The lapdog will be capable of doing the bidding of any future political master unless we, the public, act now to force the government into backing down on the legislation.
Former corruption prosecutor and federal judge Doug Drummond believes proposed changes to the Crime and Misconduct Commission (CMC) “appear designed to ensure that the restructured commission will not investigate corruption by Queensland politicians and public officials if that might embarrass the government”.
If the legislation is passed, it will be in place when, if the Government has its way, multi-million dollar contracts are being handed to companies buying or leasing public assets.
Mr Drummond, along with former corruption inquiry commissioner Tony Fitzgerald, former Crime and Misconduct Commissioners, lawyers’ associations and legal experts are united in their opposition to the legislation.
Critics fear the legislation, which will replace the bulldog CMC with a chihuahua Crime and Corruption Commission, will enable Queensland governments to hide any corruption within their ranks while using it to yap at opponents.
For more than 20 years the three major parties have agreed that a proposed commissioner of the corruption watchdog must receive bipartisan support from a parliamentary committee.
This ensures the appointment cannot be politicised and that no party can, with any justification, accuse the watchdog of being biased.
Now, the government is proposing to scrap this practice and appoint someone to its new commission who it alone finds acceptable.
As well as appointing its own chosen commissioners the government will also restrict complaints to the new commission.
A Government-dominated parliamentary committee unanimously opposed a plan to limit corruption complaints to those people willing to make a statutory declaration.
But the Government is insisting on preventing anonymous complaints and forcing people with allegations about corruption to sign a statutory declaration.
Critics of the proposal point out that if this became a requirement of Crime Stoppers useful information would immediately dry up.
An “independent” review of the commission decided: “The CMC truly needs a research function.” But the Government plans to limit the commission’s research to matters approved by the Attorney-General and Minister for Justice. The Minister has already made it plain that he is not likely to approve research into political donations.
The original Criminal Justice Commission of 1989 was created to investigate matters which were not carried out by other agencies, together with organized and major crime. The main focus was on weeding out and preventing corruption.
But the major focus of the new commission will be major crime, with corruption relegated to second place.
And the legislation removes the commission's responsibilities for preventing corruption in the public service.
There are many more curbs on the powers of the new commission.
Mr Drummond is scathing of the proposals.
“The chairman alone will have control over the key anti-corruption activities of the commission. His power will be absolute. All the critical powers for dealing with corruption will be delegated to him…He can determine for himself whether a particular complaint of corruption is investigated and whether and ongoing investigation should be terminated and the complaint dismissed,” says Mr Drummond.
He says: “…a major object of the changes the Bill will make to the CMC…will protect the government from criticism.”
Mr Fitzgerald told the parliamentary committee: "The Bill...takes the final step needed to remove the Commission's independence entirely and bring it completely under Government control."
THE FLAWED LEGISLATION IS BEING RUSHED THROUGH
It is demonstrable that the legislation is being rushed through, presumably in a bid to avoid detailed scrutiny and bad publicity.
It was way back on July 3 2013 that the government tabled its response to two reviews it had ordered on the Crime and Misconduct Commission, the descendant of Fitzgerald Commission which had exposed the corruption which had flourished under a National Party government.
An implementation panel then took more than eight months to prepare a highly complex, 173-page Crime and Misconduct and Other Legislation Amendment Bill 2014 to present to Parliament.
The Bill was unveiled in Parliament on March 19 this year. It then had to be referred to a Parliamentary committee so that people and organisations with an interest in the legislation could make submissions.
It was sent to the Legal Affairs and Public Safety Committee. Five of its seven members are Liberal National MPs.
The committee has spent up to four months examining other Bills but in this case - and presumably under orders from the Premier - the public was given only three weeks in which to register any complaints or suggested improvements to this massive Bill.
Only one day was given for a public hearing for invited organisations and individuals. The chairperson disallowed several questions, more than one witness was hurried through submissions, John Sosso, Director-General of the Justice Department, refused to answer some questions, saying he could not talk about policy issues, and the session closed halfway through the afternoon.
The process was so rushed that the Justice Department had to ask for an extra week in which to respond. It was granted the extra time. No-one else was afforded extra time to deliberate on the biggest change to corruption investigation since the reforms which followed the Fitzgerald Report of 1989.
Just six weeks after the Bill was unveiled, the committee delivered its recommendations to the Government on April 30.
