Dissenting report from the Australian Greens

1.1No public office should be without accountability and no public payment should be made on a 'no strings attached' basis. For too long the position of Governor General, and the payments to past Governors General, have failed these basic tests. This Bill is a serious attempt to remedy this and provide much needed public accountability.

1.2It is hard to explain the refusal of the Albanese Government, and this Committee, to seriously grapple with the fundamental lack of accountability for Governors-General. It is however consistent with the decision to exclude Governors General from the jurisdiction of the National Anti Corruption Commission. It is also consistent with the lack of any role for the public, or even a transparent process, for choosing or removing Governors-General.

1.3It appears that the Governor-General’s direct relationship to the Crown explains this. In a legal system based on Constitutional Monarchy where we just have to accept the authority of the Crown, delivered by birth not the ballot box, the 'don’t look, don’t ask' response makes sense. At least to the usual suspects and the bulk of the political club in Canberra.

1.4Of course, none of this actually makes sense in 2023.

1.5As the Anglican Church said in its submission:

Good public policy will allow for the review of entitlements based upon the allowance holder’s probity and the general expectation that the dignity of high office should be maintained.[1]

1.6As Beyond Abuse said in its compelling submission:

The reform fixes an unintended oversight of the original legislation; the proposed reform should have been part of the original legislation from 1974; in this respect the reform proposed by the bill is simply ‘good law’ and should be entirely uncontroversial … (and) misconduct (both alleged and proven) by a former Governor General; that conduct being contrary to community expectations of a fit and proper person to receive on-going substantial taxpayer subsidy.[2]

1.7It was suggested by some submissions, even that of a former Solicitor General, that the Parliament putting in a process to allow for the removal of the extraordinarily generous payments made to a former Governor-General would be unconstitutional. This is a remarkable proposition.

1.8The Constitution requires a salary to be paid to serving Governors-General but there is no constitutional requirement to continue to pay them once they leave office. This Bill only applies to payments made after they leave office. There is therefore no direct constitutional prohibition.

1.9Those same submissions suggested that having the capacity to remove the supremely generous payments made to Governors-General would amount to the removal of their 'property' without fair compensation in breach of the constitutional prohibition on this. If this is true, and it can’t be, where was this author in the Robodebt scandal when thousands and thousands of Australians had rather far more meagre government payments removed by the Morrison government?

1.10Maybe the Constitution has an income threshold on the prohibition, that well-connected members of the political club on supremely generous payments have those payments protected by the Constitution, but people on Job Seeker don’t. If that is the case, then the Constitution is an arse. That might be the case, but on balance probably not. More likely that argument against the Bill is not worthy.

1.11The further constitutional argument against the Bill is that the process proposed to remove the entitlement to future payments, when either House has resolved that a former Governor-General has engaged in serious misconduct, amounts to an impermissible 'Bill of Attainder'. A Bill of Attainder is an Act of a parliament declaring a person or persons guilty of a crime and criminally punishing them for it. This Bill is not such a Bill.

1.12First, this Bill passes no judgement on any person; rather, it puts in place a process for a determination to be made if a person has engaged in serious misconduct. Second, if the Bill was passed and a House of Parliament made a determination of serious misconduct, that would not be a finding of criminal conduct and the removal of a future pension right is not a criminal punishment. That argument against the Bill was never worthy.

1.13Of course, there are further reasons to reject these constitutional arguments against the Bill. The process proposed in the Bill is very similar to the provisions for the removal of federal statutory office holders including judges, which not only remove a person from office (not a part of this Bill) but also removes their right to ongoing payments. It is also consistent with the existing practice to disallow regulations and other legislative instruments, which of course can be by act of a single House of Parliament.

1.14A further argument against the Bill was that the Bill contains no express rights to procedural fairness; therefore, it is inappropriate to adopt it. This misunderstands a fundamental, and long-standing, legal assumption that where an Act of Parliament is silent on procedural fairness, the law will imply it. It is notable there are no express procedural fairness provisions for any one of dozens of laws that relate to the Parliament’s power to remove statutory office-bearers. This is because it is assumed that, before deciding, the Parliament would grant procedural fairness to those impacted. It is the same for this Bill, and it is specious to suggest otherwise.

1.15It is frustrating to have to address this raft of unworthy arguments against the Bill because they distract from the core issue at play here. Does the Parliament think that, regardless of the conduct of a former Governor-General, they should continue to receive a hugely generous post office payment with no questions asked? If so, then the opponents of the Bill should just say that and not hide behind the kind of rubbish arguments set out above.

1.16I want to acknowledge here the courage and clarity of the witnesses that came before the Committee to assist it in its work. First is Beth Heinrich. As MsHeinrich said in the hearing:

My meagre age pension is reviewable. I am required to meet the criteria to be eligible. The generous Governor-General entitlement has nothing to do with the Constitution; it was put in place by an act of parliament in 1974. Now almost 50 years have gone by and it's time for it to be updated by being amended to reflect accountability in the public interest.[3]

1.17Second is the evidence from Hetty Johnston of Bravehearts who raised specific concerns with the appointment of Peter Hollingworth with then Prime Minister Howard before the appointment:

As an advocate, I was made aware of a civil case against the Anglican Church that was brewing, and I knew many of the details before they became public, as often happens in my role. The evidence was that Peter Hollingworth had protected clergy and lay staff who had sexually abused children. I called the office of the then prime minister, John Howard, and warned them about their consideration of Peter Hollingworth as Governor General, so they knew. Still, on 22 April 2001, former prime minister John Howard announced that Peter Hollingworth had been appointed Governor-General of Australia.[4]

1.18If only someone had listened to Ms Johnston. If only there had been a transparent process for the appointment of Governors-General. If only the political club didn’t so blatantly disregard the public calls for scrutiny, prudence and accountability. But it did, and the then Prime Minister John Howard did, and the always-unworthy appointment of Peter Hollingworth was made to the position of Governor-General. Now more than two decades after we are still trying to fix the mess.

1.19Third is the evidence of Beyond Abuse. Their submission was detailed, considered and directed to closing the accountability gap. In the hearing they summed the issue up as follows:

When this bill was made and when it came into law, there was a different set of circumstances. It was a different era. It was 50 years ago. They didn't put in the safeguards in case somebody was found guilty of misconduct. This is a bill that is totally ridiculous. I'm just amazed that something hasn't been done about it before. As I said before, I would just ask every politician not to politicise this and to vote for the bill as it is to become law.[5]

1.20I am deeply appreciative of the engagement and support of the survivor community and their advocates and supporters. However, it is wrong to see this Bill solely through the prism of one bad Governor-General or one glaring instance of serious misconduct.

1.21As survivors have been telling institutions for decades, reforms that help survivors, and provide transparency and justice, also help institutions and help the broader public.

1.22We are all safer when power is held to account.

Senator David Shoebridge

Australian Greens Senator and Justice Spokesperson

Footnotes

[1]Anglican Church of Australia, Submission 7, p. [1].

[2]Beyond Abuse, Submission 5, p. [1].

[3]Ms Beth Heinrich, Proof Committee Hansard, 21 July 2023, p. 1.

[4]Mrs Hetty Johnston, Proof Committee Hansard, 21 July 2023, p. 7.

[5]Mr Steven Fisher, Proof Committee Hansard, 21 July 2023, p. 12.