What the report says …

It is open, on the evidence presented in this Report, for a reasonable person to conclude on balance, that the Lennon Government‘s commitment to the Pulp Mill was such that any and all obstacles to its expeditious approval had to be eliminated. While Mr Cooper conduct was the Acting Executive Commissioner of the RPDC, that agency denied the Premier‘s Office from implementing its own preferred truncated approval process for the Pulp Mill application. It was Mr Cooper, in his duly appointed role as acting head of the RPDC, who defended the Pulp Mill Approval Committee‘s entitlement to chart its own course as an independent planning approval agency during the assessment process.

Such was the depth of commitment to the Pulp Mill within the Lennon Government, that the Secretary for the Department of Premier and Cabinet, Ms Linda Hornsey evidently took it upon herself to intervene in the proper internal processes of an independent, quasi-judicial agency of government. That same departmental Secretary was subsequently instrumental in denying a Freedom of Information request for documents that revealed her involvement in that matter. The same departmental Secretary subsequently suggested shredding the original copy of a document, nominating to Cabinet for appointment as a Magistrate, the person responsible for the agency which allowed an identical Freedom of Information request.

There is credible evidence before this Committee that supports an inference that the Secretary for the Department of Premier and Cabinet intervened with a judicial appointment process on the basis of irrelevant considerations, including the very real possibility of personal payback.

Read full report here (including Credibility of Evidence – Section 5):
Parliament of Tasmania

LEGISLATIVE COUNCIL SELECT COMMITTEE INTERIM REPORT ON PUBLIC SECTOR EXECUTIVE APPOINTMENTS

Section 4. GENERAL DISCUSSION (p. 140)

In testimony before this Committee, former Premier Hon Paul Lennon observed (Lennon, Transcript of Evidence 2008, 4): Mr LENNON – The irony, of course, with this magistrate matter is that you are having an investigation into to why someone did not get a job rather than why Glenn Hay did. That is what is going on here. To me it is around the wrong way.

The same sentiment, if not the precise words, expressed by Mr Lennon in the above passage was shared by a number of other witnesses before this Committee. The question has effectively been asked; “Why can’t we put a line under this thing and just move on?”

The Committee notes that such sentiments are not new phenomena in the political domain, especially during episodes of controversy. The Committee is of the view that, notwithstanding the situational appeal of such a sentiment, it is nevertheless objectionable. Such a sentiment is objectionable, first from an ethical perspective, and secondly in that it offends against the basic scientific method. Ethically speaking, such an argument, taken to its fullest expression, requires community standards to be applied differently to different people. That proposition is offensive to the principle of the rule of law. It is imprudent to ignore the results of a flawed experiment or process, if one wishes to perfect that experiment or process.

This Committee has examined the available evidence in order to determine the truth of what happened during the process of appointing a Magistrate in this State in 2007. Whereas the Police and the DPP are restricted in their enquiries by the narrow and technical elements of specific criminal offences, this Committee has been concerned to ascertain the simple truth. In addition, while matters of criminal culpability are decided by proof beyond reasonable doubt, this Committee has been entitled to make its findings based on the weight of the evidence.

Unfortunately, despite a comprehensive police investigation, and a forensic review of available evidence by a Select Committee of the Legislative Council with all of its powers of inquiry, there are still key facts that have not been ascertained. The basic question has to be asked; “Is such an outcome acceptable in a modern representative democracy under the rule of law?” To this question, this Committee answers an emphatic; Absolutely Not.

The principal reason why this Committee cannot report the full truth of what occurred is that the Executive Government did not follow its own, worlds-best-practice judicial appointments policy, which had been appropriately adapted to local conditions. In addition to this failure of process, the documentary trail underpinning the process that was followed, such as it was, was sub-standard. Even worse, some of the few key documents that actually were produced, were deliberately destroyed. Evidence has been presented in this Report that supports the view that this destruction of documents occurred to deliberately prevent the truth ever being known. Other interpretations may be possible.

This Committee has presented evidence that Heads of Agencies have interpreted their roles as being not only political advisors, but political actors, in the discharge of their functions. It may be that such an interpretation of the role of a Departmental Secretary is accepted by the general community and endorsed by the Parliament. However, this Committee has formed the view that such an interpretation sits uncomfortably with the requirements of the State Service Act 2000. While this is not a question that concerns the machinery of the criminal justice system, it is certainly a matter that goes to the heart of the public interest, and therefore is of significant relevance to Parliamentary debate.

