Queensland’s Crime and Misconduct Commission: To be or not to be ... that should

be the question!

presented to

ASPG National Conference4 October 2013, Perth

Professor Scott Prasser

Australian Catholic University

Overview

• History – from whence the CMC came

• Where it fits in the integrity process in Queensland and Australia

• Issues

• Recent Callinan/Aroney Review

1980s/90s New responses – Anti-corruption bodies cometh• New ongoing, permanent bodies

• Coercive powers of investigation

• Extensive resources

• Outside of existing agencies like police

• Examples– Independent Commission Against Corruption

(NSW 1988)– Criminal Justice Commission (Qld 1989)– Corruption & Crime Commission (WA 1992/2003)

Challenges: Anti-corruption agencies

• ‘Capture’ by those being oversighted• Reliance on personnel from agencies

oversighted eg police• Co-ordination other integrity agencies • Resources • Civil liberties • Time delays for results• Sustaining political & public support• Challenges to executive government

– ‘fourth’ arm of govt?• Accountability and review

Importance of CMC

Reviewing the CMC and any changes – imp’t “since the CMC, along with ICAC, are

regarded as the "flagship" integrity agencies and benchmarks for agencies in Victoria (IBAC) , Tasmania, and Western Australia (CCC)”

UoQ Academic

Origins of CJC/CMC• Fitzgerald Report est EARC and the CJC and stated:

“The main object of this report and its recommendations is to bring about improved structures and systems. The past misdeeds of individuals are of less concern, except as a basis for learning for the future.”

• Fitzgerald himself stressed “work started by this Commission [had] not been completed” and that its real task was to “found the process of reform”

• “These bodies and not this Inquiry will provide the appropriate forum for debate and determination of what specific reforms should be made.”

History of CMC• 1989 Criminal Justice Commission – Fitzgerald

Inquiry• Aust’s first all encompassing anti-corruption,

misconduct body (public service, local government and police, organised crime)

• Investigative powers of a royal commission• Borbidge Coalition Govt:

– ended ‘one-stop shop’ model separated organised crime function est the new Queensland Crime Commission (QCC)

• Beattie Govt 2002 – abolished QCC and formed Crime and Misconduct Commission

Problems – from the beginningSir Max Bingham observed:

• “Politically, while current rhetoric dictates that each and every member of the Legislative Assembly will loudly proclaim his or her commitment to reform, the actual experience of the CJC suggests that the practical manifestations of reform are not so welcome after all. There has been progress, but economic difficulties and competing agendas have combined to lessen the impact of some of the Fitzgerald philosophy.”

• “... almost daily there were messages from various political quarters that it would be a good idea if we were to all drop dead.”

Positive problems – doing its job

• Attacking executive government – some ministers forced to resign

• Issues with Police appointments

• Overseeing Police actions

• BUT SOME ISSUES

Issues with Police investigations eg Palm Island Affair – CMC believe it had been “sidelined” by actions of Police

Negative problems: Failures• Alleged involvement of staff in pornography

/paedophilia• Possible leaking to the media• Achieving favourable outcomes by delaying

investigations• Perceived political bias • Failure to address organised crime esp Qld

drug trade• Spending time & resources minor public

servant misdemeanours often based on personally motivated ‘tittle-tattle’

Other issues

• Exempt from other agency reviews

• Chair – appointments

• Lack of oversight: – parl c’mttee captured by process and CMC– no independent review

• Failed to handle some important issues – Nuttall/Patel nailed by Davies Royal Commission

Recent perceived failures: Prince issue?

• Public Servant in Health Dept - $16m fraud

• CMC received report 2010 – but referred back to Health Dept

• Recent report – action against Health officials

Organisational fit issues

• Additional wheel of government not fit with Qld’s unicameral version of Westminster:– Holding executive to account– Accountability issues– Reporting processes– Relations with parliamentary committee –

past and present– Performance review – about what and by

whom?

