tag:theconversation.com,2011:/fr/topics/pink-batts-royal-commission-9249/articlesPink batts royal commission – The Conversation2020-07-08T19:47:45Ztag:theconversation.com,2011:article/1413672020-07-08T19:47:45Z2020-07-08T19:47:45ZIf architecture is the canary in the coalmine, the outlook for construction is appalling<figure><img src="https://images.theconversation.com/files/346261/original/file-20200708-3987-u7whcm.jpg?ixlib=rb-1.1.0&rect=1841%2C1309%2C1881%2C1173&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Architecture suffers before building does.</p>
<p>A survey of more than 450 architecture practices conducted by the Association of Consulting Architects finds that <a href="https://aca.org.au/article/pulse-check-no-3-preliminary-findings">two thirds</a> have lost more than 30% of their revenue, and eight in ten have had projects cancelled or put on hold. </p>
<p>Six in ten are relying on JobKeeper. Half have cut pay or working hours. Three in ten have stood down or sacked staff. Only 15% believe they have enough work to see out the year. </p>
<p>In total, the survey finds more than A$10 billion of projects have either been cancelled or put on hold, just among those responding to the survey.</p>
<p>John Held, the National President of the Association of Consulting Architects says</p>
<blockquote>
<p>unless there is a more effective stimulus package for construction, the government will need to consider extending JobKeeper beyond its expiry in September to prevent the loss of many normally-viable architectural practices. Without a pipeline of projects, a substantial rise in unemployment across the whole construction sector will result</p>
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<p>Dr Peter Raisbeck, an expert in the building and construction industry at the University of Melbourne, says</p>
<blockquote>
<p>two thirds of architects in Australia are small businesses employing less than five people, operating on small profit margins. Widespread insolvencies amongst these vulnerable firms would be catastrophic</p>
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<p>The design professions – architecture and engineering – are the <a href="https://www.forbes.com/sites/kionasmith/2019/12/31/the-canary-in-the-coal-mine-isnt-ancient-history/#c6abbe843931">canary in the coalmine</a> for the wider construction industry. If those professions are in a slump now, construction itself will most probably be in big trouble in three to six months. </p>
<h2>A window on the future</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=971&fit=crop&dpr=1 600w, https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=971&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=971&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1220&fit=crop&dpr=1 754w, https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1220&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/346257/original/file-20200708-23-1fyr6t7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1220&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Surveys point to fewer cranes on the horizon.</span>
<span class="attribution"><span class="source">JULIAN SMITH/AAP</span></span>
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<p>The findings are reinforced by forecasts prepared by the <a href="https://www.acif.com.au/acif-news/australian-construction-industry-forum-issues-coronavirus-recovery-proposal-constructions-bridge-to-recovery">Australian Construction Industry Forum</a>. </p>
<p>They show that while engineering construction on projects such as motorways and public transport is likely to hold up reasonably well, residential and non residential construction, already weak prior to COVID-19, is set to slump over this year and the next, with the brunt of the impact being felt in NSW and Victoria. </p>
<p>It will be very bad for employment. </p>
<p>The building and construction industry consists of nearly 400,000 businesses that directly employ more than 1.2 million Australians. Most of the supply chain for building materials is in Australia, particularly for low-rise residential buildings. </p>
<p>The immediate priority should be to ensure that projects continue to be designed and documented to avoid the “valley of death” caused by the need for drawings to be completed before construction can start. </p>
<h2>We’ve had warning</h2>
<p>If eight out of ten architectural practices have projects that have been cancelled or put on hold now, there will be a significant shortage of projects going to tender later in 2020 and in 2021. </p>
<p>Based on the numbers in the surveys, the loss of jobs in construction could add two percentage points to unemployment during 2021. </p>
<p>To overcome the valley of death, something needs to be done to restart projects that have been deferred or cancelled. </p>
<p>To their credit, state and territory governments have brought forward varying amounts of public works projects, including schools, hospitals and a small amount of social housing. In Victoria, the acceleration of the government’s <a href="https://theconversation.com/cladding-fire-risks-have-been-known-for-years-lives-depend-on-acting-now-with-no-more-delays-111186">combustible cladding replacement program</a> is also helping to prop up demand.</p>
<p>Unfortunately, the evidence from the Association of Consulting Architects survey suggests this won’t be enough.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/homebuilder-might-be-the-most-complex-least-equitable-construction-jobs-program-ever-devised-140162">HomeBuilder might be the most-complex least-equitable construction jobs program ever devised</a>
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</em>
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<p>HomeBuilder, the federal government’s $680 million program intended to “save the tradies”, appears <a href="https://www.afr.com/property/residential/frustrating-state-delays-hold-up-homebuilder-grants-20200615-p552na">to have stalled</a>. </p>
<p>So far, none of the states has finalised an implementation plan for the scheme, perhaps because it was so <a href="https://theconversation.com/homebuilder-might-be-the-most-complex-least-equitable-construction-jobs-program-ever-devised-140162">poorly designed</a>. </p>
<p>In Sydney, where a lot of houses may exceed the $1.5 million value cap, some builders are complaining that the scheme is actually delaying decisions while homeowners wait to see if it will apply to them.</p>
<h2>And we know what to do</h2>
<p>We can learn from history. The Rudd government’s $3 billion (in today’s money) <a href="https://www.anao.gov.au/work/performance-audit/building-education-revolution-primary-schools-21st-century">Building the Education Revolution</a> scheme was successful in stimulating construction and delivering jobs during the global financial crisis. </p>
<p>The $3 billion <a href="https://www.anao.gov.au/work/performance-audit/home-insulation-program">Home Insulation Program</a> (later known as the “pink batts” program) also created jobs. </p>
<p>Although there was widespread and justified criticism of how both programs were implemented, they were big enough and quick enough to make a difference to employment. And they delivered general benefits. </p>
<p>We should be able to learn from these ideas and the mistakes that were made in their implementation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/whatll-happen-when-the-moneys-snatched-back-our-looming-coronavirus-support-cliff-138527">What'll happen when the money's snatched back? Our looming coronavirus support cliff</a>
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<p>The Morrison government’s efforts to support the construction industry to date have been too small and too slow. The architects survey suggests the design professions will go over a cliff in September. The construction forecast suggests that the construction industry will follow them over in 2021. </p>
<p>State and local governments have a long list of useful school, health and community projects that could go ahead now if the federal government made the money available. </p>
<p>Many shovel-ready projects that have been cancelled are in the higher education sector, many of them meant to deliver the STEM graduates or STEM research that the government <a href="https://www.theguardian.com/australia-news/2020/jun/19/australian-university-fees-arts-stem-science-maths-nursing-teaching-humanities">says it is keen on</a>. </p>
<p>There is also a crying need for good <a href="https://theconversation.com/why-the-focus-of-stimulus-plans-has-to-be-construction-that-puts-social-housing-first-136519">social housing</a>, made more apparent by <a href="https://www.theage.com.au/national/victoria/covid-public-housing-wrap-20200705-p5596z.html">developments in Melbourne</a>.</p>
