05.05.06

Integrity and Assurance

Posted in Gazette Articles at 12:00 pm by JohnPower

In the very heart of our constitutional system, John Power proposes a Council of State, chaired by an elected President who provides integrity and assurance that our state and federal governments are working for the people under the rule of law.

Constitutional reformers around the world have in recent years been concerning themselves with the ways in which integrity in governance may be assured. Indeed, some, like Bruce Ackerman of Yale, have argued for the recognition of a separate ‘integrity branch’ of government [1], and this call has now been echoed in Australia by the Chief Justice of New South Wales, Hon. Jim Spigelman [2]. However, neither of these writers has yet gone on to investigate the best institutional design for this proposed new branch. And those few writers who have, such as some of the participants in the Australian National Integrity Systems Assessment Research Project, have not focused on the ways in which the office of head of state could contribute to the work of integrity assurance [3]. Thus, there is no mention in the Project’s reports to date of a possible gubernatorial role in the coordinating Governance Review Councils that it has recommended for each of the Australian jurisdictions. It has yet to be recognised that concerns for integrity assurance can greatly strengthen the republican movement in Australia.

Any responsible head of state must have a strong interest in assuring the integrity of the system of governance of which s/he is the titular chief. Heads of state will however differ in the ways in which they go about this vital task. Monarchs tend to rely most heavily on the character and sense of ethical responsibility of individuals exercising public authority. In contrast, republican heads of state place greater emphasis on public dimensions, requiring those in authority to be able to demonstrate that they are performing effectively. In republican regimes, those in authority need to be able regularly to satisfy interested publics that integrity is being protected.

For much of its history, Australia was well served by the monarchical approach. ‘The Crown’ acted as a potent symbol of the public interest. In their assumptive worlds, those in authority saw it as their duty to protect that public interest so strongly symbolised by the monarch. And they were for the most part accorded the independence to do so.

As the monarchy began its irreversible decline in Australia, mechanisms of integrity began to proliferate, seemingly in compensation. In all the governments in our federal system, the following relevant institutions are now concerning themselves with governmental integrity:

• Governors
• Cabinet offices
• Executive branch law officers (eg attorneys- general, solicitors-general)
• Public service commissioners
• Court and tribunals (AAT etc)
• Parliamentary committees
• Statutory officers (ombudsmen, auditors- general)
• Independent standing commissions (ICAC, ARC, HREEOC etc)
• Official inquiries (HIH, AWC etc)
• Internal public service units (office of police integrity etc)
• Non-government organisations (IPAA, Transparency International)

So publicly prominent have these mechanisms become that some monarchists are able to claim – with a measure of plausibility – that we are now effectively a republic. However, such a claim assumes a most important consideration, for proliferation of mechanisms does not in itself deliver assurance that integrity is being effectively protected in a coordinated way. In each of our nine governmental jurisdictions, the pattern of mechanisms is distinctively different, and publics have no way of knowing whether any pattern is performing better than any other. To take just one example – consider the gubernatorial role of constitutional counselling that was pioneered by Governor-General Hasluck, and more recently championed by former Victorian Governor McGarvie [4]. We just do not know the extent to which this integrity- relevant role is being performed by our current batch of Governors (although I have had reliable information that in at least one state the Governor does not undertake any constitutional counselling – work that in that State is left to the Cabinet Office).

What would be needed to enable us to be satisfied that a particular pattern was delivering the goods? Surely the best way would be through a high-level collegial body, with a membership similar to that of the Irish Council of State, on which the principal institutions would be represented [5]. (All our governments currently possess executive councils, but these are so dominated by ruling parties it is difficult to see how they could perform the role of integrity assurance). In each Council of State, the Governor would be expected to play a leading role in fostering the adoption of good practice and comprehensive coverage in integrity assurance.

Much of the work of the Council of State would of necessity be of a confidential nature, so how could interested publics be assured that integrity was being protected? Only if one of us – an elected President – was able to tell us that she had satisfied herself that the system was working well. I, for one, would be content with such an assurance; it would certainly be much more than we are receiving at present. The Governors would be the workhorses of the Councils of State – the managing directors, as it were – while the President would, as a member of each Council of State, be the one responsible for certifying to interested publics that the necessary work was being effectively done – a function not unlike that of the chairman of the board.

One of the most marked weaknesses of the modern republican movement has been its excessive legalistic formalism. Few republican reformers have stopped to inquire into the substantive functions that the office of head of state should perform. We can now see that integrity assurance is an important function – arguably the most important – that should be the responsibility of the office of our head of state. Furthermore, an elected President could work on integrity assurance without in any way improperly infringing the rights and responsibilities of the head of government.

While it would be possible for the monarch to discharge this responsibility, at least in the short term, serious commitment to the cause of integrity assurance will ultimately deliver a genuine republic. The critical question is this: Is the coordination of the work of the numerous integrity assurance institutions primarily a non-political, technical task, concerned mainly with fighting corruption? If we answer this question in the affirmative, we shall be satisfied with the Governance Review Councils proposed by the Australian National Integrity Systems Assessment Research Project. If, however, we believe that the assurance of integrity in governance goes well beyond such technical concerns, we shall seek to involve the heads of all three of our branches of government in a new, high-level Council of State whose politics, while transcending the partisan style, will be explicit and republican in nature.

John Power is Professor Emeritus in the Dept of Political Science, University of Melbourne.

Footnotes

[1] Ackerman, Bruce, ‘The New Separation of Powers’, Harvard Law Review, vol. 113, no. 3, January, 2000, pp.633- 729.
[2] Spigelman, Jim, ‘Judicial Review and the Integrity Branch of Government’ Address, paper delivered to the World Jurist Association Congress, Shanghai, September, 2005. (See also http://www.quadrant.org.au/php/article_view.php?article_id=867)
[3] This important project, based on a partnership between Griffith University’s Institute for Ethics, Governance and Law and Transparency International, has focused primarily on integrity as corruption fighting (the central concern of Transparency International). See its report -  Chaos or Coherence:  Strengths, Opportunities and Challenges for Australia’s Integrity Systems, launched last December by the Commonwealth Ombudsman, Prof. John McMillan.
[4] McGarvie, Richard E., Democracy: choosing Australia’s republic, Melbourne University Press, Carlton South, 1999.
[5] The Irish Council of State is composed of the Prime Minister, Deputy Prime Minister, Chief Justice, President of High Court, Presiding Officers of the Two Houses of Parliament, Attorney-General, any former President, Prime Minister or Chief Justice willing to serve and up to seven Presidential nominees. Any Governance Review Council, such as that proposed by the Australian National Integrity Systems Assessment Research Project, could be constituted as a committee of the Council of State.

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