The US Supreme Court has many things in common with the Australian High Court, including some reputation for containing the odd sexual harasser, but most Australians, and most Australian judges are thankful that they are not appointed by the methods used in the American system and have not come to be regarded as pawns of the president or party which put them on the court for life.
This week the American court, generally regarded as slavishly Republican in tendency, affirmed that President Trump was not above the law. He has no automatic immunity against subpoenas and requests for information from either house of the American legislature, nor against officials enforcing the criminal law. Both were seeking the President's tax returns and information about his businesses, creditors and relationships with various banks.
Alas for those who want the tax information to hinder or harm his chances at the November election, it is likely that caveats placed on the broad proposition by the court will delay any actual production before that time.
If Trump is to lose the election, as seems increasingly likely, the court's decision may be of little political impact, since the zeal to pursue the matter afterwards could then be expected to abate.
[I must confess that I made a bet about a year ago that Trump would be re-elected, based on my faith in the eternal capacity of the Democrats to seize defeat from the jaws of victory. But though many things could happen over the next four months, including the death from coronavirus or old age of either or both of the candidates, the odds now seem stacked against Trump.]
As in the US, our courts and our parliament recognise the official, political and private personalities of our executive branch figures. But they lazily tend to regard only official activities as being fit for public inspection.
The Supreme Court's decision is interesting enough in the context of the American situation. But it also invites some speculation about how a similar case would go in Australia, in its rather different system of government. The High Court would certainly uphold the right of criminal justice officials, or a house of parliament, to drop an embarrassing subpoena on the governor-general, the prime minister or even an individual minister. There is ample precedent that none of these are exempt from scrutiny by mere virtue of their office, by either the legislature or the courts.
But as in the Trump case, it is one thing to deny any exemption from the ordinary course of the law. Those served with subpoenas can argue that the documents in question should not be able to be read by those who asked for them on the grounds of public interest immunity, national security, legal privilege, or exemption claims similar to those allowed under the Freedom of Information Act. And, alas, my guess is that modern Australian courts would be much more respectful of such claims than American courts, even ones said to be more partisan than judicious.
Australian inquisitors would have an even greater problem. The US Supreme Court distinguished three separate personalities in the person of any old US president. One is his official self - the very institution of the executive power of American government, vested in a single person. Then there is his political self - the person who leads his party, makes deals, negotiates with other nations and the states, has his own staff, and fights political war against his enemies. Finally, there is his private self - the person, with a partner, children, background, and interests. Presidents have been known to plead a right of privacy from public scrutiny over this private life, but as Bill Clinton discovered during his adventures with Monica Lewinsky and with the Ken Starr chamber, there is hardly any area of private life that can be regarded as safe from official inquisition.
In any event, the US Supreme Court does not seem to think that there is any significant difference between the functions: all can be the subject of a subpoena provided that the quasi-judicial body (such as a grand jury) or a house of congress has properly founded its inquiry within its proper functions.
"The President is the only person who alone composes a branch of government," the majority opinion said. "As a result there is not always a clear line between his personal and official affairs. The 'interests of the man' is often 'connected with the constitutional rights of the place' ... No one can say the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such consequence to the President and Congress."
That meant, of course, that such a power to subpoena could be exercised to harass or, in effect, to push the president in some improper way. The court would not approve of that. But this does not interfere with the principle of a right to subpoena so much as require close scrutiny of whether Congress is attending to its proper purpose. Moreover, the president still has the same rights as anyone to claim privilege.
The court quoted very approvingly from a 1953 decision about the duties of a parliament.
"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees,'' judges said in the case of United States v Rumely.
"It is meant to be the eyes and the voice and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served".
Amen. Here in Australia, few inconvenient truths are ever exacted from ministers in the House of Representatives, given the government's majority and its power to ignore questions with bluster, and to shut down opposition criticism.
In the Senate, where the government lacks a majority, a committee can ask inconvenient questions of public servants. But an unholy alliance between Labor and the Coalition prevents questions, or subpoenas, being pressed if the government resists. It is within the Senate's right to insist, and Labor in opposition may grandstand about non-compliance, but it remembers it would not want this to happen to it if it were in government.
Australia's courts and senators are not of an accountability mind
What would happen if an Australian Senate committee, dominated by Labor, the Greens and an independent, decided by majority to demand the tax return of a Coalition minister, perhaps in pursuit of allegations of abuse of power for some personal gain?
Such a committee might not pretend to be a court trying an alleged crime. It might say it was investigating whether the existing public and parliamentary regulatory regime was strong enough to prevent abuses, and remember aloud the great work of Senators Peter Rae and George Georges 50 years ago in exposing abuses of the securities and exchange system of the day. They might also invoke the unfinished work of the Hayne royal commission into banking and rorts, facilitated by government, in the financial advising and for-profit superannuation industry.