<p>If we learned anything from the global financial crisis, it was that going hard and early worked. It is not too late to do it now, but it will be soon.</p><img src="https://counter.theconversation.com/content/141367/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Geoff Hanmer is the Managing Director of ARINA, an architectural consultancy. He has received funding from the NSW Government and from the University of Adelaide. He is a member of the Australian Institute of Architects. His practice is not a member of the ACA, but the ACA's data has been kindly made available to him by the National President of the ACA, John Held. </span></em></p>The design professions are set to go over a cliff in September. Construction is set to follow them in 2021.Geoff Hanmer, Adjunct Professor of Architecture, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/353852014-12-15T19:53:27Z2014-12-15T19:53:27ZFour lessons the NDIS must heed to avoid a ‘pink batts’ disaster<figure><img src="https://images.theconversation.com/files/67193/original/image-20141215-6030-r29lhd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">State and territory regulators need to start gearing up to meet the growth.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-98920793/stock-photo-mother-with-disabled-son-walking-outdoors-with-walker-medical-mobility-equipment.html?src=iQ05_n5Zmne1Mu-MBpKYiQ-1-80">Jaren Jai Wicklund/Shutterstock</a></span></figcaption></figure><p>The <a href="https://theconversation.com/au/topics/ndis">National Disability Insurance Scheme</a> (NDIS) is revolutionising the provision of services to Australians with disabilities. The cornerstone of the scheme is its demand-side reforms: people with disabilities will get greater choice and control over the support they receive. This feature has understandably received most publicity and attention. </p>
<p>Supply-side reforms – the doubling of the provider market, changes in its mix, and the development of a national approach to quality assurance and provider oversight – have received comparatively little attention. Yet it is on the supply side that much of the NDIS’s risk exists. </p>
<p>Disability advocates have <a href="http://www.nds.org.au/asset/view_document/979324120">expressed concern</a> about the ability of the disability services market to grow to meet demand. Advocates also have <a href="http://www.probonoaustralia.com.au/news/2014/12/%E2%80%98stressful%E2%80%99-state-disability-sector-report">concerns</a> that low wages will attract people without the required skills and competencies. </p>
<p>The NDIS shares important supply-side similarities with another high profile hybrid Commonwealth/state scheme, the “pink batts” <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/default.aspx">Home Insulation Program</a> (HIP). Like the HIP, the NDIS involves injecting significant funds into a provider market with insufficient capacity; and it relies on existing state and territory regulatory regimes to provide oversight, quality assurance and safety. </p>
<p>But while the HIP suffered catastrophic failures in regulating the provider market, the NDIS can avoid the same mistakes by learning <a href="http://www.altlj.org/publications/back-issues/2014-vol-39/category/118-vol-39-2-2014-public-interest-private-rights">these lessons</a> from the HIP. </p>
<h2>1. Implement strong and timely provider controls</h2>
<p>The NDIS, like the HIP, involves significant investment to grow a market. This “honey pot” will attract new providers with varying experience, skills and motivations. </p>
<p>In this situation, neither a light regulatory touch nor reliance on the power of market forces is likely to suffice. Strong and timely provider controls are required. In the case of the HIP, these controls were introduced late and were continually being adjusted as problems arose. </p>
<p>Here, the NDIS has made an inauspicious start. While the inclusion as part of the NDIS of a national quality framework is positive, the delay in its development is of concern. </p>
<p>Also of concern is the NDIS’s reliance on existing and variable state and territory regulatory regimes not designed for the volume and demands of the NDIS. A scheme of the size and importance of the NDIS requires tailor-made controls. </p>
<h2>2. Ensure proper coordination and communication</h2>
<p>Hybrid schemes such as the NDIS and HIP involve numerous interactions and interdependencies. Many are obvious and known; others are subtle and may be hidden. At key points of the HIP, information about major risks either was not properly shared, or its importance not appreciated. Transparent and inclusive communication and consultation processes are essential.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/67191/original/image-20141215-6036-17f91h6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The NDIS’s staged implementation allows the design and operation of the scheme to be tested and adjusted.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-106122155/stock-photo-disabled-young-man-in-wheelchair-preparing-dinner-in-the-kitchen.html?src=zVGIDUHDQ70ls9LUcGN1cw-1-28">Jenny Sturm/Shutterstock</a></span>
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<p>Here, the early signs of the NDIS are encouraging. Strong governance arrangements are in place. COAG has established a dedicated <a href="http://www.ndis.gov.au/about-us/governance">Standing Council on Disability Reform</a> to oversee and coordinate all jurisdictions’ input into the reform. And its implementation is being overseen by an independent statutory agency, the <a href="http://www.ndis.gov.au/">National Disability Insurance Agency</a> (NDIA). </p>
<p>Importantly, the NDIA comprises members with appropriate skills, experience and knowledge, and is supported in its role by an <a href="http://www.ndis.gov.au/about-usgovernance/national-disability-insurance-scheme-independent-advisory-council">Independent Advisory Council</a> made up of representatives of the reform’s key stakeholders. </p>
<h2>3. Avoid taking short cuts</h2>
<p>Many of the HIP’s problems can be traced to its prioritisation of speed over proper process. As a result, many risks associated with the program were either not identified, or their magnitude and remedial action not properly understood or scoped. </p>
<p>The NDIS appears to be learning this lesson. While speed of delivery is important (the previous Labor government brought forward the launch of the NDIS to 1 July 2013, a year earlier than the <a href="http://www.pc.gov.au/__data/assets/pdf_file/0012/111270/disability-support-volume1.pdf">Productivity Commission recommended</a>), priority is being given to careful analysis, planning and design. </p>
<p>The <a href="http://www.ndis.gov.au/about-us/new-trial-sites-campaign-resources">staged implementation</a> is particularly wise, allowing for the design and operation of the scheme to be tested and adjusted while limiting the consequences of any errors. </p>
<h2>4. State and territory regulators need to gear up</h2>
<p>Like the HIP, the NDIS was largely developed and designed by the Commonwealth but relies on the active cooperation and participation of the states and territories for its effective and efficient delivery. </p>
<p>In the case of the HIP, the <a href="http://www.homeinsulationroyalcommission.gov.au/Documentation/Pages/default.aspx">many reports</a> into the program make clear that the sheer volume of activity overwhelmed some state and territory regulators. </p>
<p>The extent to which the NDIS is learning this lesson is unclear. On the demand side, disability advocates have <a href="http://www.abc.net.au/am/content/2014/s4144814.htm">expressed concerns</a> that the speed with which state and territory governments are exiting the provider market will leave some people with disabilities without support.</p>
<p>On the supply side, the Commonwealth has made clear in its <a href="http://www.ndis.gov.au/providers/quality-and-best-practice-framework">guidance to providers</a> that they will need to comply with all applicable state and territory disability, general consumer protection and occupational health and safety laws. </p>
<p>But the Commonwealth has not provided any funding to the states and territories to cover the increased demands this will inevitably place on them. Despite this lack of funding, I hope appropriate resourcing decisions are being made at the state and territory level.</p>
<p>Notwithstanding their starkly different subject-matter, the NDIS and HIP initiatives share many supply-side features. All governments and regulators involved in the NDIS should heed the lessons of the “pink batts” scheme.</p><img src="https://counter.theconversation.com/content/35385/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Windholz does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The National Disability Insurance Scheme (NDIS) is revolutionising the provision of services to Australians with disabilities. The cornerstone of the scheme is its demand-side reforms: people with disabilities…Eric Windholz, Lecturer in Law and Associate, Monash Centre for Commercial Law and Regulatory Studies, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/311892014-09-08T05:05:49Z2014-09-08T05:05:49ZInsulation royal commission exposes fatal market flaws<p>The most important finding in the final report of the <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/default.aspx">Royal Commission into the Home Insulation Program</a> is the one the Abbott government is least likely to heed. One of the two crucial flaws Commissioner Ian Hanger identified was the decision to build the Home Insulation Program (HIP) around a laissez-faire market-delivery model. By offering an easily accessed rebate, the Rudd government decided that start-up companies, not the public service, would have oversight of the program.</p>
