Spare a thought for Michael Coutts-Trotter, the Secretary of the NSW Premiers Department. He has been asked, in effect, to decide which of several versions of how John Barilaro was appointed "on merit" to a cushy $500,000 trade commissioner job in New York most closely approximates the truth.
One way or another, someone - a premier, a minister, perhaps a public servant - may have to fall on their sword. Different accounts of what occurred - and we have not heard all of them yet - cannot be reconciled.
What happens will be closely watched in Canberra, and not only from ordinary curiosity about the NSW political road toll. One does not have to go very far into the recent history of Commonwealth government to find political interference in decisions that should have been made by public servants. It was a Morrison government speciality - the more remarkable for the way in which ministers, from the then prime minister down, were entirely unembarrassed when sprung.
Even now, no Coalition political survivor has yet expressed a word of regret about the culture of jobbery, partisan rorting of public money and abuse of duties of public stewardship. They ought to - if only so that they can put on their angry faces when they accuse the new Labor government of doing the same.
Some survivors - Barnaby Joyce for example - have warned of the end of civilisation if impending integrity legislation limited its continuance. The call for public integrity legislation - as much, if not more of a cause among Greens and independents as for Labor - has come as a reaction to obvious cronyism, responsiveness to party donors and mates, and partisan appointments.
With Commonwealth integrity legislation - promising to be tough and standard-setting on the way - why would Commonwealth political observers have their eyes fixed on the Barilaro case in Sydney?
First, it's because NSW already has integrity and anti-corruption legislation - as well as processes for investigating it that the Commonwealth means to emulate. The Barilaro appointment has yet to be referred to ICAC, but a referral seems obvious. He won't be the target. It will be about how he was appointed. But I wouldn't have hopes for much tenure in his new job. During Barilaro's political career, he made no bones about thinking that being in government gave authorisation to spend the spoils as one saw fit. Though this is not the alleged sin currently under investigation, an ICAC inquiry into his post-political appointment would provide a fascinating insight into his buccaneering style.
The task confronting Coutts-Trotter involves the risk, for others, of political death. In theory he could even bring down his political master, Dominic Perrottet - a good conflict-of-interest reason why people in his position should refuse to accept commissions to perform political inquests - unless they plan to follow the example of former Commonwealth PM&C boss, Phil Gaetjens.
Another good example of the problems of a public servant having power of life and death over a political matter can be seen with the case of Amy Brown, from the department Barilaro once controlled. She put into action a Barilaro announcement of the creation of four trade commissioners, hiring a head-hunter firm to produce a shortlist for a departmental panel to interview. Early interviews identified a worthy candidate for the New York job; there are claims this woman was told she had the job.
Then suddenly the appointment was off, and there are reports the worthy candidate was paid compensation for not getting the job. And, suddenly, at least according to the correspondence, if not the ministerial accounts, it was decided that the external appointment process would be aborted, with the appointment being made by ministers. The headhunters were told this the day before Barilaro announced he was resigning as deputy premier.
The job was later readvertised, and Barilaro was interviewed for the position by a panel that included Ms Brown. His position as the successful candidate was decided soon after, but was not announced until recently. The impression was given that he had emerged in an ordinary way from an independent open selection process.
Ministers asked questions insisted that it had not involved ministers. Nor had it been through cabinet, even by way of notification. Nothing to see here, folks. But soon there was an unravelling, not least after the Legislative Council demanded departmental correspondence about the process. That is what Coutts-Trotter will have to review.
Coutts-Trotter is not in a Phil Gaetjens situation. Morrison was never silly enough to promise that the results of any report, if received, would be able to be seen by the public, whether for the purpose of considering Morrison's integrity, or the thoroughness and diligence of Gaetjen's investigation.
By contrast, Perrottet, the NSW Premier, has asked for a speedy report on the Barilaro appointment, and has promised that after he has received it, it will soon be on public issue. No doubt that reflects some confidence that the inquiry will show none of his fingerprints on the appointment. Indeed, he would be seriously embarrassed if it were to show that he had any advance knowledge of the appointment, or of the process by which it occurred.
Perrottet initially distanced himself from any involvement in the appointment, even of having rubber-stamped a decision made by others through the cabinet. He said, probably on advice, that the decision had been made by a public servant after interviews by a panel, without any political involvement at all. Put simply, it had been decided that Barilaro was the best man for the job.
The eyebrow-raising began after people wrestled with the notion that Barilaro could be the best man for such a job. Then there was the fact Barilaro interviewed for the job only a short period after resigning as deputy premier.
We don't know if the NSW inquiry will overshadow the Pezzullo inquiry into the behaviour of Home Affairs officials, navy officers and Border Force over the disclosure on election day of the interception at sea of Sri Lankan boat people. That news - the timing of which showed every evidence of contrivance for election purposes - was promptly, at prime ministerial direction disclosed to Liberal Party campaign people who sent telephone messages about it, quoting navy officers, to voters in marginal seats.
