Reforming our political system

by John Hatton

The Dream

With apologies to Marin Luther King, I have an Australian Dream in which our leaders do not play on fears, greed and prejudice, but cultivate harmony, tolerance and the beauty of a multi-cultural society where tolerance is the reward, where love of difference is the norm, where the gross national product is a measure of happiness, education, rounded personalities and where opportunity, health and wealth sharing is a right. An Australia in which professional sporting prowess is overshadowed by productive careers, nurses and social workers, where national defence accords with standards of freedom, justice and human rights and not might or capacity to kill and control, where democracy is not sacrificed to pre-selection, party discipline, secrecy, cover-up and mendacity, where National Theatre is not the parliament but a creative nation, school spectaculars, writers’ festivals, paintings of light and life, and drama a celebration of cultural richness, depth and difference, where religion is wide, tolerant, humane and passionate about life and liberty.

Theoretical

At all levels of government, local, state and federal, the cults of deniability, secrecy, the lack of accountability, avoidance and diffusion of responsibility and corruption of process are growing. Weapons necessary to storm the cult citadels or even to prize open doors are diluted or diminished day by day.

The unease, suspicion and powerlessness in Australian society are manifested in the formation of numerous disparate groups with specific interests, many possessing their own websites. The purpose of the background notes that follow is to commence the process of identifying what powers, rights, and weapons are needed by all such groups to be effective participants in a free and truly democratic society. Of course each group will have a different focus and rate the necessary tools of reform differently, but the key emphasis here is on their common needs, for example, freedom of information and open, transparent government processes and the decentralization of power.

A daunting task? Well not really.

Nine years in local government, twenty two years as Independent MP for the NSW Legislative Assembly seat of South Coast, meeting the sieves and barriers to the exposure of truth, attacking the citadels of freedom from information, corruption of process, cronyism, injustice and like obstacles has brought me to this point. As the Irish say, “Politicians – they’re all the same some of ‘em.’

In keeping with a vast and growing number of Australians, I do not trust either side. The Hicks case is, for me, the pinnacle of injustice. For five years (two of which were in solitary confinement) Hicks, without charge and without trial, suffered privation and torture in Cuba where US law prevents US citizens from being sent. No one in authority, no-one in elected office did anything effective to stop this. Attorney General Ruddock not only failed his oath of office to safeguard, uphold and enhance Australia’s system of justice and the Rule of Law, but actively undermined both. A spineless opposition and an ill-informed, disinterested or misled public failed for five years to force accountability. There are many examples of state (Labor) and federal (Coalition) evasion of the vital principles involved and lack of responsibility and hypocrisy, even gross dishonesty.

Enough is enough. The skewing of Parliament to satisfy private interests rather than safeguard the public interest cannot be tolerated.

Preface

Parliament was originally set up to safeguard the public against the abuse of power, to safeguard free speech, liberty and the rights of the individual, provide service through an open and accountable Public Service, to facilitate access to employment with fair wages and conditions, affordable housing, to ensure a safe and satisfying lifestyle, a fair trial and a fair go within the justice system, the right of participation in decision-making and the preservation and promotion of many other social ‘goods’.

Modern democracy consists of a series of political parties to which the citizenry is not invited. So what is democracy? To paraphrase John Ralston Saul ‘Democracy is a system which facilitates the obligation to dissent.’ (1) It is by courage of dissent that democracy is forged and tyranny overcome. The pillars on which a free and democratic society rest are many. Access to power, with the right to vote, to contest elections, to meaningfully participate, the right to Habeas Corpus and a fair trial, access to information, mechanisms of accountability, decentralization of power, equity, social justice, free speech, effective representation, meaningful employment, affordable shelter, just remuneration, to name a few. Most have been significantly eroded. Democracy has been high jacked by the centralization of power.

The tools essential to be an effective citizen, to participate, to gain an equitable share of the $15.8B surplus, to invigilate, even to survive, never mind hold those in authority to account, have been neutered or simply taken from the citizenry. Responses to feelings of powerlessness include the formation of numerous, disparate groups, each with its own agenda, website, modus operandi; each fighting for oxygen in a heavily polluted political atmosphere which chokes dissent. The existence of so many and varied groups is manna from heaven for those who effectively divide and conquer, even though a number of the groups so effectively marginalized have more members than the political parties that wield such massive power.

The petty, vindictive, party political, ‘name and blame,’ divide and control, and distract and divert games are effective, yet, as this paper will show, the dissenters, the battlers, the frustrated, have in common, ways to access the oxygen, to survive, grow, participate, and hopefully, be allocated a just share of the resources of Australia, one of the richest countries in the world.

A numerical comparison of membership indicates that the major political parties in comparison to many other community grouping wield grossly disproportionate power and influence.

The reality: an example of what occurs nationwide

Elections and influence
The power of groups and citizens generally who are not members of unions or political parties is rapidly eroding. Centralisation of power within the political parties and some unions marginalise the general membership. The Parliament and the process by which its members are elected has been hijacked. Members of Parliament are appointed, not elected. Ninety percent of Members of Parliament throughout Australia are not elected by the people of Australia. The party pre-selection process guarantees that small, powerful and usually factional groups determine who the candidates are, what electorates they will represent and, in large measure, how the Party parliamentarians will act. The exceptions are the ACT and Tasmania. In Tasmania, multi-member constituencies and a Hare-Clark system of voting, with votes counted proportionally, give party voters a choice within the Party group at the polls, and Independents a better chance of being elected. Preferential voting counted proportionally makes the Tasmanian electoral process arguably the fairest in the world.

