tag:theconversation.com,2011:/global/topics/breaking-political-conventions-23242/articlesBreaking political conventions – The Conversation2015-12-16T19:30:49Ztag:theconversation.com,2011:article/505932015-12-16T19:30:49Z2015-12-16T19:30:49ZReleasing government’s advice would help parliament better scrutinise laws<figure><img src="https://images.theconversation.com/files/104992/original/image-20151209-3288-ccob39.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Adhering to certain conventions is not always a black and white practice</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mmmswan/7132076675/in/photolist-bSeKVe-bDk2My-bSeKez-bSeJLc-bDk1WY-bSeJ6V-bSeHSa-bSeHmv-bSeGUP-bDjYuq-bDjYbA-bDjXjw-bSeEUK-bDjWqd-bSeDNR-6Dz79V-6DDgaG-6DDg1Y-6yHzK4-9LQyn3-9LQxoL-9LQyNJ-9LMKkB-9LQwaL-9LQvxu-6DDgFW-6Dz7d4-6DDh3Y-6Dz7N6-6Dz7HB-6Dz7jv-6Dz7g8-6Dz6Wk-6MpNnj-6DDged-6yMFvy-8wYogb-55xZP-c4k4jG-6yMKvh-69AEVa-cw9aby-aYRpB2-6yMJKy-7HNMFQ-5ndeSS-cPNzB-uTbXp-3KrXXP-cJgWDA">Michael Swan/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>During the Parliamentary Joint Committee on Intelligence and Security’s recent <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Report">inquiry</a> into the government’s <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr5507_ems_210d7d3c-a0bf-4ea0-9e7c-1bc3d4b48d5e%22">citizenship-stripping bill</a> lawyers and academics raised concerns that the proposal was invalid. </p>
<p>The committee asked the government about legal advice it had that the bill was constitutionally sound. Attorney-General George Brandis <a href="http://www.aph.gov.au/%7E/media/02%20Parliamentary%20Business/24%20Committees/244%20Joint%20Committees/PJCIS/Citizenship/Appendix.pdf?la=en">refused to release it</a>, saying:</p>
<blockquote>
<p>As you know, it has been the practice of successive governments not to publish or provide legal advice that has been obtained for the purposes of drawing legislation. I do not propose to depart from that precedent on this occasion.</p>
</blockquote>
<p>Brandis’ reliance on precedent was undoubtedly correct. There’s a long practice – referred to in the United Kingdom as the <a href="https://www.herts.ac.uk/__data/assets/pdf_file/0008/38618/HLJ_V1I1_Kyriakides.pdf">Law Officers Convention</a> – that the government doesn’t release its top-level legal advice to parliament. </p>
<p>But what justifies this convention? And does it help or hinder commitments to the rule of law and constitutionalism?</p>
<h2>Maintaining confidentiality</h2>
<p>When introducing bills, the government often seeks to reassure parliament by saying it has legal advice that the legislation is likely to withstand any challenge. But, as with the debate over the citizenship-stripping proposal’s constitutional validity, very rarely does it release that advice.</p>
<p>In 2011, though, after the <a href="http://eresources.hcourt.gov.au/downloadPdf/2011/HCA/32">successful court challenge</a> to its “<a href="http://www.abc.net.au/local/stories/2011/11/23/3374312.htm">Malaysia solution</a>” for asylum seekers, the Labor government released a <a href="http://resources.news.com.au/files/2011/09/04/1226129/101737-solicitor-general-advice.pdf">joint opinion</a> of the then-Commonwealth solicitor-general, Stephen Gageler SC, in an effort to pressure the Senate to pass amendments to the Migration Act.</p>
<p>The government has also released the solicitor-general’s advice when it relates to the parliament’s own powers. In 2010, the <a href="http://resources.news.com.au/files/2010/09/22/1225928/018212-100922-solicitor-general-opinion.pdf">solicitor-general’s advice</a> was tabled in parliament after questions were raised about the Speaker’s position following the return of a hung parliament.</p>
<p>In the 1980s, the attorney-general tabled the solicitor-general’s advice on the extent of the parliament’s constitutional power to remove High Court justice <a href="http://www.theaustralian.com.au/business/legal-affairs/behind-the-scenes-of-the-lionel-murphy-affair/story-e6frg97x-1226027703439">Lionel Murphy</a>.</p>
<p>In each of these examples, the release was at the government’s initiative – not at parliament’s insistence. </p>
<p>But parliament does have the power to insist on its production. In 1999, the New South Wales Court of Appeal <a href="http://www.austlii.edu.au/au/cases/nsw/NSWCA/1999/176.html">confirmed</a> that parliament has the power to require government to produce legal advice. </p>
<p>In practice – according to convention – parliament chooses not to flex this particular constitutional muscle.</p>
<h2>Justifications for confidentiality</h2>
<p>Australians expect their governments to comply with the law and the Constitution. And the government has a wide range of possible sources of legal advice to help it do this. </p>
<p>Sources include lawyers in private practice, within agencies and departments, and those working for the government law firm – known federally as the <a href="http://ags.gov.au">Australian Government Solicitor</a>. For very important legal issues – such as the constitutional validity of the citizenship-stripping proposal – the government can seek the advice of its most senior lawyer, the <a href="https://www.ag.gov.au/About/Pages/SolicitorGeneral.aspx">solicitor-general</a>.</p>
<p>The High Court has <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1987/25.html">explained</a> that protecting the confidentiality of communications between the government and its lawyers promotes the public interest in encouraging and facilitating government access to high-quality and independent legal advisers. </p>
<p>In 2007, former Victorian solicitor-general Pamela Tate was called before a parliamentary committee to give evidence and produce documents relating to advice she had provided the Victorian government on the issue of certain gaming licences. Tate refused, and explained:</p>
<blockquote>
<p>The integrity of my role as the second Law Officer of the Crown is dependent upon my capacity to maintain the confidentiality of the instructions and information given to me for the purpose of securing my advice. Unless the Crown is able to confide in me in a full and free manner, and, in turn, I am able to advise the Crown fully and freely on its legal rights and obligations, the performance of my functions as solicitor-general would be compromised.</p>
</blockquote>
<p>But, there are competing public interests in parliament accessing that advice.</p>
<h2>Need for access</h2>
<p>There’s a strong public interest in parliament having access to the government’s legal advice in at least two circumstances. </p>
<p>The first is where parliament is asked to pass bills that are of uncertain constitutional validity. Whether a piece of legislation is constitutionally valid or not is ultimately a question for the courts. Nonetheless, the rule of law and a commitment to constitutionalism also requires government’s other branches – the executive and <a href="https://www.law.unimelb.edu.au/files/dmfile/01ApplebyandWebsterMock2.pdf">the parliament</a> – to ensure they’re acting within their constitutional authority.</p>
<p>This doesn’t mean parliament should pass only laws that are definitely constitutionally valid. It’s often called upon to respond innovatively to changing social, economic, environmental and political circumstances where the relevant constitutional limits might be vague or uncertain. </p>
<p>But, the constitutional limits of its powers is an important factor that parliament should consider when deliberating the desirability of a proposed scheme.</p>
<p>Parliament has some assistance in this endeavour. At the federal level, some committees employ dedicated legal advisers. The parliamentary library also often provides analysis on the constitutional dimensions of proposed laws. </p>