<p>Hanger’s report also exposes the fact that this choice of business model, a “turning point in the [Home Insulation Program]”, was imposed on the then Department of the Environment, Water, Heritage and the Arts (DEWHA) by forces close to then prime minister Kevin Rudd: the <a href="http://www.dpmc.gov.au/annual_reports/2009-10/html/chapter-3-domestic-policy/office-of-the-coordinator-general/">Office of the Coordinator-General</a> (a role Rudd created to oversee the stimulus measures) and Senator <a href="http://www.theaustralian.com.au/national-affairs/insulation-blame-sheeted-home-to-alp-by-royal-commission/story-fn59niix-1227044453748">Mark Arbib</a>.</p>
<p>Former Labor attorney-general <a href="http://www.abc.net.au/lateline/content/2014/s4078838.htm">Mark Dreyfus is right to say</a> that the A$20 million spent on the Royal Commission has not vastly altered the account of the insulation scheme that the previous eight inquiries had provided. The picture of a rushed program run by public servants with little understanding of the potential hazards of working in ceiling spaces was well-established.</p>
<p>Prime Minister Tony Abbott must also be lamenting the failure of the Royal Commission to confirm the multiple <a href="http://www.theaustralian.com.au/national-affairs/insulation-blame-sheeted-home-to-alp-by-royal-commission/story-fn59niix-1227044453748">“direct personal warnings”</a> that Coalition MPs had claimed were issued to Rudd and Environment Minister <a href="http://www.petergarrett.com.au/">Peter Garrett</a>.</p>
<h2>A rush to outsource responsibility</h2>
<p>However, the findings do raise profound lessons for government. The dominance of market-knows-best ideology among the senior public service and Labor ministers and their staffers was critical to the mistaken and deadly assumptions behind the insulation program’s design. Linked to this, the commission has highlighted the disastrous role of private consultants and particularly the program’s <a href="http://www.theaustralian.com.au/national-affairs/need-for-speed-won-over-safety-in-home-insulation-scheme/story-fn59niix-1227044309654">“external risk expert”</a>, Minter Ellison’s Margaret Coaldrake. Underpinning all these problems was the lack of program delivery experience and capacity within the environment department.</p>
<p>The Hanger report is the first to identify the abrupt imposition of a new delivery model, two months into the planning process, as a “critical” decision (page 4), “indeed the cause of later failures by the Australian government” (p. 157). Until a meeting on 31 March 2009, environment department officials had planned to contract major regional firms for recruiting, training and supervising the new insulation installer workforce.</p>
<p>This “regional brokerage” model (similar to that administered by the states in the <a href="http://en.wikipedia.org/wiki/Building_the_Education_Revolution">Building the Education Revolution</a> school halls stimulus program) itself relied on outsourcing, albeit to experienced companies with “skin in the game”. But Minter Ellison’s first risk assessment found the department’s inexperience made it virtually impossible that the contracts would be signed off in time for the July 1 roll-out announced by Rudd. Minter Ellison’s suggested treatment for this and most other risks was to transfer “the largest risks to third parties (effective outsourcing)” (p. 117).</p>
<p>As Hanger notes, it was likely this risk report that informed the decision by the Office of the Coordinator-General (OCG) and Senator Arbib (p. 106) to push for a wholly new model for the home insulation program. The resulting “market-delivery” (p. 127) rebate model was unilaterally imposed on environment department officials without warning at a meeting that Hanger found was “structured to impose the OCG delivery model on DEWHA” (p. 136).</p>
<h2>Letting the market rip</h2>
<p>Rather than contract large companies to deliver the program, the government would provide a Medicare-administered rebate coupled with a low-barrier-to-entry online registration system. Market forces would do the rest. It was this recipe of funding and easy registration that drove the 15-fold increase in installations as the number of installation companies grew from 200 before the insulation program to 8,359 (p. 2).</p>
<p>As well as a zeal for meeting Rudd’s July 1 roll-out deadline, the OCG-Arbib model was “designed to allow market forces to work and deliver the most efficiency/effectiveness without providing a centralised solution” (p. 128). It would be a “light-touch regulatory model” (p. 131) that would “let the market operate with few restrictions” (p. 131).</p>
<p>The insulation program was constructed in response to the Global Financial Crisis, which Rudd and others categorised as a crisis of “neoliberalism”. And yet the public servants, and even Labor ministers involved in designing the scheme, were driven by the notion that public involvement should be minimised while, in the words of the public servants, they “let the market rip” (p. 144).</p>
<p>And rip it did. Every month that the program ran, a year’s worth of insulation activity was generated. The government orchestrated this situation and Hanger has found (p. 3) that the government was responsible for the results:</p>
<blockquote>
<p>1.1.18 The reality is that the Australian Government conceived of, devised and implemented a program that enabled very large numbers of inexperienced workers – often engaged by unscrupulous and avaricious employers or head contractors, who were themselves inexperienced in insulation installation – to undertake potentially dangerous work. It should have done more to protect them. </p>
</blockquote>
<p>The commission has found that even when government outsources work, “risk cannot be abrogated” (p.309). This has profound implications for the delivery of government programs by both sides of politics.</p>
<h2>The delusion of outsourcing risk</h2>
<p>As incredible as it may now seem, the public service saw the market-driven delivery model that relied on the ballooning of start-up companies as reducing the risk profile of the program. This can only be explained because the notion of risk that prevailed among program designers had nothing to do with the provision of a safe program.</p>
<p>Risk management was instead concerned to minimise the financial, political, legal and reputational risks to the Commonwealth. While shared across the insulation program management team, this concept of risk was embodied by the Minter Ellison risk expert Margaret Coaldrake. She told (p. 111) the commission:</p>
<blockquote>
<p>The focus for the project was on risks to the Commonwealth and [the insulation program’s] implementation because the Commonwealth cannot manage a risk for someone else.</p>
</blockquote>
<p>Hanger’s report sharply rejects Coaldrake’s understanding, saying (p. 119):</p>
<blockquote>
<p>That view is flawed … The risk to the Commonwealth of the [Home Insulation Program] includes the risk to the safety of one of its citizens undertaking work as part of the program.</p>
</blockquote>
<p>Despite employing a “bevy” of risk experts, until the electrocution of 25-year-old insulation installer Matthew Fuller in October 2009, the risks facing installers were not mentioned in Minter Ellison’s 20-page central “Risk Register”. When questioned about this, Coaldrake told the commission that her role was merely facilitation and that no one in the department had informed her that workers could be injured as part of the program.</p>
<p>In fact, the commission uncovered evidence that injury to installers had been raised at an early DEWHA risk workshop. It was listed in early drafts of Coaldrake’s own risk register. However, between 10.54am and 12.05pm on 27 March 2009, this risk disappeared from the register, and neither Coaldrake nor any of the DEWHA staff redressed its omission during the crucial next six months of the program.</p>
<h2>Governments have lost in-house expertise</h2>
<p>Hanger finds that the Commonwealth did not have the in-house expertise to purchase and manage the “expert services” of Coaldrake (p. 312) whose role in the insulation program Hanger describes as “patently inadequate” (p. 5). </p>
<p>This finding echoes that of the <a href="http://www.news.com.au/national/breaking-news/final-report-on-school-building-the-education-revolution-released/story-e6frfku9-1226090773438">Building the Education Revolution Implementation Taskforce</a>, which found that state and territory education departments lacked the in-house skills and expertise to act as an “informed buyer” in dealing with the construction firms that delivered that program. Without in-house architects, planners and project managers, the government was open to accepting exorbitant management fees and unable to prevent sub-standard delivery.</p>
<p>Lack of public service capacity is the first point Hanger addresses in his lessons for the future. He notes (p. 301) that “the retention of outside experts did not always overcome the knowledge gaps that existed in the department”. </p>