‘Fixing’ Selections and Pre-selections
PM Howard’s right wing faction has weeded out ‘small l’ Liberals and dissenters by a tightly organized and controlled pre-selection process. The Labor Party is highly factionalized. The powerful right wing ruthlessly controls the pre-selection process, intervening on a surprising number of occasions to impose a candidate from outside the electorate concerned, overruling or sidelining voting rights of local branch members. Between them, the major political parties overwhelmingly select the well-connected, party officials, ministerial staffers. To be a parliamentarian is the reward for unquestioning loyalty. A seat, a ministry, a pension and often, a plum job on retirement. Being an MP is a reward, rather than an opportunity to serve – an attitude rare indeed.

The Senate List System of Voting
Who in Australia can number senate candidates in order of preference in the case of say seventy or more starters? Yet not to do so, failure to number every square makes the vote informal. Therefore parties make it easy for the voter to tick the box Labor, Liberal, National or whatever. Easy for the voter and power for the back-room party fixers.

Solution?

Optional Preferential Voting allows you to number only the candidates you wish to support; say, limited to the number of senators to be elected in the state or territory concerned, and the vote is valid. This system applies in the NSW Upper House elections where fifteen only need to be numbered.

In Canberra the ‘fix’ is in. Elections: the party ticket determines the party team and the party backroom determines who to preference among all the other groups or individuals.

Laws
The Parliament does not make laws. Draft legislation is usually formulated by the Public Service or by Cabinet, and may be determined by a party caucus, faction or special interest group. When legislation is presented to parliament often grossly inadequate notice is given, debate truncated and detailed information is not available. The people affected, unless well-connected, rich or powerful, are denied privileged access, are not consulted. Legislation is not analysed nor, by and large, rationally debated on the basis of deep knowledge or after careful analysis.

Regulations
People are governed by regulations which are tabled in considerable numbers in Australian Parliaments. The practice is for the Parliament to pass umbrella legislation giving Executive Government the power to make regulations. In the 22 years I was the on the back bench in the NSW Legislative Assembly, party politicians of all persuasions would simply follow the leader, and once seated, ask ‘what are we voting on?’

Solution?

Provision for delegated legislation to be amended or vetoed by either house (of parliament).

Vested Interests and Lobbyists

Powerful groups and lobbyists often have the inside running (2). There is evidence that some vested interests have direct access to confidential cabinet minutes and are able to help form recommendations to the Cabinet. Lobbyist Brian Burke, former WA Premier, is the classic example. The public is frozen out of the process. On the corner of Sleaze Street and Lobbyist Avenue, stands a telephone box which could accommodate a meeting of all influential Western Australia Business and Mining CEOs who haven’t used Burke as a lobbyist.

Auditor General to be empowered to set guidelines and police the efficacy of process in:

Establishment of register of lobbyists.
Register of preferment and special benefit over and above the general benefit
Register of donors who in cash and/or kind assist candidates and sitting members.

Parliament Does Not Monitor Your Tax Dollar
The most important financial document each year – the Budget – is a fait accompli and has never been amended, except by the Executive Government in my twenty years as a Member of Parliament. The Public Accounts Committee can determine what areas it will investigate and is a good watchdog, but can be hogtied by the party and/or the executive and has little or no effect on line items in the budget brought before parliament by the treasurer.

Executive Government
Government as a whole may be elected by less than 50% of the people (the last term of the Hawke and Keating Governments) (3) but can command over 90% of the Public Service resources. The opposition is starved of necessary information to perform its vital task.

Free Speech
The Parliament does not even guarantee free speech. The many restrictions placed by the dominant party on MPs’ rights to speak in the Parliament affect free speech within the institution and some of the most repressive defamation laws in the Western world severely limit free speech outside of Parliament. Yet MPs speaking in Parliament can defame citizens with absolute impunity.

The Public Service has no legislated right of free speech, and whistle-blowers are dealt with ruthlessly, even though they may be exposing corruption, wastage, nepotism or gross mismanagement. Speaking about the NSW Labor Government to an audience of lawyers and business people, Nicholas Cowdery QC, Head of NSW Public Prosecutors Office, said, ‘It seems now to be permissible for politicians to politicize the public service but not for the public servants to respond to political pressures.’ (4)

Does Your Member of Parliament Represent You?
Party members of Parliament represent the view of the Party. Structural restrictions and the proscriptive party culture they engender ensure that the interests of voters are not adequately represented individually or collectively. MPs who vote against the Party are criticized, ruthlessly persecuted and stripped of pre-selection.

Alan Ramsay reports on a Parliamentary Library study concerning the voting records of the past half century.

During those 54 years, 245 MPs – 87 senators, 154 MHRs, and four who served in both houses – crossed the floor, or, more pertinently, one in every four politicians ‘who sat in Parliament during this period.’

