Saturday 27th of April 2024
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In bad faith…

functional silos .....functional silos .....

Canberra’s conduct towards the Timorese was so grave that Australia continues to be regarded, within international legal circles as a cheat.

 

Upon our return to Cambridge in early 2014 from The Hague after the truly shameful experience of watching and listening to Australia’s solicitor-general and some of his team scornfully defend Australian misconduct at Dili our Bar Leader, Sir Elihu Lauterpacht QC, doyen of international law, former ad hoc Judge of the International Court, 84 years old and on his last brief, sought reassurance from me that I too had seen Australia’s Professor James Crawford, SC, momentarily lower his head as the Solicitor-General spoke. Eli admired James and watched intently as James sat with the Australian team.

 

By Bernard Collaery

 

 

James occasionally walked around to Eli’s study at Herschel Road to discuss the case, ad referendum. Eli regarded the brilliant James both as a protégé and long-time friend. Eli had quietly added his voice to those with a say about a forthcoming vacancy on the bench at the International Court. Xanana Gusmao, prime minister of East Timor, had also ensured his government’s and other Lusophone countries’ support and issues aside we all hoped that James’ appointment was imminent. It was.

Eli’s concern was that the Australian solicitor-general and his team from the Attorney-General’s and Foreign Affairs Departments were defending the indefensible using an alleged “principle“ of diplomatic and intelligence agency usage, namely, “neither confirm nor deny“.

Eli’s words to our team resound to this day:

“In this case it is misplaced. This is the culmination of years of bullying exploitation and genocide. As if that could have been employed at Nuremberg over the starvation of the occupied nations. James knows it, you can’t elevate tactical evasion into a legal maxim. It has no place in adjudication.” 

Eli would add bitterly: “It is a contempt of the good-faith principles that bind international arbitration proceedings.”

Eli had worked with Australia’s international law team led by attorney-general Lionel Murphy, QC, and the eminent solicitor-general Maurice Byers, QC, during Australia’s challenge in the 1970s to French nuclear tests in the Pacific. James aside, Eli was appalled by the conduct of the new generation of Australia’s international lawyers at The Hague. He would lament: “There is no way for Australia out of this but to apologise and make amends.” Both Eli and James have since left this earth. Two great international lawyers of integrity.

The trouble remaining for the Coalition is that internationally wrongful acts come with a long memory and have consequences. In Australia’s case there were two consequences. The first was the question of reparation for the loss caused. Sadly, for reasons yet to be disclosed to the public, Australia believes it has secured East Timor’s acceptance of a “release without satisfaction“.

The second, separate from the primary obligation, is still very much alive and involves Australia’s recognition that it engaged in an internationally wrongful act. This embraces a concept no different from that applied at the International Criminal Court and daily in our courts, namely, acceptance of wrongful conduct and recognition that there won’t be a repeat.

The Coalition offers neither, refuses to fess up, hides behind a law a wedged Opposition failed to block and by claiming a prejudice to national security is attempting to bind the courts to its unapologetic conduct.

 

Read more:

https://johnmenadue.com/world-wont-forget-australias-duplicitous-dealings-with-east-timor/

 

 

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All of this caper is to protect the crooks in the Liberal (CONservative) party — those who ran the Howard government, such as Alexander Downer, especially Alexander Downer, who was also one of the dubious characters in "instigating" the Russia/Trump connection proven to be a fake. Alexander was also heavily involved in the Wheat to Saddam affair in which bribes were part of the illegal deal (toon at top).

Could we say that there are still crooks in the Liberal (CONservative) party running the country, presently? YES. Sports rorts, car park rorts and other fiddles of the crookery kind have been too common in the Kanbra outfit. Is SCOMO a crook? Is SCOMO running a government of crooks?

My personal view would be yes. This present Liberal (CONservative) government has a total lack of integrity and at best is unethical. Is it crookery?... My view is clear. I made many cartoons exposing the deceit and the lies of SCOMO. We URGENTLY need to get rid of this Liberal (CONservative) government... But Uncle Rupe loves it — and he and his minion scribers will do anything to keep ScoMo in power... We're screwed...

public disservice…

At the heart of Senator Rex Patrick’s attack on a senior public servant was a call for the public service to be more independent and impartial.

 

In their letter of 26 November to the president of the Senate, the secretary of the Department of Prime Minister and Cabinet (PM&C) Phil Gaetjens and the Australian Public Service (APS) Commissioner Peter Woolcott complain about Senator Rex Patrick’s naming of Angie McKenzie, an assistant secretary in the department, on November 23 and other public servants on November 25 seeking referral of his “derogatory comments” to the Privileges Committee. They consider the comments to be damaging to her personal and professional reputation, say she has limited opportunity to respond, and write “on her behalf and in defence of our independent public service”.

