Has Barry O’Farrell placed himself above the law?

It had been a long hard night. I had a client in the media who wanted the low-down on the Great CityRail Shutdown Fiasco. It was amazing to think that our rail system, which handles a million trips a day could fail so massively just because, through various changes of government, nobody had bothered to have the Strathfield Box duplicated by another, elsewhere, which could take over, seamlessly, the moment disaster struck.

Lots of insiders were talking, but only off the record, and my client wanted on-the-record or, preferably, a juicy document.

Word had it that the Strathfield Signal Box, where a fire in a single air-conditioner had triggered the fiasco, was way beyond its use-by date: a museum straight out of Thomas the Tank Engine. Years of ad-hoc modifications were grafted onto eons of technological history. They said the roof leaked and the walls were cracked and things had gone backwards due to years of “deferred maintenance”. In short, the place should have been classified by the National Trust years ago.

It was said there had been an interesting exchange of emails a few months back, between CityRail managers, about the potential for a signals system meltdown. That sounded likely, so I kept hacking away.

Around 8.30, I reported what I had to my client and went down to the Brushtail Cafe for one of Joadja’s vegetarian breakfast specials.

“What are we going to do about this stuff?” Joadja asked, as she put down the Herald. She’d been engrossed in the ICAC inquiry for days. “If all this is true – and it has the ring of truth to me – there’s been this unbelievable nest-feathering. Lots of political and bureaucratic insiders must have suspected or actually known what was going on for years.  If what’s coming out isn’t actually actionable under law if – as some journalists are suggesting – the only remedy is to go these people under the tax laws, what does that say about the probity of the whole system of government? What are we going to do?”

Padraic O’Houligan, the barrister from Nurse Pointer Whaler, the spiffy legal practitioners with offices down on Sydney Rd, who was sitting at the bar, wiped the last bit of runny egg off his plate and answered Jo’s question.

“Barry O’Farrell has already done it”, he replied. “He’s made it legal, official, above board. There’s now an entirely legal channel for nest-feathering.”

“What!”

“The scribblers are blathering on about how the Obeid-Macdonald clique was the new Rum Corps, but really, these guys are hopeless comic-book amateurs. The reborn Rum Corp is Infrastructure NSW. Under the Infrastructure NSW Act, 2011 No.23, the premier can excuse any board member from a conflict of interest.”

“Ahhh, yeeesss, If I’m recalling this aright, that is the case,” Jo said.

“Well, the act purports to make legal for some people, selected by the premier, conflicts of interest which are illegal for everybody else. Surely that sets up a two track criminal legal system. Surely that’s a perversion of the course of justice,” Padraic said.

“Look, despite the ascenting of this Act into law, I reckon it does not of itself make lawful, stuff like insider trading or maintaining a conflict of interest as a board member of a NSW domiciled corporation – to whit, the aformentioned Infrastructure NSW. It’s this sort of crime the premier wishes to prevent being punishable if committed by the board and officers of Infrastructure NSW.

“Surely, the whole point of the act is to isolate some instances of these crimes from proper measuring in the scales of justice. Does this not place the premier above the law? How can he be so placed as to have the right to decide what is punishable or not under law?

“Looked at in that way, the Act, in conferring judge-like powers on the premier, has made him, effectively, a judge of criminal law. In giving the premier these rights, I’d say the act has breached the separation of powers between the legislature and the judiciary,” Padraic said, drained the last of his latte.

“Gawd, if you’re right,” I said. “That’s awfully dodgy, constitutionally-speaking. Has the premier actually formally excused anybody on the board of INSW?”

“Good question. Dunno. But I intend to find out.”

• More Nick Possum at brushtail.com.au