JACK WATERFORD. Has Gladys got Peter, or Scott in the cross-hairs?

Peter Dutton has been heard – usually whistling to the dogs – but not much seen over recent weeks, and there have been some who have ventured to suggest that his coyness may have something to do with the Ruby Princess debacle – the one, and the most important boat he failed to stop. Were I he, however, I would be thinking of coming out of retirement, and quickly.

Unless, of course, he has 100 per cent confidence in the ability and the will of the prime minister, Scott Morrison, to shield him from slings and arrows that will almost certainly be headed his way from the NSW Premier, Gladys Berejiklian, the dominant faction of the NSW Liberal party (not usually aligned with Dutton) and the NSW special commissioner of inquiry into the Ruby Princess fiasco, Bret Walker SC.

The terms of reference of the Walker royal commission stray directly into whole areas of Commonwealth jurisdiction, with no apparent limitations on its capacity to call federal public servants to account, to demand documents of Commonwealth departments, or to make some of the Commonwealth’s leading ornaments – Dutton, say, his Border Force Commissioner Mick Outram, or the head of the Department of Home Affairs, Mike Pezzullo – answer some awkward and offensive questions about how they have been doing their jobs.

Strictly speaking, the NSW Government has no power whatever to give Bret Walker such jurisdiction, although the Commonwealth could cooperate with a fact-finding inquiry if it wanted. Constitutional doctrines of immunities – sometimes known as the “dog don’t eat dog” rules – as well as plain ultimate Commonwealth constitutional authority over all of the matters in question mean that Commonwealth lawyers, acting for any or all of the above, could tell them to go jump in the lake.

Those with a memory only going back a few years – admittedly before the coronavirus and COVID-19 began to totally dominate debate and the processes of federal government – might remember that the South Australian government decided then to investigate the way that water was allocated to South Australia from the Murray and Darling rivers. South Australia had genuine – as well as constitutional grievances – about whether it was getting a reasonable allocation once the other states had taken what they wanted. They believed that Queensland, NSW and Victoria were rorting the system, to its disadvantage. We now know that this was and is 100 per cent correct, though for the purpose of this article that is neither here nor there.

The Commonwealth, which had herded the state cats into a ring of sorts to create a fairly weak Murray Darling Basin Authority, found it expedient to largely overlook most of the rorting. It was, after all, largely benefiting National Party mates and cronies and was serving an auxiliary National Party purpose of poking the Greens in the eye with a burnt stick. And, anyway, Commonwealth ministers, coalition and Labor, had long agreed that the resolution of state quotas, and the divvying up of the spoils between upstream farmers, downstream farmers, towns and the environment, was not – could not be – resolved on the basis of putting environmental needs first, as the legislation seemed to require. Instead it was to be resolved by horse-trading, in the usual federal manner.

The Commonwealth instructed Commonwealth public servants, and members of the basin authority, whose status as Commonwealth public servants may have been slightly debatable, not to cooperate with the South Australian royal commission. Not to give evidence. Not to present submissions. Not even to give off-the-record briefings, or access to any materials not on the public record. Of course South Australia, represented on the authority, provided its own copies of documents. And any number of academics, former employees of the authority, as well as farmers, environmentalists and others who believed they too had suffered from dodgy allocations gave evidence. The conclusion of the royal commission – I reported on them at length at the time – were sound, and, for extra annoyance and political effect, usually blunt and colourful, sometimes in a manner offensive to the players.

The Royal Commission found evidence of gross maladministration, negligence and unlawful actions in managing the river.

Not that it had any effect on the rorters, or on the ministers, Commonwealth and state, whose benign stewardship of the river system was criticised. It was patiently explained to the masses that the commission had not had the benefit of listening to people with knowledge of the “real facts” and that the commission was misinformed. Moreover, an election had changed the South Australian government, and, although its parochial ministers agreed with most of the findings and recommendations, none had the appetite for a full-blown brawl over the matter. It subsided into the background, even as millions of fish died in the Darling artificially denuded of water.

The Royal Commissioner? A chap named Bret Walker, SC.

Was Walker chastened by his experience, or by the contempt shown by the Commonwealth, from the prime minister, Malcolm Turnbull down? I shouldn’t think so. That’s quite apart from any ebullience Walker may be feeling after his success with the George Pell appeal. He is on top of his game.

