Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 283-338
The incidents and harms in question
The cases reviewed in this book illustrate some of the many ways in which citizens may be harmed by the actions of their governments. As was noted in the introduction, Australia's record in this area is relatively good by world standards. For the most part, the harms incurred at the hands of government are not catastrophic, and result from negligence rather than malice.
Such reassuring words, however, would be cold comfort to the relatives of the Electricity Trust linesmen, to the friends and relations of John Pat, and to the survivors of those Australian nuclear veterans who may have died as a result of their exposure to radiation. One doubts whether Barry Mannix or Jane Hill find it consoling to contemplate that they are living in Australia rather than South Africa. The Maralinga and Injalka peoples, whose cultures were subject to even greater threat by governmental action, have little cause to celebrate. Citizens who value the fundamental freedoms of speech and association and the right of an accused person to a fair trial are unlikely to be heartened by the normalisation of surveillance which characterises contemporary Australia. In brief, there is room for improvement in the conduct of Australia's public affairs.
The task of these concluding pages is to highlight any recurring themes which have characterised the various case studies, with a view toward reducing the likelihood of similar incidents arising in future. In the course of this discussion one will note the extent to which the Australian experience supports the theories of government illegality cited in Chapter 1. This concluding chapter will also review the various institutions and remedies which exist for controlling the Australian public sector, and will suggest means of improving their efficacy in light of the criteria by which such measures might be evaluated: deterrence, compensation, rehabilitation, and reaffirmation of the rule of law.
The harms inflicted in the course of the incidents described in this book were not trivial. More than five people died; in addition, the precise number of fatalities arising from the British nuclear tests remains obscure. Numerous people were physically beaten or otherwise menaced. If one includes the New South Wales prisoners who were systematically assaulted over a thirty-year period, the total would run into the thousands. Others were injured psychologically, if not physically.
Mismanagement of public funds entailed costs in excess of four million dollars in the Richmond case, and at least that much in the Victorian land scandals. The embarrassing pursuit of the social security conspirators cost tens of millions of dollars. Delay in the prosecution of the bottom of the harbour test case contributed to the development of a flourishing tax avoidance industry, and to the loss of hundreds of millions of dollars in tax revenues.
The British nuclear tests produced permanent environmental damage, and the Lea Tree incident saw the vandalism of one of Australia's oldest living things.
Fundamental democratic principles of privacy, freedom of association, and the right to a fair trial were violated. In the Richmond case, the democratic process itself was perverted. The legitimacy of police and correctional officials, whose very purpose is to uphold the rule of law, was tarnished.
Victims of government illegality
What kinds of people are likely to be harmed by government illegality? In some respects, governments are equal opportunity offenders. Waste and inefficiency in the expenditure of public funds cost taxpayers generally. Offences against democratic principles are offences against all citizens. But in many of the cases reported above, the victims of official misconduct tended to be drawn from the disadvantaged sections of Australian society. It is not coincidental that three of the cases involved harm to Aboriginal people, either as individuals or as a group. Throughout the European history of Australia, Aborigines have suffered at the hands of government (Rowley 1970; Nettheim 1981). They still do.
Another group which suffers disproportionately at the hands of government are criminal defendants. Perhaps one explanation for this is the fact that the agencies which deal with suspected or convicted criminals, police and prisons departments, wield awesome power, and conduct a considerable amount of their activity free from external scrutiny. Indeed, a person in police or prison custody is in a position of total dependence and vulnerability. He is hardly a credible witness against government officials who abuse his rights.
Other case studies described the victimisation of such ordinary Australians as the ETSA linesmen, Jane Hill, the pensioners of Richmond and the staff of the Sheraton Hotel. And so, it is not the privileged members of society, but rather the young, the poor and the Black who appear to be most profoundly affected by official misconduct in Australia. It is these same groups whose members tend to have the fewest resources, whether psychological, political or financial, with which to defend themselves.
The incidents differed widely in the degree of blameworthiness which might be attributed to the principals. In no case could the eventual injuries be regarded as completely unforeseeable. Whilst a great deal of precaution was taken in the conduct of the British nuclear tests, the very choice for a test site of what was perceived to be a remote wasteland implied an appreciation of the project's inherent risks. Failures to foresee the unfortunate consequences of one's conduct also characterised the ETSA case.
In other instances, the lack of foresight was more egregious. The risk that the ASIS raiders and their weapons might attract the attention of, and cause alarm to, the hotel management and staff should have been patently obvious. Jane Hill's superiors were advised on numerous occasions of the harassment she was experiencing in her workplace. The solicitors responsible for the bottom of the harbour prosecution failed to act, despite the encouragement received from private counsel, police and tax office officials.
By contrast, a number of cases entailed deliberate and knowing violation of the law. In those cases involving wrongful action which was intentional, the incidents in question entailed a variety of motives. The most common was the desire to 'cut corners' and achieve a goal more readily than would otherwise be the case using legitimate procedures. In some instances, such as the New South Wales telephone interceptions and the failure to disclose the nature of Special Branch activity in South Australia, it was argued that the ends of the conduct in question justified the means employed. In the Injalka case, the legitimacy of the law itself, or at least its prevailing interpretation, was challenged.
Only in isolated instances were the principals driven by pure self interest or by selfless devotion to duty. Private personal gain and political power were quite likely the sole bases for the activities described in the Richmond Council case. The normal conduct of one's job in furtherance of agency business was the setting for some of the incidents, including the Mannix and NSW telephone intercept cases. In one case - the vandalism of the Lea Tree - the misconduct was essentially expressive rather than instrumental.
The misconduct in a number of incidents was orchestrated by the agency's top management; in others, it arose from discretionary conduct by officers in the field. The incidents which were most clearly set in train by executive action included the New South Wales police telephone intercepts, the Richmond Council activities, and the Injalka case. Incidents of alleged illegality arising from a subordinate's exercise of discretion included the Mannix and John Pat cases.
Another set of cases involved flawed implementation of policies which had been formulated in general terms by senior management. Such cases would include the ASIS raid and the social security conspiracy.
Each of the incidents was shaped by the organisational context in which it occurred. In no case can the misconduct at hand be traced to a single cause. Rather, the cases arose from a constellation of factors; some of the more influential of these require a brief summary.
Environmental influences underlay a number of the incidents under review. In their theory of organisational crime, Finney and LeSieur (1982, pp. 269-70) posit that the stronger the goal orientation within an Organisation, the greater the pressure for organisational crime. Performance pressures were perhaps most salient in the Mannix, Injalka, and Asia Dairy cases. As the crucial early days of the Mannix investigation wore on, with no arrests made, pressures to solve the case were reinforced by the arrival of senior officers from Brisbane. The desire to expedite development of the Northern Territory in general, and the Barrett Drive project in particular, contributed to the minister's decision to bulldoze the Injalka site. The less than robust state of the Australian dairy industry made the retention of overseas markets of highest priority, thus contributing to the decision to pay the requested rebate to the Philippine company HOMPI. External pressures also contributed to the social security conspiracy scandal. Recall how the incoming Director General of Social Security was recruited to crack down on benefits fraud. In the eagerness to deliver the goods, the department's role in the planning and execution of 'Don's Party' could have been orchestrated with greater care.
Although financial exigency in the private sector can lead to corporate crime, lack of resources made a significant contribution in but one case reviewed here - the inordinate delay of the bottom of the harbour prosecution. Staff ceilings, caseload pressures and inadequately skilled personnel led to neglect of the crucial file. By contrast, a relatively munificent environment appears to have provided the setting for a number of cases. The Victorian government was flush with funds to spend on the acquisition of land. With money as no object, few incentives to ensure efficient expenditure remained. The South Australian and New South Wales police departments were able to allocate staff resources to the tasks of physical and electronic surveillance. It might also be argued that there was an overabundance of police and an excessive preoccupation with public order in John Pat's hometown of Roebourne.
This suggests that there may be an optimum level of resources for the achievement of legitimate ends by public sector agencies. Insufficient resources can lead to the cutting of corners, or to neglect. An overabundance of resources, on the other hand, may lead to carelessness, or to the allocation of surplus means to illegitimate ends.
The double interact of control
one useful framework for the analysis of organisational pathology is what communications theorists term the double interact of control. Simply stated,
Supervisor A gives directions to subordinate B; Subordinate B complies (or fails to comply) and the 'messages' concerning compliance and goal attainment are monitored through feedback loops leading back to A; Supervisor A assesses the results of B's performance and accordingly dispenses rewards and punishments to B (Tompkins & Cheney 1985, p. 195).
In Braithwaite's (1985) study of coal mining safety, he found those mining companies with exceptional achievements in worker safety to be characterised by clearly defined accountability for safety performance, rigorous monitoring of that performance, and systems for communicating performance feedback to managers and workers.
But not all organisations have such impressive control procedures. In each of the chapters above one may discern evidence of malfunctioning in the system of directing, monitoring, and correcting organisational activity.
Direction may be explicit, that is by command, or implicit - by suggestion or example. Social critic and consumer activist Ralph Nader once said that organisations, like fish, rot from the head down. In his study of American business executives, Clinard (1983) observed that ethical standards established by senior management were reflected in patterns of conduct throughout the company. So too do leaders of public sector organisations create a moral climate that influences the values and the behaviour of those who work for them. Direct complicity of top management in the illegal activities of the Organisation were apparent in a number of cases. Perhaps the most extreme example was that of the New South Wales Police telephone interception program, initiated at the explicit direction of the Commissioner of Police. Similarly, the systematic beating of New South Wales prisoners, with special compensation of prison officers at Grafton, could only have taken place with the complicity of the comptroller general of prisons. Indeed, Mr McGeechan's management was so flawed that the Royal Commissioner called for his dismissal. Similarly, the former Town Clerk of Richmond was faulted for setting a most unsavoury example of personal conduct, not to mention his contempt for democratic principles. Senior management of the New South Wales Water Resources Commission appeared less than totally committed to principles of equal employment opportunity. Their lack of enthusiasm was not lost on the boys in the purchasing division. Executives of Tasmania's Hydro-Electric Commission placed less value on preserving nature than on conquering it. In each of these cases, the values of senior executives were shared by officers in the field, to the detriment of the public interest.
