Improving accountability in 2017 – Accountability and the law conference

Canberra.

MARK DREYFUS QC MP

SHADOW ATTORNEY-GENERAL

SHADOW MINISTER FOR NATIONAL SECURITY

MEMBER FOR ISAACS

 

IMPROVING ACCOUNTABILITY IN 2017 – ACCOUNTABILITY AND THE LAW CONFERENCE

 

CANBERRA

 

THURSDAY, 17 AUGUST 2017

 

*** CHECK AGAINST DELIVERY ***

 

I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.

 

Thank you to the Australia Institute for organising this conference, and for the invitation to speak.  For some reasons I will outline in my speech today, I think this conference is very timely.

 

But I want to say now at the outset that I am not leading up to some grand announcement of new Labor policy here today. 

 

Last year Labor set up, with the support of some of the cross-bench and the Greens Party, a Senate Select Committee to inquire into the establishment of a national integrity commission. Unfortunately one of the many negative consequences of the very early, double-dissolution election called by Mr Turnbull last year, other than what must have been the most churlish ‘victory’ speech in Australian political history, was the termination of the work of that Committee.  However, this year Labor re-established the Committee, once again directing it to inquire into and report on the establishment of a national integrity commissionThat Committee has held five days of public hearings, and has received 37 submissions, a number of which have come from people and organisations represented here.  The Committee had been due to report on Tuesday this week, but as I’m sure you are all now aware, the reporting date has been extended to 13 September 2017.  We in Labor will examine the report of that Committee very closely, and it will help to inform any future Labor policy in this area.

 

You have heard a lot of excellent speeches today discussing the merits of a federal integrity commission, and the various elements that might make such a body successful.

 

What I will do as the last speaker today is to talk in a little more detail about how some of the informal parliamentary processes operate to improve accountability, as well as their shortcomings.  In particular, I will try to identify some examples of kinds of conduct that we have tried to deal with through parliamentary processes, and that I think that a national integrity commission of some kind might be better suited to dealing with. 

 

Unfortunately parliamentary privilege does not extend to the parliamentary theatre, but I have had some experience in defamation law and will be careful enough in what I say.

 

Mind the Gap

 

Let me start with an unequivocal statement, and that is that Labor stands for integrity, accountability and transparency in government.  We do not tolerate corruption, whether it comes to government, business or unions, and in keeping with this guiding principle we have always worked to foster a culture of integrity within the Commonwealth sphere.

 

The last time we were in government at a federal level, Labor clearly demonstrated how serious we are about tackling corruption in the Commonwealth sphere. We did this by supporting significant improvements to Commonwealth integrity policies to make it easier to prevent, detect and respond to corruption.  Labor signed Australia up to the Open Government Partnership, an international program launched in 2011 that provides a framework for national governments to make their public sector more open, accountable, and responsive to citizens and civil society.  As Attorney-General in 2013, I introduced the Public Interest Disclosure Act, which at last provided protections for whistleblowers in many parts of the federal public service. That legislation protects disclosures of misconduct which might otherwise breach the law, and provides legal remedies for whistleblowers if they suffer reprisals for making such disclosures.

In government Labor also introduced sweeping reforms to strengthen Commonwealth Freedom of Information laws.  The Abbott-Turnbull Government’s record on FOI has been truly reprehensible, as exemplified by Senator Brandis’s desperate attempts to circumvent those laws in trying, for three years, to keep his appointments diary a secret. Having lost comprehensively at every stage of the wasteful litigation he embarked on, all at taxpayers’ expense, it was only when I threatened him Senator Brandis with proceedings for contempt of court that he finally provided what he should have provided within 30 days if he had even a modicum of respect for the laws he is supposed to oversee, or the principles of transparency and accountability that they give effect to.

 

Finally, Labor took a National Anti-Corruption Plan to the 2013 election, a plan which, to my great disappointment, the Abbott-Turnbull Government has taken absolutely no action to progress throughout its four years of dysfunctional governance.

