Queensland seems to be truly exceptional in one respect: the production of political horrors. Gary Crooke wasn’t alone when commenting on the anti-bikie laws in October last year
As I keep saying, is this Australia that this is happening in? And why does it happen only in Queensland? Why?
It was the kind of quiet alarm clanging away in the heads of anyone who recalled the ugliness that emerged in Queensland during the 70s and 80s. In 1989, the Fitzgerald Report recommended the establishment of an independent, anti-corruption body – what would become the Criminal Justice Commission (CJC) – to counter the politicisation of the police, systemic public sector corruption and to reform the criminal justice system. Fitzgerald recommended that the CJC be ‘independent from the police, the judiciary, the government, and the Opposition but reporting to a parliamentary committee.’ The committee was to be a standing all-party parliamentary committee, the Parliamentary Criminal Justice Committee (PCJC). Its role was to monitor how the CJC discharged its powers.
The CJC and the PCJC later had a name change to the Crime and Misconduct Commission (CMC) and the Parliamentary Crime and Misconduct Committee (PCMC). The renamed bodies performed similar functions to their previous incarnations. The Crime and Misconduct Act 2001 required that the nomination of commissioners be made with bipartisan support of the Parliamentary Committee.
The Crime and Misconduct and other Legislation Amendment Bill 2014, passed through parliament with amendments, on 7 May after six hours of debate, removes the requirement for bipartisan support. It allows for the Parliamentary Committee to have a majority veto power over appointments, a significant concession considering the Committee is now stacked with LNP MP’s.
This key change was raised in the recent Legal Affairs and Community Safety Committee hearing examining the new Bill. Consider the exchange between independent MP Peter Wellington and the Director-General John Sosso:
Mr WELLINGTON: If I could just put a follow-on question, director-general: what evidence are you aware of that the current bipartisan requirement is not working?
Mr Sosso: Mr Wellington, the decision to dispense with the bipartisan process for appointment was a policy decision of the government and it is a matter that you need to address with the minister.
Mr WELLINGTON: My question was to you what evidence does the department have that the current position of requiring bipartisan support is not working. If are you saying that is a matter for policy, you are effectively saying to me then you have no evidence to—
Mr Sosso: No, you are misunderstanding. I said that is a policy matter for government.
Mr WELLINGTON: No, I asked you a question. What evidence does your department—
Mr Sosso: That is my answer.
Mr WELLINGTON: So your department has no evidence?
Mr Sosso: That is my answer to you. It is a policy decision for the government.
No-one seems to know why there was a need for the alteration. Stephen Keim writes that the idea for bipartisan support for the appointment of commissioners was created in 1989 by then National Party Premier Russell Cooper, the Labour opposition leader Wayne Goss and Angus Innes, leader of the Liberal Party. The aim was to implement Fitzgerald’s recommendation that the new anti-corruption body would be independent of partisan concerns of the government of the day.
The Attorney-General, commenting in The Courier Mail, said that the current bipartisan model ‘opens it up to politicisation’. My guess is that is exactly what will happen now that bipartisan support has been removed.
Another reason given was that the CMC should have the same process of appointment as ICAC. While ICAC is proving to be fairly transparent in its investigations into corruption, the CMC head remains tight lipped when called on by the Leader of the Opposition to publicly declare if it is aiding the NSW investigation into Australian Water Holdings.
Recently the Queensland premier’s director-general Jon Grayson had to divest himself of his private interests – which included a company he founded last year with Eddie Obeid Jr and former Australian Water Holdings boss Nick di Girolama. Apparently the Premier considered the matter was ‘put to bed’ after the CMC wrote to ICAC, stating the CMC had no basis on which to investigate him.
It’s all getting a bit close for comfort: ICAC heard in April that a $5,000 donation was demanded as the price of a meeting with Mr Newman when he was Brisbane’s lord mayor in 2007. The octopus tentacles seem to keep growing, at a time when the government is contemplating selling or leasing public assets worth billions.
Back in October 2013, acting CMC chairman Ken Levy wrote an opinion piece in the Courier Mail supporting the government’s new anti-bikie legislation. It was an unusual step for the head of a supposedly independent anti-corruption body to take. Newman commented that the government was simply delivering the laws that the CMC wanted. Members of the PCMC understandably wanted to know just how close the government was to the CMC.
