Australians admire fighters with grit and determination – even, or perhaps especially, when it seems obvious that the struggle will be unavailing. Many government parliamentarians have already given May's election away. But Prime Minister Scott Morrison's energy and ardour seem unabated, and it seems clear he will carry on to the end, with the last fibre of his being. That may make little difference to the outcome but at least, as at Gallipoli, he will hobble away with some dignity and self-respect.
But what is one to say about politicians who are fighting not with every fibre of their own being but with every last dollar of taxpayers' money in the Treasury? And what is one to say of ministers who, recognising the inevitable, set out to use the same dollars in a last splurge of patronage, nepotism and cronyism, by putting friends, relatives and party associates on to statutory boards, often to take up appointments even after the government – and possibly the minister – has been defeated?
And what is one to say about conscious sabotage and spite, as when a government signs a controversial contract – to which the other side is implacably opposed – only weeks before an election and just before the so-called caretaker rules come into effect?
We are watching such an example in the NSW election, where demolition work at the Sydney Cricket Ground, being hurried forward to be a fait accompli in the (fairly unlikely) event that NSW Labor wins power from the Berejiklian government.
Five years ago, the big issue at a Victorian election was whether to go ahead with the East-West Link project. Labor opposed it strongly. The Liberal government was strongly for it, and signed a contract on the election's eve committing the next government to the project. Labor said it would cancel the contract if elected but the contract was phrased so that the contractors stood to be compensated massively if this happened. There would have been no problem delaying signing the contract until after the election, which everyone, including the then prime minister, Tony Abbott, initially said was a referendum on the project.
The Barr Labor government in the ACT did much the same thing with light-rail contracts, even though the Liberals' prospects of victory were dim. The Liberals had promised to cancel the contracts. Had voters preferred the Liberals, who were opposed to light rail, and the Liberals had walked away from the deal, ACT taxpayers would have been up for tens – perhaps hundreds – of millions of dollars in compensation for cancelling the contract, even if, as was the case in each of these three examples, the contractors had ample notice that a new government would cancel a project.
Whenever this happens – and it happens at state and federal level with increasing frequency – one can find ministers, and sometimes even bureaucrats, who will insist piously that the election-eve contract-signing was a coincidence. That is rarely true.
Although governments are free to cancel old contracts, they must generally, in the modern marketplace, pay for damages and losses, including lost profits if they do so. It would be adding a new category of sovereign risk if, in effect, the term of any contract could not exceed the life of the government. But the bastardry, or connivance, with contractors, in making forward commitments that will embarrass future governments, is wrong in principle and profligate with public money. It is increasingly becoming a sort of political booby trap to compromise, embarrass and limit the freedom of action of incoming government, regardless of their mandates.
Any prime minister – indeed, any minister – is free to focus on policies and programs, and to maximise opportunities for propaganda in which he or she argues that the government's policy is the best, and that the opposition's proposals will ruin the nation, cause a recession or incite an invasion of foreigners. No one really complains when there are some stunts, impromptu ministerial visits and gatherings, at public expense, of players with concerned faces trying to underline the message and the warning. But that does not extend to announcing spending of more than $1 billion (to be paid in arrears by an incoming government) to forestall the confidently (but tendentiously) predicted disaster that will unfold if the opposition is elected.
Thus, Scott Morrison was well within his rights to fly to Christmas Island with a few colleagues and carefully chosen stenographers from the press gallery for a photo opportunity, through which he warned the nation that Bill Shorten and the Labor Party were soft and irresolute on boat people. Morrison can insist (if not on the basis of actual intelligence) that, as a result, people smugglers are already planning voyages to test the incoming government's will – if Australians elect Labor. He is far less within his rights to make a range of announcements, most of which will take effect only after the election, to prevent the disaster he so confidently expects (and secretly hopes for).
The money in question has not yet really been appropriated by the Parliament, even within the existing constitutional twilight by which a dumb High Court allows vague appropriation bills to mean almost anything, other than a check on executive government.
Even if the invasion of boats were not to happen, and officials were to recommend (say, a few months after the election) that the new facilities be closed or scaled down, one can expect that the cost of undoing what Morrison has started will be enormous – particularly the cost of paying out contracts settled by officials. And especially officials of the Department of Home affairs, treating matters, as usual, as an emergency, justifying multiple deviations from good management practice.
Until recent times, I wouldn't have said that the present government's bad record on patronage was noticeably worse than Labor's, even if Labor, through John Faulkner, cleaned up its practices. But the smell of death has sent Coalition chicanery off the scale, with jobs for the boys (and the occasional girl) in diplomacy, on well-paid boards, and with judicial and quasi-judicial posts. Patronage doesn't usually start with a vacancy and the task of finding the best person for it. It starts at the other end: finding a sinecure for an old mate (say, a colleague who has lost his seat, or her pre-selection, or who has become bored in Parliament or needs a job into retirement).
