There is one rule for Carmen Lawrence and another for everyone else. Dr Lawrence was given legal aid by the Federal Government to fund her challenge in the Western Australian Supreme Court against a state Royal Commission inquiring into her conduct as state Premier. Brendan Kelson and Michael McKernan have not been so lucky.
A year ago a federal body, the Merit Protection Review Agency, inquired into the Australian War Memorial, of which they were director and assistant director at the time. The Minister responsible for the Public Service, Gary Johns, gave the MPRA a two-paragraph brief:
“”Recently I have had brought to my attention matters relating to staff management at the Australian War Memorial. I understand that there have been allegations made by staff at the Australian War Memorial of various types of workplace harassment over a considerable period.
“”I now request, pursuant to Section 56 of the Merit Protection (Australian Government Employees) Act that the Agency conduct an inquiry into, and report to me upon, workplace harassment at the Australian War Memorial”. The Minister responsible for the memorial _ Con Sciacca _ had no advance warning or input.
Kelson and McKernan, at first had no idea what the inquiry was about, and suggested everyone on the staff co-operate, but to be specific about any allegations.
In fact, it seemed that some people at the memorial did not like the idea of McKernan taking over after Kelson’s prospective retirement in December, 1994. The inquiry was a way to prevent it.
The MPRA’s usual role is a defensive one: to look at cases of people who have been disciplined, demoted or sacked and to affirm the punishment or reduce it. Its role is usually not a prosecuting one: to accuse managers of misconduct, or investigate accusations.
However, under Section 56 it has a wide brief. It invited memorial staff to come forward, and they did.
After four months _ just before Christmas _ the MPRA presented its report to Johns. Kelson and McKernan were too late to get an injunction preventing the MPRA from sending its report to him, but Johns agreed later to defer action on the report until after an action begun by Kelson and McKernan in the Federal Court.
Kelson and McKernan say they got no proper opportunity to respond to what they say are unsubstantiated and vague allegations of workplace harassment, despite an assurance in writing from the MPRA that anyone about whom an adverse finding was made would have an opportunity to comment on it.
The agency says it complied with the procedures for investigating workplace harassment published by the Public Service Commission.
Against that, though, Kelson and McKernan have some very weighty opinions. They have legal advice from the Attorney-General’s Department saying the MPRA’s procedure and jurisdiction were defective. They have an opinion from the Public Service Commissioner himself expressing concern and doubt over the MPRA’s definition of workplace harassment as being too wide and beyond the defined public-service offence.
This is not an ordinary public-service disciplinary case where you would expect the losing party to foot the costs.
It has several very unusual elements and elements that would warrant legal aid.
First there is the odd role of the two ministers, with one not knowing what the other was doing. The normal way for the Minister in change of the Public Service to act when faced with accusations of workplace harassment would be to refer it to the line minister for action under ordinary public-service procedures, or when faced with accusations of bad management perhaps order an independent inquiry, like Pearce or Macphee. The inquiry Johns ordered was extraordinary to the point that it could arouse suspicion.
Second, is the weight of the opinion of the government’s own people in Attorney-General’s and the commissioner.
Third, is the way the inquiry proceeded _ it started as a general inquiry and then honed in on these two men. The usual public-service disciplinary procedure starts with the parties being identified.
Fourth, this inquiry, which became prosecutorial, was conducted by a defensive not a prosecutorial-type body _ one without the normal protections and ethos of a prosecutorial body.
Fifth, the senior positions of those accused and Kelson’s 38 years’ unblemished public-service record would point to the reasonableness of giving legal aid. Sixth, the two were acting in service of the Federal Government at time and are defending their management of a key national institution.
Seventh, the failure by the memorial’s board to support its executive by giving them legal aid _ with the distinct possibility that a majority of the board was prepared to but backed off after the Minister made it clear he wanted the thing to go away.
Sure, it’s possible there was bad management and harassment at the memorial, but this process stands out as so odd that further inquiry and testing is needed before two people’s reputation and career/consultancy prospects are ruined.
And the fact they are not getting legal aid bears comparison with Carmen Lawrence’s situation. How can she get legal aid, and these two not?
Then again, if one were cynical out could see a consistency between these two cases. In both cases the Government would be embarrassed by an inquiry. So in Lawrence’s case it gives legal aid to prevent an inquiry and in the Kelson-McKernan case it denies legal aid to prevent further inquiry, because without legal aid these men will have to put their houses and superannuation on the line. In both cases the wrong decision for the wrong reason. There is something decidedly odd about the War Memorial case.