<p>Hanger’s report paints a damning picture of the results of decades of outsourcing under the neo-liberal rubric of market efficiency and down-sizing. Unless public service capacity is rebuilt and the market-knows-best mentality inside the government replaced, it is only a matter of time before we repeat the mistakes of the home insulation program.</p><img src="https://counter.theconversation.com/content/31189/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jean Parker is affiliated with Solidarity.</span></em></p>The most important finding in the final report of the Royal Commission into the Home Insulation Program is the one the Abbott government is least likely to heed. One of the two crucial flaws Commissioner…Jean Parker, Assistant researcher, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/312232014-09-04T02:12:51Z2014-09-04T02:12:51ZTragic accidents by design: finally, a finding of systemic blame<p>The damning report of the Royal Commission into the Home Insulation Program (HIP) was <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/default.aspx">released</a> on Monday. It cites multiple failures of ministers and public servants to foresee and prevent circumstances that would result in the tragic deaths of four young men. These deaths were avoidable; they were the result of system design that was both rushed and conflicted.</p>
<p>Commissioner Ian Hanger QC reported:</p>
<blockquote>
<p>In my view, each death would, and should, not have occurred had the HIP been properly designed and implemented.</p>
</blockquote>
<p>The design of the HIP was undoubtedly flawed. Its consequences were horrendous for killed and injured workers and their families, let alone businesses and employees who lost their livelihoods after the Rudd government scheme’s sudden withdrawal. However, that this has attracted the attention of a royal commission which has specifically noted the design of the scheme as a contributing factor to the deaths and ruination is notable. </p>
<p>Many everyday systems designed with good intent ultimately, inadvertently, produce deaths and injuries. This includes workplaces, health systems and hospitals, sports activities and road transport, to name just a few. </p>
<h2>Recognising the risks of poor system design</h2>
<p>Whatever the government’s <a href="https://theconversation.com/pink-batts-and-union-inquiries-revive-a-tradition-of-political-retribution-26592">alleged motivations</a> for the instigation of the royal commission, its findings may set a precedent for finally acknowledging the contributing role of poor system design in producing economic or other circumstances that produce deaths and injuries. A government presently happy to point the finger <a href="http://www.theaustralian.com.au/news/latest-news/insulation-report-shows-dysfunction-pm/story-fn3dxiwe-1227043679951">at its predecessor’s ineptitude</a> may need to take stock of the report’s potential implications.</p>
<p>For example, around <a href="https://www.bitre.gov.au/statistics/safety/">250 people</a> are killed every year in crashes involving heavy vehicles. This makes truck driving one of the most dangerous occupations in Australia. The heavy vehicle freight system regularly, predictably and reliably produces avoidable deaths and misery on a grand scale.</p>
<p>So what’s going wrong?</p>
<p>Driver fatigue and sleepiness is considered to contribute up to <a href="http://www.monash.edu.au/miri/research/reports/papers/fatigue.html">40% of trucking accidents</a>. Rather than simply blaming individual drivers for falling asleep, there has been growing recognition that system design factors are significant in producing conditions that increase fatigue and crash risk. </p>
<p>The overwhelming message from studies of the freight system is that performance-based per-kilometre or per-trip “piece-rate” payments encourage drivers to keep driving at the expense of “non-productive” activities such as sleep and rest breaks, maintenance or safety checks.</p>
<p>Despite convincing evidence of the role of piece-rate payment in driver fatigue, the conflict between payments and safety is often challenged by industry groups. <a href="http://saferates.org.au/">Transport unions</a> have generally advocated additional system regulation to ensure safety standards are met or maintained. </p>
<p>Owner-drivers, trucking companies and <a href="http://www.tandlnews.com.au/2014/02/12/article/industry-divided-heavy-vehicle-national-law-started-monday-10-february/">industry bodies</a>, however, have shown preference for more flexible, deregulated environments, which place responsibility for safety back on individual companies and drivers.</p>
<h2>Another insulation scandal in the making?</h2>
<p>Politically, such tension has also played out in the establishment, and recently proposed <a href="https://employment.gov.au/review-road-safety-remuneration-system">review</a>, of the Road Safety Remuneration Tribunal. It is clear this is a decision that will affect the design and safety of the freight transport system.</p>
<p>Should heavy-vehicle crashes, deaths and injuries increase following the tribunal’s slated removal, might its effect on the design of the freight transport network draw the same attention as the HIP has received? Circling lawyers with a taste for percentages of compensation pay-outs may like to think so.</p>
<p>The Home Insulation Program as it was designed incentivised dangerous behaviour. Had the royal commission reached an alternative view – that responsibility for worker safety lay squarely at the feet of individuals and companies and that system design really had little to do with its ultimate deadly outcomes – it is unlikely either the government or the public would have considered this an acceptable finding. </p>
<p>That this same tendency to discount system design factors and blame individuals applies in many other realms of worker and public safety appears largely to escape us.</p>
<p>While the politics of blame and counter-blame emanating from the royal commission play out in the public gaze, barely reported injuries and deaths will continue to occur at the hands of other systems set up to produce them. Tomorrow, the next day and the day after that, multiple people will be killed and injured in transport accidents.</p>
<p>These numbers are regular, predictable and avoidable. As a society, however, we seem perfectly ready to <a href="http://www.plosmedicine.org/article/fetchObject.action?uri=info%3Adoi%2F10.1371%2Fjournal.pmed.1001463&representation=PDF">accept them</a>, almost as a cost of doing business.</p>
<p>It would be challenging for anyone to contend that our current transport system, one that produces such ongoing misery, has been “properly designed and implemented”. Now who is responsible for that?</p><img src="https://counter.theconversation.com/content/31223/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jason Thompson is a member of the Australasian College of Road Safety, Economics Society of Australia, Australasian Society for Health and Behavioural Medicine, and Rehabilitation Psychology Division of the American Psychological Association.</span></em></p>The damning report of the Royal Commission into the Home Insulation Program (HIP) was released on Monday. It cites multiple failures of ministers and public servants to foresee and prevent circumstances…Jason Thompson, Research Fellow, PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/265922014-05-19T20:19:58Z2014-05-19T20:19:58ZPink batts and union inquiries revive a tradition of political retribution<figure><img src="https://images.theconversation.com/files/48823/original/3ghsg2y5-1400467205.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Abbott government's use of royal commissions for political retribution has revived an older tradition around the politics of scandal.</span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>It would be a fair observation that the Abbott government hopes that the result of the two royal commissions it has established since taking office will be damaging to the Labor Party. The royal commissions into <a href="http://www.tradeunionroyalcommission.gov.au/Pages/default.aspx">trade union governance</a> and into the Rudd government’s <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/default.aspx">home insulation scheme</a>, which both held <a href="http://www.abc.net.au/news/2014-05-15/live-blog3a-kevin-rudd-appears-at-royal-commission/5454138">high-profile</a> <a href="http://www.smh.com.au/federal-politics/political-news/slush-fund-money-helped-fund-twu-officials-campaign-ralph-blewitt-tells-royal-commission-20140513-zrboo.html">public hearings</a> last week, aim to establish the basis for a “non-political” condemnation of the government’s opponents. </p>
<p>This is an approach that the minority political left has often employed. Mobilisations against asylum seeker detention have evoked the image of the <a href="https://www.humanrights.gov.au/national-inquiry-children-immigration-detention">innocent child</a> without agency. Now the right is using similar rhetoric: the royal commission into the home insulation scheme evokes the image of the <a href="http://www.news.com.au/national/breaking-news/combet-to-front-insulation-inquiry/story-e6frfku9-1226919664723">program’s victims</a>. </p>
