I can only hope that the NSW Government considered what might happen in the Independent Commission Against Corruption before it decided that such a Commission was warranted, let alone desirable. Once a Commissioner is sworn, the Government is longer at the helm.
The lesson of previous commissions in Australia is that, frequently, they have been too hot to handle; or else, nothing more than a show.
Did Premier O’Farrell forget to ask Nick Greiner for advice?
Greiner was one Member of the NSW Parliament who wanted to create the Independent Commission Against Corruption (ICAC).
Well, he got his Commission, and he became one of its first victims.
This is a sorry irony, isn’t it?
Well, no. It is, in fact, a common outcome of witch-hunts like the ICAC.
Nick Greiner was not the only Member who wanted the ICAC.
I was another, and my first speech in the Legislative Council included a good deal of attention to the matter. I was in fact trying to draw Premier Greiner’s attention to the potential traps and risks in the motion, as it had been tabled in the Parliament.
You can look it up at the NSW Parliament web site: first speeches by Members are kept on-line and accessed with ease.
Rodney Tiffen, a committed researcher during his days working in the NSW Parliament, and now an emeritus professor in Government and Political Science at Sydney University, has collected a wide range of examples.
Tiffen argues that
“The great engine for the escalation of scandals is the pursuit of party advantage .”
Tiffen was interpreting the electoral contest, on that occasion, as a zero-sum game. That is a common reading, because Australia has two major parties opposed to one another. No matter how they rise and fall on the polling see-saw, they cannot exist without each other.
The concept of such a duopoly is so delightfully simple that it invites belief.
Dichotomies are always simplifications, designed to divide for convenience.
They suggest broadly how things work, but we live in a complex democracy where every citizen is entitled to have a view and argue in its support. Absolute agreement is as unachievable as getting every citizen to agree to a single proposition.
Even in the 1967 referendum on Aborigines, when no opposition case was put forward, some eight per cent of voters chose to vote against the recognition of Aborigines as citizens.
But politics is not a zero-sum game, at least not always. The ALP did exist for decades without a Liberal Party or any other relatively equal party. It was constituted perhaps a little differently from one colony to another, and reconstituted after WW II, but it was organized and operating long before any other party extant.
I would never criticize Rodney Tiffen. He was Mr By-Election, with a massive collection of details about every NSW by-election over a decade – and that’s only the ten years’ worth I have studied.
I would love to be able to say his papers were flawless. For only one reason, I cannot: there could be an error in those papers that I simply have not found.
I have taken time to spell out these positions because Rod Tiffen has in recent years taken a more active view of politics, a view that relies on political interpretation, passing beyond the simpler task of copying figures and discerning patterns in the entrails... This always was, and still remains, an important and valuable function.
Tiffen idetifies in his book, Scandals, many non-judicial inquiries that should not have been called into being, and would not have existed had governments shown a little backbone.
While investigations like that of the NSW ICAC will be made to appear to be in pursuit of corruption, they are perfectly capable of doing and finding nothing, concluding in harsh words for some unfortunate enough to be caught in their maw, but not much by way of actually nicking anybody.
They are a waste of time, usually, but ICAC can take its time .
Tiffen’s history of “commission-o-rama” – including the Painters and Dockers in Melbourne; the Goanna affair (also in Melbourne --the sittings were in Hawthorn, as I recall) cannot be easily summarised.
Tiffen explains, however, how a number of really serious investigations were instigated by senior politicians.
Prime Minister Malcolm Fraser, confronted by an extraordinary number of murders on the waterfront– 13 allies or members of the Dockers murdered in the 1970s; and 23 attempted murders - wanted to investigate the Painters and Dockers’ union.
It reads as a simple go-get’em case, and Fraser must have read it that way.
Once the Commissioner, Frank Costigan, QC, applied his acumen – judicial acumen but wide-ranging because this was a commission, not taking place in a court - to the collection of criminal enterprises that centred on the waterfront and the Dockers, Fraser’s apparent agenda was substantially out of the Prime Minister’s control.
This coincided with the emergence of some unusual legal manoeuvres that minimized taxation.
Alan Slutzkin, who may never have thought of it as tax minimization, had his name appended by the Melbourne reporter Paul Heinrichs to one scheme – although the difference between a Slutzkin and a “wet Slutzkin” was not readily comprehended. The “wet Slutzkin” was rewritten by Heinrichs as “bottom-of-the-harbour scheme” – a term that described where any missing papers, accounts, records, and so on, had allegedly vanished.
That was a whole lot easier for the target audience to comprehend, and tax minimization became almost overnight the topic of universal discussion in judicial and political Australia.
