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Don Harwin health order affair a fiasco of epic proportions

This was normal behaviour at the time.

How then did he wind up accused of a criminal offence, and losing his ministerial position?

That question came into sharp relief last week after the Office of the Director of Public Prosecutions took the matter out of the hands of prosecuting police and withdrew the case against Harwin. The ODPP explained: “The applicable Public Health Order in its terms did not restrict a person to a single place of residence. The evidence was unable to establish that Mr Harwin left his place of residence without a reasonable excuse”. Quite.

This immediately raises questions about the 1331 other infringement notices issued by police since the pandemic began. If a notice issued against a sitting minister falls over at the first push how much rigour is behind the hundreds handed to ordinary citizens? And will those citizens have the resources and the wherewithal to expose themselves to the potential of six-months’ imprisonment by electing to take the matter to court, rather than just paying the $1000 fine.

Examining the Harwin affair, it is difficult not to conclude that the minister was the victim of a style of mob justice in which NSW has come to specialise.

When the story broke in April, Premier Berejiklian came under instant pressure from a rabid media pack camped out the front of Harwin’s house. The media’s attention (which almost certainly derived from a political tip off) was ostensibly focused on the effect the minister’s conduct could have on community welfare, as well as the message it sent.

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Berejiklian initially defended her minister but within 24 hours had changed her tone. Rather than back Harwin in the face of increasingly ugly attacks, the Premier appeared to hand management of the situation to the NSW Police. That would prove to be a mistake.

On the Thursday before the Easter long weekend, Berejiklian conducted a press conference. As usual NSW Police Commissioner Mick Fuller stood dutifully in the background. Berejiklian stated that “technically” Harwin had not breached the law, but she acknowledged a “perception” issue. It seemed to matter little that the “technical” question of whether a person has breached a law is the only relevant legal question. A “perception” problem, on the other hand, is a political issue. It has nothing to do with the criminal law, nor for that matter, the police.

When he took to the microphone, Fuller said: “I will, through my minister, ask for an explanation. If it doesn’t stack up, I’ll give him a ticket happily.” Soon thereafter two police officers were filmed approaching Harwin’s city apartment block. The media just happened to be there.

NSW Police Commissioner Mick Fuller is standing by the decisions he made regarding Don Harwin.

NSW Police Commissioner Mick Fuller is standing by the decisions he made regarding Don Harwin.Credit:Rhett Wyman

The Commissioner promised that, after the long weekend, he would provide an explanation as to the result of those inquiries. That explanation was given in the form of an infringement notice issued to Harwin and which had apparently been personally reviewed by the Commissioner himself.

But last week the DPP elected not to pursue the matter, citing a review of the evidence. Fuller has since come out and says he backs his decision to issue the notice, which he said was based on a review of the circumstances at the time.

What does this mean?

The highest-ranking police officer in the state and the Office of the DPP formed diametrically opposed conclusions on the same evidence, which, we assume, never changed.

Given the amount of legal advice at the disposal of the Commissioner, this is a serious breakdown of proper process. If the decision to charge was a consequence of bad legal advice, the public has a right to know. If it was something more nefarious than that, the public should also be immediately informed. Either way, Fuller owes the public the explanation he originally promised but never fulfilled.

It also looks like he owes Harwin an apology. Instead, he has doubled down on his decision to issue the notice.

If Fuller wants to set himself against the state’s peak prosecuting authority then so be it, but media soundbites won’t cut it. Rather, he must explain the precise basis on which he “stands by” his doomed decision to issue a criminal infringement notice to a sitting minister.

Berejiklian also has some explaining to do. She accepted Harwin’s resignation after the police decided to charge him on the purported basis that it was necessary for her to “back the police”.

What are the implications of this statement?

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And why wouldn’t Harwin enjoy the presumption of innocence? He never deviated from the proposition that he had not breached the Public Health Order and he had apparently acted on parliamentary advice.

It would appear the state’s prosecutors agree with him.

The notion that a Premier’s governing principle, in those circumstance, should be to “back the police”, is risible. She had all the machinery of the state available to her when determining if the charge had been properly laid. If there was no legal advice available to her capable of reaching the same conclusion as the Director of Public Prosecutions, then the machinery is malfunctioning badly.

The depressing conclusion is that, like so many NSW state government leaders before her, Berejiklian lives in fear of a tabloid media and a talkback culture that revels in a pile-on. But the idea that the apparatus of police investigations and criminal charges might be used as a mechanism to quell media attacks is even more disquieting.

Having expressed the view at the time that Harwin was not in breach of the law, Berejiklian should now explain whether it was her who asked Fuller to become involved in circumstances where she was suffering from a “perception” issue, or whether his involvement arose independently of her political difficulties. One can only hope it is the latter, but if so the Premier must explain how the Police Commissioner came to be by her side in a press conference in which the police investigation was announced.

Those questions go to the heart of who is running this state.

Steve Boland is a Sydney-based barrister.

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