And of the 245 MPs who crossed the floor during the 54 years, only 28 were from the Labor Party. The reason is that Labor MPs are bound by a formal party pledge to support the collective decisions of their parliamentary caucus. To flout the pledge is to risk expulsion from the Party …No Labor MP ever made double figures in voting on the floor of Parliament against Labor policy …the research paper notes that whether Labor was in government or not, its 28 MPs crossed the floor on only 18 occasions …the Liberal prime minister subjected to the most floor crossings was Harold Holt (11 percent of all parliamentary divisions during his prime ministership) followed by John Gorton (7 percent), Malcolm Fraser (6 percent), and Robert Menzies (5 percent). John Howard has had Coalition MPs cross the floor in only nine divisions (o.3 percent) …it is obvious from the breakdown of figures whose authority has exerted by far the greater party discipline. The toad wins by the proverbial. (5)

Even Parliament itself depends on the Treasury for its funding. There is no separate Parliamentary Appropriation Bill, nor a Board of Directors, nor a Board of Internal Economy as in Canada, which determines the budget of the Parliament. So in theory, the Parliament can be financially strangled by the Treasury and therefore by the Executive Government. The Ombudsman and the Auditor – General could similarly be starved of funds in the absence of a direct Legislative vote as opposed to Treasury allocation.

Reform is about changing the culture of Parliament, opening up the process of Government, ensuring a much higher standard of accountability, and decentralizing the power of the Executive Government onto the floor of Parliament.

The Clerk of the Senate, Harry Evans , in a recent paper stated that:

'the rigid party system has destroyed Parliament, promoted corruption, undermined the public service and even destroyed objective truth and standards in much the same way as communism and fascism at their zenith.’

He only amplifies the words J.A. Pettifer former Clerk of the House of Representatives who in 1979 said,

‘the Party system has overwhelmed the Westminster system and destroyed its original checks and balances.’ Even 80 percent of the members of the House of Representatives believe that the chamber is a rubber stamp; as revealed by the McIntosh Study in 1989. (6)

Exposure Inquiry and Analysis – Parliamentary Committees
All-party Parliamentary Committees, especially Senate Committees, can and have performed the vital functions of inquiry, analysis and exposure.

This is now a thing of the past! Committees are stymied when Government controls the Senate. Some committees have been dismantled by:

Restriction of finance and resources,
Government proclaiming not only that ministers will not attend or respond to enquires, but that ministerial and prime ministerial staff are forbidden to attend. As in the ‘children overboard’ scandal, the ‘fix’ is assured and the cover-up complete),
Restrictive time-frames for inquiry and reporting,
Motions before the Senate to establish committees are vetoed. Even the President of The United States, senior Whitehouse staffers and heads of the armed forces think long and hard about refusing to give evidence and are ruthlessly questioned by senators from both sides to expose truth, policy failures and cover-ups. During the Clinton Presidency senior Clinton Whitehouse officials testified in public under oath on 47 different occasions before US committees. To claim Executive Privilege to deny Whitehouse officials testifying, the administration is obliged to show ‘Reasonable Justification’ for not appearing, (7)
Bipartisan parliamentary committees, at the moment continue only at the will of Government. Both in the UK and Canada, progressive structural reforms to the committee system were subsequently undermined by powerful executive governments. Thus, in fact, the Howard Government has all but trashed the watchdog role of senate committees.

Solution?

The only solution in my view applies at both State and Federal level. Never vote for the same major party in both houses of parliament! When opposition parties with or without the support of minor parties, or independents control upper houses (or the Senate), notwithstanding their very real faults, Senate and Upper House committees are in a position to perform the vital role of counterbalancing the tyranny of executive government control over Parliament.

A contempt of parliament to prevent, hinder or discourage a public servant from giving evidence to:

a parliamentary committee
a public enquiry.

Ministerial Advisors
Concerns that compulsory appearance of Senior Executive Service (SES) ministerial staff before parliamentary committees would compromise quality of advice has some validity, but Ministers and the Prime Minister cannot have it both ways and so must accept responsibility personally. Deniability, with prevention of cross-examination of those responsible, is totally unacceptable. The supremacy of Parliament (not the Executive) and the recognition of the supremacy of parliamentary committees are the people’s protection against tyranny.

Cabinet Secrecy
Now we know what the Coalition Cabinet knew about the Vietnam war, the Labor Cabinet knew about Indonesia’s atrocities in East Timor, after the expiration of the statutory 35 years secrecy rule. So what would cabinet secrets tell us about the AWB’s $300m to Saddam Hussein, ‘children overboard’, the protracted detention of David Hicks without trial, the reasons for being in Iraq?

Cabinet papers are kept secret for 35 years. Lies, outrageous deals and illegalities are hidden. Yet ministers can retire, take privileged information with them with the potential to advantage their employers and be paid handsome sums. Peter Reith (former Minister for Defence) after leaving parliament was employed by defence contractor Tenix. Michael Woolridge (former Federal Health Minister) became consultant to the Royal College of General Practitioners. Craig Knowles (former NSW Minister for Planning and former NSW Minister for Health) became a consultant at INVESTEC, an investment bank with property interests. Bob Carr (former Premier of NSW) obtained a consultancy at Macquarie Bank and provides political advice to those seeking to do business in NSW.

