Ethics: David Bartlett is wrong

Lindsay Tuffin

ON his first day as Premier David Bartlett wore a tie that Jim Bacon once wore. Is it possible to be so closely linked to the past yet to keep on insisting that you be asked only about the future? In national interviews over the past two days — on Lateline and by Steve Cannane (RN Breakfast) — David Bartlett has repeated there is no need for his ethics commission, if established, to have retrospective powers, asserting that the Tasmanian police and Ombudsman are independent and sufficient to see justice done.

This is untrue. In a letter to the Mercury his own Director of Public Prosecutions, Tim Ellis, made it clear that the Tasmanian police were not independent of their minister. The Kons affair has thrown a dark cloud over the judiciary. David Bartlett’s arguments against retrospectivity are untrue to the system of justice as it exists in Tasmania. Any ethics commission without retrospective powers will have failed to address the crisis of confidence that the majority of Tasmanians have in their government.

What Tim Ellis said in Mercury Letters, April 16 …

ON April 11, I was asked by Nick McKim MHA to investigate a certain matter. I explained why I lacked the power or authority to do so without a valid request and/or direction from the Attorney-General.

I contrasted the present case to the TCC case, when I acceded to such a request from the Attorney-General as I believed it was supported by all sides of politics. I said, among other things: “The State of Tasmania lacks any independent investigating body. I have the utmost respect for Tasmania Police, and do not doubt its integrity as an organisation, but the plain fact is that the Commissioner of Police discharges his responsibilities “under the direction of the Minister” _ s7(1) of the Police Service Act 2003 (“Minister” appears to mean the Premier _ see parts 9 and 10 of the Administrative Arrangements Order 2008).”

The Commissioner of Police has unfortunately chosen to interpret this as an attack on how he performs his duties. It was not. It was an observation of the terms of a statue, s7(1) of the Police Services Act 2003, which provides: “(1) The Commissioner, under the direction of the Minister, is responsible for the efficient, effective and economic management and superintendence of the Police Service.”

I can’t see any limitations or qualification of the Minister’s “direction” so as to make what I said, as the Commissioner is reported to have commented, “misconceived,” much less as the Premier has asserted “ridiculous”.

The 1993 New South Wales Parliamentary Joint Select Committee Upon Police Administration reported as to a virtually identical provision: “Section 8(1) of the Police Service Act 1990 provides that `The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the Police Service.’ That is unequivocal and is not to be altered in any way by the bill that is before the Parliament. The committee is under no doubt that this empowers the Minister to direct the commissioner on operational issues. The committee agrees that it is best expressed in the submission of the former Commissioner of Police, Mr John Avery, when he said: `A strict interpretation of the legislation indicates that the Minister has power to give directions to the Commissioner if that direction does not require the Commissioner to neglect his or her statutory duty by act or omission.’ ”

The Commissioner therefore appears to be subject to ministerial direction including as to operational matters. There is no exclusion, such as he claims, for investigatory or prosecutorial functions.

T.J. Ellis SC
Director of Public Prosecutions

Meanwhile:

No public money for pulp mill – Bartlett
May 28, 2008

TASMANIAN Premier David Bartlett has re-affirmed his Government’s stance on the planned Gunns pulp mill, saying no more public money will be spent on the controversial development.

“The pulp mill project will now stand or fall entirely on the basis of whether the company (Gunns Ltd), the proponent, and its financiers are able to bring the project to fruition,” he told ABC Radio today.

“It will not stand or fall on whether or not public money goes into it because there will be no more public money going into the pulp mill.”

Mr Bartlett also ruled out any Government funding for a planned 35-kilometre water pipeline to the mill, estimated to cost $65 million.

The Government would not own or build the pipeline, he said.

Meanwhile, new doubts have been put on the project with Fairfax newspapers reporting today that the ANZ Bank has withdrawn its financial backing.

Finance industry sources confirmed to Fairfax that ANZ decided to withdraw several weeks ago and Gunns was seeking a replacement to lead the syndicate of bankers.

Earlier: The King is dead. Long live the King

*Picture licensed to Tasmanian Times for free non-commercial use. All inquiries for use by other outlets to be referred to 03 6224 8054 or bobburton@ozemail.com.au