Connolly-Ryan Review 1996• Inquiry into the Future Role, Structure,

Powers and Operations of the Criminal Justice Commission

• Established under the Commissions of Inquiry Act

• CJC Carruthers Inquiry - Cabinet Minister guilty of a criminal offence

• Mr Connolly QC, made comments about Carruthers Inquiry and other matters

• Supreme Court ruled –”bias” – Connolly-Ryan Inquiry closed down (Curruthers/CMC)

Misuse of CMC by government• Sending issues to CMC for political reasons

• 2012 election and actions by Bligh Govt

• AG, Jarrod Bleijie’s announcing the Inquiry: “The problem in the past has been that just referring a matter to the CMC becomes part of the political debate and that is not why the Commission is there. It should not be used as a political football as it was by the Labor Government, which made an art-form out of referring matters to the CMC for its own political gain.”

Callinan Review 2012The Advisory Panel shall make such recommendations as it thinks fit:

a. as to whether the Crime and Misconduct Act 2001 (Qld) (‘the Act’) and any other associated statutes and regulations should be amended;

b. to improve the operation of agencies charged with, or concerned in the operation of the Act with respect to:

(i).the use or any abuse of the powers and functions conferred by the Act;

(ii).ensuring the maintenance of public confidence in the Act and the relevant agencies;

c. to ensure the prioritisation of focus by the relevant agencies on:(i) criminal organisations;

(ii) major crime;

(iii) the elimination and prevention of corruption in public affairs;

(iv) timeliness and appropriateness of action by the relevant agencies;

d. with respect to such other matters as the Panel think relevant to any of the above matters.

The Advisory Panel’s recommendations are to be made by way of a report, to be provided to the Attorney-General by 14 March 2013

Structure of report1: Intro

2: Constitutional; history & context:14-21

3: History of CMC:22-41

4: Comparative analysis:42-70

5:Submissions:71-80

6:Compalints: Publicity - 82-105

7: Complaints: Trivial 105-125

8: Multiplication: 128-159

8A: Redacted: 163-177

9: Police Conduct:192-192

10: CMC Activities – priorities/focus/oversight: 193-201

11: Summary & Recommendations: 201-220

Basic thrusts of Report• No abolition

• Integrity – part of good management – ‘integrity industry’

• Poor priority setting & lack of focus– trivial pursuit – need tightening– baseless complaints– eg The Prince

• Long delays in cases/stress

• Oversight issues: Parl/Parl Comm/‘Unit of public administration’

Basic thrusts (cont’d)

• Dual crime & misconduct dual roles …but

• Local govt supervision – transfer

• Ethical Standard Units in public service/educative functions - reduced

• Bureaucratic/language

• Research unit – not performing/not specific

• Media roles reduced

• MoUs across govt - lapse

Limits of Callinan Review: Process issues

• Callinan Review not constituted under Qld’s Commissions of Inquiry Act with royal commission powers to obtain information and to protect witnesses

• Problems with CMC• Membership highly competent, but narrow

expertise• Focussed on the Act – not the institution• Resources• Lack of meaningful framework • Was it a real performance review?

Reactions to report

• Bad press

• Recommendation released before the full report

• When report was released – parts redacted

• Concerns about civil liberties/ confidentiality

• Criticisms of CMC research body

• Quaint – lectures on govt

• Attacked ‘ethics ‘industry’

Criticisms (collected)• Tenor cast the CMC as  part of the "integrity Industry", which

consists of duplication and overlap among several institutions (the CMC, Ombudsman, Public Service Commission)

• Riddled with errors of fact and interpretation• Recommendations "ad hoc thought-bubbles" organised in a hap-

hazard fashion•  Recommendations range from macro to micro--such as

proposing that the optimal staffing model for the CMC's media unit was 1 person  

• In one area where the recommendations take-on a clear focus complaint management-the recommendations are advanced without justification

• There are lessons that can be learned from the Callinan-Aroney Review that will be instructive to future organisational reviews, particularly reviewed of independent integrity agencies.  

  

Government response

The Newman Government has issued a response which consists principally of endorsements of Callinan/Aroney's recommendations.  

Implementation team is now at work with the goal of developing the CMC in the image of Callinan and Aroney.