The case of Senator Mal Colston

By Simon Longstaff

A version of this article was first published: Australian Financial Review - March 1997

If the allegations made against Australian Federal Senator Mal Colston are proved correct, then he will have been found to be a petty and venal man who has demeaned the office of Senator in our Federal Parliament. As such, he is now fighting for his political career and, more importantly, for his good name.

With this in mind, he is entitled to three considerations. First, he is entitled to be regarded as innocent until proven guilty. Second, he should be allowed to demand that his accusers prove their case against him. Third, he should be allowed to mount the best defence that he is able to muster. Unfortunately, the evidence so far suggests that Senator Colston is going to rely on one or both of the two most spurious arguments that he could hope to offer.

Judging from public statements and actions in the Senate, Senator Colston appears to be positioning himself to 'drop the bucket' on a number of his former colleagues in the Labor Party. Whether or not he preserves his independence by taking a few politicians from the coalition parties with him is beside the point. The real issue is his apparent belief that two wrongs make a right.

Needless to say there are some tactical considerations at play. Senator Colston and his advisers are probably hoping that the prospect of wide-spread collateral damage to his accusers will cause them to ease the intense pressure that he has been put under. His judgement may or may not prove correct on that count. However, even if he achieves a tactical victory, we (the community) will have lost the war.

The kind of behaviour that Senator Colston has been accused of is reprehensible and will further erode what little respect remains in the community for our politicians. In a society bereft of leaders who can be admired for their integrity, this is a tragedy. A revenge attack on other politicians will do nothing to restore Senator Colston's standing. It will only further undermine public trust in the institutions of government.

Of course, it may be that Senator Colston is genuinely appalled by some of the rorting that he has observed in others during his parliamentary career. He may be quite sincere in his desire to 'blow the whistle' and expose widespread abuse of public trust that verges on corruption. But if this is so, then why wait until his own interests are under attack before raising the issue? Which, come to think of it, is a pretty good question to ask those members of the ALP who are only now drawing attention to Senator Colston's alleged fondness for the illicit peccadilloes of public office.

Are we expected to believe that suspicion only arose after Senator Colston's defection from the Labor Party? Is it merely coincidence that Senator Colston's departure from the Senate would be a devastating blow to the government in the Senate? It is a real pity that earlier suspicions were left unaddressed (one suspects for a decade or more) for as long as Senator Colston remained a loyal member of the Party. If this is political reality, then give us the gormless innocence of Yes Minister.

Justifying theft because you associate with other thieves is hardly likely to commend itself to any disinterested judge of the matter. Having been asked to explain, it appears that Senator Colston is going to offer one of the most tired refrains known to the English language, “I wasn't the only one. They did it too.” We can only be thankful that the Senator isn't proposing to offer up, “Everybody does it, don't they”!

Pointing out hypocrisy and cynicism is one thing. Excusing by odious comparison is another. The community is entitled to learn of other cases of alleged rorting. However, let's not demean that important process by tying it to a questionable defence.

Senator Colston's second line of argument seems to be that he broke no rules and stayed within the guidelines. In other words, he is hoping to rely on the black letter of the law in the hope that the allegations against him fall through the loopholes.

In deploying this defence, Senator Colston joins countless others who rely on technical defences to evade what some consider to be the course of justice. But is this a somewhat harsh judgement. After all, we live in a society that is proud of its formal commitment to the principle of liberty. Part of that commitment entails the creation of a legal system that limits freedom to the least extent necessary. As such we are generally judged to be free to do anything that isn't forbidden. Hence the importance of the wording of regulations and laws governing our behaviour. If it's not proscribed, it's allowable. Working on this principle, Senator Colston might argue that he has merely exercised his rights (and met his obligations) with an unusually fine attention to detail.

While this level of discernment is to be admired, it sits uncomfortably with the idea that a presiding officer within one of our houses of parliament should be unmindful of spirit of the law. At the very least, it reinforces a view that none of us can be trusted to do the right thing - even when nobody is watching.

Instead, it plays into the hands of those who would legislate and regulate about everything - leaving no room for personal responsibility. More than anything else, that approach heralds the death-knell of ethical behaviour. Why bother to decide for oneself when someone else will do it for you? Senator Colston is entitled to offer a technical defence. But perhaps he shouldn't.

As mentioned before, Senator Colston has a lot to lose. However, one cannot help concluding that the real casualty in this whole affair will be the standing of a crucial public institution. This hurts us all. On the other hand, if this is the price to be paid for access to the truth, then so be it.