-interest to follow common sense, ethical rules, and so we have these people who it’s assumed are going to act ethically, and we have them in groups. But we now know, in our rather more cynical times, that not everyone acts ethically. That contrary to what was assumed of the people who were expected to exercise elected office, we have ambitious people and we have excessively ambitious people; people obsessed with power and money.

Glyn Davis
You followed this on in a couple of writings thinking about group dynamics, and indeed about mobs and the influence on politics of mobs, but also within parliament; of what happens when parties spend a lot of time together.

Tony Fitzgerald
It’s much easier to persuade oneself that one is acting for the best even though acting improperly if one is acting as a member of the group and the group is doing that. I’m not a psychologist but there is, as I understand it, a lot of writing about group psychology and how, within the group it’s much easier to subordinate one’s personal values to the group behaviour.

You mention mobs. Well, mobs are a very good example of it, except I suppose a rather extreme one. We’ve seen it over the centuries with pogroms and witch-hunts and lynch-mobs and so on and so forth. People subjugate their own personal values and participate.

We still see it today, in my [view] we see it when there’s a scapegoat targeted, often these days by the media. Someone who is unpopular, perhaps deservedly so. Someone who is perhaps connected to an institution which has behaved badly. The sense that there needs to be someone made to pay, and whether the scapegoat is the person who is guilty or not is - we get this group lust to see someone, almost anyone, punished.

Glyn Davis
So, I’d like to follow that through by thinking about threats to democracy, to contemporary democracy. You’ve indicated a concern about the way Parliamentarians operate unconstrained, and you’ve expressed views about political parties, and indeed about mobs as they operate. We’re also in a world of quite rapid change, a world where arguments about national security and technological change justifies or is used to justify various actions.

Are you confident that our current system of government can remain both democratic and ethical against these constraints?

Tony Fitzgerald
I think there will need to be a huge shift in political behaviour. Democracy in Australia has largely been reduced to a contest between the Coalition and the Labor party. They dominate public discussion and debate, and elections are heavily weighted in their favour. Legislation which they enacted provides public funding based on past election results and gives them an overwhelming electoral advantage over other parties and independent candidates because they always receive the most money from the past election.

Glyn Davis
Do you think this system can endure?

Tony Fitzgerald
Well, I don’t think it can endure and - if we have a look at the way they’re behaving, I don’t think it can endure unless there’s an enormous change in their approach this exercise of power. They don’t seem very interested in changing. It was after the Whitlam government was dismissed by the Governor General at the instance of the coalition - since then we’ve had - once this started we’ve had a powerful, professional, political caste which, with organised sectional interests and wealthy individuals, have greatly increased their influence.

Ordinary citizens have been reduced to an insignificant, unproductive role. Despite the arranged photo opportunities and infrequent, well-publicised trips on public transport, politicians are now very remote from the community. One Minister recently said that she can see everyone in Australia whom she wants to see at exclusive functions.

Glyn Davis
Slightly disturbing, isn’t it? So, how would you sum up the state of health of democracy in Australia?

Tony Fitzgerald
What’s happened is that, in this post-dismissal period, perhaps only halfway through it, but somewhere between the dismissal and now there’s been a new political dogma accepted by the dominant political parties. It’s really been turned into a parody of democracy.

Glyn Davis
In that parody - you’ve talked at length in the past about executive excess, the role of the executive within the parliament. Can I ask you to reflect on its contemporary role?

Tony Fitzgerald
The Westminster system’s fundamental doctrine of parliamentary supremacy has effectively been reduced to a sham. Parliament’s role, authority, and prestige are now severely diminished. Responsible government means, in this context, that the executive government is responsible to the parliament. But party rules and discipline oblige Parliamentarians, whose pre-selection is commonly held at the whim of the party leadership, to rubberstamp decisions made by the executive.

I call it a sham because there is an appearance of parliament making the decisions, and formally it does, but it makes the decisions in accordance with the dictates of the party leadership. It’s not really the Parliamentarians, the common herd of Parliamentarians, the back-benchers, making independent decisions according to their consciences and assessment of what’s in the public interest. It’s doing what the party leaders think is best to give effect to their concern and that power is retained.

Glyn Davis
One of the aspects of that, again that you’ve talked about, is lies and falsehoods and spin; the role of distorting truth in order to establish a case. I am wondering if you could reflect on its role - spin’s role - in contemporary politics.

Tony Fitzgerald
If we look at business by way of comparison, misleading and deceptive business conduct is prohibited by legislation; the Trade Practices Act. Misleading and deceptive political conduct is not only legal but regarded by some politicians as extraordinarily clever. People who wouldn’t dream of stealing money seem to think nothing [if it’s properly] obtaining or reclaiming power. Important information is withheld and distorted and manipulated. Falsehood and propaganda are euphemistically mis-described as spin.

