At a time when democracy is being challenged around the world, the contest of ideas has never been more important. All of us invested in the democratic project need to do more than wring our hands – we need to demonstrate what we are doing to act against anti-democratic tendencies.

THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS

Sydney Institute Address
Transparency and accountability in modern politics
Sydney
5 September 2024

Thank you Gerard for your introduction – it’s wonderful to be here at the Sydney Institute.

I acknowledge the Gadigal people of the Eora nation, the traditional owners of this land, and pay my respects to their elders past and present.

Tonight I want to talk about transparency and accountability – what these concepts mean in modern politics, what they mean to the Albanese Labor Government, what they mean to me.

Modern politics is relentless, especially in a portfolio like mine, which has a large and broad set of responsibilities. 

I don’t often get the chance to take a step back to reflect on what it means to do my job, and why it matters.
Thinking about my address to you tonight caused me to think about that.

For decades Gerard and Anne have brought together speakers and audiences.

Sydney is the great beneficiary of their commitment to debate and discussion as a vehicle for progress.

At a time when democracy is being challenged around the world, the contest of ideas has never been more important.

All of us invested in the democratic project need to do more than wring our hands – we need to demonstrate what we are doing to act against anti-democratic tendencies. 

It’s worth remembering that democracy has not always been a popular concept. Aristotle was not a huge fan. He thought it “deviant”.

Churchill’s reflections on democracy are often slightly misquoted. His full 1947 quote goes like this:

“Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

It's no reflection on the government that I am a part of to admit that democracy sometimes produces imperfect outcomes. But if we agree with Churchill that democracy is not perfect or all-wise, I think we must also agree that politicians are not perfect or all-wise. No doubt some would think that’s a very polite way of putting it.

So if democracy is such an imperfect system, how has it managed to stick around so long?

Part of the answer, I think, is its unique ability to self-correct. 

This is not my idea, but is one explored by the Cambridge University political theorist David Runciman who some of you may know from his very popular podcasts. 

When democratic systems experience problems they are often very messy and very public ones. There are unedifying scandals, disastrous inquiry hearings, or major leaks to the press. It’s the very public nature of these problems which drives the system to correct for them – whether that is policy change or personnel change, or the electorate throwing a government out of office.

The old maxim – sunlight is the best disinfectant – is true.

Actually, let me step that out a bit.

Louis Brandeis is credited with the fuller version – “Sunlight is said to be the best of disinfectants.”

He borrowed this from James Bryce in 1888 who said:

“Public opinion is a sort of atmosphere, fresh, keen, and full of sunlight, like that of the American cities, and this sunlight kills many of those noxious germs which are hatched where politicians congregate.”

He went on:

“No serious evils, no rankling sore in the body politic, can remain long concealed, and when disclosed it is half destroyed.”

In other words – again – sunlight is the best disinfectant. But Bryce’s words are more fun.

The ability to self-correct is what has saved many democracies from a doom spiral from which they cannot recover.

But there is one key ingredient necessary for this self-correction to occur – transparency. If problems remain hidden, there is little incentive for the system to correct for them.

That’s why transparency is what I want to talk about today.

I’m not going to pretend the Albanese Government has embarked on ‘democracy-saving’ measures. But I think some of the things we have done have been small but important self-corrections necessary to maintain the bond between voter and representative. It’s this bond that keeps democracy alive. 

Without transparency there can be no real accountability.

The pursuit of transparency and accountability has long been personal for me.

As a barrister I worked on the Stolen Generations Case between 1998 and 2002. The case was brought on behalf of Lorna Cubillo and Kumanjai Gunner, now both deceased. We sought to address injustices associated with actions taken in the Northern Territory up until the 1970s. 

Sadly, at that time, Aboriginal children were removed from their families, taken long distances from the communities of their birth and made to live among strangers in institutions which bore no resemblance to a home. They were denied the opportunity to grow up surrounded by the love of family, to speak their own language and to learn about their own country. Tragically, they were treated as orphans when they were not orphans at all.