 

I want to emphasise that while Labor never established a federal integrity commission while in office, we have never had any in-principle objections to setting up a body of this kind.  In his address to the National Press Club on 31 January this year, Labor Leader Bill Shorten said that he wanted a Senate inquiry into a national integrity commission, not because he thought corruption was widespread, but because:

 

“… people’s trust in politics and public administration depends on the confidence and assurance that corruption will be met with the full force of the law.  The current integrity officers do the best they can – but we need a Senate Inquiry to look at the merits of a federal body dedicated to deterring, exposing – and eliminating – corruption.”

 

However, as I’ll explore a little this afternoon, ongoing scandals within the federal domain uncovered over recent years have given us reason to pause.  To pause and to ask whether we should consider once again whether a dedicated federal integrity commission may also be needed.  This was part of the reason for setting up the Senate Select Committee to look into this issue, and part of the reason why I have no intention of pre-empting its recommendations this afternoon.

 

Our existing federal integrity framework

 

So I’ll turn now to give a very brief overview of the existing federal integrity and oversight bodies, which operating together have long helped to keep governments accountable to the people, and to ensure integrity at a Commonwealth level.

Currently, Australia’s anti-corruption framework includes a range of agencies with differing responsibilities and powers.   These bodies include:

  • The Australian Criminal Intelligence Commission, created by this Government in what I consider to be the very unwise merger of the Australian Institute of Criminology with the Australian Crime Commission. The ACIC, like the ACC before it,  has many of the powers of a standing Royal Commission, albeit not the same public profile and resources;
  • The Australian Electoral Commission, which enforces compliance with electoral and campaign finance laws.  You only have to look at the situation in the United States, where the management of federal elections is left largely to state authorities, each with its own rules and many of which act in a shockingly partisan manner, to appreciate what just what an excellent job the AEC does at election times here in Australia;
  • The Australian Federal Police, who are empowered to investigate offences against Federal law;
  • The Australian Commission for Law Enforcement Integrity (ACLEI), which can investigate corrupt conduct in Australian Government agencies that possess law enforcement functions;
  • The Commonwealth Ombudsman, who has the power to investigate the administrative actions of Federal Government agencies;
  • The Auditor-General, who has the power to scrutinise public sector operations;
  • The newly created Independent Parliamentary Expenses Authority (IPEA);
  • The Australian Public Service Commission (APSC); and
  • Other federal regulatory bodies include ASIC, the IGIS and  AUSTRAC, the latter of which has been particularly in the news this month for its role in uncovering an unprecedented money laundering scandal at the Commonwealth Bank.

That’s quite a list. And quite a bit could be said about the important work of each of those bodies, and what each contributes to the integrity of our system of governance.

But in the time I have I want to talk a little about some of the less formal processes of the Parliament that have also been designed to improve accountability and transparency. 

Some of you will laugh, or perhaps grimace, to hear me suggest that Question Time provides an opportunity to improve accountability in government. It is true that it is aptly named ‘question time’ rather than ‘answer time’, given the blatant avoidance of meaningful answers that is one of its unfortunate but defining characteristics. But through all the vaudeville performance and trading of insults that goes on in that seventy minutes, through the Dorothy Dixers and all the avoidance of real answers that the government of the day usually attempts, a government can still be put under enormous pressure through Question Time.  If there has been a major blunder by the government or by one of its ministers, Question Time is an institution that allows public attention to be focussed on the arising issues of concern.

The process of Senate Estimates is another much maligned parliamentary process that our country would be the poorer if it was abolished.  Yes, governments often abuse the processes by seeking to evade answering questions at all costs. And yes, governments may not only seek to avoid accountability at Estimates, but may abuse the Estimates process for grossly partisan political ends.  The most egregious recent example was the outrageous and repeated attacks on the Human Rights Commission and its former President, Professor Gillian Triggs, by members of the Abbott and Turnbull governments, including by the Minister responsible for protecting that agency, Senator Brandis.  But despite all of its shortcomings, the Estimates process has proved to be an effective forum within which to hold governments accountable, for the unjustifiable expenditure of public money as well as for other forms of unacceptable conduct.

Privileges committees also operate in both the House of Representatives and in the Senate. Although these committees might well be considered arcane by much of the Australian public, if they had heard of them at all, they provide another means to hold members and senators to account. Both committees are vested by the parliament with sweeping powers to inquire into, and report on alleged breaches of parliamentary privilege, including contempt of the parliament by unwarranted interference in its work.

