Corruption and the Law
8 July 2023
I am no fan of our legal system. My view is that is a money-making talkfest, a debating plaything with justice when it is achieved, in no way cost effective. It is hugely stacked towards the rich and powerful, cumbersome and petty pedantic and it leaves huge issues of justice unacknowledged and unaddressed.
Many years ago the Non-Smokers Movement tried to stop tobacco sponsorship advertising on TV. It was perfectly obvious that Marlboro was a major sponsor of the Australian Grand Prix in Melbourne, that all the cars and signs were set up for a TV extravaganza of Marlboro exposure on Channel 9. Non-Smokers Movement had been going about 20 years trying to get rid of tobacco and smoking. We presented all the evidence with photos of what had been set up the livery of the cars. The judge ruled that we did not have ‘standing’ to bring the case as we would not lose money from the telecast, because we did not have an ‘interest’. An ‘interest’ equalled money, and we were considered lucky that the judge allowed us to present the case as he knew we did not have an ‘interest’ or ‘standing’. Be grateful for crumbs- we got the publicity, though of course the telecast went ahead, and they were awarded their costs (which in fairness Kerry Packer did not demand).
When I was in Parliament a whistle-blower nurse, Nola Fraser was on 4 Corners making allegations that there was a big problem with health care in Campbelltown and Camden Hospitals. She was relatively senior nurse, who was sometimes night supervisor at Camden. I contacted her and she told me about the corruption in the hospital. She had over a hundred reports, some details on about 70, the names of about 35, reasonable detail of about 15, and a lot of information on about 7 cases. Her stories were credible. The patients were dying because doctors were not available, trying to cover both the ED and the wards at the same time, or in theory on call at two hospitals at the same time, and ambulance protocols had resulted in at least one death, as inter-hospital transfers were low priority, but resulted in a lessening of interest at Camden, as the patient was ‘about to go’. She had tried to speak to senior management as the ‘case conference’ meetings produced no results, and management had referred her to an officer who could not do anything but refer her back to the senior management in a sort of endless fob-off merry-go-round. She used the word ‘corrupt’. I asked her if she meant a corrupt process or if some of the hospital staff were on the take. ‘No’, she assured me, ‘they are not making any money, it’s a corrupt process; they are supposed to be helping people, but they are killing them and covering it up’. Clear enough.
I initiated a process which led to an inquiry on the complaints system within NSW Health and concentrated on Campbelltown and Camden Hospitals. She was a major witness; a lot of problems were found and South Western Sydney Area Health Service got an extra $360 million in the following year’s budget. But it went further. NSW ICAC initiated an inquiry to look at Nola’s allegation of corruption. Unfortunately I did not follow the mechanics of this closely enough. After an inquiry for some time at a cost of $1.3 million, Nola Fraser was excoriated as a person of no credibility as she had not proved her allegation of ‘corruption’ against the senior staff. But no one had asked the obvious question; what did she mean by corruption? She was talking about process; they could only think of money- the legal definition. After the sanctimonious verdict, her life was largely destroyed. What use was the legal system in getting justice? Nil.
Now we have findings of corruption against Gladys Berejeklian, who had been brought up in a rather sexually sheltered domestic environment and then chose a dodgy boyfriend and protected him. (SMH 30/6/23) No corruption there as she did not personally gain any money? It is up to NSW ICAC.
Of course the other big news this week is the Robo-debt Royal Commission. (SMH 8/7/23) Morrison started it; Attorney-General Christian Porter knew about it, and Ministers Alan Tudge (alleged sexual harasser) and Stuart Robert (Morrison loyalist, corporate enabler and generally recognised incompetent) were also responsible. Presumably none of them made any money from the Robo-debt scheme, so they were not corrupt and cannot be prosecuted? We will see. The sealed section of the report apparently makes recommendations to the NACC, but can they act on this in the legal system we have? It is said that there are 4 to be referred to NACC, and the Commissioner waited until NACC was established to release her report, which means that she wants some consequences. But we have National Anti-Corruption Commission (NACC) chief Paul Brereton saying ‘It is possible for conduct to be corrupt but not criminal’. Sure is. But does this mean that there is no prosecution no matter how dodgy the politicians allocating the money are? Looks like it. Endless ‘discretion’?
