RAW: MacPherson Spells Out Constitutional Crisis From Burnside Report

South Australians need to thank former Auditor General, Ken MacPherson for his 90 minutes of evidence yesterday to the Special Inquiry into his draft report relating to the operations of the Burnside Council. This is even though what he said disappointed those aggrieved by the whole affair due, in no small part, to the severe constraints placed upon him by the nature of the Supreme Court’s suppression orders in May that ran to commentary on its contents as well as the actual content of the draft.

Beyond the glib headlines, here is what MacPherson brought into plain view as the key issue.

Elected officials have constitutional and legal duties to act honestly and in the public interest. The investigation established by this Government and conducted by MacPherson was about precisely these matters as they related to the operation of the Burnside Council.

However, once the draft contained outcomes and conclusions that this Government did not like, it has tried to ensure the report never gets completed.

But they too, that is the members of the Labor Government, not just the revolving door of Ministers for Local Government who are handling this matter, have that same obligation to act honestly and in the public interest.

MacPherson was very clear on this and used the words of the Chief Justice of SA Supreme Court as support that the completion of this report is also in the public interest.

The problem is that the law under which this inquiry is being undertaken is deficient to deal with the rightful legal challenges and other tactics that those who have most to fear from its outcomes can use to thwart that report being finalised.

To cut through this, the Government needs to amend the relevant Local Government Act to give MacPherson the same powers to compel sworn answers to questions put and provide documents as a court, a Royal Commission or even just the Public Finance and Audit Committee of the SA parliament.

If it doesn’t do that, then one has to question whether it is indeed acting in the public interest, an obligation placed upon it by the constitution, convention and common law, for, to quote MacPherson, to continue with the process of completing this report as the law currently stands would be ‘a complete waste of time.’

If Jay Weatherill is serious about his ICAC proposal, that is, he recognises that corruption in the public sector is something which any Government ought to have properly resourced and empowered people and processes in place to investigate and prosecute, then making the changes now to the Local Government Act requested by MacPherson are a no brainer. Doing so would enable this enquiry to be concluded, according to MacPherson, within four months and for around $400,000.

Two problems.

The first is there is little sign this Government interprets acting in the public interest in this way, even now with Rann gone. Minister Wortley and the Attorney General Rau have engaged in some months of spin to attempt to placate the public’s fears and concerns, hoping the matter would simply die. The outcomes are ‘trivial’ according to Wortley while also saying he hasn’t read the report. MacPherson now says that is rubbish.

Copies have been circulated to the Police Commissioner and the Crown Solicitor’s office by Wortley to give an appearance of action. But MacPherson says this should not have happened given there is a suppression on the dissemination and publication of the report and also the report has not yet been finished so there is nothing in it that the police or the crown solicitor can much do with it.

Rau has proposed a number of amendments to the Local Government Act that too give the appearance of dealing with the matter to ensure it never happens again – councils could investigate their own activities and the like – but nowhere in these statements are the necessary powers that MacPherson speaks of to ensure a legal circus of suppression requests and denials of natural justice applications and obfuscation of process doesn’t recur.

Very clearly this government fears the contents of the MacPherson Report ever being made public. Given Minister Wortley’s response to MacPherson’s evidence last night, it seems certain (without a lot of additional pressure – see further below) the Weatherill Government will shelve doing anything more on the Burnside Council inquiry now in the name of letting its ICAC look at it.

But under that scenario, as the ICAC will operate in secret and who knows whether it will be empowered to investigate matters retrospectively, it may well be that the public will never know exactly what went on amongst its publicly elected officials in the Burnside Council. This would appear to be just as the Labor Government and its mates would desire.

Which leads to the second problem.

Who can take legal action to enforce the Government act in the public interest, in this case legislate as demanded by MacPherson to enable the report to be completed early next year? The answer is no one. (As example, who can take action to test whether Wortley was in contravention of the Supreme Court’s suppression order? On this, incredibly, Daniel Wills in The Advertiser this morning was able to reveal the Police Commissioner had returned the report unopened having received advice along these lines. How remarkably coincidental.)

Probably the only organisation in the State that can make the Government do the right thing is indeed The Advertiser by fermenting public opinion against the Government on the topic. (It would be nice to think the Liberal Party would be useful on this issue but it is in fact only diminutive independent Legislative Councillor Ann Bressington who has been doing the right thing by the public to date for she is the one who got this special inquiry (that MacPherson gave evidence to yesterday) going. Compare the Liberal Party’s current performance with that of Rann with the Motorola affair 10 years ago that drove Premier John Olsen from office and set about Labor’s unlikely election win six months later.)

On that front, despite that organ being very squarely in the Government’s court on so many matters, some glimmer of hope when in this morning’s Advertiser editorial, the following appeared ‘The onus now would appear to be on the Government, which would appear should be doing everything in its power to find a way through this legal maze in order to allow the public finally to see what might have occurred in Burnside that prompted the inquiry in the first place.’

Time will tell whether it promotes this matter to the front pages and upgrades ‘appears’ to ‘demands’ or whether it will let that one grand gesture of Wortley’s to let his Government’s ICAC take it from here, equate it to acting in the public interest.

If The Advertiser does that it will ensure the public never knows the outcomes of MacPherson’s work and the potential of his report to expose the tip of the corrupting networks that now play their games in this State as they wish. If however it stands firm and demands accountability now, the history of this State may well start early next year with new and explosive chapters.

So, while all manner of politicians, their lackeys and a bevy of players are getting hot under the collar and stressed, the future of this may rest solely neither in the parliament nor the Supreme Court nor with a retired Auditor General (where of course it ought to) but in the discretion of Rupert Murdoch’s local editor, Melvin Mansell.

That is no way to deal with a constitutional crisis but for the moment all one can proffer is ‘Over to you Mel.’

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