And, if a Wet Slutzkin can be at the bottom of the harbour, then it could also be the time bomb on which Prime Minister Fraser was sitting once he set the dogs on the scent.
If that bomb were to explode...it was Fraser and his Ministers who would suffer.
And they did: all because the Prime Minister set out to target organized crime on the waterfront, Prime Minister Fraser had torpedoed several Ministers – a remarkable number of Liberal MPs on the Mornington Peninsula.
That was a shock.
Fraser felt obliged to impose retrospective laws to clean up the taxation mess, and the Coalition set about that task, but the concept of retrospective laws is widely derided by Australians.
The only way this matter could be worse for Fraser was if the retrospectivity applied to taxation, perhaps the most complex part of the Australian “settlement”.
The difficulties involved, potentially, re-counting the taxes collected and taxes not imposed, by each individual and every company.
So ... did Barry O’Farrell actually think about this round of ICAC?
Perhaps O’Farrell thought he was being courageous, but a little more familiarity with Yes, Minister would have taught him that, in politics, “courageous” is not a helpful adjective.
Or was this all a PR exercise to show how seriously the O’Farrell government takes corruption as an issue ... while breaking one after another of the promises to which he committed during his campaign and in his first term as Premier, and at considerable cost to the taxpayer.
Next thing you know, Mr O’Farrell will be the object of an investigation for lying, not to the ICAC, but to the people of NSW in his election campaign.
We can assess how phony much of the ICAC is from the names appended to various elements of the investigation: Operation Jasper; Operation Jarmilo; Operation Acacia.
Obviously, the investigators had had recourse to that well-known legal resource, American action films. Those attending might have been waiting for Steven Seagal or Bruce Willis to walk in.
When Senior Counsel leads, and former Ministers are accused, the level of testosterone in the room will always be elevated.
One lawyer in the ICAC, Peter Braham, SC, scored a coup de médias one morning, outside the ICAC hearings supposedly investigating me, by asking Mr John Maitland about a telephone conversation.
Mr Maitland denied some elements of the alleged conversation ... unaware that ICAC investigators had tapped his (Mr Maitland’s) telephone and knew that Mr Maitland’s response was in contradistinction to some of the content of a particular phone call.
Whether the contents of the phone call were true or not, Braham, SC did not appear to test.
He did, however, denounce Mr Maitland as a liar. Only minutes later, Mr Maitland repeated the apparent error by once again responding in a manner that appeared to contradict the content of a phone call, content which nobody knows even yet.
Braham, SC, repeated the assertion that Mr Maitland was a liar. Two points – at least – are significant:
One: Mr Braham did not warn Mr Maitland that his phone calls were tapped. One assumes that the ICAC had the power to tap Mr Maitland’s phone; he would not have cut across Federal legislation; but Braham, SC, did not tell Mr Maitland what he (Braham) knew about the intercepts.
Braham would have been obliged to apply to the Commonwealth Government for permission to tap the phone, under s.51 (v) of the Constitution [Postal, telegraphic, telephonic, and other like services.] One would assume that, having been through the routine,that Mr Braham kept a record of the “tapped” conversation and, one further assumes, had such contents transcribed.
Could the ICAC not reveal the content of the tapped conversation? There seems remarkably little point to applying to the Commonwealth for permission to not listen to the conversation; he appears to have take the concept further by not – apparently - telling any party in the ICAC whether the contents of the phone conversation were true...if a conversation existed at all. In the trap-setting manner of some barristers, he may have been listening to a disconnected handset
There is nothing in s.51 (v) that prevents Mr Braham from releasing the contents – if there are any.
He may have acted as a provocateur. Solicitors and barristers have been known to set traps.
It seems further that, to listen to a particular, Federally cleared, phone conversation, Braham, SC must have predetermined who would make the call and by whom it would be received.
It beggars belief that he tapped a call at random and had the amazing good fortune of hearing the very call he wanted to hear.
Of course, the ICAC is not a court. In the courts - where grown-ups preside – a judge might query how Braham, SC, selected his suspects. Even in the ICAC, the Commissioner might find that interesting.
I, and others appearing at the ICAC, have not been given the whole story by Senior Counsel.
