Pearls and Irritations

And the National Anti-Corruption Commission loses its appeal.

Major General Paul Brereton would be doing well to plan a skilful retreat from utter disaster rather than gallant holding actions pending the arrival of reinforcements. They won’t be coming. Not from a government which is increasingly pissed off that Brereton’s strategic and tactical skills have made a political deficit from what should have been a big plus for the government, and popularity rather than scathing contempt from the electorate. Nor from a political class which for years has championed a body, found its cause adopted by an initially sceptical Labor, and then, as it sees it, saw the project torpedoed by Labor treachery. Perhaps from nervousness about the damage a fair dinkum NACC could do to the government and his reputation.

The measure of the frustration of the lobby for an anti-corruption body is that its present most public defender, after its efforts of recent times, is Peter Dutton, who had originally been against the idea. It is now so weak and pathetic that he does not see it as any sort of brake on coalition government as usual. Mere idle mischief making, indeed, made Labor lose a campaigning week as Albanese was unable to control a random event – one that reminded the electorate that most politicians (as well as most senior bureaucrats, many senior military officers including Brereton, many captains of industry) belong to the Qantas chairman’s club and are plied with benefits, particularly upgrades as well as allowed to avoid the great unwashed, whenever they fly.

A book which was, by coincidence being published that week suggested that Albanese had at times asked the chief executive of Qantas, Alan Joyce personally for upgrades, instead of having them foisted upon him as a courtesy. It took a furious Albanese nearly a week to flatly deny this – the most serious allegation made. Meanwhile other (opposition) politicians picked at a serious wound, and others, including ministers, pretended that it was all OK because the upgrades had been declared in the register of gifts and interests, if without assignments of the value of benefits gained (which could have amounted to $10,000 if overseas travel had been involved).

As ever when a factoid comes out of the blue, Albanese found that neither he nor his minders nor his spin doctors could control the debate or the public dissemination of his fondness for perks and other little statuses. He became increasingly furious, not least at the sheer opportunism of criticism by politicians who had and used just the same perks regularly, as did some of the journalists opining. And he seemed to think that the continuing life of the story was as a result of some high-level Murdoch and Nine-Fairfax plot to undermine him and Labor in the lead-up to the election.

Albanese’s limp self-defence aggravated the damage of Qantas allegations

He was quite right in insisting that it was a small beer issue compared with some of the great matters of state in which he and Labor were engaged. But the person making the story damaging was himself. The public knows, more or less, about such political perks. But it is only rarely that the scale of them is exposed, and the fact that they are greedily taken up by politicians, bureaucrats and military officers, every day engaged in making decisions worth millions to Qantas.

Qantas is engaged in a large-scale influence campaign by which it hopes to charm and keep friendly the people on whom most of its lucrative business relies. The defence department, for example, is Qantas’s biggest customer. Many public servants and defence officers (who get into the chairman’s lounge as a matter of the Qantas CEO’s discretion) ignore the public service rule that they must travel by the cheapest available flight so that they can take advantage of Qantas largesse. It is said that most politicians buy cheap economy tickets in the knowledge that they will be given “courtesy” upgrades worth much more. The fact of an upgrade may be reported; the value of it isn’t. Few if any MPs pay fringe benefits tax on such matters.

Qantas does not operate such schemes from the goodness of its heart. It is a form of quasi-bribery attempting to seduce people gently away from their obligations to their employers (including voters) and their duty. Whether they are corrupted or not may be another thing, but the growth of the operation suggests it works well. For Qantas at least.

Many ordinary members of the public do not understand all of the perks available to public officials. Accordingly, they mostly do not judge, or dwell on the subject. But voters understand perks such as the Qantas Club, as well as the relative rarity of “unsolicited” membership of the Chairman’s Lounge. As Peter Reith found out two decades ago, the public also understands how free phones work and have definite views about whether one should be forgiven if one allows it to be misused.

But the innuendo against Albanese works particularly well because both Joyce and Albanese pronounced themselves best mates at just the time Joyce and Qantas were becoming deeply unpopular. And because the government had done Qantas significant favours recently (such as by refusing entry into the international market to a would-be competitor). As Albanese commented, the government had also made decisions, particularly on industrial relations matters, that worked to Qantas’s disadvantage. But one obvious reason governments and officials should get right out of such schemes is because of perceptions that the charm offensive is, and is intended to be, potentially corrupt.

Not a matter for NACC because it is also compromised. But it would be a fit topic for investigation by more independent others, were not the organisation itself compromised by taking perks they have probably considered to be harmless. No doubt they also think, like politicians and senior bureaucrats, that no member of the public could think that a person of such outstanding integrity as themselves could be diverted from their duty by such trifles. All that I can remark is that the public are quite cynical about the integrity of politicians and officials, and that the popular opinion about matters such as conflict of interest embraces many relationships that most judges would think no one would perceive to be wrong.

No one is seriously faulting Justice Brereton for realising immediately that the public would perceive that he would have a conflict of interest if he were to be judging the conduct of Kathryn Campbell, a person, like Brereton himself, who was a major general in the reserves. There aren’t a lot of them, and there are any number of Defence public relations photographs of their being in conversation.

