For not the first time in his legal career, Ian Hanger, QC, has disappointed customers who gave him a brief, expecting that he would focus on the object in view of those commissioning him. Hanger, as Royal Commissioner into the roof insulation scandal, had been intended and expected to write a bill of indictment against the Rudd government and, preferably, to allege that a team of ministers and federal public servants personally killed four hapless youths, who died from foolishness of which someone should have warned them.
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Instead Hanger has delivered yet another reprise of facts already well known, added nothing of substance to general but overstated allegations of ministerial or bureaucratic incompetence, shot a few of the wrong targets, missed some major ones, and generally had a damn fine time presiding over a $20 million lawyers picnic for no net gain to anyone.
Not to the Coalition, obsessed by the idea that supposed government negligence may amount to industrial manslaughter; not to the victims, nor to their families, still being encouraged to blame evil people in Canberra rather than silly people closer to home for their personal tragedies. And of little value for money as a review of political or bureaucratic management theory either.
The stage is still set for similar debacles -- if debacles they are -- and it is as likely that they will be perpetrated by the current Abbott government or its Coalition successors as by Labor ones.
Hanger has, of course, heavily criticised the Labor politicians and the bureaucrats, and blames them for the needless deaths by the "but for" test. But for an array of government decisions, there would never have been a program, it would never have been devised to be in action quickly, and but for an array of choices made, primarily by bureaucrats, to go the market rather than a closely regulated approach, the boys would not have had jobs, might have been properly trained by their employers, might have been properly supervised by state regulatory authorities, and might be alive today.
One could not hang a federal dog, let alone a minister or administrator, on the evidence now in view. One could not even found a common law action for negligence. If Labor politicians have been abject in their apologies and empathy, and if reparations are paid, it is for political, not legal reasons.
It's useful only as political wind designed to have us keep in mind how awful and dysfunctional the Rudd government was, for what that is worth. But for those who like that sort of thing (me included) it's not even a particularly good example.
The Rudd government was in many respects, awful and dysfunctional, and the best testimony of that is probably the memoirs flowing from its former ministers, rather than Royal Commissions created against convention to serve partisan political purposes. Indeed, two of the items most frequently chosen to illustrate the ineptness of the Rudd government -- the roof insulation and school halls and libraries scheme were -- despite News Ltd and Coalition propaganda -- reasonably well organised and managed, even by coalition standards. The more if one takes into account (as one should, although Hanger seems to think otherwise) the fact that some of the pressing need for urgency which had the schemes confected and implemented more quickly than was desirable, was caused by a global economic crisis that was seriously threatening our economy.
But for measures designed to spread liquidity into the economy, and to keep people in the building industry in work, unemployment might have risen to 10 per cent and Australia might have been sucked into the sort of stagnation from which America is only now emerging, and from which most of Europe has yet to emerge. In lamenting the twin, and according to him irreconcilable aims of these stimulus programs, Hanger sits comfortably, with the full benefit of hindsight, noting what he thinks were silly slips along the way.
His manner of doing so suggests that he is hardly up with the modern management literature, or the literature of responsibility, or that he has the business or administrative experience to actually know what went wrong. The post-mortems of the affair contain many continuing rent seekers, special pleaders, people with nutty ideas about federalism, and people whose opinions never change even when the evidence proves them wrong over and over again. There is also a body of people who heed only evidence that confirms grumpy old opinions they have long held.
These, as well as those trying to dodge any blame were about, mostly (given the Commonwealth refusal to represent any public servants or politicians, but to pay for the representation they hired) represented at taxpayer expense, pressing their cases, opinions equally with facts. Hanger, though a lawyer professional at very expensive post-mortems, has never got his fingers dirty enough to seem to have an instinct for judgment about whom to believe, or how government really works, or should work. One might expect better, given that most of his rich experience in practical maladministration has been in Queensland, with which rather specialises in it.