We sought to hold the Commonwealth accountable for its actions and deliver long delayed justice to Ms Cubillo and Mr Gunner and other members of the Stolen Generations.

We failed.

The case was lost, but the cause was not.

The very first day I sat in the House of Representatives, 13 February 2008, was the day Prime Minister Kevin Rudd delivered the National Apology to Aboriginal and Torres Strait Islander peoples, particularly the members of the Stolen Generations. Lorna Cubillo sat on the floor of the House as an honoured guest. 

As a barrister, I represented clients who challenged the limits of state power and championed the right to know.

From FOI matters in the Victorian Civil and Administrative Tribunal, to environmental and climate cases in the Supreme Court of Victoria, and free speech cases in the High Court of Australia, I tested laws that worked against transparency and accountability.

When I came to the Parliament I was determined to pursue the things I really cared about. These included transparency, openness, accountability, access to justice, climate action, and Indigenous rights.

Improved whistleblower protection has long been an interest of mine.

One of my proudest achievements in my first period as Commonwealth Attorney-General was the creation of the Commonwealth’s first Public Interest Disclosure scheme.

One of my proudest achievements in my second period as Attorney-General is enhanced protection for whistleblowers, acting on recommendations the previous government ignored.

As many of you would be aware, a signature commitment that we took to the 2022 election was the creation of a National Anti-Corruption Commission. 

It’s a commitment I never thought we would have to make, given the Morrison Government promised an integrity body in December 2018. But it never delivered it. 

We won the 2022 election and we delivered on our promise to legislate for the new body by the end of that year. It wasn’t easy, and of course the shape of the new body was hotly contested. 

The new National Anti-Corruption Commission opened its doors on 1 July 2023.

The commission has strong powers to detect, investigate and prevent corruption across the entire Commonwealth sector.

It operates independently of government, with discretion to commence inquiries on its own initiative or in response to referrals from anyone.

It has the power to investigate allegations of serious or systemic corruption that occurred before or after its establishment.

It is overseen by a powerful parliamentary joint committee established by statute. 

It has the power to hold public hearings in exceptional circumstances and where it is in the public interest to do so.

It can make findings of fact, including findings of corrupt conduct, and refer findings that could constitute criminal conduct to the Australian Federal Police or the Commonwealth Director of Public Prosecutions.

As of last week, the National Anti-Corruption Commission:

• is conducting 33 preliminary investigations and 29 corruption investigations, including 8 joint investigations;
• is overseeing or monitoring 16 investigations by other agencies;
• has 7 matters before the court; and
• has 464 referrals pending assessment.

Corruption – even the suspicion of it – is corrosive to democracy. When voters elect governments, giving them enormous power in the process, there is an implicit trust that the decisions they make will be motivated at all times by the public interest. 

Institutions like the NACC are how we maintain that implicit trust. 

Alongside permanent bodies like the NACC, we have powerful Royal Commissions – set up to investigate specific issues of concern. 

The Robodebt Royal Commission is a recent and notable example.

Robodebt was shameful. 

I have previously called it a catastrophic failure of public administration – and it was. It must never happen again.

Royal Commissioner Catherine Holmes uncovered shocking facts about what happened. 

She found that in early 2017, when “Robodebt’s unfairness, probable illegality and cruelty became apparent”, the path taken by the former government “was to double down, to go on the attack in the media against those who complained and to maintain the falsehood that in fact the system had not changed at all”.

Members of the former government, including the now Leader of the Opposition, have not apologised.

If Robodebt had been allowed to stand unexamined, we would not have learned the lessons that need to be learned in order for it to never happen again.

For a government to inflict such pain on Australians, and there not to be an accounting for it, would have been unforgivable.

The Royal Commission has given governments of good conscience insights needed to ensure a scheme like Robodebt never happens again. 

The NACC and Robodebt Royal Commission are not the only significant pieces of work I have embarked on to improve transparency in government.

Next month, the Administrative Appeals Tribunal will be abolished and the Administrative Review Tribunal will commence. 

