Dally Messenger III and the ACCC

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Dally Messenger III

Governments' powers have gone too far, says ex-judge

By LEONIE WOOD

RETIRING Federal Court judge Ron Merkel has sharply criticised the coercive power amassed by government departments at federal and state level, saying Australians should ask themselves if their political masters deserve their trust.


Mr Merkel, who retires from the court today, said the tightening of security and detention laws designed to fight what the Government called the war on terrorism had given the bureaucracy "unprecedented power".


"I think the pendulum has swung too far in terms of the power of the executive Government of Australia. I have no doubt about that," he said.


"It is the recent anti-terrorist laws that have given the greatest expansion of power.


"In detention, control orders, access to information, telephone interception, surveillance devices and retrieving information, the Government's powers have gone further than we have ever gone before, but I think you would find the checks and balances on its exercise are much more difficult to be comfortable about.


"The move to granting ever expanding coercive power to the executive arms of state and federal governments, to be exercised behind closed doors and without public scrutiny, carries with it grave risks to the democratic values we are trying to defend," Mr Merkel said. "One must have serious concern as to whether the political hierarchy is deserving of the kind of trust and integrity that the public are entitled to expect of them in administering that power."


Mr Merkel is retiring after 10 years on the bench and will return to the bar to act for a range of public interest groups. He has a longstanding interest in Aboriginal affairs, and plans to advise and eventually litigate in a push for an Australian charter on human rights.


But he is concerned that governments are increasingly intruding on basic rights, such as the right to be let alone and not be unduly interfered with by government actions.


He said the bureaucracy was no longer independent of the political leaders of the day, and increasingly was less accountable to the public.


Ministers' political advisers had garnered enormous power, buffering the contact between ministers and their departments and shepherding the information flow, so that "pragmatism has overridden independence", he said.


lIThe culture that led us to .place so much trust in the independent and impartial use
of executive power in this country has changed. The world of ministers is dominated by their own political advisers."


He said there was no longer security of tenure for departmental heads, so they did not
assess actions solely on .their .
merits, but also considered whether they were helpful or harmful to the political interests of the day.

Mr Merkel said the AWB kickbacks affair was. "another example of where public confidence in the executive arm of government has certainly been knocked around".

He suggested courts should have greater powers to review the coercive actions of government, and that people targeted by those actions or their legal representatives should be made aware of the case against them and be allowed to respond effectively.

He suggested the Government set up a security ombudsman who could investigate alleged misuse of power, and a parliamentary security committee to examine if the powers are in line with the risks.


 

 

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