Reforming the Policy Processes of our Democracies [1] “Principles to guide policy reform – can Plato show the way?”

Paper presented by Hon Tim Smith QC,  at Melbourne University School of Government Conference , “ Democracy in transition”, 7 December 2015


The challenge of reform

How should we go about reforming our Democracies’ policy processes? The way we should go about reforming all government process?

It involves exploring the nature and purposes of Democracies and identifying the principles that should best serve them and should guide the reform process.[2].

A policy framework for the reform of the policy processes of our democracies?

So what are the nature and purposes of our democratic governments?

Can they be better put than – “government of the people, by the people, for the people”?

And what are the principles that best serve our democratic governments and should guide the participants in this reform process?

I wish to initially focus on that issue.

Guiding principles?

In the recent Queensland election campaign, the Hon. Tony Fitzgerald QC, AC[3] sought from those seeking election commitments to the following principles;

  • Govern for the peace, welfare and good government of the State;
  • Make all decisions and take all actions, including public appointments, in the public interest without regard to personal, party political or other immaterial considerations;
  • Treat all people equally without permitting any person or corporation special access or influence; and
  • Promptly and accurately inform the public of its reasons for all significant or potentially controversial decisions and actions.

I submit that these individual principles give effect to, and are supported by, one fundamental principle that should guide all the participants in our democracies – those holding public office, those assisting them and we the people. The principle is the “public office public trust principle”.

It is a simple ethical principle based on the proposition that where you entrust another with power over you and your affairs, that person is obliged to exercise those powers for your benefit not their own. It can be traced back to Plato. Translated to the operation of democratic governments, our elected and non-elected public officers are entrusted with power, and substantial sums of our money, to make decisions of enormous significance for the present and future for us and following generations. The public office public trust principle requires that when making decisions they must put the public interest first and in priority to their personal interests and other private interests.

It is also a legal principle – part of our common law.

The legal position was recently described by Sir Gerard Brennan, the former Chief Justice of the High Court, in his speech at the presentation of the ART Commonwealth Parliamentary Integrity Awards for the 43rd Parliament. He said[4]

“It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public”[5] and “undertakes and has imposed upon him a public duty and a public trust”.[6] The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee.[7]

Turning to the question of enforcement, he said (p5):

“True it is that the fiduciary duties of political officers are often impossible to enforce judicially; the courts will not invalidate a law of the Parliament for failure to secure the public interest[8] – the motivations for political action are often complex – but that does not negate the fiduciary nature of political duty. Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry “whatever it takes” is not consistent with the performance of fiduciary duty.”

This is not the occasion to explore the scope of the legal principle and its application in our legal system. Examples include the development of administrative law, the common law criminal offence of misconduct in public office[9], sentencing law, and contract law. Where unfettered statutory discretions are given to ministers such as planning ministers, the common law requires that the ministers comply with the principle. The key IBAC legislation definition of “corrupt conduct” includes “knowingly or recklessly breaching public trust”[10].

 What we have is a unique and very special fiduciary relationship embracing the whole community, a mega Public Trust, in which our elected representatives and the public service are our Public Trustees charged with responsibility for the day-to-day and long-term administration of that Trust and we, the people, are the beneficiaries. One of its distinguishing features, however, is that where the trustees fail the beneficiaries, for example, in developing policy or in addressing breaches of the Public Trust , we, the beneficiaries, cannot generally turn to the courts for assistance because of the separation of powers between the three branches of government and, as a result, the buck stops with us. That is our ultimate responsibility in this mega Public Trust.

Are there reforms of the policy processes of our democracies that need to be addressed?

The state of our Democracies?

Valuable light has been shed on this issue by The Hon Barry Jones in lectures he has given (including one for Ican[11]), and the Hon Lindsay Tanner and Michelle Grattan in delivering Integrity in Government Lectures for the Accountability Round Table (ART) and the Melbourne University Law School Centre for Comparative Constitutional Studies[12].