<p>The clerks of the houses may be asked for constitutional advice – although this usually relates to procedural matters. Clerks can brief private barristers and, with the attorney-general’s consent, obtain an opinion from the solicitor-general or another government lawyer.</p>
<p>Parliamentary committees are also often assisted by the submissions and evidence of legal experts – such as academics – and can seek their own legal advice.</p>
<p>But, unlike the government, parliament doesn’t have unfettered access to a senior, independent legal adviser who can provide authoritative constitutional advice. It is often left to rely on the government’s assertions that the solicitor-general has signed off on a bill’s likely validity. It’s asked to accept that without seeing the advice or being able to assess the strength of the solicitor-general’s position.</p>
<p>The second instance where parliament may need access to the government’s legal advice is where it’s exercising its constitutional function of holding the government to account.</p>
<p>To scrutinise the government’s conduct effectively, it’s important parliament understands what informed the government’s decision to pursue a particular course of action. </p>
<p>For instance, the British parliament recently requested the government disclose its advice on the legality of RAF drone strikes in Syria. UK Attorney-General Jeremy Wright <a href="http://www.theguardian.com/politics/2015/sep/15/syria-drone-strikes-uk-attorney-general-refuses-to-disclose-advice">refused</a> – relying in part on the Law Officers’ Convention.</p>
<h2>Rethinking the convention</h2>
<p>As with other such unwritten rules, the convention that legal advice isn’t released rests on the continued commitment of parliament and the government to the practice. Underpinning it is the public interest in encouraging government to seek legal advice. </p>
<p>But, in some circumstances, strong competing public interests favour the advice’s release.</p>
<p>When such circumstances arise, parliament should carefully consider whether it might be better able to perform its functions – and thus serve the public interest better – by insisting on the production of government legal advice.</p>
<hr>
<p><em>This article is the final in our series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. You can catch up on the others <a href="https://theconversation.com/au/topics/breaking-political-conventions">here</a>.</em></p><img src="https://counter.theconversation.com/content/50593/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council.</span></em></p>To scrutinise the government’s conduct effectively, it is important that parliament understands what informed the government’s decision to pursue a particular course of action.Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/505152015-12-15T19:34:06Z2015-12-15T19:34:06ZHow unwritten rules shape ministerial accountability<figure><img src="https://images.theconversation.com/files/103148/original/image-20151125-23813-lotsjl.jpg?ixlib=rb-1.1.0&rect=804%2C990%2C5101%2C2449&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In many important areas of Australia's system of government, much is determined by unwritten rules – or what we call 'constitutional conventions'.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/archivesnz/17956042030/in/photolist-tmHpHy-dz51fT-jqsNPs-5ABykW-fbYUdG-fbYSsL-fbJBJB-c7dQ4A-9w3coj-9iBgDP-9w3cod-oW9WbK-7rZM7i-fbYVjG-fbJCUR-fbJBer-fbYSYh-fbYMFE-fbJx8a-fbYL81-fbJkU2-fbYBiC-fbYPSs-fbJtCi-fbYB4Q-fbYBT7-fbYN9f-fbJsRF-fbYE5S-nUZjkc-fbJFCB-fbYRfh-fbYLC3-fbYzod-fbJu9P-fbYDzh-fbYQbL-fbYMUU-fbJxox-fbYJQY-fbJpPK-fbYDPw-fbJq6k-fbJpxT-fbJrsZ-fbJmsa-5hzUUi-5hDz97-fbJFkt-fbJEnx">Archives New Zealand</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Recent <a href="http://www.abc.net.au/news/2015-11-19/mal-brough-confirms-afp-visited-him/6953538">police investigations</a> into the <a href="https://theconversation.com/grattan-on-friday-broughs-baggage-creates-mess-for-malcolm-51323">alleged actions</a> of Mal Brough, before he became special minister of state, have led <a href="http://www.canberratimes.com.au/federal-politics/political-news/minister-mal-brough-hands-over-documents-to-police-relating-to-slipperashby-case-20151118-gl2iyd.html">some to suggest</a> that “Westminster tradition” demands Brough step aside. But what does “Westminster tradition” mean in Australia, and how does ministerial responsibility work? </p>
<p>The Australian parliament’s <a href="http://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Parliament_at_Work">website says</a> the:</p>
<blockquote>
<p>… federal government is held responsible to both the House of Representatives and the Senate.</p>
</blockquote>
<p>But how? And why?</p>
<p><a href="https://www.comlaw.gov.au/Browse/ByTitle/Constitution/Current">Australia’s Constitution</a> sets the ground rules for its system of government. But many things one might expect to be in it simply aren’t there. </p>
<p>The Constitution doesn’t spell out how the prime minister is to be chosen, for instance, or when they should be obliged to resign. There’s no reference at all to the prime minister in the document. And although <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s64.html">the Constitution requires</a> ministers to be members of parliament, there’s no mention of terms such as “responsible government” or “ministerial responsibility”.</p>
<p>Despite this, jurist <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1926/8.html">Sir Isaac Isaacs described</a> responsible government as:</p>
<blockquote>
<p>… part of the fabric on which the written words of the Constitution are superimposed. </p>
</blockquote>
<p>And in a landmark 1992 <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/45.html">High Court judgment</a>, Chief Justice Anthony Mason said:</p>
<blockquote>
<p>… the principle of responsible government – the system of government by which the executive is responsible to the legislature … is an integral element in the Constitution.</p>
</blockquote>
<p>But where do we find this “integral element”, if not in the text of the Constitution?</p>
<h2>What are conventions?</h2>
<p>In many important areas of Australia’s system of government, much is determined by unwritten rules – or what we call “constitutional conventions”. Australia shares this characteristic with the UK’s Westminister system of government, on which Australia’s is partly based. </p>
<p>As British legal writer Sir Ivor Jennings <a href="http://catalogue.nla.gov.au/Record/711704">put it</a>, constitutional conventions:</p>
<blockquote>
<p>… provide the flesh which clothes the dry bones of the law. </p>
</blockquote>
<p>They are rules that help make the legal text of the Constitution work, and they can add some flexibility to constitutional arrangements by evolving over time.</p>
<p>Australia isn’t alone in relying on such conventions to make its Constitution work. Many countries have similar conventions to Australia’s; different legal systems also have different conventions. In the United Kingdom, for instance, it’s a convention that the Speaker of the House of Commons is <a href="https://theconversation.com/a-truly-independent-speaker-could-renew-australias-parliamentary-democracy-44915">truly independent of party politics</a> – but there is no such convention in Australia.</p>
<p>As they are unwritten rules, it’s not always entirely clear when a constitutional convention exists, let alone exactly what it allows or requires. Unlike laws, constitutional conventions <a href="http://www.constitution.org/cmt/avd/law_con.htm">cannot be enforced in the courts</a>. </p>
<p>So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.</p>
