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OPINION
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 Walker's 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, or 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 co-operate 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, and 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.
Walker is not without his own guile - and if he is clever, he should retain a certain professional paranoia about other NSW government executive inquiries running in parallel to his.
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, would not be - could not be - resolved on the basis of putting environmental needs first, as the legislation seemed to require. Instead those issues would 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 co-operate 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 conclusions 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 then-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 Corp 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 co-operate 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.
Border Force's "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 ... 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.
A matter of clout, and of egos
When Bret Walker is trying to find out who can be held responsible for Ruby Princess stuff-ups, he will probably look for his own team of investigators, even at the risk of tripping over others with fingers in the accountability pie. He shouldn't listen to claims of "duplication" or "convenience" - there is plenty of information for everyone; everyone has an agenda (some to obfuscate responsibility or to cover things up) and there is lots of culpability to be shared around.
Walker is not without his own guile - and if he is clever, he should retain a certain professional paranoia about other NSW government executive inquiries running in parallel to his.
There will be inquests into some of the deaths of passengers from the Ruby Princess - themselves opportunities for outrage at the way the ship, the NSW Health authorities, port authorities and Border Force combined to increase person-to-person exposure. So far, of passengers and crew, there are at least 600 people known to have the virus, and 19 people have died.
Normally one would hear police insisting that nothing should be said lest it prejudice evidence being gathered by the inquest, or the coroner's ability to make findings of fact. In NSW this is usually years later.
This time about, the NSW Commissioner of Police, Mick Fuller, feels no such inhibitions. He is delivering a daily commentary on all aspects of the affair (as well as on many other matters coronavirus and the exercise of police powers to stop and intimate anyone outside a house, especially if they are eating a kebab).
He has his homicide squad all over the ship, and it has been reported that the many otherwise unemployed detectives intend to take a statement from every crew member and passenger before they are finished, perhaps five months from now. [Walker is required to report by August 14, four months from now, so it seems plain that the NSW Police do not see themselves as gathering evidence for him. Heavens, doing so might compromise a criminal investigation or prosecution - perhaps for some sort of industrial manslaughter.]
Mick Fuller, and the NSW Police, are hopelessly conflicted in any of their investigations.
Fuller may be Commissioner of NSW Police, and thus, technically, in charge of criminal investigations.
But he is also a sort of coronavirus supremo for NSW. From his own publicity: "As the State Emergency Operations Controller he directs a taskforce co-ordinating police, Australian Border Force and Defence personnel, as well as experts from organisations including education, transport and health.
"The combat [sic] agency comes together in a war-room setting based out of the Rural Fire Services headquarters in Homebush. Strict social distancing and health protections are enforced. For the duration of the crisis Fuller will be at the head of a mammoth logistics operation, managing the movement of 7.5 million people for 90 days."
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No doubt all of this work in the public eye is being performed splendidly. It is certainly generating a lot of publicity, including daily opportunities to opine on almost anything (other than the seemingly stalled inquiry into whether the leader of his church, Brian Houston, breached the law by not reporting his father for child sexual abuse). But a person with all of his executive functions - ones apparently transcending constitutional boundaries - lacks the appearance of detachment as the man at the top of a criminal inquiry. Nor can he dodge that issue by insisting that it is, for practical purposes, under the control of an independent underling. That's because his daily commentaries have closely identified him with the way the investigation has been proceeding.
One who reads that commentary could be forgiven for thinking that he was actually supervising (and calling the shots on) two separate Ruby Princess inquiries - perhaps three.
His cops were all over the ship before he announced any sort of investigation into breach of the law. My guess is that he was tasking them from the perspective of being coronavirus supremo - in part just to find out what was going on, who did what, and the nature of the messages emanating from the ship before it landed.
For this purpose, his public statements seemed consistent with at least a preliminary theory that the operators of the cruise ship had misled health authorities. Some of the correspondence was conveniently leaked by heaven knows who, if in a manner helpful to the interests of NSW authorities and perhaps even Border Force.
One cannot help remembering that this publicity hound is, at the end of the day, a NSW public servant. Strictly a police commissioner should be at arm's length from the political administration, but that is not the NSW way, any more than it is the AFP way in relation to Commonwealth ministers. Even before his overlordship, one was seeing him standing loyally beside his premier and other public servants, amplifying her and their messages, and adding his own gruff authority and prejudices. In this he has even outstripped his predecessor, Andrew Scipione.
Can one be excused for suspecting that he has also been gathering political intelligence for his premier for the battles - past, present and to come - over her management? Nothing wrong with that, from the point of view of a coronavirus supremo. But that would be a big conflict of interest for a cop.
We can expect that Bret Walker will be alive to such issues. The question will be who has the biggest elbows. And ego. My money's on Walker. At least until Morrison's interests arrive.
- Jack Waterford is a former editor of The Canberra Times. jwaterfordcanberra@gmail.com