Between them, they have identified a large number of changes in the way our members of Parliament have been conducting themselves and thereby causing damage to our democracies particularly in the policy area including the following[13]:

  1. An absence of meaningful debate of public policy”; resulting from
  • a shift in the political debate from the rationalism of the 80s and 90s to the populism of the late 1990s onwards;
  • seeking advice only from people who will support the Party narrative – the full evidence is not considered;
  • reliance on surveys and focus groups
  • the growing switch from public campaign meetings to intimate fundraising dinners as the pursuit of funding has increased; grown
  • “the bear pit of question time”;
  • a decline in the ability to debate major issues and defend positions;
  • failing to attempt to justify broken promises.
  1. Deception:
  • lying to Parliament, no longer a resignation offence and, to the people, no longer seen as a serious matter;
  • the continuous election campaign involving “half-truths” and “exaggerations “;
  • the development of the “spin industry”;
  • the lack of transparency of political fund-raising and the devices used to avoid the inadequate regulation that is in place;
  • reliance on invented narratives.

There should be added to those concerns, the ever increasing secrecy of our governments.

What have been the direct causes? [14]

  1. Professionalization of the political trade? In the 80s, the majority of members of Parliament came from careers other than politics. Since the mid to late-90s that has reversed.
  2. The development of major party Factions? The result has been a focus of those in politics on what will sell and “what will my faction want”, not “what is in the public interest”.

Considering each of the above developments and direct causes, do they not involve breach of the Public Office Public Trust principle or a failure to honour it?

What has allowed such changes to occur?

There was a time when it was common to refer to the principle in assessing and passing judgement on the actions of those entrusted with power to govern. About 100 years ago Maitland complained

“Open an English newspaper, and you will be unlucky if you do not see the word “trustee” applied to the “Crown” or to some high and mighty body. I have just made the experiment, and my lesson for today is, that as the Transvaal has not yet received a representative constitution, the Imperial Parliament is “a trustee for the colony” ”.[15]

But until recently (when Fairfax Media took up[16] the issue), the Public Office Public Trust principle had, for many years, disappeared not only from political and social debate but from our community’s consciousness. As a result it has not been in our consciousness to guide us, or our members of Parliament or our democracies.

Several people[17] have been aware of it and have written and spoken about it including Hon Paul Finn, Chief Justice French and former Chief Justice Gleeson and Dr Solomon. I was not aware of it until it was brought to my attention six years ago by Prof Coghill. The vast majority of people I have spoken to about it have not been aware of it. Those most likely to be aware of it studied philosophy not law or government. Since becoming aware of it, I have attempted to explore its significance and the impact of our loss of consciousness of it.

 The principle over the last 50 years

It was not being talked about in the 1970s and 1980s but those public officers we elected, and the public service, by and large still appear to have seen their jobs as ones where they had to focus on, and give priority to, the public interest – for example, consider the bi-partisan approach taken in the to refugees in those years and the major economic reforms of the 1980s.

The Hon Fred Chaney, for example, in his inaugural Government Integrity Lecture[18] spoke about the complex conflict of interest and values, problems that members of Parliament brought with them to their office. He identified as the principle that will enable them to find their way through those conflicts, placing the public interest first. In doing so he was giving effect to the Public Office Public Trust principle, but he did not cite it.

Compare that to the approaches taken by our Members of Parliament in recent years in their decision-making and their treatment of us, the beneficiaries of the Public Trust. At the 2012 Woodford Festival, for example, Malcolm Turnbull frankly commented that it has never been easier for parliamentarians to lie and that parliamentarians treat us with contempt. He expressly included himself among the parliamentarians.[19] This is the antithesis of the way fiduciaries should behave to their beneficiaries.

 I suggest that there is a correlation between the changes that have occurred over time and the ever increasing loss, over time, of our community’s awareness of the Public Office Public Trust principle, the last vestiges disappearing through the 1990s.

I also suggest that the vast majority, if not all, of the concerns we have about the state of our Democracies flow from the fact that for many years we, together with our elected representatives and public servants, have not been aware of the Public Office Public Trust principle.

And what of our disengagement from our democracy that Lindsay Tanner referred to in his lecture[20]. Would we have disengaged to the extent we have if we were all aware of the Public Office Public Trust principle and appreciated that in our Mega Public Trust, if our Public Trustees are breaching it or ignoring it, or failing to take steps to address such behaviour when action is needed, the ultimate responsibility rests with us, the beneficiaries?