<p>But while conventions cannot be enforced in the courts, they’re understood by everyone involved to be important constitutional rules.</p>
<h2>Why is it so?</h2>
<p>When the Australian Constitution’s framers were drafting its text in the late 1800s, they thought certain things <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/platparl/%7E/%7E/link.aspx?_id=4BC40F93E52E40CD9AE81259406C9E7D&_z=z">went without saying</a>, given the way the system was designed.</p>
<p>That means Australia’s constitutional system is built on the assumption that all ministers will be responsible to the parliament and, through the parliament, responsible to the Australian people. But there’s no precise legal statement of how that assumption works, what it covers, and what happens if the ministers are not sufficiently responsible.</p>
<p>The <a href="http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_1_-_Questions">general understanding</a> is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. But these are unwritten rules: what does “accountable” mean anyway? </p>
<p>For some, it means the <a href="http://hansard.millbanksystems.com/commons/1954/jul/20/crichel-down">minister must resign</a> upon the discovery of any misadministration or mistake. <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0386.2007.00378.x/full">For others</a>, accountability requires that the minister is obliged:</p>
<blockquote>
<p>… to explain and to justify his or her conduct, the [parliament] can pose questions and pass judgement, and the [minister] may face consequences. </p>
</blockquote>
<p>But there’s no authoritative view.</p>
<p>The reality is that political circumstances will determine what’s required of a minister, and the consequences for not meeting expectations. If a minister has the support of their party colleagues, for example, it’s possible that less will be required of that minister and that the consequences will be less severe than they might otherwise have been.</p>
<h2>What chance reform?</h2>
<p>A desire for greater certainty has led to <a href="http://www.onlineopinion.com.au/view.asp?article=8054&page=0">some discussion</a> in Australia – <a href="http://goo.gl/BI5NDn">and elsewhere</a> – of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible. </p>
<p>As recently as 1977, the Australian Constitution was amended to <a href="https://www.comlaw.gov.au/Details/C2004A01720">codify and entrench</a> what had previously been a convention about filling casual vacancies in the Senate. The argument for codification may make most sense in the context of conventions about the Governor-General’s <a href="http://goo.gl/nPxiUw">reserve powers</a>, over which there was so much <a href="https://theconversation.com/what-might-the-dismissals-legacy-mean-for-an-australian-republic-push-50299">controversy in 1975</a>.</p>
<p>But the risk of codifying conventions more generally is that we transfer power away from democratically elected representatives and towards the courts. If we legally require ministers to resign for poor administration of their departments, for example, a judge might have the final say about whether a particular minister should resign for a particular action. This may undermine the extent to which the people can control their government. </p>
<p>The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground. </p>
<p>The Australian Department of Prime Minister and Cabinet, for instance, offers a <a href="http://www.dpmc.gov.au/pmc/publication/guidance-caretaker-conventions">“guidance” document</a> on those constitutional conventions known as caretaker conventions. These conventions affect how government operates during election campaigns.</p>
<p>The document is “neither legally binding nor hard and fast rules”, and cannot be enforced in the courts. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules.</p>
<p>But, as things stand, it’s incumbent on all of us, as citizens in a democratic society, to ensure that our representatives hold our government to account.</p>
<hr>
<p><em>This article is part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/50515/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ryan Goss does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s Constitution sets the ground rules for its system of government. But many things one might expect to be in the Constitution are simply not there.Ryan Goss, Lecturer in Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506622015-12-14T19:27:59Z2015-12-14T19:27:59ZWe all have a role in protecting democracy’s unwritten rules<p>Australians might well be taken aback to discover how feebly many of the processes that constitute a robust democratic system are formally protected in this country. What safeguards them are conventions or informal norms rather than constitutional provisions or laws. </p>
<p>This means we can’t rely on institutions coming in on our behalf and imposing sanctions when conventions are broken. We have to trust the robustness of our political culture; we must trust that citizens and people in office will insist democratic conventions are observed and that those who flaunt them pay a reputational, professional or electoral price. </p>
<p>One such basic democratic convention is respect for the separation of powers. This traditionally refers to the executive, the parliament and the judiciary. Another is respect for the independence of statutory officers, such as ombudsmen and human rights commissioners.</p>
<h2>In the beginning</h2>
<p>To appreciate why respecting the independent operation of these different arms of democratic government is so important, let’s take a look at one of the classic texts on modern democratic government, the <a href="http://www.foundingfathers.info/federalistpapers/fedindex.htm">Federalist Papers</a>, written by the founders of the US political system. </p>
<p>Having an all-too-rare and precious opportunity to actually construct a political system embodying the principles they held dear, the federalists identified institutional designs to realise freedom and equality.</p>
<p>They decided to allocate different types of powers to different branches of government. This did this to ensure one part of government – or one small group – couldn’t gain a monopoly over political power. The move had the added advantage of creating parallel lines of review or appeal, so that no one office would hold the trump card. </p>
<p>Democratic political systems establish statutory authorities for a similar reason. It’s a way of ensuring that other parts of government administer laws and carry out their duties in a way that respects higher-order principles, such as freedom of information, non-corruption and fundamental human rights. </p>
<h2>Tethered camels</h2>
<p>Even though our political representatives are mandated to represent our interests and respect the law, we put these statutory officers in place because we understand there’s always a risk that expediency, bias or self-interest may prevent politicians observing their duties. Trust in Allah, as the Sufi saying goes, but tether your camel. </p>
<p>But unlike the judiciary, whose lines of authority are formally separated from those of the legislature, statutory officers are appointed by and ultimately answerable to the ministers under whose portfolio they sit. </p>
<p>The attorney-general, for instance, selects and appoints the human rights commissioners and is ultimately responsible for acting on, or ignoring, their recommendations. Respecting their independence, then, is a matter of political civility or conventional forbearance, rather than a legal requirement. </p>
<p>I say forbearance because, remember, those officers are there to point out where their political bosses have fallen short and to provide advice on how they might do better. It’s unsurprising that such advice isn’t always appreciated. </p>
