Intimidating Parliament: The Michael Pezzullo Formula

"This is heavy-handed effort to browbeat the media from engaging in public interest journalism on national security issues."
~ Senator Rex Patrick.

IT ALL HAS the air of a school master intent on disciplining a wayward pupil. And Secretary of Immigration and Border Protection Michael Pezzullo is the sort of person who cuts the figure, described by veteran journalist Tony Walker, as “a ruthless political operative.” Giving unwarranted powers to a behemoth of a department like Home Affairs is bound to produce tyrants in search of briefs, though the Home Affairs website portrays a more cuddly and curious person who

'... enjoys being with his family, cricket and rugby league and reading (anything on military history, international relations, intelligence and political biography for starters).'

A point in favour of Prime Minister Tony Abbott’s brief time in office – and there are not many – was his resistance to the idea of such a super, all gorging ministry. Such creatures tend to tread on the toes of other departments when they are not appropriating their portfolios altogether. At the time, Attorney-General George Brandis and Foreign Minister Julie Bishop were aware of such a threat.

Now, with the Australian Federal Police urged to raid press offices and homes of journalists, questions are being asked and concerns expressed by parliamentarians. One of them is Centre Alliance Senator Rex Patrick. This week, the Senator revealed – at least what he believed to be – the implications of a call from Pezzullo last week.

Senator Rex Patrick accuses Home Affairs boss of intimidation following ABC raid outcry

Pezzullo admits he made the call. It’s time public servants like him were brought into line. It’s not ok for him to seek to influence or intimidate politicians. https://t.co/9Css0hKPtG
— ‍♀️Michael DowlingNot My AFP (@MeckeringBoy) June 11, 2019

The prompting came from a statement from Senator Patrick responding to the search warrant executed on News Corp political journalist Annika Smethurst’s Canberra home. Both the Home Affairs Minister Peter Dutton and Pezzullo, he opined, “clearly hate media scrutiny”. Another media release from the senator’s office took it as a fact that

'... Coalition Ministers and senior bureaucrats have no love of media scrutiny.'

The call from the Home Affairs secretary had the hallmarks of public relations bollocking brilliantly depicted in Armando Iannucci’s The Thick of It, where ruthless spin doctors, led by the potty-mouthed Malcolm Tucker, harangue and harass staff and elected officials who refuse to toe the most rigid of lines. “I found the phone call from Mr Pezzullo,” Senator Patrick conceded, “unusual and concerning."

In a longer note explaining his concern, Senator Patrick initially thought nothing of Thursday’s call from Canberra’s top bureaucrat; it was all a mere formality.

“Noting I had gone out hard in my criticism of the raids that had taken place at a News Corp journalist’s home and the ABC’s Ultimo offices, I figured he wanted to share some insight with me by way of a private briefing."

Barely a week into the new Government and we've already got a raid on the home of a journalist. Extraordinary. And for a vitally important story about national security mission creep. #AnikaSmethurst https://t.co/FufrQvx8FE
— Dylan Welch (@dylanwelch) June 4, 2019

He was soon disabused of this. Pezzullo took issue with the Senator’s remarks directed at him “on Fran Kelly’s Breakfast program” and those made in the 4 June statement on the Smethurst raid. Such remarks had “slandered him”. Though he would not take the matter further, he remonstrated with the Senator that their respective positions were unequal, the Senator being an elected official with far reaching powers, he being a mere plodding bureaucrat serving masters. While he did not take issue with an attack on the Home Affairs Minister (a touch of the old Tucker there), Pezzullo explained that he was above reproach.

The Senator duly reflected:

“Does Mr Pezzullo forget he is the Secretary of the Department that sets national security and law enforcement policy?”

Leaving the rhetorical questions aside, the Central Alliance senator was bleak:

“He’s never given any great sign of concern about the ever increasing powers available to law enforcement and intelligence agencies, including when those powers have been exercises in relation to journalists.”

His conclusion on last Thursday’s call was inevitable: Pezzullo was “trying to get me to be quiet in respect of my criticism of the Department of Home Affairs.”

When a senior public servant considers himself powerful enough to threaten a Senator we have a serious problem in this country. https://t.co/war6TkzwjD #auspol
— KellieTranter (@KellieTranter) June 10, 2019

Pezzullo did little to shed light on the affair when discussing the encounter with the ABC, though he was not abandoning the disciplinarian’s gown quite so easily.

“My sole request made to [Senator Patrick] by telephone was to ask that he reflect on his adverse references to my purported view of media scrutiny.”

The Home Affairs Secretary might want to heed a fundamental aspect of Parliament’s powers, which, as outlined in section 49 of the Australian Constitution are 'those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth'.

Deceptively called privilege, Parliament has a residue of protective and punitive powers that have been used before, albeit in the appalling instance of jailing a publisher and a journalist. Taking place in 1955, the case of F. C. Browne and Ray E. Fitzpatrick stunned many in the press galleries of the time. Both men were gaoled by a warrant of the Speaker for three months.

What was shocking at the time was not merely the realisation on the part of the Australian public that Parliament had such gaoling powers. It was also perturbing that those powers could be exercised against members of the press who had run a piece unflattering of a sitting member of parliament. Fitzpatrick owned the Bankstown Observer, the forum which alleged past profiting from immigration rackets by local MP Charlie Morgan. The article, drawing upon a leaked security service report, was written by Browne.

Morgan proved to be both venal and thin-skinned, mobilising the machinery of the House Privileges Committee to assess the matter. Both the Committee and the House of Representatives found the piece, published on 28 April 1955, to be an act of impairing intimidation designed to “silence” a sitting member of Parliament. In an act of ignominious cowardice, many Labor members chose to absent themselves from the voting proceedings.

The fact that Michael Pezzullo made any phone call is the incriminating one #auspol https://t.co/qTHMBKJ6Zw
— David Ingleton (@Dingo1957) June 10, 2019

When the warrant was challenged before the High Court in June 1955, the parties found, to their surprise, that the powers of Parliament in punishing contempt were non-judicial in nature and did not tread on the jurisdiction of the courts. The Speaker’s warrant proved unimpeachable. International papers in the United States and Britain were scandalised by the star chamber element in the whole proceedings, but a precedent had been set.

While these sinister powers have been curbed, to a certain extent, by amendments made in 1987, the issue remains salient: be wary about how far you go in threatening a person in elected office. If the good senator avails himself of appropriate legal advice, Pezzullo might find himself in more strife than he bargained for. Ironically enough, the bureaucrat might be unwittingly right.

Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @BKampmark.