Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Hansard source

Mr Cole has two powers: to investigate companies under the oil for food program that have been mentioned adversely by Volcker and to make recommendations concerning whether or not they have breached the law. Mr Cole has no such parallel powers in relation to the Commonwealth government—that is, as the commission currently stands. Mr Justice Cole made this point very clearly in his 3 February statement. He said:

The present terms of reference permit me to make findings of possible illegality only in relation to the three companies mentioned in the Volcker report. They do not permit me to make findings of illegality against the Commonwealth or any of its officers.

The Prime Minister has on several occasions quoted selectively from Mr Cole’s 3 February statement in this place. But he has taken care, of course, not to repeat the crucial element of Mr Cole’s statement, and I repeat it:

The present terms of reference ... do not permit me to make findings of illegality against the Commonwealth or any of its officers.

Mr Cole has said that in order to make a finding about whether the AWB defrauded the Commonwealth it is necessary for him to make a finding about the Commonwealth’s knowledge. In this regard Mr Cole has said that he will address and make findings about the role and knowledge of DFAT. But it is important to note that his investigation of the government extends only to what the government knew about AWB wrongdoing. In other words, he can investigate whether the government knew that someone else was acting illegally, but there it stops. He does not at this stage have the power to investigate whether the Commonwealth breached Australian or international laws, nor does he have powers at this stage to make findings as to whether the Commonwealth has breached Australian or international laws. Mr Cole has indicated that if, in his current investigation into Australian companies, he comes across evidence pointing to a breach of Australian laws he will then request an expansion of his powers accordingly.

But such evidence about the Commonwealth now can only be obtained as an incidental by-product of the investigation into the four companies, not as an explicit focus of the investigation now, as the Prime Minister and the foreign minister well know. In other words, Mr Cole’s investigations now are conducted in a manner such that he effectively has one hand tied behind his back, courtesy of the limited powers the Prime Minister has given him in the original letters patent.

Furthermore, Mr Cole has been placed in this difficult position. If, incidental to his primary investigation of the four companies, he happens to come across evidence concerning the lawfulness of the Commonwealth’s own action or actions in relation to the AWB, the commissioner can request that the Commonwealth give him more powers to then investigate and reach findings in relation to the Commonwealth itself. Mr Cole should be given those powers now so that his investigations can be conducted and findings made in a totally unfettered environment now.

Labor has sought an opinion on these matters from Bret Walker SC, without doubt one of Australia’s most accomplished and respected lawyers, a former President of the Law Council of Australia and importantly a lawyer with previous experience as a commission of inquiry head, including most recently on the commission of inquiry into the Campbelltown and Camden hospitals. Mr Walker advised:

... the Royal Commission, as presently restricted by its Terms of Reference, definitely does not have full power to investigate whether there has been any relevant wrongdoing on the part of the Commonwealth or its officers.

In his opinion:

... full deployment of the Royal Commission’s powers to investigate and make findings of fact cannot presently squarely address the question whether there has been Commonwealth wrongdoing—as opposed to mere Commonwealth knowledge or suspicion of AWB wrongdoing.

In this respect, Mr Cole in his 3 February statement said that, if he ‘encounters material’ which suggests criminal behaviour by the government, he will seek to have his terms of reference expanded. Mr Walker describes this as an invidious position for Mr Cole to find himself in and notes that ‘it will be a serendipitous or incidental chance’ by which the commissioner might in the course of his inquiries stumble upon information which ‘turns out also to indicate the possibility of Commonwealth wrongdoing’.

Contrary, therefore, to the Prime Minister’s assertions that Mr Cole will look at every aspect and that he will ask all the questions, the terms of reference clearly restrict Mr Cole’s ability to look at the whole picture. Let us consider for a moment some of the matters that Mr Cole cannot under his current terms of reference investigate or make findings about. First, he cannot investigate or make findings about whether the government or any officials breached any domestic Australian law. Second, he cannot investigate or make findings about whether the government breached international laws—for example, whether it upheld its obligations under UN Security Council resolutions, including resolution 661, to prevent Australian citizens and companies making payments to Saddam Hussein’s regime. Third, he cannot investigate or make findings about whether the government, including ministers, performed its functions competently or negligently under domestic or international laws and, if negligently, whether recklessly negligently in terms of the discharge of its responsibilities.

