Commonwealth threatened legal action against Ruby Princess inquiry head over constitutional stoush
The Ruby Princess inquiry’s commissioner has suggested the federal government sought to “sidestep” the rule of law after a Commonwealth employee refused to testify.
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Lawyers for the federal government threatened to launch High Court action to force the Ruby Princess inquiry to withdraw a summons for a departmental worker who refused to testify, with the commissioner warning “the rule of law is not so simply sidestepped.”
Last month Commissioner Bret Walker SC summoned Department of Agriculture worker Traci Joseph to give evidence about any role she played in granting the Ruby Princess permission to dock when she boarded the vessel in Sydney on March 19.
“The commissioner wishes Ms Joseph to understand that it is a possibility that an inappropriate informality, lack of explicit regard to statutory and administrative requirements, and a failure of sensible liaison between her and state offices could be found by the commissioner to have occurred in this case,” Senior Solicitor Assisting the inquiry Jennifer Hoy wrote in a July 9 letter to the Australian Government Solicitor’s office.
“It may be that these possibilities … might found criticisms of the conduct of Ms Joseph, those training and supervising her, and those making the arrangements in question between the Commonwealth and the state.”
When the AGS argued that Mr Walker did not have the authority to issue a compulsory summons to Commonwealth workers, the commissioner indicated he would not issue a warrant to enforce it.
“However your demand that the commissioner withdraw the summons is excessive. The summons stands as an assertion of a power resisted by the Commonwealth,” Ms Hoy wrote.
Ms Hoy said Mr Walker would also “respectfully suggest that the subjection of the Commonwealth and its offices to the rule of law is not so simply sidestepped.”
She said the issue would form part of Mr Walker’s final report, including “any comments the commissioner may decide to express concerning the obstacles placed in the way of proper investigation.”
Mr Walker also argued that it would not be in the public interest that Ms Joseph be prosecuted for not appearing before the inquiry on July 15 in order to test the “constitutional differences between the Commonwealth and the Commissioner.”
The AGS accepted an invitation to provide a voluntary statement regarding Ms Joseph’s actions, which Mr Walker indicated he wanted to consider before deciding whether to excuse her from testifying or not.
“This leaves Ms Joseph in an invidious position and means that the Commonwealth may have no choice but to commence proceedings to protect its long-held position that summonses of the kind in issue are not validly binding on the Commonwealth and its employees,” AGS Chief Solicitor Paul Vermeesch wrote on July 11.
“A decision about her attendance should not be made contingent on an assessment of that (statement). We submitted that the appropriate course would be for Ms Joseph to be excused altogether.”
Mr Vermeesch informed the inquiry that the High Court had tentatively arranged for an urgent hearing to allow the Commonwealth to commence proceedings against the commissioner to determine the issue.
But after reading the statement, Mr Walker exercised his powers and excused Ms Joseph from attending the commission in response to the summons.
Mr Walker is investigating how nearly 2,700 people were allowed to disembark the Ruby Princess at Circular Quay without proper health checks, a decision which has been linked to some 700 infections and more than 20 deaths nationwide.
The inquiry’s final report will be delivered on Friday.