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Tuesday, 30 May 2006
Page: 88


Mr KERR (8:24 PM) —The House tonight is debating the Royal Commissions Amendment Bill 2006, which will facilitate a royal commission being able to assess for itself and to adjudicate in relation to claims for legal professional privilege. This particular mechanism is one which the opposition supports and, indeed, has called for for some time. The need for it arose because a decision of the Federal Court, whilst upholding the royal commissioner’s judgment that a particular document was not covered by legal professional privilege, did nothing to overturn earlier findings that it was not for the royal commissioner himself but for the court exclusively to adjudicate upon any claim for legal professional privilege. In practice, that meant that such claims might have been made, not only in this royal commission but in future royal commissions, designed in a way which would have resulted in protracted litigation regarding the legitimacy or otherwise of those claims, thereby slowing down or entirely thwarting the capacity of royal commissions to undertake the task that the executive commissions them to undertake to inquire into particular matters in as effective a manner as possible. It may indeed have prevented royal commissions addressing their terms of reference in the time frame required of them. Clearly, that is an impractical outcome and, with great respect to the judge who made that conclusion, I suspect it would not have been sustained on appeal.

It is the case that the higher courts have said that lower courts and tribunals are attended with all necessary powers to determine questions in relation to their own jurisdiction. It cannot be the case that parliament can endow a court or a tribunal with a set of responsibilities and then have a circumstance whereby any question as to whether or not a matter falls within those powers is incapable of determination by the tribunal or court. It has to be as a practical matter—not all such matters can be referred up to higher courts for adjudication. Of course, if somebody is disappointed with a conclusion of a court or a tribunal that the matter is within jurisdiction or is not within jurisdiction, they have the capacity of testing that in higher courts. So too I would have imagined, had this matter gone on appeal, it would have ultimately been determined that it is entirely logical and necessarily within the reach of a royal commission to make findings in relation to whether or not a particular document or thing brought before it is covered by legal professional privilege. In doing so, a royal commission would behave no differently in terms of its fact-finding responsibilities than any other court which routinely undertakes such an assessment. Where a claim is made in relation to legal professional privilege, the judge makes that determination and excludes from their mind, difficult though it may be, the material that has come to their attention which is legally inadmissible.

It seems to me implausible that our higher courts would have ultimately determined that such mental skills are within the reach of those appointed to higher judicial office, or even magistrates or justices of the peace, but not within the capacity of a commissioner appointed under the powers of the Royal Commission Act to undertake an inquiry on behalf of the executive. Be that as it may, whether or not ultimately the Federal Court decision would have been decided otherwise had the matter been subject to lengthy appeal, plainly that course would have been time consuming and its ultimate resolution would have been outside of the time frame of the reporting of the Cole Commission of Inquiry. So the matter comes to this parliament and is being resolved in a timely way which will enable the commissioner to take into account those matters where claims of legal professional privilege have been made. In particular, of course, he will be considering the document that was originally claimed to be covered by legal professional privilege, which the court has now asserted and found is not—that is, the apology. Although again it is difficult to see on what plausible basis that claim could have been advanced in the first place, how the draft terms of an apology could have been said to be material to disclosing the nature and character of legal advice sought seems somewhat beyond my simple understanding, but we now have settled those issues.

That said, the more interesting question that is before us is why this parliament is not acting with the same alacrity to tidy up the deficiencies in the terms of reference themselves in relation to the royal commission. Whilst the commission now is cloaked with the necessary capacity to examine whether or not the actions of the Australian Wheat Board were criminal and whether or not any person associated with those actions committed criminal offences, it is not cloaked with the authority to examine whether or not ministers of the government or public servants were negligent in the carriage of their responsibilities in a way which ought to carry censure.

There is a huge difference between someone being criminally liable for misconduct and being worthy of censure—being negligent or grossly negligent. We make these distinctions all the time. If it were the case, for example, that those examining the aftermath of the terrible tragedy of September 11, where planes were flown into the twin towers, had concluded that any officer of the security services in any country had been guilty of a criminal offence, that would have been a shocking state of affairs. But had anyone suggested that the inquiry be limited to the question of whether or not those officials had been guilty of a criminal action we would have said, ‘How silly—that is not the substantial question.’ The substantial question is: did the security agencies operate effectively? Did they alert government to the risk? Did they put in train proper measures to secure the interests of the community? Were there deficiencies that need to be remedied? And were it to be established that high public officials had been warned, had been given information disclosing the likelihood that planes would be crashed into the twin towers and had failed to do anything, we would not have expected an inquiry to bypass that question because it did not involve criminal complicity, did not involve those high public officials in any criminal conduct.

When we turn to this particular instance, the parallels are stunning. We have before us the greatest circumstance whereby a program—designed internationally to circumvent what were then understood to be the designs of Saddam Hussein, the then leader of Iraq, to develop weapons of mass destruction through a program of sanctions—was circumvented by one of the very countries that later took military action to invade that country and to replace the government. This is not a small matter, because one realises that the sums involved were such as to place that regime in funds to a substantial degree—$300 million.