<h2>Avoiding enfeeblement</h2>
<p>Nevertheless, we expect our political representatives to respect the advice they get from statutory officers. Not because they enjoy having their failures made public, but because we hope they’re committed to the integrity of our democratic political system, which can only operate when such checks are in place. </p>
<p>This is why the former <a href="http://www.theage.com.au/comment/how-abbott-mishandled-the-attack-on-triggs-20150301-13rsy9.html">prime minister’s</a> and <a href="https://docs.education.gov.au/system/files/doc/other/review-of-funding-for-schooling-final-report-dec-2011.pdf">attorney-general’s</a> attacks on the president of the Australian Human Rights Commission this year, over her <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf">report</a> on children in immigration detention, were so troubling. </p>
<p>The substantive issues were alarming and provoked strongly held and deeply divergent views on how Australia ought to respond to asylum seekers. But the rhetorical attacks <a href="https://theconversation.com/brandis-and-dutton-play-some-dirty-pool-in-their-fight-with-gillian-triggs-42948">went beyond</a> political differences.</p>
<p>As the highest political officers in our country, it’s incumbent on the prime minister and ministers not only to respect the independence of statutory authorities, but to model such respect. Doing so demonstrates the importance of upholding the democratic political culture to everyone in the country. When their actions and words model an ethos where political differences are more important than democratic conventions, we’re all enfeebled. </p>
<h2>The heart of democracy</h2>
<p>Like virtually every other contemporary nation-state, Australia also holds itself to account by signing up to international human rights treaties. We thereby promise the other parties to those conventions that we’ll respect certain fundamental rights. </p>
<p>When we do so, we also agree that independent monitors will periodically check up on how well we’re observing our commitments. These monitors aren’t some sort of international government that lords it over national governments. Rather, they are expert authorities we collectively establish to strengthen the meaning of our commitments. </p>
<p>But when then-prime minister Tony Abbott responded to negative comments concerning our treatment of asylum seekers from the United Nations Special Rapporteur on Torture by <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html">saying that</a> Australians were “sick of being lectured to by the United Nations”, he acted as though some interloper had intruded into the inner sanctum of our national affairs.</p>
<p>Abbott wasn’t merely expressing a difference in political opinion; he demonstrated his disrespect for the convention of honouring our international agreements and respecting the people we put in place to ensure we do so. When countries that pride themselves on their democratic credentials flinch at being called to account, they signal to others how disposable such principles actually are.</p>
<p>However much we bootstrap our democracy with laws and constitutional provisions, its lifeblood will always be our respect for a democratic culture and the informal conventions that breathe life into it.</p>
<p>This might make the whole idea of democracy seem intolerably fragile and easy to topple. But perhaps democracy relies on active assent rather than fear of sanction because it’s the only form of security worthy of a system that claims the principle of freedom, and of citizens who claim the right to govern ourselves. </p>
<hr>
<p><em>This is part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/50662/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Celermajer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws play their role in regulating our governments, but so does our own respect for political conventions. And the way these are upheld goes to the heart of our freedom as democratic people.Danielle Celermajer, Professor of Sociology and Social Policy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/497432015-12-13T19:27:58Z2015-12-13T19:27:58ZGillian Triggs: How the ‘fair go’ became the last bulwark for Australia’s freedoms<p>Australian governments have, over the last few years, passed laws that explicitly, or in their effect, breach fundamental human rights. </p>
<p>Not only have our parliaments failed to exercise their traditional restraint to protect common law freedoms and liberties, they’ve also allowed the executive government to expand its discretionary powers and, increasingly, excluded the courts and judges from exercising judicial scrutiny or control. </p>
<p>Parliaments all too often ignore the separation of powers doctrine. The government’s uncontested assessment of national interest and security often trumps the rule of domestic and international law, as well as Australia’s obligations under human rights treaties.</p>
<h2>Politics of fear</h2>
<p><a href="https://theconversation.com/the-border-is-everywhere-the-policy-overreach-behind-operation-fortitude-46860">Operation Fortitude</a> provides a powerful example of executive overreach in civilian affairs. The recently merged Department of Immigration and Border Protection’s Operation Fortitude was to involve a number of agencies – including Victoria Police, Yarra Trams, Metro Trains, the Sherriff’s Office, Taxis Services Commission and the Australian Border Force – <a href="http://newsroom.border.gov.au/releases/abf-joining-inter-agency-outfit-to-target-crime-in-melbourne-cbd">targeting crimes</a> ranging from “anti-social behaviour” to outstanding arrest warrants. It was cancelled after a community outcry.</p>
<p>It is but one example of the tendency to increase executive power and to criminalise behaviour that, in the past, might have attracted a civil fine. </p>
<p>Australian governments have introduced, and parliaments have passed, scores of laws that infringe common law freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention. </p>
<p>These new laws undermine a healthy, robust democracy, especially when they grant discretionary powers to executive governments in the absence of meaningful judicial scrutiny.</p>
<p>What explains Australia’s move to restrictive approaches to our fundamental freedoms and human rights over the last few years?</p>
<p>There’s a conflation in the public mind of the events of 2001 – the <a href="http://www.nma.gov.au/online_features/defining_moments/featured/tampa_affair">Tampa crisis</a>, the “<a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/scrafton/report/c02">Children Overboard</a>” claims and the September 11 terrorist attacks. </p>
<p>Since these events 14 years ago, governments and political leaders have played on community fears of terrorism and the unauthorised entry of refugees to concentrate power in the hands of the executive – to the detriment of Australian liberty.</p>
<h2>Dubious laws</h2>
<p>Particularly troubling is the phenomenon of the major political parties agreeing with each other to pass laws that threaten the fundamental rights and freedoms Australia has inherited from its common law tradition.</p>
<p>Compounding the concentration of power in the executive’s hands is the recent increasing militarisation of government and the criminalisation of behaviour that has not hitherto been the subject of criminal penalties. This includes:</p>
<ul>
<li><p>Counter-terrorism laws: <a href="https://theconversation.com/turnbull-outlines-the-plans-for-new-laws-on-metadata-retention-33629">metadata retention</a> and law enforcement agencies’ access to that data without a warrant or independent or judicial authorisation and oversight.</p></li>