Fourth, as we indicated in question time today, he cannot investigate or make findings about where the money went. He cannot investigate whether the kickbacks paid by the AWB and approved by DFAT were used to reward the families of Palestinian suicide bombers, to buy weapons, to fund the insurgency in Iraq or for any other purposes that are blatantly illegal under a range of domestic and international instruments.

On 13 February the Prime Minister told the parliament that the inquiry was established as a result of the findings of Volcker. He said that Volcker:

... did not make an adverse finding about the Australian government. If he had, then the terms of reference would have gone further than they have.

The Prime Minister’s statement tells us two things: first, that he knows that Mr Cole’s terms of reference do not include an investigation of the Australian government’s wrongdoing, belying his constant claims that they do; and, second, that his justification for not expanding the terms of reference is that the Volcker inquiry has cleared the government of any wrongdoing.

The problem with Mr Howard’s Volcker defence is that the Volcker inquiry did not have in its own terms of reference the power to investigate the actions of the Australian government. Furthermore, Volcker himself in making his conclusions, in relation to both the AWB and other matters, had not been provided by the Howard government with full documentation. The Howard government had not provided Volcker with the documents provided by the Wheat Export Authority. Furthermore, we know from Senate estimates that DFAT’s electronic files were not provided to Volcker either.

Therefore, it is now an established fact that Volcker was not given full documentation by the Howard government. It is an established fact that Volcker had no powers to make findings against the Australian government anyway. But even if they had such powers, how could Volcker have reached any informed finding in relation to the government’s actions when the Howard government had deprived the Volcker inquiry of huge slabs of relevant documentation? The Prime Minister has used explicitly the absence of adverse findings in Volcker to justify the fact that the Cole commission of inquiry was not given wider terms of reference. It is for these reasons that the Prime Minister’s defence of the narrow terms of reference given to Mr Cole collapses in a heap.

What we have seen in the debate over the last two weeks is a government which has been clearly found out for having not done its job—for not having had its eye on the ball, for not having discharged its most basic of national security responsibilities; namely, to prevent hundreds of millions of dollars being paid over to the enemy.

In question time today we had a Prime Minister, by contrast, rather than recognising that his government had done something wrong, determined instead to deliver the parliament and the opposition in particular a moral lecture. A moral lecture is what the Prime Minister gave us today. He told us what the decent thing to do was. He told us that the only decent thing to do was for the Australian Labor Party basically to button up—that the responsibility of the opposition at this stage was not to provide proper scrutiny. He lectured us that the decent thing to do was not to presume that the AWB had been in any respect guilty of anything. This comes from the Prime Minister seven years after this whole corruption scandal began. It comes two years after the Volcker inquiry began. It comes six months after the Volcker inquiry reported the fact that this $300 million scandal is the worst contribution to Saddam Hussein’s regime worldwide, and it comes one month after the Cole inquiry began.

And still this Prime Minister has the audacity to stand in this House and deliver the Australian Labor Party a moral lecture about what the decent thing to do is. Well, Prime Minister, the decent thing to do would have been to have told the truth about ‘kids overboard’. The decent thing to do would have been to have told the truth about Iraqi WMD. The decent thing to do would have been to have told the truth and done the right thing in response to each of the warnings that you had about what the AWB was up to. The decent thing to do would have been to have provided full documentation to Volcker. The decent thing to do would have been to have provided decent terms of reference to Mr Cole for his inquiry and the decent thing to do would not have been to gag public servants from telling the truth to the Senate estimates committee because you fear what the truth might contain.

See this speech in context