<p>But this supposedly “non-political” political approach by the Abbott government has revived an older tradition around the politics of scandal.</p>
<h2>Labor in the inter-war years</h2>
<p>Labor was haunted by the politics of scandal between the two world wars, which would provide rich inspiration for later novelists such as <a href="http://www.librarything.com/work/355070/summary/4215347">Frank Hardy</a> and <a href="http://trove.nla.gov.au/work/8474573">Vance Palmer</a>.</p>
<p>Then, Labor was the party of economic and cultural outsiders. Alliances could be formed between Labor and entrepreneurs, like <a href="http://adb.anu.edu.au/biography/wren-john-9198">John Wren</a>, in the unrespectable industries such as liquor and gambling. Some Labor local governments developed an unenviable reputation. In New South Wales in the 1920s and 1930s, claims of Labor corruption in council tendering and the allocation of greyhound racing licences led conservative state governments to establish royal commissions.</p>
<p>In the eyes of many voters, these scandals merged with reports of ballot rigging in union and internal Labor Party elections. Together with fears of Catholicism and communism this helped to create a particular image of Labor. </p>
<p>However, in a polarised political system, voters largely interpreted these scandals through the prism of their existing party allegiances. A <a href="http://asslh.org.au/hummer/vol-2-no-10/dogs">royal commission in 1933</a> revealed the greyhound racing licences scandal of Jack Lang’s 1930-32 NSW Labor government in detail, but it was not until later in the 1930s that Lang’s labour movement opponents took up allegations of corruption as a weapon against him.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=821&fit=crop&dpr=1 600w, https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=821&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=821&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1032&fit=crop&dpr=1 754w, https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1032&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/48838/original/ppvym74k-1400472510.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1032&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ted Theodore was forced to resign as treasurer due to adverse findings of a royal commission.</span>
<span class="attribution"><span class="source">Australian Government</span></span>
</figcaption>
</figure>
<p>The most legendary case of inter-war Labor corruption was the <a href="http://www.librarything.com/work/275924/summary/1175593">Mungana affair</a>. In 1929, Queensland elected a conservative government (the Country and Progressive National Party) after 14 years in opposition. The conservative government established a royal commission into the purchase of a copper mine in the north Queensland town of Mungana by its Labor predecessor at a time when Ted Theodore was premier. </p>
<p>The royal commission was clearly intended to undermine the federal Labor government led by James Scullin in which Theodore was treasurer. Theodore denounced the royal commission as a political stunt and refused to give evidence before it. In 1930, the royal commission reported that Theodore had held shares in the Mungana mine at the time of its purchase and had thus acted corruptly. </p>
<p>Theodore resigned as treasurer. Although he returned to the post, in the eyes of the public the scandal helped discredit his argument for an unorthodox economic response to the Great Depression. It added to the fear and distrust that his ambition and capacity generated within Labor. The Scullin government unravelled and Theodore’s political ambitions were never truly realised.</p>
<h2>Since World War Two</h2>
<p>Two decades later, it was communism – not corruption – that led to another devastating royal commission. </p>
<p>In 1954, Robert Menzies’ conservative federal government established a royal commission into the <a href="http://moadoph.gov.au/exhibitions/online/petrov/royal-commission.html">defection of Soviet diplomat Vladimir Petrov</a>. Sensational claims were made in evidence before the royal commission of contacts between staff members of opposition leader H. V. Evatt and Soviet officials. Evatt appeared before the commission to vehemently defend his staff.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=903&fit=crop&dpr=1 600w, https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=903&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=903&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1135&fit=crop&dpr=1 754w, https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1135&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/48840/original/tsm3g64j-1400473173.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1135&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Malcolm Fraser declined to pursue the Whitlam government’s affairs through a royal commission.</span>
<span class="attribution"><span class="source">AAP/Tim Dornin</span></span>
</figcaption>
</figure>
<p>The royal commission contributed to the <a href="http://en.wikipedia.org/wiki/Australian_Labor_Party_split_of_1955">1955 split in the Labor Party</a>, which kept it in opposition at a federal level until the Whitlam government won office in 1972.</p>
<p>The subsequent decades saw a decline in the politics of scandal directed against Labor. The Whitlam government’s <a href="http://www.naa.gov.au/collection/fact-sheets/fs239.aspx">loans affair</a> generated calls by some conservative activists for Gough Whitlam and his colleagues to be charged with criminal conspiracy. They argued that Whitlam had acted illegally and in defiance of the Constitution. </p>
<p>However, Malcolm Fraser believed that voters had made their judgement on Labor at the ballot box. His government was not interested in providing support to a legal campaign against Whitlam.</p>
<h2>The Abbott government’s royal commissions</h2>
<p>The Abbott government has revived an older style of judicial politics directed against Labor. In part, this is a response to the rise of what political theorist <a href="http://johnkeane.net/books/the-life-and-death-of-democracy/about-the-book">John Keane</a> has called “monitory democracy”. Keane argues that with the decline of political parties, non-government organisations and bodies such as Human Rights Commissions are becoming the vehicles of democracy. </p>
<p>The right has often condemned monitory democracy as a challenge to the <a href="http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/human_rights_platitudes">legitimacy of parliament</a>. And yet now it has sought to construct its own conservative version with its pair of royal commissions.</p>
<p>The focus of the home insulation royal commission <a href="http://www.smh.com.au/federal-politics/political-news/home-insulation-royal-commission-kevin-rudd-takes-ultimate-responsibility-20140515-zre6o.html">on Kevin Rudd</a> is also significant. For a time, Labor seemed particularly skilled at non-political politics. State premiers like Steve Bracks and Peter Beattie championed a consensual <a href="http://www.librarything.com/work/6239243/summary/3587966">“ordinary populism”</a>. Rudd continued this formula. But the conservative campaign against Rudd on the basis of the home insulation scheme challenged his appeal on apparently “non-political” grounds. </p>
<p>The campaign revived themes that were employed against the once remarkably popular Labor politician Carmen Lawrence. Lawrence <a href="http://www.abc.net.au/7.30/stories/s38678.htm">was accused</a> of having contributed as WA premier to the suicide of Penny Easton by allegedly supporting, in cabinet, the tabling of a petition in state parliament relating to a family law case against Easton’s former husband Brian, which involved then-opposition leader Richard Court.</p>
<p>A royal commission, established by the Court government after it took office, reported in 1995 that Lawrence had misled the parliament concerning her knowledge of the petition. Lawrence was charged with perjury but was acquitted in 1999.</p>
<p>The revival of royal commissions as political tools is a sign that in an age of cynicism about the political process, political actors of both left and right will seek non-political weapons to inflict political retribution on the other side.</p><img src="https://counter.theconversation.com/content/26592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Geoffrey Robinson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It would be a fair observation that the Abbott government hopes that the result of the two royal commissions it has established since taking office will be damaging to the Labor Party. The royal commissions…Geoffrey Robinson, Senior Lecturer, School of Humanities and Social Sciences, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/267112014-05-15T04:48:00Z2014-05-15T04:48:00ZRudd humbled, but real lessons of insulation scheme go unlearned<figure><img src="https://images.theconversation.com/files/48562/original/9xk5n87p-1400120371.jpg?ixlib=rb-1.1.0&rect=10%2C14%2C2372%2C1529&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rudd's legal wrangles: political theatre, but beside the point when it comes to improving public programs.</span> <span class="attribution"><span class="source">AAP Image/Dan Peled</span></span></figcaption></figure><p>It’s understandable that coverage of Kevin Rudd’s appearance before the royal commission into the home insulation program should focus on the image of a former Prime Minister humbled over a policy that led to four people’s deaths.</p>