AN ‘UNWANTED’ PUBLIC SERVANT TAKES CONTROL
Professor Nicholas Aroney partnered former judge Ian Callinan in conducting the review of the commission. They recommended the creation of an implementation panel consisting of the Public Service Commissioner, the chairperson of the CMC, and two others, including a senior lawyer, to formulate their recommendations into a Bill.
They specifically stipulated that the fourth member of the panel should not be a current or former public servant.
Not only did the government ignore this recommendation but it put the public servant it chose, John Sosso, the Director-General of the Department of Justice, in charge of the process.
Who is Mr Sosso? Tony Fitzgerald said in his submission to the parliamentary committee: "When the [corruption] inquiry was established in 1987 the National Party Attorney-General was advised and influenced by a small ambitious group of Justice Department bureaucrats. The Attorney-General appointed one, John Sosso, as secretary to the inquiry. Sosso didn't last long in that role but returned to the Justice Department which, as the inquiry's report notes, did little willingly to assist the inquiry."
What was it that the Fitzgerald Report noted in 1989? Fitzgerald said that when his corruption inquiry started: "The Justice Department and the Police Department did not intent to lose control...Reasons were advanced for restricting the Commission's access to material."
The Fitzgerald Report also commented: "In the aftermath of this report's release, present and former Justice Department personnel, who are steeped in attitudes which have contributed to the current problems, may well try to reassert their influence and regain control of the agenda for reform."
In his recent submission to the parliamentary committee Mr Fitzgerald said: "Later, when [National Party MP] Borbidge was Premier, Sosso was deputy director-general of the Premier's Department.
"He is now the Director-General of the Department of Justice."
Mr Fitzgerald went on to tell the parliamentary committee: “Sooner or later the Premier will have to bring the Justice Department under control or risk public humiliation."
It was Mr Sosso who was at the centre of recent controversy when the ABC reported that one of the State’s most senior lawyers, Stephen Keim SC, had been stripped of a Government brief after criticising the Government’s sex offender laws.
"I was offered the brief. I accepted the brief. Then it was taken away after the crown solicitor consulted the director-general," Mr Keim said.
THE REMOVAL OF THE NEED FOR BIPARTISAN APPROVAL
For more than 20 years appointments as commissioners of the corruption fighting commission have needed to be endorsed by a bipartisan parliamentary committee.
The Government is now proposing to appoint its own candidate without obtaining the consent of opposition members (and/or independents).
Neither of the two reviews of the commission recommended any change to the bipartisan process.
The decision to scrap the need for bipartisan approval has come solely from the implementation panel.
The government has not argued that there have been any problems with the bipartisan process.
There was no explanation to Parliament in the Bill's explanatory notes of why the Government feels the need to go it alone.
Dr David Gow, former part-time commissioner with the CMC said: "We can find no reference to a problem, a deficiency or a shortcoming in the current appointment procedure."
Independent MP Peter Wellington asked John Sosso, the Director-General of the Justice Department: "What evidence are you aware of that the current bipartisan requirement is not working?"
Mr Sosso replied that it was a policy decision of the government and refused to say if his department had any evidence.
It is interesting to examine some of the wording used to deal with the appointment process.
The present Act says very clearly: “The Minister may nominate a person for appointment as a commissioner only of the nomination is made with the bipartisan support of the parliamentary committee.”
The Bill's explanatory notes say the Bill requires “the Minister to consult with the Parliamentary Crime and Corruption Committee...about the appointment of a person as a commissioner to the commission prior to nominating the person for appointment."
This suggests that the Minister should provide the parliamentary committee with the name of its intended commissioner before actually nominating him or her - presumably to avoid embarrassment if there are objections.
But the wording of the actual Bill is different.
The Bill says: "Before nominating a person for appointment as a commissioner the Minister must first consult with…the parliamentary committee."
This means the Minister could go to the committee and say he or she was thinking about appointing someone with a certain set of skills. The committee, loaded with Government MPs, could agree without being told the name of the candidate.
The Minister will have fulfilled the legislative requirement to have consulted with the committee. The Minister could then go through with the appointment process in secret and announce the fait accompli in Parliament.
Mr Fitzgerald told the parliamentary committee: "If the Bill is enacted in its present form partisan appointments will follow and Liberal National politicians will not have to worry about their conduct.”
The parliamentary committee has suggested to the minister that a bipartisan parliamentary committee should have the power to veto an appointment it does not approve of.
