ACCOUNTABILITY ROUND TABLE INTEGRITY AWARDS
Parliament House, Canberra, 15 October 2019
K M Hayne
May I, too, offer my congratulations to Speaker Smith and Ms McGowan on the awards the Round Table make today. As you have heard, the awards rightly focus on individual commitment to integrity and each is to be congratulated and admired for so conducting themselves in this place as to deserve the awards that are made.
Personal integrity is guided by standards of eloquent simplicity: honesty and courage. The words are simple, yet point to basic truths.
That personal integrity demands honesty is self-evident. And honesty demands courage. It demands courage because compromise, in pursuit of some apparent immediate advantage, always beckons. It demands courage because ends may be thought to justify the means used to achieve those ends.
In public life, as in private life, an individual’s reputation for acting with integrity, once lost, will seldom be recovered. In the fields of legal practice with which I am most familiar, mislead or deceive once and nothing you say or do will thereafter be taken at face value. And so it is, I think, in almost all forms of human interaction, private and public, honesty is rightly expected. Fail to meet it and trust is lost.
Honesty often demands that we accept the possibility of error and that we acknowledge that the view we form about an issue is not the only view reasonably open. Recognising and accepting that we may be wrong and that there are competing points of view are steps that require courage. They require courage because acknowledging that there are competing views, let alone accepting that they may be right, entails that you recognise that your chosen conclusion must be explained and supported by reasoned argument. And none of us likes to be told that our reasoning is shallow or illogical or erroneous. But we run that risk the moment we expose the argument that leads us to the conclusion we have expressed.
A few months ago, in the course of a speech considering why we have as many calls for Royal Commissions as we now do, I suggested that reasoned debate about issues of policy are now rare and that trust in all sorts of institutions, governmental and private, had been damaged or destroyed. I suggested then that Royal Commissions may be being used as often as they are because they stand apart from other methods of policy development. What should set a Royal Commission apart is its perceived independence and neutrality coupled with conducting proceedings in public in order to yield a reasoned report.
If I am right to think that trust in institutions has been damaged or destroyed, we must consider what the increasingly frequent calls for Royal Commissions are telling us about the state of our democratic institutions. Has trust in the political processes been damaged? If it has, what can we do about it?
No doubt individual actors in those processes must have the courage to act and continue to act with complete integrity. Individual integrity is essential for maintaining, or (if restoration is needed) restoring, trust.
But it is necessary to ask whether some additional measures may be desirable, even necessary, to maintain or restore trust. More particularly, do we need to examine more closely the ways in which policy is formed, explained and then given effect?
Notice that I divide the issues in three: how policy is formed; how the policy that is formed is explained and justified; and how the policy is being applied.
Let me look at the end of the process – how policy is applied.
Individuals and entities affected by particular policy choices usually focus only on how the policy has applied to them. That is, they focus only on the outcomes for them. Their assessment of an outcome will be by reference to general notions of what is right and what is fair. If they think that they and others have been dealt with in ways that are not right or are unfair, they will want to know why that has happened.
If individuals or entities think what has happened to them is unfair, does the law permit them to be treated in that way? Perhaps the law is wholly silent about dealings of the kind in question. Perhaps the law has not been enforced effectively. But perhaps what has happened reflects a policy choice that was made and enacted.
If there was a policy choice, why was it made? This takes us back to the second step I identified earlier – how was the policy choice that was made explained and justified? Can the individuals or entities who now say that the law is unfair look back and find out why the policy choice was made as it was? Or are they left to scour the barren deserts of competing slogans deployed as if they provided complete justification for what was done? What will slogans reveal about what policy choices were made and why?
If people cannot find out why they have been dealt with in a way that they think is wrong or unfair, they will rapidly lose trust not only in those who have inflicted the wrong upon them but also upon those whom they think should prevented it happening. And they will often place government high in the list of those who could, or in their eyes should, have prevented this unfair outcome happening.
Development of policy is almost always very hard. It is hard because, much more often than not, there are competing considerations pulling in diametrically opposed directions. And because there are competing considerations, choices must be made.
Yet it remains an essential role of government to explain to the governed why it takes the steps it does. It is essential because, if governments do not do this, trust in the institutions of government is damaged or destroyed.
Explanation is often difficult. It is difficult because spelling out an argument simply and persuasively is hard. And it is all too easy to treat simplicity and persuasion as demanding reduction of the argument to some conclusory proposition cast in terms that appeal to or rely upon universally desired objectives like a strong economy, supporting the family, or keeping the nation safe.
There cannot be a hint of criticism about pursuing those objectives but demonstrating how a particular measure supports the objective demands more than bare assertion. There is always an intermediate step which connects the measure in question with the desired end. Identifying and explaining how a measure contributes to achieving an end like “strong economy”, “supporting the family” or “keeping the nation safe” is no easy task. Not only is it not an easy task, it demands honesty and courage. It demands those qualities because it demands honest acknowledgment of choice and the courage to lay out, for the world to 6
examine and criticise, the argument that supports the conclusion that was reached.
If you seek a model of the kind of argument I have in mind, go back and look at the submissions that were made to Cabinet in 19651 and again in 19672 about what was to become the Constitutional Alteration (Aboriginals) Act 1967. Those submissions laid out in elaborate detail the arguments for holding a referendum to amend constitutional provisions referring to Aboriginal Australians. And the submissions identified the arguments that were later placed before the voters before the referendum which so decisively3 made the amendments to s 51(xxvi) and s 127 of the Constitution. (See footnotes at the end.)
We readily accept that electors should not be asked to consider constitutional amendment without articulation of the arguments for and against the proposal. Are we at a point where we need to think again about how we are recording and publishing why policy choices embodied and reflected in legislation were made as they were?
We have long required judges to state their reasons for decision. More and more we require administrative decision makers to give reasons for decision. Are there some analogous steps that the political branches of government, and in particular the legislative branch, should consider taking?
To take any step of that kind will require honesty and courage. It will take honesty to recognise that there may be a problem and courage to devise means for dealing with it. It will take honesty to recognise that slogans may sell, they do not persuade. It will take courage to recognise that slogans sell by appealing to emotion not thought or reason. It will take courage to engage with facts and issues knowing that their depth and breadth cannot be reduced to, or explained by, a series of sound bites that capture a single 24 hour news cycle. It will take courage, in the world as we now know it, to engage with facts and issues rather than pursue the path to populism.
Honesty and courage are needed if we are to maintain trust in our institutions. Maintaining trust may require the legislature to explain better than it now does what policy choices are made in the law it enacts and why they were made as they were.
If trust has been lost or has been damaged, we can hope to repair it only through qualities of the kind we celebrate with the awards that are made today. And central to the criteria for those awards are what I earlier called standards of eloquent simplicity: honesty and courage.
1 Cabinet Submission 660, 22 February 1965 and Cabinet Submission 1009, 23 August 1965, Attorney-General Snedden. See: https://indigenousrights.net.au/resources/documents/cabinet_submission_660,_22_february_1965 https://indigenousrights.net.au/resources/documents/cabinet_submission_1009,_23_august_1965/page_1
2 Cabinet Submission 46, January 1967, Attorney-General Bowen. See: https://indigenousrights.net.au/resources/documents/cabinet_submission_no._46,_january_1967
3 By majority in all States with more than 90% of the votes cast supporting the amendment.