It’s almost impossible for voters to distinguish information and rational opinion from nonsense and lies. Public dissent and criticism are discouraged by personal abuse, often levelled under parliamentary privilege. Unwelcome ideas are condemned as elitist or un-Australian. Some politicians and shock-jocks and vitriolic quasi-intellectual commentators are bullies with public platforms. Hate-speech is synonymous with free speech, another blatant abuse of the right of free speech.

Glyn Davis
So, one of the consequences people are deeply concerned about is the loss of trust that follows not only in politicians but in lots of institutions and indeed the constant undermining of trust by the mechanisms you’ve just discussed. How serious is this problem, and what are its implications for parliamentary democracy?

Tony Fitzgerald
Well, it’s difficult not to think that they’re extremely serious when one of the former Ministers, highly respected in his time, John Faulkner, described Australian democracy as drowning in distrust. There’s massive public anger and contempt towards politicians, and political chaos seems almost inevitable if politicians persist in their 'whatever it takes' behaviour.

I only scratch the surface of [unclear] by talking about the truth issues, but public funds are routinely misspent for political benefit, the scandals are frequent, and politicians regularly attribute misconduct to each other, accuse each other of egregious character flaws, and assert in the face of overwhelming evidence to the contrary that only their opponents act improperly.

Patently disgraceful conduct, too often involving the misuse of public money, is routinely covered up, denied, even by those who aren’t directly involved, or excused as within the rules, which merely means that the conduct is not illegal because of self-indulgent rules which the politicians themselves have determined.

It seems in a sense surprising that any group of people, including some who are highly intelligent, could come up with such stupidity, and think that it was an effective way of making government work, and that it would not provoke a backlash.

Glyn Davis
Which is certainly has. I’d like now to turn to some of the solutions that you’ve explored in the past, and then turn to the Fitzgerald Principles. Starting with the solutions that you’ve been closely associated with in the past, of course, a national anti-corruption body as one way of addressing some of the lapses and absences that you identify in our constitutional framework; can you say something about why you advocate a national anti-corruption body?

Tony Fitzgerald
Well, it’s presented sometimes as though we have checks and balances, but the real core principle is parliamentary supremacy. We talked about that earlier. Constitutional checks and balances to control political power would provide the orthodox answer to the problems we’re experiencing, but they’re not a panacea. We can see that because in America they have constitutional checks and balances and no-one could say that their democracy isn’t in serious trouble at the moment.

We’re unlikely to get constitutional checks and balances. In fact it’s not even really worth talking about because Section 128 of the Constitution makes change so difficult, and because the dominant political parties can refuse to have the questions even put to the people.

So, an effective anti-corruption body, plus I would say an independent parliamentary ethics and privileges commissioner with investigative powers, and a multi-party parliamentary committee with power to impose penalties for breach, would be a significant step forward.

The anti-corruption commission doesn’t fully replace the absence of checks and balances, but it does introduce a constraint.

Glyn Davis
Yet, haven’t we seen anti-corruption bodies compromised in some places? You have deep experience of this as a close observer of the role of the anti-corruption institutions across a number of states.

Tony Fitzgerald
Of course, and we’re speaking about people who don’t want their behaviour to be effectively supervised resisting it until they can’t resist it any further, and then, when forced to act, making it as ineffective as possible. So, we have independent anti-corruption bodies. Those commissions, New South Wales and Queensland anyway, have been effectively undermined. The powers that they started off with have gradually - or not gradually, but incrementally been reduced. They’ve been too successful at their task and so they’ve been reduced in power and made less effective.

The more recent bodies, the more recent commissions against corruption, have been given inadequate powers from the outset. No doubt if there’s a Commonwealth one the tendency will be to make it an ineffective body.

Glyn Davis
Yet a newspaper article in January said that according to an opinion poll commissioned by the Australia Institute more than 80 per cent of people are in favour of a federal anti-corruption body. With such apparently massive support for the idea, why hasn’t it happened?

Tony Fitzgerald
Well, because 80 per cent of people are subject to the whims of the dominant political parties, and in practice it will always be one of them in power while the situation remains unchanged. Neither of them want an effective anti-corruption body. Remember that it’s only Members of Parliament, for the most part, who get caught up in corruption activities. There’s much less chance to be corrupt in opposition, or as a member of a minor party, than there is as a Minister of the Crown or a member of a governing party.

Glyn Davis
So, make me pure but not just yet. Okay.

Tony Fitzgerald
Or make the other side pure and leave me alone, for goodness’ sake.

Glyn Davis
So, in Queensland this was made possible by extraordinary circumstances and national media attention on corruption.

Tony Fitzgerald
It was. It was.

Glyn Davis
Does it take that every time to break through? Or can you see other circumstances in which governments might be, however reluctantly, willing to allow this form of scrutiny?

Tony Fitzgerald
Well, I think governments have accepted it to some extent, for example with ICAC when it was set up. They have come to regret it, to some extent, governments since then. I suppose you could say that about some of the other anti-corruption commissions, although as I say they’re often set up to fail. Then they do more harm than good because the media and the public are satisfied that an effective remedy has been put in place but in fact it’s really just a disguise spread across the top to make people feel more comfortable about it.

