The Deputy Chief Minister and Minister for Sport, David Lamont, said yesterday that it would have been remiss of him as a minister not to have dismissed the ACT TAB board last Friday.
The Canberra Times has copies of letters between him and the board’s chair, Athol Williams, showing Mr Lamont refused to give the board collectively or its legal advisers copies of the Pearce report into the Vitab affair upon which the dismissals were based.
Mr Lamont said that after receiving the report he had got advice from the Chief Government Solicitor. If he had not acted he would have left himself open to the allegation that he had not acted responsibly.
He rejected arguments that he had not given the board members natural justice to respond to the case against them saying they had had legal representation at the Vitab inquiry at government expense. They had had an opportunity to put submissions to the inquiry and to answer questions.
The Canberra Times has copies of the five faxed or hand-delivered letters between Mr Lamont and the chair of board Athol Williams.
In the first Mr Williams refers to discussions with Mr Lamont about the Pearce report and requests a confidential copy of the report for consideration at a special meeting of the board that day, Friday.
The second letter is Mr Lamont’s response saying, “”I am unable to release the report prior to its tabling in the Assembly. However, I have afforded every member of the board the opportunity to read the report in my office.”
Mr Williams wrote back saying the board had met and in the absence of the report adjourned until it was available because it was inappropriate for the board to respond “”on the basis of the limited opportunity which some members had, individually, to skim read the report in your office yesterday”.
Mr Lamont sent a letter saying he was considering terminating Mr Williams’s appointment and asking, “”If there is anything further you wish to have me consider would you please inform me prior to close of business today.”
Mr Williams repeated his request for a copy of the report saying he had not been given a proper opportunity to consider it and had been “”given no opportunity to seek legal advice in relation” to it. He said he and the board could not “”deal with the matter raised in your letter” until they had a copy of the report and an opportunity to seek legal advice.
Mr Lamont then sought resignations from four members of the board and those who did not were dismissed. One board member is overseas. Mr Lamont as minister has power to this as the ACT TAB is a statutory authority. Under the ACT TAB’s Act the minister can act in cases of misbehaviour or incapacity.
Mr Lamont said it was unfortunate that the Pearce report was not public so people could see his action was warranted. However, it was being tabled in the Assembly at the first reasonable opportunity. He had had legal advice saying that the report was not protected by privilege and could leave people open to defamation actions, so it was necessary to table it to make it public.
Mr Lamont says the Inquiries Act needs to be amended to clear the privileges question up.
COMMENT: The Government’s excuse that it had to wait for the Assembly before it could make the Pearce report public does not hold water. It can only be based on very cautious advice, and in any event it could easily deal with any weakness in the law if it really wanted to make it public before it shafted all of the blame for the Vitab fiasco on to the board.
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, and it certainly would not have prevented giving a copy to the board’s lawyers.
By the time the report is made public (and presumably it will damn ACT TAB and mildly rebuke the Minister’s office and perhaps touch the wrist of the department) it will look as if the Government has fixed the problem.
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. At the Pearce inquiry (which was inquisitorial) no-one got the chance to challenge witnesses and there was no case presented against anyone. So Mr Lamont should not argue that the government-provided lawyers for ACT TAB at the inquiry provided the natural-justice foundation for their later summary dismissal.
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.