Either the ACT Government is badly advised, or it does not have any imagination or it is behaving artfully artful. Or perhaps all three.
The Deputy Chief Minister, David Lamont, said he had to dismiss the ACT TAB board immediately because of what was in the Pearce report into Vitab.
He got legal advice saying he could do this.
An exchange of letters received by The Canberra Times, however, reveals that he did not let the board members could not take away a copy of the report to discuss with their lawyers.
Mr Lamont says he could not release the report until it was tabled in the Assembly because it would not attract privilege if someone was sued for defamation.
This approach is not well-founded in law or natural justice. The fundamental rule of natural justice is that people are entitled to know the case against them (that is the charge) and have a reasonable opportunity to meet it.
On the natural justice point, Lamont argues that ACT TAB was legally represented at the inquiry at government expense. But the inquiry was inquisitorial, quite appropriately. It wanted to quickly find out what happened. No-one was answering a case against them. No-one was permitted to cross-examine witnesses. It was not that sort of inquiry.
After getting the report Mr Lamont quite rightly (on his view of the report) moved against the board. But he should have allowed the board members’ lawyers access to the report. He did not, so the board members had no means of knowing the charge or meeting it.
The Government’s excuse that it had to wait for an Assembly tabling does not hold water. Releasing it to the board members and their lawyers would most certainly be privileged and no-one could sue.
Further, with some imagination it could easily have made the report fully public if it wanted to, without waiting for the Assembly.
Section 38 of the Inquiries Act says: “”No action or proceeding, civil or criminal, lies against a person in respect of the publication of a fair and accurate report of the proceedings of a hearing before a Board.”
The judgment or report has always been regarded as part of the “”hearing”, but if the Government really wanted to be sure it could have asked Professor Pearce to reconvene a hearing of the board for 10 minutes and announce: “”These are my findings which I publish in written form.”
Or he could have got a minion to read them into the record.
Alternatively, the Government with the support of the Opposition could have announced it was going to legislate to make it clear “”hearing” includes “”findings” and apply that retrospectively to the Pearce report.
In any event it is likely that the Pearce report has common law privilege.
The defamation argument seems more one of political convenience than substance.
It seems as if the Government wanted to shaft all of the blame on the board and make it look as if the problem was fixed by the time the report is made public today and hope that any mild rebuke of the Minister’s office and tap on the wrist of the department gets subsumed.
It may be the board deserved the boot, but even if someone is holding a smoking gun with a dead body in front of him, he deserves to know the charge and have a chance to respond to it and challenge its witnesses. The board did not get that.
The irony is that it is likely the Pearce report provides enough ammunition to hang the board, but you have to give them a chance to meet the case before the rope goes over the scaffold.