It was once traditional in the Westminster system that the acts of a public servant were regarded as those of the responsible minister. Much as the captain of a ship, a minister was in theory accountable for any wrongdoing within his or her portfolio. Such a tradition is no longer a part of Australian political culture, however. In recent years, ministerial dismissals or resignations have arisen almost invariably from personal shortcomings of the individual concerned, and not from departmental failures.
Ministers became the subject of intense criticism for their roles in the NSW prisons scandal, the failure to prosecute the 'bottom of the harbour' promoters, the social security conspiracy, and the Victorian land purchases. Only in the latter case did a resignation eventuate, and then after a considerable period of time elapsed and the minister was in fact holding another portfolio.
The durability of ministers in these cases stands in contrast to the demise of federal treasurer Philip Lynch, whose misfortune it was to profit very handsomely from a land transaction in Victoria when his state colleagues were the subject of such criticism for their profligate spending. One may also recall the young minister Andrew Peacock's tendering his resignation following the appearance of his first wife in an advertisement for bed sheets.
In those cases where the pattern of organisational misconduct has not been established by executive action, one might expect the monitoring of subordinates' behaviour to explain some variation in government illegality (Kaufman 1973). One of the more striking similarities, a common thread running through a number of otherwise widely diverse cases, was an apparent lapse of supervision on the part of middle management. The Deputy Crown Solicitor in Perth failed to review the progress of the 'bottom of the harbour' test case and to oversee the transfer of files when the original solicitor responsible left the office. The fatal accident involving Electricity Trust of South Australia linesmen occurred when their supervisor was absent from the construction site. Because of turnover resulting from illness and incapacity, three middle level supervisors between Jane Hill and senior executives in the Water Resources Commission did not protect her from victimisation or reinforce the legitimacy of her position. Activities of the Australian Dairy Corporation and its Asian subsidiaries were not closely monitored by officers of the Department of Primary Industry. The South Australian Special Branch went about its business for years without guidance from the superintendent in charge of the CIB. The officer in charge of the ASIS training exercise was strongly criticised by Mr Justice Hope for his management of the mission. The McClelland Royal Commission faulted the AWTSC for undue deference to British testing personnel and for inadequate monitoring of the testing program. Recall how the Queensland Police Tribunal faulted the officer in charge of the Broadbeach CIB for not exercising closer control of the Mannix murder investigation in its crucial early stages.
The flow of information within an Organisation can be crucial to an agency's performance (Dunsire 1978, p. 169; Downs 1967, pp. 77-8, and Ch. 10). Blockage or distortion of organisational communication may not only create problems, but may compound them, once made. Communications breakdowns may take a number of forms (Billings & Cheaney 1981). On the one hand, there may be an absence of information transfer, that is when the necessary message is not transmitted at all. When information transfer does take place, the message may be incomplete or inaccurate, thereby containing insufficient information on which to base subsequent action. Alternatively, the message may be untimely, having been transmitted too late to be of assistance. Furthermore, the information may be transmitted, but may not be perceived or may be misperceived by the intended recipients.
Flawed communications played less of a role in the incidents under review than might have been anticipated. One example involved incomplete information communicated downward through an Organisation. Proper construction procedures were imperfectly communicated from the supervising engineer to the ETSA construction crew, and thus inappropriate (and ultimately fatal) materials were used. Ambiguous or erroneous information appears to have been communicated to the responsible minister in the Injalka case. By one account, officers of the Northern Territory government advised the minister that negotiations with the Injalka people had irretrievably broken down, when in fact a compromise may still have been possible. Based upon that information, the minister decided to have the site blasted. At least one example of selective filtering of upward communication occurred in the NSW prison case, when the minister was not made aware of the results of an internal investigation reflecting adversely on departmental performance. Another type of communications pathology occurs when an Organisation is in receipt of ambiguous information from external sources. The Yass Council received considerable information, much of it contradictory, from a number of agencies, and was thus disinclined to take the abatement action demanded by the State Pollution Control Commission.
Plausibility of denials
As the Iran-Contra hearings in the United States demonstrated, the principle of accountability can be defeated by structuring a managerial situation so that an executive can deny knowledge of misconduct occurring under his or her administration. As there is less stigma, and indeed, less culpability, attached to ignorance than to condonation or complicity, one may arrange affairs so that management remains ignorant of an ongoing procedure, or is able to plead ignorance by avoiding the creation of a record which would indicate to the contrary.
Of the cases presented above, there are three in which ministers of the crown, who might have been expected to know about misconduct within their portfolios, claimed ignorance. These were the abuse of New South Wales prisoners, the social security conspiracy, and the Asia Dairy case. In each, the plausibility of ministerial denials was called into question - by subordinates themselves in the two latter cases. Suffice it to say that there is more than a grain of wisdom in the Rae committee's injunction in the course of the Asia Dairy inquiry, that written communications were superior to oral. One may also paraphrase the sage observation of a Hollywood mogul that a verbal reassurance isn't worth the paper it's written on.
Two cases which involved a noticeable lack of appropriate reinforcement to subordinates were the social security and special branch surveillance cases. In the former, deference to police autonomy prevented a refinement of the operation and a reduction of the number of persons charged. Committal proceedings thus continued for months before they were abandoned. In the special branch case, the Commissioner of Police failed to narrow the scope of surveillance activity, even when these excesses had become the subject of public discussion.
The degree to which the conduct of an Organisation is subject to scrutiny by external agencies may also explain its behaviour (Downs 1967, p. 148). Autonomy is a major goal of most organisations. To the extent that an Organisation is able to achieve a degree of economic independence, prestige, and the ability to dictate its own policies and procedures, it becomes insulated from external control and supervision, and may even develop a separate morality (Ekland-Olson & Martin 1988). In turn, this can lead to organisational misconduct. In a number of cases reviewed here, the organisations involved enjoyed a degree of autonomy which tended to shield them from external scrutiny. Most prominent among these were the police agencies, which traditionally sought to insulate themselves from accountability and democratic control. Although ambiguities regarding the constitutional status of the South Australian police were generally regarded as having been resolved following a royal commission report some years earlier, Harold Salisbury continued to claim that he had legal grounds for misleading the government. The New South Wales Police resisted external guidance as well. In the late 1970s a number of officers engaged in a campaign of calculated insubordination and disinformation against the government's newly introduced summary offences legislation. The acute sensitivities of the police, combined with their political muscle, made governments extremely reluctant to provide the guidance and oversight which can reduce the risk of misconduct.
The non-existence or failure of external oversight mechanisms was by no means unique to police agencies. The Victorian Department of Local Government might have been more strict in its scrutiny of the Richmond Council. The excessive secrecy of the New South Wales Department of Corrective Services was criticised in the Nagle Report. Not only were the state's prisons beyond the scrutiny of the media and parliament, the century-old proposal of Sir Henry Parkes for an independent inspector had yet to be implemented. There seems little doubt that the absence of an external oversight body contributed to the climate in which illegality flourished.
Rapid expansion of organisational activity
In at least three cases, the rapid expansion of organisational activity provided the background for illegality. The introduction of a special operations function within ASIS involved activities outside the traditional ASIS repertoire. The desire on the part of the government of Victoria to acquire, in haste, large amounts of land for public housing led to the carelessness of the procurement process. The decision of the Commonwealth Police to embark upon a massive social security fraud crackdown proved most unwise given its lack of experience in planning and executing large scale operations.
The organisational culture of illegality
In a number of cases, the incidents in question arose not from a temporary lapse or aberration, but rather reflected practices deeply ingrained in the Organisation. At one extreme, the tribal politics of the Richmond Council (where looking after one's relatives, friends and political allies was central to the natural order of things) constitute one example of how illegality becomes ingrained in the culture of an Organisation. So too, albeit more for institutional than for private ends, were the beatings at Grafton Gaol, which had become routine for generations of prisoners and prison officers. The routine police practice of fabricating confessions, attributing them to a suspect, and introducing them as evidence in criminal cases, long preceded their official disclosure by the Beach and Lucas reports (Swanton 1986). The program of telephone interceptions by the New South Wales police was a common adjunct to criminal investigations, and had become institutionalised within the department over a period of nearly twenty years.
Common to all of these examples is the fact that the illegality in question had become part of the standard procedure of the agency. The rationalisation of illegality by law enforcement officers became a fact of organisational life (Skolnick 1982). Individuals within the Organisation who might have been inclined to challenge the illegal practices would quite likely have done so at the risk of informal harassment and retribution, if not formal disciplinary action.
Toward a theory of government illegality
At this stage, it might be instructive to return to the theories of corporate crime and organisational deviance reviewed in Chapter 1, to determine the degree to which they are supported by the evidence from the case studies. An attempt will then be made to formulate a provisional theory of government illegality.
The explanatory power of existing theories
Kriesberg's (1976) rational actor model, which corresponds closely to Kagan and Scholz' (1984) model of the amoral calculator, would appear to characterise the decision to bulldoze the Injalka site and perhaps to begin the program of illegal telephone interceptions. Beyond these, none of the cases appears to have involved the careful assessment and weighing of the risks and benefits attending a particular course of action.
