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Power Unconstrained, by Spencer Zifcak

The federal government attacks its watchers

In recent years the federal government has made an art form of undermining the autonomy of independent statutory offices established to hold it to account. One by one, statutory offices have been subject to forceful governmental and media assaults. These assaults have not related to the performance by statutory office holders of their statutorily mandated duties. There has been no suggestion of negligence or lack of competence. Instead the government’s behaviour has been motivated, seemingly, by nothing more than a desire by ministers to avoid being held accountable for their actions. The implications of this for the proper and effective conduct of government are severe. The exercise of political power has become ever more arbitrary and unconstrained. Three recent examples serve to demonstrate this deeply undesirable development.

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The first case concerns the effective abolition of the Office of the Australian Information Commissioner (OAIC). The office was established in 2010 to address very apparent weaknesses in the implementation of Commonwealth freedom-of-information (FOI) legislation. This legislation provides Australians with a legally enforceable right to obtain access to information about them that is held by government. It also entitles Australians to request and receive a very wide range of policy and programmatic information. But by 2010 these rights had progressively been chipped away. So, the FOI Act was reformed and the new office was created to facilitate public access to governmental information and to provide a quick, efficient and cost-effective system to review governmental decisions refusing access to documents.

The problem for the Abbott/Turnbull government was that the office was too good at doing what its legislation required it to do. Documents were disclosed that the government desired to remain confidential. Sometimes the disclosure of documents caused ministers considerable political embarrassment. And the concentration of FOI expertise in a single, statutorily independent office engendered consistency and strength in the administration of FOI law more generally. These latter qualities had been markedly lacking in the system that prevailed prior to the OAIC’s creation.

But, in 2014, the government introduced the Freedom of Information Amendment (New Arrangements) Bill. The Bill abolished the OAIC and returned its external-merits-review functions to the Commonwealth Administrative Appeals Tribunal. The ostensible rationale for this dramatic intervention was to streamline the FOI system by removing a layer of merits review and aligning FOI review with other merits-review processes across government.

No one ever believed that this was the real reason for the move. Its real purpose was to rid the government of Professor John McMillan, the respected and successful information commissioner, whose review decisions were, in the government’s opinion, too often controversial. The other objective was to discourage public access to governmental documentation and independent review more generally. Under the new legislation, this latter purpose would be achieved instantly because, while review applications to the OAIC were cost free, the return of the jurisdiction to the Administrative Appeals Tribunal would mean that applicants for review of government decisions would face an immediate fee of approximately $800.

Not all went well with the government’s FOI reform, however. A sustained campaign of opposition by legal and civil-liberties organisations eventually succeeded, making it clear that the Senate would block the legislation. For that reason, the Bill remained on the Senate notice paper, but the government did not bring it on for debate. Instead, it adopted a different tack: it stopped funding the OAIC.

In the 2014–15 Budget, the financial allocation to the office was slashed. Within months, the staff of twenty-three had been reduced to three. Insufficient funds had been provided even to meet the rental costs of a Canberra city workplace. In the end, Professor McMillan was reduced to working from home. The practical result was that the FOI review system returned to the failed state in which it had languished prior to the 2010 reforms. This was despite the fact that the law required to achieve that result was still before the parliament and had yet to be put to a vote.

That was bad enough. But the action also brought an important constitutional issue into play, one that was nowhere covered in media reportage of the matter. Put simply, the issue was that the government had sought to achieve its reform through executive action, when what was properly, constitutionally required was that the law abolishing the OAIC should have been enacted by the parliament. The FOI Act established the office of Information Commissioner, but that office could no longer be meaningfully considered as existing.

The government has a constitutional duty to respect, implement and maintain the laws of the parliament. In this instance, it had deliberately repudiated its obligation to do so. The constitutional wall of protection separating the legislature from the executive had plainly been breached.

