Predictably, as directed by the Prime Minister, both pensions bills have gone to a Senate ‘select committee’. Equally predictably, that select committee will return with amendments which will attempt to moderate or obfuscate some of the more egregious proposals in those bills and the Senate will then pass the amended bills.
I make bold to predict that certain senators will still not support the amended bills. They are not likely to because, as their contributions during the debates indicate, they are simply not prepared to sacrifice principle on the altar of expediency.
There are two important principles at stake. The first is that there is an inherent conflict of interest in parliamentarians setting their own remuneration. A conflict of interest is not in and of itself unethical. However, conflicts of interest can lead to corruption, which is why those conflicted must declare their interest and recuse themselves.
If they cannot recuse themselves, they must declare their interest, invoke the doctrine of necessity, as judges do when unavoidably conflicted, and try to be as fair as possible.
The SRC was established under the Constitution precisely to have an independent, objective process that would avoid parliamentarians being conflicted in setting their own pay.
The SRC like so many of institutions in our society has broken down, perhaps because of incompetence, but almost certainly because of failure of the executive to provide it with the resources to do its job properly and in a timely fashion. It relies on the already beleaguered Chief Personnel Officer (CPO) to support it.
This Parliament now says that because the SRC has broken down, it will circumvent and effectively neutralise it. Some senators then trot out the tendentious argument that we can ignore the conflict of interest in such circumstances and lots of other countries allow legislators to set their own pay, so why not us!
But to do so subverts the spirit if not the letter of the Constitution. What other countries may do is not relevant. We have to obey our own Constitution. As Senator Prescott asked rhetorically: what’s next? If we find say the Judicial and Legal Services Commission is not working, will we subvert that too and the Parliament can feel free to appoint the Chief Justice, or the DPP?
Are there no sacred cows for our politicians, not even the Constitution! Is nothing to be taken to heart, not even, as Senator Vieira averred, the oath taken by senators or the words of the prayer said at every session?
The second principle at stake is equity. These parliamentarians have shamelessly brought self-serving proposals packaged together with the wholly deserving need to assist the retired judges. As I pointed out in an earlier article (‘And Calling It Rain’), this duplicity is par for the course with this administration. Commentators have supported, without reservation, assistance to the retired judges, and this can easily be done by an ex-gratia payment to them. But are legislators the only ones adversely affected by the SRC?
Senators themselves suggested the SRC is out of touch and that its whole philosophy of compensation management may be outdated and dysfunctional in today’s world.
Many of the other offices under its purview could also be adversely affected—industrial court judges, magistrates, permanent secretaries, and so on. But the parliamentarians are fixing up themselves without regard to the needs of other officeholders, and whose needs which might in fact be even greater than theirs. This is inequitable and plainly wrong.
The amendments to the pension formulae which the ‘select committee’ will produce cannot address these points of principle. They will also cause serious distortions in compensation in the public sector and elsewhere in the economy. Behavioural ethicists argue that self-interest affects our ability to perceive accurately the facts before us and when confronted with an ethical dilemma, self interest leads us to discard values that we otherwise espouse. This is painfully evident in this matter.
Like senators Drayton, Balgobin, Vieira, Prescott and Roach, I believe the right thing to do here is to allow both bills to die on the floor of the Senate, make an ex-gratia payment to the retired judges, ask the President to review urgently the composition of the SRC, resource the SRC adequately to do its work, and make again to the SRC what I think is a very strong case for recognising that the work of parliamentarians is a full-time and onerous job, hence requiring significant improvement in their remuneration, as well as the remuneration of other holders of public office.
Sadly, this will not happen, self-interest and expediency will triumph, and the fish will continue rotting from its head!