More than a month ago I promised Webdiarist Daniel Maurice my take on the merits of Labor not forcing Reith and advisers into the box on the children overboard scandal.
I didn’t get around to it, but luckily someone much more expert in these matters, former senior public servant John Neathercote, has agreed to do the job. He’s also a former Senate committee secretary, editor ofParliament and Bureaucracy and joint editor of The House on Capital Hill. He’s currently researching the modern public service, and is a regular spectator at children overboard inquiry hearings.
While I agree with John in theory, there’s some political considerations which make me forgive Labor a little bit, for now. The children overboard inquiry is investigating matters which most Australians don’t want to know about. Many say they don’t give a damn whether kids were thrown overboard or not. Others say the government should shoot the lot of them anyway.
Then there’s the inevitable partisanship of the committee, as the Libs defend their team and Labor attacks it. To attempt to force attendance in these circumstances would mean accepting significant political risk. Bad losers, obsessed with the past, no ideas for the future, blah, blah, blah.
I can see why John Faulkner came up with his ploy – to get an independent person to read the evidence so far and decide whether any of the cowards who won’t explain themselves have a case to answer, and, if so, to state that case.
Bringing independent, expert judgement to bear will increase the pressure on the recalcitrants and make it harder for the government to credibly hold its line. It sets up a better atmosphere for the Senate to press the issue.
None of this will matter, of course, if Labor doesn’t eventually take the plunge. Faulkner doesn’t rule out subpoena, but it may not be up to him in the end.
Accountability on this means accountability for Labor if it ever gets back power. It would improve standards on both sides through fear of exposure. It would be good for us, the people.
Since the government says neither it or the public cares about any of this, why is it working so hard to avoid allowing the buck to stop where it belongs? Because they DO care. It DOES matter. None of these people want to be fingered for conniving in lying to the Australian people, let alone on a matter like this. It’s despicable. They don’t mind they don’t mind knowing they lack integrity or ethics, as long as others can’t prove it and they don’t have to face themselves in any mirror but their own. Let the innocent cop the heat.
Before John’s piece, here’s a summary of the matters the missing witnesses would be asked to explain if they had the self-respect to account for their behaviour. Remember, most of these people are still on the government’s payroll.
THE DEFENCE MINISTER
Peter Reith: Former defence minister, now on a nice little earner as consultant to a defence company wanting government contracts. Says he’ll go to the High Court if necessary to avoid testifying.
Government’s excuse: Why should he? It’s found the perfect cover for lies – appoint someone who’s retiring to run your dirty tricks campaign, wash your hands of him after you win the election, and look after your hero on the quiet. An accountability free tactic, and it works!
The evidence:
11th Oct – Australian Defence Chief Chris Barrie tells Reith during a “testy conversation” that the photos do not depict children thrown overboard and were taken when the boat was sinking.
Probably on the 17th Oct or thereabouts – Barrie tells Reith that there are doubts about whether children were ever thrown overboard. Barrie: “I had a conversation with the minister in which I informed him that I had been told by the Chief of Navy and COMAST that there were doubts about whether children had ever been thrown over the side of SIEV4. I said to him the doubts seemed to be based on what the photographs showed – or did not show – and an inconclusive video.” [Certain Maritime Incident Committee, 12 April 2002]
31st Oct: Silverstone (Northern Commander) tells Reith (when he visits Darwin) that video does not show children in the water. According to Silverstone, Reith said to his staffer that was travelling with him, “Well we had better not see the video” Silverstone does not know who that was though he doesn’t think it is Hampton. (Hendy, Scrafton?)
7th Nov: Acting ADF chief Houston tells Reith there is no evidence that children were thrown overboard.
7th Nov evening discussion: Reith tells Howard that there are doubts about the video. What else did he tell him?
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THE STAFFERS
Government’s excuse: There’s some convention or other under which political staffers don’t give evidence to parliamentary committees. When in opposition, the Government hadn’t heard of such a thing, and subpeonaed Labor staffer David Epstein to take the stand. And he did. Why won’t Labor do the same?