In Queensland, the particular thing about it was that the government appointed the inquiry to investigate the police, but reluctantly expanded it to include its own behaviour. I think there were some extraordinarily fortuitous circumstances. The planets all aligned. Queensland had a Deputy Premier who was also the Police Minister, who was deeply affronted at what the police had done to deceive him. The Leader of the Opposition and the Leader of the Liberal Party, because there wasn’t a coalition in Queensland at the time, were both lawyers and extraordinarily decent people.

Wayne Goss, who subsequently became the Premier, is of course one of the finest people, in my view, Queensland has ever produced. Angus Innes had been at the Bar with me for many years and was also a man of absolutely impeccable character and reputation. The three of them really got together and made a decision, I think, and then Mike Ahern in due course joined the group that, irrespective of the pain, was now or never.

Glyn Davis
It’s just worrying that it requires an alignment of such people and such circumstances.

Tony, you signalled very clearly that we need a large change in political behaviour in your view, and I’m interested in the efficacy of prosecutions. Of course the Fitzgerald Enquiry in Queensland was followed by a very significant set of prosecutions that fundamentally changed the political culture in that state. But is that a necessary part of seeing the changes that you’re looking for in public behaviour?

Tony Fitzgerald
Glyn, I think there’s a need for a number of factors and activities to intersect. In particular, I think a change of political culture needs two things. One, it needs those politicians who aren’t engaged in personal corruption - and that’s, I’m sure, most of them - to recognise that in their political activities they need to behave with the same standards of propriety as ordinary people bring to their ordinary lives. That politics is not an area outside of the necessities of social and civilised conduct.

The second thing is that there are those politicians as there are people in other segments of the community who are corrupt, and the best way to deal with them is to have a body which can expose their conduct and then have them prosecuted by the ordinary authorities through the courts in the criminal justice system.

I’m strongly of the view that the New South Wales practice of declaring conduct corrupt is misplaced. In my view that is a role for the courts, for juries in serious criminal matters, to determine. The importance of the corruption commissions is that they have a much greater capacity to expose misconduct and inform the public, leaving it then to the ordinary resources to carry out the prosecutions.

The idea that there is a problem with having these hearings in public because they embarrass people is nonsense. The public is entitled to know what is being done by their representatives, whether they’re public servants or politicians, especially when public money is involved. The courts investigate people’s behaviour constantly and they do it openly. The public has a right to know what is happening in public life.

Glyn Davis
Well, Tony Fitzgerald QC, to close, I’d like to ask you about what values and reforms you think are required to ensure that we are a democratic nation.

Tony Fitzgerald
Well, I think we have to start with the anti-corruption commission and the other bodies that I mentioned. The only long-term solution is a change in political culture, and that’s where the questions that are being asked of the Parliamentarians are, in my view, of seminal importance.

There are seven principles that the Australia Institute has on its website, which the Commonwealth Parliamentarians have all been asked to say whether they agree or not.

This followed up the activity earlier in the year when members of the government, one might think with a remarkable lack of personal insight, initiated a debate on Australian values and embarked on a crusade to enforce their idea of what other people should do. So, the Australia Institute asked all Commonwealth Parliamentarians these seven simple questions about their own values, their own ethical values. Some vented their anger, affronted that they should be asked. Most refused or failed to respond, in effect telling the public that they’ll act as they wish and there’s nothing voters can do about it.

One of the dominant parties even organised a specious common excuse, which most of its members put forward; something about - I don’t respond to surveys. Not much of an explanation or excuse, one would think, for refusing to say whether you think you’ve got an obligation to act ethically, but there it was.

Sooner or later if people, and not just individuals like myself, but the public, wanting a change in political behaviour, insist that their Parliamentarians answer the questions they’ve been asked or some similar questions - there’s no particular value in these questions which are badly named as the Fitzgerald Principles, they are to me simply the common principles that ordinary people live their lives by and teach their children.

But the practical outcome will be, if the politicians are forced to answer this, and then when they fail to live up to them are challenged with the basis that they have committed to these principles, and if people stop voting for them - for the people who refused to commit or say they’ll commit and refuse to comply - we’ll see a change in political behaviour.

Glyn Davis
It’s been my honour to talk today with a great Australian who has devoted his professional life over decades to the issue of ethics in public life. Tony Fitzgerald QC AC, thank you for your time today.

Tony Fitzgerald
Thank you very much Glyn. It’s been a wonderful experience.

Glyn Davis
And thank you for joining for Policy Shop.

Voiceover
To read more about the Fitzgerald Principles and the Values Survey on MPs go to the Australian Institute website at tai.org.au.

This episode of The Policy Shop was produced by Paul Gray, with research by Ruby Schwartz and audio engineering by Gavin Nabauer. The Series Producer of The Policy Shop is Eoin Hahessy.

Copyright the University of Melbourne, 2017.