Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

Although we have seen nothing but a crude, ad hominem attack on the opposition by way of defence, this debate actually represents a significant turning point in the government’s exposition on this terrible scandal, because, for the first time, the Leader of the House has explicitly accepted that the funds that were provided through the AWB and through Alia and then derived by Saddam Hussein have actually been applied corruptly to the use of that government and directly against the interests of those who have served in the Australian and other forces that were sent to Iraq.

One of the problems we confront here is essentially a government that is narrowcasting its defence and failing to accept its responsibilities. I think it is fair to say of it, as the Bible says, that there are none so blind as he who will not see. This government has, either resolutely—through its incompetence, negligence or failure to address facts that ought to have come to its attention—or, worse, by some kind of blind-eyed acceptance of the underlying reality, participated in and permitted to occur one of the greatest scandals and acts of corruption that this country has seen since 1901, when the Federation was formed.

We turned blind eyes to what our United Nations and Canadian rapporteurs relayed to us. Can one imagine what would have been the opposition’s response had Labor held government during a period of time in which $300 million was funnelled off to Saddam Hussein and had we then made the decision, as we would have, not to participate in the conflict? It would have been seen as an act of gullibility or of fools—or, worse, as an act of treachery. Imagine how we would have responded to this had it been one of our competitors, either Canada or Russia, that had supplied the wheat to the Saddam Hussein regime and paid $300 million in kickbacks and had we faced as a consequence the prospect of increased risk to our soldiers because of their duplicity.

We learnt of the fact that the government had received warnings at an official level of such directness from so many different accounts in so many different circumstances, and yet the government purport to say, ‘We don’t wish to inquire into whether we were negligent or complicit; we simply want to look at whether the company was guilty of some criminal conduct.’ How would we have responded to that form of conduct?

The Australian today, in its editorial called ‘Credibility crippled’, said of the Minister for Foreign Affairs:

Short of a neon sign flashing “Saddam bribes hidden here” it is hard to imagine what more Mr Downer and DFAT would have needed to comprehensively investigate AWB, long before the Volcker inquiry belled the cat.

It is appropriate to reflect here on the advice that was given to the AWB and not accepted, but it is advice that the government might well have considered also from Mr Sandman, had they sought it—that is, to accept responsibility, to acknowledge mistakes, to apologise for error and to address your underlying responsibilities and not seek to evade them. Instead, what was the response that the AWB took? It was to pursue a narrowcast defence—and on whose advice?

The person on whose advice they relied is now the Director-General of the Australian Security Intelligence Organisation but was then the principal foreign affairs adviser to the Prime Minister. What that man advised, and what the course of conduct of the government undertook, was to ‘keep your response narrow and technical’. Moreover, not only has that advice been followed but that is what the government has done in the construction of the inquiry which followed. Its terms of reference have been kept narrow and technical.

What is the importance of the terms of reference? Chief Justice Young in the Equity Division of New South Wales in a recent case regarding the Police Integrity Commissioner cited Hallett’s book on royal commissions and boards of inquiry. I will take the House to that passage because it is absolutely crucial to an understanding of what is going on:

Hallett says (p52) that:

The drafting of terms of reference for an inquiry is of importance. If the terms of reference are carefully drawn, so that the main area of the investigation is precisely defined, the inquiry will benefit not only in the time taken to perform its functions, but also because the report will deal only with the central issues and not be concerned with peripheral matters.

It goes on:

An inquiry can be left floundering in a wilderness of possible avenues of investigation and be forced by constraints of time to make its own choices—

and then the important words of qualification—

which ultimately might not be in accordance with the desires of the executive which appointed it.

Most tellingly, in this House today the Prime Minister explained his reason for a refusal to expand the terms of reference by indicating it was not his desire to permit the commissioner to move away from the area they had designed so narrowly for him to inquire into—that is, the criminal conduct and any associated criminal conduct of entities or Commonwealth officers. But how narrow is that?

Let us take the scandal of the immigration department and the Rau case. Could we possibly conceive that an appropriate government response to that would be to establish the Palmer inquiry with responsibility only to look at whether some government minister or the department had committed a criminal offence, when we know that they are locking up people who suffer from mental illness? When there are scandals or corruption, for example, that we know a negligent police commissioner has permitted to grow and fester under their feet, where there are outraged community members because they know that the police have failed to follow up effectively some area of great public concern, would we satisfy ourselves to ask whether the police commissioner was guilty only of a criminal act? Or would we say, ‘Is his management capable, effective, not infected by negligence and doing all that is appropriate and necessary in the public interest?’

That is exactly what Commissioner Cole is forbidden from reporting on: forbidden from reporting on whether the government and its agencies were negligent and forbidden from reporting on whether they complied with their statutory obligations under regulations when they were required to give approvals for wheat exports. The commission is forbidden from assessing those matters and reporting its findings. The important point I make about this is that, where such terms of reference preclude such findings, they simply cannot be made, and that is the gravamen of the Shaw decision. That was the outcome of that decision, which we all know was an enormously controversial matter. It perhaps reflects no credit on the circumstances in which it arose, but the truth is that we know the consequence of narrow terms of reference, we know why the terms of reference were so narrowly cast and we know why the government so resist their expansion.

Is it possible to say, where corruption of this nature has been indicated in an area of public performance, that it is the responsibility of the opposition to make judgments, when we were relying on the advice of government about those facts, as we were on their advice on the invasion on the security background that was later proved to be an error? Negligence, incompetence and poor administration can lead Australia into making bad decisions on the safety and security of troops. The probity of any decision that is so undermined then comes into question, but it questions the probity and judgment of those who make it and those who assert it. It does not affect the credibility of the oppositions that rely on it, when they are briefed to that effect.

In conclusion, I am deeply disturbed by the sense that this government portrays that a matter of such grave importance can be swept under the carpet and not examined as to the substance, as to whether there was negligence, as to whether there was complicity and as to whether some judgments now need to be made about the administration of the department so that we do not have blind eyes turned to corruption under our noses, so we do not act in circumstances blindly in adherence, where we do not wish to see the folly or error of our own acts.

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