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The Forum > Article Comments > The ‘Utegate’ affair and the constitution > Comments

The ‘Utegate’ affair and the constitution : Comments

By David Flint, published 26/6/2009

In the last few decades politicians have sought to undermine the independence of the public service.

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Almost avoided this because of mistrust for the writer' good faith, but glad gave it a read.
There is seems such a chasm between the sentiments expressed within by Stone that we presume Flint concurs with and the working reality as demonstratated in "Cash for Comments".
It throws up at least one very interesting question, tho. Why would members of government have attempted such a risky manouvre as the one outlined by Prof. Flint, when the possibility of reactions from formal censure to leaking, to political interference, would have been virtually inevitable.
There would be a thousand ways the Labor pollies could have helped their ute-mate without setting themselves up for a headache with the public services and later press and parliament.
Indirect evidence that might indicate clearance of them of allegation of wrong doing- or evidence they were exhibiting the same level of stupidity demonstrated since by Turnbull?
Swan appears to propose the general correspondence and contact involving Grant was within the boundaries of what is permissible as regards constituents seeking remedy on a problem?
With the dodgy email, it seems unclear to me still, if the email itself was a concoction and/or something stolen from the public service (real or concoction) and passed on to/by Grech and whether for political rather than whistleblowing reasons (the second would at least have some moral validity, if not legal).
Am interested to note the Flint has a mind after all. Wish he could take this gift from under the bushell he usually hides it, but nice to see it in action concerning problems re separation of powers, politicisation of public service etc, which are features of populist politics over the last generation and have led numerous politicians up blind alleys in pursuit of personal ideological and denial-based agendas and hobby-horses, to the later detriment of all.
Posted by paul walter, Sunday, 28 June 2009 3:44:29 PM
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There is a big difference between leaking and whistleblowing. Or a mole and a whistleblower. One is acting with a purely political bias and with opportunism and the other is seeking to expose serious maladministration, fraud or corruption.

The real issue is establishing a safe third party option for whistblowers to reveal their concerns which unfortunately the recent Whistleblowing Inquiry did not fully recognise. The inquiry continued to promulgate the line of internal approaches to whistleblowing in the first instance. If a public servant was the recipient of such an email his role in the first instance should ideally be to advise the Secretary or other senior officer.

The article makes a good point in reference to the role of the public service. John Stone's comments about the role of departmental secretaries are valid. The public service works for the government of the day without bias and ideally would impart frank and fearless advice.

Part of this process is to advise government of appropriate rules and codes of conduct such as Mr Stone's comments outlined in the article.

It is only a scandal if the government ignores the advice and continues to abuse their power or to mislead parliament.

Turnbull has certainly bitten off more than he can chew and now he is been firmly put in the poo.

Only an inquiry will put this thing to bed and I wish they would get on with it so the rest of us can turn on the news and hear about many more important issues.
Posted by pelican, Sunday, 28 June 2009 4:12:28 PM
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David Flint is dreaming. Australia has not had a Constitution since 1st January 1953, when seven public servants acting in concert decided to close an essential part of its structure, that is Ch III The Judicature, by enacting without a referendum, or any authority whatsoever, a Rule of Court that only a public servant can approve a proceeding in the High Court. I talk of Order 58 Rule 4 Subrule 3, High Court Rules 1952. Without as of right access to the High Court for everyone, there is no practical use for the Constitution.

It is an indictment of every Prime Minister since that they have allowed this to continue, and in 2004, the High Court again enacted subordinate legislation to continue this lawlessness. Reg 6.6 and 6.7 High Court Rules 2004, allow a snotty nosed Registrar to refuse access to the High Court.

It is a measure of the contempt in which Parliament is held in Australia that a panel of public servants feel free to directly contradict two still active Acts of Parliament, the Crimes Act 1914 and Human Rights and Equal Opportunity Commission Act 1986.

The right to approach a Supreme Court is a political right protected by s 28 Crimes Act 1914 and to prevent that is a crime. The crime is compounded when the Judicial Power of the Commonwealth is engaged, which is whenever the High Court is approached, and that carries a penalty of five years imprisonment.

These public servants cannot accept that the International Covenant on Civil and Political Rights is enacted as Schedule 2, to the Human Rights and Equal Opportunity Commission Act 1986. To accept that they have to remove the offending regulations, as contradicting that Act, and stop discriminating.