Kriesberg's model of organisational process decision-making can explain a number of incidents under review. The absence of standard operating procedures to deal with a new situation underlay the downfall of the ASIS training exercise. By contrast, the persistence of existing procedures under circumstances no longer appropriate (if ever they were) characterised the abuse of prisoners, the Special Branch surveillance, and the Mannix interrogation.
Kriesberg's model of bureaucratic politics can be applied to the social security conspiracy case. Here, three different public agencies were involved in planning the operation. When the case began to unravel, major participants hastened to dissociate themselves from the alleged improprieties, claiming that they had been insulated from knowledge of the matter in question. One may also recall the secrecy and compartmentalisation of knowledge which characterised the British nuclear testing program.
Kagan and Scholz' model of corporations as political citizens can explain a number of incidents involving alleged police misconduct. Police, perceiving their legal environment to have been excessively constraining, were moved to violate laws which they regarded as arbitrary or unreasonable. In a more overt manner, the Injalka case involved an explicit challenge to a law the validity of which had been called into question.
A number of incidents arose from what Kagan and Scholz would describe as organisational incompetence. All of the lapses in monitoring just reviewed can be so described. The carelessness which characterised the ASIS operation, the inadequate supervision and the inefficiency which underlay the stalled bottom of the harbour prosecution, and the management failure which allowed the victimisation of Jane Hill are all illustrative. Similarly, the poor planning and failure to anticipate the legal and political consequences of the social security raids were symptomatic of management failure rather than malevolence.
Finney and LeSieur (1982), Vaughan (1983; 1986), Coleman (1987) and Braithwaite (forthcoming) each emphasise the goal orientation of organisations, and suggest that when such goal orientation is intense and when legitimate means of attaining the goals in question are foreclosed, illegitimate means will be used to the extent that they are available. Such a focus on goal orientation in general transcends distinctions between private and public sectors. The preceding discussion of the environmental context of the cases under review provides considerable support for explanations of organisational deviance which are based on goal orientation. It is perhaps most apposite in the cases of the alleged rebate paid by Asia Dairy, and the telephone intercepts.
The above theorists also accord considerable importance to the degree of normative support for illegality which prevails within an Organisation. The key role of leadership in setting a moral tone for the entire Organisation was noted above, as was the development of an organisational culture of illegality. The organised subculture of resistance was most strikingly visible ill the telephone interception case, where the officers responsible refused to co-operate with authorities until they had been granted immunity from prosecution.
Vaughan, Coleman and Braithwaite each refer to the likelihood of detection, or the perceived certainty and severity of punishment in the event of detection, as factors which would tend to inhibit government illegality. Certainly, the secrecy which traditionally surrounds many aspects of law enforcement and corrections in Australia (not to mention matters of defence and intelligence) shields them from public scrutiny, and renders less likely the detection and punishment of those offences which may occur.
Organisational complexity did not appear to figure prominently in the cases under review. Lapses in supervision and communications, which one may expect to occur more often in complex organisations, were found in relatively small agencies. It thus appears that for purposes of potential for deviance, the structure of an Organisation is less important than its members.
If, as Braithwaite argues, the threat of potent shaming tends to inhibit illegality, the cases in this book suggest that the threat must be credible. Certainly, many of the incidents in question were followed by shaming which bordered on vilification: the bottom of the harbour case and the social security case were perhaps the most vivid examples. But in these and other cases, the risk of embarrassment appeared not to loom large in the consciousness of the actors before the event. Indeed, even after the event, principals in many cases remained unrepentant, or were at least able to rationalise their behaviour.
A provisional theory of government illegality
Based on the analysis of seventeen selected cases, it would be presumptuous indeed to proffer any definitive generalisations about the causes of government illegality, in Australia or elsewhere. But, with some guidance from previous theorists of organisational misconduct, it would not be inappropriate to suggest what the broad contours of a theory of government illegality might look like. A diagrammatic model is presented in Figure 19.1.
Weak institutions of external oversight
Organisations which are shielded from external scrutiny are more likely to offend than are those whose activities are subject to the attention of independent monitoring agencies. Inadequate external oversight will diminish inhibitions to offending directly, as well as through the conduct of senior and middle management.
Powerlessness of prospective victims
The greater the extent to which agencies deal with disadvantaged or otherwise marginal members of society, the greater the likelihood of offending. Such individuals will tend to lack the resources necessary to defend themselves, and will be less able to invoke the assistance of external oversight bodies.
Poor leadership by senior management
The greater the extent to which an agency's top management condones or encourages illegal conduct, or engages in such conduct personally, the greater the likelihood that other members of the agency will follow suit.
The likelihood of illegality will increase to the extent that organisational policies and procedures are inadequately communicated to the rank and file.
Inadequate supervision by middle management
The less rigorous the monitoring of day-to-day operational routines and provision of corrective feedback by middle management, the greater the likelihood of illegality.
Rapid organisational expansion
The more rapid the growth of an Organisation, in terms of size or function, the greater the likelihood of illegality. Rapid organisational growth may inhibit both effective supervision and essential communication within the agency.
Strong goal orientation
The stronger the organisation's goal orientation, the greater the likelihood of illegality. When the achievement of an organisation's ends is seen to justify illicit means, the likelihood of offending will be greater.
The task of refining (or of discrediting) this provisional theory will be left to subsequent researchers. But it is suggested that many of the relationships specified in the theory can explain a good deal of the official misconduct which occurs not only in Westminster style democracies, but in a variety of other regimes as well.
Mobilisation of law
The incidents described in the above chapters varied greatly in their initial visibility. Some were self-consciously clandestine prior to their unintended disclosure, whilst others achieved instant attention. The most common course of detection entailed the definition of the incident as wrongful by the immediate victim, who then lodged a complaint with the relevant legal authority.
Those incidents which involved sudden and violent death, the John Pat and ETSA cases, resulted automatically in coronial inquiries after initial notification of police by officials on the scene.
In only one case, the NSW police telephone interception program, was the illegality disclosed directly as the result of a leak from within. But in contrast to the classic situation of 'whistleblowing', the disclosures were made not to discredit the agency itself, but rather to embarrass a political enemy outside the Organisation.
In the Asia Dairy and DCS Perth cases, the alleged misconduct was discovered by external investigative bodies. In the latter case, as the trail from the Melbourne waterfront to the solicitor's bottom drawer illustrated, the discovery was quite serendipitous.
The news media were instrumental in bringing the illegality to light in only a minority of cases. Perhaps the most successful example of investigative journalism in the detection of misconduct was the work of The Age in exposing the Victorian land scandals. Articles in The Australian newspaper finally forced disclosure of Special Branch surveillance in South Australia. And after some delay, the investigative team from The Adelaide Advertiser brought to public attention the unfortunate consequences of the British nuclear testing program. In a number of other cases, the news media were instrumental in setting the public agenda by keeping the alleged misconduct in the spotlight.
The most common governmental response in the aftermath of an incident's initial disclosure was the appointment of a royal commission or judicial inquiry. In some instances, most notably those in which senior government officials thought that media attention and public concern might soon fade, this occurred only after some delay. Such initial reluctance was apparent in the NSW prisons, social security, Victoria land, and Maralinga cases. When it became obvious that the incident would not 'blow over' the mobilisation of a judicial inquiry served to take the heat away from the government - at least for the time being.
Despite allegations of criminal conduct in most of the cases presented above, prosecutions were by no means automatic. Following the verdict of the Coroner, the officers implicated in the death of John Pat were tried for manslaughter. The Electricity Trust of South Australia was prosecuted under the general duties provision of state occupational health and safety legislation. The Yass Shire Council was, after some delay, charged with a licence violation by the State Pollution Control Commission. A number of minor functionaries were prosecuted by Victorian authorities as a result of the land scandal and Richmond Council cases.
But in a number of other cases the criminal process was never invoked, or if so, it did not run its full course. On at least two occasions, this reflected a conscious policy decision by the government. In the NSW police tapes case, suspects were granted complete immunity by the federal government in return for their testimony before the Stewart Royal Commission. The NSW state government chose not to proceed against those prison officers who had been implicated in the abuses outlined in the Nagle Report.
At other times, the lack of prosecution arose from decisions by ostensibly independent tribunals or prosecuting authorities that insufficient evidence existed to enable a prosecution to succeed. Indeed, the bulk of the Queensland Police Complaints Tribunal Report on the Mannix case was devoted to impeaching the credibility of the complainant. In the Asia Dairy case, the Australian Federal Police concluded that a prosecution against the chairman of the Australian Dairy Corporation was unlikely to succeed.
The federal government suggested to Victorian authorities that the public interest would not be served by prosecuting the ASIS raiders. Ultimately, the state Director of Public Prosecutions concluded that evidence was insufficient to convict specific defendants of the charges in question. Inadequate evidence, the death of one of the principals, and the passage of time since the commission of the alleged offences also underlay the decision not to prosecute a number of suspects in the Richmond Council case.
Disciplinary action was taken only infrequently, and then more often against dissenters and whistleblowers than against perpetrators of government illegality. A number of those involved in the harassment of Jane Hill were eventually subject to disciplinary hearings, but the judgments were largely negated upon appeal. The unfortunate officer in the Perth Deputy Crown Solicitor's office whose wife ran an escort agency was dismissed from the Australian Public Service. The Deputy Director of the Australian Dairy Corporation was relieved of his executive responsibilities, but remained on the ADC board.
In only five cases did victims seek redress at civil law. The employees and hotelkeeper in the ASIS raid, the widows of the deceased ETSA linesmen, Jane Hill, and a number of social security beneficiaries and nuclear test veterans, each sought to recover damages. New South Wales prisoners were prevented by law from suing, and after Barry Mannix' unfortunate experience with the Queensland Police Complaints Tribunal, he may well have concluded that any further legal action was unlikely to succeed. In the remaining cases, there was either no specifiable injury to a given person or group, or the potential plaintiff's state of legal vulnerability was such that legal action was likely to have been disadvantageous. The Maralinga people chose to deal directly with the federal and South Australian governments rather than go through a formal legal process.