Whether considered as a disaster or a moderate success, the roof insulation program suffered not so much from incompetent public servants, or from public servants supposedly consumed with process rather than practical outcomes. It suffered from over-management by central departments, themselves with powerful agendas, and the desire of politicians to get programs quickly on the ground. There is nothing necessarily wrong about having high expectations, and of impatience with calls for delay, although in this case, as in many others, public servants were not very effective in having politicians own risks they had created.
The agendas of central agencies were not necessary bad agendas, but they owed little, as such, to the desire that insultation be placed free in several million houses as a make-work program for the building industry (and, incidentally, though Hanger does not mention this, state and local building inspectors and occupational health and safety people) who might otherwise have been under or unemployed.
Treasury wanted to get the money out fast, to stop the economic machine from seizing up. Frankly, Treasury would have been happy enough about a mailout of cash to every citizen (as had already happened earlier), but it thought that the insulation scheme had the benefit of distributing money into every hamlet and villages, incidentally achieving a possible public good by lowering heating bills.
Finance, too, was trying to push the package out, but was focused in having its design conform with one or other of its many management theories about the ideal form of a grant scheme. Originally there were plans to involve the states, supposed to know something about practical schemes, but in many places, including Queensland, not famous for efficient delivery. Then Environment devised a regional system of preferred providers, who would, no doubt, subcontract out much of the work while taking the responsibility for matters such as industrial safety. Finance, in its deregulatory mode, worried that this was not market friendly and could cause local monopolies.
PM&C, and separately, the Co-ordinator General, Mike Mrdak, were juggling opinions and priorities about whether this and other schemes would be implemented through COAG, could pioneer payment capacity in Social Security or Medicare, and in "co-ordinating" it with a host of other matters. In effect they were imposing decisions on others who knew more than Treasury, Finance or PM&C's limited cops of industry sources, and who expected to "own" a project that was now in quite different shape. But even Environment -- essentially a policy department -- was not expert in program design or implementation, and was anyway stretched with a host of other urgent new projects.
Progressively, but with very little reference to those actually to be in charge, little committees changed fundamental aspects of the way the scheme worked. Many changes occurred because of "helpful" instructions, dressed up as "suggestions" of Finance and PM&C officials, who almost entirely escaped criticism from Hanger. He suggests that Environment bureaucrats did not communicate clearly enough how pissed off they were, but it was obvious enough.
There are good criticisms of what occurred, but they are not the silly ones about a supposed public service focus on process, at the expense of substance, which seems to come more from 1980s lunch chat than the material before him. Likewise with remarks about working hard to no purpose, which may be better reflected back upon the commission itself.
But he did make some good, if not original, contributions about the tendency of well-paid consultants not to consult, or take charge, but to "become a part of the team". All this creates is a more expensive way of playing badminton with responsibility and "advice".
Indeed, much more serious in this case that Hanger's worry that public servants were tailoring advice to what ministers wanted to hear (of which there was little evidence) but of consultants not being independent and, perhaps not being that expert either. That may be an occupational hazard, but it the more dangerous when consultancies are distributed by people who know exactly what they want to be told. That was a bad enough problem under Gillard and Rudd (and before them Howard); but it is getting signally worse under the Abbott government, addicted to regular use of political cronies of known opinions, trotted out as independent evidence-based conformation of the government's own prejudices.
Mr Hanger was a little concerned that public servants were not very helpful to him, rarely volunteering anything, and confining themselves to answering questions. By that he did not mean that witnesses were being dishonest, but that they were "holding back" and being defensive in the evidence they gave. They were particularly cautious when asked about blame, or to comment on the role of politicians.
Hanger wondered whether this could have been a result of inquiry fatigue. Or perhaps, a manner of holding one's nose as one was being used for political purposes. If any such perception were held, "It ought to have become obvious quite quickly that such a perception was completely baseless," he said complacently.
Hanger decided that the Auditor-General's report, the Hawke report, and the report of a senate inquiry into the scheme raised potential issues of parliamentary privilege. On this account, he ignored their conclusions in coming to his own. He seems not, however, to have ignored the opinions of two anonymous former senior public servants, who gave him the benefit of their views, confidentially, if without having to submit them to what passed at the inquiry for critical scrutiny of "contestability".