Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Go forth, blossom in your soul… Statutory authorities and the independence/accountability problem

Statutory authorities are a weird beast, and they occupy a weird place in popular folk legal intuitions.

I should make a few comments up front lest I be misread.  My support of the Australian Human Rights Commission and the Solicitor-General as institutions is unwaveringly positive.  It is a triumph of our system of government that we have these institutions.  I absolutely love that the AHRC can intervene in proceedings against the Commonwealth, for example.  And the position of Solicitor-General — since the time of Sir Robert Garran — has ensured a continuing line of excellent legal advice to Parliament, allowing more politicians to function without themselves being legal boffins.

But they’re both creatures of the Executive.  They are created by statute and are accountable to Parliament.  This is creates a weird dynamic in our system of government where there is a very significant fusion of the legislative and executive branches of government.  The dynamic is further complicated by ideas of independence: how can a statutory body be independent of government and accountable to the same parliament that generates government?

I am not a fan of Gillian Triggs or Tim Soutphommasane.  I think both have demonstrated exceedingly poor judgement and fail to manage the very toxic situation in which they find themselves.  The problem is that they have allowed the perception that they are partisan players fester.  It wasn’t enough to be correct; they have a symbolic function that they need to fulfil.

By handling the situation poorly, they find themselves in the middle of the tension between independence and accountability.  Our system of government largely prioritises Parliament.  It is the site of democratic authority, ensuring that representatives responsible to the electorate control our legal and political systems.  Our system does not really create ‘independent’ positions: the entire Executive is responsible to Parliament.  It is the responsibility of statutory officers to maintain the appearance of independence while remaining accountable.

As parliamentarians, it is absolutely right for members of government to criticise the activities of Triggs and Gleeson.  It is not an attack on their independence to do so; it is for Triggs and Gleeson to maintain the appearance of independence.

It has been surprising to read takes that suggested that this was a problem of separation of powers (the idea that the functions of government are separated to keep them in check to each other).  Somehow, Triggs and Gleeson needed to be beyond criticism because the artifice of government authority might topple over.  Triggs’ misleading the Senate Committee, for example, was a problem for the separation of powers: it was an open defiance of the idea that the Executive is accountable to Parliament.

But this really gets us deep into the question of why statutory authorities exist at all.  There is an idea — about which I’ve written before — that some things are ‘beyond’ politics.  Human rights aren’t merely the hallucination of the hyperventilating, they are really real and they need the protection of an independent authority.   People seem to be clamouring for an Independent Commission Against Corruption for similar reasons: who will ensure that politicians and government officials are behaving appropriately if we don’t have an independent statutory authority?  And we seem to think that some economic issues need to be beyond politics as well.  The Governor of the Reserve Bank, for example, has to be independent, &c., &c., in order to stop politicians from ‘playing politics’ with the economy.

But why are things ‘beyond’ politics… and why?  Who decides?

The sentiment appears to be based on a belief that politicians are cynically out to preserve their own careers.  Independent authorities prevent politicians from using ‘important’ things opportunistically.  But why are we electing people whom we’d suspect of acting in that way?

One explanation of this view is given by the French philosopher Jacques Ranciere.  He argues that there’s a ‘hatred of democracy’ by elites who want to preserve a particular state of affairs and who don’t trust the population to vote for the ‘correct’ outcome.  So when we get particular progressive outcomes, there is a desire to protect those victories by making it impossible for democratic will to revert them.

There’s an extent to which we can differentiate between a distrust in the voters and a distrust in the electoral process.  The gerrymandered electorate, for example, wasn’t a result of democratic will but of people in power rigging the system to retain power.

But even with that quibble aside, we still need to wonder why we are so keen on statutory bodies that are ‘independent’, and why we are less worried about robust accountability measures.

Maybe it’s just performative.  The Left supports Triggs because it supports the AHRC, and all the more because it is in conflict with a right wing Attorney-General.  But we need those who support the AHRC without supporting Triggs to speak up and make the case for why these institutions are important and how best to balance independence and accountability.

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