Australia’s Democratic governments; a proud history, their present state and future?

Jan 27, 2015

This is the text of a speech presented by the Hon T H Smith QC, at Waverly Rotary Club on 27 January 2015

 

Australia’s Democratic governments; a proud history, their present state and future?

Tim Smith

27 January 2015

On this year’s Australia Day, community concern about the integrity of our democratic governments has never been higher.

Integrity of Government – its importance

Fundamental to that integrity is open and accountable government. That is critical not only to enable us, the people, to be involved in our democracies and to make informed choices when we vote but also to enable good government and to minimise government secrecy and the risk of corruption. Its importance has been recognised under long standing international conventions and declarations that recognise the rights to open and accountable government and to information held by government as Human Rights. In addition, it is now recognised internationally, but not yet in Australia, as necessary for economic growth. (See also here)

What is integrity

Generally, we tend to equate integrity with honesty, but it is much more than that. The ART has adopted the proposition that Integrity needs tobe assessed

“… by reference to the values, purposes and duties for which … power is entrusted to, or held by, the institutions and individual officeholders concerned. When individuals and institutions act in a manner that is true to these values, purposes and duties, we say they have integrity. Truth and honesty are not synonyms for integrity, but provide fundamental elements”[1]

Australia’s past good fortune

The gift of democracy

We Australians have been very fortunate. We didn’t have to fight for our democracies or our independence. They were given to us by the British Government and Parliament beginning in the 1850’s when representative constitutions were given to NSW, Victoria, South Australia and Tasmania.

Australia’s leadership

Our Australian forebears also lead the world in developing our democracies. First in the world steps taken included:

  • In the 1850s, full manhood franchise (e.g .NSW, SA (also including indigenous people) abolition of property ownership qualifications for members (e.g. NSW, SA), secret ballots (e.g. Victoria, SA ; known elsewhere ( e.g. in USA) as “the Australian Ballot”).
  • In the 1890s, voting rights to women including aboriginal women and the right to seek election to Parliament(SA); preferential voting (QLD) [2]

 

The recent abandonment of Australian leadership role

But if we once did have aspirations to lead the world in advancing democratic government, that appears to be no longer so.

Take open and accountable government. Australia in the early 1980’s was a leader in introducing Freedom of Information legislation at the federal level [3] and in Victoria.   This was followed in other States.   But in the last 20 to 25 years, governments developed practices in the use of the Cabinet processes and in the negotiation of major contracts that brought into play statutory exemptions thereby defeating the legislation.

There have been some successful attempts to reverse this situation in recent years. Queensland has set the benchmark with its Right to Know legislation. In the Commonwealth, the Rudd Government made major improvements. But there have also been attempts to repeal reforms. Late last year the Commonwealth government attempted to repeal the 2010 reforms, and to return to the failed system. The fate of that Bill may be determined this year in the Senate.

In Victoria, the Baillieu government introduced the office of Information Commissioner for which there was and is bipartisan support. In the recent election, however, ART sought a commitment from the major parties to adopt best practice – the Queensland Right to Know legislation. The Coalition and the ALP did not commit. The Greens did.

Another area of major ongoing concern is the lack of contemporaneous transparency on political funding to political parties. Victoria continues to rely upon the inadequate federal legislation which operates only in respect of federal parties. ART sought commitments from the major parties to establish an independent Inquiry into the issue (as has recently occurred in NSW) but the Coalition and ALP did not commit. The Greens did.

Overseas Leadership – without Australia

The lead has been taken up internationally. In 2011, 8 countries including USA, UK and Indonesia created the Open Government Partnership. Australia was then invited to apply to join. Notwithstanding the then Attorney-General’s recommendation in 2012 to apply, Australia did not apply until early 2013, being announced by the then Attorney General, and Special Minister of State, the Hon Mark Dreyfus QC . Since its election, the present federal government has been considering whether to proceed with the application. If it does proceed, Australia is required to make a public declaration and to prepare an Action Plan in consultation with civil society. Towards the end of last year, we sought information from the Prime Minister about progress. He wrote to us in response that the government did not want to “rush” its decision whether to proceed. There are now more than 60 nations, including Australia, participating in the Open Government Partnership. If the Abbott government decides not to proceed, and withdraws, it will join the only other country so far to have applied and then withdrawn – Russia.

