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 of the ship.
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.
One finds the duopoly position also in at least two essays by Professor Judith Brett: “Relaxed and Comfortable: The Liberal Party’s Australia” ; and in “Fair Share: Country and City in Australia ”
Dichotomies are, nearly always, simplifications. 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 detail 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, some eight per cent of voters chose to vote against the recognition of Aborigines as citizens.
Brett does seem to notice how much her “Relaxed and Comfortable” depends on the Labor Party. She confirms, perhaps subconsciously, that Rodney Tiffen is correct: Professor Brett’s politics are a product of a two-party structure.
Without the ALP, her writing suggests –at least to me it suggests - there would be no Liberal Party.
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 the forerunner of Antony Green, when the tools used today by Antony Green did not exist.
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. If there be an error, it will be my failure, not Rodney’s. All I can say is that I have still never found an error or omission in Rodney’s papers.
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 reveals in his book, Scandals, many non-judicial inquiries that should not have been called into being at all, 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, really, but ICAC can take its time – all the officers of ICAC and all the lawyers who have to look after the unpopular targets are being paid appropriately. 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, I seem to 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. It’s logical.
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 happened to coincide in time with the emergence of some unusual legal manoeuvres to minimize 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 his own people –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 Liberal-Country Party Coalition set about that task, but the concept of retrospective laws is widely disdained 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 could 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 of the lawyers in the ICAC, Mr Peter Braham, SC, scored a coup de média 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. Certainly, the ICAC had the power to tap Mr Maitland’s phone; but Braham, SC, did not tell Mr Maitland what he (Braham) knew about the intercepts. Braham had 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) I assume that Mr Braham kept a record of the “tapped” conversation and, I further assume, 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; nor to tell any party in the ICAC whether the contents of the phone conversation were true...if such a conversation exists at all.
There is, of course, nothing in s.51 (v) that prevents Mr Braham from releasing the contents – if there are any. (I assume that he has not destroyed the output of his eavesdropping. Mr Braham may be a good counsel but he is a spy, and no gentleman.
It strikes me 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.
Of course, the ICAC is not a court. In the courts - where grown-ups preside - judges seem not to approve of identifying parties allegedly involved - suspects, basically - before evidence is presented.
I, and others appearing at the ICAC, have not been given the whole story by Senior Counsel for the Commissioner.
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, omitted to 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 the law, 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 the Doyles Creek mine, in particular, this is a serious issue. Central to the argument over Doyles Creek 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.
Even Peter Braham could recognise that NL means the business is highly 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.
Ian Plimer, formerly a Professor of geology at the University of Newcastle, was vocal in arguing that the mine proposal be abandoned because of the risks to students. He might have been less vociferous had he appreciated that it was planned to have, at least inaugurally, few positions for trainees.
Had there been, at this point, further adumbration of the position, the whole project might have come to an end - or not.
University research on portside land was beyond any portfolio of mine. I simply kept working within my portfolio, unaware at that time – around 2008-9 - that there was winnable coal at a place called Doyles Creek.
The University of Newcastle was further persuaded by a donation of $100,000 which gave a measure of confidence for the long-term future of both the mine and the training of students.
It must have seemed to the University Foundation, the recipient, a windfall of a type for which the Foundation was established.
A number of scholarships were indeed made available. That did not mean that the University Foundation was provided with any more detail than any other party; the $100,000 was a limiting factor. $100,000 is not a huge amount for starting up a mine. In fact, it’s a drop in the bucket. Thousands of Australians saw television footage live from Queensland of a Rio Tinto dragline falling into a pit while rain eroded the wall of the mine.
The cost of the dragline was more than $1 million. Rio Tinto had to wrote it off. If you can simply drop $1 million on a rainy day, how does $100,000 turn a farm into a mine?
Whether it is a mine for training, or for extraction and profit, a mine is a complex development surrounded by Occupational Health and Safety legislation, implying 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. That someone has retired 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 the other branches of that great union, but the Valley had strong and settled branches, especially in the Hunter Valley.
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.
The Union’s need, and its desire, was to ensure representation in other areas of the State: small towns where fruit pickers work seasonally; larger inland towns and cities that become the focus of a wider region. 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. Family occasions, we plan; meetings in rural towns and cities to carry the union flag, we plan. Other than that, we met when a delegate from the union would come to me in my Ministerial role and I would execute my Ministerial responsibilities.
Sometimes it might be John, more often it would be someone else.
It’s an old saying, but it has its element of truth: if you want a friend in politics, buy a dog.
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 more precise language of Guy Debord; his manifesto, La Societé du Spectacle, was first published in 1967. Debord’s thesis was, in essence, that in modern society, dominated by large and powerful businesses, images created for marketing were replacing the real life of the individual with a new image of la vie francaise that was not real, one that separated the individual from the lived life.
It is, in a sense, the shift from a society to an “economy.” Debord’s thesis is similar to Alfred Korzybski’s statement: “the map is not the territory”, which some consider the foundation of post-modern thought.
One is real, the other a facsimile, but so accurate a facsimile that it confuses the observer about which is which. In addition to Debord, Daniel J. Boorstin, 12th Librarian of the US Library of Congress... raised almost the same argument in 1962.
Boorstin coined the term, “pseudo-event”, to describe events which are created solely for the purpose of being broadcast. In his rigour, Boorstin included press conferences, even Presidential debates, as creations rather than events, which from a journalistic, factual, point of view is fair, in fact genuinely helpful.
The “real” news, according to both Boorstin and Debord, is that which comes from accident or incident: la vie vécu, 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”.
Besides, there is no justice in the ICAC or any other commission.
Justice begins in court.
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