The Deputy Chief Minister, David Lamont, was in a difficult situation. In his hands was report by Professor Dennis Pearce into the Vitab affair. Presumably, it was highly critical of the ACT TAB board and its chief executive. Presumably, it required some action. Mr Lamont says it required immediate action. So he got legal advice from the chief government solicitor as to how he could remove the board and chief executive and presumably followed it. However, the Assembly was not to sit until Tuesday (Budget day), so realistically, Wednesday was the first day the report could be tabled. Until it is made public, the public cannot judge his actions.
We do know, however, that the board requested that a copy of the Pearce report be made to it and its legal advisers and that Mr Lamont refused that request, saying he was unable to release the report before its tabling in the Assembly. Instead, he gave every member of the board the opportunity to read the report in his office and take whatever notes they wanted.
He then asked each member of the board if they had anything to say as to why they should not have their appointment terminated they should provide it by end of business that day (Friday). He then dismissed those members of the board who did not resign. Cabinet then appointed a new board on Saturday and Mr Lamont instructed it to dismiss the chief executive and appoint a new one.
It may well be that the result of what Mr Lamont did was the correct action. It may well be that the result was appropriate in the circumstances. We will not know until Wednesday.
Even so, the way Mr Lamont went about the task is open to question on grounds of natural justice. He did the right thing in getting legal advice before acting. We do not know what the advice was, but it, too, is open to question.
Mr Lamont argues that it would have been remiss of him to act. True. He could not responsibly hold the Pearce report in his hand and do nothing if it indicated serious misconduct by the board warranting its dismissal under the Act.
However, there is a difference between virtual summary dismissal and putting in place a proper process that might lead to dismissal. Natural justice requires the latter. It requires two things: that the accused know the nature of the charges being put against him and that he be given a fair chance to rebut them. By charge it is meant accusation of any shortcoming, not the criminal sense of the word.
This was not afforded the members of the ACT TAB board or its chief executive. Mr Lamont’s argument that he could not release the report to the board and its legal advisers before tabling in the Assembly is neither good sense nor good law.
There could be no contempt of the Assembly because it was not a report commissioned by the Assembly but by the Executive under the Inquiries Act. There could be no question of defamation because Mr Lamont’s publication to the board and its legal advisers would be covered by privilege (even if a wider publication to the public at large might not be, though that, too is arguable).
If Mr Lamont could let the board members look at the report and make notes, then he could let their lawyers look at it. Elementary legal professional privilege rules say that.
Mr Lamont’s argument that the board was given natural justice because they were represented at the Pearce inquiry does not hold water. The Pearce inquiry was inquisitorial. No opportunity was given to cross examine witnesses and no case was stated at anyone during the inquiry. That was appropriate in those circumstances. It was a “”tell-us-what-happened” inquiry.
To some extent one could have sympathy with Mr Lamont’s position. He was in a cleft stick or damned either way. He would be criticised if he did nothing and is now criticised for acting. But, however damning the Pearce report might be he should have at least allowed the board and its legal advisers a copy of it and at least a couple of days to respond. After all, the Government itself had the report for more than several days before acting.
If he had done that he might have got their resignations. As it is he has engendered a feeling that a lot of things have happened summarily behind closed doors.
A redeeming feature is that Mr Lamont knows his actions will be judged when the report is made public and he presumably feels he will be vindicated in dismissing the board members even if the criticism remains that he did not give each of them a proper chance to put a case.