Pink batts royal commission could rebound on Abbott

If ever there was anything with a potential to be an own-goal, it would have to be the Abbott government's decision to establish a royal commission into the home insulation program, and the culpability of politicians and bureaucrats for the deaths of four installers, three by electrocution and one from hyperthermia.

The commission, headed by Ian Hanger, QC, with an array of counsel to get to the absolute bottom of the matter, will probably leave no skein of glass fibre unhandled, or foil batt unstroked.

Hanger, an old regular at inquiries, has promised he is not going to reinvent the wheel, or duplicate the efforts of any of the five or six Commonwealth inquiries already held, or the consequences of the over-ended and intensely political state inquiries that have reported. But he seems to think - or at least said at the opening of his own lawyers' picnic on December 23 - none of the inquiries so far has resolved the important question: ''Put simply, what really went wrong, what made it go wrong, and how can this commission assist government and industry to ensure circumstances like the ones we face here don't happen again.''

Counsel assisting also promised that no single document anywhere would remain unexamined: ''We will not necessarily adopt previous reviews at face value, and you [Hanger] are not precluded from exploring some particular issues in more detail, or calling evidence which might run contrary to evidence heard or received by those other persons or bodies, or indeed disagreeing with recommendations made by them, where that is appropriate and permissible.''

Representatives of relatives of the victims are amply provided for, and the Commonwealth will be represented. In due course, no doubt, there also will be, or ought to be, counsel for various politicians, state governments, and perhaps employers. Counsel assisting - no doubt expected by the Abbott government at least to be a combination of prosecutor and avenging angel - has been appointed by Attorney-General George Brandis, rather than the commission itself.

It is difficult to see any natural factors, other than jurisdiction, restraining a big increase in lawyers' incomes, particularly in Queensland, where the inquiry will base itself.


As it happens, some already in the trough have prospered from previous unlimited and unrestrained inquiries going all the way back to the Fitzgerald inquiry into corruption in Queensland.

There will be ample opportunity for distressed relatives to emote all over the place in their search for someone to blame by way of finding ''closure'' for the appalling mismanagement of the practical aspects of the program. By the end of the affair, the quite natural sympathy many feel about their loss might end up being seriously strained by some of the preposterous notions they have already put abroad. It has already reached that point with me.

In normal circumstances, those who ought to be accepting the primary blame would be the employers of the dead lads - the people who gave them the job of fixing the insulation in ceilings without making any effort to train them in the basics of such a job, or even, apparently, in the sense of a proposition, if it needs to be instilled, that a person who puts a nail into electrical wire runs a serious risk of being electrocuted.

Secondary blame might attach to state building and trades authorities, which were doing very little in the way of supervising or establishing standards over building tradesmen in their jurisdictions. It is not entirely clear why this deficiency should have crystallised in 2008, when the home insulation program began, since people have been installing ceiling insulation for decades, with some unskilled and untrained employees giving themselves shocks in the process. The cynical lawyer,

however, might think that a combination of legal and political deep pocket theory created the perfect conditions in 2008: everyone could unite in blaming Kevin Rudd, or Wayne Swan, Mark Arbib or Peter Garrett, and/or public servants in Canberra for everything, in the meantime exonerating themselves from any blame whatever.

Although there has been a good deal of finger pointing at some of those most responsible, the Commonwealth ended up accepting most of the blame. This resulted from a double incompetence. First, neither Rudd, as prime minister, nor his ministers could do an even slightly adequate job of pointing out that an ultimate paymaster - at several removes - for a building job is not responsible for the ineptness, incompetence or culpable negligence of the person engaged by a householder to do the job. If it were otherwise, one ought to be able to sue the minister for health for the incompetence of a private pharmacist, or the Commonwealth minister for transport for tripping over a footpath constructed by the state agency under Commonwealth infrastructure money.

Abbott is waking a sleeping dog.

However, the prime minister got bored with defending the performance of himself and other ministers, and wanted people to ''move on''. As so often happened with Rudd (or Gillard) decisions, this backfired, because Abbott, in full cry, redoubled his efforts to make the scheme an example of waste, mismanagement and culpable, perhaps criminal, negligence. He was ably assisted by a crusading and uncritical chorus of News Ltd papers.