A final, and often-neglected part of the oversight mechanisms within the federal political sphere is the ministerial code of conduct.  This is an executive rather than parliamentary accountability mechanism because it applies only to parliamentarians who are Ministers, and because it is administered by the Prime Minister. This gives rise to some significant shortcomings, and I will say more about that shortly.

Of course the list of formal integrity institutions that I’ve identified, as well as the three less formal parliamentary and executive measures, do not make up a single coherent system.  As has been pointed out by Hannah Aulby in her conference paper setting out the case for a federal integrity commission, the existing arrangements are not so much a ‘system’ as a conglomerate outcome of ad hoc developments in administrative law, criminal law, and public sector management, overlapping with political processes.

And as Ms Aulby points out, despite the existence of those many bodies and processes, there are still gaps between them that could be addressed by a federal anti-corruption commission, vested with a general jurisdiction to investigate corruption across the public sector, members of parliament, Ministers, ministerial staff, the judiciary, and any person who interferes with the proper exercise of public office.

But rather than discussing what such a federal anti-corruption body could look like, as so many of you have today, I will focus on why the existing informal parliamentary processes for responding to misconduct by politicians have been useful in uncovering misconduct, but have been less than entirely effective in preventing it.

Parliamentary accountability processes

 

It was Abraham Lincoln who said “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”  And in our system of government, ministers are given enormous power. 

 

The Statement of Ministerial Standards, as determined by each Prime Minister, is a document that is intended to ensure that the character of ministers is not tested too greatly.  It is meant to provide a clear guide as to what is permissible.  For example, Prime Minister Turnbull’s Statement of Ministerial Standards commences with the following explanation:

 

Ministers and Assistant Ministers are entrusted with the conduct of public business and must act in a manner that is consistent with the highest standards of integrity and propriety. 

They are required to act in accordance with the law, their oath of office and their obligations to the Parliament. 

In addition to those requirements, it is vital that Ministers and Assistant Ministers conduct themselves in a manner that will ensure public confidence in them and in the government.

 

But what happens when a minister appears fail Lincoln’s test of character, and breach the ministerial standards of the day?

Is there any kind of impartial body to inquire into the facts of an alleged breach and to apply those standards to the established facts? No. It is up to the Executive in which that minister serves that makes those determinations, and in particular, the Prime Minister.

 

Is there any kind of criminal sanction that applies to a breach of the Standards? No, there is not, although some breaches may also amount to criminal conduct that can of course give rise to criminal liability.

 

That is not to suggest that there are no sanctions at all. 

 

Stuart Robert

 

Many of you will remember Stuart Robert served in the Abbott Government as the Assistant Defence Minister and later as the Minister for Human Services. In August 2014, while Assistant Defence Minister, Mr Robert flew to China on a trip that was described by him as a private business trip.  He travelled with a friend and major Liberal Party donor called Paul Marks.  While in China he attended a signing ceremony for Mr Marks’ company Nimrod Resources, which Mr Robert held an interest in through another company, and which was entering into a mining agreement with China Minmetals Corporation.  The day after the signing ceremony, when Mr Robert was in Beijing, he met with China’s Vice-Minister for Land and Resources, also taking Mr Marks to that meeting. 

 

Once details of the trip were discovered, in part through Chinese media stories, allegations were made that Mr Robert had used his then status as a Commonwealth minister to benefit his private business interests.

 

Labor used Question Time extensively to press for further information.  Mr Robert denied any wrongdoing, and declined to answer questions, claiming that he had visited China and attended the mining cooperation signing ceremony and vice-ministerial meeting in ‘a private capacity’.  In effect, he was declaring his visit to China off-the-books.

 

Yet a media release issued by China MinMetals Corporation said Mr Robert had extended his congratulations “on behalf of the Australian Department of Defence” and had presented “a medal bestowed to him by Australian prime minister in honour of remembrance and blessing”.

 

In a Senate Estimates committee, Labor Senate Leader Penny Wong asked Foreign Affairs official Graham Fletcher: “It’s plain the company and the Chinese Government thought they were dealing with Mr Robert in his ministerial capacity?”