Peter Hendy, Reith’s chief of staff
8th Oct: Hendy receives the Department of Foreign Affairs Situation report 59 on the Adelaide’s dealings with SIEV-4, which does not mention children thrown overboard, just that “13 unauthorised arrivals jumped overboard”
31st Oct: Silverstone (Northern Commander) tells Reith (when he visits Darwin) that video does not show children in the water. According to Silverstone, Reith said to his staffer that was travelling with him “well we had better not see the video” Was it Hendy?
8th Nov: Peter Hendy spoke directly to Navy chief David Shackleton about releasing a new media statement after Shackleton told the media: “Our advice was that there were people being threatened to be thrown in the water and I don’t know what happened to the message after that.” Admiral Shackleton was pressured by Hendy to release a second press statement – to take the political pressure off the government on the eve of the election.
…
Ross Hampton, Reith’s press secretary, now press secretary to another minister.
7 Oct: After demanding more information about the children overboard matter, Ross Hampton received from Strategic Command a fax which states: “Fourteen SUNCS have jumped or have been thrown overboard”. No mention of children. Hampton continued to demand more information about the children overboard matter from Strategic Command on the 8th Oct. Strategic Command could find no written evidence to indicate that children were thrown overboard.
10 Oct: Brigadier Bornholt informs Hampton that the photos could not be taken on the 7th October because Strategic Command had told him that of the 14 people that they understood to be in the water there were no woman or children.
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Miles Jordana, was and is Howard’s foreign affairs adviser.
8 Oct: Katrina Edwards – first assistant secretary of Department of Priume Minister and Cabinet – testifies that Jordana rang her asking for more material on the children who were thrown overboard such as their age, and the number who went into the water. Jordana was sent a number of reports (the committee is yet to find out what these reports were). No report ever came from Defence that mentioned children being thrown overboard.
10th Oct: Jordana received a copy of the Taskforce “Talking Points” for the 10th October which stated: “15 suspected authorised arrivals either jumped or were thrown overboard by other suspected unauthorised arrivals.” No mention of children.
7th Nov: Miles Jordana calls Bryant on 7th Nov to “refresh” Howard’s memory for National Press Club Address. Bryant says she supplied Jordana with reports from 8th Oct: DFAT SITREP 59. – HDHQ OP GABERDINE/OP RELEX 0800 BRIEF 8 Oct 2001. Jordana later tells Bryant they were not much help to him in preparing for Howard’s speech (probably because neither mentioned children being thrown overboard.)
7 Nov: Miles Jordana told by PM’s people smuggling task force chief Jane Halton that she has heard there are doubts about the photos and that they did not represent the children overboard incident. According to Halton, Jordana said that the Prime Minister’s Office already knew about the photos and they had it under control. The next day, The Australian reports that HMAS Adelaide sailors claim no chidren were thrown overboard. Asked at the Press Club about the claim, Howard dismisses it as hearsay on hearsay. He ignores a question on whether the photos were wrong. He reads from an Office of National Assessments (ONA) report that says children were thrown overboard.
7th – 8th Nov: ONA report attachment warns Howard that the report he subsequently uses at the Press Club on 8 November 2001 is flawed. Attachment is sent with ONA report to Howard, but Howard claims Miles Jordana separated the two documents, only gave him the reports, and didn’t tell him about its flaws. ONA rings Jordana again on the 9th Nov concerned about the way the ONA report is being used in the media. Once again Jordana does nothing to clear the record.
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THE BUREAUCRAT
Mike Scrafton, Defence department public servant seconded to Reith’s office to advise him on defence.
Government excuse: There’s never been any talk of a convention about public servants being exempt from giving evidence, so Cabinet made up a new rule to look after its new mate. After the election, Scrafton returned to the defence department as a senior executive. He kept involving himself in the children overboard matter, but Defence Minister Robert Hill banned him from giving evidence even on his post-Reith activities. Another new rule – once a public servant/ministerial adviser, never accountible as a public servant. Hill later banned a junior defence department officer in Reith’s office as a liaison officer simply because she handled the famous captions to the famous photos which famously got lost. Another new Hill rule – a public servant who isn’t an adviser and is in his office as an officer of his department is exempt from giving evidence on anything the government doesn’t want her to.
