Tony Fitzgerald, QC
“Swansong” Speech 1100 am Monash University Law Chambers
The Accountability Round Table:  Button – Missen Awards Launch

Much as I dislike speaking on public occasions, it’s a privilege & pleasure to be here this morning with my colleague of many years, the Hon. Tim Smith QC, & his distinguished associates at the Accountability Round Table including, in random order, the Hon. Race Matthews, the Hon. Ken Coghill, the Hon. Alan Hunt, Professor David Yencken, Ms Julia Thornton, Ms Prue Innes, Mr Bruce Grant & Mr Barry Everingham.

Tim and I first met almost 30 years ago as part-time Australian Law Reform Commissioners. Since then, he’s had an illustrious career as barrister & Supreme Court judge while I’ve periodically re-discovered how easy it is to attract unwanted controversy. I hope to avoid that today in this, my swansong, by noting that my comments are not directed to individual politicians, a specific political party or politics in a particular State & my opinions are simply those of an extremely fallible aging private citizen with children & grandchildren who is interested in Australia’s future.

The American author Norman Mailer suggested that democracy is “a state of grace that is attained only by those countries which have a host of individuals not only ready to enjoy freedom but to undergo the heavy labor of maintaining it.” A non-partisan group of academics, lawyers, former politicians, journalists and authors took up that challenge in 2006. Because of their concerns about the erosion of honesty and integrity in our political and governmental processes, especially Parliament’s diminishing control of the Executive, & the cynicism that infects media and community attitudes to politics & politicians, they formed The Accountability Round Table to promote open and accountable government in Australia. In the brief period since its formation, The Accountability Round Table has produced papers in connection with the Victorian and federal elections containing detailed proposals to improve executive accountability, including a revision of the former Commonwealth Government’s Code of Ministerial Conduct,  & has made submissions and given evidence to inquiries by governments, parliaments and Law Reform Commissions.

Today’s event relates to a fresh Accountability Round Table initiative. Before saying more of that, I propose to say something more – for the last time – of my pessimism about the increasing domination of Australia’s public life by the small self-interested groups who control the major political parties, who increasing seem unconcerned that their political authority is held for the benefit of the Australian public & that their duty is to govern in the public interest, not for political advantage.

A harmonious civil society rests on essential pillars, including individual freedom, non-discriminatory equality, the rule of [just] law, the distribution of power & effective checks & balances. Moreover, as Chief Justice Warren of the United States Supreme Court pointed out many years ago “Law ….. presupposes the existence of a broad area of human conduct controlled only by ethical norms and not subject to Law at all.” That aphorism sits uneasily with the realities of 21st century Australian politics.

However, until official misconduct becomes sufficiently egregious & notorious to overcome community cynicism & generate public outrage, few Australians seem troubled by, or even interested in, structural & systemic flaws in our political process & public administration. Citizens who are not directly affected by a law or official action or decision are generally more concerned with day-to-day financial and other personal considerations than with the misuse of power or the impact of injustice on others.

This general apathy is not really surprising. Life is good for most Australians. Most have family & other priorities which distract them from matters which don’t directly affect them personally. Few crave power or understand those who do. Like the Trojans who disregarded the warnings of Cassandra, the beautiful daughter of King Priam who’d been cursed by Apollo, most of us are also reluctant to confront major problems which we’d prefer to ignore. Our unwillingness to act on scientific warnings about global warming & its potentially disastrous consequences provides a dramatic current example.

Communal inertia is also magnified by Australia’s anachronistic, rudimentary political system, which is based on flawed assumptions that democracy is synonymous with majority rule & that, because parliamentarians are elected, parliamentary decisions express the popular will. The first proposition disregards the fundamental democratic prohibition on the majority oppression of individuals and minorities. The second proposition ignores the realities of modern party-political decision-making, with rigid party discipline ensuring that, with few exceptions, parliamentarians vote as directed. A few years ago, the then prime minister praised “the uniqueness of the Australian system”.  What is unique is our virtually pristine version of theoretical parliamentary sovereignty, although in practice under executive control, unfettered by constitutional constraints, international law or universal human rights. By & large, our laws are valid even if they are contrary to the public interest or unjust. Voters are little more than observers to a substantially rule-free contest who are entitled, indeed compelled, to choose one or other of the established political parties to govern every few years.
The community is ill-served by this escalating transfer of power from the public to the dominant political parties & the parties’ disinterest in ethical constraints & resistance to oversight & accountability, even by independent anti-corruption bodies. Without satisfactory legal & ethical fetters, the political process, like all human constructs, can be, and is, manipulated and exploited to advance personal and group interests. A political class has evolved which is interested in little but the acquisition and exercise of power. Careerists with little or no experience outside politics learn their craft in party administration, politicians’ offices and supporters’ organizations prior to party pre-selection and entry to parliament. Small groups control each of the two major parties and indirectly the national destiny. It is now extremely difficult, if not impossible, for another competitive political force to emerge because of the financial advantages held by the two major parties and the critical role that money plays in political activity.  Whichever party is in government, with effective parliamentary control, can, and routinely does, indulge its adherents, supporters and ideology. Well-connected, often wealthy, individuals & groups are given access to and influence over the political process. Decisions favouring special interests are common. Secrecy and misinformation (euphemistically called ‘spin’) are routinely employed by politicians. “Media management” insults and confuses the electorate, which is denied the comprehensive accurate information which is essential to the proper functioning of democracy. Most, if not all, conventions concerning standards of political conduct which the Westminster system once incorporated are now obsolescent, bi-partisan support for fundamental institutions is periodically abandoned for political advantage and social division, populism and prejudice are occasionally used as political tools. The prevailing political culture is increasingly amoral, with each party lowering its standards, exploiting gaps in the law & disregarding ethical standards in order to compete: ‘whatever it takes’ – ‘winner takes all’.  Because all parties grasp opportunities when in power, opposition criticism of government self-indulgence is generally muted and the risk of an electoral backlash is low.  Changes in government because of the misuse of power occur only in exceptional circumstances.

