Paul Bongiorno
Inquiry sinks ministerial responsibility

Any notion that ministers, state or federal, are responsible for anything much appears sunk in the wake of the Ruby Princess. And the ramifications are significant for the quality of our democracy and what we as citizens can rightly demand of our elected representatives and the governments they form.

In his final assessment, the head of the inquiry into the cruise ship debacle and one of Australia’s most eminent silks, Bret Walker, SC, concluded that a lot of things went wrong but nobody is to blame.

The things that went wrong hugely contributed to Australia’s first wave of the Covid-19 pandemic. About 1000 infections and 30 deaths have been traced to the virus escaping the ship.

The dismissal by Walker of the “rather nebulous so-called Westminster theory of ministerial responsibility” was seized with great relief by New South Wales Premier Gladys Berejiklian and her Health minister, Brad Hazzard. Meanwhile, in Canberra, Prime Minister Scott Morrison and the Home Affairs minister, Peter Dutton, claimed the report offered absolution to their Australian Border Force people and a biosecurity officer from the federal Department of Agriculture.

But the widespread political acceptance of Walker’s shrinking of ministerial responsibility doesn’t seem to apply to the Victorian premier, Daniel Andrews. As far as a string of federal ministers are concerned, Andrews has to answer for Australia’s much more dramatic second wave, which midweek had led to more than 17,000 infections and 300 deaths in the state.

In shocking evidence to the Covid-19 Hotel Quarantine Inquiry, epidemiologists and infectious diseases experts outlined their belief that “approximately 99 per cent of cases” have arisen from just two quarantine hotels. This was the advice to government that first triggered Andrews to set up the inquiry under retired judge Jennifer Coate.

On Wednesday, Channel Nine’s Karl Stefanovic showed he at least firmly believes in an all-embracing doctrine of ministerial accountability when it comes to Andrews in Victoria. He asked the prime minister why he hadn’t lost patience with the premier for a “litany of mistakes, deadly mistakes” and characterised the Victorian government as incompetent and unprepared. Morrison conceded there have been “many issues there on the tracing, on the quarantine, and I think that’s all becoming very clear”.

While he insisted the Australian Defence Force was on offer from the get-go in Victoria’s second wave, Morrison was careful not to join the Andrews pile-on, at least overtly – no doubt tempered by the news of a hotel quarantine failure in Sydney involving a private security guard. And perhaps the realisation that distilling Victoria’s disaster down to the absence of the ADF on hotel duty raises more questions than it answers.

Then there’s the fact the Walker inquiry threw up evidence that the federal government had not delivered the sort of border protection against the virus it had loudly trumpeted. And separately, two royal commissions Morrison himself set up have heard evidence his government was not Covid-19 prepared in the aged-care and disability sectors. Both are the Commonwealth’s responsibility.

We wait to see if Justice Coate will be guided by Walker’s view and discard “the unsatisfactory nature” of the idea of Westminster ministerial responsibility “that does not really warrant being called a doctrine”. The Sydney commissioner conceded that ministers “of course … should resign in some circumstances” but in the case of the Ruby Princess he says the “failures were professional – failures in decision-making by experts”. They were not subject to ministerial direction, “nor should they be”.

But surely his view is narrowly conceived that “this commission saw no aspect of ministerial conduct that amounted to any action or inaction of any relevance to be investigated in this inquiry – let alone by calling the minister as a witness”?

The “experts” and NSW Health officials were certainly more relaxed about this cruise ship than was warranted after what happened with the Diamond Princess in Japan just a few weeks earlier. It prompts the question whether their view was coloured in any way by the state government’s attitude to the hitherto lucrative trade generated by these visitors.

While Berejiklian and Hazzard’s health experts were blithely declaring the Ruby Princess “low risk”, Morrison struck a far more serious and proactive pose. Four days before the cruise ship docked, the prime minister announced such ships would be put under “the direct command of the Australian Border Force”.

