When is it ridgey-didge for a government to send something off for an inquiry, and when isn’t it? Also, how does this all measure up to the Westminster convention of ministerial responsibility?

There has been an unquestionable shift in the extent to which ministers have been held accountable for ‘stuffing’ things up. Distinctions are drawn in law in our state about what is corruption, what is maladministration and what amounts to just not getting everything right. We are all going to make mistakes now and again and the public understands that.

Corruption and maladministration mean different things in different states of Australia, because what is corruption or maladministration are not the Oxford dictionary meanings. Actually, they are the definitions accorded to those terms in the Acts of Parliament that set up these bodies. They can involve investigations, and often allegations made are not ultimately substantiated.

However, what I’m really talking about are the ‘stuff-ups’. The Ruby Princess debacle in NSW, and of course now the hotel security quarantine blunders in Victoria that are strongly suspected of plunging that state into its current Covid-induced nightmare, are examples.

You would have to think that the Premier of Victoria and his responsible ministers would have to be contemplating their ministerial responsibilities as people die seemingly as a result of a mishandling of security arrangements, but instead and at this stage they are soldiering on, having referred the matter to a retired judge to conduct an inquiry. Similarly, Senior Counsel Brett Walker was appointed by the NSW government to conduct a Special Commission into the Ruby Princess, with the report due tomorrow, Friday 14th August.

Is this simply moving the day of responsibility somewhere down the track? As the responsible minister is it a cover for not owning up to a ‘stuff-up’ and resigning now? And what has become of the Westminster convention of a minister answering on behalf of his or her department?

What ministers hope for, I believe, is a finding that blames the bureaucrats and absolves them. We have seen it time and time again. And that is to an extent how the game has changed.

In earlier times it mattered less that you didn’t personally know about a government problem. As a minister you accepted it was your responsibility. But that now seems changed. At least there is sufficient lack of clarity around the convention of ministerial responsibility to make it stick, often leaving the ballot box at a general election as the only way to ultimately bringing parliamentarians to account.

What’s more, the Victorian example is arguably not a sufficient response. First, it was touted as a judicial inquiry when it was not. True, it was an inquiry by a retired judge, but that is not a judicial inquiry. A retired judge does not necessarily have the same powers as a judicial inquirer may in conducting an inquiry, and may have limitations that a judicial inquirer does not. Second, with the horrendous and tragic number of deaths in Victoria, it is more than arguable that what should be ordered is a royal commission. There is also the prospect of a Coronial inquiry.

On the other hand, royal commissions have been used as political instruments by canny governments in the past. There are many that are ordered for seemingly purely political reasons. And those reasons are various. It extinguishes immediate political heat. Its terms of reference are determined by the Cabinet of the day, so to an extent it’s controllable. It has the same effect as ordering an inquiry, in that the can gets kicked down the road. Time and distance can often be a friend to governments currently on the nose. And it can achieve some other political end, a precursor to law reform, sometimes one might say, with good reason.

There are real downsides with royal commissions though. They are very expensive. They have compulsive powers that erode common law rights and privileges. They can descend into public shaming exercises, and whilst they can accord weight to evidence given, they are not courts and not bound by the rules of evidence in the way a court is. They have their place in our society, but it is easy to feel cynical on occasions, more so when responsible ministers stay in their portfolios enabling Cabinet to defer the day of reckoning.

 As to Victoria, it has actually delayed its hotel quarantine inquiry. It is apparently owing to the Stage 4 Covid restrictions, but to the jaded punter, it looks like another level of avoidance, of circumvention, just when you would think the citizens of Victoria would want some answers.

The public knows when governments start hiding behind government-ordered inquiries, just as it can smell the wafting, politically-flavoured scent of a royal commission when Cabinet has a fair idea what is going to result by way of a desired outcome. It often has the appearance of a cocktail of law and politics blended up before a public audience and then served back to Cabinet with a list of recommendations that can be acted on or ignored, and sometimes the in-between, delivered in a half baked version, for which no one has an appetite.

All that said, the retired Family Court judge engaged in the Victorian inquiry Jennifer Choate has every right to protect herself, her staff and those involved, and there can be no argument about that. However the political optics are bad, particularly when Ms Choate has made it crystal clear that the inquiry is not judicial, and in no sense prevents the Premier and his relevant ministers informing the public of the facts and circumstances that have led to that states’ current difficulties as and when they become known.

Yet they continue to defer to the outcome of the inquiry. What is their accountability now? And where does that leave the voter and the public?

Resigning from a ministry, purely because something went wrong within a government department where the minister was not involved and responsible, is not required. There must be a nexus between something the minister has done or failed to do that contributed to the mess. If ministers were vicariously liable for every erroneous act of a government agency we wouldn’t have any – ministers, that is; they’d all have to resign. However, equally if a minister has contributed to the ‘stuff up’ especially when this may have indirectly led to a loss of life, the minister should own up and resign.

A good example was the ‘pink batts’ Home Insulation Program that led to deaths of inexperienced installers. It was Peter Garrett who copped it, when many at the time thought it should have been the then Prime Minister himself. Anyway, there was accountability.

To attempt to avoid responsibility by masking events in the shroud of an independent or judicial inquiry is not the right thing to do. It too often feels like a conjuror distracting from what‘s happening in reality, by an act that takes our attention elsewhere. We all know when we’ve made a cardinal error. We don’t need an independent finder of fact to tell us what we already know—that we ‘stuffed‘ something up.

If your incompetency as a minister has caused or contributed to serious mistakes in your agency, it’s time to go.

It is quite wrong to bury your head, opt for the political delay tactic, and hope to be salvaged by the process of an inquiry. Or worse, hope the public have by that stage forgotten it all.

Not very likely in Victoria though, with the death toll climbing, a devastating reminder of what can go wrong when people don’t appear to know what they’re doing.

 Morry Bailes is senior business advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

Disclosure: Morry Bailes is a member of the Liberal Party.

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