On paper, there is nothing in the constitution, the law or parliamentary practice forbidding such a subpoena, even of a politician. No parliamentary privilege could be claimed. First up, the committee's power to enforce its subpoena, if resisted, would be for the Senate as a whole. As I remarked earlier, my prediction is that Labor would grandstand for a while, but then go away. But imagining it saw the point and formed part of a Senate majority upholding the subpoena, the minister would have the choice of ignoring it - probably with the support of the House of Representatives on whatever ground the prime minister could make up. A determined Senate could put a lot of pressure on. Perhaps the minister would go to the courts in search of an order that the subpoena, at least for the purpose sought, was beyond the Senate's power.
Good luck with that. But if courts upheld the power, when used for a proper purpose, but thought it depended upon the circumstances, one would soon land in a host of convenient "conventions" that would tend to suggest that a minister could be subpoenaed only over official functions.
The idea that all of our senior politicians are beyond temptation or that any misbehaviour would be discovered and punished is a nonsense, as are nearly all of the excuses being trotted out to have a thoroughly compromised and powerless integrity commission.
As in the US, our courts and our parliament recognise the official, political and private personalities of our executive branch figures. But they lazily tend to regard only official activities as being fit for public inspection or public accountability. No law or principle requires this, but for those in any form of public office, including the judiciary, it is a nice protection against any sort of embarrassment.
Thus, both Parliament and the courts have generally regarded a minister's dealings with her ministerial staff, ministerial colleagues, or party folk as being matters primarily involving their political duties - not their official duties. Official duties tend to be regarded as the making of formal decisions within portfolio responsibilities, promulgated for action to departments. It does not usually include the discussions, especially with staffers, lobbyists, or party urgers, about what the decision should be. On such principles, ministers, including attorneys-general, have resisted providing FOI access to their diaries, and flatly refused to allow their staff to appear before Senate committees.
A similar political shroud is allowed to hang over anything a minister does in her capacity as a mere Member of Parliament. There are some parliamentary practices, a few even covered by legislation, involving rules requiring disclosure of assets, external income, gifts from outsiders, and the receipt of funds or goods in kind for electioneering purposes, but the power of others to demand further and better particulars is very limited.
Moreover, as a recent report on government management of its rules about the registration and conduct of lobbyists demonstrates, those tasked with enforcement of the principles are very slapdash, or do not even pretend to monitor adherence. I remember an earlier time when an independently minded head of PM&C declared that his department would never assume a responsibility it wouldn't perform, and would continually, if quietly, monitor ministers' adherence to the standards the government proclaimed. The new deaf, dumb and blind rules relegate code enforcement to Siberia, presume such regularity that no one actually investigates evidence when there is blatant breach, and accept without reservation assurances from anyone accused that they did not breach the rules, did not realise that they did, had pure intentions, and could be trusted to act with honour at all times.
MORE JACK WATERFORD:
Australia has never developed a political habit by which those aspiring to high public office release tax returns and financial records to show their long history of public and private propriety, including their lack of involvement in tax dodges, corporate collapses and dubious associates. Political enemies can and do smear candidates, but usually with no help from the public record, or inquiries focused on issues such as the need to regulate certain areas of business, such as financial advisers, or insider trading or other breaches of the law.
Perhaps this reflects our gentility and naivety. The idea that all of our senior politicians are beyond temptation or that any misbehaviour would be discovered and punished is a nonsense, as are nearly all of the excuses being trotted out to have a thoroughly compromised and powerless integrity commission. One can take it as read that the primary reason for political opposition or lack of enthusiasm is fear of what an effective body might discover, even among those presently in government or administration.
That Americans generally take a more robust view, and are generally more suspicious of government, is mostly a plus for them, and a negative for us. Forget America's conspiracy theory nonsense, Trump idiosyncrasies, evangelical fantasies, and those of Trump's supporters seemingly begging to be culled by coronavirus. Their nuttiness is part of the rich fabric of American life and a reason for America's slow but certain decline. But the fear of an overreaching and unaccountable government is a longer, and more honourable tradition. Indeed, with the Bill of Rights, it is part of the constitutional cloth. It has made America, by and large, a better polity.
Remember too that this was a conservative court writing the rules, just as it was a court dominated by conservatives that blew the whistle on Richard Nixon. These were not, are not, the "activist judges" so often attacked by Trump.
We would be doing well to get our judges, and our representatives, to display a fraction of the guts. Measures taken by recent Australian governments to make themselves less, not more, accountable to the law or the public are one of many reasons why Australia is slipping significantly down international lists on corruption and transparency.
- Jack Waterford is a former editor of The Canberra Times. email@example.com