I suggest that, in Australia, the desire for secrecy of those holding public office has never been stronger.

What has happened to our democracies?

Lost their way?

There is no evidence of the major parties deliberately setting out to damage the integrity of our Democratic Governments. Rather, it is as if we have all lost our way as circumstances have changed and the political culture with it.

There was a remarkable acknowledgement of that reality by Malcolm Turnbull in 2012 when speaking at the Woodford Festival. He said that it has never been easier to get away with lies as a result of what he called the “60 second” news cycle. He also said that the people are being treated with contempt by the dumbing down of the political discussion including using one liners, failing to explain that there are no easy solutions and dealing in spin not the facts. He said this applied to all parliamentarians including him. Consistently, however, with the current state of our Democracies he made no proposals for change. He suggested, however, that having a public fact checker system would help.

ART’s history and experience

Initial focus

The group that became the ART was formed in 2006. The catalyst was the AWB affair. The concern it raised was whether the convention of ministerial responsibility had died because the then Prime Minister and two Ministers denied any responsibility for the AWB affair on the basis that they didn’t know about it and the Opposition was not pressing the question that should have followed – “Should they have known?”   It should be noted that, initially, the group was not troubled about the sort of issues Malcolm Turnbull raised 6 years later.

The initial Chair was the The Hon Race Mathews, and he set up a non-partisan group that became the ART. [4]

The group’s initial focus in 2006 was on ministerial responsibility but it quickly became apparent that there were many other inter-connected issues and problems and that they all impacted on the integrity of our Democratic governments.

Issues were taken up by seeking election commitments from the parties on government integrity system issues, making submissions to government and attempting to be published in the media. ART also has

Some Insights obtained from the Integrity Lectures.

The Integrity in Government Lectures have been given by the Hon Fred Chaney, The Hon Lindsay Tanner and Michelle Grattan. They have shed valuable light on the changes that have occurred in our Democracies, the reasons for them and evidence relevant to developing solutions.

Michelle Grattan and Lindsay Tanner

Last year, Michelle Grattan in her Lecture “Integrity in Politics; a Media Perspective” identified a number of changes that she sees as causing damage to our democracies including:

  1. Lying to Parliament no longer a resignation offence;
  2. Lying to the people no longer being seen as a serious matter;
  1. The switch from public campaign meetings to intimate fundraising dinners as the pursuit of funding has grown;
  2. The lack of transparency of political fund-raising and the devices used to avoid the inadequate regulation that is in place;
  3. The growth of the lobbying industry and the resulting increased potential for compromising the integrity of government;
  4. “Professionalization of the political trade”;
  5. “The bear pit of question time”;
  6. The development of the “spin” industry”, and the use of surveys and focus groups;
  7. The continuous election campaign involving “half-truths” and “exaggerations “.

 

Michele Grattan also referred to an absence of “meaningful debate of public policy”. On that issue, the Hon Lindsay Tanner, in his Integrity Lecture, identified a shift in the political debate from the rationalism of the 80s and 90s to the populism of the late 1990s onwards . The Hon Malcolm Turnbull‘s Woodford Festival speech also identified this trend.

Insights from Barry Jones

One of our members, the Hon Barry Jones, last year spoke on several occasions on the state of our Democracy – most recently to members of a new group Ican established by a member of ART, Carmel Benjamin [5].

He has identified similar matters to those raised by Michelle Grattan[6]. On the issue of an absence of meaningful debate, he has raised a number of matters including the following;

  • Changes in the focus of politics. Politics is defined as if it was all about economics (with all values having a dollar equivalent which is all that matters – e.g. trees as woodchips on stumps), immediate self- interest and increasing levels of production and consumption and jobs replacing the environment and ethics.
  • Reliance on invented narratives.
  •  Seeking advice only from people who will support that narrative. The full evidence is not considered.
  • The power of interests: e.g. the major social issue of problem gambling; the failure to tackle problem gambling illustrates the power of sectional and regional vested interests.
  • A loss of skills: For example:
    • Decline in ability to debate major issues and defend positions. Major parties instead rely on negotiation which has resulted in failures on issues such as tax reform and the mining tax. He attributes this lack of capacity to faction control.
    • Failing to attempt to justify broken promises. For example, the broken promise of the previous Commonwealth government about not introducing a carbon tax after the election.