Lobbyists run rife in Canberra and Sydney. The NSW ALP is in bed with developers and the Howard Coalition Government with big business. Premiers and ministers retire on handsome pensions and can, in secret, sell their services and their knowledge to private businesses. In Canada there is a two-year restriction on retired ministers and senior public servants selling their knowledge for profit. People whose wages are paid by taxpayers, whether they be career public servants or ministerial advisors, can withhold from the public information acquired while being paid by the public. Yet they use their inside knowledge for private advantage.

Solutions?

Access to Cabinet Documents
Cabinet documents are to remain confidential for a maximum of two electoral terms. National security and monetary security exempted as agreed by Commonwealth Ombudsman.

The Commonwealth Ombudsman to have unfettered access to:
(i) all cabinet documents
(ii) national security reports.

Commonwealth Ombudsman to be bound by the Official Secrets Act and Cabinet Confidentiality, except in cases of illegality where the requirement is to report privately both to the PM and Leader of the Opposition.

Clarification and reinforcement of criminal code as it relates to the Prime Minister, ministers or MPs, ministerial staffers and public servants discriminating in favour of private interests by selective access to cabinet documents.

A Few Pages of Scandals
Prime Ministers and Cabinet ministers of all political persuasions accept the perks of office, but accept no responsibility for wastage, mismanagement and illegal activity by their departments. ‘Under the Howard Code of Ministerial Responsibility and consequent ministerial conduct, ministerial responsibility is effectively dead.’ (8) Parliament does not safeguard our basic human rights, is shamefully ineffective in monitoring public expenditure, prevention of corruption, wastage and massive mismanagement.

Denial is now the hallmark defence of inexcusable and illegal behaviour in numerous areas of government for which the Prime Minister, State Premiers, Federal and State ministers are responsible. The Prime Minister ‘did not know’ that the photographs of ‘children overboard’ misused by Minister Reith, depicted an event that did not happen. The political independence of the military, especially the RAN, was compromised. Staff of the Prime Minister’s Office and Defence Minister were forbidden by the PM to appear before a Parliamentary committee investigating the matter. The subsequent election was won on a lie.

Vivien Solon, an Australian citizen, desperately ill, was illegally deported to the Philippines. Only a public outcry had her repatriated (in a wheelchair) to Australia. Cornelia Rau, suffering schizophrenia, was illegally arrested in QLD and jailed in Baxter Detention Centre without treatment and without trial. David Hicks was held without charge and subjected to mental and physical deprivation for over five years. It has never been suggested that David Hicks has either killed or hurt anyone. Ned Kelly received a fair trial.

The rights of the accused to:

either be charged under laws existing at the time of the alleged offence and be subjected to a trial without delay before a properly constituted court, or be released;
be tried in a court where rules of evidence and fairness are enshrined in procedures which give the accused access to evidence held against them, and
have basic rights safeguarded in a system which enshrines the presumption of innocence unless proven guilty,

have been trashed by the people’s PM and Attorney General who were elected to protect these rights.

The opposition has shown astonishing weakness in not standing up for the basic tenets of justice, sovereignty and democratic rights. Where are all the States’ Attorneys General and their counterparts? It’s not a matter of State vs. Commonwealth, but of human rights. The governments of Canada, Great Britain and even the United States of America have not allowed such injustice to be inflicted on their own citizens. The British Attorney-General, Lord Goldsmith, had British citizens repatriated from Guantanamo Bay. No American citizen is held in Guantanamo Bay. American citizens are protected by American law. Britain and Canada have asserted their sovereignty, justice and rule of law to free their citizens.

The US Supreme court found that the Military Commission breached the Uniform Code of Military Justice and violated the Geneva Convention. An opinion dated 9 November 2006 and signed by the Hon. Alistair Nicholson, (former Judge Advocate General of the Australian Defence Force), Peter Vickery QC (Special Rapporteur, International Commission of Jurists, Victoria, and Professor of International Law and Human Rights, Australian National University), found that the second Military Commission set up to try David Hicks was similarly flawed. It breached conventional standards of a fair trial as well as Section 3 (1) (d) of the Geneva Convention.

Australia’s Attorney-General no longer recognises a duty to oversee, safeguard and enhance the integrity of Australia’s Legal and Justice System. The message is clear. ‘Citizen, don’t expect us to ensure that you are given a fair trial, habeas corpus and humane treatment for we are politicians first and Attorneys-General second.’

Frightening parallels can be drawn from the following George Orwell quote (brackets are mine):

'And in the general hardening of outlook that set in, practices which had been long abandoned, in some cases for hundreds of years – imprisonment without trial (Hicks). The use of war prisoners as slaves (Japan WW11), public executions, torture to extract confessions (Hicks and Habib), the use of hostages (US forces’ human shields) and the deportation of whole populations – were not only common again but were tolerated and even defended by people who considered themselves enlightened and progressive.' (9)

Dollars and Sense (dollars wasted unaccounted for, spent illegally)

Auditor General’s Report
In 2004/5, income tax grew by a massive 15% and total revenue rose from $203B to $227B over the previous year (ie. By$24B). While single instances of budget over-runs can reflect administrative emergencies, the Australian Auditor–General, Ian McPhee, found that of the 252 Federal bodies’ financial statements, 18 revealed breaches of the Constitution.

