SECTION 1. UNPACKING THE RULE OF LAW, ACCOUNTABILITY AND THE PUBLIC TRUST
1. WHAT IS THE PROBLEM?
The Rule of Law involves the requirements that officials must exercise only those powers that have been entrusted to them. To be accountable they are required to demonstrate that they have used their entrusted power in approved ways only for the purposes for which they were empowered. Over several years there has been increasing community concern that the institutions and culture that have underpinned these requirements and obligations have weakened and been subverted. As a result, the public’s trust in our democracy and institutions has been seriously eroded. The Australia Talks National Survey conducted by Vox Pop Labs provides grim reading in counting the views of Australians towards the political leaders who are supposed to account to them for the use of the people’s power that has been entrusted to them. The general problem has been documented (and counted).
One of the more notable well-documented instances was the attitude of the former Attorney-General, Hon Christian Porter, towards the rule of law and accountability. In March 2021, accusations were made against him. The NSW police started an investigation but closed the case citing insufficient admissible evidence. Other forms of inquiry were suggested, including an investigation of Mr Porter’s fitness for the office of Attorney-General. Mr Porter denied the allegation and claimed that standing down or resigning because of an allegation would be contrary to the rule of law. It would mean he said that, “any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.“ Many eminent lawyers took issue with these claims. Even more seriously, his view of the rule of law contradicts the key tenet of our democracy. Ministers are accountable to parliament which has the right to make any enquiries it sees fit to determine whether it retains confidence in ministers. It is a central part of our democracy that a minister’s career may come to an end merely because someone else is preferred by their electors, the Parliament, the Party or the Prime Minister (PM).
The increasing evidence of gaps in accountability and threats to the Rule of Law amount to a crisis. In response to this emerging crisis illustrated in this glaring example, the Accountability Round Table has produced this issues and discussion policy paper to emphasise the nature of, and relationship between, the rule of law, accountability and public trust. We aim to emphasise the serious shortfalls in governments and attendant institutions in all three areas and how we, and all Australians, might address them to produce better governance for all citizens.
2. REFORM IS NOT ONLY ABSOLUTELY NECESSARY BUT ENTIRELY POSSIBLE.
Much of this Policy Paper gives account of existing accountability institutions that operate collectively as a “National Integrity System” – which has been assessed twice as part of nationally funded research projects. In this Paper we will highlight existing accountability mechanisms, their failures and how they can, and must be, improved. In many ways the present picture is grim. Public perceptions may be even grimmer; with Australia Talks reporting on casual questioning that 56 per cent of the 60,000 responders agreeing that “Australian politicians are often corrupt”.
Despite plumbing the rum-soaked depths of our first and only coup d’état in 1808, Australia has made major contributions to accountability mechanisms – especially in electoral reform. This started with voting rights: secret ballots and universal manhood suffrage in the 1850s and adult suffrage (including women) in the 1890s. It continued with preferential voting in the 1920s, different voting systems for Senators and Representatives in the 1940s and boundary drawing by independent electoral commissions in the 1980s. Recently electoral commissions have sought to make voting as easy as possible and Australians have turned civic responsibility into an election day social celebration. The Commonwealth’s New Administrative Law, enacted in the 1970s, was probably the most far-reaching governance reform to occur without a prior scandal. The Fitzgerald reforms in Queensland took Queensland from the ‘Deep North’ to a Global Exemplar for governance reform within 5 years.
Unfortunately, accountability and integrity mechanisms tend to degrade for a number of reasons. In particular, politicians are tempted to increase the chances of their re-election by compromising the integrity of the institutions they seek to lead and to which they should be accountable. However, if the electorate is sufficiently aware and sufficiently angry that (re)election is dependent on real action reform can be rapid and comprehensive.
Public concern with Government decision-making can quickly change its political fortunes. This can create an environment where substantive reform to our integrity systems becomes a priority. Making clear that Government decisions are fair and transparent, contributes to the public’s trust in government institutions and their actions. A level of trust is essential to effective government and the functioning of society. Our recommendations for possible and necessary reforms are discussed in this Paper and are summarised here.