As to the causes he points to changes such as the development of factions in the major parties and the focus of those in politics on what will sell and what will “my faction want”, not “what is right”.

He has identified as a major loss that has flowed from these changes – the inability to develop bi-partisan approaches to major issues except where politically expedient. He compares this with the successful action taken by both the major parties to negotiate non-politically expedient bi-partisan agreements in the 1970’s and 1980’s on major political and policy issues – for example on migration issues (Vietnamese, Cambodian and Chinese refugees) and major economic policy. He argues that the present major issue needing bi-partisanship is tax reform.[7]

The ART experience?

The impression we have gained in trying to persuade Governments and Oppositions to strengthen the integrity systems of our democratic governments is that the dominant “group think” among our elected representatives and their staff is that there are no votes to be gained by doing so, only political risks. The fact that it would be the right thing to do for our democracies appears to carry little or no weight.

Further, ART has spent as much time fighting to stop efforts by our elected representatives to repeal reforms that had strengthened government integrity systems as we have trying to persuade them to strengthen them – e.g. the recent attempt by the federal government to abolish the significant 2010 FOI reform of establishing the independent Office of the Australian Information Commissioner; and steps taken by recent Queensland governments to weaken the independence and power of the Speaker, parliamentary committees and the capacity of the CMC.

How has this happened?  

On the evidence so far gathered, it hasn’t happened suddenly.

Situation 30 to 40 years ago

The evidence identified by Barry Jones suggests that 30 to 40 years ago the major parties still had the capacity to make major difficult unpopular policy decisions on the basis of the evidence not the politics and reaching a bi- partisan consensus on what should be done.   That seems inconceivable in the present political climate and culture. But it suggests that at that time the majority of elected representative of the major parties still saw their ultimate responsibility as one of determining policy on the basis of the evidence and what would, in the long term, best serve the interests of the people.

In his Integrity Lecture, the Hon Fred Chaney, a member of the Commonwealth Parliament and Minister between 1974 and 1993, identified at least 6 potential areas of conflicts of interests and values that each member of parliament brings to the parliament when elected. He also said those conflicts can and should be resolved by determining what is in the public interest. I suggest that, from Barry Jones’ analysis, he also would have applied that test.

Significant but slow changes in society and politics

The changes appear to have slowly but steadily developed particularly since the 1990s with changes

  • in society and the political world such as the speeding up of the news cycle accompanied by increasing government secrecy and increasingly tight control of information and the use of “spin”, and
  • in the political world, changes such as politics becoming a sole career for the majority of those seeking election, the growth in numbers and importance of unaccountable ministerial staff, the donations “arms race”, the growth of a lobbying industry, the outsourcing of services by and to government and the dominance of the attitude “do whatever it takes” not what is in the public interest.

As a result, the guiding principle for a large and dominant number of our elected representatives has moved towards the short term political advantage for their party and not the long term public interest. One should not be surprised. History has shown that the pursuit and retention of political power can easily dominate everything else that may be relevant in the minds of those involved.

The present political world seems to be like a parallel universe with different principles and objectives to the ones that need to be operating if we are to have a functioning democracy and good government in the long term.

But what should be the principle to guide us all?

The Forgotten principle

Five years ago I first became aware of Plato’s ancient ethical principle – that public office is a public trust and that those holding public office have a duty to always put the public interest ahead of their personal interests or other private interests. About 3 years ago I came to appreciate that it was also a long standing common law legal principle of Australia that can be traced back to the 18th century and underpins our Constitutions and our Administrative Law. It is by this principle that those holding public office should be guided and the integrity of our Democracies and their participants, including us, the people, should be assessed and necessary action identified.

