• Tim Smith transcript

    Date: 2019.07.17 | Category: 南京夜网 | Tags:

    Michael Short: The Honourable Tim Smith QC, welcome to The Zone and thank you kindly for your time. You are a former Supreme Court judge and a founder of the Accountability Round Table, ART. It is a non-partisan group of citizens dedicated to improving accountability, probity, transparency, and democratic practice in all governments and parliaments in Australia[1].
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    The word integrity comes to mind there, too. It is a huge area and we are going to focus on two crucial issues, mindful of the upcoming Victorian election; and those two areas are anti-corruption bodies, specifically whether we ought to have a dedicated national one in light of what we’re seeing with the experience in New South Wales and Victoria, and the second issue is the funding of political parties and elections.

     

    But before we do that, Tim, let’s have a look at some overarching things. Can you please briefly tell me about ART, in terms of its genesis and its evolution? You talk, for instance, of it having been driven initially, and it was set up in 2006, by anger and despair.

    Tim Smith: Well, in 2006 you may recall that the story broke about payments by the Wheat Board to the Iraqi government to secure sales to Iraq. And that was in contravention of the then international agreements that we had entered into, and it received a lot of publicity and criticism.

    The issue arose as to what extent the Prime Minister, the Foreign Minister and the Minister for Trade should be held responsible for what had occurred. Their defence was `we did not know about it; therefore we’re not responsible’.

    And we found a number of people who were concerned that if that proposition were allowed to be accepted, that was the end of ministerial responsibility. Ministerial responsibility is one of the fundamental conventions of our parliamentary democracy, and that resulted in the Round Table being brought together in 2006.

    Initially the focus was on that issue, ministerial responsibility. But it quickly became apparent to the uninitiated like me that it was also terribly important to identify and address some of the various trends that had emerged, which were putting pressures on the principle – including political funding, lobbying, the rotating door in lobbying and other issues.

    And so the objective became a broader one, the one we have now; essentially looking at the challenges to the integrity of our parliamentary democracy and what is required to address them.

    Since 2006 I suggest things have got worse.  At the Woodford Festival in 2012, the Honourable Malcom Turnbull  said that it has never been easier for parliamentarians to lie and that they treat us with contempt. He expressly included himself.[2]

    MS: Ministerial responsibility is one of those terms laden with importance and meaning in a democracy, and is intimately associated with another notion, which is that if you are in public office you are in a position of public trust. You talk about open and accountable government in that broader context as being fundamentally important to good government, and also to economic growth. So can you please try to bring those ideas together a little bit, Tim?

    TS: That is a challenge. I think it is clear that open and accountable government will produce better government than secret government. Secret government – government that thrives on secrecy – becomes hostage to the more powerful and assertive interests in the community, and tends not to have the benefit of the views of others in the community who have something relevant and important to say.

    Turning to the public trust principle: it is one that I was not aware of until 2009, and I have found that I am in good company. Very few people are aware of it. Now, obviously when you say that you have entrusted someone with power over your life, you expect that person to exercise the power in your interests and not their own interests.

    That would be the expectation on the person to whom you have conferred the power. In terms of public office, we voters entrust those we give our vote to with enormous powers over our lives. And simply as an ethical principle, it seems to be unarguable that in that situation the person entrusted with the power by us should give primary emphasis always to what is in the public interest, and if they find their personal interest in conflict, they must give priority to the public interest.

    But I now know, after further research and consideration and discussion[3], that this is not simply an ethical principle. It is part of the common law of Australia.

    May I quote the former Chief Justice of the High Court from his speech made before presenting the ART Parliamentary Integrity Awards last year[4]:

    “It has long been an established legal principle that a member of Parliament holds “a fiduciary

    relation towards the public” and “undertakes and has imposed upon him a public duty and a

    public trust”. 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”

    And while the courts cannot intervene in all cases, they have intervened in many cases and continue to develop the common law – that is, judge-made law. They are doing this particularly using the rules of construction, which are used to interpret legislation passed by our parliament, where powers are conferred on ministers in the most general terms, such as the powers given to Planning Ministers to intervene.