The evidence
10th Oct: Maritime Commander Admiral Ritchie told Scrafton that the video did not show any children thrown into the water. Despite this Reith used the video to claim to the media that children were thrown overboard. Air Vice Marshal Titheridge also told Scrafton that the video was inconclusive mid October, when Scrafton asked for a copy of the video.
10 Oct: Scrafton receives the Strategic Command chronology which says in a footnote: “There is no indication that children were thrown overboard.”
11 Oct: Defence public relations officers Bornholt and McKenry told Scrafton that the photos were not of the 7th Oct incident. The photos were also emailed to Scrafton with the captions showing just that. The terrible irony for the navy – they thought the photos were a good news story of a courageous rescue after SIEV-4 sank. .
7 Nov: Howard speaks to Scrafton twice during the evening. According to Howard it was about the video. Note Howard’s qualification. Howard, 19 Feb 2002, Press Conference: “No my recollection of the conversations I had with Scrafton, the way he described it to me, my recollection is that it was inconclusive and that was the observation I made. Now he may have a slightly different recollection than that and I’m not saying his recollection is inferior to mine but that is my recollection.”
Late March 2002: Howard’s chief adviser Tony Nutt rang Jennifer Bryant – who did the firstabout Mike Scrafton’s evidence to Bryant, who did the Department of Prime Minister and Cabinet’s report on the scandal, about Scrafton’s written statement to her. “Mr Scrafton stated that he had been involved in or aware of a number of discussions between Mr Reith’s office and the Prime Minister’s Office and the Prime Minister, which he could not discuss.” According to Bryant, Nutt asked her if she knew what Scrafton was referring to. If not could she find out. She said it would be imprudent and refused to do so.
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What servants are for
By John Nethercote
The so-called children overboard affair, the subject of investigation by an increasingly long-running select committee of the Senate, is deeply revealing about the current friendless situation of the public service in government, and of clear failings in accountability structures and mechanisms, including, perhaps especially, at Senate level.
For the public service, the affair demonstrates its fragility in the face of both ministers and, more perniciously, ministerial staffers. In the absence of adequate means to bring ex-ministers and ministerial staff to account, it demonstrates the vulnerability of the modern public service.
When the modern ministerial bureau was created nearly three decades ago by Gough Whitlam (on his very first day in office as prime minister), a major purpose was, as he expressed it, to “de-politicise” the public service. Instead, in the children overboard affair, it is the public service and the Australian Defence Force which are in the political front-line.
Like medieval malefactors, they are placed in the stocks before this Senate select committee for hours, even days.
Meanwhile, in this controversy, it is ex-ministers and their staffers who have been depoliticised. They are nowhere to be seen in precisely the very forum where they should be taking the lead. They have become an accountability-free zone.
The origins of this course of events may be found in the ideas governing the relationship of ministers and officials fostered throughout the Hawke-Keating governments and finally embodied in the new Public Service Act 1999.
A public service in the Westminster tradition is marked by character, experience, ability and a measure of independence under ministers; it should be frank and fearless in dealings with its ministerial superiors.
The touchstone example of this doctrine in action is the Loans affair, the international borrowings activities of the Whitlam Government. When the surreptitious activities of various ministers and departments came to light, there was a major face-to-face encounter between Prime Minister Whitlam and the Treasury secretary of the day, the legendary Sir Frederick Wheeler.
Disconcerted by Wheeler’s questions about the loans, and how the huge sums were to be used, the rattled Prime Minister told the determined Treasury secretary that he was “on the skids.” “Prime Minister, I simply seek to inform you of facts your ignorance of which will bring you down”, Wheeler retorted.
In children overboard, by contrast, there seems to have been an attitude that ministers and even top officials ought not to be informed of facts, their knowledge of which might bring them down.