Outcome of the legal process
Of those criminal charges which were laid, most were unsuccessful. Charges were withdrawn in the Injalka case when it became apparent that the act did not bind the Crown. The minister, his officers and agents were thus immune from prosecution. The police who were prosecuted over the death of John Pat were acquitted of all charges. Charges were found proven against the Yass Shire Council, but no conviction was recorded.
Convictions were obtained in only three cases. The Electricity Trust of South Australia was convicted and fined $250 for negligence leading to the deaths of four men. The public servant who was found to have benefited personally from the Victorian land deals was sentenced to prison. A few minor participants in the Richmond Council affair were also sentenced to prison or to periodic detention.
Claims by victims or their surviving relatives for civil damages were somewhat more successful. The widows of the ETSA linesmen received damage awards which collectively exceeded one million dollars. Victims of the ASIS raid reached a settlement with the federal government for a sum of approximately $300,000. Jane Hill was awarded $37,000 by the New South Wales Equal Opportunity Tribunal, and the victimised social security beneficiaries received ex gratia payments which collectively approached ten million dollars.
Long term consequences
Although incidents such as the ones under review here result in considerable cost and suffering in the short term, they are not totally without benefit. Fisse and Braithwaite (1983) have shown that crises of adverse publicity experienced by private sector organisations tend to have a salutary effect on subsequent corporate conduct. A scandal in the public sector, by attracting attention to the misconduct in question and to its causes, may also serve as a catalyst for reform. Sherman (1978) and Punch (1985, p. 27) have shown this to be the case with police agencies in the United States and Europe.
Formal investigations and informed public debate may generate recommendations for improved policies and procedures. Executives of wayward bureaucracies may seek to rebuild their own public image, as well as that of their Organisation, by implementing proposed reforms. The political pressures arising from a scandal may make the external imposition of reform more tolerable to otherwise resistant management. Alternatively, the clouds of scandal can assist reform-minded management to prevail over the resistance of ordinarily intransigent rank and file.
Most of the cases reviewed above have resulted in some benefit thus far. These positive outcomes will be summarised under our general evaluative criteria - deterrence, compensation, rehabilitation and denunciation of the illegality and reaffirmation of the rule of law.
To what extent did the reaction of governments and public to the above incidents have a deterrent effect? Are the wayward agencies less likely to inflict similar harm in future, and are others less inclined to follow in their paths? One would argue that in most cases, both recidivism and emulation are unlikely, due less to any in terrorem effects than to the rehabilitative impact of the interventions which took place.
There were cases, however, in which a deterrent impact was noticeable. In four instances, entire organisations or their wayward components were abolished. The Richmond Council was replaced by an administrator. ASIS no longer has an attack function. The South Australian Special Branch was disbanded, with those of its responsibilities pertaining to intelligence on political violence and terrorism given to another, more accountable unit within the police force. The functions of the New South Wales Water Resources Commission were distributed amongst local authorities or transferred to a new department of state.
Although the ASIS and special branch functions were highly specialised, one may assume that future training exercises involving law enforcement and security agencies will be planned and executed with greater rigour. Public agencies in New South Wales will be less apathetic about sexual harassment in particular and equal employment opportunity in general. Similarly, local government bodies in Victoria will remain mindful of the fate which can befall them for maladministration.
Other lessons appear to have been learned from those cases which resulted in less draconian treatment of the agencies concerned. One imagines that greater care is taken by Queensland detectives in the course of complex criminal investigations, and by Western Australian police in their dealings with Aboriginal communities. The Department of Social Security now exercises greater caution in its approaches to fraud control.
The difficulties experienced by the Deputy Crown Solicitor's office in Perth illustrate the usefulness of ridicule as an instrument of social control. The failure to prosecute the bottom of the harbour promoters received even greater public attention because of the disclosure of the peripheral activities of the escort service. The degree of embarrassment experienced in Canberra was such that similar lack of effective oversight in future became much less likely.
The majority of cases resulted in significant improvements to the organisations themselves or to their policies and procedures. In one case, an entire new Organisation was created. In 1984, the federal Director of Public Prosecutions and his staff assumed the prosecutorial responsibilities of the Crown Solicitor.
Improved management procedures intended specifically to minimise the recurrence of similar incidents were instituted by the Electricity Trust of South Australia, by the Australian Attorney-General's Department and by the Department of Primary Industry. The prisons of New South Wales came under the management of a five-member Corrective Services Commission, and greater care was devoted to the recruitment and training of prison officers.
New systems of external oversight and control were introduced in the aftermath of the ASIS raid, the South Australian Special Branch revelations, the Asia Dairy affair, and the Victorian land scandals. The report on abuses within the New South Wales prison system led to the involvement of the state Ombudsman in investigating complaints by prisoners.
In one instance, the disclosures of illegality helped legitimise and institutionalise reforms which were already in train. The creation of a Police Board in New South Wales, and the more active involvement of the state Ombudsman in investigating complaints against police were both given a boost by the telephone intercept scandal.
To what extent did those who suffered as a result of government action receive adequate compensation for their losses? If one considers the goal of compensation to be the physical, psychological and financial restoration of the victim to that state prevailing prior to the injury, one must regard the results as generally unsatisfactory. In a number of cases involving concrete, identifiable victims, most notably the Mannix, John Pat, and NSW prisons matters, no compensation was made. In others, particularly the Jane Hill, ASIS, ETSA, and social security cases, the victims or their surviving relatives received monetary damages. A few of the Maralinga test veterans were compensated for their injuries; legal action is still pending in a number of cases. Title to the Maralinga lands was vested in its traditional inhabitants, and the British and Australian governments undertook some decontamination and monitoring efforts. The dispute between the two nations regarding which would bear the responsibility (and the cost) of further decontamination will continue for years.
Certain losses, moreover, are difficult to express in monetary terms. Violations of privacy and abridgement of political freedom often defy costing, as does injury to the environment.
In none of these cases can one regard the restoration of the victim as complete - where injuries are fatal, this becomes an impossibility. But it would appear that in the current climate of fiscal austerity, governments will battle tenaciously to minimise any drain on their finances, even when this may result in some injustice. The cost of litigation for a victim of government illegality may be prohibitive, and court awarded damages may not be great. Victims may have to rest content with small concessions.
Denunciation of illegality and reaffirmation of the rule of law
Most of the incidents described in this book became the objects of ringing denunciation. Where this occurred, it tended to be at the hands of royal commissions, arguably the most prestigious and authoritative voices in Australian public life. Perhaps the most strenuous denunciations were those of the Nagle Report on NSW prisons, the Costigan Report on the failure to prosecute the 'bottom of the harbour' cases, and the McClelland Report on British nuclear tests. Considering the politeness of discourse which generally characterises the Victorian legal profession, the Nicholson Report on the Richmond Council might also be regarded as stern. Somewhat less scathing in tone were the reports concerning the ASIS raid and the NSW police tapes. Other examples of denunciation may be seen in the Ombudsman's report on the Yass Shire Council and in the Rae Committee's report on the Asia Dairy case.
One takes great risks in venturing an explanation for the variation in indignation which appears across the official reports in response to the incidents of illegality. Public officials vary in their capacity for outrage. Differences may reflect individual personality and nothing more. It would seem, however, that those royal commissioners who had some considerable previous experience with the type of Organisation they were investigating tended to be less vehement in their condemnation, and perhaps more understanding of the shortcomings upon which they reported. Neither Mr Justice Stewart, a former police officer and current head of the National Crime Authority, nor Mr Justice Hope, who had become immersed in security intelligence matters for a number of years, engaged in denunciation beyond detailed exposition and perfunctory criticism of the illegalities with which they were confronted. One may recall that the Queensland Police Tribunal, chaired by a former police officer, expressed as much sympathy for those police who testified before the Tribunal as they did for Barry Mannix, who had spent more than four months in prison before his father's real killers were identified.
The prevention and control of government illegality: directions for reform
In the United States, Wilson and Rachal (1977) observed that public sector agencies were often much less amenable to control than private sector organisations. They noted that governmental entities have successfully cultivated independent sources of support which they are able to mobilise artfully when their institutional interests have been threatened. Although they refer specifically to the Veterans Administration, they note that other agencies as diverse as the Federal Bureau of Investigation and the US Army Corps of Engineers were for years virtually autonomous and quite impregnable. Australians too may ask themselves the question posed by the title of Wilson and Rachal's essay: 'Can the government regulate itself?' Indeed, we may also ask the extent to which the excesses of government are susceptible to control by citizen action.
None of the incidents described in this book was inevitable. Each would have been much less likely to occur had various institutions and countermeasures been in existence or had been functioning optimally. It will be the task of these remaining pages to review in general terms the mechanisms of control and accountability which exist in contemporary Australia, and to suggest ways in which they may be strengthened. We will begin with a review of those institutions which exist to prevent and detect government illegality, then proceed to a discussion of remedies available once the government breaks the law.
Internal oversight and control are the major bulwarks against government illegality. As many of the above cases illustrate, leadership and supervision play a major role in facilitating or inhibiting official misconduct. The ETSA accident would almost certainly not have occurred had the supervising engineer remained on site. More attentive supervision by the Crown Solicitor in Canberra and by his deputy in Perth would have prevented the bottom of the harbour file from becoming lost in the proverbial 'too hard basket'. Stricter scrutiny by senior management could have prevented the ASIS debacle.