Mr Fletcher responded simply, “Yes.”

In the course of the unfolding media storm it was also revealed that in 2013 Mr Robert had organised a dinner in his Parliament House office to introduce Mr Marks and a Chinese businessman Li Ruipeng, the chair of the Li Guancheng Investment Management Group, to senior figures in the Liberal Party, including then Opposition leader Tony Abbott. At that dinner it is alleged that Li Ruipeng gave Tony Abbott, Mr Robert and the then opposition industry spokesman, Ian Macfarlane, Rolex watches out of a plastic bag as a goodwill gesture.  Ian Macfarlane later returned his to the company.

What is interesting is what happened in terms of accountability.

 

Treasurer Scott Morrison called the unfolding revelations and allegations of misconduct a “ridiculous beat-up.” He said claims that Robert had lent his prestige as a government minister to his business associate and friend Mr Marks was “an offensive suggestion” and “a massive overreach”.  Barnaby Joyce also defended Mr Robert’s conduct, declaring, “What is his crime? Can someone please tell me what the crime is here? Because what we have is allegations he met people – if meeting people in China is a crime, then every politician in this building is gone.”

In contrast, Labor demanded Mr Robert’s sacking, arguing that he breached clause 2.20 of the Ministerial Statement of Standards, which bans ministers from acting “as a consultant or adviser to any company, business, or other interests, whether paid or unpaid, or provide assistance to any such body, except as may be appropriate in their official capacity as minister”.

Mr Turnbull did not rule on his Standards, but referred the entire matter to his departmental secretary, Martin Parkinson.

 

I did refer the matter to the Australian Federal Police for investigation, but no charges were ever brought.

 

Mr Parkinson duly made his report to the Prime Minister, and Mr Turnbull made the decision to sack Mr Roberts from his ministerial post.

 

Mr Roberts continued to enjoy the benefits of being a backbench MP, and despite several other allegations of misconduct, continues to do so to this day. 

 

Of course, losing a ministry is a very real sanction from the point of view of a person whose career is in politics.  But for the general public, does the penalty of demotion to a job that pays over $200,000 a year, in addition to numerous other perks, really sound like a serious sanction?

 

I wonder what the effect of this is on the public’s level of trust in federal politicians, and respect for federal politics generally.

 

And what happens if a minister, accused of breaching ministerial standards, has already left their political career?

 

Bruce Billson

 

The most recent example of this is that of Mr Abbott’s former Small Business Minister Bruce Billson.  Mr Billson failed to declare that he had been employed by the Franchise Council of Australia while still an MP, and was receiving a salary from the FCA of $75,000 per annum for some months before he retired from parliament at the 2016 election. He has since apologised for failing to disclose the salary on the official register of interest, and has denied the FCA position generated a conflict of interest, although I understand he is now “considering his position” at the FCA.

 

Prime Minister Malcolm Turnbull has ordered a separate investigation into whether Mr Billson breached standards preventing former ministers from lobbying MPs on matters related to their former portfolio within 18 months of leaving the job.

 

Labor has now asked the Speaker of the House to refer the matter to the Standing Committee of Privileges and Members' Interests to decide whether Mr Billson should be found in contempt of parliament. Past and present MPs found guilty of contempt face potential penalties of six months in prison or a $5,000 fine.

A Liberal MP and friend of Mr Billson was quoted in the Fairfax papers as saying "You can line a job up while you're still in the parliament but it's another issue altogether to start pocketing the coin." That MP added that Mr Billson was "supping with the devil" in his role because the Franchise Council often lobbied against the interests of small business, the cause he championed in office.  If that is what his political colleague and friend says, what are the public going to think?

Andrew Robb and Ian Macfarlane

 

I don’t have time this afternoon to discuss in any detail the situations of former Liberal Government ministers Andrew Robb and Ian Macfarlane, who have also faced questions about their respective post-political roles.  A former resources minister, Mr Macfarlane took up a job with the Queensland Resources Council only six months after Tony Abbott called on the sector to “demonstrate their gratitude” to him for his work scrapping the mining tax.