    Those powers are to be exercised for the purpose for which they are given. The courts accept that the overriding guiding principle is that the power must be exercised in the public interest, and not be allowed to be used to cultivate the private interests of those in whom the power is vested.

    MS: Just picking up on that then, public interest, you mentioned a phrase a moment ago that resonates throughout the debate: conflict of interest. And the question here, surely, is not whether conflicts of interest exist. Conflicts of interest exist everywhere always.

     

    The question, surely, is how they are managed and how they are seen to be managed, and in the realm of public office it is clearly crucial that the prevailing interest must be the public interest.

     

    So, how do we minimise the chances that that public interest is not honoured? And let’s look specifically at the Victorian election. There are three areas, for example, that you are really concerned about. Maybe we can go through those a little bit too, please, in that broader context.

    TS: It has to be acknowledged that there is probably no more difficult a task than being a Member of Parliament, because when you come into Parliament you bring with you a host of competing values and obligations to yourself, to your party, to those who supported you.

    You also bring ambitions. There is the electorate that you have obligations to. It is a job in which you cannot avoid conflicts of interest. So the challenge is how you deal with them. You may be interested to know that one of the things the Round Table has done is to have an Integrity Lecture each year.

    The first lecture was given by the Honourable Fred Chaney[5], who was a Minister in the Fraser government. His resolution of that problem is that what you have to ask yourself always is – “Will this decision serve the public interest?” And that is the way you find your way through this conflict-of-interest problem.

    MS: As long as you are not cognitively dissonant or delusional. TS: (Laughs.) MS: Well, you know, you could con yourself. TS: Oh, you have got to be intellectually honest about it, yes. You have got to be intellectually honest about it. You can advance arguments about why this would be in the best interest of the nation, but you’ve got to be intellectually honest.

    If you add to those challenges that you’ve got your personal ambitions, your party ambitions, and probably the most difficult one is the pursuit of power. So it is the ultimate conflict-of-interest challenge, but it can be met. It is extremely difficult to meet, but that is the way to approach it.

    And while Fred Chaney did not refer to the public trust principle, it underpinned what he said. That is what he was saying; this principle is there to guide, and sadly it appears that while until maybe 20 years ago it was to the forefront for many, it is questionable now as to whether it is to the forefront for the same number of our representatives.

    MS: Okay, so before coming back to the specifics in the context of the Victorian election, why might that change have occurred? Why might public trust no longer be central to our notions of good government and good governance?

    TS: I think it is because we have stopped talking about it.

    MS: So you think that failure at the media level and at the community level to make sure that our elected lawmakers are aware that we are aware. Do you think that has let them off the hook?

    TS: I think it has. And we all share the responsibility for that.

    MS: I was coming to that. And let’s do that now, and we will get back to Victoria. What can the citizens do, then, if they are worried about these issues?

    TS: Join a political party. Form organisations to campaign for open and accountable government. One of the Round Table’s new members, Carmel Benjamin, has set up such an organisation – Ican[6]. It has been operating now for about three months. The last information I had was that its membership is now up around 60, and there are a lot of people out there who would share the concern of the persons you are referring to about where our democracy is heading.

    The other critical thing in bringing that principle back into people’s minds and into political play is the education system. I have no recollection of being taught by anybody of the existence of this principle. Lawyers I’ve spoken to, very few of them can recall it being discussed.

    And while it would seem that if you have majored in philosophy you may have heard about it – because Plato was the first person who came up with the principle as an ethical principle –  I think the other critical thing to do is to have the issue on the syllabus of university courses, whether it be law, ethics, politics, government, planning. It should be there.

    MS: You know, Tim, I find this strange in a sense because it seems to me that this is a no-brainer, to use that horrible American expression; it is self-evidently the case that if you are in a position of publicly funded office, your primary responsibility is the public interest. Isn’t that self evident? TS: But until we started talking about it, had you been thinking about it in those terms?

    MS: Yes, absolutely. I have always thought in these terms. I did study some philosophy at university, but I don’t think it was because of that. I did grow up in a family that was politically engaged, because my father was a federal politician, and maybe it was that.