Brereton recognised he could not be a judge of Campbell. But he wanted to be involved in the investigation and adjudications of suggestions of criminal misconduct or corruption against four other senior public servants and one unnamed minister. After all, it would set the standard and the tone of NACC investigations. So, he recused himself from discussions about what to do with Campbell, while discussing with others how he thought the matter should proceed. Strictly, it was a deputy to whom he delegated the matter against Campbell who purported to decide that the matter against her should be dropped, as old history containing nothing new. (As I have remarked before, and as material before the NACC Inspector revealed, this invited questions whether she had properly read the reference. Or whether the plethora of staff who read and gave advice on the matter had either.)

But be that as it may, it was obvious that if Ms Campbell was to escape scot-free, everyone else had to benefit in the same manner, even if Brereton had no conflict of interest with them. Campbell was the alleged main culprit. So the delegate deputy commissioner was in fact deciding all of the cases – a possibility and later a fact of which Brereton could hardly have been unaware. Her reasoning came to be adopted for dropping all matters. Whether Brereton was present after the decision in relation to Campbell was disseminated, we are not told. Campbell’s case became everyone else get-out-of- jail free card. Moreover, the whole commission seems to have laboured over the delegate’s reasons in relation to Campbell.

Brereton was told, and ultimately accepted that he had misconceived his duty in relation to conflict of interest because he had failed to disengage, But the NACC inspector did not remark that the very fact that Brereton had a conflict was the reason that everyone escaped any sort of investigation or punishment. Campbell (and the others) got just the result she would have liked had Brereton really been prejudiced, and willing to overlook his obvious conflict of interest.

The NACC has bowed to very loud public criticism and the inspector’s report and withdrawn its decision not to proceed with an investigation against the Robodebt Six. But neither the commission not the commissioners should be allowed to be involved in any further investigation. The inspector’s report makes clear that many of the resources of the commission were invested in considering aspects of the case. Brereton has suggested that some eminent outside investigation be appointed and given powers of inquiry under provisions about delegating functions to others.

But who should be appointing eminent persons? Not anyone with a hand in the last appointments

But who should get the gig, and who should choose her? Not anyone associated with the commission, and certainly not Brereton, one might think. It’s not simply a matter of their being tainted by Brereton’s misapprehension of his duty about conflict of interest. It is also about their collective misjudgment, based on a patently false premise about why they should not bother to investigate. I would say that the commissioners should seriously consider resigning, because it is unlikely that they could regain public confidence in the way they approach their task. On the one hand there’s a risk that they will be so chastened from the adverse reactions that they shrink from their duty of bold action on corruption. There may be an opposite risk of the commission becoming reckless in an attempt to get some achievements on the record.

Nor would I be canvassing the Public Service Commissioner or the secretary of PM&C for recommendations as to such an eminent person. Both have shown by their management of misconduct matters, including Robodebt, that they hold fixed views about accountability and transparency likely to mean the public will never know whether or how justice was done. They have already shown their thinking on the subject anyway.

The NACC legislation was doctored by Albanese and Attorney-General Mark Dreyfus to ensure a predisposition to secrecy and closed hearings, despite promises made at the election. (A consequence is that many people, including Labor supporters will argue vehemently at the forthcoming election that the Albanese government did not deliver on its election promise. I expect that this will become a terrible distraction for those who think that the election should be about the matters they deem to be more important.)

For similar reasons I would avoid placing too much trust in Dreyfus, whose performance on, and devotion to, public accountability matters and transparency, has proven a great disappointment. So also with whistleblowing, freedom of information and secrecy in government, including his attempts to find new means of criminalising the making of comments by public servants. I often wonder whether he has his heart in the game anymore. Those who pay any attention to the record, moreover, would recognise that the Attorney-General’s department has had a permanent agenda of opposing an NACC, or, if it is forced to it by noisome politicians, of having one as weak as possible.

Australian governments have long had squads of reliable former public servants who can be engaged to do a quick enquiry or to give independent advice on particular subjects. The better of them insist that they be allowed to precisely state their terms of engagement because some ministers, and some departments, insist on a right to edit the advice they get. “Independent” reports obtained by Josh Frydenberg, for example, acquired the reputation of having been hacked to say the opposite. Likewise with reports commissioned by former Labor social security minister Jenny Macklin, herself once one of the go–to “independent” outsiders.

One go-to person is Vivienne Thom, once an Inspector General of Security, who is best known for her investigation, commissioned by High Court judges into sex harassment allegations against a former High Court judge, Dyson Heydon. But she is presently engaged in reforming protections against harassment at parliament house. Likewise, former public service commissioners Steve Sedwick and Lynelle have performed investigations for the public service commission, including a royal commission by Briggs. But both would likely excuse themselves,

It might thus be better performed by an independent inquiry conducted by someone from the bar, used to coping with maladministration, but not compromised by a close relationship with government, or being a mate or crony of anyone in the government. The model being used by the Attorney-General for having an independent panel recommend someone demonstrably independent and suitable might work to get us people of the calibre of counsel for Channel 10 in the Bruce Lehrmann defamation action, Dr Matthew Collins, KC. Or Sophie Callan SC, who is something of an inquiries expert and quite capable, I should think, of shredding witnesses.

As an encore she could look at Qantas hospitality for the very powerful.

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