We can bid farewell to the separation of powers

Scott Morrison and Keith Pitt enter the House of Representatives. Mr Pitt has apologised to the welfare recipients unfairly targeted by robodebt.

On July 19, 1823, when “An Act to provide for the better administration of justice in New South Wales and Van Diemen’s Land and for the more effectual government thereof” received royal assent, the executive’s control over the administration of justice in the Australian colonies came to an end. Two centuries later, the separation of powers that legislation set in place, and which underpins our system of government, is in serious trouble.

At the heart of the problems lies the escalating use – or abuse – of judicial and quasi-judicial processes to harass, demonise and finally destroy political opponents, dragging the judicial function into partisan politics.

A fundamental step in that escalation was Labor’s decision to define “corruption” so loosely as to give the National Anti-Corruption Commission a virtually unlimited hunting licence. Now, the fallout from the Robodebt royal commission threatens to take the judicialisation of politics even further.

To say that is not to minimise the gravity of the issues the Robodebt project raised. But it is worth remembering that the Home Insulation Program was at least as great a policy disaster, causing four entirely preventable deaths, provoking widespread house fires and costing billions of dollars of taxpayers’ money.

Yet the difference between the reports of royal commission on the Home Insulation Program and that of the royal commission on Robodebt could not be starker – and, more than anything, it highlights the ferocity of the current offensive.

That the decision-makers who were responsible for the HIP cavalierly ignored risks is beyond doubt. It is clear, for example, that just in February 2009, as the program was being designed, at least 10 credible sources warned officials that allowing untrained installers to handle reflective foil laminate would result in electrocutions.

But far from taking the warnings into account, officials deleted references to the possibility of “installer injury” from the list of the project’s risks, while assuring Peter Garrett, who had ministerial responsibility for the project, “that existing building and safety protections applied to the insulation rollout”, which was plainly not the case.

To make things worse, cabinet’s Strategic Priorities and Budget Committee – consisting of Kevin Rudd, Julia Gillard, Wayne Swan and Lindsay Tanner – then changed the program’s proposed delivery model in ways that increased, and were known by officials to increase, the likelihood of “catastrophic consequences” eventuating.

But while it identified those errors and many others, the report by Ian Hanger QC was not an exercising in dishing out blame. Hanger was restrained in his criticisms of ministers, who, by longstanding convention, are entitled to rely on the advice they receive; and, noting that “it is not for me to recommend that proceedings be taken against any person”, he concentrated on analysing what had happened without indulging in punitive “naming and shaming”.

That, however, was not Catherine Holmes SC’s style. As Griffith University’s Margaret Cook has argued, the Queensland Floods Commission of Inquiry, which Holmes chaired, ignored premier Anna Bligh’s assurance that the inquiry’s purpose was to “help honour those who had lost their lives, by learning the lessons of the event”; instead, “the intent of the inquiry was redirected from the outset, shifting the focus to blame, rather than knowledge acquisition”.

That much the same would occur in the Robodebt royal commission was predictable. And it was also predictable that Holmes’s sweeping adverse findings, and her claim that “on the evidence before the commission elements of the tort of misfeasance in public office appear to exist”, would provide the government with the ammunition for a relentless political attack, despite the fact that those findings relate primarily to officials.

The report into robodebt handed down by Commissioner Catherine Holmes AC SC.

Whether Holmes’s accusations of misfeasance can survive judicial scrutiny is an open question. Misfeasance in public office is an intentional tort: the defendant must have known, or have been consciously and recklessly indifferent about knowing, that the actions were both unlawful and would cause harm. As with “wilful ignorance”, mere error is not enough; there must have been an intention to remain ignorant in a situation where nescience would have been readily remedied by anyone acting in good faith.

The difficulties involved in making that out largely explain why only 4 per cent of the claimed cases of the tort in the past 30 years have succeeded.

None of those successful claims, which mainly involve licensing decisions, resembles Robodebt; and what evidence there is in the report about the former Coalition ministers is so utterly circumstantial as to seem far from clearing the hurdles.

But that hardly means cases won’t be mounted: the Sofronoff inquiry in the ACT highlights the scope for prosecutorial decisions to be distorted by political zealotry; and even cases that ultimately fail may suit the government’s purpose if they focus public attention on the program and put senior Coalition figures through the wringer.

Nor is that the only threat the former ministers face. There have, it appears, also been referrals to the anti-corruption commission, presumably on the grounds of a “breach of public trust” – a term so infinitely elastic, and hence so vulnerable to Kafkaesque abuse, as to justify High Court Justice Stephen Gageler’s warning about the dangers inherent in “the conferral of supervisory jurisdiction on some form of modern-day court of conscience”.

There is, in short, every likelihood that the political harassment will intensify; yet no matter how much damage the Coalition suffers, the greatest harm will lie elsewhere.

Already in 1990, two eminent American political scientists, Benjamin Ginsberg and Martin Shefter documented in their book Politics by Other Means, the inexorable rise in the US of the form of political combat they called “RIP” – Revelation, Investigation and Prosecution.

The immediate result of increasingly widespread reliance on RIP was to reduce public confidence in the political process, fuelling the hatreds and resentments that have poisoned American politics. However, as a wave of subsequent studies showed, the collateral damage was at least as significant.

Mark Dreyfus

In effect, the judiciary cannot invade politics without politics invading the judiciary: as prosecution turns into persecution, politicians increasingly nominate judges they can rely on, eroding the integrity of the judiciary and undermining the rule of law.

That is the path we seem determined to pursue; but the fault is not Labor’s alone. When the Abbott government appointed the home insulation and trade union governance royal commissions, John Howard rightly pointed to the dangers that lay ahead.

And so did Mark Dreyfus QC, who was then shadow attorney-general. Denouncing the use of “legal inquiries for political purposes” as an “abuse of power”, Dreyfus went on to say “I hope no future Labor government would do so”.

With Labor escalating its RIP campaign against Scott Morrison, that is one more pious aspiration that now Rests In Peace.