     

    But it just seems to me self-evident that if you are there to make laws for people and to administer the democratic system that your primary responsibility is to the public interest. I do not see what is difficult about this. TS: The principle isn’t, but if we are not talking about it and if the political commentary is not bringing it into discussion, it will leave sort of a vacuum in the political debate. And those who we have entrusted with power are under immediate pressures of all sorts and I suppose the immediate political necessities from day to day will tend to dominate thinking, whether we like it or not.

    MS: Well, let’s look at some pretty immediate stuff politically, and that is the Victorian election. And this is something that has national significance because of the issues that we are discussing here, leaving freedom of information to one side for the moment.

     

    You have been recognised widely as being concerned about, particularly given your former role on the bench and your role as an advisor to government, the Independent Broad-based Anti-corruption Commission in Victoria, IBAC as it is called.

     

    Your concern is that it has no teeth and in fact has also been muzzled. You’ve made these points over the years and you have made them again recently in light of suggested changes to that legislation which you and others, including The Age, argue do not go far enough. We have still got that ridiculously high threshold.

     

    That is one problem. The second is the funding of political parties and elections and related to that is lobbying. Let’s start with number one, anti-corruption commissions – specifically IBAC, and then more broadly.

    TS: Let me go back to the report that was issued by IBAC. The report referred to the issue of the threshold for investigations. It said it was too high. There is no doubt that it is too high. Now, that doesn’t mean they are not able to do things. They can investigate the police.

    They can investigate acts of alleged corruption, provided they have got just about all of the evidence placed in front of them in the first place. In which case they are probably not needed anyway; it could go straight to the police.

    The real test is, is it in a position to investigate, to take an example, an Eddie Obeid matter, as the NSW anti-corruption commission, ICAC, has? And the answer is clearly no. That is because the threshold test is so high.

    MS: And that is because you have to have evidence of a criminal breach? TS: You have got to have facts which if accepted would prove beyond a reasonable doubt that a relevant criminal offence has been committed. MS: And you have pointed to the evident absurdity of that situation.

    TS: Yes. Stephen Charles is someone else who has been very involved in that. He is one of our members and that is his view, too. One of the original advisors, Douglas Meagher, has described it as a waste of public money, I think.

    And that is presumably for those same reasons – that you really want it there to be able to dig out the highly organised secret conduct of the sort that has emerged in that ICAC inquiry in New South Wales. They worked for months on that before they could even get close to having enough evidence to form the view that they should bring people in to be questioned.

    MS: The last time I looked, those questions had led to a very swollen crossbench the New South Wales Parliament. What should change in Victoria?

    TS: Look, it is very simple. The promise that was made at the last election by the conservative parties was to establish a Victorian ICAC. MS: Dare I ask in light of that, and keeping in mind the other issue we are going to talk about in terms of funding, how one might vote were one concerned about probity and transparency and accountability in government in the upcoming Victorian election?

    TS: At the moment we have not got all the details of the parties’ commitments. The Round Ttable has written to them seeking commitments to three particular reforms. The first listed was the IBAC reform. At this stage, we have an initial response from the ALP, which states that they are going to address the threshold problem, but we have not yet been supplied with details.

    They have said they are proposing to publish their positions on a variety of issues as the campaign progresses. We are yet to have a response from the present government. The Greens have written indicating their support for the New South Wales approach, to put it in broad terms.[7]

    It is an interesting question that faces voters in this election, in that my impression is we have probably the lowest level of trust in our elected representatives. I have been thinking that if you are attracted by the policies of a party, there would be lingering doubt in your mind as to whether those policies would in fact be implemented, in view of the history we have been observing in recent years.

    I would suggest that one of the things that you should look at in forming your view about the likelihood of those promises being implemented is what are they proposing to do in relation to the problem areas we have in our current government integrity system. IBAC is one of them.

    You have to realise that the risk of corruption in our current society is higher than it was when the Fitzgerald Report came out (in 1989), because we have been outsourcing so many government services and services to government that there are far more people now in the community whose businesses are dependent upon getting contracts from government.

