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Tuesday, November 18, 2014

The public trust principle and delivering on the G20 'best practice' commitment

Tim Smith QC, Accountability Roundtable, yesterday on Fairfax The Zone:
I think it is clear that open and accountable government will produce better government than secret government. Secret government - government that thrives on secrecy - becomes hostage to the more powerful and assertive interests in the community, and tends not to have the benefit of the views of others in the community who have something relevant and important to say.

Turning to the public trust principle: it is one that I was not aware of until 2009, and I have found that I am in good company. Very few people are aware of it. Now, obviously when you say that you have entrusted someone with power over your life, you expect that person to exercise the power in your interests and not their own interests.

That would be the expectation on the person to whom you have conferred the power. In terms of public office, we voters entrust those we give our vote to with enormous powers over our lives. And simply as an ethical principle, it seems to be unarguable that in that situation the person entrusted with the power by us should give primary emphasis always to what is in the public interest, and if they find their personal interest in conflict, they must give priority to the public interest.

But I now know, after further research and consideration and discussion that this is not simply an ethical principle. It is part of the common law of Australia.

May I quote the former Chief Justice of the High Court from his speech made before presenting the ART Parliamentary Integrity Awards last year

“It has long been an established legal principle that a member of Parliament holds “a fiduciary relation towards the public” and “undertakes and has imposed upon him a public duty and a public trust”. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee”
And on the question how might Australia best proceed with the G20 commitment 
to international best practice,Tim flags the Open Government Partnership as one of the pathways:
To honour our commitment to lead by example in implementing international best practice for public sector transparency and integrity, Australia will need to attend quickly to two other major international commitments as signatories to the UNCAC and as an applicant to join the Open Government Partnership (OGP). The OGP was established in 2011 by 8 countries including the USA, UK and Indonesia. Under the UNCAC, Australia is yet to complete its required National Anti-corruption Plan (NAP) and, under the OGP, its first Direct Action Plan. Both the UNCAC and OGP also spell out, as international best practice, that the plans required be developed in consultation with civil society. 
So there is cause to hope that our G20 commitment indicates that these matters will now be addressed. After all, we would otherwise fail to honour our commitment to lead by example. In addition we would be ignoring, to our own cost, what the over 60 members of the OGP understand and accept, namely, that strengthening open and accountable government will help domestic and international economic growth, one of Australia's major objectives. The public interest appears to point in one direction.

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