In a speech given yesterday, Stephen Keim said Queensland's corruption fighting Fitzgerald heritage is in dire peril from the Newman Government's regressive moves.
I originally thought that preparing for today would be a breeze. I had written a piece for the March in March Rally. I had work commitments on the day of that rally and had written the piece knowing that somebody else would deliver it in my place.
It was a very nice piece, I thought.
It would be delightful to have the opportunity to deliver it, myself. It would also mean that, apart from changing the heading, I would have to do very little preparation.
My talk was on a significant topic.
Its basic premise was that all Queenslanders were imperilled by the changes to the criminal law in Queensland which had occurred since mid-October, last year.
I tried to refute the belief that many have that
“If I do no wrong, I have nothing to fear from the law."
My notes pointed out that we are inter-connected. We have family and friends. And that our interconnectedness means that we must all fear unjust laws.
We may keep our noses clean, as the saying goes, but our niece or nephew or grandchild, whose brain is still maturing, may not be so lucky or sensible. Or our friends from the football club or cycling group or P & C may suffer at the hands of these laws leading to our own sense of grief and loss.
And I divided the legal threat from the new laws into two.
One source of threat is the VLAD Act. The VLAD Act can apply to any group of three or more who commit one of the listed offences together. Sharing a joint or three people hooning in a car can qualify. If our friend or relative gets caught in a situation of that kind, they can be facing 15 or 25 years of unmitigated imprisonment.
Such a random blow can destroy a whole family’s sense of joy for the length of the prison term and more.
The second source of threat is the concept of 'criminal organisation'.
This is a more considered and controlled threat.
The government creates a long list of legal disabilities that apply to any one who is a member of a criminal organisation. The present list includes restricted rights to bail; a more onerous prison regime; increased minimum penalties for certain offences; and the inability to work at certain occupations including the right to work at any work that requires any category of building licence.
The government can, at any time, increase the list of legal disabilities. Today: building licences; tomorrow, perhaps, any job that involves driving or teaching.
However, equally, in one swoop, the government can add to the list of organisations that are deemed to be criminal. It just needs the making of a regulation. Just the Attorney and the governor-in-council.
Today, the bikies. Tomorrow, who? Perhaps those pesky animal rights people or unionists or groups protesting the G20 rules. We do not know whom but we know that it is very easy to extend the reach of the laws.
So that is my directed threat.
But then something new came up. I had to abandon that topic.
Because the government has introduced a Bill to strip the independence of the Crime and Misconduct Commission, I feel that I must abandon my easy option and talk to you about this new Bill.
Tony Fitzgerald QC presented his report on 3 July 1989, almost 25 years ago. The report had been more than a year in the making. It is easy to underestimate what a watershed that report was in Queensland political history.
The report confirmed what many had long suspected — namely, that Queensland politics and the Queensland Police Service were rife with corruption. The report led to a many prosecutions; a significant number of convictions; and a famous hung jury.
Importantly, the report recommended systemic change to the way in which the Queensland polity operated and a number of institutional changes. One of the more important institutional changes was the creation of a strong and independent anti-corruption agency.
That agency became the Criminal Justice Commission. The Act to establish that body was passed on 18 October 1989 in what were the dying days of the National Party government led by Russell Cooper, the member for Roma.
It fell to the Labour Government led by Wayne Goss to establish the Criminal Justice Commission in 1990 after its election in late 1989.
The CJC, in an amended form and under the new name, the Crime and Misconduct Commission, survives to this day. But not for much longer.
Sayonara to the Fitzgerald heritage
A Bill is before the Parliament to amend the Crime and Misconduct Act. That Bill is intended to change the nature of the institution so that it will no longer carry out its role as part of the Fitzgerald heritage. The CMC is a very powerful organisation. It has had bestowed upon it exceptional powers. These powers were bestowed because of its exceptional role. They have grown over the two and a half decades since 1989.
The Commission was always intended to be independent of political partisanship, to have a degree of independence. It was intended to stand as a bulwark against the misuse of the institutions of the State for political or private advantage. Its independence was important for that reason. Its independence, to some extent, justifies its exceptional powers.
That independence is to disappear as a result of the Bill before the Parliament. The Commission’s independence will, no longer, be ensured. The institution will be vulnerable, at some time in the not too distant future, to misuse and political control, at the behest of a government in power. That loss of independence will mean the destruction of the safeguards put in place by the Fitzgerald report and the careful, multi-partisan work of those politicians who caused the recommendations in that report to be implemented.
Loss of the preventative role
I will outline four aspects of the changes proposed by the Bill that are, in my opinion, detrimental.
The first of these concerns changes to the objectives of the Act in s4. These changes flag that promoting integrity and prevention of corruption in the public sector are to be of reduced importance.
This is done by changing the objective of continuous improvement of integrity and reduction of misconduct to simply the reduction of the incidence of corruption and by treating this objective as of secondary importance (Clause 6).
This is reinforced by a proposed change to s23, where the preventive function of the commission now only relates to major crime and no longer relates either to misconduct or corruption in the public sector (Clause 10).
It is also achieved by an amendment to s34 where paragraph (b), which deals with capacity building to prevent and deal with misconduct, is deleted and changes to paragraphs (c) and (d) where the prevention of misconduct/corruption is similarly downgraded (Clause 13).
The loss of the preventative function in the objectives will become operational. There will be less justification to engage in preventative activity and money and resources will be directed elsewhere to the more sexy “cops and robbers” activity of the Commission.
Unfortunately, much cops and robbers work is unproductive, or even counterproductive, if it becomes suffused with corrupt operatives and corrupt leadership.