Organisational capacity to supervise and control the behaviour of subordinates is unquestionably greater than that of outsiders. Organisations may, for example, impose obligations on their employees to identify and disclose unethical or illegal conduct. Fisse and Braithwaite (1983, pp. 168-81) refer to the extraordinarily strong policy of Exxon requiring employees to advise senior executives of any illegality coming to their attention, whether or not the illegality lies within the employee's normal domain of responsibility. A senior executive referred to the company as an Organisation full of 'antennas'. Public sector organisations are no less capable than Exxon of developing such antennas.
Agencies which fail to keep their own houses in order may soon expect the attentions of outside authorities. Any public sector Organisation which seeks to maximise its autonomy will develop an effective system of self-regulation. The organisational design of internal oversight has received considerable attention in both public and private sectors. The establishment of an internal compliance unit, with power to investigate all aspects of an agency's operations, has become increasingly common. Perhaps the greatest virtue of an inhouse compliance unit is the potential for its personnel to develop intimate familiarity with the practices and procedures of the Organisation (Downs 1967, pp. 148-51). Such inside knowledge is rarely achievable by outside inspectors. As Braithwaite notes, insiders are in the best position to know 'where the bodies are buried' (Braithwaite & Fisse 1985; Braithwaite 1987, p. 148).
It is important for the internal investigative function to be independent of line management, and answerable directly to the chief executive. In the United States, for example, each major federal agency has an Inspector General, whose responsibility it is to conduct periodic audits and to investigate and report on suspected misconduct, including fraud, abuse of power, and waste of government resources (Rosen 1982, p. 129). Inspectors-General are presidential appointees, responsible directly to the agency head, who is specifically forbidden to impede audits and investigations. Inspectors-General possess subpoena power, and are required to report semi-annually to the Congress of the United States on the audits which they have completed, the problems which they have identified, and the proposals for reform which they have made. The semi-annual report also provides follow-up information on previous recommendations and on the details and outcomes of any matters previously referred for prosecution.
Each Australian police department has an internal affairs branch with the task of investigating complaints against members of the force. These vary in terms of the number and seniority of personnel attached, the zeal with which they conduct their investigations, and their relative influence within the police Organisation. By contrast, in addition to its internal affairs section, the New York City Police Department has designated integrity control officers in each precinct.
Some internal oversight bodies are entirely reactive - that is their investigations are mobilised when they receive a complaint of alleged misconduct. The more effective strategy of internal oversight combines reactive mobilisation with a preventive patrol function. That is, investigations are triggered not only by complaints but may occur as the strategic sensibilities of investigators dictate.
Such an arrangement exists within the Victoria Police Internal Investigation Department. Within this department, an Internal Security Unit may initiate its own investigations when directed by the Assistant Commissioner in charge (Horman 1987).
Internal police investigations, however, are by no means above reproach. They often entail inordinate delay, and have been faulted for lack of rigour by outside observers.
Various administrative reforms can be introduced within an Organisation in order to inhibit illegality. In the aftermath of the space shuttle Challenger explosion, the National Aeronautics and Space Administration established an independent communications channel which enables officers to communicate anonymously with top agency officials through an independent office external to the agency. A similar system exists at the US Federal Aviation Administration (Wilford 1987). Other organisations have introduced programs whereby supervisors meet periodically with individuals two levels down in the hierarchy. Following the Iran-Contra scandal, the US President's chief of staff and his national security adviser undertook never to meet alone with the chief executive, in order to minimise the likelihood of deception or communications breakdown. The New South Wales Police have regionalised the criminal investigation function, making detectives accountable to regional commanders rather than to a centralised, hierarchical criminal investigation branch. Such administrative arrangements are more conducive to supervision of detective work.
Other examples of organisational structures to inhibit illegality. are discussed by Braithwaite (1984, pp. 143-8). He describes how, in the pharmaceutical industry, the recommendations of quality control managers to destroy certain batches of drugs which fail to meet purity criteria may be overruled by production managers intent on meeting quotas. A number of companies require all quality control reports to be in writing, to be distributed to certain senior managers, and that any decision to overrule the recommendation of a quality control manager be made in writing, over the signature of the chief executive officer (see also Braithwaite 1987; Doig et al. 1984 p. 32). Accountability procedures of this type, had they been in place, would have lessened the likelihood of the financial irregularities alleged in the Asia Dairy, Victoria land, and Richmond Council cases.
Whilst internal control mechanisms are a necessary bulwark against official misconduct, they are by no means sufficient. To ensure their efficacy, to prevent their co-option, and to guarantee their credibility by demonstrating that their role is more than symbolic, they must be reinforced by independent, external oversight bodies (Kaufman 1973, p. 33). Thus, the most effective organisational safeguards against official misconduct would entail a combination of internal control subject to external oversight.
The strategic relationship between internal and external control machinery is an important and sensitive one. Katz (1977) has argued that a natural tension exists between authority systems within and external to an Organisation. Control within an Organisation depends upon the support of rank and file. There is therefore a prevailing tendency within organisations to shield internal deviance from outside scrutiny. There thus may be very strong internal pressures to condone misconduct, or at least to respond in a discrete or ultimately tolerant manner.
On the other hand, the looming presence of an external oversight body, poised to identify shortcomings in internal control procedures, provides internal controllers not only with the incentives to pursue misconduct, but with the justification to deal strictly and convincingly with those insiders who resist. At the same time, the existence of an external authority which is in a position to ratify the practices and decisions of internal investigators can enhance the legitimacy not only of the internal control system, but also that of the Organisation as a whole.
A variety of institutions exist in contemporary Australia to oversee the operation of the public sector. They tend to complement each other, rather than to compete. In theory, they constitute collectively a formidable set of safeguards against wayward governance. In practice, their functioning has at times been less than ideal.
Parliamentary oversight In the Westminster system, ultimate responsibility for effective public administration rests with parliament (Cranston 1987, pp. 81-3). Given the scope of the contemporary Australian public sector, parliaments are able to devote only selective attention to oversight of day-to-day administration. The amount and the quality of parliamentary scrutiny, moreover, will vary across the states and territories of Australia. Three committees of the Australian Parliament perform a general oversight function. The Senate Committee on Finance and Government Operations, as we have seen, was instrumental in investigating the activities of the Australian Dairy Corporation and its Asian subsidiaries. The Joint Committee of Public Accounts has been extremely critical of the performance of the federal Health Department in the prevention and control of medical benefits abuses. The Senate Scrutiny of Bills Committee reviews pending legislation for provisions which might tend to facilitate government illegality (Haines 1987).
Not all state parliaments have equivalent committees, however. But in some jurisdictions, matters which traditionally have escaped the attention of outsiders have recently been the subject of some scrutiny. The Public Accounts Committee of the New South Wales State Parliament has begun to investigate such matters as the extraordinary amount of sick leave taken by the New South Wales Police, and the underutilisation and misuse of police vehicles.
None of the cases reviewed above occurred as a direct result of a lapse in parliamentary scrutiny, although greater visibility of operations of criminal justice agencies in New South Wales and South Australia would have made it more difficult for the abuse of prisoners, the illegal telephone interceptions and the Special Branch surveillance program to endure as long as they did.
More importantly, persistent scrutiny by Parliament can have the more general effect of keeping management 'on its toes', and thus reduce the likelihood of illegality by improving the quality of administration.
Ombudsmen The institution of ombudsman exists for every Australian state and territory as well as for the federal government. In the Yass Council case, the pressure which an ombudsman can bring to bear on an agency was quite apparent. There seems little doubt that the systematic abuse of prisoners in New South Wales over a period of decades could only have taken place in the absence of an ombudsman.
Whilst its potential contribution as a bulwark against government illegality is beyond doubt, the office of ombudsman is not without its weaknesses. Most noteworthy of these is its complaint-centred orientation. Whilst some ombudsmen have the power to investigate matters of their own motion, this is rarely used. Consequently, although the very purpose of the ombudsman is to assist the aggrieved citizen, the focus on individual service often occurs at the expense of attention to structural pathologies and their remedies (Selby 1987, p. 3).
In addition, whilst ombudsmen may make recommendations as a result of their investigations, they have no power to compel compliance on the part of government agencies. They may advise on what might be considered an appropriate amount for ex gratia compensation, but they cannot write a cheque nor require Treasury to do so. Government intransigence on this very issue was the subject of strong criticism from the Commonwealth Ombudsman in his 1986-87 annual report (Commonwealth Ombudsman 1987). The powers of the ombudsman are thus primarily persuasive, although, through the ultimate weapon of a report to parliament, an ombudsman may denounce an agency and thereby cause it (and its government) considerable embarrassment.
Another disadvantage which ombudsmen may face is lack of resources. They are dependent for their budget on the very government whose administration they are to oversee. In some cases, governments wield more than the power of the purse. Until recently, personnel and travel decisions in the New South Wales Ombudsman's office had to be ratified by the state Premier's Department.
Ombudsmen, moreover, vary in terms of their inclination to use those powers which they do have. There are hawks and doves amongst them. Governments with proverbial skeletons in the closet may well be coming to the realisation that when they appoint an energetic person as ombudsman, they do so at their peril.
The powers of the ombudsman in some jurisdictions are further constrained by strict secrecy provisions. Indeed, the New South Wales Ombudsman has noted that these restrictions have prevented him from assisting other ongoing governmental investigations. Not all of the secrecy surrounding ombudsmens' offices is externally imposed. The Commonwealth Ombudsman devoted a great deal of time and energy in seeking to thwart a freedom of information request by the victims of the social security conspiracy crackdown.
