Who's watching corruption at anti-corruption watchdogs?
CHRIS BARRETTApril 28, 2009
A serious flaw has been exposed in the Crime and Misconduct Act that allows the Queensland government to sweep corruption charges under the carpet by voting along party lines.
The dangerous loophole in legislation was exposed by the decision of the state's peak anti-corruption body, the Parliamentary Crime and Misconduct Commission (PCMC), to dismiss a complaint concerning the long-running Heiner affair, which revolves around the Goss cabinet's shredding of documents relating to child abuse nearly 20 years ago.
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The Labor Government has a 4-3 majority on the committee responsible for overseeing the Crime and Misconduct Commission (CMC), and according to chairman Paul Hoolihan can use its numbers to effectively ignore a complaint of official misconduct.
It did just that with its January 7 decision to dismiss the Heiner affair even though brisbanetimes.com.au understands the three non-government members of the committee at the time - the LNP's Jack Dempsey and Howard Hobbs and independent Liz Cunningham - wanted the matter investigated further.
A leading authority on statutory interpretation, QUT senior lecturer Alastair MacAdam, said Section 295 of the Crime and Misconduct Act "urgently and immediately requires amendment".
"A serious matter of misbehaviour by the executive government can be dismissed by the government majority," Mr MacAdam said.
Opposition Leader John-Paul Langbroek agreed that the use of the Act in this manner had major ramifications for the accountability of executive government in Queensland.
He said it was reflective of an oversight committee structure that "allows the government of the day to wash its hands of matters dealing with corruption".
"We should be asking about the major issue - whether complaints should be able to be dismissed by a government majority," Mr Langbroek said.
The chairman of Western Australia's version of the PCMC - which is based on Queensland's version, but doesn't allow for a government majority - has described the system as "totally and utterly wrong".
Queensland's new Attorney-General Cameron Dick last night said he was "aware that some alternate interpretation may be given to Section 295 of the Crime and Misconduct Act."
"This provision has been in operation for a long period of time and I am not aware of any significant issue this has caused the operation of the Parliamentary Crime and Misconduct Commission, or the accountability of executive government in Queensland," Mr Dick said.
"I will take further advice on the issue, including from the PCMC, on any changes that need to be considered."
Mr Hoolihan, the ALP member for Keppel who was retained last week as the chair of the PCMC, would not comment on the Heiner complaint - lodged in February 2008 by former union official Kevin Lindeberg.
However, he said the support of non-government members in decisions was only required in complaints of "key" significance worthy of further action
Such action includes referral to the Parliamentary Commissioner Alan MacSporran, the Director of Public Prosecutions or the Queensland Police Service for investigation.
Mr Hoolihan admitted, though, that it was the committee itself, with a Labor majority at the table, that decided what were key matters on a "case by case basis". If they do not achieve that status they can be thrown out on political lines, as occurred in the Heiner case.
"General complaints don't always have to be resolved in a bipartisan matter," Mr Hoolihan said.
"Bipartisanship is only (needed for) key matters."
It is understood the non-Labor members of the committee regarded the Heiner case as "key" and wanted to see it referred to a temporary parliamentary commissioner, but were blocked by the Labor majority.
Mr Langbroek also questioned "in this case whether it's not a significant issue".
The Parliamentary Commissioner Mr MacSporran was disqualified from any potential referral on the Heiner complaint owing to his past role in investigating Mr Lindeberg's union dismissal as counsel assisting the Cooke Commission of Inquiry in 1991.
Mr MacAdam said Mr Hoolihan's interpretation of the Act - that only complaints deemed significant enough for referral required bipartisan support in the decision-making process - was an example of "literal reading", which he said had long been out of practice.
He said it was not an "interpretation that will best achieve the purpose of the Act", as set out in Section 14A of the Acts Interpretation Act.
"What Hoolihan says might be barely arguable but if you look at 14A it's clear that bipartisanship is required," Mr MacAdam said.
The seven members of the PCMC at the time of the Heiner affair dismissal were chair Mr Hoolihan, Dean Wells (ALP), Simon Finn (ALP), Christine Smith (ALP), Ms Cunningham (independent), Mr Hobbs (LNP) and Mr Dempsey (LNP).
The new committee, also chaired by Mr Hoolihan, includes Mr Dempsey, Steve Dickson (LNP), Scott Emerson (LNP), Betty Kiernan (ALP), Mark Ryan (ALP) and Steve Wettenhall (ALP).