<p>But although some will revel in Rudd’s discomfiture, the commission sits oddly with the current government’s ostensible commitment to reducing waste and duplication. The commission’s <a href="http://www.homeinsulationroyalcommission.gov.au/About/Pages/TermsofReference.aspx">terms of reference</a>, which emphasise workplace safety considerations, seem to be about allocating blame for the program’s shortcomings, rather than learning lessons for improving public administration.</p>
<p>After an afternoon of legal wrangles on Wednesday, Rudd finally won permission to give his unredacted evidence on Thursday, in which he <a href="http://www.theguardian.com/world/2014/may/15/kevin-rudd-given-no-warning-insulation-program-was-going-off-the-rails">claimed that he was not notified of problems with the scheme until after the deaths</a>.</p>
<p>The focus of the hearings so far – featuring former ministers <a href="http://www.theguardian.com/world/2014/may/13/home-insulation-inquiry-mark-arbib-refuses-to-say-scheme-was-rushed">Mark Arbib</a> and <a href="http://www.theguardian.com/world/2014/may/14/peter-garrett-denies-home-insulation-scheme-was-flooded-with-shonks">Peter Garrett</a>, and culminating in Rudd’s appearance – has been about who knew what, and when. Entertaining political theatre, but not a productive use of public resources.</p>
<h2>Deaths already investigated</h2>
<p>The Queensland Coroner has <a href="http://www.courts.qld.gov.au/__data/assets/pdf_file/0019/203374/cif-fuller-mj-barnes-rk-sweeney-ms-20130704.pdf">already handed down findings</a> into the deaths of three young workers (the fourth, Marcus Wilson, died in New South Wales). The brunt of the coroner’s criticism was aimed at the Commonwealth for having rushed the program, but blame was also directed to the state government, for lax enforcement of its own operations, and to businesses who probably breached the state’s <a href="https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/E/ElectricalSA02.pdf">Electrical Safety Act</a>. Why go over old ground?</p>
<p>Rudd’s appearance is fodder for the tabloids, and a welcome distraction for a government trying to sell a <a href="https://theconversation.com/topics/federal-budget-2014">tough budget</a>. But in focusing on his personal interactions with Arbib and Garrett, the story seems to do little more than confirm what journalist and academic Philip Chubb has already pointed out in his new book <a href="http://www.blackincbooks.com/books/power-failure">Power Failure</a> – that Rudd was a lousy manager, the kind of boss who wavers between indecisiveness and excessive haste.</p>
<p>It is unlikely that many of Australia’s 28 prime ministers, including Tony Abbott, would score highly in a test of managerial ability. Winning elections isn’t about administrative competence – that is the task of the professional public service. What is emerging from the commission’s hearings confirms the findings of the <a href="http://www.anao.gov.au/%7E/media/Uploads/Documents/2010%2011_audit_report_no_12.pdf">2010 Auditor-General’s report into the HIP</a>, which found that many of the problems resulted from systemic failures in public administration.</p>
<h2>Jobs, stimulus… and tragedy</h2>
<p>Before focusing on those problems, it’s useful to consider that report. It found that 1.1 million roofs were insulated, and 6000 to 10,000 short-term jobs were created, widely dispersed geographically. As a stimulus program it succeeded, and the scheme also <a href="https://theconversation.com/pink-batts-what-did-it-teach-us-about-building-better-buildings-21644">helped to boost sustainability</a>. It also resulted in tragedy.</p>
<p>The deaths of Matthew Fuller, Rueben Barnes, Mitchell Sweeney, and Marcus Wilson should not have happened. But it should also be pointed out that the rate of ceiling fires associated with insulation installation was <a href="http://www.smh.com.au/federal-politics/political-opinion/insulation-fire-risk-was-worse-before-rebate-20100303-pivv.html">almost certainly lower under the scheme</a> (see also <a href="http://www.crikey.com.au/2010/10/19/possum-insulation-fire-risk-the-data-is-in/">here</a>) than it had been before the program was implemented, and that the program <a href="http://blogs.crikey.com.au/pollytics/2010/02/24/did-the-insulation-program-actually-reduce-fire-risk/?source=cmailer">was a catalyst for better regulation of the industry</a>. Yet fire risk is not included in the commission’s terms of reference.</p>
<p>Of course, none of this excuses the Rudd government. Had it applied the same standards as apply to road safety or pharmaceutical regulation, there would undoubtedly have been a much lower risk of fire, heat stroke or electrocution, and the insulation industry would probably not have suffered the reputational damage caused by fly-by-night operators chasing tasty subsidies. </p>
<p>Ultimately, our elected governments have to take responsibility for poor administration, even if those problems are not of their own making, but are the fault of the public servants who put the policies into practice.</p>
<h2>Lack of basic knowledge</h2>
<p>A problem clearly identified in the Auditor-General’s report, and emerging from the commission’s inquiries, is that the public servants involved simply did not realise that ceilings are risky places to work. Even if they had not heard of the <a href="http://www.theguardian.com/world/2014/mar/19/foil-insulation-given-go-ahead-despite-three-deaths-in-new-zealand">three previous deaths in New Zealand involving foil insulation secured with metal staples</a>, the presence of life-threatening risk should have been common knowledge within the bureaucracy. </p>
<p>One might expect these public servants to understand high school physics such as <a href="http://en.wikipedia.org/wiki/Ohm's_law">Ohm’s Law</a> and the basic principles of conductivity and thermodynamics – or at the very least, to know better than to send workers into roof spaces armed with metal staples. </p>
<p>As Tim Roxburgh of the Centre for Policy Development <a href="http://cpd.org.au/2012/09/public-works-public-skills">points out</a>, the Commonwealth public service has lost many of the practical skills once found in outfits such as departments of public works. Practical men and women have been replaced in the senior bureaucratic ranks by generic managers, with finely honed political sensitivity, and skill in writing speeches for ministers.</p>
<p>Another problem was that the Department of the Environment, Water, Heritage and the Arts tried to run the program entirely from Canberra. Apart from some people associated with conservation programs, it had no presence elsewhere. There was no one who could get in a car to go and look at some installations, no one living and working in Brisbane with good contacts in the state government and the industry. </p>
<p>As warned by a much earlier royal commission, the <a href="http://apo.org.au/research/royal-commission-australian-government-administration-report">1976 Commission of Australian Government Administration</a>, the Commonwealth bureaucracy was already then becoming too isolated in Canberra.</p>
<h2>When something goes wrong, blame the government?</h2>
<p>It is unfortunate that a partisan vendetta seems to have overridden the chance for the royal commission to look at systemic problems in public administration. There will be future occasions when governments have to respond to sharp economic downturns or other emergencies, or want to put programs in place quickly, and unless they have a competent public service there will be more tragedies and mishaps.</p>
<p>Politicising the program’s shortcomings also reinforces the message that whenever something goes wrong, it’s the government’s fault. The attempt to sheet all blame on to the government of the day dulls any message about individual responsibility on the part of businesses, households and workers. </p>