Millions of dollars have been spent without the authority of Parliament. The transgressors in the past eight years are:

Family and Community Services, Finance and Administration, Foreign Affairs and Trade, Health and Ageing. Transport and Regional Services, Centrelink, Australian Bureau of Statistics, Australian Federal Police, ASIO, Australian Security Intelligence Service, Australian Competition and Consumer Commission, Australian Transaction Reports and Analysis Centre, Bureau of Meteorology, Office of Film and Literature Classification Centre, Office of National Assessments, Human Rights and Equal Opportunity Commission, and Office of Inspector-General of Intelligence and Security. (10)

In the Department of Defence the Auditor-General reported that the $1.29B Department of Defence general stores are in a mess. Clothing, trucks, ambulances, grenades and guns could not be accounted for. The Auditor-General says ‘accountability is so poor that the National Audit Office cannot vouch for $4.4B of Defence-stated assets and almost $1B of its liabilities.’ (11)

The Department of Defence spent $18.3B last year, yet cannot vouch for what it owns.

The Federal Government will spend $6 billion on 24 Super Hornet aircraft as a stop-gap measure to provide cutting-edge fighter jet capability. The decision, announced yesterday, has left defence analysts flabbergasted but the Minister for Defence, Brendan Nelson, said the Government had bought an excellent aircraft that could be afforded because of its ‘solid economic management’. The amount to be spent on the Hornet is $2B more than outlined weeks ago by defence officials. Less than a year ago, Defence was saying there was no gap to fill in Australia’s air combat capability at all, dismissing as foolish fear-mongering the notion that an interim fighter would be required. (12)

The gross mismanagement and wastage of dollars comes with a high price for the future; especially for those over 65 years of age who created the wealth. ‘One in five are over 65. In two generations it will be one in 2.5.’ (13)

The Australian Tax Office was forced to fix almost $7B worth of mistakes made in 2004/5. Almost $3B of adjustments were made at the last minute resulting from accounting errors in Federal Government departments and agencies in the last financial year. The adjustments were made only after representations by the National Audit Office. Finally, Australia is a haven on par with Switzerland, the UK and the USA, for drug runners, terrorism, financiers, market manipulators and tax evaders to launder dirty money:

Australia and the three great centres of global capital [have] financial disclosure rules more commonly associated with palm-fringed islands …they also cloak dodgy dealings in a respectability which Vanuatu, Monaco or the British Virgin Islands cannot hope to match. (14)

Meanwhile, while Australian troops were committed to an illegal war in Iraq, the AWB was corruptly backhanding $290 million to Saddam Hussein. The Department of Foreign Affairs approved the scheme. The Minister for Foreign Affairs and Immigration escaped censure, never mind resignation, as required under the Westminster System. No senior public servant was sacked or demoted. The Minister, Deputy Prime Minister Mark Vaile, and Prime Minister Howard knew nothing. After all, it was only $290M paid to a cruel dictator with whom Australia was at war.

Governments in Australia are trampling fundamental rights of Australian citizens, and failing to carry out many of government’s basic responsibilities – such as access to decent health care, affordable housing, public transport, adequately funded State schools, the opportunity for university education, skills training, innovative scientific research, and funding of alternative energy sources, when in fact as this paper shows, billions of dollars are wasted, misspent or simply unaccounted for.

Decentralization of power, mechanisms to ensure openness, mechanisms of accountability and the safeguarding of civil liberties are four foundations of a healthy democracy. All four pillars are being trashed.

The Right to Know
We have freedom from information, repressive defamation laws to restrict free speech, and sedition laws to silence dissent. Speaking in reference to Sedition Laws, Malcolm Fraser said, ‘These are powers whose breadth and arbitrary nature, with lack of judicial oversight, should not exist in any democratic country.’ (15)

The right to speak is the bedrock of the right to dissent. Information is power. Those denied it are powerless. Consider the following selected quotes of comments by Rick Snell:

Weibing Xiao is a law academic from Shanghai who is doing a doctoral thesis – comparing China’s FOI regime with those of other countries – under my supervision at the University of Tasmania …Freedom of information has been recognized as a valuable anti-corruption tool. Its value was acknowledged in the Fitzgerald report on corruption in Queensland, by the international non-government organization Transparency International, and has now attracted the favourable attention of Chinese administrators…Back in 1983 Australia was considered among the world leaders in the development of FOI. In 2006, after a decade of neglect and poor administration, we slid down the performance rankings so far that we are in danger of being used as a poor practice illustration for Chinese bureaucrats …In the past ten years the Howard Government has neglected FOI, paid enormous legal fees to resist the release of information and been served by a civil service that has a stated preference for operating in secret …(Rick Snell lectures in law at the University of Tasmania, where he specializes in FOI). (16)

The real sting in the tail of the denial of information is the suppression of ideas, innovation and the prevention of corruption. In my 20 years of exposing corruption, mismanagement, wastage and organized crime, fear, not of the bullet or the bashing, but of defamation, and for the whistleblowers, bureaucratic and political desertion, denial, demotion, denigration and dismissal were the enemies of truth. Secrecy is the ally of the corrupt.