<li><p>Criminalisation of Australians who enter “<a href="https://theconversation.com/parliamentary-committee-only-tinkers-with-foreign-fighters-bill-33148">declared areas</a>” in Syria and Iraq, and placing the burden of providing a legitimate reason on the accused.</p></li>
<li><p><a href="https://www.humanrights.gov.au/visa-cancellation-character-grounds">Cancellation of visas</a> and mandatory detention of those who become unlawful non-citizens by, for example, failing the new character test, which depends on the minister’s suspicion that even minor offences have occurred. All this coupled with the minister’s power to overturn Administrative Appeals Tribunal decisions.</p></li>
<li><p>Lengthy administrative detention of the mentally ill or those unfit to plead without trial.</p></li>
<li><p>Operation Sovereign Borders and <a href="https://theconversation.com/boats-secrecy-leads-to-bad-policy-without-democratic-accountability-43324">secrecy</a> of “on-water activities”.</p></li>
<li><p><a href="https://theconversation.com/border-force-act-entrenches-secrecy-around-australias-asylum-seeker-regime-44136">Secrecy laws</a> under the Australian Border Force Act that criminalise all immigration workers, consultants and service providers who disclose “protected information” – an offence that attracts a penalty of two years’ imprisonment.</p></li>
<li><p>Legislative exclusion from the Administrative Decisions (Administrative Review) Act of decisions under counter-terrorism, national security and migration laws.</p></li>
</ul>
<h2>Whither protection?</h2>
<p>It might be thought that Australians can rely on their courts to protect common law liberties. Judges have employed the principle of “legality” to adopt a restrictive interpretation of legislation to protect common law freedoms. </p>
<p>Laws passed by parliament are not to be construed as abrogating fundamental common law rights, privileges and immunities in the absence of clear words or unmistakable and unambiguous language.</p>
<p>But, as our laws are now drafted with such precision – or are so constantly amended – ambiguities are increasingly hard for the courts to find.</p>
<p>Historically, parliament has been the bulwark against sovereign or executive power. But law professor George Williams <a href="http://www.cla.asn.au/News/legal-assault-on-australian-democracy/">estimates</a> there are now more than 350 Australian laws that infringe fundamental freedoms. He suggests prioritising governmental power has become a “routine part of the legislative process”, stimulating little community or media responses.</p>
<p>And an Australian Law Reform Commission <a href="https://www.alrc.gov.au/news-media/media-release/rights-and-freedoms-commonwealth-laws-IR">interim report</a> on rights and freedoms in Commonwealth laws has confirmed this assessment.</p>
<p>One of Australia’s most effective safeguards of human rights is the cultural expectation that freedoms will be protected. Most Australians are unlikely to be able to describe the doctrine of the separation of powers. But they’re quick to assert their liberties under the rubric of a “fair go” – a phrase that’s as close to a bill of rights as Australia is likely to get. </p>
<p>This cultural expectation is what keeps our freedoms alive today – as was illustrated by the overwhelming community response to Operation Fortitude. And to preserve <a href="http://www.smh.com.au/federal-politics/political-news/backlash-over-george-brandis-racial-discrimination-repeal-20140325-35gih.html">Section 18C</a> of the Racial Discrimination Act when the Abbott government proposed stripping out legislative provisions protecting ethnic groups from hate speech.</p>
<p>But the scores of laws passed recently that infringe our rights have confirmed my view that Australia needs a legislated Charter of Rights. If we had such rights enshrined in the Constitution, laws that infringe them could easily be repealed or amended. </p>
<hr>
<p><em>This article is an edited extract of the Blackshield Lecture, delivered by Professor Triggs on November 5, 2015. It’s part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/49743/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gillian Triggs is president of the Australian Human Rights Commission.</span></em></p>The government’s uncontested assessment of national interest and security often trumps the rule of domestic and international law, as well as Australia’s obligations under human rights treaties.Gillian Triggs, Emeritus Professor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498062015-12-10T19:13:07Z2015-12-10T19:13:07ZYes minister: how political appointments tip the scales of fearless advice<figure><img src="https://images.theconversation.com/files/103126/original/image-20151125-18267-1kx0p1p.jpg?ixlib=rb-1.1.0&rect=0%2C31%2C1920%2C1287&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia's public service has gradually become more politicised in recent times.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/jmtimages/3286566742/in/photolist-61qvMQ-91bPKR-df4vu5-7KmaNJ-qhxi4Y-7haUXZ-mHiNDM-48qc8x-iHMMb3-PhnR7-6hv4sT-co46f5-cqfNG7-5nzYKh-395WXx-eA35G6-mHkGkj-vcMz-P9URH-7sKews-6qhShY-kmeeTY-96Bkfr-391TRa-by8Ln1-x1mvCN-cnX48f-aZV48D-cXUReL-4SZmnN-bSnCHa-xcNjZm-6QHjjc-awRrL-f8fEXm-4fy3ag-5D48Jg-3nK5gm-8ZJNBG-euuwxL-4wZwv5-bCZgen-6pkfTC-6DWwa-peqeCz-5Y3htE-by8LhA-bM3sAc-bM3sxr-bM3swk">Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Some regard the Westminster tradition of a politically neutral public service as a self-serving fiction. Others see it as an ideal to which governments and their civil services should aspire, though may never quite attain. </p>
<p>There are few hard and fast conventions involved in cultivating an independent government administrative system. Yet there are traditions or principles that many see as fundamental to good governance, or even to an effective democracy. </p>
<p>Straying from these leads to accusations that the government is politicising the public service. But what that means isn’t exactly clear. It might suggest the appointment of party-political representatives to public positions; the appointment of known government sympathisers to public positions; or some other way of preventing professional civil servants from providing “<a href="http://press.anu.edu.au/titles/australia-and-new-zealand-school-of-government-anzsog-2/frank_fearless_citation/">frank and fearless</a>” advice to ministers. </p>
<p>Despite the lack of agreement about what politicisation means – and its significance – there’s almost universal criticism of governments that stray from the principles that underpin neutrality. </p>
<p>In practice, the accusation of “politicisation” often accompanies appointments made by an incoming government. These may be to departments; to government agencies, such as <a href="http://www.abc.net.au/news/2014-07-04/turnbull-not-consulted-over-appointments-to-abc-panel/5571754">the ABC</a>; to integrity agencies, such as the ombudsman; and, more often, the appointment of former politicians to <a href="https://theconversation.com/mr-hockey-goes-to-washington-so-what-challenges-will-he-face-49642">diplomatic postings</a>. </p>
<h2>Obedience and integrity</h2>
<p>The Australian Public Service operates near to the model of a professional public service where it serves successive governments without fear or favour. Changes of government typically mean that experienced, professional secretaries have remained to pilot their new ministers through. </p>