Formal federal Trade Minister Mr Robb resigned as minister in February 2016 and from the parliament at the July 2016 election. A day before that election Mr Robb took up an $880,000 part time job with Chinese company Landbridge, which had controversially been granted the lease over the Port of Darwin in 2015.  At the time Mr Robb was the responsible minister, and had declared that “Landbridge’s commitment to the growth of the Port of Darwin will be a huge spur to the development of Australia’s north.”

I am not suggesting here that Mr McFarlane or Mr Robb broke the law or the ministerial code of conduct, which says that for 18 months, former ministers should not lobby, advocate or have meetings with members of the government or public service on any matter on which they have dealt with in the previous 18 months.  I note that the code also requires that “Ministers are also required to undertake that, on leaving office, they will not take personal advantage of information to which they have had access as a minister, where that information is not generally available to the public.”  But I ask again, how useful is such a stipulation in regulating the conduct of former ministers?

I note that even members of his own party expressed disquiet at the circumstances of Mr Robb’s ministerial role and immediate post-politics employment, particularly when our primary ally, the United States, expressed deep concerns about the leasing of the Port of Darwin to the Chinese.

 

I do want to make the point that of course misconduct of this kind isn’t confined to any one party.  Just last year, former Labor MP Craig Thomson was found guilty of contempt for misleading parliament in a 2012 speech in the House following the HSU scandal

 

While there are always partisan political considerations in play when it comes to the conduct of MPs, the entire political system is tarnished by misconduct by public officials.  Research recently commissioned by the Museum of Australian Democracy found that satisfaction with our democracy sank to a miserable 42 per cent last year is of great concern in this context. And because our nation is the ultimate loser when the public loses faith in its governance, in my view any discussion of new measures to strengthen of our system for integrity at a federal level should have support from all parties.   

Conclusion

I have now been in the federal parliament for almost a decade, and I have seen a great deal of behaviour that is far from edifying.  A number of surveys over recent years have shown public dissatisfaction with politics and politicians are at disturbingly high levels.  I’m sure this week’s section 44 fiascos haven’t helped. And to some extent, that public dissatisfaction is entirely understandable.  I think it is particularly egregious when the public sees not only that some kind of scandal has occurred, but worse, that there are no real consequences for those who are involved.  

 

The Stuart Robert matter showed that informal parliamentary processes do make some contribution to ensuring the integrity of our system. But to my mind, the highly partisan nature of modern politics means that the informal, parliamentary mechanisms of accountability are not well suited to the task of regulating the conduct of ministers and other politicians, and in particular, for punishing serious misconduct.

The ministerial code of conduct is flawed as a mechanism.  A Prime Minister must behave as a hyper-partisan warrior for his or her political tribe in one moment, and then as an impartial judge of the conduct of his or her ministers the next.  Mr Turnbull tried to avoid that problem by having his Departmental Secretary adjudicate on Mr Robert’s conduct in the context of the Ministerial Code, but I don’t believe that kind of ad hoc referral of responsibility is a desirable solution to the problem. 

The parliamentary forms of Question Time and Senate Estimates, while very effective at generating publicity and political pressure, are infected with the intense partisanship of our political system.  The theatre of parliament is an integral part of modern politics, but mediated by the media as it is, that theatre is not well-suited to the sober task of objectively determining facts and assessing the acceptability of the conduct of MPs and Senators.

And as my key examples show, if the only sanctions for potentially serious misconduct are political in nature, such as demotion from the ministry, the public is unlikely to be satisfied that justice will be done  in cases of a truly egregious breach of the public trust.

Commenting on the $165 million tax fraud revealed in April this year, Opposition Leader Bill Shorten said “I think it makes Labor’s support for having a Senate committee investigating the merit of a National Integrity Commission seem quite on the money.’’

As I said at the outset of my remarks today, Labor is well aware of the many strengths and weaknesses in the existing framework for accountability that exist in the federal sphere.  It may well be that additional measures are needed, including perhaps a national integrity commission of some kind.  We will wait and see what the Senate Select Committee recommends in its report next month.

In the meantime we will continue to use, as best we are able, the institutions and parliamentary forms that we have at our disposal to ensure that the public has trust in the institutions that make up the federal government and public sector.

I am very happy to answer any questions.

Thank you.

ENDS