Gagging scientists stifles innovation and progress. Dr Graeme Pearman, former CSIRO Climate Director in 1989 won a UN award and OAM, and in 2003 he won the Federation medal. In 2004 he was made redundant. Why? On ABC DR Pearman refers to a ‘Powerful force-field (of influence) around your [ie, the work of government scientists] work’ (17):

It was clear that even top level scientists felt threatened by being too outspoken. The punishment of whistleblowers in the public service is legendary, but worse is the pernicious influence of selective funding to silence NGOs, curb outspoken members, and turn universities (once hotbeds of ideas and exploratory thinking) into tame and directed areas considered safe by Canberra. (18)

Elect another party? The system goes merrily on?

Some Suggestions to Force Change

Introduction: personal
My 22 years’ experience (1973 – 2005) as an Independent in the NSW Parliament and overseas study (a Churchill Fellowship enabling study of systems of government in Sweden and Canada, and comparisons with government in Australia), indicate quite clearly that change can and must occur. A succession of governments of all political persuasions have indicated an interest in power and not in change. Change can and will occur from outside Parliament. It will be brought about by members of the general public asserting their rights:

‘Never doubt that a small group of thoughtful committed citizens can change the world. Indeed it’s the only thing that ever does.’ (19)

On this website is the Churchill Report Accountability, Decentralisation of Power and Government in Sweden and Canada. It contains principles, models and ideas to effect basic reform. The general public can reassert its power and its access to rights, and overcome the problems of restriction of liberties, inefficiency, corruption and marginalization of the Parliament by political parties of all persuasions. With this as a basis, focused expertise can be applied and specific improvements made.

Change must be initiated outside of the Parliament.

Basic values have to be affirmed by the community. It is time for individuals and organizations, no matter what their political persuasion, interest or position in the community, to combine and insist that all candidates for election, whether they belong to political parties, other groups, or whether they be individuals, be asked to sign a statutory declaration that will commit them to:

work for and initiate basic, strengthening reforms to the rights of citizens, and
provide the public with the tools to protect those rights, to initiate reform, and to meaningfully participate in democratic decision-making processes.

IT IS IMPORTANT TO REMEMBER THAT POLITICAL PARTIES SEEK POWER, NOT CHANGE.

The key point is that not only have many of the rights of citizens been taken away, and the general public marginalized in the process, but many of the weapons and tools to fight the system have also been taken away or drastically reduced in potency.

Essential reforms that major political parties will not initiate

JUSTICE

Role of Attorneys General

George Williams is quoted saying:

Daryl Williams and now Philip Ruddock have argued that whatever traditional duties and responsibilities might have existed, they should not now be accepted because the Attorney should be regarded as a political office-holder and not as someone having any non-political or other responsibility to uphold principles like the rule of law or to defend the courts from unwanted criticism.
The position is so poor that there is likely not even any recognizable duty upon the Attorney-General to defend the rights of Australian citizens, such as when they are held overseas and denied a fair trial. (20)

There is growing concern in Australia and UK and this year under the Bush Administration, that there is a movement away from The Role of Attorneys General to be, if not completely independent from (after all AGs are Ministers within Government), at least separated from Government in the duty to safeguarding and enhancing the integrity of the Justice and Legal system. Governments set justice policies. The AGs implement them but AGs must be sufficiently respected and detached that they know how and when, and can with effect, say no to Government. Being an advocate for government, giving unbiased legal advice to the executive overseeing department legal counsel activities must not subvert their obligation to speak up for and defend basic human rights and justice. If the AGs, as the people’s elected representatives and as first law officers, do not safeguard and uphold the bedrock principles underpinning a just society who will?

What is the role of Chief Justice? If AGs, at the behest of the PM (or at State level – the Premier) not only fail to safeguard, but become actively and politically embroiled in convoluted argument that severely undermines, if not trashes, the basic principles of justice as has happened in the Hicks Case, the fallout for the Australian justice system could be catastrophic. Chief Justices must step into the public arena. At what other level will judges, magistrates and lawyers feel compelled to enter the public debate? And what of the ‘Separation of Powers?’ Whether Hicks was found guilty (by a process experts agree was gravely flawed) or declared innocent, the Federal AG’s position is untenable. His resignation or the defeat of government will only be a part answer in the short term. The role-sworn duty and responsibility to safeguard, publicly defend and uphold the basic tenets of the Justice System has to be clearly defined – preferably by amendment to The Constitution. Otherwise deliberate choice of under-qualified, inexperienced, weak and/or compliant AGs could have disastrous consequences.

I do not advocate a Bill of Rights as the mores of society change over time. However, the preservation of basic human rights demands that:

The responsibilities and obligations of the Federal Attorney-General to safeguard and enhance the integrity of the legal and justice system must be enshrined in law, preferably clarified in the constitution,
Habeas corpus be upheld so that any arrested person has the automatic right to a fair trial, to know what they are charged with and be provided access to details of the case against them in an open accountable and fair justice system,
The appointment of judges be bipartisan,
Legislation which denies any of the defined basic tenets of the rights of citizens before the law be compulsorily referred to an all-party Justice and Legal Affairs Committee (Standing Committee) for report and open debate on the floor of Parliament.
The Committee must play a pivotal role in judicial and quasi-judicial appointments, especially of the Chief Justice and Judges of the High Court and Federal Courts. The appointments must be of such merit as to achieve bipartisan agreement.
Legal Aid be provided under guidelines that are available for public debate.

