State of independence

How far can statutory office-holders extend their independence?

John Wanna

Government and governance, Law | Australia

19 June 2015

Has the Australian Human Rights Commission President overstepped the boundaries of her office?

The Australian Human Rights Commission President Gillian Triggs has mightily annoyed the present Federal Government for a variety of alleged ‘sins’ and transgressions.

Her purported indiscretions include the brokering with Labor ministers about delaying the timing of investigations into children of economic migrants held in detention, then being economical with the truth.

Then there’s the questioning the morality of stripping citizenship from Australians who are suspected of engaging in terrorism overseas.

Add the unguarded answers to questions linking Australia’s boat push-back policy with the inability of the Government to influence Indonesia on the death penalty, and by inference that Indonesian authorities killed the two Bali Nine ringleaders because of Australia’s policy towards illegal boat smuggling.

She may sleep easily at night, but has arguably overstepped her statutory powers, and moved into uncharted territory.

What is the position of statutory office holders who are appointed to advise governments on matters of policy and to some extent keep governments accountable, including criticising them for their actions or inactions?

Statutory office-holders and the commissions or authorities they head are primarily the creations of executive government. This is often a point generally ignored by those who think these officers are free spirits able to criticise governments at will. Executive governments initiate these bodies and appoint their leaderships, they propose their statutory powers and, importantly, fund their activities.

But statutory bodies are also simultaneously creatures of the legislature which has debated and deliberated their empowering legislation, and voted to authorise their creation (but of course in our fusion of powers the executive are significant members of the legislature as well as of the ministry).  Governments grant a certain degree of independence and latitude to these statutory office holders, which is often conventionally understood rather than specifically stipulated in statutes. What is usually enshrined in statutes is the appointment and removal process of the senior office holders – usually requiring an exacting process of appointment and requiring the votes of both houses of parliament to effect a dismissal.

The Human Rights Commissioner and her team of support commissioners are no more, nor less, independent than the head of the Productivity Commission, the Auditor-General or Electoral Commissioner. They all can be given referrals, can investigate complaints, undertake research into areas within their responsibilities, most can conduct their own original investigations, and are free to compose their own reports to parliament. They all share a degree of independence in their work, but there is no statutory provision of independence enshrined in their acts, or a defined scope of independence. It is conventional under the provisions of the act.

So, how far can statutory office-holders extend their independence, and is it wise to go beyond conventional acceptances of ‘independence’, even with off-the-cuff remarks in answers to questions or media interviews?

Independence has many dimensions. It can be provided as latitude for actions contained in statutes (provide advice, publish reports, even intervene in court proceedings etc); it can be expressed through the control of resources and budgets and the ability to employ and dismiss employees (or use consultants); it can also be expressed in the ability to speak out on matters within the competency of the statutory office-holder or the responsibilities of the commission – but this last dimension is cast in conventional understandings which can and do change over time.

Independence also has nuances. Some statutory commissions (and their office holders) are expected to speak out on issues under certain circumstances. But their independence is not absolute or equivalent; rather there is a wide spectrum of potential latitude given to statutory office-holders to engage in public debate, which is founded upon conventions and long-established norms.  However, please note this is not usually understood to grant a freedom to speak out on any matters or to vent one’s conscience in public.

For instance, auditors-general are not expected to comment on government policy, only on the administration of that policy; and productivity commissioners may only comment on policy within the bounds of inquiry terms of reference set by the government.

The Australian Human Rights Commission Act requires the commissioner to ‘report to the Minister’ on certain topics and is able to ‘do anything incidental or conducive’ to her statutory obligations (which presumably includes making speeches and providing media comment).

Unlike some other commissioners, the Human Rights Commissioner is expected to speak on government policy and can publicly complain about the actions of executive government.  But the caveat here would be that she ensures she has factual support, confident of an evidential basis for her views, and actual knowledge of occurrences, not suppositions or projections of hypotheticals.

The Abbott Government has clearly got the bit between its teeth in conducting its personal attacks on Triggs, but her own lapses in judgement can be seen to invite such criticisms of her inflated sense of her own independence. She has brought on herself much of the angst. After giving the impression that she was acting in partisan ways in investigating children in detention, and linking perhaps two unrelated policy issues in the case of our relationship with Indonesia, she looks somewhat disingenuous in now claiming these are misunderstandings and that she has been consistently independent all along.

One of the dimensions of statutory independence is for the office-holder to retain the respect and confidence of the parliament, and that includes the executive in our Westminster system; the parliament does not have to agree with her reports or applaud her investigations, but it has to respect the source from which they came.

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