Should the Minister accept this proposal a future minister could demonstrate the system is working by nominating a fall guy, leading to a veto. The minister could then slide the preferred candidate into the role.
Former part-time commissioner Dr Gow said that if people perceived that the commission was "nothing more than an extension of the government of the day...then undoubtedly they are not going to make complaints for fear that it may adversely affect their own careers or their own lives."
He also said: "I think the elimination of the bipartisan requirement would further enhance that particular view that the CMC is a plaything of the government of the day."
WHY WOULD THE GOVERNMENT REDUCE THE COMMISSION'S POWERS?
Mr Fitzgerald recalls that in the 1970s and 80s “criminal politicians and crooked police ran the State”. His Corruption Inquiry resulted in four National Party Ministers being jailed.
He told the parliamentary committee his inquiry had "exposed some of the crimes in the National Party and the Police Force."
National Party diehards have never forgiven the Fitzgerald Inquiry or its successors, the Criminal Justice Commission and the Crime and Misconduct Commission.
As soon as the reformist Goss Government lost power in 1996 "the Borbidge Government quickly demonstrated that the coalition parties had learned nothing from their previous experience," Mr Fitzgerald told the parliamentary committee.
The Borbidge Government tried to neuter the commission by instituting a review which was eventually cancelled by a judge on the basis of bias by one of the Government-appointed reviewers.
The deputy chairperson of the Legal Affairs and Public Safety Parliamentary Committee, respected Independent MP Peter Wellington, and ALP MP Bill Byrne say in a 49-page report recommending the Bill should not become law: “The Borbidge Liberal National Party Coalition Government, and now the Newman Liberal National Party Government, have sustained an attack on the very body that has been charged with tackling serious crime and corruption in this State.
"Since the election of the Newman Government, its agenda in respect of the CMC has been clear. It has wanted to dismantle the Fitzgerald anti-corruption architecture and unwind 25 years of reform.
“This Bill completes the trashing of the Fitzgerald legacy…This Bill is a signal to Queenslanders that the Newman Government is prepared to let Queensland return to the bad old days of the Bjelke-Petersen Government, where corruption and misconduct were able to flourish.”
Corruption prosecutor Drummond commented: "It is an extraordinary exercise for the Newman Government to engage in at the very time ICAC in Sydney is exposing how corrupt politicians of both major parties will work hand in hand with opportunistic businessmen to plunder public assets," said Mr Drummond.
According to “Strong Choices” the Queensland Government wants to dispose of public assets worth $25 to $30 billion.
DESIGNED TO FAIL
Remember Mr Drummond’s warning: "...the proposed changes to the CMC appear designed to ensure that the restructured commission will not investigate corruption by Queensland politicians and public officials if that might embarrass the Government."
If, as he suggests, the new commission is designed to fail, it will not be the first time that this has happened in Queensland.
When corrupt Police Commissioner Terry Lewis was installed by National Party Premier Bjelke-Petersen he created an internal investigations section, ostensibly to investigate police corruption. But Lewis ordered that no investigations were to be carried out directly on police. It was an artifice, Fitzgerald reported.
In 1982 evidence of police corruption forced Bjelke-Petersen to create a police complaints tribunal. But it was not allowed to initiate inquiries. Fitzgerald found it to be: "in concept, structure and systems, misconceived...it has failed to provide an adequate mechanism to counter corruption and other police misconduct."
The Fitzgerald Report found: "The Tribunal is an illustration of an administrative body with the superficial trappings of quasi-judicial impartiality and independence, set up as a facade for Government power."
The same description may well be applied by some to the creation by the Newman Government of the Crime and Corruption Commission.
Like police officer Col Dillon with his bottle of Scotch, police and public servants with evidence of corruption will believe they have no independent, effective safe haven to protect them.
Due to the publicity the Bill has received it is highly unlikely that anyone with the qualifications, experience and integrity necessary for the position of commissioner will trash his or her reputation by applying for such a position.
Anyone accepting such a position is likely to be viewed by the legal profession and by public servants as a puppet of the Newman Government.
It may well be that the legislation is already dead in the water.
But, just in case, please tweet and share this blog as widely as possible.
A petition asking the Newman Government to retain the independence of the CMC is available here: http://ljiq.asn.au/2014/04/23/petition-do-not-make-us-relive-history-save-the-independence-of-the-cmc/
And a final reminder - Mr Fitzgerald warned in 1989: "If the community is complacent, future leaders will revert to former practices."