One other tricky little question will come out in all this- will the public servants be prosecuted? They did not give ‘frank and fearless’ advice and at least some of them knew it was not legal, or might not be. Probably they knew that it was going to happen anyway, and their own careers would be adversely affected if they made a fuss. It is very likely that they were correct in this last opinion. Does the Public Service Act compel them to be honest when there is no such compulsion for politicians? I note the article in The Saturday Paper speaks about public servants being ‘sanctioned’ for breaching the ‘code of conduct’. Sounds like being hit by a wet lettuce- possibly bad for your career in the short term.
The relationship between the public service and political system is interesting. The British comedy series ‘Yes Minister’ showed the public service as foolish. The more relevant Australian series ‘Utopia’ shows it the other way around. Who should have the power and how much?
Years ago the NSW Electricity Commission decided that NSW needed to commission a number of new coal-fired power stations to open every few years to meet projected energy demand. They were engineers and would obviously have work for their working lives implementing this project. Electricity demand did not rise as anticipated and at one time, NSW had generating capacity of 76% greater than peak load. No accountability, no transparency, no discussion.
In the 1980s I worked at Sydney Water and one morning, when in the foyer waiting for a lift, the man standing next to me said, ‘This is the time of day I hate’. I asked why and he said, ‘When I get to the office I will have to look at the fax machine and see what the Minister has thought of overnight and what I will have to deal with.’ (The Minister was Tim Moore, who was a relatively environmentally active in the Greiner government). Gradually engineers who had come up the ranks were replaced by politically active managers, who knew nothing about water or sewerage, and staff numbers were cut from 17,500 to about 3,000 staff. The new managers supervised private contractors, the infrastructure upgrades ceased, no apprentice training was done, no unemployment programs ran, and people with lifetime expertise in niche areas were made redundant. Large ‘dividends’ from the ‘State owned enterprise’ were put in state coffers. Politicisation was complete by the early 1990s. This happened all over the public service, Federal and State. We have gone from one extreme to the other.
An article on the ABC asked if economists were to blame for Robo-debt, having decided that a certain level of unemployment was necessary to stop inflation. The obligation for governments to achieve full employment was lost, and as government got smaller and welfare was seen as an evil, those who could not get jobs are demonised. I have written before about the 8 ‘apartheid buses’ that take children from our wealthy suburb to private schools. They make it possible for wealthy kids to avoid contact with much of society. From private schools to universities to political jobs- where is the reality contact? Religion may play a part too. The world is full of sinners who will be judged and rewarded of punished in the end, so there are ‘deserving’ and ‘undeserving’. Just as God has all wisdom, so does the neo-liberal market. The system that allocates resources in a medieval market model, where the townsfolk choose which vegetables to buy, is now assumed to optimally distribute resources with any interference to the model being seen as a disturbance of the natural order of things. Those who can accept that God must decide whatever the consequences seem to find it easy to believe that the market will sort out jobs and income distribution, and they judge the deserving and undeserving.
I am postulating an out of touch, judgemental government exercising its discretion, creating Robo-debt as the implementation of a philosophy. Now, what is the crime in this crass stupidity, and what remedy does the legal system or other system in our society have for this folly? I am not hopeful that there will be significant sanction on either politicians or public servants, though I think the former are far more guilty. I fear that after a lot of tut-tutting and few resignations from powerful positions, there will be assurances that it can never happen again, but there will be no preventive program for next time either. The only hope is for greater transparency, though Labor’s Liberal-lite policy seems against even that.
NACC at least exists now, so we will see what can be done. Helen Haines, the Independent for Indi who pressed for the NACC has an article in the Saturday Paper of 8/7/23 that urges continual vigilance and effort.