Parliament
The Parliament can only be respected if it reflects the will of the people with structures, procedures and practices which guarantee the people access to power sharing and authentic consultation.

Eg: The Budget
The budget formulation process can, as it is in some other democracies, be an all-party parliamentary committees process, which over many months allows for public consultation, input and forward planning.

Under the Australian system, once a government is elected (and this could be, as in many instances, by a minority vote of Australians) all power resources and information belong to the Government. This basic concept is wrong, unfair, unjust and unworkable. In Australian Parliaments it is a government-only, winner takes all budget. In Australia the budget is presented to Parliament and by tradition never altered by Parliament.

Parliamentary committees must be supreme. It is outrageous for a Premier or a Prime Minister to declare that public servants must not appear at a Parliamentary Committee to be cross-examined by our elected representatives. Compare that with the Senate Committee system in the United States, where key office holders and even the President appears and has to justify himself before that committee.

Cabinet decision-making must be open. Cabinet documents by tradition in Australia are kept secret for 35 years. Yet we now have the unedifying situation where former ministers at the Federal level and former premiers and ministers at the State level can resign, take ‘confidential’ knowledge with them, and be in the position to sell that knowledge for private advantage to themselves or the private organization which employs them. The Freedom of the Press Act in Sweden guarantees that an all-party Constitution Committee in Sweden has access to Cabinet documents. This committee is also another layer of accountability of ministerial behaviour.

There must be public consultation and all-party input into the formulation of legislation and the budget.

Freedom of Information
All parliamentarians and individual citizens must have the right to obtain it. Freedom of Information legislation should be amended to abolish conclusive ministerial certificates without subjecting exemption to independent adjudication.

Public access to information should be at no cost except for that entailed in printing the material unless a specific clause in the Official Secrets Act can be cited which excludes citizen access. This right must be safeguarded by a Federal (Justice) Ombudsman, as in Sweden, who is also bound by the Official Secrets Act but can act as the public eye on top secret security documents and procedures.

In Australia the general rule, as applied by all political parties at State and Federal level, is to deny the public access to information which is collected by public servants, paid for by the general public, and yet denied to the general public. The rules must be clear and, in short, government departments and local councils need to satisfy an Ombudsman that any withholding of information is justified under the provisions of the Official Secrets Act. FOI legislation around Australia is full of exemptions which accumulate over time.

FOI

All Party FOI Parliamentary Committee
The establishment of an all party FOI Standing Committee to publicly deal with FOI failure as reported by:

Parliament
the Auditor General
the Public Service
the Commonwealth Ombudsman
the Press and the public.

Legislation
Legislation to invoke meaningful sanctions against public servants who fail to:
(i) facilitate FOI in a timely, accurate and comprehensive manner
(ii) safeguard and facilitate the right of free speech for public servants.

Condition of Employment
FOI and Whistleblower Protection clauses to be a contractual obligation on public servants.

Commercial in Confidence and FOI
National Audit Office to establish benchmarks to invoke CIC.

Commonwealth Ombudsman to overview and adjudicate.

Legislation
Public consultation must become the norm in the formulation of major legislation. Those who, in the main, are affected by that legislation should be consulted and invited to have an input into the drafting of the legislation to be presented to Parliament.

Public Watchdogs – Bipartisan Appointment
High Court Judges are, in Australia, appointed by government, as are the Head of the National Crime Authority, the Chief Justice, the Auditor-General, Ombudsmen, police commissioners, and in the states where it exists, the Head of the Independent Commission Against Corruption or similar bodies; Royal Commissioners and Heads of Special Enquiries, the Head of the ABC, the Corporate Affairs Commission, Law Reform Commission, Administration Appeals Tribunal and a host of other watchdogs designed to protect the public interest. Even the House of Representatives Speaker and Senate President are government-controlled appointments.

Royal Commissions and Special Inquiries

When special enquiries are established, such as Royal Commissions, the terms of reference must be jointly agreed upon by an all-party Parliamentary Committee. Left to governments, terms of reference are narrowed excessively to limit enquiry, as was the case in the Cole Inquiry into the Australian Wheat Board (21) or the Wran Royal Commission which excluded ‘an inspection of corruption in the wider justice system.’ (22)
Note: In a personal interview with the NSW Chief Justice I (John Hatton MP) asked him face to face why he did not ask for an expansion of his very narrow Terms of Reference, and received no satisfactory answer.

Buying and Selling Democracy – He who pays the piper calls the tune
The democratic process has been corrupted by lobbyists who have the power and the money to do so. All major political parties charge for exclusive access to ministers – for example, those who can afford to pay a thousand dollars per plate for a party political fundraising dinner get this personal access. Public registers of pecuniary interests of elected representatives at all levels of government are kept but the guidelines must be set down by the Auditors-General, updated regularly, and most importantly, policed by the ombudsman (not politicians).

Auditors-General
Auditors-General, major independent watchdogs, must be appointed by a bipartisan process and have access to Cabinet documents.

Lobbyists and Preferment
Under guidelines set out by the Auditor-General, a register of lobbyists, a preferment register of special benefit, over and above the public benefit, gained by lobbyists, or gained by special interest groups and individuals, must be publicly available at all levels of government.