<p>Meanwhile, Joe Hockey has just delivered a budget speech telling us all about the importance of taking individual responsibility. That’s much more the type of message that a government of right-of-centre persuasion would want to reinforce.</p><img src="https://counter.theconversation.com/content/26711/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian McAuley does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s understandable that coverage of Kevin Rudd’s appearance before the royal commission into the home insulation program should focus on the image of a former Prime Minister humbled over a policy that…Ian McAuley, Lecturer, Public Sector Finance , University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/239052014-03-03T19:38:22Z2014-03-03T19:38:22ZCabinet confidentiality: privilege, accountability and public interest<figure><img src="https://images.theconversation.com/files/42877/original/tvvwhsyv-1393808780.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The voluntary release of the former Rudd government's cabinet documents in relation to the home insulation scheme risks undermining cabinet confidentiality, and is a dangerous precedent.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>It was revealed last week that prime minister Tony Abbott <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-approved-decision-to-release-cabinet-papers-to-the-royal-commission-into-labors-botched-home-insulation-scheme-20140224-33d5b.html">personally authorised</a> the disclosure of the former Labor government’s cabinet papers in response to a summons by the <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/AbouttheRoyalCommission.aspx">royal commission</a> into the Rudd government’s botched home insulation scheme.</p>
<p>The documents were released on the basis that they will be kept confidential by the royal commissioner, who must seek permission from the government before releasing them publicly.</p>
<p>The release of the documents has been widely debated. Critics of the move, such as constitutional lawyer George Williams, <a href="http://www.smh.com.au/comment/killing-cabinet-confidentiality-destroys-democracy-20140224-33cbl.html">say</a> it is a breach of cabinet confidentiality and undermines the wider public interest objectives cabinet confidentiality exists to protect. Federal attorney-general George Brandis <a href="http://www.abc.net.au/news/2014-02-24/brandis-cabinet-documents-home-insulation/5279288">argues</a> that it is a necessary step for the issue to be investigated properly, saying:</p>
<blockquote>
<p>It would be hard to see that the royal commissioner can do his job as fully as his terms of reference require him to without having some capacity to inquire into the internal workings of government.</p>
</blockquote>
<p>The voluntary release of a former government’s cabinet documents by a new government risks undermining cabinet confidentiality with a detrimental flow on effect of chilling cabinet deliberations. Ministers may be reluctant to air disagreements or reservations for fear they will be used to score political points at a later date.</p>
<p>This risks undermining debate and discussion in cabinet. That would be to the detriment of collective decision-making and would raise the danger of the creation of a prime ministerial dictatorship.</p>
<h2>Powers of the royal commission and exemptions</h2>
<p>Royal commissions have very strong investigative powers, conferred by statute: the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rca1902224/">Royal Commissions Act 1902</a>. This allows a royal commission to investigate thoroughly those matters within its terms of reference. This usually has an ultimate objective of achieving better understanding and accountability for catastrophic events or systemic failings in both government and the private sector.</p>
<p>Royal commission powers include the power to order the production of documents from the government. However, the government can claim immunity in response to a request. A person also does not have to comply with a request if there is a <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/rca1902224/s3.html?stem=0&synonyms=0&query=%22reasonable%20excuse%22">“reasonable excuse”</a>.</p>
<p>Public interest immunity extends to documents that reveal the deliberations of cabinet. This is different to the myth that once a document is wheeled into the cabinet room it is exempt from disclosure, although the abuse of the privilege in this way probably occurs in practice.</p>
<h2>Cabinet confidentiality and the public interest</h2>
<p>The law protects cabinet confidentiality against production of documents to the parliament, in the courts and to inquiries such as royal commissions. Cabinet documents are protected from freedom of information requests under an unconditional exemption. </p>
<p>In response to last week’s events, Australian commentators across the political spectrum have indicated considerable support for the argument that there is a great public interest in protecting these documents. Malcolm Fraser and Bob Hawke, former prime ministers of both persuasions, have come out <a href="http://www.watoday.com.au/federal-politics/political-news/pm-approved-release-of-cabinet-papers-20140224-33d4z.html">in defence</a> of the convention. </p>
<p>Cabinet confidentiality, which under the doctrine of collective responsibility to the parliament presents a united public face, ensures that ministers can argue and debate and disagree without the danger of those disagreements being used to destabilise the government.</p>
<h2>Should we reconsider cabinet confidentiality?</h2>
<p>Some <a href="http://www.abc.net.au/news/2014-02-26/hardy---cabinet-papers/5284972">commentators</a> have raised questions about whether the wide legal protection of cabinet confidentiality should be reconsidered. The argument is that in the promotion of greater transparency in government, this class of immunity ought to be removed, with a limited immunity retained for national security purposes.</p>
<p>No doubt, cabinet confidentiality squarely raises the age-old tension between transparency and accountability on one hand and the need for some secrecy to ensure effective governance on the other.</p>
<p>Writer Elle Hardy argues that the Australian people are smart enough to understand that cabinet will sometimes disagree: </p>
<blockquote>
<p>The notion that cabinet discussions are sacrosanct is insulting to the public, who appreciate politicians are not of one mind on all issues. </p>
</blockquote>
<p>However, recent Australian history has left me unconvinced that the media and the public are beyond scandalising disagreement in cabinet when leaks do occur. For example, the <a href="http://www.theaustralian.com.au/archive/national-affairs/cabinet-leaks-show-depth-of-gillards-problems/story-fn5asavh-1225899248390">revelations</a> of Julia Gillard’s earlier cabinet positions in relation to paid parental leave and the emissions trading scheme were not treated in the media with measured understanding of the need for disagreement and debate at the cabinet table. These leaks became part of a concerted campaign to undermine her leadership when she first took the prime ministership from Kevin Rudd.</p>
<p>Further, Hardy argues that “details of cabinet discussions are frequently leaked to the media”. This is undoubtedly the case. However, these leaks currently remain a question of rogue members and discipline and not routine government practice. </p>
<p>It is a big step from this state of affairs to a position where an incoming government releases cabinet documents as a matter of accepted practice. The chilling effect would be far greater than the possibility of leaking by a disgruntled cabinet colleague.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/42887/original/msx8wv38-1393814818.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Cabinet leaks currently remain a question of rogue members and discipline and not routine government practice.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<h2>Responsibility to protect cabinet confidentiality</h2>
<p>It appears precedents do exist for the release of cabinet documents to royal commissions. The Department of Prime Minister and Cabinet has referred to the release of some cabinet materials to the Clarke Inquiry into the Muhamed Haneef affair and to the Centenary House Royal Commission. </p>
<p>But two things should be noted before we accept too readily that this most recent release is not in breach of convention.</p>
<p>First, the documents in the recent saga are those of a former cabinet – a former government – that has already been voted out. These documents are usually quarantined from the next government, placed into the archives and not released for 30 years. This is immediately distinguishable from the situation of a government releasing its own documents.</p>
<p>Second, the royal commission itself seems to have been established purely for the purpose of accessing these documents. A number of government and parliamentary inquiries into the home insulation scheme have already been held to determine the causes of its mismanagement and the tragic deaths associated with it. </p>
<p>What differentiates the royal commission from these earlier investigations is its pointed <a href="http://www.homeinsulationroyalcommission.gov.au/About/Pages/TermsofReference.aspx">terms of reference</a> to determine what happened around the cabinet table.</p>
<p>One thing is certain: it is not the royal commission’s job to protect the public interest in cabinet confidentiality. It is the government’s responsibility to uphold the convention that cabinet documents are not released. </p>