    MS: And yet, and I’m sorry to interrupt, when I was spending time studying in France in the late 1980s and having a look at governments around the place, I must say that some of the most corrupt situations I have ever seen, and I was in Cambodia recently, is where stuff had not been outsourced; it is centralised stuff.

    TS: Well it can happen there, too. Oh yes, if you have just got totalitarian situations then you have got to get favours from government in various ways, you have got to get permissions and so forth. And you would have the opposite of open and accountable government. MS: So we are looking for a sweet spot here? TS: I suppose we are. But, nonetheless, if you are talking about risks of corruption comparatively I think it has gone up for the reason that I mentioned. You have then got the political funding problem.

    It has been referred to as the arms race, parties wanting more and more money so that they can advertise more in their campaigns and so forth. We have also had develop a lobbying industry which we did not have before.

    MS: And then we have got FOI, so you have those three broad areas. TS: We had FOI brought in, and thanks for raising it. That was brought in in the 1980s in Victoria. We were leading the way. But since then, by the very creative use of exemptions by governments, we have gone into reverse and are in a worse position than we were, I think, because now you have major contracts being entered into by governments  and we don’t even know the terms.

    MS: Let’s park FOI. And I am aware of what you have written about those major contracts, so I can write them into the article. Let’s go back to the anti-corruption commission issue. I understand what you have said about ICAC versus IBAC. Do we need a national or federal anti-corruption commission, or do existing protections offer adequate rigour? TS: Those who say we don’t need one say that there is not enough evidence. The problem is that there is no Commonwealth ICAC looking for it. One of the reasons you have an ICAC is to gather that intelligence, to get a sense of where things stand. Corruption is not like any other crime. There is no victim who will go to the authorities.  The community is the victim and wont know about it.

    MS: Do you suspect that were we to look we would find corruption at the federal political level? TS: Politically, I do not know.  But the risk is very high and we do not have a Commonwealth body whose job it is to address that risk.[8]

    MS: Commercially? TS: Think of the billions of dollars of government contracts that are put out to tender and there are people who, and there will always be, believe the rules do not apply to them and if they think they need something they will use whatever means they can find to get it.

    MS: And as years of investigation by some of my colleagues at The Age here have shown, it goes to the very level of our central bank.

    TS: That is a very important example. It threw up a couple of other points that need to be born in mind. What you had there was that it came to the attention of the Reserve Bank through an officer of one of their subsidiary companies.It was dealt with by an internal investigation.  It failed to pick up similar problems in another subsidiary company. The Age subsequently blew the whistle on that company.  To have confidence in such investigations, you need an independent external body to investigate  because the officers of the government body conducting an internal investigation  will usually be  in a conflict situation. The other point thrown up was that where there is no body with the ultimate responsibility for such investigations, they can end  up being passed between relevant investigatory bodies. MS: Absolutely, so, and mindful of time, do you think, Tim, it would be a national-interest advancement for Australia were we to have a well calibrated anti-corruption commission federally? That would usurp and replace any state-based commissions? TS: No. Not at the moment, but that might be an issue for the future, as to whether to have just one national anti-corruption body.

    MS: Initially and in the interim it would compliment the state ones? TS: Yes, they would work together.

    MS: Let’s move on quickly to election and political funding. Should elections be paid for purely out of the public purse?

    TS: Look, I think not. I think there should be scope for contributions to be made, but they should be modest and public. MS: Okay, modest and public. That means declared? And that there be a minimum of loopholes? Because I think everybody agrees with the principle that one ought not be able to buy power and policy. So what is the scope?

    TS: New South Wales brought the threshold down to $1000, I think. There seems to be a consensus amongst those who wanted to see change that that is probably a reasonable figure to use, after which there needs to be a public disclosure.

    MS: It covers a bottle of Grange. Do you think that that was an undue response? Did the then NSW Premier set a good example by resigning, or did he fuel concerns about conflict-of-interest by provoking the reaction that I heard a fair bit there must have been something more going on here, that you don’t resign from the premiership of Australia’s biggest state over a bottle of wine. TS: There may well have been other connected matters. Who knows? We don’t know. But it is some evidence of what is seen in the political world as acceptable. And that is a worry. He could have sent it back.

