For that reason the following is an “open submission”, released for any member of the public to read (or to utilise for their own submissions if they wish to do so), and also for any members of the Select Committee to read.
 
The main function of the Select Committee is to “inquire into the issue of ethical conduct, standards and integrity of elected Parliamentary representatives and servants of the State”.

Fundamental to any inquiry into the issue, and any review of mechanisms to support ethical and open government and the capacity to conduct independent investigations, is a clear and detailed definition of “ethical conduct, standards and integrity of elected Parliamentary representatives and servants of the State in performing their duties”.

There are two broad areas which need to be encompassed within this definition.

Firstly, the definition must make it plain that elected politicians and public servants are responsible for not subverting the functions of public institutions, including their basic democratic functions. 

At its most basic and significant level, any behaviour or action which weakens, undermines or removes the effective operation of the separation of powers between the executive, legislative and the judicial arms of government, should be recognized as a corruption of important functions of government.

Secondly, the definition must make it plain that elected representatives all made a formal commitment before the Governor: “To the people of this State, we owe the responsible execution of our official duties, in order to promote human and environmental welfare.”

This is not just a casual commitment to be ignored at whim or convenience or on the basis of caucus solidarity.  Nor is it a commitment to just some people in the State at the exclusion of others.  Any action or behaviour of an elected representative which abrogates this responsibility, including through lack of due diligence, or by placing personal political or party interests above this responsibility, should be recognized as a corruption of responsible representation.

What does this mean in relation to the review of existing mechanisms to ensure ethical, open and accountable government and the possible establishment of an Ethics Commission or Independent Commission Against Corruption?

To ensure that important democratic principles inherent in effective operation of the separation of powers are not subverted, current practices which weaken the separation between the executive and the legislative functions of government must be identified and removed. 

Practices which inhibit or prevent parliamentary analysis of legislation and avoidance of inquiry into controversial matters are profound subversions of parliamentary functions and must be recognized as corruptions of democratic processes.  They are practices which destroy the proper democratic functioning of the legislature, and which produce a lack or absence of accountability by the executive. 

Such practices include the identification of non-urgent legislation as urgent, the restrictive number of sitting days of Parliament, the use of “tactical” tools to limit debate, and in 2007, the use of Parliament as a planning body.

There’s nothing radical about potential solutions to these existing corruptions.  Parliamentary debate should not be truncated or guillotined for party political interest.  Sitting days should not be lengthened.  Instead, there need to be more sitting days to allow for sound analysis of legislation before it is passed.  Matters of public concern must be thoroughly explored.  This includes referral of all legislation to a committee, and committees should be given sufficient time to receive public submissions and evidence and to properly scrutinize and analyze legislation.

Without mechanisms in place to protect these proper functions of the legislature, the separation of powers between the executive and the legislative will fail, corrupting the essential workings of democracy.

There is one other important reform required in the Tasmanian political system to ensure a workable separation of the executive from the legislative, and that is an increase in the size of the House of Assembly.  It is not possible, since the reduction of the Assembly at the end of the last century, for the important functions of Parliament, especially proper analysis of legislation, to be satisfactorily and adequately performed. 

In relation to the third branch of government, it is similarly essential to secure the independence of the judicial arm, and ensure its powers are not subverted.

The judiciary must be seen to be politically neutral. Judicial appointments should be based on publicly disclosed consultation and merit-based selection processes, and should be explained in parliamentary forums as they require.  None of this is apparent in Tasmania.

The effective separation and operation of judicial powers from the other branches of government in Tasmania is seriously compromised by the ability of the executive power and its control over the legislature to pass laws which contain statute bars, preventing or limiting rights of legal appeal.

Statute bars in legislation are a fundamental corruption of the democratic process.  They remove entirely from the political landscape the capacity of the judicial branch to play a role in the checks and balances necessary to maintain a healthy democracy.  This is because in Tasmania statute law supersedes common law, which means there can be no appeal against an unjust law. 

Statute bars in legislation are a direct attack on the integrity of democratic structures and processes and should be regarded as unethical.

Which brings us to the elected representatives and the public servants. 

All politicians who do not seek to remove statute bars from legislation prior to its passage are abrogating their responsibilities in performing their duties, responsibilities which extend beyond the preservation of democratic processes, and are representational. 

Politicians who vote in support of statute bars are voting to deny or limit the legal rights that people would have otherwise.  They are thereby threatening people’s rights rather than representing them. 

The underlying principle for “ethical conduct, standards and integrity of elected Parliamentary representatives and servants of the State in performing their duties” must be a duty of care to prevent harm. Where this principle is ignored or dismissed there is a failure of ethics and integrity. 

When politicians, in passing legislation, ignore or overlook evidence of potential harm in “human and environmental welfare”, they are acting unethically.

Sounds simple?  It does in theory, because it immediately suggests that the first instinct of elected representatives and public servants should be altruistic, to ask the obvious: will it harm?  That simple question, at the heart of the responsibility of elected politicians and non-elected bureaucrats, places public interest at the centre of policy development instead of something else, such as corporate interests, or personal political ambition or party political interests.

Once public interest is not at the centre of public policy, “ethical conduct, standards and integrity” have become matters of lip service only, not of substantive political action and behaviour.

Can this Select Committee of eight politicians come to grips with that essential principle, and really enable it to inform their inquiry?  Can they, additionally, come to grips with the real need to adopt measures designed to secure an adequate and well-functioning separation of powers in the Tasmanian political environment?

If not, the inquiry is doomed from the outset. 

But if so, a majority of the members of the Joint Select Committee on Ethical Conduct, (and not including Terry Martin and Nick McKim), will need to acknowledge that they have unreservedly supported at least one statute bar attached to legislation, and have ignored important evidence about the likely harm of Pulp Mill Assessment Act 2007.

Is not that in itself a huge hurdle, a task too difficult?

And if that is the case, and the Select Committee really has the public interest in mind, perhaps the first matter it should address is whether the whole issue, including the terms of reference before them, should be referred to an independent panel, consisting of people of high repute and recognized standing in the community who have no vested interest in the outcome of the inquiry – except one thing, and one thing only: the public interest.

Earlier Peter Henning articles: Here

(Note: further discussion of some of the issues linking governance, ethics and justice can be found in other articles, So What? - Ethics and Governance in Tasmania, and Law and Justice Part Company – Tasmanian Pulp Mill Assessment Act 2007, and The profound contempt of the Lennon government.
An essay by former Clerk of the Senate, Harry Evans, “Parliament”, in Dear Mr Rudd, ed. Robert Manne, Melbourne, 2008, has been used in sections of this article)
 

 

 

 

 


   
 

Peter Henning

THE Tasmanian Parliamentary Joint Select Committee on Ethical Conduct has invited public submissions.

Unfortunately, the Select Committee has decided that people who make submissions “must not release them without the approval of the Committee”.