When public servants feel free to do as they please, there is no real government just a dictatorship. These same seven public servants are rightly held in contempt, because when a High Court majority in 1996, after nine months thought, established the “ Kable Principle”, their decision has been totally ignored by practically every lawyer in Australia
Posted by Peter the Believer, Monday, 29 June 2009 11:23:58 AM
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Australia went from bad dream to nightmare in 1970. The nightmare started when the Supreme Court in New South Wales became a private party place for lawyers, and no common man should enter. The nightmare continued when in 1974, the Family Court was established, so that the fundamental contract upon which society is based, marriage, became nugatory. Nightmares continued in 1976, when the Federal Court of Australia was established and set up as a private corporation, in which only Judges could rule.

In 1983, the right to indict anyone was stopped by the Director of Public Prosecutions Act 1983, when by S 9.5 the Director, a Public Servant was given power to take over and discontinue any private prosecution. That made S 80 Constitution useless. Without that section, which is an acquisition of property on unjust terms, the Constitution would be enforceable, and most if not all Judges and Magistrates would be removed from office. Also in 1983, in direct contradiction of S77 (i) Constitution, the Parliament directed the High Court to refuse to hear nine out of ten applications for leave to appeal. They had no power to do this, but who cares. The homeless care, the unemployed care, and these people should be heard.

This was all reprogrammed by the High Court in 1996, in the “ Kable Principle”. In 2002 in Gerlach V Clifton Bricks, the contempt felt for the High Court as an ineffective guardian of the rights of ordinary Australians, was confirmed, when two justices and the entire Full Court of the State of New South Wales agreed that there was an as of right entitlement to jury trial in Australia. However Hayne, Gaudron and McHugh thought otherwise, and when counsel failed to remind McHugh and Gaudron, that they were part of the majority in 1996, they sided with Hayne, instead of Kirby and Callinan, and instead of waking Australia up, the nightmare continues.

The Federal Court of Australia was given power to interpret the Constitution, but as a lawyers Court, it is also closed to all except the select few. The lawyers republic continues.
Posted by Peter the Believer, Monday, 29 June 2009 11:50:06 AM
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Pelican I agree that there is a big difference between leaking and whistleblowing but struggle with the idea that's its a leak when information is given to the opposition for political purposes and business as usual when members of the government use it for political purposes.

I don't see that there is much case for any communications between the government and public service not to also be available to those who pay the bills (us) unless there are genuine issues of national security involved which hardly seems likely in this case. There would be a need to delay release of some correspondance to avoid everyone becoming an insider before legislation becomes public but that does not mean that the advice which changes are based on should not be available.

I proposed once on a discussion about FOI that perhaps the test of a genuine need to restrict access should be concurrance by the leader of the party in power and the leader of the opposition (or their appointed delegates). Preferably with an extra person in there somewhere to protect the public where keeping something quiet is in the interests of politicians but not the public.

I see no reason why at least the relevant opposition shadow spokespersons should not have access to instructions given by the government and or advice given to the government. How well would children overboard have flown if the opposition had access to the information provided to the government.

The party in power does not pay the bills so they should not be the recipients of the electoral benefits of control over access to government information.

Posted by R0bert, Monday, 29 June 2009 1:27:14 PM
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Under our current system of government I don't think the Opposition should have access to all policy documents during the development process. There is much drafting, redrafting and tweaking of documents before it gets signed off including discussions with public servants, lobby and community groups, parliamentary committees (if relevant) consultants before a new policy is set in concrete. Even then, during delivery of particular programs there may be more tweaking.

If the Opposition got hold of material particularly Cabinet documents it would make the business of governing more difficult if, in the early stages, objectives were thwarted constantly by leaks for political advantage. This goes for both sides.

Unless we established a different sort of government, it would be difficult for the Opposition to remain bipartisan and patient during any consultation processes. Unfortunately our system perpetuates the them and us mentality and party politics is stronger than the idea of representing electorates. That is a different subject, I digress.

It is not possible for someone to leak to the Government of the day because they are responsible for governing and are wholly accountable.

I am all for more transparent government and greater access through FOI. Much of the transparency problems lie within the public service either, at best, covering up or whitewashing mistakes or at worst severe cases of fraud and corruption.

Part of the public service role is to advise governments. Most politicians unless they are stupid (some of them are) won't continue on a dangerous path when advised that path goes against good governance. The problem was in the Howard years public servants were at times too fearful of speaking against particular policies or actions.

A public servant is supposed to act in a bipartisan way first and foremost. The utegate affair is still under investigation and we don't know whether the public servant involved did make attempts to advise the government or whether he went first to the Opposition. Or whether there was in fact any email at all.
Posted by pelican, Monday, 29 June 2009 7:49:41 PM
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