<p>The move to disclose the documents is a short-sighted failing by the Abbott government, one that threatens to undermine an important privilege with little thought as to its long-term consequences for the public interest.</p><img src="https://counter.theconversation.com/content/23905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It was revealed last week that prime minister Tony Abbott personally authorised the disclosure of the former Labor government’s cabinet papers in response to a summons by the royal commission into the…Gabrielle Appleby, Senior Lecturer, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/239042014-03-03T19:38:19Z2014-03-03T19:38:19ZReleasing cabinet papers sets up paybacks that hurt our democracy<p>A long-standing principle in Australian politics, one derived from Westminster and British experience over hundreds of years, is that incoming governments do not use the <a href="http://www.aph.gov.au/binaries/library/pubs/bn/pol/cabinetconfidentiality.pdf">confidential discussions of cabinet</a> proceedings to seek to embarrass the losers of the last election.</p>
<p>There are good reasons for this restraint. In cabinet, any government needs ministers who will speak fearlessly, who will be totally open in what they say, on whatever subject is under discussion. It can be a sensitive matter on foreign affairs; there might be significant criticism of a close ally. Criticism between ministers can sometimes be acute.</p>
<p>It is important that freedom and openness remain part of cabinet discussions. It is important that all points of view are exposed. Ministers should not have to look over their shoulders and wonder, how will this look when the next government publishes what I am now saying?</p>
<h2>What is the royal commission’s purpose?</h2>
<p>I have seen the <a href="http://www.smh.com.au/federal-politics/political-news/battle-brews-over-release-of-cabinet-papers-to-royal-commission-on-home-insulation-scheme-20140221-337r0.html">letters that passed between</a> shadow attorney-general Mark Dreyfus and attorney-general George Brandis. The implications are clear. The papers relating to the so-called <a href="http://en.wikipedia.org/wiki/Energy_Efficient_Homes_Package">“Pink Batts Affair”</a> have already been passed to the <a href="http://www.homeinsulationroyalcommission.gov.au/Pages/default.aspx">Royal Commission</a> into the Home Insulation Program.</p>
<p>If the royal commissioner wishes to publish some parts of those papers, or all of them, the government will at that point decide whether it wishes to claim immunity or not. Apparently, prime minister Tony Abbott <a href="http://www.theguardian.com/world/2014/feb/24/tony-abbott-cabinet-documents-royal-commission">directed that the papers be made available</a> for the royal commissioner earlier this year, without the knowledge of the attorney-general.</p>
<p>A number of questions arise. What is the purpose of this royal commission? I know it was <a href="http://www.smh.com.au/federal-politics/political-opinion/how-the-politics-of-payback-snared-cabinet-confidentiality-20140221-337eb.html">promised before the election</a>, but the question still remains, for what purpose?</p>
<p>Royal commissions are generally designed to lead to significant government action and sometimes to prosecution of people found guilty of an offence. What can come out of this royal commission? Is there any suggestion any member of the previous government will be prosecuted?</p>
<p>There have been coronial inquiries in <a href="http://www.smh.com.au/nsw/casual-approach-a-factor-in-roof-death-coroner-20121004-270x4.html">New South Wales</a> and <a href="http://www.abc.net.au/news/2013-07-04/men-killed-while-installing-insulation-were-not-trained/4799212">Queensland</a> into the four unfortunate cases that led to deaths. The cause of death is known. Three of the four employers have been prosecuted and convicted.</p>
<p>The royal commission will learn nothing new of those circumstances. It was a badly run industry – if you like, an incompetently run industry – without adequate supervision, training or control.</p>
<p>Most people would regard the government management of the program as incompetent, as one of the reasons that led to the defeat of the Labor Party. I suspect it is likely, even probable, that the royal commission will confirm that view. Does the government believe this will have a significant impact on the next election?</p>
<p>Such a view is not particularly relevant. The major players, former prime ministers Kevin Rudd and Julia Gillard, are no longer in parliament. There will be other issues far more important in people’s minds than this old and buried Home Insulation Program.</p>
<p>Does the government believe the royal commission can lead to prosecution of ministers? That is most unlikely. It would seem, therefore, that the process is political and designed to be so.</p>
<p>This is likely to have continuing adverse consequences. When the current government loses, as one day it will, an incoming Labor government will be under significant pressure for a payback. It is too early to tell what issue they might pick, but there will be one.</p>
<p>Are we to begin a cycle of royal commission after royal commission trying to expose the ills, the mismanagement of actions, of the previous government? Ministers would be much more careful of what they say in cabinet. Both consequences would have adverse impacts on Australian democracy.</p>
<p>The issues are not complex; they are clear. Cabinet confidentiality ought to be maintained. It is central to our system of government. The papers ultimately become public, but after a significant time has elapsed. </p>
<h2>The need to protect the body politic</h2>
<p>This latest government action could have other even more adverse consequences.</p>
<p>In 1975, a <a href="http://www.naa.gov.au/Images/legal-security_tcm16-45382.pdf">private prosecution was launched</a> against former prime minister Gough Whitlam, attorney-general Lionel Murphy, Rex Connor and Jim Cairns. There were suggestions that the government should take over that prosecution.</p>
<p>One of the commitments I had given the <a href="http://www.naa.gov.au/collection/fact-sheets/fs241.aspx">governor-general at the time</a>, if I was asked to form a government, was that there would be no pursuit of possible illegal actions of the then government through the courts. I had no hesitation in making such a commitment. Again, for good reasons.</p>
<p>On a number of occasions in British history a prosecution has not been launched because it would do damage to a body politic as a whole. While clearly the chief law officer is the final determinant of whether or not a prosecution should be launched, the chief law officer in our system is also a member of cabinet and would be wise to listen to the advice of senior colleagues.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=802&fit=crop&dpr=1 600w, https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=802&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=802&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1008&fit=crop&dpr=1 754w, https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1008&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/42846/original/njwkybfh-1393804946.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1008&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Attorney-general Bob Ellicott resigned when the Fraser government refused to pursue legal action against its predecessors.</span>
<span class="attribution"><a class="source" href="http://psephos.adam-carr.net/countries/a/australia/membersgallery/1974REPS/nellicott.JPG">pseophos.adam-carr.net</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>If my government had taken over the Sankey prosecution, it would have been extraordinarily divisive. There had been <a href="http://en.wikipedia.org/wiki/Australian_federal_election,_1975">an election</a>. People had paid a heavy political price for their actions. There was no crime against the Commonwealth, as <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1978/43.html">the judgment</a> in the private prosecution by Sankey ultimately demonstrated.</p>
<p>Whatever errors were made were political and a political price was paid for those errors. If a prosecution had been launched, the divisions within Australia, which were sharp, would have been so much greater. That was to be avoided.</p>
<p>Launching a prosecution against a defeated political foe is only one step further than launching a royal commission against that political foe. Indeed, it can be argued that having a royal commission is designed to prepare the ground for launching a prosecution. That would compound an extraordinarily bad decision, which defies over 113 years of Australian history and a much longer period of British history.</p>
<p>The issues are intertwined: the question of cabinet confidentiality, releasing papers to the royal commissioner, and the question of pursing a political foe through courts of law. This is not a question of putting anyone or any organisation above the law. It is a question of what makes democracy work well or extremely badly.</p><img src="https://counter.theconversation.com/content/23904/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malcolm Fraser is a former prime minister of Australia from 1975 to 1983.</span></em></p>A long-standing principle in Australian politics, one derived from Westminster and British experience over hundreds of years, is that incoming governments do not use the confidential discussions of cabinet…Malcolm Fraser, Professorial Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.