100 years ago, the principle was still part of the political and civil society culture.   The legal historian Maitland complained then that, he could not read a newspaper without finding someone citing the principle when writing about the actions of those in public office. [8]

But 100 years later, and apart from the Age about a month ago (“The Zone” and an editorial), have any of you heard of the principle or read about it?   Is it taught? To date, I have been unable to find examples of secondary or tertiary courses where it is taught.

The above commentators do not refer to it. At the same time, however, when one considers the specific concerns that they identified, does not each involve a serious breach of, or failure to address, this fundamental principle?

The Consequences of the Forgetting

 I suggest that a critical factor in the gradual deterioration of our Democracies has been that over the last 100 years we have slowly but surely completely forgotten the public trust principle. As a result, we have forgotten the purposes for which power is entrusted to our elected representatives and their resulting responsibilities.

The forgetting also has potential for adverse changes to the operation of other public officers – for example, those in the public service.   Is it the explanation for some of the content of the Commonwealth Public Service Commissioner’s “Policy and Advice document“?  This document is intended to give public servants guidance about appropriate behaviour.   I refer to the section in it advising them about accepting gifts.

While these public trustees are not forbidden by law to receive gifts, they should not be encouraged to receive them and they should be reminded in any advice who their stakeholders are and that their paramount concern should be the public interest.

But the Policy and Advice document does the opposite. It encourages the receipt of gifts, stating that it helps to develop good relations with the stakeholders. Who are the stakeholders? They are the gift givers not the people of Australia. What is the paramount concern? It identifies the reputation of the Australian Public Service (APS). The public trust principle is not mentioned. This raises the question whether a non-trustee business model has been allowed to replace the public trustee model for the APS?  [9]

The public trust principle

It is a simple principle. Most people I raise it with, see it as an obvious proposition; if you entrust another with power over you and your affairs, they should exercise those powers for your benefit not theirs.   And many public officers are entrusted with the power to make decisions of enormous significance for the present and future for us and our families of children and grandchildren.

As Paul Finn has said

“.. Much the most fundamental of fiduciary relations in our society is that which exists between the community … and the state and its agencies that serve the community”. [10]

As an ethical and legal principle to guide and protect the integrity of our democratic systems of government it should be to the forefront of the minds of

  • holders of public office when they are making decisions and communicating with the people and
  • we the people when assessing the conduct of our public officers.

The legal principle

The legal position was recently described by Sir Gerard Brennan, the former Chief Justice of the High Court, in his speech before presenting the ART Commonwealth Parliamentary Integrity Awards. He said (para 6)

“It has long been an established legal principle that a member of Parliament holds ‘a fiduciary relation towards the public’ [11] and “undertakes and has imposed upon him a public duty and a public trust’. [12] 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.” [13]

Turning to the question of enforcement, he said (para 9):

“True it is that the fiduciary duties of political officers are often impossible to enforce judicially [14]; the courts will not invalidate a law of the Parliament for failure to secure the public – interest [15] – 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 the legal rules developed to give effect to it including the common law criminal offences such as misconduct in public office [16]– which it will be recalled was left out of the key IBAC definition of “corrupt conduct”[17]. I will, however, mention a couple of matters that give some idea of its practical importance.

  • Statutory powers; Ministers are commonly given broad undefined statutory discretionary powers; for example, Planning Ministers given the power to intervene in planning decisions. The public trust principle is applied in interpreting such powers with the result that the Minister is required to give priority to the public interest over personal or private interests. The legal principle may also play a major role in the enforcement of contracts. [18]
  • May I also mention a recent English decision, upheld on appeal in the House of Lords. [19] The principle was there discussed in holding that a policy introduced by a Conservative leader and deputy leader of a Council of selling, under statutory powers, Council homes in marginal wards was also in breach of the common law principle; for it was not done in the public interest but to change the voting demographics in their party’s favour.  They were ordered to make good the sum of 31 million pounds plus interest lost on the sales that had been made at less than market price. [20]

All who exercise powers conferred on them by statutes or regulations, be they Ministers of our Commonwealth, State, or Territory Parliaments, or local councillors should note this decision and the reasons in the House of Lords by Lord Bingham.

