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Quis custodiet ipsos custodes?

One of the key takeaways from the recent federal election appears to be that Australians want a federal integrity commission, without delay.

The new Government has committed to this and has begun to outline some of the key features of its proposed model, including that a commission will look at matters which have already occurred and will be able to receive referrals from a “wide range of sources”.

The new Attorney-General is reported to be considering a crossbench Bill and will consult independent MPs before introducing the Government’s Bill to Parliament.1

Missing from these discussions, or at least from the current media reporting, is consideration about how key roles will be filled and whether the commission itself will be subject to appropriate scrutiny and oversight. The considerations are fundamental, given that the effectiveness of an integrity commission will be undermined if it appears to be, or is, political.

In the recent Call to Parties Statement sent to parties and candidates standing in the 2022 federal election, QLS called for the establishment of a Commonwealth Integrity Commission to address allegations of corruption at a federal level, where there is:

i. a requirement for bipartisan appointments of the Chair and CEO positions, and

ii. scrutiny and oversight of the commission by a discrete committee of the Commonwealth Parliament.

These are key features of Queensland’s Crime and Corruption Commission. Pursuant to section 228 of the Crime and Corruption Act 2001 (Qld) (CCA), there is a requirement for prior consultation on, and bipartisan support for, the key roles in Queensland’s Crime and Corruption Commission:

228 Prior consultation and bipartisan support for appointments

The Minister may nominate a person for appointment to the office of chairperson, deputy chairperson, ordinary commissioner or the chief executive officer only if—

(a) the Minister has consulted with—

(i) the parliamentary committee; and

(ii) except for an appointment as chairperson—the chairperson; and

(b) the nomination is made with the bipartisan support of the parliamentary committee.

The presence of this section in the Queensland legislation has generally prevented the CCC from being utilised, or successfully so, for political purposes as each side of politics has given support to the appointment of key roles. Further, any issues with the performance of a key role, such as the role of chairperson, have not typically been blamed on partisan appointment. Similar requirements should be adopted for a federal body.

Regard could also be had for the New South Wales model. In this jurisdiction, the Independent Commission Against Corruption Act 1988 (NSW), provides:

64A Power to veto proposed appointment of a Commissioner or the Inspector

(1) The Minister is to refer a proposal to appoint a person as a Commissioner or Inspector to the Joint Committee and the Committee is empowered to veto the proposed appointment as provided by this section. The Minister may withdraw a referral at any time.

(2) The Joint Committee has 14 days after the proposed appointment is referred to it to veto the proposal and has a further 30 days (after the initial 14 days) to veto the proposal if it notifies the Minister within that 14 days that it requires more time to consider the matter.

(3) The Joint Committee is to notify the Minister, within the time that it has to veto a proposed appointment, whether or not it vetoes it.

(4) A referral or notification under this section is to be in writing.

The appointment process and the individuals appointed under this process sre fundamental to the success of a commission and will either instil or diminish confidence. Should there be a lack of confidence in the commission, there are likely to be fewer complaints made and a distrust of the investigation and reporting processes. Outcomes are unlikely to be accepted by both the subjects of the investigation and the community. The commission will be criticised, avoided and therefore impotent.

Effective scrutiny and oversight of the performance of the commission’s functions is also necessary. In Queensland, the Parliamentary Crime and Corruption Committee is a standing committee of the Legislative Assembly with particular responsibility for monitoring and reviewing the commission’s performance.2 Its functions and powers are listed in Part 3, Chapter 6 of the CC Act and, pursuant to section 300:

300 Membership of parliamentary committee

(1) The parliamentary committee must consist of 7 members nominated as follows—

(a) 4 members nominated by the Leader of the House;

(b) 3 members nominated by the Leader of the Opposition.

(2) The chairperson of the parliamentary committee must be the member nominated as chairperson by the Leader of the House.


Importantly too, section 301 of the CCA provides that membership of the parliamentary committee continues despite dissolution of the Legislative Assembly.

A federal commission would benefit from the monitoring and review of a discrete committee. Indeed it was the parliamentary committee’s report from the ‘Inquiry into the Crime and Corruption Commission’s investigation of former councillors of Logan City Council; and related matters’ that has led to the current Commission of Inquiry into the Crime and Corruption Commission.

Regular and effective review of any legislative body, but particularly an anti-corruption commission cannot be overlooked.

The benefit of looking to other Australian jurisdictions for inspiration is as much about finding what works and what does not work.

One element of the Queensland CCC model which may be better to be avoided at the federal level is the joint role of invigilating major crime. This follows from the landmark Fitzgerald Inquiry, but has been problematic and, at the federal level, is redundant given the role of the Australian Federal Police.

As we have seen in Queensland in recent times, concerns arise where there is blurring of the roles within the commission as a result of seconded police officers and other issues. Separation between an integrity commission and the police and law enforcement will better serve a commission’s function and standing in the community.

Those responsible for designing and establishing a federal integrity commission are in the fortunate position to learn from other Australian jurisdictions. From Queensland’s experience, a commission where key roles are staffed based on bipartisan appointment and that is subject to appropriate scrutiny from a dedicated and bipartisan parliamentary committee will be better able to function in the way that meets the expectations of Australian voters.

Matthew Dunn is Queensland Law Society Policy, Public Affairs and Governance General Manager. Kate Brodnik is a Queensland Law Society Senior Policy Solicitor.

Footnotes
1 Albanese government promises national corruption watchdog will have power to investigate pork-barrelling, The Guardian, 8 June 2022.
2 Section 9 of the Crime and Corruption Act 2001 (Qld).

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