    MS: There is a lot of what-ifs in life, isn’t there? TS: That’s right. And it is very easy sitting here making judgements on these things.

    MS: But I don’t think that you are making judgement. I do not think you’re pontificating. I think you are raising crucial issues. And they go to trust in a number of ways. A supplementary question on funding: are there any commercial categories that ought to be blocked from funding, for example property development and casinos?

    TS: They are areas where you have people seeking permissions from government. It is a classic area historically – I’m not reflecting on the people who are presently in it, but historically it is an area where there has been corruption. MS: Because you’re seeking permission to seek rent, effectively, aren’t you?

    TS: Yes, you are. I think that probably there is evidence of difficulties flowing from the developers being able to supply large sums of money. I think you would want evidence of past corrupt activity. I am not aware of any in respect of gambling.

    But that would probably also be needed I think, because if there was a challenge to the legislation recent High Court consideration of the issue has suggested that you need to have some specific reason for denying people the right to make donations. And I think that that would require some evidence of past corrupt conduct in the particular area.

    MS: There are mooted changes recently controversial, Tim, about national security and suggested restrictions on media ability to report stuff that the government is seeking to be able to just put a blanket over. Are you concerned that we might be over-reacting to perceived threats of national security in the contemporary ISIS and otherwise terrorist-filled debate, or do you think there is some validity in that?

    TS: It is obviously an issue of some importance. It is, though, an issue that should not be rushed and it should be publicly debated and publicly discussed. One of the problems in recent times is that those opportunities are not presented.

    I go back to IBAC: well, there was initially a committee established which received evidence of various issues, we still don’t know what that evidence was and we still don’t know what they reported back and there was no subsequent exposure of the Bill and an opportunity to make comment on it and submissions on it before it was passed by Parliament.

    MS: Which is quite funny, in a sad sort of way, isn’t it? It is a bit ironic.

    TS: I always wondered what was it that caused that turnabout, which is the only way you can describe it, between what was promised and what was done. Something must have happened.

    I wonder whether part of the explanation is, to come back to where we were before, that when they were thinking about what to do they were more concerned about the problems which might be exposed by IBAC then their obligation to the community to put the public interest first. And that may well be explained because it never occurred to them to think about it.

    MS: And it may be well explained by two words: Nick Greiner.

    TS: Certainly Nick Greiner was raised. But I have always been puzzled about that as a “justification” because, as I understand it,he appointed someone to a position without following procedures that had been laid down and did so to solve an internal party problem.

    MS: And thereby became the first person bitten by his own watchdog legislation. Do you think they might have been mindful of that at the time you’re suggesting? TS: I don’t know.

    MS: We shall leave that hanging. What motivates you Tim? Why do you do what you are doing now?

     

    TS: I have slowly but surely slipped into it – unwittingly, I think. I was there at the outset and was one of the people who raised the issue. We were spoiling a Christmas lunch down at the beach with my sister and she said we must do something about it and suggested talking to Race Mathews about it.

    We did that. He said something needs to be done about this’.  He said you have got to have a non-partisan organisation and set about organising it. And that is what happened – and we have a non-partisan,very experienced, knowledgeable, wise group of people involved.[9]

    MS: You have even been non-partisan with your awards. You have the Missen Award and the Button Award.[10] TS: And I think people have generally accepted them as honourable  names to use. But I was not anticipating that I would be working harder in retirement than I did when I was a barrister or when I was a judge.  I didn’t think that was possible, but that is what has happened. I don’t know whether that is wise, but the problem is there is no end to what you can try to do.

    MS: It seems to me the concept of retirement has become redundant, and increasingly people who have had fascinating and heavyweight and otherwise careers and involvements and engagements in the community and as citizens are actually maintaining their contribution and their well-being through a portfolio of activities. And you are an example of that, I think. TS: I think that is happening. My mother would have said you like to feel useful. That was her explanation. MS: I think people do like to feel part of something bigger.

    TS: I think though that there is another factor playing, and that is when the grandchildren arrive. You worry about their future. I worry about what is going to happen to our democracy unless we do something.