“Statutory power conferred for public purposes is conferred as it were upon trust not absolutely – that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended …….. It follows from the proposition, that public powers are conferred as if upon trust, that those who exercise powers in a manner inconsistent with the public purpose for which the powers conferred betray that trust and so misconduct themselves”. [21]

But in the case of elected representatives, is it not legitimate for them to have regard to whether their decision will commend itself to their electorate and their party? Lord Bingham also addressed that issue:

“Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the lifeblood of democracy and a potent spur to responsible decision-taking and administration.”

Referring to elected councillors, he commented that they

“do not act improperly or unlawfully if, exercising public powers for a public purpose to which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise. But a public power is not exercised lawfully if it is exercised not for a public purpose which the powers conferred but in order to promote the electoral advantage of a political party.”

There will be occasions where the public trust principle will not be easy to apply in the courts. But it is a principle that has been part of our common law for a very long time and its application by the courts will continue to occur from time to time. In applying the common law, Courts may be expected to be very conscious of the importance of the principle of the separation of power and the need to respect it. At the same time, they will not want the courts to be seen to be condoning or encouraging clear breaches of public trust by holders of public office. [22]

As to the authority in Australia of decisions of English courts, although they are no longer binding precedents, they are considered and applied by Australian courts, [23] and are particularly relevant when shedding light on ancient common law principles and their application – such as the one we are considering.

The principle and the deterioration of the Democracies?

The public trust principle appears to have been absent from our consciousness for many years. At the same time it has not been totally forgotten. It is the stated guiding principle of the Commonwealth Ministerial Code. In addition to the people mentioned below [24] former High Court Chief Justice Gleeson applied the principle to the Judicial Branch of government in a speech delivered in 2000 entitled “Judicial Legitimacy” [25], Roger Macknay QC, former Commissioner of the CCC of WA discussed and confirmed it in a paper in 2012 “Trust in Public Office” and Dr David Solomon, the former Queensland Integrity Commissioner, has considered and applied it in a recent paper entitled “Nepotism, patronage and the Public trust” [26].  Also the public office – public trust principle was referred to and relied upon by the authors of the reports recommending the establishment of anti-corruption bodies – for example, in Tasmania [27] and Western Australia [28].

But they too seem to have been largely ignored.

What has been critical, I suggest, is that the politicians, commentators and the media (until very recently) and we, the people, do not appear to have referred to the principle for many years in assessing, and commenting on, the rights and wrongs of government actions and policies. At the same time it does not appear to have been studied at secondary or tertiary level to any extent.

Other causes – Disengagement?

And is our disengagement from politics both an effect and a cause?  

In his Integrity in Government lecture, “Integrity in Politics; the Power of Ideas”  the Hon. Lindsay Tanner described “most politically engaged people” as being “passive, content to express their frustrations to those around them without ever doing anything about it” with the result that “countless Australians who have the interest and knowledge to enable them to do so choose to remain inert” [29] .

And there is another serious consequence. I suggest that a vast number of us are in rejection mode because of anger and disillusionment caused by the current state of government integrity and the contempt shown to us, and to each other, by our elected representatives coupled with a sense of powerlessness because we are not aware of, and therefore cannot see, a formal non-political basis for challenging what has occurred or guiding that challenge.

Is the tide turning?

Without being conscious of its significance perhaps, some of us are responding in the only way we believe we can – expressing our dissatisfaction with the conduct of those in the major parties by withdrawing support from the ALP and Coalition and giving it to Greens and other parties and independents.

But the on-going fall in party numbers suggests that we are not taking up the more direct options of becoming involved by joining existing parties and seeking to secure the changes we think are needed.

Why is that? I suggest that many of us are too busy just coping with the demands of our lives. But may it also be that being unaware of the public trust principle it has not occurred to us that we have any responsibility beyond our vote to directly seek to bring about change? But we do have a much greater responsibility.

Our responsibilities

Under the public trust principle, the ultimate responsibility for the integrity of our democracies is ours. Those holding public office carry the day to day responsibility but we the public trust beneficiaries have the ultimate responsibility to act with the legitimate means available to us if our elected representatives, individually or together, fail to honour their public trustee obligations.