These short-term political practices & tactics risk serious social problems in the longer-term. Public figures are role models and their standards percolate into the community. Social capital & social cohesion built on integrity & trust are easily dissipated as the population increases, communities become larger and more diverse and economic disparities widen. People who consider themselves powerless outsiders readily become disillusioned, cynical, apathetic & disengaged & lose trust in government, the integrity of its process & decisions & even fundamental institutions. Principled leadership is essential to preserve our confidence in and support for each other.

Today’s event relates to a new Accountability Round Table initiative which is directed to advancing principled political leadership. The members of The Accountability Round Table have elected to be more than mere critics. Not all politicians are mere party hacks seeking power & perks; some are honourable citizens motivated by a commitment to public service. The Accountability Round Table intends to encourage & support politicians who promote the public interest by practising & insisting on honesty, integrity & Executive accountability, & to challenge the cynicism that infects media and community attitudes to politics & politicians. It has selected as standard-bearers the late Senators John Button and Alan Missen.
Senators Button & Missen were both first elected in 1974, the former representing the Labor Party & the latter representing the Liberal Party. Neither had been schooled in political chicanery in some ministerial office or factional headquarters. Both were lawyers &, as was more common then, each brought his professional ethics & wide life experience with him to Canberra. Senator Missen died in office in 1986. Senator Button retired from the Ministry & the Senate in 1993 & died in 2008. Each was highly regarded and respected by his contemporaries as an exceptional politician of integrity who discharged his office in accordance with the values, purposes and duties for which he held power.

When Senator Missen died, the Liberal Party was in opposition & Senator Button was Government Leader in the Senate. He described Senator Missen as “an outstanding Parliamentarian who made a great contribution to his political party, this Parliament & our country”, “a warm human being of many talents” & “a refreshing free spirit”. Another Labor senator from Victoria, Gareth Evans, then Minister for Resources & Energy, described Senator Missen as “absolutely, unequivocally & uncompromisingly an idealist”, who “ believed intensely and passionately .. in an immense variety of humane and worthy ideals and causes, .. fought valiantly and heroically against abuses of civil liberty wherever he found them” & “for decency and respect for human rights and for justice, not only in a long list of individual cases but also in the way in which institutions and systems of government operate.”

Senator Button was also eulogised by both sides of politics but his own words provide a suitable brief epitaph. In late 2008, a few months before his death, he wrote to his colleague Senator John Faulkner during the lead-up to the last federal election expressing optimism about Labor’s prospects & adding: “I don’t know what your intentions are but I hope you will stay on, win a spot in the Ministry and take on the vexed question of Parliamentary reform, accountability in government, and honesty of Ministers (no snouts in the trough!).” Like Senator Missen, Senator Button was an idealist, albeit one with commendable scepticism & vision.

The Accountability Round Table is encouraged by its progress so far although progress has been slow with legislation routinely blocked in the parliament. Reform is always difficult. Vested interests whose activities might be adversely affected inevitably oppose reform strenuously. Political reform is especially difficult because it must be endorsed by politicians who control and benefit from the current system, dominate the national conversation & have little or no inclination to concede part of their power. Without public insistence on a bi-partisan commitment to principled politics, political reform might be impossible. Nonetheless, “the heavy labor of maintaining [democracy]’ is an essential endeavour. I commend the ART for it admirable work

As part of its efforts, The Accountability Round Table proposes to award Parliamentary Integrity Awards named in honour of Senators Button and Missen. The awards are to be given to politicians who demonstrate honesty, civility, independence or political courage, while supporting transparent and accountable government, good parliamentary practice, and protecting people’s political and civil rights. Back-benchers are eligible for the Missen Award and Ministers, Parliamentary Secretaries or Opposition frontbenchers are eligible for the Button Award.
I’m optimistic that, in time, The Accountability Round Table will attract the broad support its objectives deserve. In the meantime, The Accountability Round Table Button/Missen Parliamentary Integrity Awards are a significant step on the path to necessary reform. I’m pleased to announce & commend those awards for public support.

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Stateline Friday, March 12, Accountability Awards, Tony Fitzgerald & Justin Madden

Stateline Friday, March 12, Tony Fitzgerald’s Swansong Interview

ABC PM – Fitzgerald swan song: Australian democracy is bent

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