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The second, more recent case concerned the attempt by the federal attorney-general, Senator Brandis, to constrain the statutory jurisdiction of the Commonwealth solicitor-general, Justin Gleeson QC. Senator Brandis sought to introduce a new rule that the solicitor-general could only provide a legal opinion to a government department or agency if the attorney-general’s consent was first obtained.

The functions of the solicitor-general are set down in the Law Officers Act 1964. Section 12 of that Act sets out three. The solicitor-general may act as counsel for the Commonwealth, its departments, agencies and officers. He or she may provide an opinion to the attorney-general on questions of law referred to him or her by the attorney-general. He or she may perform any other function as legal counsel that the attorney-general may request.

In Senator Brandis’ view, section 12 means that the solicitor-general may act with complete independence when acting as ‘counsel’—that is, when acting as the government’s advocate in court. The position is different, however, when the solicitor-general is asked by a government department or agency to provide a legal opinion. The senator’s contention was that the solicitor-general may only provide a legal opinion when the request for the legal opinion has been referred to and approved by the attorney-general. If the attorney-general has not approved, no opinion may be sought or obtained.

In his submission to the Senate inquiry into the matter, Justin Gleeson argued that the attorney-general’s interpretation of section 12 was legally incorrect, because Senator Brandis interpreted acting as ‘counsel’ far too narrowly. As generally and properly understood, the role of counsel is not confined to representing persons or organisations in litigation; it extends further, to advising them on their rights and obligations irrespective of whether litigation is anticipated or contemplated. In his capacity as counsel, therefore, the solicitor-general contended that he should be able to provide such opinions without the attorney-general’s intervention.

The solicitor-general noted that he had previously been instructed to provide legal opinions without any express approval from the attorney-general having been communicated to him. These occasions had included requests from persons such as a prime minister and a governor-general in circumstances where he had been required to keep the requests for, and the content of, his advice confidential. That position, he concluded, ought not to be changed.

The solicitor-general’s opinion was plainly to be preferred. His interpretation of acting as ‘counsel’ conforms to conventional legal understanding and practice. And the consequence of adopting the narrower view would have been to constrain the role and functions of the office of solicitor-general far beyond any limitation that has been contemplated since the establishment of the office in 1964.

To require departments and agencies to obtain the prior permission of the attorney-general to seek a legal opinion would act as a significant disincentive for government agencies to approach the solicitor-general for advice, particularly given the highly political nature of the attorney-general’s office and the partisanship of its occupant. It would also have a significantly adverse effect on the solicitor-general’s independence and autonomy.

As the dispute between the attorney-general, the first law officer of the Commonwealth, and the solicitor-general, the second law officer of the Commonwealth, became ever more contested and bitter, it also became clear that it had been motivated, at least in part, by disagreements between the two concerning the advice provided by the solicitor-general in at least three highly political cases. One of these concerned the legal foundation for the governor-general’s proroguing of parliament for two days to make way for a double-dissolution election. Senator Brandis had not liked the opinions because they could have blocked political actions to which the government was committed.

Citing an irretrievable breakdown in the relationship between the two officers, the solicitor-general resigned.

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The third example is the government’s treatment of the president of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. The relationship between the government and the president first deteriorated following the commission’s release of its 2014 report The Forgotten Children: National Inquiry into Children in Immigration Detention. The report was sharply critical of the condition of children held in detention. The inquiry found that the prolonged detention of children was having a profoundly negative effect on their mental and emotional health and development. It cited numerous reported incidents of assaults, sexual assaults and self-harm involving children. These indicated that there were very real dangers to children’s well-being when they were locked away in the detention environment. The AHRC inquiry recommended that all children and their families be released from immigration detention and that a royal commission to examine the use of the policy of mandatory detention be established.

The government reacted furiously. Remarkably, it did not attack the conclusions of the inquiry itself. It couldn’t. The report was watertight. Rather, it accused Professor Triggs of bias because she had commenced the inquiry after the 2013 election of the Abbott government and not before, under the Rudd/Gillard government, when many more children had been detained.