The second of my concerns relates to extending the criminalisation of people who get their complaints wrong.
A lot of lay people are wrong-headed and mistake suspicion for evidence and legal activity for corrupt conduct. People should be encouraged not to be reckless in their complaints and to think carefully before putting an angry pen to paper.
On the other hand, ordinary people should not be intimidated from ever making a complaint to the anti-corruption body because of criminal penalties for getting it wrong.
The proposed changes in the Bill go too far.
The existing s216 relates to complaints which concern frivolous or vexatious matter. Section 216 has a two strike policy, whereby a second wrong-headed complaint on the same subject matter may amount to a criminal offence.
Also, existing ss217 and 218 criminalise the provision of material that is false or misleading to the Commission as part of a complaint.
The Bill reinforces this by deleting “vexatious” from s216 and including it in the new offence provision, s217A.
Section 217A makes it an offence to make a complaint in any of the following manners: vexatiously; not in good faith, for a mischievous purpose, recklessly, or maliciously.
This is far too heavy handed and will deter ordinary people from bringing their concerns to the Commission.
Non-gender specific language
It is astonishing to find that, throughout the Act, the term of “chairperson” is to be changed to “chairman”.
I recall that, during the debate over whether Australia should become a republic, one of the arguments of the constitutional monarchists was that nothing would actually change. It was all a matter of symbolism. (At the same time, the same people were saying that everything would change and life as we know would disappear down the plug hole.)
The point is, however, that symbolic changes to our public lives are important. The symbols of our lives tell us who we are, what we believe and how we propose to act. That is why our public lives are infused with symbols: flags, anthems, coats of arms, mottos, public holidays, soldiers lined up at football matches, statues and pictures on the wall.
The change to non-gender specific language in our statutes and other public documents was important. It signified that, as a society, we should no longer treat the female half of our population as capable of being overlooked and ignored. It signified that, when a woman or girl made it to a position of public importance, it was not an exceptional event but something that was proper, usual and ordained.
This change to this statute announces many things.
It says that government wants to rub the nose of every woman in a mud-pool of inequality.
It says that every recognition that women and girls have gained in recent times is illegitimate and susceptible to being reversed.
It says that this government, contrary to its professions of acting on behalf of the populace as a whole, acts only on behalf of its most twisted and regressive supporters to enact its most extreme and non-inclusive beliefs.
This stupid attempt should be denounced from the roof tops because, if it is not, many more accepted bipartisan advances in culture and values of the last thirty years will be overturned and revoked by the next round of legislation from this government.
Loss of an Independent Commission
Mr Fitzgerald’s Report, which was received on 3 July 1989, stressed the exclusion of party political considerations and processes from the decision making concerning criminal justice. This was treated as an important factor in recommending what has become the present CMC.
The important mechanism of achieving a Commission independent of partisan political considerations was achieved under the leadership of National Party leader and premier, Russell Cooper, the member for Roma whom I have already mentioned. He was ably supported by the Liberal Party under Angus Innes and the Labor Party under Wayne Goss.
Without need for a division [see Parliamentary Debates [Hansard], 18 October 1989, page 1,714] the Parliament passed the section that required for the appointment of a commissioner, the support of at least two political parties within the Parliamentary Committee. This is now reflected by the phrase “bipartisan support” in subs. 228(3) of the Act as it presently stands. Section 228 requires that the appointment of any commissioner, including the Chairperson, involve consultation with the Parliamentary Committee and bipartisan support of that Committee.
This will be swept away by the Bill before the Parliament.
Sections 233-225 in the present Act provide for a chairperson and four part-time community representatives. The chairperson must be an experienced lawyer. One of the community representatives must be an experienced lawyer with a demonstrated interest in civil liberties (Paragraph 225(1)(a)) and must be appointed from four persons nominated, two each, by the Bar Association of Queensland and the Queensland Law Society (s227(3)). The others must come either from a relevant social science background or a community service background (ss225 & 230).
At least one part-time commissioner must be a woman (s230(4)).
The part-time community qualification requirements are deleted by the Bill including the requirement that one part-time commissioner be a woman.
The new structure has a full-time chief executive officer (presumably of a management or financial management background) as well as the full-time chairman. There are three part-time commissioner positions whose background qualifications are undefined. One of these is to be deputy commissioner (clause 34 of the Bill amending or replacing ss223-225).
The removal of the community requirements, including the civil liberties position, is likely to encourage the appointment (by the government) of people who are less independent and less questioning of government partisan influence upon the Commission’s work.
Of most concern, however, is the removal of the requirement that the appointment of all commissioners must be with the bipartisan support of the Parliamentary Committee (228(3)). This is swept away in the new Bill (clause 38).
This requirement was both the symbol that the Queensland Parliament was committed to a Commission that was independent of partisan opinion and the single most effective means of achieving that independence.
It will be no more.
The Fitzgerald heritage will indeed have been trampled into the mud.
There is a link between the talk I did deliver to you and the one that I did not deliver.
In extraordinary times, when Parliaments pass legislation that creates legal dangers and legal discrimination against certain individuals in the community (who may have committed no crime), the rule of law on which all our freedoms depend falls under particular pressure.
If our laws are being turned bad at the edges, we need our institutions to stand as bulwarks for our protection. We need to know that these bad laws will not be further misused by law enforcers who are themselves politically blinkered.
Win times such as these, we need a strong and independent Commission even more (which may be one reason why its independence is under attack).
We need the Fitzgerald heritage to remain, as we thought it was, our birthright.
The changes to the CMC Act are bad and unwarranted changes.
They should be opposed.
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