Political constraints often reduce the influence which ombudsmen could have. Recall from the John Pat case how the Western Australian Police Association successfully thwarted attempts to expand the ombudsman's powers relating to police matters. Ombudsmen have been excluded from some areas of government operations altogether, for reasons which appear to reflect the relative political power of vested interests rather than any justifications grounded in administrative efficiency. The most obvious example is, not surprisingly, law enforcement. The South Australian Police Association campaigned successfully to exclude the state ombudsman from investigating complaints against the police (Goode 1987). Separate police complaints authorities exist in Victoria and Queensland as well.
For these reasons, the institution of ombudsman cannot be regarded as the major defence against government illegality, but rather as an important institution which, at best, complements other means of social control.
Audits The office of auditor general or its equivalent exists in most modern systems of government to ensure the financial accountability of public authorities. The detection of departures from financial integrity is a goal which is worthy in itself. But as the Richmond Council and Asia Dairy cases have illustrated, financial shortcomings may occur alongside other abuses of power and may be symptomatic of more general administrative pathologies.
The Royal Commission on Australian Government Administration recommended that the function of the auditor general be expanded to include efficiency auditing in addition to financial auditing (Australia 1976). This new role entails evaluation of an agency's resource utilisation, its information systems and its management practices. Oversight of this kind almost certainly would have identified the administrative shortcomings in the Perth office of the Deputy Crown Solicitor which prevented timely prosecution of the bottom of the harbour case.
Efficiency auditing is only a recent innovation in Australian public administration. The Australian Audit Office began conducting efficiency audits of federal government agencies on a modest scale in the aftermath of the Royal Commission report, and now conducts some fifteen such audits each year. Reports of the Australian Auditor-General are accompanied by a press release, which calls attention to the shortcomings which were detected and remedies which were proposed. Such high profile reporting keeps maladministration and reform on the public agenda.
The practice of efficiency auditing exists on a more limited scale in some state jurisdictions. In New South Wales, efficiency auditing is a responsibility of the state Public Service Board. But even where efficiency auditing does exist, resources do not permit frequent regular auditing of all public sector agencies. It has been estimated that at the current rate it will take more than twenty years to subject each federal government program with a value exceeding ten million dollars to an efficiency audit (Lidbetter 1987, p. 23).
Police complaints authorities: controlling wayward police The problem of police misconduct and its control is one of the most difficult and contentious issues in the entire domain of public sector accountability. Its importance hardly needs emphasis. By virtue of their unique role in Australian society, police experience both substantial opportunity to inflict unlawful harm, and a great risk of so doing. The control of police illegality is of even greater importance because of their special role of moral exemplars. It may well be argued that of all government officers, the ones who should be held to the highest standards of integrity are those whose very job it is to uphold the law.
That police in Australian society have fallen short of this ideal invites some consideration of how the gap might be narrowed. Controlling police illegality is made difficult by organisational characteristics of the police agency and by properties of the environment in which they operate (Punch 1985). Noticeable characteristics of the police Organisation are in-group solidarity and distrust of outsiders. Like many professions, police have a relatively high tolerance for deviance by their peers, and a great reluctance to discuss publicly their own individual or collective shortcomings.
The control problem is compounded by the fact that police possess political and industrial muscle which, with the possible exception of that wielded by the business community, is unrivalled in contemporary Australia. Australian police have generally succeeded in becoming identified in the public mind as the embodiment of law and order. The argument that public security can best be achieved by increasing police staffing levels and by enhancing police powers has, regardless of its basis in fact, become received wisdom. In a period when no Australian government enjoys an electoral majority which is comfortable enough to enable it to look beyond the next election, and with parliamentary oppositions poised to attack governments for 'placing handcuffs on police', critical discussion of police issues does not take place.
Arrangements for external oversight of police in Australia are varied (Freckelton & Selby 1987; 1989). In New South Wales (since 1983), the Northern Territory (since 1978) and Western Australia (since 1985) ombudsmen have the authority to investigate a complaint against the police if they are not satisfied with the outcome of the police internal investigation. The Queensland Police Complaints Tribunal, established in 1982, receives complaints of alleged police misconduct and may investigate complaints itself or require police to conduct an internal investigation and report its results. Specialised police complaints authorities were established in South Australia in 1985 and in Victoria in 1986. Pressure from the Police Association and an impending election saw the abolition of the latter within two years (Freckelton & Selby 1989).
The operations of these agencies do not always inspire the confidence of prospective complainants. The Queensland Tribunal appeared to devote more energy to discrediting Barry Mannix than to addressing the misconduct which he alleged. Moreover, the powers of each of these independent authorities are limited, and the argument has been made that the function of police oversight might best reside with the ombudsman on grounds of administrative efficiency and greater stature inherent in the office of ombudsman.
Judicial oversight Police misconduct may also come to the attention of a judge or magistrate in the course of a prosecution (Applegarth 1982). Judicial officers are, of course, free to denounce questionable police conduct, as occurred during the social security conspiracy committal. In addition, they have a discretionary power to exclude evidence which has been illegally obtained, or they may even prevent a prosecution from proceeding in the event of egregiously oppressive misconduct on the part of the prosecution (Hunter 1985).
The judiciary of Queensland had been sensitised to the risk of police fabricating evidence since the Lucas Inquiry. How the trial of Barry Mannix might have progressed had not the real offenders confessed is a haunting and unanswerable question.
The importance of judicial oversight of police misconduct is that much greater when alternative external and internal control processes are not functioning properly. A law which automatically precluded the admissibility of illegally obtained evidence would constitute an even stricter safeguard against police illegality.
Political processes Whilst it might be hoped that one solution to the excesses of government lies in the democratic political process, the ability of aggrieved citizens to obtain redress through political representation is limited. The political process is most sensitive to the concerns of the majority and to the interests of elite minorities. Whilst the institutions of government might protect such fortunate souls from injury in the first instance, they are less helpful to those disadvantaged and peripheral members of society who, as many of the above cases have illustrated, are perhaps most vulnerable to the excesses of government. In the United States, the existence of a Bill of Rights and the availability of legal resources with which to enforce it have long been recognised as an important shield for the citizen of an otherwise powerful state.
Just as the institution of neighbourhood watch has been heralded as successful in the fight against street crime, so too can community groups exercise vigilance against official misconduct. Monitoring groups in the United Kingdom have contributed to the control of police misconduct by providing advice and support to those with grievances against police, and by serving as an information resource. Established with the financial support of local government, such groups keep abreast of legislation and policy relating to law enforcement, and raise public awareness by publicising certain cases and issues (Greater London Council 1982-85; London Strategic Policy Unit 1986-87). One London Organisation, Inquest, is specifically concerned with deaths in police custody, and has canvassed a number of policy options to reduce these fatalities (Ward 1986).
Political agitation by citizens' groups in Australia has occasionally succeeded in focusing attention on matters of alleged government illegality. Such activity may be ad hoc, or on a continuing basis. The New South Wales Council for Civil Liberties was founded in the early 1960s in response to police abuses in Sydney. Perhaps the most obvious example in recent years is the campaign regarding Aboriginal deaths in custody, inspired in part by the John Pat case. But such a sustained campaign, and the official reaction which it has thus far elicited, are exceptional.
Freedom of information When the Australian government introduced the Freedom of Information Act 1982 (Cwlth), it was heralded as an instrument to improve the quality of public administration by making the processes of government more visible to the citizenry. Ideally, decisions would be reached with greater care and deliberation. Evidence of wrongdoing would be more readily detectable, and the conduct of public officers would be that much more improved (Harrison 1987). If any improvement in the quality of governance has been realised since the early 1980s, however, it is quite likely attributable to something other than freedom of information legislation. Governments, which spend hundreds of millions of dollars generating information which the public does not want, are extremely reluctant to implement a program which would enable people to obtain the information which they do want.
As of 1988, statutory freedom of information (FOI) existed in only two jurisdictions - the federal government and the state of Victoria. In both jurisdictions, the legislation was watered down substantially. Exemptions are numerous, and the imposition of fees and other costs for making FOI requests discourage not only the frivolous, but also the disadvantaged. Australian government departments have also delayed honouring FOI requests until the applicant is almost literally on the steps of the Administrative Appeals Tribunal. The remaining states and territories have shown a distinct lack of enthusiasm for following in the footsteps of those with FOI, and their disinclination, moreover, is reinforced by the negative comments emanating from the governments of those jurisdictions where FOI exists even in its tepid form.
The ideal of freedom of information is fundamentally inconsistent with the paramount goals of bureaucracy - growth and autonomy. It is not coincidental that freedom of information is most strenuously opposed by those whose behaviour would be subject to stricter scrutiny as a result. One might also note Thompson's (1985, p. 222) ironic insight that in our free enterprise society, failure to disclose material information to investors can be a crime, but refusing to reveal information to citizens in the democratic political arena is often required by law.
Of the cases reviewed above, the Richmond Council matter would have been most amenable to detection through a freedom of information request. The availability of limited freedom of information provisions might even have prevented the excesses canvassed in the Special Branch and nuclear testing cases. Whilst perhaps beyond the imagination of Australian political officials, FOI was invoked during the Reagan administration to document the fact that the US Federal Bureau of Investigation had been monitoring the activities of citizens who had expressed public disagreement with the administration's policies in Central America. It would thus appear that freedom of information legislation can contribute to curbing the excesses of law enforcement and intelligence agencies without jeopardising the national security.
News media In democratic societies, one of the most important bulwarks against the abuse of power is a free press. The ability of journalists to detect and to expose government wrongdoing can be a powerful deterrent. Sustained media criticism can be a very effective means of inspiring otherwise intransigent politicians to undertake reforms. The potential contribution to be made by journalists to public debate about official misconduct and its control can be a great one. Whilst the Australian media have devoted considerable attention to issues of government illegality in the past, its performance has been less than flawless. Two major factors inhibit open and robust debate on official misconduct in Australia today - the political economy of the Australian media and the law of defamation.
