The Cole Report: implications for responsible government

The report of the Oil For Food Commission of Inquiry (the Cole Report) has, as expected, generated a large volume of media and political commentary, much of which was delivered within a few hours - a day at the most - of the release of the report.

The modern demands for immediate news and analysis meant that journalists and the commentariat were forced to essentially snatch at the more obvious points of the Cole Report, and were unable to read, digest and properly analyse the report before delivering their findings.

This is not intended as criticism - just as a simple statement of fact. The news cycle no longer allows the luxury of time, if indeed it ever did. Unfortunately, however, there is a risk that on this occasion a misinterpretation of one key paragraph of Cole's report could have profound implications for responsible government in Australia.

The paragraph, which has turned up in a range of key media outlets is para 30.7, on page 20 of volume 4 of the report. It reads in part:

"It is the actual knowledge of the Commonwealth that the information was false or misleading that is material … the question whether the Commonwealth may have had constructive knowledge (in the sense that it ought reasonably to have known the truth or that it had the means and ability to find out the truth) is immaterial."

When Cole wrote this, he was making an assessment of whether AWB has essentially defrauded the Commonwealth by misleading the Commonwealth. When you mislead someone, it is the victim's actual, not constructive, state of knowledge which counts. Cole was not, at this point in his report, attempting to assert that the government should avoid political liability on the basis that its constructive knowledge was immaterial.

Regrettably, the latter interpretation has been made in the media. For example, when Kerry O'Brien interviewed Kevin Rudd on the 7:30 Report on September 27, O'Brien led the following question: "Justice Cole also says, 'The relevant question is whether DFAT actually knew the relevant information, not whether it ought to have known or had the means to discover it.’ He's clearly established that DFAT didn't know the relevant information. Doesn't that take the oxygen out of your case against the Government?”

Well, no, Kerry. That wasn't actually what Cole was saying at all.

My concern is that this misinterpretation, should it become an orthodoxy, may have profound implications for responsible government in Australia. Responsible government has two key aspects: collective responsibility, by which the cabinet stands and falls as a team; and individual responsibility, by which individual ministers must be prepared to answer to the parliament for the administration of their portfolios.

Individual responsibility underpins a range of our parliamentary processes, from question time to estimates. Even though traditional notions of individual responsibility (such as ministers resigning for maladministration) are now observed more in the breach than in the practice, individual ministerial responsibility itself is central to our system of parliamentary government.

In turn, constructive knowledge - things that one ought to know, or could reasonably learn - lies at the heart of individual ministerial responsibility. A modern department of state is so impossibly complex that no minister could ever be entirely across the policy and administration of their portfolio.

Regardless of how intelligent or competent they are (and despite popular perception, many are both intelligent and competent) it is simply beyond human capacity to know everything important in a portfolio area. Consequently ministers are supported by networks of staff, both political staff and public servants, whose job it is to manage day-to-day policy and administration, and to escalate those matters which genuinely do require ministerial attention.

The minister, however, remains responsible to the Parliament for the policy and administration of their portfolio, whether they personally know about a particular matter or not. They are held by the Parliament to have constructive knowledge - because they are in a position to be briefed by their staff on any matter within their portfolio. Certainly nobody else in the Parliament is in such a position.

If ministers were able to argue that they can only be responsible for the matters about which they have actual knowledge, then responsible government is dead. If ministers can protect themselves from political liability by cultivating ignorance - or if advisers can save the boss' bacon by protecting them from the truth - then the Parliament will be entirely unable to hold them to account. The ostrich defence will trump responsible government every time.

However the AWB matters play out, in the criminal courts, in the Parliament, or in the media, it is vital that the Cole Report must not come to stand as an authority for the proposition that ministers are somehow only responsible to the Parliament for matters about which they have actual, rather than constructive, knowledge. Such a misinterpretation would be a far worse outcome for Australia than anything which might arise from the scandal.