We must also acknowledge that the serious decline in the integrity of our democracies has occurred on our watch.

What can we do?

In the political world, we the beneficiaries of the public trust principle should, if able to do so,

  1. Join the party whose aims we otherwise favour and seek within it to secure its commitment to recognise and support the public trust principle, or, seek election on a government integrity platform as an individual or in a new party and /or
  2. Communicate with the parties, local members, and the media seeking commitments to recognise and implement the public trust principle.

In addition, when deciding how to vote in any future elections, we should compare and take into account the past performance of the parties and candidates of their public trust obligations and the promises they are making for their future performance of those obligations. In particular, to what extent are their policies directed to the long term community best interests? In assessing their integrity, we should, in particular, consider their policies for strengthening our government integrity systems [30].

In the long term, for both the political world and civil society, I suggest that a major part of the answer is to restore community awareness of the fundamental legal and ethical principles that public office is a public trust.

In addition, those in a position to develop secondary and tertiary education syllabuses need to take steps to ensure that the public trust principle is studied where relevant to any subject in any course that is taught whether it be civics or ethics, philosophy, law, history, politics, government, journalism or ethics and in professional training for those seeking and those holding public office. I understand that there is much to be learnt from the action taken after the Fitzgerald Report. The anti-corruption bodies should have a major role to play as part of their preventative role.

If this is done, those involved in the discussion of government and politics in the community, and the media, and in the world of politics and government, would become alive to the principle and its application and have an important principle that they will know should be considered.

 Will the revival of the principle help to restore integrity to our parliamentary democracy?

Two propositions must be true:

  • the principle cannot play a role if it isn’t present in people’s consciousness;.
  • we should not hope for Nirvana to arrive immediately or that the battle will ever be completely won. We are seeking to have the principle applied by people pursuing power, or seeking to hold on to it, and there will always be those among them who believe the rules do not apply to them or that their ends will warrant the use of any means.

But I suggest that revival of the principle could be a game changer if only because it would restore an obvious and powerful critical element into our consciousness, and that of our public trustees, and into the public debate.

When those holding public office are unaware of the fiduciary nature and responsibilities of their position, it is only to be expected that they, including those among them who are of integrity, will not consider them and so inevitably fail to honour their fiduciary obligations and to put the public interest first when making their decisions

But with the restoration of the community’s knowledge of the ethical and legal principle restored, those holding public office will no longer have the mental and psychological freedom given by that present lack of knowledge of it whenever they are making decisions affecting the community [31].

The quality of our democracies is ultimately our responsibility. We would be failing ourselves and our responsibilities if we did not act to revive the public trust principle.

ENDNOTES.

[1] The definition adopted in the National Integrity Systems Assessment Report, 2005 ( p.9), produced by Transparency International and Griffith University

[2] Information sourced from yet to be published history by Anne Mancini a founding member of ART.

[3] The driver being Senator Allen Missen who ART recognised with its Parliamentary Integrity Award for backbenchers;

[4] Our current Executive Members can be found in the first item on our Home Page

[5] An independent network whose 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”.

It can be contacted at ican2014@bigpond.com.,au .

[6] Including in particular, the topics 3-9 listed above.

[7] On migration issues he argues that the tide turned in 2001 with the Tampa incident which introduced a covert racism supported by the opposition and the bipartisanship we now have is a negative one based on fear. He argues that between 1967 and 2001 racism was not an element in the practice of Australian politics as a matter of consensus. Now it is a powerful element explicit and implicit. He argues that we have failed to address the asylum seeker issue on either a moral or a statistical basis.

[8] Smith, T. Integrity in politics? Public office as a public trust? Is there hope?   (p19)

[9] Smith, T.  Integrity in politics? Public office as a public trust? Is there hope?  – See p37, Appendix 7 for more details

[10] Paul Finn, (2012)“ Public trust and fiduciary relations’ in Coghill, Sampford and Smith (eds), “Fiduciary Duty and the Atmospheric Trust, 31 at 33. What is a fiduciary relationship? As his Honour also said fiduciary relationships generally can be described as ones in which parties are so circumstanced relative to each other for some purpose, as to give one the right reasonably to expect that the other will act in his or her interests or in their joint interests in discharging a purpose and not in his own self-interest” reasonably to expect that the other will act in his or her interests or in their joint interests in discharging a purpose and not in his own self-interest”

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

[12] ibid 408

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

[14] citing United Steamship Co of Australia Pty Ltd v King (1988) 82 CLR 43 at 48

[115] 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.”

