Our right to transparent government started with Magna Carta

Neville Tiffen

Neville Tiffen is a non-executive director of Transparency International Australia. He is also a specialist consultant in corporate governance, integrity and compliance and a member of the OECD Secretary-General’s high level advisory group on integrity and anti-corruption.

How many documents will still be applied 800 years after their creation? Not many, if any. How many will have the reverence that Magna Carta attracts? Even fewer. For many years after completing Law School, I had a copy of the Magna Carta on my study wall. Quite often when I go to London, I visit the British Library to view one of the originals.

You can argue whether in reality Magna Carta established much in a concrete sense. I believe it did set a foundation that was strongly built on by others in subsequent centuries, especially Chief Justice Coke in Jacobean times and later the Bill of Rights toward the end of the Stuart dynasty. But, whether that is correct or not – the Magna Carta is a very powerful symbol. And, symbols matter.  At times, they are more important than hard facts.

To me, Magna Carta signifies the rule of law, that executive government is not above the law, that any punishment for breach of law is to be imposed by a separate judicial system and that at the core of that judicial system is the jury. It is a demonstration that people can limit corrupt executive power. The Magna Carta did not just benefit the nobles. Many of the principles I have just stated were expressed to be for the benefit of all “free men”.

When I present on integrity and compliance, I always start with “tone at the top”. It’s an old chestnut but it is crucial to setting the culture in an organisation. King John’s tone was not best practice.

What has been the tone at the top in Australian governments over the last few years? Apparently it’s not been very good. A recent poll stated that only 11% of voters have any trust in politicians. Perhaps our politicians should reflect on the words of our former Chief Justice, Brennan CJ: “Power, whether legislative or executive, is reposed in members of the Parliament by the public for exercise in the interests of the public and not primarily for the interests of members or the parties to which they belong. The cry ‘whatever it takes’ is not consistent with the performance of fiduciary duty.” That cry would come from someone that does not support an open and transparent government.

The politicians can address this lack of trust. One clear step would be to establish proper, effective and transparent anti-corruption agencies. As I have written previously, it is almost unbelievable that Australia does not have such an agency at the Federal level. My own state, Victoria, is yet to introduce a proper one. Whilst there have been recent legal technical difficulties with the NSW ICAC, it has been effective at disclosing bad practices that should be known to the public. It is a secondary question as to how many prosecutions have been launched. The main factor is: bad conduct has become known to the public. Transparency!

Another step for our politicians would be to introduce clear rules that require political parties to disclose in a very timely manner on an accessible website the receipt of funding, including the amounts and the true identity of the donor. Voters need to know that governments (and indeed other parties) are making decisions in the interest of the public. Transparency!

Associated with that, the government should disclose (after the award of the contract) all bids for any significant government contract. There are few occasions when commercial secrecy is required at that point. Again, the public should have assurance that decisions have been taken for proper reasons. Transparency!

Whenever a government chips away at the rule of law, public pressure should require it to clearly outline this. A recent study by the IPA found that 262 provisions in current Commonwealth legislation breached one of four legal rights: the presumption of innocence, the right to silence, the privilege against self-incrimination or the principles of natural justice. Perhaps there were good reasons for this to occur but were they clearly expressed by the relevant government? Did MPs really understand that was what they were voting for? King John would have been applauding.

Clearly the news media has a very important part to play in this. The recent “debate” on removing citizenship without any court involvement goes right to the core of protecting the rule of law. Any reduction in the rule of law should be examined very closely before it becomes law. It should only occur rarely and, when it does, be for a stated period and be reviewed before it is renewed.

The Magna Carta set off the long journey to the Australian Constitution. In particular, it helped the common law establish rights for individuals. The common law is flexible and can respond to changing times. The common law and a system of independent judiciary and juries are checks on an executive government that might act excessively or corruptly.

Does Australia require more? Do we need a US style Bill of Rights or a Victorian Charter of Human Rights and Responsibilities? For many years, I would have said no. However, I am swaying on this. My principal concern is that it will entrench “rights” in a way that was never intended. (Perhaps, just as some say, the Magna Carta did.) However, with the apparent tendency of governments to reduce the rule of law, my view is changing rapidly.

Australians should hold the Magna Carta in high regard and be thankful of the rights that can be traced back to it. But we must be on guard against the erosion of those rights. Perhaps our politicians will reflect on Magna Carta and move to an open and transparent government with clear tone at the top about integrity. Then, we can say that King John’s spirit has definitely been buried in Australia.

My copy of the Magna Carta is back on my study wall; it’s a reminder to me that the cry “whatever it takes” should be resisted in our attempts to protect the rule of law and promote a transparent government.

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