Two: It depends on one’s philosophy, I suppose, but some would say that failing to reveal a fact of which one is aware, in order to place another party at a deliberate disadvantage, is to lie. Braham, SC, has gone further, however, describing me as a liar. Of course, the ICAC is not a judicial body, but at some point there has to be a degree of honesty on the part of the Government, minuscule though it may be. In the Parliament of the Commonwealth, for example, calling another Member a “liar” is a serious offence, punishable at once by expulsion from the House – should the Speaker of the House, or President of the Senate, at the time see fit to exercise her or his power. A liar is not a person who tells a lie. A liar is a person who lies habitually. One example is insufficient to support an allegation of habit. Calling me, or John Maitland, a “liar” outside the ICAC is therefore close to slander. When Mr Braham, a Senior Counsel, does it, the matter is more serious because Senior Counsel must be taken to be people who know and understand the law, and therefore Mr Braham’s strong language must be taken as deliberate. It must also, because of the repetitious quality inherent in the term, “liar”, be understood as not merely deliberate, but as a deliberate attempt to demean me or my reputation, or Mr Maitland and his reputation, or anyone else on whom Senior Counsel sees fit to pin the label of a person who habitually tells untruths or, more likely, fails to tell the truth – just as Braham, SC, chose deliberately to not tell the truth to Mr Maitland about phone tapping.
Most faiths consider that failing to reveal information is lying: a sin of omission, as opposed to a sin of commission. I employ the reference to faith as part of the philosophical basis of a culture, a moral position, not as a sectarian judgment, and certainly not as a legal position. Braham, SC, made his reference to me as a person who should be treated as a liar outside the Commission’s chamber, which struck me as odd.
He has certain protections within the chamber, as do I, to allow, pro tem, slander in order to advance knowledge of prior events.
It seems clear to me that Braham, SC, was performing for the benefit of the media, not of the Commissioner. In the matter of a mine, this is a serious issue.
Central to the argument over various mining permits dicussed, is the issue of how much certain individuals knew of the scope of the mine: the size of its coal reserves, for instance. The entire proceedings depend on:
what information people had,
what information they were denied, and
who stood to benefit.
The concept was suspect before there was a company called NUcoal. Before NUcoal there was SuperSorb NL. Peter Braham could recognise that NL means the business is speculative. SuperSorb was supposed to provide technology developed at the University of Newcastle to clean up contaminated lands on the Port Hunter foreshore.
The financial kicker was to re-use land cleaned up by SuperSorb NL for development.
Had there been, at this point, further adumbration of the position – revealing a little more detail – the whole project might have come to an end.
Realistically, that would probably have accelerated attempts by those within the circle of knowledge to take advantage of those not so informed.
University research on portside land was beyond my portfolio. I simply kept working within my portfolio, unaware at that time – around 2008-9 - that there was winnable coal in the Bylong Valley area.
Of course, there was winnable coal in the area, and quite a few coal miners knew that. The issue was always how extensive the seam was; what quality the coal was, i.e., its calorific content; the depth of the seam ... and various, lesser, considerations.
The larger considerations included access for exploration – to resolve the questions above - the potential involvement of mining companies, and the attitude of government.
Premier Carr, for example, spent much of his premiership establishing, whenever and wherever he could, national parks – which could potentially lock up land that might contain significant reserves of energy. The Sydney Morning Herald obtained a version of a speech by John Faulkner a former Federal Minister, which was a lament for the way his Left faction of the ALP had nurtured me.
He referred also, however, to the lack of understanding of mining by two Premiers in particular: Bob Carr and Morris Iemma. Well. living in Lakemba and Maroubra, they probably had little to do with the industry. It was during their terms in the State parliament that some people might have come to recognize some of the weaker points of the Government.
I resent strongly the criticism that I did not take my Department's advice. The fact is that I did not restrict myself to a to a single source of information. I had a realtionship with John Maitland sufficient to be able to discuss industry matters. I could, if I chose, take advice from the people who worked in mining to flesh out my knowledge of current events in an industry of vital importance to the State, and I always asked about safety issues
Whether a mine for training, or for extraction and profit, it is a complex development surrounded by Occupational Health and Safety legislation, and that implies immediately a role for the CFMEU.
Coal mining has been carried out for generations, by generations of mining families.
It’s dirty and it’s dangerous, a very clannish line of work in the USA, Canada, Bolivia (briefly but spectacularly on worldwide TV), Australia, and no doubt other places.
So, John Maitland was known by all in the CFMEU, if only because the union is a clan.
Even when he retired, he was part of the clan. Retirement does not make him persona non grata. However tenuously the relationship survives, it does survive.
It would be difficult to sustain that John Maitland and I were friends in all circumstances. We were not opponents, but my political role in the Upper House, a Member of Parliament with no electorate smaller than the entire State, took me out of Sydney, to towns all over New South Wales.
My visits to the Hunter Valley were relatively few. The Mining and Energy branches of the CFMEU in the Valley were no less Left-wing than other branches of that great union, but the Valley had strong and settled branches.
One cannot pick up a power station like Eraring or Bayswater – NSW’s biggest coal-fired generators - and move it. The members tend to stay at the plants where they find employment.
ple, once a thriving city in its own right, became a focus of housing for miners travelling up the valley to Singleton, Muswellbrook, and beyond, which stretched union and government planning.
