Old Commissioner Cole isn’t a merry old soul

Only last week I was speculating about why Terrence Cole QC hadn’t sought an extension of his terms of reference to enable him to make substantive findings and recommendations about the conduct of Ministers and public servants in the AWB affair:

I would have expected that Commissioner Cole would have sought the extension of his terms of reference by now, and also flagged the potential adverse findings. I wonder why he hasn’t. Perhaps there is even more damaging evidence still to come, and he’s waiting until the case for expanded terms of reference is so overwhelming that Howard will have no political choice but to accede to the request.

Well, now we know the reason for the delay. Cole has no intention of asking for any such extension:

It would not be appropriate for a commissioner to seek amendment of the terms of reference to address a matter significantly different to that in the existing terms of reference. It is of course open to the executive government to change the terms of reference.

Predictably Howard wasted no time in indicating that he has no intention whatever of doing any such thing. Nor did he waste any time in deliberately confusing the issue of just what powers Cole does presently possess:

(Tim Dunlop posts to similar effect)

“If the commission were to find that I had been told – or the head of my department or Mr Downer had been told – that the kickbacks were being paid and we did nothing about it … the commissioner will make a finding of fact that we did know and that would be clear evidence that we have breached our international obligations.”

That is simply incorrect in law. It’s certainly true, as Howard has previously asserted, that the Commission can obtain government documents and question public servants (and even Ministers if it so chose) under its current terms of reference. But that is simpy because the law takes the commonsense position that you can’t artificially confine the scope of any royal commission’s enquiries because you never know whether apparently tangential enquiries will uncover something directly relevant to the terms of reference (see cases like Lloyd v Costigan and Harper v Costigan). But that certainly doesn’t mean that the Commission can then proceed to make substantive findings (as opposed to passing observations) or recommendations outside its terms of reference. And the current terms of reference do not, even with extensions, permit findings or recommendations in relation to Ministers or public servants (short of an outright criminal conspiracy with AWB).

Of course, Costigan is a classic example of a royal commission that did go way over the top and discredit itself, as Sir Laurence Street commmented on last night’s 7:30 Report:

I’m not going to be specific, but we all can recollect a royal commission that got way, way out beyond its original terms of reference, as the commissioner followed various rabbits down various burrows. That’s not what a royal commission is about. A royal commission is a specific – or a commission such as this in the federal arena – is a commission to inquire into a particular topic and report back to executive government.

But the Costigan situation bears no relationship to Cole’s position. Costigan ended up investigating a huge raft of matters (including tax evasion and, notoriously, alleged criminality by the late Kerry Packer) that had no connection whatever to the Painters and Dockers Union he was originally appointed to investigate. Cole was appointed to examine AWB and its activities in relation to the UN oil-for-food program in Iraq, and it’s only being suggested that he seek an expansion of hs terms of reference to allow him to make findings and recommendations about the role of Ministers and public servants in relation to that very subject. Street’s attempted analogy with Costigan is superficially clever but utterly irrelevant.

The obvious question arising from Cole’s indication that he doesn’t intend seeking powers to pursue Ministers or public servants is just why this would “not be appropriate”, when the evidence uncovered so far points squarely towards a calculated exercise by both Ministers and public servants in wilful ignorance and then cover-up of AWB bribery on a massive scale? Even the beleaguered ABC seems unwilling to pursue this question, with last night’s 7:30 Report blithely trotting out Sir Laurence Street to provide cover for Cole:

His duty is to carry out the inquiry as it is laid down in the terms of reference. He’s not the guardian of all aspects of public interest associated with this topic. He’s been given a specific task and his duty is to get on with that task and make his report. I may say a duty that he’s discharging with admiral balance and, as one would expect, integrity. He’s a judge of enormous stature, of shining integrity and he’s doing I think a very praiseworthy job in a difficult political climate.

More surprisingly, the ALP’s chosen silk Bret Walker also seems to take an unduly conservative view:

“It is invidious for a person required to be rigorously impartial simultaneously to be considering let alone making suggestions for new or different matters to be the subject of his inquiries.”

In fact, I know of no case or legal principle that suggests a royal commissioner would run the risk of having his enquiry legally tainted by “reasonable apprehension of bias” through requesting an expansion of his terms of reference where the evidence is already clearly leading in that direction. It’s precisely what Tony Fitzgerald QC did after his enquiry into specific aspects of police corruption in Queensland led to bagman Jack Herbert and his astonishing revelations about corruption to the very top of the then Queensland political system. No-one of any stature, either then or at any time since, has suggested that Fitzgerald acted improperly or was biased:

The initial terms of reference limited Fitzgerald to looking at five criminal identities fingered by the media and any benefits or favours they may have extended to police over the previous five years. Another matter best described as a complete red herring offered Fitzgerald the opportunity to crucify a journalist should he so desire. (He didn’t)

For the corrupt, the alarm bells started ringing when Fitzgerald went back to the government after only a month in the chair and said he wanted to go back 10 years and add a crucial new clause four – the freedom to pry into “any other matter or thing appertaining to the aforesaid matters”. A year later Fitzgerald went back again to have clause four amended to allow him to pursue any other matter whether it appertained or not.

The amendments blew the inquiry wide open and in due course the inquiry blew 30 years of National Party government to kingdom come.

