Achieving policy ends via unlawful means: Will that be Abbott's defining legacy?

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As definers of poor government, Abbott's dishonesty and chaotic incompetence are stand outs. But implementing policy via unlawful means deserves to go down in history (if the charges are laid and found proven) for something even more distinctive — its criminality. Max Costello reports. 

TWO YEARS ago, on 7 September 2013, the ultra-conservative Liberal-National Party Coalition, led by Tony Abbott, ousted the centre left Australian Labor Party government. The pro-business Liberal Party and the smaller, rural-based National Party came to power promising, above all, to restore trust in government.

As Mr Abbott said in launching the Coalition’s election campaign on 24 August 2013:

“This election is all about trust."

A mere eight months after taking office, the Coalition had destroyed that trust — via its first budget, brought down on 14 May 2014, which broke a raft of pre-election promises.

As The Sydney Morning Herald noted next day in relation to only a few promises: 

'Tony Abbott promised no cuts to education, health, the ABC or SBS [broadcasters], and no changes to pensions. By [last night], it all seemed like a distant memory.'

By June 2014, Newspoll (conducted exclusively for The Australian) showed the Coalition’s primary vote had fallen to a 4½-year low of 36 per cent, down 5 per cent from election day.

Abbott denies lying and explains that only "carefully scripted remarks" are the "Gospel truth" to an incredulous Kerry O'Brien

 During the rest of 2014 and into 2015, an increasing public concern was the decreasing health of the country’s finances. Abbott’s promise,

“By the end of a Coalition government's first term, the budget will be on-track to a believable surplus”

had evaporated — as Treasurer Joe Hockey effectively conceded on 15 December 2014 (Herald-Sun, Melbourne):

'The 2014/15 budget deficit forecast has blown out to $40.4 billion compared with the $29.8 billion deficit predicted in May. … A surplus of 0.8 per cent of GDP is projected for 2019/20 based on current settings, but Mr Hockey could not say if he was confident about achieving that result.'

Prime Minister Abbott’s authoritarian leadership style was further alienating voters. With trademark insensitivity, British born Mr Abbott, who had not consulted or forewarned his Cabinet, announced the award – on 26 January 2015 (Australia Day!) – of an Australian knighthood to Queen Elizabeth’s 93 year-old husband, Prince Phillip.

People familiar with Shakespeare’s King Lear were agape as “King Abbott” became his own Fool.

On 7 February 2015, two dissatisfied Liberal backbenchers called for a leadership vote — which Mr Abbott survived, 61 votes to 39.

Facing the media next morning, he announced: 

“Good government starts today."

But it didn’t. After an initial pick-up, the government’s performance lacked competence and focus — featuring the (often ineffective) pursuit of discredited budget initiatives, Mr Abbott’s obstinate delay in securing his partisan (Liberal) Speaker’s resignation over her grossly excessive travel expenses, and tricky Party room manoeuvres to stymie a proposed gay marriage bill.

More significantly, there were not many thought-through policy initiatives proceeding to legislation.

As The Sydney Morning Herald reported on 24 August 2015:

'The Abbott government is stuck in a “policy paralysis” that has seen fewer bills finalised in its first 700 days in office than any other federal government since the late 1960s.'

Cabinet Ministers had begun leaking against themselves, prompting the PM to “read the riot act” to his Cabinet — an event that was itself leaked to Fairfax Media on 20 August 2015, along with the Government’s “speaking notes” for that day, including this gem:

“… Cabinet is functioning exceptionally well."

So far then, the Coalition government’s trademarks had been dishonesty (2014) here, here and here — and chaotic incompetence (2015). However, as will become apparent, one potential 2016 trademark, criminality, could well become the Coalition’s defining legacy.

It is linked to one of the few “big” promises the Coalition largely kept from day one, namely, to “stop the boats” of asylum seekers trying to come to Australia and claim refugee status.

Implementing the policy underpinning that promise had involved the offshoring – to Papua New Guinea and the Pacific island of Nauru – of Australia’s Refugee Convention obligations to accept asylum seekers, process their claims and, if found to be refugees, resettle them.

The two “regional processing [detention] centres” concerned, on Nauru and PNG’s Manus Island, are notionally operated by the respective governments, but are largely controlled and totally funded by Australia (officially, the Commonwealth of Australia). Control occurs via the Commonwealth Department of Immigration and Border Protection (“the Department”).

But detention centres, onshore and offshore, are Commonwealth workplaces and therefore subject to the duty obligations of the Work Health and Safety Act 2011 (Cth) (“the WHS Act”). Failing to comply with a WHS Act duty is a heavily penalised criminal offence.

Section 10 says the Act 'binds the Commonwealth' which is thus 'liable for offences'; while section 14 says Act duties cannot be transferred — meaning that the Commonwealth cannot lawfully transfer its health and safety duty obligations to PNG or Nauru.

The 'primary duty of care' that section 19 imposes on workplace operators (including the Commonwealth) requires them to 'ensure, so far as is reasonably practicable, that people at workplaces are not exposed to preventable risks to their health and safety.' (Section 4 defines 'health' to include psychological health.) That duty protects not only 'workers' but also 'other persons' — who are, at detention centres, the asylum seekers, including any children.

By 2015, it was apparent from official sources that the Commonwealth, via the Department, was failing to comply with its WHS Act duty of care to asylum seekers.

For example:

  • the Australian Human Rights Commission’s November 2014 Forgotten Children report on asylum seeker children in detention (the report was not released until February 2015) found that, as a result of prolonged detention, ‘34 percent of children [had] mental health disorders at levels of seriousness that were comparable with … [the] less than two percent of children receiving outpatient mental health services in Australia’ (page 29);
  • the Moss Report (released in March 2015) into allegations of a rape threat, assaults and sexual assaults of detainees (mainly women and girls) at the Nauru centre confirmed some allegations and found others — similar or even worse and
  • on 20 July 2015, the Department’s First Assistant Secretary, Children — in her evidence to the Senate Select Committee on the Recent Allegations … [concerning] Naurusaid that the Department in Canberra had received reports of 15 sexual assaults of minors at the Nauru centre during the 18 months ending 30 June 2015 (see transcript, pp.79–80).   

Accordingly, it is reasonable to expect the WHS Act’s regulator, Comcare, to convert such potential evidence into admissible form and, by early-mid 2016, lay charges alleging two sets of WHS Act contraventions.

One set would allege a failure to ensure – within Australia and on Nauru – that children were not exposed to risks to their (psychological) health via prolonged detention; the second set would allege a failure to ensure on Nauru that asylum seekers, especially women and girls, were not exposed to risks to their health and safety — specifically, risks of rape, sexual assault and sexual harassment. (The Commonwealth’s two main service provider contractors on Nauru might also face parallel “second set” charges.)

As definers of poor government, dishonesty and chaotic incompetence clearly stand out. But a government that implements policy via unlawful means would deserve to go down in history (if the charges are laid and found proven) for something even more distinctive — its criminality.

Max Costello is a former WorkSafe Victoria solicitor. He co-authored submissions to the Moss Review and the Senate Select Committee and attended the first three of the Committee’s four public hearings.  

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