My chances of running into John Maitland were limited. As for having dinner together...that has happened, but it has happened more frequently through accident – being in the same town at the same time – than because we planned such occasions.
Other than that, I might meet a delegation from the union to see me in my Ministerial role and I would execute my Ministerial responsibilities. Sometimes it might include John Maitland, mostly not.
Whatever I might have thought appropriate, I always appreciated that the National President of a union is was likely to be at least as busy as I was, probably busier.
It’s an old saying, but it has its element of truth: if you want a friend in politics ... buy a dog.
Mr Braham, SC, has not exactly pinned down any truth by referring to witnesses as “a friend” or “friends”. What exactly constitutes a “friend”? Is there a legal definition? I wonder whether Braham, SC can define the term, “dog”. Ferae naturae, I suppose.
I mentioned near the top of this paper that the ICAC is nothing more than a show. I should have employed the language of Guy Debord; his manifesto, La Societe du Spectacle - The Society of the Show - was first published in 1967. Debord contended that, in modern society, large and powerful businesses created images for marketing to supplant the real life of the individual with a new culture that turned aside from traditional values towards a new way of living, one that separated the individual from the lived life.
He was, in effect, close to identifying the shift from a “society” to an “economy" a division which still troubles governments State and Federal in Australia, but more usually expressed in "needs" and "capacities" when the Treasurer has to try to balance the books.
Daniel J. Boorstin, 12th Librarian of the US Library of Congress... raised almost the same argument in 1962. He coined the term, “pseudo-event”, to describe events created solely for the purpose of being broadcast ... rather like the ABC's Q&A today.
In his rigour, Boorstin included press conferences - even Presidential debates. The “real” news, according to both Boorstin and Debord, is that which comes from accident or incident: la vie vécu, as Debord expressed it ... the life that is lived; not a life imagined or created.
Braham, SC, seems to favour the life he can imagine, and then tries to create it. Theoretically, that is a good concept for a prosecutor. It runs counter, however, to the role of the investigator, who must explore to discover the truth as it exists, rather than trying to force the complexity of the lived life into a box and labelling it, “The truth according to Peter Braham, SC.”
In June 2013 the Daily Telegraph pointed out that the Minister for Finance had been given a month off to recover from his exhaustion, rather than being penalised for mucking up his travel arrangements – to a town that did not exist.
I, for my breach of travel arrangements – the same alleged breach as Minister Pearce – got seven months’ of appearing in the ICAC. I have to stress that the quantum of money described in the allegations was not the same in the two cases; but that is of little importance. The primary subject is the quality of the alleged offence, not the quantum.
Not even Premier O’Farrell could fail to note the different responses to similar, alleged breaches, when they both involved government travel arrangements.
Premier Keneally dropped me from Cabinet and from any political position. I accepted that, and at least the Premier dealt with the situation quickly and cleanly.
There are still people, however, who want to go on punishing me for that incident. The Sydney Morning Herald, in particular, delights in referring to me as a “disgraced” former minister.
I made a mistake; I was sacked; I copped it on the chin. I feel Keneally dealt with me appropriately, but I insist that it is improper that I be criticised for the one incident, on a regular basis. I think the term, double jeopardy, would apply in many jurisdictions. I might make mistakes again, but I cannot repeat a particular error. It’s done: it’s over.
Premier O’Farrell has no rational explanation of the different attitudes he has adopted. I have had seven months appearing in the ICAC every time I was asked.
Minister Pearce – who was described by the Daily Telegraph as being “drunk” in the Parliamentary chamber – was given a month off because of his exhaustion. He seems to have been as exhausted as a newt.
Exhaustion of that kind may well have caused his difficulties in filling out his government travel paperwork.
Unable to reconcile his attitudes to the breaches of similar regulations, the Premier adopted a Public Relations course that might bury the criticism, by turning the show into pantomime.
In panto, traditionally, the happy end of the show is signified by the Dame handing out lollies and chocolates to all the little children in the audience.
What did O’Farrell do? He announced, on the same day as one of these stories appeared in the Daily Telegraph, that the SCG would host an American baseball game in a mere year’s time: a nice choice for a day’s publicity, but one unlikely to overcome the concern that the Premier was insecure ... and afraid, mostly, of certain Members of his own party.
Typically, the Dame in pantomime is played by a male and, figuratively, Mr O’Farrell acted the role: just another example of the gulf between the real and the facsimilie in O’Farrell’s thinking.
The promise of a baseball game, however eminent the teams, was really not enough to qualify as fair when Mr Pearce, exhausted as a newt, evaded justice.
Justice does not exist in the ICAC or any other non-judicial body.
Justice begins in court.