Donations and Party Records
A register lodged with the Auditor-General of donations and preferment given to political parties or individuals must be publicly available. Electoral participants must publicly publish, through the Auditor –General, detailed financial statements, including donations, the raising of party funds, the dispersal of party funds, including administrative and operative accounts of political parties, groups or individuals involved in the electoral process. Follow the dollar is the key. Those involved in the political process must be publicly accountable: e.g. financial records posted on the internet.
Political parties, groups and individual candidates are given generous election funding from the public purse, but are secretive to an alarming extent about levels of private support. The rules of disclosure are grossly inadequate.

Free Speech: Defamation Law Reform
Free speech is now severely limited by defamation laws which are designed to protect the rich and the powerful. There is a need to introduce a public figure test (as in the United States) so that those who are in a position of power (particularly those who are elected) can be subjected to wider public scrutiny and criticism to facilitate the general public’s ‘right to know’.

Rights and Responsibilities of Public Servants
There have to be legislative rights to protect the free speech of public servants when exposing corruption, mismanagement and wastage within departments, and to facilitate the general public’s ‘right to know’.

Whistleblower Protection
Contracts and conditions of employment of public servants must encourage and facilitate whistleblowers. Severe sanctions, including dismissal, must face those who fail to protect genuine whistle-blowers who expose or facilitate the exposure of corruption, mismanagement, wastage and unlawful secrecy. There must be balancing sanctions to discourage vexatious and frivolous complaints. A legislated right of public servants to speak out would help enormously.

Responsibilities, Obligations and Independence of the Public Service
Public servants must be held personally responsible for activity or inactivity in the area under their administration. This responsibility must be codified in law (as in Sweden) and administrators must be answerable to the Ombudsman and, where necessary, taken before the courts. In Sweden it is a criminal offence to interfere with the lawful performance of the duty of a public servant.

Similarly, ministers must be held personally responsible for the performance of their departments. The failure to be informed (deniability) is not, of itself, an acceptable reason for not upholding their responsibilities.

Procurement and Contracts
The open tendering process has all but disappeared even at the local council level. Negotiated contracts, often secret, are the rule at State and Federal levels. This is an ideal setting for favours, corruption, exclusion and unfair competition. At all levels of government, the Auditor-General is to provide guidelines controlling ‘commercial in confidence’ agreements and rules of procurement and contracts, to safeguard public interest. Even where commercial in confidence applies, details of contracts involving public money must be publicly available after a maximum period of twelve months, the decision to release or withhold public contract details being at the discretion of the Auditor-General.

What of the crocodile tears from both sides for brave men and women in the armed forces who gave their lives for freedom? In 1649 a barrister, John Cooke, son of a poor English farmer, bravely prosecuted Charles 1, King of England. It was the first trial of a head of state in history who waged war on his own people.

In 1649 the right to silence, the duty of lawyers to act free of charge for the poor, the right to freedom from tyranny, were guaranteed.
Not so now, over 350 years later.

(Incidentally, Cooke was ‘set up’ and executed in 1660.)

(1) Saul, John Ralston, The Unconscious Civilisation, Penguin, 1997
(2) ABC Four Corners, 13 February 2006. Dr Guy Dougal Pearse, a former Industry Assn. whistleblower alleged that insiders in influential public service positions connect with former insiders (who now work for The Industry Association, to the extent that the Association has access to draft Cabinet in Confidence briefing papers, even wrote some cabinet documents, submissions in whole or in part, helped determine cabinet policy on Greenhouse, had privileged access the Departments of Industry, Trade, Environment and Treasury going as far back as the Labor Government on alleged breach of The Crimes Act Guidelines and Codes of Conduct.
(3) ‘The Keating Government has a tenuous claim on legitimacy elected by default with less than 50% of the vote.’ Ted Mack, Canberra Times, 22 September 1991, p. 13
(4) SMH 9 March 2007, p. 1
(5) SMH Weekend Edition, 12 – 13 August 2006, p. 33
(6)

(7)SBS Jim Leher Newshour Debate, 22 March 2007
(8) SMH 10 February 2006, Peter Archer quoting PM Howard, ‘This does not mean that ministers bear individual liability for all actions of their departments. Where they neither knew or should have known about matters of departmental administration which come under scrutiny, it is not unreasonable to expect that the secretary or some other senior officer with take the responsibility.’
(9) Orwell G., 1984 quoted in SMH 14-16 April 2006
(10) Australian Auditor General (Ian McPhee)Report 2004/5
(11) ibid.
(12) SMH 7 March 2007, p. 5
(13) PM Howard as quoted in SMH 21 April 2006, p. 11
(14) op cit.
(15) SMH 14-16 April 2006, p. 23
(16) SMH 25 January 2007 Fol Editorial
(17) ABC Four Corners 13 February 2006
(18) SMH 11 February 2006, Fred Prata
(19) Margaret Mead
(20) George Williams, Anthony Mason Professor, Director, Gilbert and Tobin Centre of Public Law, Faculty of Law, UNSW
(21) SMH 14-16 April 2006, p. 23 Peter Harcher
(22) SMH 14-16 April 2006 Richard Ackland