Perhaps Dutton should not be the only one to be wary. Morrison has been noticeably irritated with Berejiklian since his missteps over bushfires late last year. Each office has been leaking spiteful material about the other for months. The PM was quite irritated when the premier briefed her caucus, and leaked to News Com her opinion that Border Force was responsible for the Ruby Princess fiasco. Berejiklian may not be aiming at Morrison, as such, but she wants to deflect any mud coming in her direction. But with Morrison’s customary agility, they could easily find some common cause in letting it land on Dutton

The odd thing has been that the Commonwealth has as yet failed to signal that it will not cooperate with the inquiry. It has not yet instructed its own public servants to resist requests for evidence or submissions. It probably doesn’t want to be thought to be obstructive of an investigation into an appalling bit of mismanagement, regardless of who was responsible. At least while the question is on everyone’s lips, and while Dutton and the department are running for cover.

Perhaps it is confident that Walker will have no curiosity into the role of any Commonwealth players and instrumentalities, given that the head of Border Force, Mike Outram has authoritatively declared that the fault, if any, was among the NSW health authorities, or the cruise ship, or anyone else except Border Force.

The Border Force “nothing to see here:” claim has two legs. It may be responsible for “security” and “control” at the borders, including at the docks. But it is not, it says,  responsible for “biosecurity” – the functions that were once called quarantine. That, first, is a matter for the Director of Quarantine, a functionary of the department of Agriculture, Water and the Environment (though in practice this is relevant primarily to animal health)  and biosecurity people in the Commonwealth Department of Health. In practice these delegate their functions to state health authorities,  ergo any negligence, incompetence, or culpable stupidity must be the fault of someone in the Berejiklian government. Or maybe the ship’s doctor or managers.

Walker’s terms of reference give him a lot of room to ask awkward questions if he is allowed. After reciting bald facts about the voyage of the damned they say: the Commissioner is to report on and make recommendations in relation to the following matters:

  • The knowledge, decisions and actions of Ruby Princess crew, medical staff and the ship operator, Princess Cruises, with respect to cases or potential cases of respiratory infections on the ship.
  • The information provided to, communications between, and decisions and actions of Commonwealth and NSW agencies, including the Australian Border Force, the Federal Department of Agriculture, Water and the Environment, NSW Health, the NSW Police Force, NSW Ambulance and the Port Authority of NSW.
  • Policies and protocols applied by Princess Cruises and Commonwealth and NSW Government agencies with respect to managing suspected or potential COVID-19 cases.
  • Communications by Commonwealth and NSW Government agencies to passengers disembarking the Ruby Princess.
  • Any other related matters that the Commissioner considers appropriate.

Strictly, it is doubtful that Dutton would find himself directly in the line of fire. At the relevant time, he was indisposed with a COVID-19 infection. Forty years ago, a minister might have resigned after a massive balls-up by his department, particularly when it was in an area where the minister was given to grandstanding. In modern times, however, prime ministers have seemed strangely reluctant to hold ministers to account, and in defending them, have focused strongly on questions of personal responsibility, rather than anything of the-buck-stops-there type.

Morrison has had one opportunity to disavow the inquiry, but danced around it. On Wednesday, Karl  Stefanovic asked him: “PM, the Ruby Princess has been an unmitigated disaster for this country. Do you support an independent inquiry into what went wrong? Tasmania is now dealing with some of those consequences.”

Morrison responded: “Look, there are a lot of complications that have come from that rather terrible event. But what we’ve got to do is we’ve…there are going to be failures in the middle of a crisis. There certainly has been here. No one is walking away from that.

“We’ve got to keep focused on the next set of problems… We’ve got to, as we work through this crisis, we can’t allow ourselves to get bogged down in everything that hasn’t gone right. There will be things that don’t go right. So many more things are going well. Particularly, the work of our health authorities and those who are doing amazing work all around the country … to ensure that we can get support to people as quickly as possible. We’ve got to keep looking forward, Karl.”

It was a typical Scott Morrison answer. It could mean anything, or nothing. It may well come to mean different things at different times.

 

Jack Waterford is a former Editor of The Canberra Times

[email protected]

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John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.

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