Children overboard is a telling case of deprofessionalisation in government and government processes; it calls into question not matters or competence or ability, but what Sir Arthur Tange spoke of in 1984, as the new system was taking shape, as “backbone.”
In the dawn hours of 6 October 2001, whilst engaged in difficult manouvres with Suspected Illegal Entry Vessel 4, the commanding officer of HMAS Adelaide, Commander Norman Banks, received a telephone call from his superior, Brigadier Silverstone, in Darwin, seeking an update on the situation.
It is unusual for a commander in the field to be so interrupted.
The purpose of this interruption was not related to conduct of the operation, or any other naval or professional objective. The aim was to brief a minster – the Treasurer, apparently, not one directly involved in administration of the border protection policy – about to appear on TV.
Silverstone recorded Banks as saying that the passengers on SIEV 4 were threatening to throw or were throwing children overboard.
This aspect of the conversation has subsequently been the subject of contoversy. But, at the time, the message went up the military chain of command and beyond at virtually the speed of light. Immigration secretary Bill Farmer very soon put Minister Phillip Ruddock in the picture and he shortly passed it on to assembled media. Later that day the Prime Minister actually received a memorandum briefing him about the matter. He, too, spoke to the media.
It was a case of ultra-responsiveness in high degree. No public service needed to be told that under the new Public Service Act, a key value is “responsiveness.”
They also know that the old “frank and fearless” obligation was, well, a thing of the past. Certainly, that advice should be “frank” was in the Act, but only because a parliamentary committee had protested against its omission from the bill the Government – Peter Reith, indeed – first brought to Parliament.
There was no reprieve for “fearlessness.”
And all those involved, public service and ADF, know that in the new regime, tenure, the back-bone support of the traditional system, was also a thing of the past.
This was very fully appreciated in Defence where the unseemly removal of former Secretary Paul Barratt in 1999 was still a green memory. Itself a capricious act, it was only one of several questionable departures.
The incident, in these tense days, threw into sharp relief the weaknesses of values-based public service legislation without adequate institutional supports and protections.
The essential problem was plain: contentious information of uncertain accuracy, procured in non-professional circumstances, was allowed to pass into the public domain in the treacherous period between the calling of a House of Representatives election and polling day itself. No such alacrity accompanied corrective action once the veracity of the information, and photographs purportedly portraying the incident, came into question.
Those who had reservations were reluctant to press them and certainly avoided putting them into writing. A number of those involved defined themselves out of the action by narrow interpretations of their responsibilities and obligations.
Such is the system of administration bequeathed by the past two decades. Accountability has been restricted rather than enlarged; ministerial responsibility, in this case, is in remission – on which, more later.
But just how much the administration is at fault is unclear. Various administrators involved claim to have informed ministerial staff, and thereby ministers, of their concerns; Air Marshal Houston’s conversation with Reith in the week before the election is the most reported of these contacts. Even it was a telephone conversation without follow-up paperwork.
Inasmuch as the full truth can ever be known of this post-modern fiasco in which so little is recorded in writing, it requires examination of the ministerial/ministerial office side.
These people have scurried for cover: without them the Senate inquiry is like Hamlet without Rosencrantz and Guildenstern (and Claudius).
Their absence from the dramatis personae of the Senate select committee is the consequence of a farce featuring the Opposition (including the tenacious interrogator John Faulkner, himself an architect of the defective public service regime) and various parliamentary authorities.
Whilst the Senate committee itself procrastinated over calling those involved at the political (ministerial, ministerial office) level, and with awe-inspiring courage directed its fire especially at the public service but also any ADF officer unable to assist in showing up the Government, the Clerks of the Senate and the House of Representatives had a vigorous exchange of memorandums.(No recourse to telepohones here.)
Harry Evans, Senate Clerk, claimed that the committee had an extensive authority to call anyone apart from other parliamentarians exempted by self-denying ordinance. Clerk of the House Ian Harris countered with a view that the exemption of members of the House extended to former members at least in matters for which they have previously been responsible to the House. He, however, suggested that the select committee seek independent legal advice.
