In the recent Australian election campaign, one of the issues run by the left-leaning parties (whatever “left” means nowadays) was the establishment of a corruption commission for federal government. In recent years, corruption commissions at the state level have been in the headlines numerous times, even claiming the scalp of the former NSW Premier but not her Victorian counterpart even though he’s been hauled in front of our state’s commission three times and counting. I suppose this could be seen as evidence that the commissions are doing their job. But much like the legal system doesn’t create justice and the health system doesn’t create health, a corruption commission doesn’t create honesty and decency in politics. In fact, it may just lead to the opposite outcome.
As it happens, the Westminster system of government used to have a perfectly good mechanism for dealing with corruption and it’s only in the last few decades that this system has disappeared. As far as I can tell, it’s the absence of that mechanism that’s at least partly driving the perceived increase in corruption, so it’s worth describing what changed.
The way the system used to work in Australia was that it was not enough for a politician to be above board, they had to be seen to be above board and if they were not seen to be above board, they had to resign irrespective of whether they were actually innocent or guilty. In those times, there was a functioning news media acting as the fourth estate. Journalists would delight in claiming a big scalp by finding a politician doing something they shouldn’t be doing. For example, the Minister for Defence might be caught having lunch with the CEO of a company that had tendered for a government defence project. The lunch might be completely innocent and the Minister might have a perfectly good excuse why he or she was there. Doesn’t matter. They had not fulfilled their responsibility to be seen to be above board and they had to resign.
The usual rhythm of such matters was that there would be a front page news article on day one: Defence Minister Caught in Dodgy Dinner Date. The Minister would give a short statement denying any impropriety which bought some time to consult with the party. On day two or three at the latest, a press conference would be called where the Minister would vehemently maintain their innocence but announce their resignation on the basis that thems the rules.
This was an honour system. There was nothing codified in law. It was just the way things were done. No doubt the system saw a number of promising and completely innocent politicians have to resign from their positions over a trifling mistake. But the beauty of it was that it allowed the politician a gracious exit. They got to maintain their innocence while also upholding their honour. Meanwhile, they also re-affirmed the integrity of the system in the eyes of the public. Because the bar was set so high, it meant there was a substantial cost on any actual corruption and any actual corruption was nipped in the bud easily. It even made capitalist media owners happy by increasing sales of newspapers giving them an incentive to fund real investigative journalism.
I don’t remember a specific case where the old honour system stopped working. I guess it was some time in the late 90s when standards began to slip. Politicians still maintained their innocence just as they always had. But now they dug their heels in and demanded that evidence be shown why they were actually guilty. Investigations would need to be held. But investigations are time consuming and costly. There are a hundred and one excuses available to a politician who wants to hold on to their job and just as it take ten times more energy to refute bullshit than to create it, it’s far harder to prove an excuse wrong than to make it up in the first place. It doesn’t help that politicians are experts at lying, prevaricating and obfuscating. Even a highly skilled lawyer has their work cut out for them.
Investigations also air all kinds of dirty laundry that would be better not to make public and this has the side effect of reducing overall trust in the system. The recent investigation into the New South Wales Premier was a particularly grubby business and it would have been better for all concerned to have avoided it. Meanwhile in Victoria in late 2020, we had the ridiculous spectacle of the entire government insisting that nobody could “recall” who made a crucial decision that led to Melbourne’s corona lockdown. In essence, the government tried to save its skin by arguing that it was incompetent rather than corrupt. This brings the whole system of government into disrepute. All of this could have been avoided if the old honour system was adhered to. Somebody would have resigned immediately and the matter would have been over.
If we stand back and compare the old honour system against the law-based system of corruption commissions, one of the main things that stands out is the collateral damage caused by the latter. In the honour based system, a politician might lose their job unfairly but they retain their honour and, unless the matter was really serious, they stay in parliament and can rise through the ranks again later if they play their cards right. All in all, it’s a minor inconvenience. But the collateral damage of the law-based system is huge. It tends to bring the whole system into disrepute while also embarrassing and ruining the reputations of individual politicians.
I have mentioned in previous posts our culture’s peculiar blind faith in the law and the amounts of money (collateral damage) that get wasted pursuing matters through courts that really should be resolved informally. This enthusiasm for law takes other, more bizarre, forms too.
Once upon a time, I used to cycle to work in inner city Melbourne. On one particularly memorable morning bike ride, I found myself fourth in line of a group of cyclists waiting at a red traffic light. We were in the bike lane and there were two lanes on either side of the road with another four lane road running perpendicular creating a large intersection. The light in front of us turned green while a car, which must have run the red light, was about halfway through the intersection driving from our right to left. The cyclist at the head of the queue had seen the car. In fact, he was looking straight at it. Nevertheless, he decided to ride directly in front of it causing the driver of the car to break heavily and come to screeching stop only metres from the cyclist who proceeded to scream at the driver about running a red light. In the meantime, the car was blocking two lanes of traffic and the other car drivers began beeping their horns.
The cyclist could have waited two seconds for the car to pass and everything would have proceeded fine. Instead, he decided to quite literally risk his own life in order to make a point about the law being broken. If you get run over by a car while riding a bicycle, the fact that the driver was breaking the law at the time is going to be little consolation to you and your loved ones. You’ll be dead and the driver will probably go to jail for killing you. Everybody loses. To willingly risk such an outcome just to prove a point about the law being broken is, to put it mildly, rather strange. But this is our attitude to law in modern western culture. I have cycled in India and China. In the former there are no road rules and in the latter the rules are nothing more than guidelines. There is no road rage in those countries. At least, none that I saw.
Trying to solve problems via law is often a cover for the real problem. Why was the driver running the red light? Because traffic in Melbourne had become severely congested due to infrastructure not keeping pace with population growth. That led to frustration on the road and more red lights being run. Changing a law or enforcing the laws more diligently does not solve that underlying problem. Similarly, here in Victoria, the government recently announced they were building a “mental health system from the ground up” and it was going to be the best damn mental health system money could buy. Why are there so many people struggling with mental health in the state of Victoria? Could it have something to do with us having had the longest lockdowns in the world? Maybe we shouldn’t have done that. Similarly, why were almost all the people dying “with corona” those who had co-morbidities? Did anybody bother to investigate the cause of those co-morbidities? Maybe if we reduced the number of people with co-morbidities, we’d reduce the number of deaths.
All of this requires a systems-based approach to tackling problems and not a law-based approach. But our blind faith in law, and by extension reason, has always been predicated on a massive overestimation of its powers while discounting all the subconscious, automatic and tacit functions that happen in the background which keep systems healthy and in balance. Interventions in systems often have the side effect of weakening or even destroying those tacit and unseen factors. It’s for that reason that large-scale interventions should be avoided unless absolutely necessary. The trouble is that it takes time, patience and care to build up our knowledge of systems and tinker around to find what really works. The temptation is always to go for the big bang approach of initiatives that involve billions of dollars to hire a team of experts to roll the dice on the latest technological whizz bang solutions.
Such interventions always have side effects and the bigger the intervention the bigger the side effect until eventually the interventions become so huge that the collateral damage they cause is more dangerous than the underlying problem. That’s exactly where we are in many different domains of modern society.
Winston Churchill once said you can rely on Americans to do the right thing once they had tried every other option. But that seems to be an accurate description for all of the West these days. It’s not until we’ve tried every “rational” option and had them all fail that we will reset. In the process we might come to realise how many things work in spite of, and not because of, the law and perhaps we’ll re-learn the limits of reason.