The Commonwealth in its written “voluntary statement” to the Walker inquiry on June 12 spelled out how active ABF personnel were on board the ship the day 2700 passengers were allowed to disembark. A key role was also played by a federal Department of Agriculture biosecurity officer who gave clearance for disembarkation.

The ABC’s Andrew Probyn highlighted their involvement in a 7.30 report at the end of July. It was based on the Commonwealth’s statement and freedom of information documents. Curiously, his own network’s Media Watch criticised him for his excellent exposé. Back in April, according to party room sources, Premier Berejiklian told her MPs her government was not to blame for allowing the passengers to disembark. Based on what actually happened on the night, no doubt she was hoping Walker would draw the same conclusion.

Instead, the commissioner laid the blame on the gravely mistaken medical expert “low risk” assessment given to the ship. Everything cascaded from there. But this conclusion can’t obliterate that an ABF officer was seen to be in charge on the ship, assured his superiors that passengers had tested negative, and told his ABF colleagues that isolated passengers could “just go straight out”. The fact that the Morrison government blocked these officials from giving personal evidence to Walker speaks volumes about trying to minimise the political fallout.

The postscript in the Covid-19 senate committee hearings this week was highly embarrassing for the federal government. ABF Commissioner Michael Outram admitted his officers had no legislative authority to behave in the way they did. They were only being “helpful”. And he admitted to his bullish statement on March 25 that his officers would be asking ship masters if anyone on board had flu-like symptoms. “If the answer to that question is yes, we will not let anyone off until we have spoken personally with the local Department of Health.” This, too, was being “helpful” and the ABF had no legal force behind these demands.

There was more embarrassment when the secretary of the Department of Agriculture, Andrew Metcalfe, admitted he had “inadvertently” misled the committee over actions of the biosecurity officer. She did not follow the health protocols. Passengers began disembarking even before she received the NSW health assessments. The ship’s doctor was surprised by this state of affairs and told the Walker inquiry “there was no screen like the previous time”.

Labor’s two prosecutors on the senate committee, its chair Katy Gallagher and deputy senate leader Kristina Keneally, were forensic in seeing through the government’s smoke and mirrors.

Morrison tried to make a virtue of the fact the ABF has nothing to do with health checks and, as he also did during the week with the aged-care death toll, sheet the blame home to the states. Because “we regulate aged care, but when there is a public health pandemic … then they are things that are matters for Victoria”.

But here on both counts Morrison’s own words unmask him. Just as Border Force was going to have cruise ships under its “direct command”, back in February he had said “the Australian government will also be responsible for residential aged-care facilities” in response to Covid-19, “working with other healthcare providers to set standards”.

Keneally seized on Commissioner Walker’s view that it is “crystal clear that the Australian Border Force, despite its portentous title, has no relevant responsibility for the processes by which … passengers were permitted to disembark”. She said the prime minister’s March 15 declaration was “just that, portentous – there’s no substance to it”.

Keneally was scathing, telling ABC Radio National’s Fran Kelly the prime minister has a trophy in his office saying, “I stopped the boats”. “Well,” she went on, “his government didn’t stop the one boat that mattered.”

Whatever the niceties of a diminishing concept of ministerial responsibility, none of our leaders should think the electorate will easily let them off the hook if delivery falls too far short of promise.

Morrison may have more than an inkling of this. On Wednesday he went on a morning media blitz doing nine radio and TV interviews to make his latest big announcement. Not free beer for all the workers but free coronavirus vaccine for all Australians. He may still not quite have signed the deal and there may never be a vaccine but it was a useful distraction from everything else swirling around his head.

Meanwhile, Daniel Andrews could consider hiring Bret Walker to represent him at the quarantine inquiry. The Victorian premier could do with a bit of empathy.

This article was first published in the print edition of The Saturday Paper on August 22, 2020 as "Walkering back on political responsibility".

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Paul Bongiorno is a columnist for The Saturday Paper and a 30-year veteran of the Canberra Press Gallery.

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