<p>There have been aberrations, such as the 1996 “<a href="https://theconversation.com/abbott-and-the-public-service-where-now-on-department-heads-18465">night of the long knives</a>” that dispatched six departmental heads. But most governments in past decades have relied on a cadre of professional civil servants to head departments and agencies even after power changes hands. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/103134/original/image-20151125-18227-uqddu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Max Moore-Wilton was appointed as Australia’s top public servant by John Howard.</span>
<span class="attribution"><a class="source" href="http://one.aap.com.au/#/search/Max%20Moore-Wilton">AAP</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>It is this cadre that enables the public service to remain as neutral as possible, especially when incoming governments are determined to implement their “mandates”. This reflects a fundamental principle that governments need to be “responsive” to their electors.</p>
<p>But problems can arise when appointees pay little attention to “frank and fearless” and see their role largely as doing the minister’s bidding. That’s stretching the notion of responsiveness too far.</p>
<p>The civil service is traditionally required to act in an impartial manner – that is, not to privilege particular interests over others and to behave in a politically neutral way. This is especially significant in relation to government agencies that investigate and adjudicate on complaints about and mistakes made by government. </p>
<h2>Simple improvements</h2>
<p>Integrity agencies, such as the Office of the Information Commissioner or the Human Rights Commission, are required to investigate citizen complaints about government behaviour. They need to be seen to be at arm’s length from government. </p>
<p>Other agencies, such as the Electoral Commission, the Auditor-General or research bodies such as CSIRO or the Productivity Commission, also need to be at arm’s length so they can operate credibly in providing balanced advice. </p>
<p>Much more can be done to promote the independence of these agencies. A fundamental problem is that they rely on funding through the budget process. Some governments, at both Commonwealth and state levels, have used this as a lever to constrain agencies from following their remit when governments are unhappy with their activities. The <a href="https://theconversation.com/respect-independent-statutory-bodies-as-central-to-democracy-37634">Human Rights Commission</a> is a recent example. </p>
<p>Making these agencies responsible to parliament, rather than to the government of the day, would mean that funding, and accountability, would be delivered through bipartisan bodies, such as the Public Accounts Committee. This would protect integrity agencies from direct government interference. </p>
<p>Governments are expected to represent a diversity of interests. That becomes less likely with a politicised public service. </p>
<p>Public agencies with responsibilities to consider the impact of policy on broad community groups, for instance, or to manage grants programs, need to have appointments that reflect community diversity. These appointments need to be treated with care to ensure they remain free of accusations of favouritism, cronyism, nepotism or vote-buying.</p>
<h2>Avoiding cynicism</h2>
<p>Cynical observers may be concerned about the politicisation of policy advice, especially that provided by public inquiries. When chaired by appointees with known views on the subject they rightly engender <a href="https://theconversation.com/grattan-on-friday-should-a-lobby-group-chair-the-audit-commission-19523">public cynicism</a> about the likely outcomes of these ostensibly independent inquiries. </p>
<p>This was the case when noted climate sceptic <a href="https://theconversation.com/killing-renewables-softly-with-endless-reviews-23409">Dick Warburton</a> handed down a report on the Renewable Energy Target, and when education conservative <a href="https://theconversation.com/national-curriculum-the-latest-target-of-coalitions-culture-wars-21910">Kevin Donnelly</a> reviewed Australia’s national curriculum. These reports usually find their way to the rubbish bin once governments of a different hue assume office. </p>
<p>In contrast, more broad-based and less politicised inquiries – such as the <a href="https://docs.education.gov.au/system/files/doc/other/review-of-funding-for-schooling-final-report-dec-2011.pdf">Gonski review</a> of school funding – may well retain their currency for longer. </p>
<p>There are arrangements in place that may dull the excesses of political appointments – such as the Public Accounts Committee, the Senate estimates process, codes of ministerial conduct and independent audits. </p>
<p>But unlike the United Kingdom, Canada and New Zealand, Australia hasn’t appointed an independent commissioner for public appointments. An independent appointments body may help ensure that the government of the day cannot directly influence appointments to agencies and programs that specifically require diversity of interests and arm’s length from government.</p>
<p>The public service has gradually become more politicised in recent years. But this is a bigger problem for agencies broadly described as integrity agencies and for bodies where public perception of neutrality are important to their operations, such as the ABC or the Electoral Commission. </p>
<p>Institutional change, along the lines of what’s already operating in other democratic systems, might produce independent appointments and reduce the public angst each time a “political” appointment is made to such boards or commissions. In these cases, governments might finally accept that arm’s-length governance is preferable to public cynicism and diminution of the standing of important agencies that serve to uphold democratic standards.</p>
<hr>
<p><em>This article is part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/49806/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Aulich holds a position on the Territories Records Advisory Council, appointed by the Chief Minister of the ACT.</span></em></p>The public service is meant to be independent and bipartisan. But “political” appointments and funding arrangements can hamstring their ability to give fair and frank advice.Chris Aulich, Visiting Professor, Institute for Governance and Policy Analysis, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/499012015-12-09T19:15:46Z2015-12-09T19:15:46ZMutated conventions: how secrecy in the name of security harms democracy<figure><img src="https://images.theconversation.com/files/103140/original/image-20151125-23825-133wwcl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fear dominates political conversations and slowly strengthens the acceptability of secrecy in 21st-century governments</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/devar/64841388/in/photolist-6Jk5Y-8zsHnW-cHZ7hu-4ycrh5-9f6DqL-jU5ffp-jU67Y6-8Mb678-tEsAP-9A6BrZ-9A6B5T-eiRUg7-8zpCSr-8Tme8k-8NPnG9-7ZMeth-664mQt-7BtXTi-8NURda-jU7BXs-9nQhQr-8Meivj-rtUbUA-jU7vmb-8Uaeqb-8Me5gw-8Xwsdf-9CYJP2-cQJfZJ-7Jh2TK-bqa84v-8Xtqfv-9jdptk-e6WnWh-9nTrVo-7Jc8DD-ejYVsu-uC4XET-k5JYX-8TREAC-9iRJSJ-bSch4Z-jU5Yux-bXUQww-buHxf4-b42teB-db6qEK-9oR84B-9oQg7N-jU7zJ9">Ben Eenhoorn</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Secrecy is anathema to democracy. Without transparency, government may contravene its peoples’ values and violate human rights with impunity.</p>
<p>Governments rarely declare themselves corrupt, confess to lies, or admit to participating or being complicit in crimes. They have many resources and connections at their disposal, including media, police, military and security agencies. This mean critics are easily discredited or vilified. </p>