The inquiry was established without giving it power to look beyond the simple questions of criminality. It cannot make findings in respect of negligence, incompetence or incapacity of high public officials, whether they be in the Public Service or in the ministry. My friend and colleague who has spoken previously, the shadow minister, the member for Wills, has gone through a whole list of instances where the Minister for Foreign Affairs appeared before the Cole Commission of Inquiry with no explanation—or certainly no plausible explanation—as to why various warnings that were made available to him and to his office did not trigger further action on his behalf. The point, simply made, is that any reasonably drafted terms of reference would now alert the commissioner to examine whether or not the person holding such an office is competent to continue to fill it. That is a finding that is not available to the royal commissioner. It is a finding not available to the royal commissioner because it is not within his terms of reference.

Of course, we might have thought initially that the narrowness of the terms of reference was a mistake in their drafting. But that is plainly not the case. Though for a short period of time the Prime Minister and those who are defending these particular arrangements claimed that the royal commissioner had all necessary powers to make findings in relation to the conduct of government ministers and high public officials, that claim has been effectively and totally demolished as the commissioner himself has clarified his obligations under those terms of reference and as the legal advice that the opposition has sought has been made available publicly. Both that legal advice and the commissioner’s response to that advice make it very plain that the point that I and the opposition have made in relation to these constraints is valid.

So at the end of this day we will have findings made which may or may not conclude that board members or the executive of the Australian Wheat Board and other associated persons were guilty of criminal offences—that is, they conspired in one way or the other to get around the regulations that this government put in place to prevent the evasion of the sanctions regime. Whether or not such findings are made, the commission is not empowered to make findings on the government as a whole and its management of this affair or on particular ministers—the Minister for Foreign Affairs, the Minister for Trade and other ministers who have been mentioned as this inquiry has proceeded—or on those in the ministers’ personal staff or on senior departmental advisers who perhaps could have done more and failed to do more in relation to these matters.

I might make one particular mention of how these events make prisoners of those who find themselves caught in their travails. My colleague mentioned the fact that the Minister for Foreign Affairs spoke in extremely warm and complimentary terms of both his personal office and the department, who he said fulfilled their jobs in an exemplary way—notwithstanding the fact that many warnings were given which were not heeded. In a sense a minister becomes a prisoner because, if he were to draw attention to deficiencies in relation to the conduct of such persons and those persons in turn felt the need to defend themselves, the minister then becomes subject to the possibility of being undermined. And of course the defence that is being constructed is one in which all persons who are not the subject of the direct terms of reference have to be mutually supportive. They all have to tell each other what jolly good chaps they were, that they all did the right and proper thing, that they all could not have anticipated the fact that the Australian Wheat Board behaved in the shoddy way that it did, that no reasonable person could have anticipated this, that it was all a great big surprise and that successive warnings took them all by surprise. Yes, they all feel a bit sheepish and foolish in retrospect, but no-one really could have expected any better. Of course if anyone steps out and sings from a different hymn sheet, the whole defence crumbles.

There is a game of which interrogators and prosecutors are very aware called the prisoner’s dilemma. The prisoner’s dilemma deals with the question posed by the circumstance whereby various co-accused are faced with the prospect of diminished punishment if they confess to a crime. Working through the way in which the prisoner’s dilemma actually works out in practice shows it is a very challenging piece of theory, one which any person who has been involved with the justice system will be intimately familiar. In practice, in the criminal law jurisdiction many people do in fact confess to get a lesser sentence, despite the fact that if all hung together and sang from the same hymn sheet the conviction of none would be possible.

Fortunately for the way in which the criminal justice system operates, people actually subject to the enforcement of the law do find themselves often telling the truth and dobbing in their mates. Our criminal justice system could not work without such self-interested confessions. But very clearly here we have a rather more sophisticated group of persons all working together, plainly aware for a very long time of the problems of the prisoner’s dilemma, with no-one from the high group of public officials or ministers saying anything nasty about another. There was no possibility that any of them could have had any foresight, none of them could have thought ahead—each of them supporting the other in their incompetence, making no criticism of the fact that foresight was not available to them or to another, because of course not for a moment could anyone fall away from what was obviously a phoney account. I say ‘phoney’ because from its commonsense the Australian public knows that, with so many dead fish and the smell rising so profoundly, the failure by any of those persons to take any action means someone in that system failed in their responsibility to the public and in their responsibility to their duties.

The public realises this and no doubt the royal commissioner does, but the royal commissioner cannot track down or examine those matters because they are not within his terms of reference; they have been excluded deliberately. Which of those persons were in fact responsible for a failure to inquire when they should have inquired, a failure to take action when they should have taken action, a failure to pass messages up the system—if they failed to do so—or a failure, if they were up at the highest ends of the system, to take heed of those messages and to act upon them is not within the royal commissioner’s remit. The royal commissioner cannot attend to those matters because he has no power.

The end, I suppose, is that we send a message. The real message here that I am concerned that we should send is not to those ministers who are being criticised in this debate or to the public servants who may feel that they are being chastened unfairly in relation to this debate. My real concern is the take that the kids, the young people, in our schools will have on responsibility. When things go so badly wrong and when incompetence of such a degree is demonstrated and nobody takes responsibility—when no-one accepts that such a botch has been made of such an important matter in which our national interest is concerned, our troops are engaged and people’s lives are on the line so nobody takes responsibility—then how do we say to those young people, ‘This is a society where you have to take personal responsibility. Honesty, decency and accepting responsibility for the conduct of your own actions is fundamental to our expectations and to the way in which you have self-respect in the world’? I think that somebody should take responsibility for this mess. It should not just be a question of whether some person or other in the AWB committed a crime. That will be for the criminal courts. But the real question of accountability should be for those in higher office. (Time expired)