In particular, Attorney-General Christian Porter's raft of seeming patronage appointments to the Administrative Appeals Tribunal has brought the government into the Caligula class. One hesitates to nominate a particular Incitatus, though several come to mind. So do questions about Porter's fitness to be entrusted with public power, especially if it involves the law, ever again.
The inappropriateness of these appointments is not merely a matter of many of the appointees seeming to have been chosen primarily because they have a world view like Peter Dutton's. He is a former policeman not well disposed to having his black-and-white view of the world second-guessed by people more intelligent, or liberal, than himself. Obvious merit for AAT jobs seems to have taken a distinct second place even when the "candidate" was not an obvious friend, relative, minder, crony, donor or acquaintance of the minister or one of his colleagues.
The administrative tribunal system's authority and the prestige (including that of many of its members who were properly qualified and chosen) suffer from the infusion of duds. So does tribunal efficiency and effectiveness. A government that has complained non-stop about the supposed inefficiencies and poor productivity of the Federal Magistrates Court and the Family Court seems now to be trying to slow, handicap and limit the work of administrative review.
Ministers will point out piously that such tribunals are not courts, even if they operate in a somewhat similar manner. Nor are members judges (even if some are, in other lives). Tribunals are an essential part of modern practical public administration, and the public's confidence in it. They offer the prospect of a fresh and independent second look at decisions made by public servants. The decision must have aggrieved an ordinary citizen – perhaps over a tax matter, a right to a pension or a visa extension, or a freedom-of-information matter. The law cannot freeze out appeal rights – however much Dutton and his departmental secretary, Mike Pezzullo, might want it – but it can make reviews easier, cheaper, and more united by general principle and consistency. These help good government and help create popular consensus around the laws and policies by which agencies work.
But what this (now probably outgoing) government seems to want, of its now stacked tribunals, is not independence of mind, or strict compliance with the spirit and letter of the law. It wants robots parroting this government's pet prejudices, particularly about immigrants – and to do so during the next government's term.
The government – or at least Dutton – has been loudly unhappy that the AAT (and the courts) have repeatedly overturned decisions by officials imbued with the enthusiasms and world view of Pezzullo, their great leader. The answer, apparently, is to stack the decks – and not for themselves but as an encumbrance on the next government. Unless Labor (if it wins) moves on some of these appointees (on salaries of between $200,000 and $400,000 a year), there is a risk the AAT will be parroting the hard-right ideology of Liberal factions rather than adhering to law.
I have watched the AAT reasonably closely since its inception nearly 40 years ago. It is true that a small percentage of its members have been Labor luvvies. There have also been Tory luvvies. But wherever they have come from, most have not seen themselves as delegates of those who have appointed them. That is now an inevitable suggestion that will be made of the most recent set.
Perhaps Australia should go the full Washington hog, with various categories of officials, including ambassadors, consuls-general, government board members (including for the ABC), judges and quasi-judges having tenure only for the term of the government of the day.
Thanks to John Howard and to Abbott, each of whom saw an active interest in political pedigree as essential in the culture wars, we are pretty much at that point now with many boards. At a change of government, many board members (unnecessarily) offer their resignations to new ministers as a courtesy. The Howard and Abbott style was not only to accept resignations gracefully, but to replace them with right-wing activists, crusaders and warriors, rather than middle-of-the-road folk. Over the past three decades, boards have been far more political than they were, say, in the time of Bob Hawke, Malcolm Fraser, Gough Whitlam or John Gorton – each of whom favoured a good mix rather than a platoon of yes men and women.
The alternative depends on having a strong rather than a weak federal independent commission against corruption.
Politicians usually try to limit the scope of such commissions. My instinct is to expand them. I suggest that an ICAC regard the wholesale use of public monies for partisan purposes, the deliberate and politically motivated placement of time bombs in the saddlebags of future governments (particularly within six months of an election), and appointments by obvious patronage, nepotism and cronyism rather than by merit as prima facie corrupt. That does not rule out the appointment of well-qualified folk of similar political outlook, of course.
The politician, and even the odd bureaucrat (especially in the Attorney-General's Department), will insist that an ICAC would never be able to spot the difference between a political rort and abuse on the one hand, and an appropriate exercise of political power on the other. I don't think it is a difficult distinction in practice. We have a test already. It's called the pub test.
Those who indulge in these practices are undermining our system of government. They are abusing the rules for personal purposes. They are stealing money from taxpayers. They are cheating. Why shouldn't we call it corruption?
Jack Waterford is a former editor of The Canberra Times. Email: email@example.com