Email 3/9/07

Mr Greg McMahon,
National Director,
Whistleblowers Association

Cleaning Up Queensland's Messes: Is the Law Enough?

I should like to provide some feedback regarding your Association's support for calls by interstate members of the legal profession for more action by the Queensland Government in relation to the Heiner affair (as you outlined during Steve Austin's show on radio 4QR on 3/9/07). You highlighted the fact that those 'legal eagles' had submitted (in effect) that the Goss Government's actions potentially undermined the integrity of the whole legal system (including people's right to a fair trial).

I should like to submit for your Association's consideration, that while the Heiner affair might yet be resolved by strict legal compliance, there are complications.

It appears to me that your Association is assuming that the Heiner documents' fiasco arose because the law was not enforced, and that the solution is to enforce it - and to pay more attention to whistleblowers in future as they can expose non-compliance with, and non-enforcement of, law.

Unfortunately this is not the full story. The incompetence / ignorance / inexperience of those who made the decision were almost certainly the major reason that the Heiner documents were destroyed. The subsequent failure by Queensland institutions to fully enforce the letter of the law has presumably been based on an assumption that 'good people' made an unfortunate mistake, and shouldn't be punished for it (ignoring the fact that others 'who they don't know' were harmed).

But this didn't happen in a vacuum. The incompetence / ignorance / inexperience of those given power under the Goss administration were products of bad political decisions about how to 'reform' Queensland's public sector (see Toward Good Government in Queensland, 1995). Moreover those bad decision were probably the result of a lack of understanding that the difficulties elected governments increasingly experienced in implementing their policies reflected the growing complexity that they have to deal with (see Challenges to Australia's Democratic Institutions) rather than bureaucratic 'resistance'.

Unfortunately enforcement of law is not, in itself, a total solution to such problems.

For example, I was involved in 'whistleblowing' related to professional competence in making 'senior' appointments under the Goss administration. However my competence-oriented 'whistleblowing' hit a brick wall because (as the Ombudsman's office pointed out) Parliament had changed the law so that persons appointed to 'senior' positions were no longer required to be professionally competent. Thus what could law enforcement actually do?

And the Heiner affair (with all its personal stresses and potential systemic consequences) presumably arose mainly because the Goss Government's lawful process for making 'senior' appointments did not require professional competence.

I am not trying to imply (as one observer suspected) that the ignorance / inexperience of those involved in a new government excuse abuses of power (ie that there should be a 'learning period' in which mistakes can be made without those involved being held accountable for the consequences).

Quite the reverse. Incompetence / ignorance / inexperience are features that even new governments should not exhibit - but the Goss government had those features because it traded the idea of a professionally competent Public Service for a politically compliant one, and did not foresee the adverse consequences of doing so.

Unfortunately there are consistently-ignored systemic problems that governments now confront that are not going to go away even if legal pressure finally clears up the Heiner affair, or any number of other real or apparent abuses of power.

My comments are not intended as a criticism of your Association's actions, but as a caution about the need to keep the broader context in mind.

Regards

John Craig