Abbott has insisted on a personal responsibility by ministers, including Rudd, all along. In early cry, he was virtually accusing them of industrial manslaughter, or wilful and culpable negligence. He has called the inquiry, against bureaucratic advice, not because he really believes that there are further lessons to be learnt from the affair - or that an inquiry of the type in prospect would have any capacity to discover them if there were - but because he is confident that this inquiry will, in fact, blame Labor ministers. He wants future Labor regimes to wear this moral responsibility: Don't vote Labor - it kills kids.

Governments do not, usually, hold inquiries into questions where they do not know (or at least think they know) the answers. Even wise politicians - as well as experienced politicians - remember this, and can think of inquiries which have gone seriously astray in the past, ending up scorching those who set them up.

Yet the case against the ministers, and even the case for vicarious liability by the federal departments, is far from clear, and it is by no means certain that Abbott, or Brandis, knows anything taking further what is already on the public record after many inquiries. That material would not hang a dog, even in Queensland. It is doubtful that it could be used to find even civil liability or contributory negligence against the Commonwealth.

The inquiry could say, yet again, as a Commonwealth auditor-general, a former Commonwealth departmental secretary, and a parliamentary inquiry (as well as inquests) have already said, that the program was, from a Commonwealth point of view, a rush job, not very capably managed. It might discover, yet again, that even the practical management of operations was compromised by the real purpose of the scheme - which was to rush money and liquidity into the system, in all regions of Australia, at the height of the global financial crisis. Treasury and Finance, and even the Department of the Prime Minister and Cabinet, were more interested in getting money out quickly than in devising a good scheme - even if they meant it to be useful and effective as well. In much the same way, the school hall programs were rushed into action.

With all of the benefit of hindsight - and one can expect that Hanger, even from 1200 kilometres away, will have plenty of that - we now know that the Commonwealth should never establish any program whatever without surrounding it with great quantities of red tape, rules, regulations, prescriptions, proscriptions, manuals and warnings. Bureaucrats and ministers - even the prime minister - should anticipate, warn against and effectively prevent every imaginable silly thing a builder - or, in due course, any entrepreneurial chancer - could do. Copious warnings should probably be in at least 16 languages, including Pitjantjatjarra.

No doubt it is for just this purpose that Abbott has set up a taskforce to rid the Commonwealth of unnecessary and cumbersome red tape, particularly in areas which are basically state responsibilities anyway.

Some will listen very carefully to statements made, either by counsel for the Commonwealth, or by counsel assisting, which attempt to set any new standard for ministerial responsibility. It will be new ground to have such a standard for work which has been completely contracted out to others, by householders, under regimes which are supposedly under the regulatory and supervisory structures of ''sovereign'' state governments. This could end up being a standard used to hang a future minister - perhaps an Abbott one.

The inquiry breaches convention in being into actions by a previous government. By tradition, new governments do not do that: indeed, by convention, they do not even have access to the records of a previous government. The ''let sleeping dogs lie'' rule has a basis in common sense that even Abbott ought to appreciate. All the more so when, as with the insulation program, the previous government (more properly, the government three back) has already been seen to have paid the political price for its mistakes.

Rudd got to Labor leadership (first time about) in part for how he exploited the wheat-for-oil scam, with suggestions that Coalition ministers had been deliberately blind to, or even complicit in, misconduct by AWB, the company that succeeded the Australian Wheat Board. Howard established a tame royal commission with terms of reference so restricted that it could not seriously investigate the knowledge of politicians. Even that inquiry raised serious doubts about politicians that Rudd said should have been further investigated. He was right, too.

But when Rudd became prime minister he did not establish a royal commission or any other sort of inquiry. Nor did Malcolm Fraser into the overseas loans affair - indeed Sir John Kerr insisted that he disclaim any such intention before he commissioned him. Later Fraser embarrassed his then attorney-general, Bob Ellicott, into resigning when Ellicott, against direct cabinet instruction, attempted an inquiry by himself.

(I remember the events, in 1977, well, if only because Ellicott, in his resignation, thought the supreme act of Fraser's disloyalty to him had been the briefing of me by the prime minister's office.)

Abbott has created a precedent for unlimited inquiries and inquisitions into previous political scandals. Imagine if Bill Shorten announced that he proposed to call a royal commission into the propriety of expenses claims by Coalition members, or into the political workings of Operation Sovereign Borders. I can't wait.