    MS: In the knowledge of some of the stuff we talked about at lunch, in particular that you and some of your contemporaries consider yourselves part of a very, very fortunate, if not the most fortunate, generation, can you think of some point turning points in your life? TS: I do feel extremely fortunate, and one of the areas of good fortune was decisions that I made which professionally turned out much more beneficial than I could have imagined. At the same time they could have been disastrous.

    MS: Does that mean that you took some risks that worked out?

    TS: Well, when I went to the Law Reform Commission in 1980, most of my colleagues thought I was crazy. I was getting off the ladder at the Bar in doing that, but as part of my legal education that was most important.

    And I suppose it might explain partly why I am here today, because I started looking at policy as a lawyer. When you train as a lawyer you tend not to look at policy because that may distract you from what the law is. But that was fascinating. And I have retained my interest in policy as a result.

    MS: And speaking of the ladder of the legal profession, that decision did not turn out to be a snake did it?

    TS: No. Again I was fortunate.

    MS: Yes, you were sitting on the bench for a while contributing.

    TS: Yes, for about 21 years. But I got paid for it.

    MS: Law, philosophy, politics; they are cousins, so I am not surprised that you have come out the other side doing this.

    TS: I think I came out a better lawyer as a result of that Law Reform Commission experience, but the other thing is when you find yourself in a position where you may be able to help make change happen for the better do you say no I am not going to bother?

    MS: Did you ever think of going into politics? TS: I did, actually – back in my 20s.

    MS: And? TS: I had a look at it. I in fact was a member of the ALP in the 60’s and 70’s. I got myself elected onto their Disputes Tribunal. And that gave me the chance to observe what politics was like, and I decided I was not suited to it.

    MS: Was there a moment, or a gradual awakening that you did not think this is what you wanted to do? TS: I did not think I was cut out for it.

    MS: In light of where we are now and what we’re talking about now, that’s perhaps not surprising. Would you have been any good? Would you have been an honest politician? TS: I think I would have had to try to get  into an upper house, for a start. There may be less scope for conflicts of interest up there, I don’t know. But when you look at the conflicts of interest, I think it is very hard, very hard.

    MS: I think most people who go into Parliament are decent people, and I think most of them have integrity. I think some of them don’t. And some of them lose their way. But I think that most people who go in there do so for the right reasons. But it is indeed a tough gig. And speaking of hard, what is the hardest thing you have ever had to do, Tim? That is a hard question, and is the final question to every guest in The Zone.

    TS: I have thought  about work situations and I have thought of personal situations and I’ll just briefly say this without elaborating, if I may: probably exercising the enduring power of attorney for my parents.

    MS: Say no more. I think a lot of people would understand that. Thank you very much for your time today. TS: It’s a pleasure.

    [1] Web site; www.accountabilityrt南京夜网.au

    2 http://www.youtube南京夜网/watch?v=VTOtpzMelyI

    3 http://www.accountabilityrt.org/integrity-in-politics-public-office-as-a-public-trust-is-there-hope/

    4 http://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/

    5 http://www.accountabilityrt.org/inaugural-art-lecture-fred-chaney-integrity-parliament-where-does-duty-lie/

    6 [email protected]南京夜网

    7 http://www.accountabilityrt.org/

    8 Recent submission by ART to the Parliamentary JPONMt Committee on ACLEI – Submisson 11; http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Australian_Commission_for_Law_Enforcement_Integrity/Jurisdiction_of_ACLEI/Submissions

    9 http://www.accountabilityrt.org/about/

    10 http://www.accountabilityrt.org/integrity-awards/

     

    [2] http://www.youtube南京夜网/watch?v=VTOtpzMelyI

    [3]http://www.accountabilityrt.org/integrity-in-politics-public-office-as-a-public-trust-is-there-hope/

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

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

    [6] [email protected]南京夜网

    [7] http://www.accountabilityrt.org/

    [8] Recent submission by ART to the Parliamentary JPONMt Committee on ACLEI – Submisson 11; http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Australian_Commission_for_Law_Enforcement_Integrity/Jurisdiction_of_ACLEI/Submissions

    [9] http://www.accountabilityrt.org/about/

    [10] http://www.accountabilityrt.org/integrity-awards/

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