 What can and should be done?

What can we do? We have been seeing an ongoing loss of the people’s trust in our elected representatives with voters directing their votes away from the major parties. We are also seeing more people seeking election as independents. But more is needed. We need those who can, to join, and be active in, political parties.

But what will guide us all? We need to have restored as quickly as possible to our collective consciousness the guiding principle – that public office is a public trust.

How can we best do that? For a start, when the media, and when we, are discussing the conduct and performance of our public trustees, the standard we should apply is the Public Office Public Trust principle and we should refer to it in any such discussion. It also should be a subject that is taught in all schools and universities. There is also a special opportunity, of which most Australians are unaware and which we have been very slow to grasp.

A new and special opportunity

On 17 November 2015 the Commonwealth Government published on its website that it had committed to proceed with Australia’s 2013 application to join the Open Government Partnership (OGP).

The OGP is an international body established in 2011 by Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom and the USA. It now has 69 participating nations.

Australia was invited to join in 2011 and did so in May 2013. Work began on the required 2 year National Action Plan but was not, for some 2 ½ years, pursued with the people of Australia.

On 17 November 2015, however, the present Commonwealth government also published on its website a proposed program for developing Australia’s first National Action Plan in partnership with the community.[21]

If you are not aware of this development, you are not alone. There has been no attempt by Government to publicise it and the traditional media had not picked it up – until recently and briefly.

The OGP has detailed Articles of Governance.[22] They describe the background and objectives and the detailed structure of the OGP under which the national governments of member nations undertake to enter into a partnership with their citizens to

  • “promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance”[23]
  • involve and consult with the community in that process
  • and undertake to develop two-year action plans, which are to be “ambitious”.

There is also within the OGP, a substantial worldwide support unit to assist civil society groups and individuals who wish to participate in the OGP and in their national partnerships in addressing their obligations under the OGP.

The OGP also requires mid-term and end of term self-assessment reports by the participating governments and provides an Independent Reporting Mechanism (IRM) to complement the participating government’s self-assessment report.[24]

The result is that we, the people of Australia, have been provided with a substantial and effective framework (our A0GP) in which we can engage with the Commonwealth government, re-engage with our Commonwealth Democracy, and so be involved, in particular, in resolving our Democracy’s problems and their causes, including threats to its integrity.

Relevant material about the AOGP and what has been, and is, happening can be found on the AOGP website[25] and Peter Timmins Blog, “Open and Shut”[26].

You will see that the government has already set in train the preparation of Australia’s National Action Plan. It has published a proposed multi-stage process for the development of Australia’s National Action Plan.   The first stage began on 17 November 2015.

What has been provided is a system which, if honoured by the participants, should serve Australia well. But the success of this new partnership will depend on all the participants in the Partnership adopting the Public Office Public Trust principle as their guiding principle; for, it will help to ensure that all participants in this new partnership will approach their task on the basis that each National Action Plan it is to serve the public interest and to do so in priority to any personal interests or other private interests.

The OGP framework and guiding principles will encourage that approach. For it will help to ensure that

  • the people of each nation are informed and will be involved in consultation with the Public Trustees and
  • that the Public Trustees will be better informed and assisted to take into account all they should in determining what will best serve the public interest.

This will be particularly important where the public trustees find themselves unavoidably in a conflict of interest position, particularly when considering reforms to the Commonwealth government integrity system (for example, the operations and powers of anticorruption bodies or whistle-blower protection or freedom of information system). It will also be particularly important where their personal interests are unavoidably more directly involved and in conflict with the public interest on policy issues such as the transparency of political fundraising and lobbying.

We are very fortunate to have this new and special opportunity. Let us ensure that we all rise to its challenge.

Footnotes:

[1] Paper presented by Hon Tim Smith QC, 7 December 2015. at School of Government Conference , “ Democracy in transition”, 7 December 2015.