[16]  Smith, T. 2014 Integrity in politics? Public office as a public trust? Is there hope?; also (2014) Government Secrecy and Urban Planning – The Forgotten Trust and Reform, and Lusty, D. “Revival of the Common Law Offence of Misconduct in Public Office” (2014) 38 Criminal Law Journal 337,

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

[18]  Smith, T. Integrity in politics? Public office as a public trust? Is there hope? – p 11 ( fn. 29 above).

[19] Magill v Porter (2002) 2 AC 357.

[20] The House of Lords held that while the orders had been made to pay 31 million pounds under statutory provisions that applied, they would also have been made at common law because what was involved was a breach of a position of public trust –   Magill v Porter para. 19 (4)

[21] Magill v Porter (2002) 2AC357 (Court of Appeal), 497 (House of Lords – para (19) discussed in Macknay QC’s paper “Trust in Public Office”

[22] Cf. Bunning v Cross (1978) 141 CLR  54 and the common law judicial discretion in criminal trials to exclude evidence obtained in breach of the law.

[23] See the review by Hon Michael Kirby AC CMG in “The old Commonwealth( a) Australia and New Zealand”

[24] French C J  (2011) Public Office and Public Trust: Seventh Annual St Thomas More Forum Lecture ; see also most recently Paul Finn, “Public trust and fiduciary relations’ in “Fiduciary Duty and the Atmospheric Trust” Coghill, Sampford and Smith, 31 at 33 (Ashgate). Also, P.D. Finn “Public Officers: Some Personal Liabilities” 1977 ALJ 313; “The Forgotten Trust”:the People and the State” in Malcolm Cope (ed.) Equity – Issues and Trends, CH 6 p.131 ( Federation Press); “A Sovereign People, A Public Trust” in P.D. Finn (ed.) Essays on Law and Government, p1; P.D. Finn ”Integrity in Government” (1992)3 Public Law Review, 243;

[25] “Judicial power, which involves the capacity to administer criminal justice, and to make binding decisions in civil disputes between citizens, or between a citizen and a government, is held on trust.  It is an express trust, the conditions of which are stated in the commission of a judge or magistrate, and the terms of the judicial oath”,

and later

“the characterisation of the High Court as an agent of the Australian people, entrusted with the responsibility of ensuring observation of the Federal compact, signifies that fiduciary capacity in which it exercises its power” – Murray Gleeson, Judicial Legitimacy  (2000)

[26] In that paper, he quoted Professor Finn’s expression of the Fiduciary principle – “ The institutions in government, the officers and agencies of government exist for the people, to serve the interests of the people and , as such, are accountable to the people”   p5

[27] “Public Office is a Public Trust”, Joint Select Committee Ethical Conduct Final Report 2009

[28]  “Royal Commission into Commercial Activities of Government” (WA Inc Report) Kennedy, J, Sir Ronald Wilson, and Hon. Peter Brinsden Q.C

[29] Integrity in Politics; the Power of Ideas p 6

[30] Including independent anti-corruption bodies, powers of Auditors-General, protection of whistleblowers, regulation and transparency of political funding, Right to Know legislation, Codes of conduct.

[31] For example, public servants handling FOI requests are more likely to see their role as that of people entrusted by, and for us, with the information they are considering and that it is held by them on our behalf, not their behalf, and so be helped to deal with the conflict of interest situation they are in by putting the public interest ahead of their perceived own, departmental or internal government interests.   Note P. D. Finn also makes the point that the principle “expresses what should be an inescapable consequence of sovereignty and trusteeship: accountability to the people is required of all who hold office or employment in, or who exercise public power in, our government system” – “A Sovereign People: A Public Trust” in P.D. Finn, Essays on Law and Government, Vol.1 Principles and Values (1995), pp30-32.

 

 

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