This argument was not only politically opportunistic but also really weak. Professor Triggs responded that she had delayed the commencement of the inquiry so that it would not be caught up in the political hyperactivity and hype associated with the conduct of the 2013 election. It was better, she thought, to engage in the inquiry, the conclusions of which were bound to be controversial, in the calmer political environment that would follow the swearing in of a new administration. This was an understandable and sensible justification.

More recently, Professor Triggs has found herself once again the target of pernicious attack from the government and in the pages of The Australian. This attack has related to the role of the AHRC in dealing with two controversial cases brought pursuant to section 18C of the Racial Discrimination Act 1975. Section 18C provides that a person commits a civil offence if he or she ‘offends, insults, humiliates or intimidates another person on the grounds of their race, colour or ethnic origin’.

The two cases were problematic. In the first, an Indigenous staff member at the Queensland University of Technology (QUT) alleged that she had been the subject of offence and humiliation on the grounds of her race, following certain Facebook posts by five students ridiculing her decision to exclude them from an Indigenous-only computer laboratory. In the second, two Indigenous men complained that a cartoon by Bill Leak, the resident political cartoonist at The Australian, was offensive and racist. The cartoon depicted a police officer handing over a young teenager to his father for discipline. The father, however, was depicted as drunk and derelict, the implication being that parental dereliction was the primary cause of teenage misbehaviour.

The legal problem with the complaints was that, although hotly contested, under section 18C they were borderline at best. The political problem with them was that they were brought pursuant to a statutory provision that was itself the subject of fierce political contestation.

Nevertheless, the AHRC gave both complaints serious consideration. In the process, however, the defendants suffered significant stress and reputational damage. And a different consequence was that Professor Triggs and the commission were subject to damning political attack.

In my view, neither case met the standard of proof required by section 18C and its companion provision, section 18D. Neither would have been successful if litigated and, in fact, the QUT case was dismissed recently by the Federal Circuit Court. The applicants in the Bill Leak case have now withdrawn their complaints. But this is not to the point in the present context. The point is that Professor Triggs was criticised politically on grounds that were inaccurate and highly misleading. The plain intention of the critics within government and at The Australian was to destroy her reputation with a view to prompting her resignation.

Three principal criticisms have been levelled. First, it was said, by the prime minister among others, that the commission should never have initiated the action against the QUT students in the Federal Circuit Court. Even a cursory reading of the commission’s governing statute, however, reveals that the commission has no power to initiate court action. And it didn’t. The Federal Circuit Court action under section 18C was brought by the QUT staff member herself.

Second, it was said that the commission behaved improperly by not informing the students that the complaint had been investigated for many months, until three days before a conciliation hearing was scheduled. In fact, as the QUT vice-chancellor recently acknowledged, the delay occurred as a result of QUT’s wish to try to settle the matter and thereby protect the students from unnecessary anxiety. It had asked the commission not to contact the students.

Third, Professor Triggs was attacked on the ground that she should have dismissed both complaints at an early stage, given that both were unlikely to succeed—she would thereby have avoided a lot of heartache for the respondents. Here, again, it would have helped if the critics had read the relevant legislation. The commission’s Act requires it to investigate any complaint that is made and then to endeavour to conciliate it. There is no power conferred on the commission by the Act to dismiss complaints either because they are vexatious or have no reasonable prospect of success. Professor Triggs herself has asked that the legislation be amended to provide the commission with just such a power. But she didn’t have it and so could not exercise it.

The prime minister has announced that Professor Triggs will not be appointed to a     second term as president of the commission.

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There is a sense in which government exercises its powers as a public trust. It owes a fiduciary duty to the people to govern on their behalf and in the public interest. It forms part of that duty that ministers and public servants should be held accountable for their decisions and actions. Independent statutory officers, the purpose of whose office is to provide that accountability, therefore, should not be kicked around or knocked over like skittles whenever the executive branch of government finds itself discomfited.

On this evidence, the Abbott/Turnbull government has failed dismally in the exercise of its public trust. One hopes, probably in vain, that the prime minister might rediscover it.

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