They identify two key issues: that in a workplace the comments would be regarded as bullying and harassment; and that they ‘”attacked the integrity and reputation of the public service”, and in doing so “he has demoralised tens of thousands of public servants who seek to do their best for their country every day”.

Patrick’s language was at times offensive, accusing McKenzie of having “no idea of how the law works”, of “not just trimming her political sails, she’s actually put up her Liberal Party spinnaker to make her decision”, calling her “stupid” and accusing other senior officers of “political expediency or cowardice”. When tabling the letter on November 30, Patrick also referred to Gaetjens as “a grub of a man” (a comment he withdrew) and “a disgrace”.

 

Such language goes too far and those subjected to the terms used should be given the right to respond if the senator does not withdraw them. As the main person attacked, if anyone was to write to the Senate president, it should have been McKenzie.

But at the heart of the senator’s attack was his charge that McKenzie’s decision (replicated later by another assistant secretary, Hugh Cameron) reflected incompetence and politicisation, both of the officers concerned and of the department. That charge is not without substance.

Was Patrick justified in naming McKenzie? Yes. She was the delegate who made the decision under the FOI Act to deny Patrick access to documents. She is a highly paid senior executive officer. She is accountable for her decision (and remember, “accountable” is one of the five APS values).

Was her decision justified? Almost certainly not. The Administrative Appeals Tribunal (AAT), presided by a judicial officer, found that the national cabinet is not a committee of the Commonwealth cabinet for the purposes of the FOI Act. Yet McKenzie claimed in denying access to documents that the national cabinet was a committee of the Commonwealth cabinet. Moreover, it seems she was wrong in saying that some of the evidence before her was not available to the AAT when making its decision. The Commonwealth has chosen not to appeal the AAT decision. Instead, it has introduced a Bill to legislate that national cabinet is a committee of the Commonwealth cabinet including for FOI Act purposes, but that Bill is not law and is the subject of very strong criticism by legal, constitutional, and public administration experts.

Accusing McKenzie personally of “incompetence and politicisation” may have gone too far but it is more than understandable that Patrick considers her decision reflects a loss of expertise in public administration and much increased political pressure. I greatly doubt that the PM&C of old (with stalwarts such as Barbara Belcher who on retirement received unanimous applause from the Parliament) would have argued that national cabinet was a committee of the Commonwealth cabinet, let alone use that argument after the AAT decision.

FOI decisions have always been politically sensitive, of course. Delegates will be mindful of the political consequences of their decisions but know that they must strictly follow the law. That will generally mean giving ministers and their offices notice of the impending release of documents and may also involve considering whether political concerns reflect genuine issues of public interest covered by the FOI Act. I fear, however, the latter now plays a much greater role than in the past, placing at serious risk strict application of the law.

I raised concerns about this when I was APS commissioner in the early 2000s. I am also aware of a subsequent PM&C secretary who required delegates to send him draft decisions for comment. In my view, that crossed the line even if he did not formally give any directions to the delegates. It seems that, at the very least, PM&C delegates today receive legal advice — that McKenzie and Cameron used the same words suggests this is the case — but delegates need to understand that is just advice. They must decide and take responsibility each time they make a decision. If they received advice that a case could still be made that national cabinet is a committee of the Commonwealth cabinet, surely that advice would also have made clear such a case was dismissed by the AAT and not appealed, presumably for good reason. It is hard not to suspect that the department has been giving advice to delegates that is both incompetent and politicised and they in turn have been accepting it when they shouldn’t.

The letter from Gaetjens and Woolcott is over the top. This is not a case of workplace bullying — it is about accountability. To claim Patrick is attacking the integrity and reputation of the APS when he is clearly advocating a more independent and impartial APS is at best ill-considered; particularly when actions by government ministers, including the prime minister, have shown disregard for impartial advice and encouragement of unlawful action. Gaetjens is particularly unwise to lead the charge given his own actions to dispute the auditor-general’s findings in the sports rorts case and to agree to undertake but never complete a review of what the Prime Minister’s Office knew of the Brittany Higgins allegations.

Woolcott’s involvement is particularly disappointing. With PM&C secretaries more often being appointed for their closeness with the PM these days, it is the APS commissioner who should provide the APS with its professional leadership and distinguish his role from that of the PM&C secretary. Woolcott has successfully rebuilt the Australian Public Service Commission after the destructive influence of John Lloyd, but he could do more now to acknowledge that there are indeed some underlying problems and point to the way the APS leadership, including senior executives, can model the APS values.

 

Read more:

https://johnmenadue.com/pmc-is-damaging-the-integrity-and-reputation-of-the-public-service/

 

 

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