13 - Who's responsible? Justiciability of private and political decisions

Summary

Introduction

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (AWB) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government's responsibility for the circumstances leading to that inquiry. The Australian Government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Other chapters in this volume examine the legal responsibility that was or perhaps should have been placed on the Australian and other governments in relation to the UN sanctions regime. This chapter seeks to demonstrate the role any characterisation as private or international has within the Australian system of public law.