To an unprecedented extent, the Australian media are controlled by conglomerates. These controlling interests are thus dependent upon the largesse of either state or federal government for a myriad of favours which facilitate doing business in Australia and which ultimately affect corporate profitability.
Inhibitions of a different nature characterise media coverage of police affairs. Most media organisations depend upon police for a regular supply of news, and are reluctant to direct sustained criticism at police for fear of alienating their sources. Police 'black bans' on news organisations are not uncommon. Critical questioning of police may not be as risky for the media as it is for elected officials, but it is hardly cost-free.
Another significant constraint faced by the Australian media is the law of defamation. Australian laws stem from the English legal tradition where criticism of government and public officials was once punishable as seditious libel (Pullan 1984). Contemporary Australian defamation laws are weighted more toward protecting public officials than their critics.
The ambiguities and uncertainties of defamation law in the various states and territories have been addressed by the Australian Law Reform Commission (1979) and by Armstrong, Blakeney, and Watterson (1983). Suffice it to say for present purposes that Australian public officials have received significant damage awards, sufficient to inhibit free and open discussion about the way Australia is governed. At least one state premier had officers monitor media coverage of his administration with a view toward referring defamatory statements to the Crown Law Office or to his personal solicitors.
Elected officials are not the only people who use the threat or reality of defamation writs to discourage open discussion on matters of public policy. One New South Wales judge succeeded in bringing about the withdrawal from sale of a book which referred to his attitude as sexist. The threat of defamation action was raised by the Queensland police union in conjunction with allegations arising from the Mannix investigation. In 1985, the Northern Territory Police Association was reported as having sought legal opinion with a view to defamation action against citizens who were calling for a judicial inquiry into the shooting of two Aborigines by police five years earlier. The officer accused of the shooting had been acquitted of all charges (Northern Territory News, 19 November 1985).
Australia lacks a great tradition of whistleblowing - public disclosure of organisational misconduct by a person within the Organisation. Cultural inhibitions against 'dobbing in one's mates' aside, the explanation is simple. The risks are great and the potential benefits are few.
Perhaps the most celebrated whistleblower of the early 1970s in Australia was Detective Sergeant Philip Arantz of the New South Wales Police. Arantz disclosed that official police statistics of reported offences were actually understating the incidence of crime. For his efforts, he was committed to a psychiatric hospital and later dismissed from the force. Ten years passed before he received any compensation for his dismissal. As a condition of the modest compensation payment which he did receive, A-rantz was required to give an undertaking to refrain from further public comment on the matter.
A few officers of the organisations discussed in this book may have been tempted to blow the whistle. Those who made an effort gained few rewards and many headaches. One officer of the Richmond Council lost his job, a New South Wales prison officer who called for a royal commission was dismissed, although he was eventually reinstated at a lower rank. Four prison psychologists who complained to the Comptroller General about systematic and calculated brutality were threatened with reassignment and eventually left the prison service.
In addition to the use of incentives such as rewards for disclosing criminal conduct, structures may be developed to facilitate whistleblowing. The US General Accounting Office, roughly the equivalent of the Australian Audit Office, has a twenty-four hour toll-free hotline to encourage the reporting of any abuses relating to US government expenditures.
Whistleblowing can be an important deterrent to government illegality, particularly in those organisations which normally have a low profile or whose operations may not enjoy the benefit of rigourous external oversight (Doig et al. 1984, p. 32).
Given whistleblowers' vulnerability to reprisals, some form of protection against subsequent victimisation is essential. Ample precedent exists overseas for legislative protection (Vaughn 1982; Wood 1984; Near & Micelli 1987). Until appropriate structures are created to encourage principled organisational dissent in Australia, the likelihood that whistleblowing can serve as an effective countermeasure against government illegality is remote.
The criminal sanction is perhaps the most forceful instrument of responses to government illegality. The threat of being labelled a criminal is a powerful deterrent to wrongdoing by anyone holding a position of public trust. The authoritative determination of guilt on the part of a public official is the most awesome statement of denunciation available in a secular society.
In the Anglo-Australian system of justice, the criminal law is reserved for those acts which are most morally blameworthy. Harms arising from simple negligence are left to the civil law. Those where the negligence was extreme, or when the harms in question arose from the conscious disregard of the risks posed by official actions, can be dealt with by the criminal process, as are the intentional commission of acts known to be unlawful.
In addition to its limited applicability, the use of the criminal law is constrained by the formidable evidentiary burdens which exist, and the necessity of proving the guilt of the accused beyond reasonable doubt. Thus, the criminal law is hardly a panacea for government illegality. The criminal process is but one of a number of instruments for controlling wayward governance. Indeed, there are many instances when its use would not meet the criteria for ideal response. In particular, its compensatory and rehabilitative capabilities are limited.
Nevertheless, the criminal sanction has been underutilised as a weapon against public sector illegality. In particular, it can be used more selectively and more creatively than has been the case thus far. Governments are loath to mobilise the criminal law against individual public servants, especially for conduct in furtherance of government policy. Such reluctance is particularly noticeable when the offenders are police, prison officers or intelligence agents.
In addition to the substantial legal burdens which must be met in order to prosecute successfully, there are certain structural inadequacies in the criminal law. One of the most significant of these is what Fisse (1987) has called its individualist bias. The criminal law evolved over hundreds of years to control individuals, not organisations. Central to the determination of guilt in criminal jurisprudence has been the individual's state of mind. Only recently have commentators begun to recognise that much criminal behaviour has an organisational as well as a psychological basis (Stone 1975; 1980; Coffee 1977).
Where the doctrine of crown immunity prevails, government agencies are beyond the reach of the criminal law. In those relatively infrequent occasions when the criminal law has been mobilised against organisations, the judicial response has been modest indeed. Criminal penalties against private sector corporate offenders in Australia have been criticised as trivial (Grabosky & Braithwaite 1986). Although charges were laid against organisational defendants in the ETSA and Yass Council cases discussed above, a trivial fine was imposed in the former, and no conviction recorded in the latter. Such exceedingly modest judicial responses would seem to neutralise whatever benefits might otherwise flow from the stigmatising effect of criminal conviction.
The first strategic choice in mobilising the criminal law in the aftermath of public sector illegality is whether to prosecute the agency, the individual, or both. No one alternative is automatically preferable. Fisse (1987) calls for a mixed strategy of organisational and individual criminal liability. Thus, Braithwaite and Fisse (1985) would argue that the application of the law should be consistent with the context of the decision which led to its breach. Stone (1985) identifies three basic situations - those in which the individual alone should be liable, those in which liability rests with both the individual and the Organisation, and those in which the Organisation alone is liable.
Where the illegal conduct is that of the individual, and where the conduct lies beyond the agency's ability or opportunity to control, criminal liability rests with the individual alone.
Where the conduct is essentially individual, but where there is also an underlying organisational pathology, both the individual and the Organisation should be liable. Consider, for example, a police officer with a reputation for aggressiveness who had been the subject of previous complaints relating to violent conduct. If this officer were to use excessive force in restraining a suspect, and in the process inflict an injury, he/she should be liable to a charge of assault. The department should also be liable, however, since it was in a position to prevent the misconduct in question. The flawed personnel screening and deployment practices created a substantial likelihood of injury to a member of the public.
Where the offence arises essentially from an organisational, rather than an individual lapse, liability should rest with the agency and not with any person. Incidents arising from collective decisions, or from situations in which responsibility is diffused amongst members of an Organisation, make it difficult for individuals to be held criminally responsible. Consider, for example, a police raid on a premises whose occupants were suspected of harbouring a fugitive. Assume that all aspects of the operation were executed strictly according to standard procedures, but through careless transcription or communication, the officers arrived at the incorrect address, guns drawn, to the serious alarm and affront of the occupants therein. Criminal liability should rest with the department rather than with the officers concerned.
It might also be added that organisational liability is appropriate for those cases in which the judicial determination of a perpetrator's identity may be difficult. Such uncertainty contributed to the decision not to prosecute the ASIS raiders.
Under what circumstances might the senior executives of an Organisation be prosecuted for the sins of their subordinates? At one extreme, an executive might be held strictly liable for offences committed by members of the Organisation. Such strict liability would offend those principles of justice which require knowledge of and intention to commit a wrongful act in order to frame criminal charges. Many competent and dedicated executives might be reluctant to expose themselves to such risk. Indeed, such vulnerability may well invite deceit in the form of subterfuge and cover-up.
Alternatively, criminal liability of an executive would certainly seem appropriate when the misconduct was set in train by executive decision. Thus, the commissioner of police who establishes a program of illegal telephone surveillance is no less culpable than the senior detective who orders a tap, the technician who installs one, or the officer who does the actual listening.
Similarly, executive liability should apply to situations in which the senior official is aware of or wilfully blind to subordinates' misconduct but fails to take corrective action. Thompson (1985) has argued that in some cases, executives who could be expected to know about the misconduct within their Organisation could be properly subject to criminal sanctions. To cite an example from the private sector in the United States, the president of a large national supermarket chain was held liable for persistent unsanitary conditions in one of the company's warehouses, even though he had no personal involvement in managing the warehouse (United States v. Park, 421 U.S. 658 ).
Such liability in the Australian public sector would no doubt serve to enhance managerial vigilance. Executives who stand to be prosecuted are also more likely to activate a more rigorous system of internal control within the Organisation.
The deterrent potential of organisational criminal liability should not be underestimated. Organisations themselves possess formal and informal resources to compel compliance which, because of their flexibility, are often superior to the criminal law. When the threat of criminal prosecution serves to mobilise the organisation's own deterrent capabilities, the goal of deterrence can be more efficiently achieved.