The only relevant distinction between the Fitzgerald situation and that in which Cole currently finds himself is that the evidence so far adduced before Cole only implicates Ministers and public servants in gross and wilful negligence and arguable breaches of domestic civil law and international law in relation to AWB, whereas Fitzgerald had clear evidence of criminal activity at the political level once Herbert “rolled over”. Perhaps that’s important, given that the Cole enquiry is currently limited to looking only at criminal activity. But the fact remains that Cole could properly seek an expansion of his terms of reference if so minded, and the fact that he declines to do so will inevitably leave a serious and permanent question mark over his enquiry, and cause some to ponder whether his approach might have more to do with his 50 year acquaintance with John Howard than with maintenance of “admirable balance” or “shining integrity”.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Geoff Honnor
Geoff Honnor
18 years ago

As I commented on your earlier post, the thrust of the media/ALP approach to this matter has been entirely about getting a Minister – the AWB boys appear as semi-relevant bit players in this scenario – but even counsel assisting the commission has owned the improbability of so doing. It’s turned the whole thing into a politics-as-usual circus and the punters have tuned out. Rudd was reduced yesterday to waving the Australian’s editorial around as some sort of moral imprimatur for Downer’s dismissal. Surprisingly enough, it didn’t work.

What does emerge, with blinding clarity, is that DFAT and the PM’s Office should have known what was going on and I suspect that the question of ministerial culpability will ultimately rest on a judgment around the degree of negligence therein rather than any “criminality” per se.

But I’m inclined to wait and see what finally emerges before rendering a final verdict. In the meantime, I’d be hesitant about ascribing corrupt motives to Cole, Ken.

Homer Paxton
Homer Paxton
18 years ago

John Howard was being interviewed on the 7.30 report and I asked the people at our place what word would best describe him.
Shifty was the almost unanimous word.
He did not look comfortable at all and his body language was quite negative.

18 years ago

Interesting post Ken. So, what is your conclusion as to the motives here?

Re Geoff’s point about the so-called punters, and leaving aside the mysterious ways and means by which everyone always has a lock on what these mythical creatures think, I am at something of a loss as to why this is assumed to be such a telling point, so telling that everyone keeps telling it to us? Is it to be assumed that politcs and policy should be determined by the number of talkback radio calls it attracts?

And of course AWB has been reduced to a bit part, partly because everyone knows its already gone, and partly because finding a crooked company is nowhere near as significant as finding a crooked government. What’s the surprise here?

Geoff Honnor
Geoff Honnor
18 years ago

“What’s the surprise here?”

No surprise at all. It’s politics as usual with all that entails. Kevin Rudd last night was asked by Tony Jones if he’d call for the resignation of Paul O’sullivan from head of ASIO after the allegations made to Cole about O’Sullivan coaching AWB execs to evade Volcker. Showing a sudden affection for due process, Rudd opined that this was a most serious matter, not to be taken lightly, outcome of which should await further enquiry, one step at a time blah, blah. Why is the allegation about the Head of ASIO not an immediate hanging offence when he seeks to hang rministers on far less evidence?

Obviously, it’s not politically useful.

Why is there a cynical disregard for the political process? Because people assume that outrage is confected, that moral indignation is trumped up and that the political gotcha! is what it’s all about.

18 years ago

Why is the allegation about the Head of ASIO not an immediate hanging offence when he seeks to hang rministers on far less evidence?

But surely this statement is manifestly untrue. O’Sullivan has become involved on one piece of indirect evidence and has not been heard in his defence – the point Rudd made. The government, on the other hand, has been directly implicated by countless pieces of evidence (including a fresh intel swag released today) and has had ample opportunities to reply, and in any event on classical westminster principles of accountability Downer, and probably also Vaile, should have resigned by now.

I don’t know about the “cynical disregard”, not having the “punter” telepathy everyone else seems possessed by, and nor do I get why this matters in any event, since there is no election due. Moreover, nor can I see what is wrong with the “political gotcha!” being what this is all about. Isn’t it what it is all about? What else could or should it be about?

For those who are following the matter closely, and many obviously are, regardless of what “the punters” are apparently thinking, the matter goes straight to the integrity of the government, about which there have been serious and accumulating questions ever since the Dubai affair.


[…] I read the judgment at the time, and recall concluding that, while Morris had behaved somewhat imprudently in a number of respects, the Court appeared to have adopted an unduly narrow and restrictive attitude towards the proper role and functioning of a royal commissioner. I doubt that the Supreme Court decision would have stood had it been appealed through to the High Court, but it obviously didn’t suit the Beattie government’s political interests to do so. I can’t help wondering whether Tony Morris’s fate might now be an actuating factor in what I see as an excessively cautious approach being adopted by AWB Royal Commissioner Terrence Cole QC. […]

derrida derider
derrida derider
18 years ago

Ho hum. Most Howard voters are perfectly aware that he couldn’t lie straight in bed, that he and his ministers took great care not to know about AWB and that he would never permit an inquiry that found against him. But the buggers vote for him anyway because he’s presided over good economic outcomes, he pretends to be no cleverer than them and he appeals to the sort of lazy narrowmindedness that most people have. He generally makes them relaxed and comfortable (which is why his IR changes are now upsetting many of them).

I agree that in the long run failure to punish this sort of behaviour in governments leads to tears, but until it does don’t expect any electoral consequences – just look how long Jo B-P was around.