<p>An open criminal justice system, free media, active civil society, whistleblower protection and the ability of victims to be heard are essential checks for preventing, exposing and redressing state abuse of power. However, Australian governments – and particularly the incumbent Coalition – are <a href="http://www.abc.net.au/am/content/2015/s4265831.htm">systematically shutting down</a> these avenues of scrutiny.</p>
<h2>Secrecy and the border</h2>
<p>Australia’s <a href="http://www.abc.net.au/news/2015-07-01/border-force-commissioner-operational-matters-roman-quaedvlieg/6586274">deepening pall of secrecy</a> is rationalised as essential to protect operational matters and intelligence that, if revealed, would jeopardise national security. </p>
<p>Traditionally, operational matters and intelligence have, in limited circumstances, been exempt from the open government principles that mandate freedom of information. But these exemptions have been relatively narrow, open to challenge and frequently subject to <a href="http://www.ipc.nsw.gov.au/fact-sheet-what-public-interest-test">public interest tests</a>.</p>
<p>Exemptions to openness for operational matters and intelligence weren’t designed to prevent contentious government policy being scrutinised. But the government’s resort to claims of secrecy for intelligence or operational matters – or “on-water matters”, in the context of Operation Sovereign Borders – is now <a href="http://www.abc.net.au/insiders/content/2015/s4347488.htm">used as a tactic</a> to deflect awkward political questions and avoid scrutiny and accountability.</p>
<p>The 2001 Tampa election was a <a href="http://www.amnesty.org.au/refugees/comments/how_tampa_became_a_turning_point/">watershed moment</a> in Australian politics. It marked a new phase in the overlapping of politics, national security and the control and management of information.</p>
<p>In the lead-up to that election, then-prime minister John Howard and his ministers managed to parlay the plight of several hundred desperate asylum seekers to electoral victory. They did so by manipulating fears about “boat people”, “illegals” and – in the wake of the September 11 attacks – terrorists. </p>
<p>Managing the story was essential to ensuring that the wages of fear became the currency of electoral success. The government’s strategy included ensuring no “<a href="http://www.theage.com.au/articles/2002/04/17/1019020661365.html">humanising images</a>” of the asylum seekers became public. </p>
<p><a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/scrafton/report/c02">False accusations</a> that the asylum seekers threw their children overboard assisted the strategy by amplifying the fears of sections of the electorate that were racially ambivalent or prejudiced. Though the government managed the information well enough to get re-elected, it was later revealed that the asylum seekers never threw their children overboard. </p>
<p>Since 2001, Australia has had a number of elections where national security – particularly counter-terrorism and border protection – were critical elements. Today, security stories beat a constant tattoo at the heart of politics. </p>
<h2>Alternative stories</h2>
<p>Unofficial security stories can be damaging to governments. In 2007, it was revealed the government and the Australian Federal Police had unfairly treated and unjustly vilified an <a href="https://en.wikipedia.org/wiki/Muhamed_Haneef">Indian national working as a doctor</a> in Brisbane, Muhamed Haneef. </p>
<p>What started as a story about a terrorist in our midst quickly morphed into one of abuse of power when Haneef’s lawyer released information contradicting the official narrative. </p>
<p>Legislation <a href="http://www.smh.com.au/federal-politics/political-news/australias-new-security-laws-explained-20140926-10mh6d.html">passed in 2014</a>, which criminalises reporting of “special intelligence operations”, makes it far less likely that official stories, such as the one that presented Haneef as a major threat to the Australian community, can now be publicly contested. </p>
<p>In the 14 years since Tampa, there has been a shift from attempting to manage national security stories to controlling them. Strategies of information control include: refusing to release information; refusing to answer questions; criminalising the release of information by unofficial sources; and creating a category of acquiescent “embedded” journalists and lawyers through covert and overt security vetting processes. </p>
<p>Another strategy is providing <a href="https://theconversation.com/national-security-bills-compound-existing-threats-to-media-freedom-29946">immunity from prosecution</a> to security agencies. The result is that contentious or illegal activities committed by these agencies are never revealed, contested or adjudicated through processes of open justice. </p>
<p>Secrecy facilitates an uncontested space for officially sanctioned stories about security. The “national security” stories that support governments, police and security agencies set up clear binaries between the vulnerable public and threatening enemies. These provide a stage for political leaders to act and speak resolutely about threat and protection, champion laws that are tough but fair, and represent the police and security agencies as empowered, capable and operating solely in the national interest.</p>
<p>Under the guise of national security, governments, police and security agencies frequently engage in breaches of human rights, are influenced by partisan politics, exaggerate threats, generate fear for party political reasons or, in the case of police and intelligence agencies, organisational gain. </p>
<p>Also, many measures that are championed in the name of security are poorly targeted, ineffective or counter-productive. </p>
<p>The spread of secrecy under the banner of operational matters and intelligence excises uncomfortable facts that complicate or contradict sanitised stories about politics and security. Secrecy is a weapon of information control that valorises official stories and outlaws those who expose governments and police and security agencies to scrutiny.</p>
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<p><em>This article is part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/49901/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jude McCulloch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australian society has become dangerously accustomed to our politicians using “national security” as an excuse for the obfuscation of sticky truths.Jude McCulloch, Professor of Criminology, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498152015-12-08T19:17:30Z2015-12-08T19:17:30ZFollowing suit: why political conventions matter<figure><img src="https://images.theconversation.com/files/103100/original/image-20151125-4062-cegv2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia still follows Westminster in allowing key principles of democratic accountability to operate according to convention</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/bradhammonds/13702284943/in/photolist-mSPMW8-7aXS7J-t8d8A-odjdJ3-85ha4U-otoN6h-DdREM-7sxXMP-qnGxQG-n5hqc7-4aQ2BD-bgEeaK-914ied-7mhJW5-c2JWAb-grUtyr-59VnJ-dAT8VR-oF3RKS-qPAUfS-8YgUu-dLZDQn-naSexz-5WQjQB-kSz8pA-nV1XCz-dWJts1-gTdhHJ-c3sAKw-oGgV9W-6nv36U-xoiYUv-5gqRy9-rsASzZ-nFZkVM-bkyUcf-8La6BT-914khA-bkyZpw-y71t3-bvZUpo-dq2qjE-pxHkg9-fwsGrf-eRpuhZ-6BbamL-zGAViz-5BKURH-5WVugh-y71t2">Brad Hammonds</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Conventions are accepted practices that don’t have the authority of law but depend instead on the force of shared values and expectations. They are more fluid and contestable than legal rules and tend to evolve over time. </p>
<p>All political systems make extensive use of conventions as part of their political culture. But such conventions are particularly important in systems based on the United Kingdom’s Westminster model. </p>