[2] Cf   reforming central processes of the judicial branch of government – Australian Law Reform Commission ALRC, Report No. 38, Evidence, chapter 3; and ALRC Report No 102, 2.45 – 2.70

[3] In conjunction with the St James Ethics Centre and the Australian Institute http://www.tai.org.au/content/accountability-push-ahead-queensland-poll

[4] P.3, https://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/

[5] (quoting Higgins, J. in R v Boston (1923)33 CLR386, 412)

[6] ibid408

[7] citing Rich,J in Horne v Barber(1920)27CLR494,501

[8] citing United Steamship Co of Australia Pty Ltd v King (1988) 82 CLR 43 at 48; In para 16 of the judgement it is stated:

“16. These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v. Road Carriers (1982) 1 NZLR 374, at p 390; Fraser v. State Services Commission (1984) 1 NZLR 116, at p 121; Taylor v. New Zealand Poultry Board (1984) 1 NZLR 394, at p 398), a view which Lord Reid firmly rejected in Pickin v. British Railways Board (1974) AC 765, at p 782, is another question which we need not explore.”

[9]  Lusty, D. “Revival of the Common Law Offence of Misconduct in Public Office” (2014) 38 Criminal Law Journal 337. https://www.accountabilityrt.org/?s=Lusty And see generally Smith T., Integrity in politics? Public office as a public trust? Is there hope? –https://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf ( note p11 and discussion of Magill v Porter ; also Smith T, Government Secrecy and Urban Planning – The Forgotten Trust and Reform, http://www.accountabilityrt.org/government-secrecy-and-urban-planning-the-forgotten-trust-and-reform/

[10] See Independent Broad-based Anti-corruption Commission Act 2011, S60,s3(1) and S4

[11] In lectures he has given recently including one to for Ican (ican2014@bigpond.com.,au), an independent network established by a member of ART, Carmel Benjamin. . Its aims are to

  • “Engage , members of the public in active , non-partisan support for the principle of public, office public trust”.
  • “Advocate for a corruption free government of integrity and accountability”.

For Barry Jones’s speech; – https://www.accountabilityrt.org/barry-jones-whats-wrong-with-democracy/ Barry Jones .

[12] Delivering Integrity in Government Lectures for the ART and the Melbourne University Law School Centre for comparative Constitutional Studies; https://www.accountabilityrt.org/integrity-lectures/

[13] Discussed in more detail in T Smith “Australia’s Democratic governments; a proud history, their present state and future”; https://www.accountabilityrt.org/australias-democratic-governments-a-proud-history-their-present-state-and-future/

[14] See discussion by Barry Jones – above; and 2 other papers – “Political recruitment in Australia – Why do we not trust our leaders and politicians?” ( 9/5/2013) and “Gough Whitlam’s vision of social democracy with a focus on parliament and party” ( 4/11/2015) available at

https://www.accountabilityrt.org/barry-jones-on-democracy-in-australia-two-papers/

[15] F.W.Maitland, “Trust and Corporation” in Collected Papers (CUP, Cambridge, 1911) Vol 3, P403 –

[16] Michael Short, http://www.smh.com.au/national/protecting-the-public-is-key-to-resolving-conflict-of-interest-among-politicians-20141114-11mn6d.html.; http://www.theage.com.au/comment/the-age-editorial/the-political-price-of-betraying-public-trust-20150206-138e6b.html;   and see, Ms Gai Brodtmann, Member for Canberra, Shadow Parliamentary Secretary for Defence, http://www.canberratimes.com.au/national/public-service/a-matter-of-public-trust-measuring-how-government-performs-20151003-gk0omx.html#ixzz3wMuDO1Bw .

[17] For references and other exampleshttps://www.accountabilityrt.org/wp-content/uploads/2009/11/Smith-T-2014-Lyceum-U3A-Speech-final-_3_.pdf, pp ; pp 10-18

[18] https://www.accountabilityrt.org/inaugural-art-lecture-fred-chaney-integrity-parliament-where-does-duty-lie/

[19] http://www.youtube.com/watch?v=VTOtpzMelyI

[20] see link in footnote 12 above.

[21] http://ogpau.govspace.gov.au/introduction/

[22] http://www.opengovpartnership.org/Articles

[23] Op cit. , p2

[24] http://www.opengovpartnership.org/independent-reporting-mechanism

[25] https://ogpau.govspace.gov.au/

[26] http://foi-privacy.blogspot.com.au/search/label/Australia.%20Open%20Government%20Partnership.#.VouxB-9umbw