This article is one of an occasional series of opinions by our members.

After the NSW election: Some reflections

Author: David Harper

(The Hon David Harper AM QC, former Judge of the Court of Appeal, Supreme Court of Victoria, Member of ART)

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The Baird Government in New South Wales has won a convincing victory. It has done so after exposing its plans to privatise the distribution of electric power. It is to be congratulated for telling the electorate what its intentions on a contentious issue were. Time will demonstrate whether the electorate has been told all that was necessary for a fully informed decision. For the moment at least, however, we can be grateful that, in an election, politicians have had the courage to put to the people a policy which, whatever its virtues – or their absence – was bound to be contentious.

A determination to tell the truth in an election campaign is rare. A determination to attack or obscure the truth is common. Unsurprising then that, after the campaign, promise and performance rarely match. Yet it need not be so. The majority of electors would surely not penalise a party whose only sin was being open and honest. Politicians who project a clear and inspiring vision, and who give voters the information needed if an informed decision is to be made, will sell even the hard decisions which good government sometimes needs to make.

That politics is not conducted in this way is a matter of real concern. Democracy itself is demeaned. We do not trust political parties to keep promises made during election campaigns. We know that many of those promises are unrealistic, and will not be kept. We feel trapped because those of each side will conceal more than they disclose, so that whichever way we turn the result will be a depressing disconnection between pre-election rhetoric and post-election reality. We also know that calling governments to account will be difficult because governments embrace openness when in opposition, only to hide from it when it is they who will suffer if maladministration is exposed. We see large donations being made to political parties, to individual politicians or to supporter cohorts, and our experience of life tells us that many of these are made in the expectation that the donor will receive an unjust advantage. We know that those who are pure of heart seldom have reason to be generous to the powerful. We also know that those who accept large donations will, at the least, be tempted to put the interests of the donor above any conflicting general interest.

The Accountability Round Table (“ART”), an entity which seeks to enhance standards of governance, believes that, with all its defects, democracy remains – by a very clear margin – the most desirable form of government. But if it is to sustain the support of the people, support which desperately requires sustenance, improvements are essential. And improvement will be impossible unless politicians accept that they must drive the process. It is the least they can do in exchange for our conferral of power upon them.

It is with these considerations in mind that ART asked each of the major parties contesting the NSW election to publicly give certain pre-election commitments. The requests and responses are on ART’s website. One of these was that the powers of the Independent Commission against Corruption not be diminished. That commitment was given. Another was that all information about government be freely available unless there was an overriding public necessity to preserve confidentiality. The Government responded by pointing to its record but without giving a specific commitment for the future.

A third set of commitments sought by ART was to principles which should underpin all democratic decision-making. Only when they do will trust in politics and politicians be restored. Those commitments included one to enshrine in legislation specific recognition of the legal and ethical principles that:

  • public office is a public trust, and
  • holders of public office must, in exercising the powers entrusted to them, give priority to the public interest over any other interests.

Consistently with this, ART also sought an undertaking that politicians would advance the public interest before any personal, sectional or partisan interest. A small minority gave that undertaking.

The Baird Government responded to ART’s more general request by saying that it “wholeheartedly shares and supports the principle that public office is a privilege and that the exercise of power as a public office holder should and will always be made in the public interest.”

Ultimately, of course, what matters is what our representatives do. Making promises to act in accordance with specified ethical and legal principles is one thing. Acting in accord with them is quite another.

But the principle that public office is a public trust provides very important guidance in resolving such conflicts. It up to the electors to ensure that it is honoured by those whom they elect.

David Harper.