Relevant to this debate is the fact that this Committee is unable to determine precisely whom it was, who instructed the Secretary for the Department of Justice to prepare the Cabinet Brief appointing Mr Glenn Hay as a Magistrate. There was no such documentary instruction. The Committee has good reason to believe that this instruction did not come from Mr Steven Kons MP. On balance, it appears likely that the instruction came from Ms Linda Hornsey, acting on her own authority and for reasons that are highly suspect.

If Mr Steven Kons MP is to be believed, he never wanted to appoint Mr Cooper to the position. As far as his testimony can be regarded as coherent, it is effectively that he was obliged to nominate Mr Cooper as a result of meetings he had with Premier Lennon and Ms Hornsey.

According to Mr Kons, after his telephone call with Ms Hornsey on Wednesday 8 August 2007, he was; ―very pleased with‖ the choice of Mr Hay; ―as he would have been my original preferred candidate.‖ This testimony is consistent with the proposition that Mr Kons was operating under a fetter to his discretion between Wednesday 7, June 2007, and Wednesday, 8 August 2007, on which later date, that fetter was lifted by Ms Hornsey. The fact that Mr Kons appeared to have been so willing to then sign a document that was prepared on the instructions of another is either testament to a discretion that has truly been unfettered, or of a willing puppet acting on instructions.

It is open, on the evidence presented in this Report, for a reasonable person to conclude on balance, that the Lennon Government‘s commitment to the Pulp Mill was such that any and all obstacles to its expeditious approval had to be eliminated. While Mr Cooper conduct was the Acting Executive Commissioner of the RPDC, that agency denied the Premier‘s Office from implementing its own preferred truncated approval process for the Pulp Mill application. It was Mr Cooper, in his duly appointed role as acting head of the RPDC, who defended the Pulp Mill Approval Committee‘s entitlement to chart its own course as an independent planning approval agency during the assessment process.

Such was the depth of commitment to the Pulp Mill within the Lennon Government, that the Secretary for the Department of Premier and Cabinet, Ms Linda Hornsey evidently took it upon herself to intervene in the proper internal processes of an independent, quasi-judicial agency of government. That same departmental Secretary was subsequently instrumental in denying a Freedom of Information request for documents that revealed her involvement in that matter. The same departmental Secretary subsequently suggested shredding the original copy of a document, nominating to Cabinet for appointment as a Magistrate, the person responsible for the agency which allowed an identical Freedom of Information request.

There is credible evidence before this Committee that supports an inference that the Secretary for the Department of Premier and Cabinet intervened with a judicial appointment process on the basis of irrelevant considerations, including the very real possibility of personal payback.

The Secretary for the Department of Justice, by her own admission prepared a Question Time Brief for her Minister in such a way that it would not disclose the truth, while being factually accurate. The intention of that document was that it should prevent the Parliament from discovering the truth in connection with a judicial appointment in this State. This same Secretary produced carefully worded Ministerial briefing documentation in response to a media article which similarly did not disclose the whole truth while retaining strict (if strained) factual accuracy.

Evidence before this Committee concerning the withdrawal of Gunns Ltd from the RPDC Pulp Mill assessment process is inconsistent with evidence presented by a former Premier to an Estimates Committee of the Legislative Council. There is credible evidence before this Committee that suggests a former Attorney-General and Deputy Premier may have sworn a false Statutory Declaration in the course of a Police inquiry and given false testimony to a Select Committee of the Legislative Council.

Section 5 – Credibility of Witnesses (p. 144)

Mr Steven Kons MP
As noted above in this report, Mr Kons has given sworn testimony that; ―at no stage was Mr COOPER my preferred nominee for the position of Magistrate‖. Despite this assertion, other witnesses, including Mr Cooper and Ms Hutton have testified that Mr Kons told them that Mr Cooper was, in fact Mr Kons‘ preferred nominee. In addition, Mr Kons‘ own former Head of Office has given sworn evidence that corroborates a claim, made independently by Mr Cooper, that Mr Kons told the Head of Office that he intended to nominate Mr Cooper to the vacancy. Res ipsa loquitur,28 there is also the evidence of the signed shredded Cabinet Brief which, in fact, did recommend Mr Cooper to the position.

28 – literally ―the thing speaks for itself.

Read full report here (including Credibility of Evidence – Section 5):