Judgement should be withheld until all the facts are known - whether from the publication of the much-awaited Pezzullo report, or from glosses supplied by others, including politicians, with an interest in the outcome. As yet, the government has not committed to a public report - and one can imagine any number of guilty parties insisting that national security considerations within it mean the public should never know. On the other hand, the Labor government - intended victim of the extremely dirty work, which is of Zinoviev letter proportions - was not, and is not amused. It is in no mood to forgive anyone who ought to have a guilty conscience, or who conveniently absented themselves at vital moments of its execution.
Nor should it be. Some public service observers have deduced that the new government has no plans for a reorganisation of Home Affairs, other than the already announced shift of the AFP back to the Attorney-General department. When announcing new departmental secretaries, Prime Minister Anthony Albanese issued a full list of the present complement, which included Pezzullo and a number of others about whom questions have been asked, such as Brendan Murphy.
I should be slow to make such deductions. Pezzullo was once a Labor staffer (for Kim Beazley Jr and Gareth Evans) but is short of contemporary admirers, whether for his personality or his management style. On the other hand, those weighing his future will doubtless be considering the "message" peremptory sacking would send to asylum seekers, no doubt much amplified by the opposition. The Pezzullo report will tell what happened, including when, why and who was involved, but it will also say something about departmental leadership, supervision and culture, and, it is to be hoped, something about the value for money, and timeliness, of the department's intelligence apparatus.
NSW Liberals have a bit of a thing about ICAC. It was, more or less, a Liberal Party brainchild - seen as a counter to seemingly obvious corruption in the Labor government of the day, three decades ago. Perversely, some thought, incoming Liberal premier Nick Greiner, popularly regarded as a cleanskin, was its first victim. Later he could claim that he was "exonerated" from a corruption finding by the NSW court system, but, whether that is true or not, it was too late. He was right out of politics.
Barry O'Farrell, another popular and decent Liberal premier was the next victim, after he realised he had misled ICAC about whether he had received an expensive bottle of wine from a person who had dealings with government. He need not have gone, and no corruption finding against him was in prospect after it became clear that his memory was at fault, but his sense of honour told him to go. And he did.
Gladys Berejiklian faced continued questions about pork barrelling. It emerged that one of the beneficiaries of her largesse was a secret lover, a man already the subject of adverse ICAC reports. Her supporters, and Scott Morrison in opposing a federal ICAC, have created a legend of ICAC abuse of power - a kangaroo court. She said she felt impelled to resign because of the prospect of invasions of her privacy and her realisation that those continuing inquiries would be a total distraction from her premiership. But the affair was a sideshow. ICAC was asking hard questions about open pork-barrelling, and it seemed clear was concluding it was improper.
But it's at the Metherell affair that those thinking of Barilaro are looking.
In 1992, Terry Metherell, a Liberal minister who had quit his party and gone to the crossbench in a huff, made it known that he was willing to resign from his safe Liberal seat if given a suitable public service job. Then premier Greiner thought it a good deal and arranged the creation of a job in the NSW public service, then engineered the appointment of Metherell to it.
An investigation by ICAC found the deal - which had provided Greiner with a political benefit - was corrupt within the meaning of ICAC legislation. Greiner resigned as premier. Well after Greiner was right out of politics, the NSW Court of Appeal decided - two judges to one - that the thinking of the ICAC commissioner was flawed. He had not adopted a legalistic and objective approach in deciding whether Greiner could have been sacked for what he did.
The presiding judge in the majority was then NSW chief justice Murray Gleeson, later chief justice of Australia. But his decision has been much criticised in the academic legal literature for being at least as subjective as the ICAC commissioner's, as well as for its being devoid of guidance about what the correct approach might be. A governor can sack a premier for various forms of misconduct, but there is nowhere in the world that the process by which this might happen, or the "objective legal" criteria, is described.
I suspect all the judges thought that while Greiner's actions were wrong, they were not so wicked as to deserve dismissal. Worse things had happened at sea. There was a long history, at all levels of government, of improper political interference in public service jobs, but it was only by a fairly recent "new morality" in public administration that it was seen to be a serious wrongdoing. Though there was evidence of tightening standards of probity in public administration, Gleeson was no pioneer of articulating the trend.
The judge in dissent, justice Dennis Mahoney, was of the new trend. He thought the abiding principle was that public officials should not use their legal powers for private gain, even political advantage. If anything, the higher one was up the tree, the higher the standard expected. But he fell short of seeing the finding as a moral judgment on Greiner. Greiner and his ministerial colleague Tim Moore were "good men who have, by an error as to the seriousness of what they were doing, fallen foul of the ICAC Act," he said.
Thirty years on, many observers are not so kind. One way of putting it is that the new morality has become tighter, in part from public dismay at the very bad standards set by politicians throughout the western world, including the United States and Britain.
Mendacity, malfeasance and misbehaviour that would have meant a political end only a generation ago, have become more common. More and more governments, here and abroad, have integrity and anti-corruption bodies. Many of those concerned with the integrity of public institutions - including the judiciary - are taking a stronger line on the notion that politicians and public servants are stewards and trustees of the public interest, who can be guided only by public interest considerations.
That need not require being agnostic about the interests of particular groups in the community. But at the least it involves equal space for every snout at the trough.
Jack Waterford is a former editor of The Canberra Times.
Jack Waterford is a former editor of The Canberra Times.
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