<h2>Wacky Westminster</h2>
<p>The United Kingdom has no formal, written constitution – though it does have much legislation that is constitutionally relevant. It relies on conventions to define some of its most fundamental constitutional principles. These include the democratic principles that elected governments should be accountable to their citizens and respect their rights. </p>
<p>Though the Australian Commonwealth has a formal constitution as part of its federal settlement with the states, it still follows Westminster in allowing key principles of democratic accountability to operate according to convention.</p>
<p>Many of these conventions are contested. Even the most fundamental democratic convention underpinning the electoral process – that the governor-general acts only on the advice of the prime minister with the support of a majority in the House of Representatives – was successfully challenged in 1975. </p>
<p>The governor-general at the time, Sir John Kerr, acted on his own initiative and dismissed the Whitlam Labor government. That opened the way for the election of the Fraser Coalition government. This highly controversial decision influenced subsequent political attitudes towards the importance of constitutional conventions. </p>
<p>In general, the political left has tended to be in favour of strict observance of constitutional conventions as a matter of independent principle. The political right, though also respectful of established conventions, has shown itself less squeamish about breaking conventions in the name of the national interest as defined by the government of the day.</p>
<h2>Polity and policy</h2>
<p>Conventions of ministerial responsibility underpin the daily accountability of ministers to parliament and the public. Broadly speaking, ministers are obliged to take responsibility for the conduct of their portfolios in the sense of responding to parliamentary requests for information or imposing remedies when faults are brought to light. They are also required to answer directly to the public by taking questions from the media. </p>
<p>Ministers are expected to take the blame for actions for which they are personally responsible, but not for those that are clearly the fault of officials. Oppositions – and commentators – commonly claim ministers should resign both for their own mistakes and for those of their officials, but this has never been accepted practice.</p>
<p>By convention, misleading parliament is one of the few offences that can precipitate a ministerial resignation. This unfortunately encourages ministers to be evasive and economical with the truth. Otherwise, ministers decide how much information they reveal to parliament or the public – the only sanction being political accountability to voters.</p>
<p>As the <a href="https://theconversation.com/back-to-the-wall-brough-dramatically-switches-his-story-on-slipper-diary-51677">Mal Brough case</a> underlines, the convention is flexible in application, which largely depends on the prime minister’s judgement of the relative political costs of retaining or discarding a minister. Even if Brough remains in parliament, however, the damage he has sustained shows the continuing force of the convention.</p>
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<img alt="" src="https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=358&fit=crop&dpr=1 600w, https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=358&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=358&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=450&fit=crop&dpr=1 754w, https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=450&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/103095/original/image-20151125-18261-kilsmc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=450&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The sacking of Gough Whitlam brought condemnation for its clear challenge to previously respected political conventions.</span>
<span class="attribution"><span class="source">National Archives of Australia. NAA: A6180, 13/11/75/33</span></span>
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<p>Ministerial responsibility has also been used to protect the anonymity of public servants, on the ground that only ministers should answer for their departments and agencies. A number of structural reforms, such as the development of Senate estimates committees and the establishment of the ombudsman, have opened public servants up to direct scrutiny of administrative actions, while maintaining ministerial responsibility for matters of “policy”. </p>
<p>The boundaries between “policy” and “administration” are inherently contestable and a common cause of friction. If ombudsmen or auditors-general venture into criticising the substance of government policy (instead of its implementation), for instance, they are likely to face objections from ministers on the ground that the elected government has the right to impose its own policy direction. </p>
<p>At the same time, ministers surrender their democratic accountability obligations when they choose to devolve responsibility onto others. An example is outsourcing implementation of controversial policies to private sector contractors not subject to the same accountability regime as government officials. </p>
<h2>Yes, minister</h2>
<p>Relations between ministers and the public service are also subject to shifting conventions. Westminster-based traditions support a politically neutral public service appointed on merit and loyally serving the government of the day. </p>
<p>But since the early 1990s, heads of departments (secretaries), who are appointed by the prime minister, have been employed on limited-term contracts terminable at any time. In 1996, the incoming Coalition prime minister, John Howard, broke the convention that incumbent secretaries would serve out their terms under a new government, by immediately replacing six secretaries. </p>
<p>The convention was restored by the next Labor prime minister, Kevin Rudd, but broken again by the Coalition’s Tony Abbott. Labor seems to see the value of trusting the professionalism of the public service, while the Coalition, being more doubtful of the capacity and loyalty of public servants, seeks to vigorously impose its own political control over the machinery of government. </p>
<p>All recent governments have emphasised the importance of media management and have increased the number and influence of political advisers. This has weakened the close relationship with public servants on which Westminster public service conventions depend.</p>
<p>Other areas in which conventions are both important and controversial include relations between the executive and judicial branches of government, the extent of political patronage in government appointments, and the use of public funds for political campaigning. </p>
<p>While conventions have the general advantage of being free from legalistic rigidity, they can be open to abuse for partisan reasons. The fact that they depend on political sanctions for enforcement places a particular onus on conventions surrounding transparency of government information as a safeguard of democratic accountability.</p>
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<p><em>This is the first in a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/49815/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Mulgan receives funding from the ARC.</span></em></p>Political conventions may be challenged and redefined by every new government, but it is their role in promoting political accountability that ensures the health of our democracy.Richard Mulgan, Emeritus Professor, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.