By Margo Kingston
Source: Webdiary SMH
November 22, 2000
Every year Senators get to quiz bureaucrats and statutory officers on their performance and the success or otherwise of government policies. It’s called “Senate Estimates”, is designed to ensure that public money is well spent and is one of many reasons why the Senate is the last hope for Parliament, representing the people, to get answers not spin doctored by the executive (the Prime Minister and his ministers). Freedom FROM information is the executive’s motto but in Senate estimates, evidence is under oath, so those under the gun have to be more careful than politicians are with the truth.
Today, the Senate’s Legal and Constitutional committee got its chance to put the Commonwealth Director of Public Prosecutions, Damian Bugg QC, to the test on his handling of the Reith Telecard affair.
I’ve written about the behaviour of Mr Bugg extensively in the diary (see The Small Matter of Prosecution and Telecard Shenanigans) and his performance today only confirmed widespread concern that he has neglected his duty to preserve public confidence in the integrity of the administration of justice.
The Reith Telecard scandal burst into the public sphere just last month. His decision not to prosecute anyone for anything is the most controversial he has made as DPP. He must have realised he would be asked questions on the matter by Labor Senators. (Government Senators rarely if ever ask questions on behalf of the people and instead sit there to protect witnesses from having to reveal things the Government doesn’t want revealed. It’s called betrayal of the people.)
Yet his evidence was vague – I’d call it arrogantly so – and, as is usual for Mr Bugg, raised more questions that it answered.
When was he first contacted regarding the Reith matter? He couldn’t recall, except that it was “some time before” the story broke in The Canberra Times on October 10.
On what date did the federal police give him the brief of evidence for consideration? He didn’t know, except that the DPP had prepared a draft response to the brief in the week ending October 6.
On what date did he first brief the Attorney-General, Mr Williams QC, on his decision not to charge anyone with anything? “At a time approximating the finalisation of our response”, which he thought was October 9.
How was the Attorney-General briefed? “Certainly there was a briefing,” Bugg replied. Labor Senator Jim McKiernan could not comprehend how Mr Bugg’s memory could be so poor on such a thing. Pressed, Bugg said he thought the form of the briefing was “a combination of oral and written”.
Was it a personal briefing? “There were documents made available.” Pressed again, he said he did not brief the Attorney-General in person as he was away from Canberra that week.
Did DPP officers personally brief Williams? “I need to formally consider that and respond to it.”
So, Mr Bugg chose to take on notice the most basic information about his handling of the Reith matter. Inspires confidence, doesn’t it?
McKiernan moved on to Bugg’s now notorious press release the day after the Government announced he would prosecute no-one for anything, in which in a few terse paragraphs he “explained” his decision not to prosecute Reith and son, but said nothing on why he wouldn’t prosecute Miss X, Mr Y or anyone else.
Why did he make the statement? “There was obviously quite a lot of public interest in the matter”. He therefore “considered it appropriate … to publish brief reasons”. He did tell a staffer of Mr Williams that he proposed to issue the statement (interesting that – all these briefings and discussions with an Attorney-General who’s refused to comment on anything regarding the DPP and Reith on the grounds that he’s independent, that he reports to the AFP and that the AFP reports to Justice Minister Amanda Vanstone). Bugg, surprise, surprise, didn’t know if anyone else in his office had had discussions with the Attorney-General or his office on the matter.
So why didn’t Bugg release a full statement of reasons? “There are good reasons for not going into every aspect of the consideration of the matter by my office, particularly when there is a decision not to prosecute.” He didn’t mention what they were.
Then, the climax. “The precise reasons for not prosecuting have been published … That is the simple explanation for it. I don’t believe that there’s any more detail needed to explain those reasons.”
He’s got to be kidding. Senior lawyers around the country, including former DPPs, have raised serious concerns on Mr Bugg’s “emergency” exemption to fraud on the Commonwealth and he has still given NO reasons why he won’t prosecute Miss X or Mr Y.
Did he have any intention to provide more expansive reasons? No.
What about when the AFP resubmitted the brief with the results of its reopened investigation? “If I consider it necessary to make a statement in the public interest, I will.”
Bugg is backing down here. Last month, in an oral statement given by his media minder to the media, he said, in relation to his decision after the result of the new investigation, that he would go public. “Any decision made by the DPP which can be published will be announced in due course,” he said then.
The public got something from Bugg though – his birthday was on October 11, the day after the Reith story broke. Happy Birthday, Mr Bugg.
In this frustrating scandal the only path to truth is through the Freedom of Information Act and that’s proving a real cash cow for the Government. Use money to stop public disclosure. It’s $30 per application, then the departments start sending you bills for searching and the rest. My colleague Mark Robinson was told by the finance department that its charges for processing his request for the correspondence between Reith and the department on the matter and the department’s report into the Telecard’s misuse would cost $92,550.
After Bugg’s “evidence”, I submitted two new Freedom of Information applications asking Williams and Bugg for all documents concerning the DPP’s oral and written briefings to the Attorney-General.
Here’s an update on the progress of my FOI applications to date:
1. I asked the Attorney-General’s department for the legal advice the Prime Minister said he received from the Attorney-General before he sent the matter to police.
“There are no documents held by this department that come within the scope of your request,” the department replied. I’ve now FOI’d Williams, the Prime Minister and the Department of Prime Minister and Cabinet for that advice and all material relating to it.
2. I asked the Attorney-General’s department and the Attorney-General for all material concerning the two legal advices given to the Prime Minister by Solicitor-General David Bennett QC on the civil liability of Reith and son or anyone else for the Telecard bill. The department requires $170 to conduct a search and make a decision. Williams has not yet replied.
3. I asked the Department of Prime Minister and Cabinet for the same material – it’s a bit cheaper, charging $110 to get started.
4. I asked Vanstone for the report she received form the AFP detailing the investigation and why no-one would be prosecuted. Vanstone flicked it to the AFP, which refused the application on the basis that the document was exempt because access “would prejudice an investigation of a breach of the law and the enforcement of a law” and “would prejudice the fair trial of a person and the impartial adjudication of a particular case”. That’s interesting – it implies that had the investigation not been reopened (after Miss X blew the whistle on the quality of the investigation), the document would have bene released. I’ll put in another FOI when the case is closed, assuming of course, that Bugg still won’t prosecute anyone.
5. I asked the AFP for its investigation brief to the DPP and his report to the AFP refusing to prosecute. Access was refused on the same grounds and the extra one that “information contained in the document is of such a nature that it would be privileged from production in legal proceedings on the grounds of legal professional privilege”.
This last reason covers the DPP’s report. Legal professional privilege belongs to the client, not the lawyer, so the client can waive it. Who is the client? If it’s the AFP or Vanstone, why won’t they waive it? If it’s the people, I think you can assume they’d like to know.
6. I asked the DPP for his report to the AFP giving his reasons not to prosecute anyone. He has not replied.