It may not receive a lot of attention, but the commencement of the ART will represent the biggest reform to Australia’s system of administrative review in half a century.

The AAT’s public standing was irreversibly damaged by the former government’s appointment of 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close political associates without any merit-based selection process.

A central feature of the new ART is a transparent and merit-based selection process for the appointment of non-judicial members. It’s vital that users of our administrative review system can have confidence that the people making life-altering decisions for our community are there on merit.

We’re talking here about decisions such as whether a person qualifies for an age pension, whether they receive compensation for an injury they suffered while serving their nation or whether they receive NDIS funding for essential support.

Transparency matters.

It is a matter of pride to me that since coming to government all AAT appointments have been made through a merit-based process.

All appointments to the ART made to date – and every one made in the future – will also be merit-based. 

I have also reformed appointment processes for the Federal Court of Australia and the Federal Circuit and Family Court of Australia, introducing advertisements, expressions of interest, and selection panels.

The Government has legislated transparent and merit-based selection processes for the Australian Human Rights Commission – not just to prevent the downgrading of the commission in international forums, but in recognition of the important role it plays in the protection and promotion of the human rights of all Australians.

And it is not just appointments - in June last year we implemented a long-neglected recommendation of the Royal Commission into Aboriginal Deaths in Custody by introducing real-time reporting of deaths in custody.

National real-time reporting of deaths in custody enables greater public transparency of deaths in custody and accountability of all governments for their criminal justice systems.

Internationally, we have acted to hold the Russian Government to account by pursuing Russia for its role in the murder of passengers aboard MH17, and its illegal invasion of Ukraine.

I have legislation before the parliament to enhance oversight of intelligence agencies by the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security. I hope that with its passage a better balance will be struck between individual liberty and national security. I believe effective oversight improves the performance of our intelligence agencies and enhances our national security.

I commissioned a review of Commonwealth secrecy provisions to examine the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences.

I should say at this point that there are some secrets that should be protected. As Cabinet Secretary and Minister responsible for the Australian Security and Intelligence Organisation and the Australian Federal Police, I recognise that the effective functioning of the Cabinet, and the preservation of national security, and law and order, require some secrecy.

The important thing is that the right balance be struck.

As Attorney-General I have removed gag clauses that stopped legal assistance providers in receipt of Commonwealth funding engaging in advocacy.

I was appalled by these gag clauses in Opposition. In Government, one of the first conversations I had was with an Aboriginal legal services provider who told me they couldn’t talk to me about funding because that was prohibited by their funding agreement.

This had to change. And it has.

We have also passed legislation to make not only government employers but also business more accountable for poor conduct in the workplace, including acting on a recommendation in the Respect@Work report by introducing a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation.

My department supported the review of the former Prime Minister’s secret ministries by Virginia Bell SC.

These self-appointments were so secret they were hidden not just from the public, but from Mr Morrison’s own Cabinet.

Now, all ministerial appointments are published on the website of the Department of the Prime Minister and Cabinet. Consistent with Ms Bell’s recommendations, acting ministerial arrangements are also published.

I am proud to have restored the three commissioner model at the Office of the Australian Information Commissioner. The first step in repairing the damage done to John Faulkner’s Freedom of Information reform project. Not only do we have three commissioners, but also none of them is forced to work from their kitchen table due to the paucity of resourcing. 

These are just some of the measures the Albanese Labor Government has embarked upon to improve transparency and restore faith in government.

We had a big job to do when we came to office. The practice of the former Government had been to obfuscate and hide from difficult truths. Australians know when they are being taken for mugs and they don’t appreciate politicians who are not honest with them.

The bond of trust between voter and representative had been stretched by the Morrison Government.

The repair work we have done since then may not make the headlines at election time. It may not even be rewarded by voters.

But that’s not the point. Those of us with the privilege of serving in the Cabinet have an obligation to serve more than our own interests.

We can’t take Australian democracy for granted. It takes work. It takes the courage to admit failure and invite examination.

It demands transparency. And accountability.

Thank you, I look forward to answering your questions.

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