Another utilitarian justification for the use of criminal sanctions against organisations is their rehabilitative potential. This potential has yet to be realised, however, as those infrequent occasions when public sector agencies have been convicted of an offence tend to result in the imposition of a fine.
Not only are trivial fines devoid of any salutary impact, they may actually breed contempt for the law. Severe monetary fines, on the other hand, can be counterproductive. At best, the right hand of government may be seen to be paying the left hand (Stone 1982, pp. 1469-70). At worst, where a fine imposes an actual burden on an agency, there may be a spillover effect. Thus, a burden may be shifted to clients or to organisations with less political influence. It might strike some people as unjust to see welfare recipients pay the costs of police misconduct.
As an alternative to traditional criminal penalties, Fisse (1987) has proposed sentences of corporate probation, with specified conditions of a probation order directed at improving the Organisation. If, for example, an incident of government illegality arose from inadequate training of personnel, a probation order might call for the restructuring of the agency's training program. If illegality could be traced to inadequate disciplinary practices within the agency, it could be required to introduce a new system of internal control. In general terms, an offending agency might be sentenced to design a compliance program subject to the approval of the court. It might then be required to file periodic reports detailing the progress of the program's implementation.
Other imaginative strategies might include the design of a program to facilitate whistleblowing, or the drafting and implementation of a whistleblowers' protection plan.
Civil litigation may be a more advantageous alternative to the criminal process for a number of reasons. The limited applicability of the criminal sanction and the reluctance of governments to mobilise it were noted above. Civil action resulting in an award of damages can best achieve the goal of compensation to the victim of government illegality. Public agencies, by virtue of their size, insurability, capacity to spread losses and ability to control risks are better situated overall to minimise the costs of official misconduct (Schuck 1983, p. 51). Moreover, the threat of having to pay substantial damage awards can be a powerful deterrent to a potentially errant agency or public official. Unlike the criminal process, it can be directly mobilised by the injured party (private prosecutions do exist, but occur very infrequently). In the United States, the availability of punitive damages over and above an award made by way of compensation enhances this deterrent threat.
Civil litigation may provide a diagnostic benefit as well, in the form of feedback about where negligent conduct may occur within an Organisation (Mashaw 1978).
Much as the personal threat of criminal sanctions can induce an executive to 'run a tight ship', civil liability of public sector executives can also have a salutary systemic impact on an Organisation. Officials who can be held legally responsible for failure to rectify situations likely to lead to illegality will be more inclined to see to it that appropriate safeguards and preventive measures are in place (Doig et al. 1984, p. 48).
An additional advantage over the criminal process is a lesser burden of proof. In order to succeed in a civil action, a plaintiff must establish proof on the balance of probabilities rather than beyond reasonable doubt.
The use of civil litigation by victims of police illegality in Australia may be relatively infrequent, but it is not without precedent. An incident involving the fatal shooting of one Aboriginal man and the wounding of another resulted in civil action against a police constable and the Northern Territory government. The surviving victim settled for an undisclosed amount, and the widow was paid $15,000 plus costs. The plaintiffs agreed to discontinue their actions against the police officer, who had been acquitted of criminal charges arising from the matter (Northern Territory News, 19 November 1985).
Australian prison officials have also been held liable for negligently failing to supervise prisoners properly. A prisoner on remand, who was made to share the same cell overnight with prisoners under sentence, was sexually assaulted. He brought a successful action against prison authorities (L. v. Commonwealth  10 ALR 269).
But indiscriminate civil litigation has its disadvantages as well. Just as individual criminal liability might in some cases be regarded as unduly harsh, so too can individual civil liability. Most individual public servants would be reduced to financial ruin by an award of significant damages against them. Thus, individual civil liability could tend to produce excessively cautious public administration, to the point of paralysis. Indeed, just compensation for the harms occasioned by government illegality may be beyond the financial means of the responsible public official. The burdens of civil litigation are thus best borne by the government. So it is, in the United States, that many public officials enjoy a degree of immunity for damages resulting from simple negligence, whilst they remain liable for damages resulting from knowing violation of the law or from malicious intent (Woolhandler 1987; Balcerzak 1985). Some Australian jurisdictions have erected shields of immunity for their officials. For example, the South Australian Police are specifically indemnified against actions for damages arising from conduct undertaken in good faith in the course of duty.
One inhibition to the use of civil litigation is cost. Not every Australian is able to afford legal representation, and public funds for legal assistance are limited. Moreover, it is common practice in Australia for the unsuccessful party to civil actions to compensate the victor for costs incurred. A plaintiff thus takes a calculated gamble. Whilst recipients of legal aid in New South Wales are indemnified against costs being awarded against them, prospective litigants in the federal courts and in other state and territory jurisdictions have no such assurances. Litigation resources of governments, moreover, are considerable. Individual plaintiffs are understandably daunted by the prospects of confronting the legal might of the state. Indeed, an unsuccessful outcome for them could result in bankruptcy. Such risk hardly invites aggrieved citizens to seek redress through the courts.
In contrast to the United States, English and Australian legal systems are less accessible to aggrieved citizens (Birkinshaw 1985, p. 181). There exist no constitutionally enshrined rights whose abridgement by state officials can serve as the basis for legal remedies in federal courts. Another impediment to the use of civil litigation in Australia is the law of standing. Simply stated, in order to gain access to the courts a citizen must demonstrate a tangible personal stake in the issue at hand. It is not sufficient to be a concerned citizen. In the 1970s a group of environmentalists sought to challenge the legality of the flooding of Lake Pedder by the Hydro-Electric Commission of Tasmania. They were denied access to the courts for lack of standing. The Australian Law Reform Commission has called for a broadening of the law of standing (Australian Law Reform Commission 1985), but action has yet to be taken on their recommendations.
A further limitation of the use of civil litigation is the problem of causality. To prove that harm to a plaintiff was caused by breach of duty on the part of the government is rarely an easy task. It is, for example, extremely difficult to prove, even on the balance of probabilities, that a given disability arose from exposure to Agent Orange in Vietnam. Indeed, a number of Australian nuclear veterans have found it difficult to prove that their illnesses arose from exposure to radiation from the atomic tests, rather than from some other cause. Similarly, had the downstream residents of Yass chosen to sue the Shire Council, they would have been required to prove that the eutrophication of the river arose from the sewage outflow and not runoff from pastures upstream.
In addition to civil litigation serving as the means of compensating victims of government illegality, it can also be a catalyst for reform. Civil litigation has inspired both legislative change and internal reforms in the United States public sector. One victim of domestic violence, whose complaints to the police went unheeded and who subsequently sustained crippling injuries at the hands of her husband, sued the police for negligence and received US$1.9 million in damages. The state then enacted a new law which required police to make an arrest in cases of probable domestic assault (Johnson 1986).
Stricter controls on the use of firearms by police were also inspired in part by the reality or threat of legal action by victims or their surviving relatives. The controls were credited for reducing the incidence of police shootings by 50 per cent over a thirteen year period (Sherman & Cohn 1986). Governments in the United States are liable for negligence resulting in the deaths of prisoners in custody. The threat and reality of damage awards running into the millions have induced governments to undertake special suicide prevention measures (Rowan 1988).
The rehabilitative potential of the civil law is most clearly manifest in the injunction. Through injunctions, a court may order a bureaucracy to refrain from specified conduct or to perform certain specified acts. In contrast to the award of damages, the injunction is essentially prospective in orientation.
A more intrusive use of the civil law would involve structural injunctions. These remedies, which stipulate certain large scale changes in organisational practice and procedure are without precedent in Australia, but common in the United States (Schuck 1983, Ch. 1) where federal judges have placed entire state prison systems in receivership, specifying in considerable detail such conditions of detention as opportunity for exercise, bathing, and the caloric intake of prisoners. The structural injunction is thus a much more intrusive remedy than an award of monetary damages. Its major function is rehabilitative rather than compensatory.
Whilst some Australian judges might resile from an administrative role, there exists ample precedent for the use of special masters to manage private sector organisations in receivership. It should again be emphasised, however, that the legal basis for such judicial activism in the United States is an enforceable bill of rights, an idea yet to receive widespread support in Australia.
A democratic society is best able to prevent and control government illegality. When the processes of government are visible and subject to open and robust public discussion, when the excesses of government are subject to the scrutiny of a free and diverse press and through it, the public which government exists to serve, both the inclination and the opportunity to violate the public trust will be that much less. Our challenge lies in replacing a tradition of secrecy and cover-up in public affairs with an activist democratic culture, a new tradition of candour, openness, and self-assessment.
The first draft of this conclusion was written in July 1987, when a joint select committee of the United States Congress was holding public hearings on the Iran-Contra affair. Only a few months before, the report of the President's Special Review Board (the Tower Commission) had criticised White House procedures for formulating and implementing foreign policy (Tower, Muskie & Scowcroft 1987). The report was published in paperback, and sold in bookstores and newstands across the United States. The Iran-Contra hearings themselves were given continuous live coverage on two television networks nationwide. In the course of the hearings, the incumbent Secretaries of State and Defense were openly critical of the Organisation and management of the White House staff and the National Security Council.
There were those who sought to argue that such openness in government stood to weaken the position of the United States in world affairs. Others, however, regarded the hearings and the public discussions which they inspired as an important learning experience, a lesson in constitutional democracy which would lead not only to a more informed citizenry, but would also lessen the likelihood of recklessness and illegality in the future conduct of United States foreign policy.
Regardless of developments overseas, the public sector seems destined to continue to play a major role in the lives of all Australians. Accordingly, the potential for government illegality will persist. Mistakes will be inevitable, and some risk of venality will remain. One hopes that the lessons learned from the incidents described in this book will minimise the likelihood of such harms in future.
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