Evans disputed the value of seeking such advice, arguing that given the lack of materials necessary for a firm opinion, it would basically be settled by whether the author was pro-Parliament or pro-government. In the meantime he commissioned an opinion from Bret Walker of the New South Wales bar. The Walker opinion supported a very broad interpretation of the committee’s powers to call ex-ministers and ministerial staff:
“. . .[I]n my opinion the question in relation to the so-called former Ministers has only one correct answer: viz they have no immunity from compulsory attendance to give evidence to a Senate committee, because they are no longer Members of either House . . . there is no right in a former Minister who is no longer a Member of the other House to resist an order given under the undoubted power of the Senate.”
” Resistance is, in my opinon, clearly a serious contempt, and punishable as such.”
And regarding Ministerial staff:
” . . .[S]o long as nothing involving extended breach of Cabinet confidentiality is invited or required, Ministerial staff, whatever place they hold in or out of the public sector at the time they are ordered to appear, must comply with that order to appear and give evidence before a Senate committee.”
Eventually the select committee itself was brought to a vote by Australian Democrat Senator Andrew Bartlett. The Government senators abstained. The Democrat proposal was voted down by . . . the Opposition.
Clearly in this matter there has been no Pym or Hampden to attend to the Parliament’s, and the country’s, accountability interests.
Notwithstanding the congenial and unequivocal Walker opinion, summoning Reith and various ministerial staff (present and past) would be met with expensive and time-consuming court challenges. A need to protect taxpayers’ money was discovered. It took precedence over the need to protect the interest and integrity of government not only of taxpayers but other Australians as well.
Better, instead, to commission yet another luminary of the Sydney bar (reportedly Mr S Odgers, SC) to review the evidence and give advice on questions which ex-ministers and their staff should address – not so much a Clatdon’s solution as a Claydon’s obfuscation.
It has been left to Dr Ian Holland of the Parliamentary Library to speak truth about this slippery, evasive stratagem:
” … the Committee essentially capitulated in the face of the executive’s determination . . . it is not clear what an outside lawyer might achieve that would not be ably and properly achieved by the Committee itself.”
Dr Holland’s view is that “the approach taken by the Committee continues to give the executive the upper hand in its tussle with the Senate, despite the government lacking any unequivocal legal basis to its stance.”
“[u]ntil one of the Houses tackles a government over ministerial staff, using the full force of the powers available to it, ministerial staff will remain in the accountability vacuum so condemned by oppositions and beloved of governments.”
So, at present, there is noone with stomach for this fight, even in the present case where the balance of argument and public interest could not be plainer.
The real, unstated and unstatable reason for not pressing summonses on ex-ministers and their staff has nothing to do with spending taxpayers’ money, which is not invariably a top-priority consideration in Parliament House.
It has everything to do with keeping the Parliamentary Privileges Act away from judicial scrutiny, especially that of the High Court at a time when it is probably better informed than usually about parliamentary privilege. The consequence is that grave accountability weaknesses will not only persist but will be further entrenched.
For, notwithstanding the Walker opinion (obtained at what cost and for what purpose?), the enduring fact is that the opportunity to bring ex-ministers and their staff within the loop of accountability has been aborted by the ill-advised Opposition vote on the select committee.
A quest to bring an ex-minister and ministerial staff on an important matter has ended, after much bluster and grand-standing, in successful resistance by the Executive Government.
Declarations to the contrary, a precedent has been created; it will call for a far more serious matter, when time may be pressing, to overturn it. The cause of accountability has suffered a substantial and significant defeat.
The Labor Opposition, when it returns to office, will no doubt enjoy the fruits of this victory which it has ceded to the Government.
The consequence for the public service in particular, and other arms of government such as the ADF, is that they will remain in the front-line of accountability, with ministers and ministerial staffs, like the generals of the Great War, well way from the sound of the guns.
Where once, under ministerial responsibility, ministers had to stand up and answer for their officials, the vulnerability of the public service is now such that it must defend not only ministers but their staffs.
Such is the fate of Australia’s untenured public service.