Dr Levy initially said he had no contact with the government before writing the piece but later admitted that the CMC received calls from the head of the Queensland government media unit, Lee Anderson. Levy was called before the PCMC to explain his earlier statements, as was Lee Anderson The response from the government was to sack the entire committee due to, of all things, its purported bias. At the end of this manoeuvring the PCMC looked entirely different: the sacking meant it could be stacked with Liberal National Party MPs, who now hold four of the seven spots.
In an article for The Independent, Alex McKean notes: ‘The sacking meant the PCMC was unable to further investigate manifest inconsistencies between the evidence of Dr Levy and Mr Anderson and Dr Levy. The inquiry into Dr Levy’s evidence to the PCMC was removed from the reconstituted PCMC and taken over by the Select Committee on Ethics on the same day.’
In any case, the fact that Dr Levy was being investigated by the Select Committee didn’t seem to matter too much because the legislation secures his tenure until 31 October 2014.
McKean, a Sunshine Coast lawyer, made a submission to the Legal Affairs and Safety Committee focusing on the ‘Dr Levy clause.’ You can see his submission on the Queensland Government’s website – but don’t expect to be able to read much of it because it’s almost entirely redacted.
McKean makes the logical point that, if Dr Levy was under investigation by the ethics committee, why did the legislation go ahead and guarantee his tenure? Surely that could only lead to an undermining of public confidence in the watchdog!
The Ethics Committee has since delayed its inquiry into Dr Levy’s conduct due to a police investigation.
The original Crime and Misconduct Act 2001 gave the former CMC a wide research function with regard to the use of police powers. The latest Bill initially stated that all research plans must be approved by the Attorney General. This was amended so that the Attorney-General consults with the PCMC before research proposals are approved. It was not much of an amendment, effectively meaning that what the CMC researches is determined by the executive, supported by a PCMC that is dominated by the government.
In other words if some grisly slush fund becomes apparent, everyone can look the other way and declare that it can’t be pencilled in on the research agenda. Robert Needham, former Chairman and Commissioner of the CMC, writes in his submission to the Legal Affairs and Community Safety Committee writes: ‘If the government of the day saw such research as contrary to its interests or potentially politically damaging, such approval would not be forthcoming.’
In her essay Crime and Misconduct Commission: Moving Away from Fitzgerald [paywalled], Colleen Lewis, makes the observation that anti-corruption bodies often occupy a unique constitutional position.
Because the CMC (and the CJC before it) reports to the Parliament through an all-party parliamentary committee, it circumvents the authority and influence of the executive. This denies the executive the levers of control usually available to it when misconduct within a government department is exposed.
The role of an independent, anti-corruption body is to, amongst other things, investigate the conduct of appointed public officials. That is what an independent body is supposed to do. Transparency of the machinations of government is good for the citizen but probably unwanted by those wanting to control the levers of power. No government wants revelations about how, say, a public official profited enormously from the sale of this or that public asset. It’s entirely understandable that the government would want to control the narrative – or, at the very least, influence who or what is under investigation by a body as powerful as the CMC (now the Crime and Corruption Commission (CCC)).
The CMC has, in the past, had the ability to hold Star Chamber hearings – coercive hearings – based on a police referral relating to an investigation. That meant any investigation, not necessarily organised crime. In May last year, the Courier Mail reported that the secretive hearings had called 150 witnesses over a 10 month period to April 30. The concern was that the police were turning to the CMC to get unwilling witnesses to talk; a ‘back door to get around the law of the right to silence.’
Legislation passed by Parliament in October 2013 means that the CMC now has the power to hold hearings on its own intelligence rather than the police referral required in the past. The hearings allow the CMC to question people in secret – and, if they don’t answer questions, they will be sent to prison for contempt. The result is a very powerful organisation acting in secrecy, threatening and imposing imprisonment if people don’t talk and supported by legislation that ensures incredibly long mandatory sentences for anyone deemed to be part of a criminal organisation.
A quote from Judge Damon J Keith comes to mind: ‘Democracies die behind closed doors.’
The executive branch seeks to uproot people’s lives, outside the public eye and behind closed doors…When the government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.
There is more to this legislation that needs to be discussed – for example, the change from ‘chairperson’ to ‘chairman’.
In Queensland, we are heading back to the future, reinstating ideas from the 1950s.