Avenging Sir Joh

The LNP has it in for Fitzgerald's legacy ... Gutting the Crime and Misconduct Commission ... Fixers appointed to "implementation panel" ... Stephen Keim and Alex McKean give the background on the creation of Newman's Star Chamber 

Tony Fitzgerald hands his report to Deputy Premier Bill Gunn and Premier Mike Ahern

The source of the angst

Tony Fitzgerald QC was appointed to head a commission of inquiry by National Party Acting Premier, Bill Gunn.

The appointment was in reaction to a series of newspaper articles in the Courier-Mail alleging police corruption and an exposé on the same subject by the ABC's Four Corners entitled the Moonlight State, which aired on May 11, 1987.

Gunn's decision was, from one point of view, well made. The inquiry directly led to former police commissioner Terry Lewis being convicted and jailed for corruption and Gunn's boss, premier, Joh Bjelke-Petersen, being tried for corruption with his trial, controversially, ending in a hung jury.

The recommendations in Fitzgerald's report have become a template for good and honest government around the world. His findings of corruption and other failings have become a classic description of how so-called "democratic governments" can go horribly wrong.

The Crime and Misconduct Commission is a somewhat changed remnant of Fitzgerald's recommended Crime and Justice Commission. 

Ironically, since Fitzgerald and his inquiry were a creation of a National Party government, the successors of Gunn and Bjelke-Petersen in conservative politics have always had it in for Fitzgerald's legacy.

As the most obvious still standing part of that legacy, the CMC usually cops the brunt of this ill-feeling.

The short lived Borbidge government, in August 1996, set up the Connolly-Ryan Inquiry into the CJC (as it then was). The inquiry was closed down in August 1997 for apprehended bias and going outside its terms of reference as a result of an action brought in the Supreme Court. 

There was unfinished business when Campbell Newman's government came to power at the beginning of 2012.

The campaign

The Newman government is prosecuting a program of radical changes at the Crime and Misconduct Commission.

The government is quite open about this program and has flagged that further legislative reforms will be implemented in 2014.

The campaign had commenced with savage funding and staff cuts for the organisation.

The aim appears to be the dilution of the independence of the CMC, weakening its powers and desire to prevent and investigate official corruption.

At the same time, the crime-fighting functions of the CMC have been increased and the organisation is being used as part of the government's armoury in its so called battle against bikies. 

The primacy of Mr Sosso

On July 4, 2013, the attorney general announced the formation of an "implementation panel" to oversee the changes recommended by the Callinan-Aroney review of the CMC. The review was, itself, instigated by the government.

The panel consists of John Grayson, director-general of the Department of Premier and Cabinet; John Sosso, director-general of the Department of Justice and Attorney-General; Andrew Chesterman, Chief Executive of the Public Service Commission and Ken Levy, the Acting Chair of the CMC. 

Sosso's involvement in the Queensland public service goes back some decades. He was part of the "legislation and policy branch" of the Department of Justice, before and at the time of the Fitzgerald Inquiry. 

This branch is given particular mention in the Fitzgerald report (page 138 and following).

It is said to have exercised a considerable influence over policy in the Bjelke-Petersen government and to have played a significant role in the lack of critical assessment of proposed legislation under that regime.

It is noted by Fitzgerald that the Opposition and other interested parties were, chronically, given insufficient time and resources to make submissions on proposed legislation and that the public servants in the legislation and policy branch, such as Sosso, had the last word on recommendations to cabinet.

The Fitzgerald Report concluded:

"If the Justice Department had been competent and professional during the last two decades, it could not have failed to observe the problems in Queensland's political and criminal justice systems." 

It found no evidence that staff of the department had persistently tried to draw these problems to the attention of the executive.

Fitzgerald was concerned that the likes of Sosso, who, he said, were "steeped in the attitudes" that had led to the need for reform, might try to reassert influence and control over the reform process.

He recommended the reform process be implemented by individuals independent of that bureaucracy.

With the advent of the Newman government, in an act symbolic of his government's anti-Fitzgerald sentiment, the Premier appointed Sosso head of the fused Department of Justice and Attorney General.

The department provides public service oversight of the CMC. Sosso (impliedly criticised by Mr. Fitzgerald), thereby, assumed authority over the key institutional aspect of Fitzgerald's remaining legacy.

Sosso's position on the implementation panel strengthens his ability to fashion the shape of the new Newman-Bleijie CMC, a body which may, in time be no longer connected in the public mind with Fitzgerald QC.

The acting Dr Levy 

Levy: wrote in support of bikie legislation

There have also been significant staffing changes at the highest level of the CMC. The current Acting Chair is Dr Ken Levy. 

Levy was appointed acting chair after Ross Martin QC, the previous chair, resigned as a result of ill health and after a history of conflict with the new government.

By appointing Levy in the acting position, the government avoided the need to consult with and obtain the bipartisan support of the Parliamentary Crime and Misconduct Committee (s.228 of the Crime and Misconduct Act). The government had strongly criticised the CMC while Martin remained chair.

Levy, an experienced public servant and former head of the Justice Department, has been embroiled in controversy since he published an opinion piece in the Courier Mail supporting the government's hardline bikie legislation.

The PCMC was investigating Levy's apparent failure to disclose the input of the chief government spin doctor, Lee Anderson, into that article. 

In the middle of this investigation, in an unprecedented move, the Premier sacked the entire PCMC, preventing it from continuing the investigation.

Further scrutiny of Levy has been referred to a Select Committee on Ethics chaired by controversial sacked Police Minister, David Gibson.

No public hearings have yet been scheduled for that committee. Levy's six month appointment was extended for a further six months (to May 2014), shortly after his article was published in the Courier Mail.

In December 2013, two more acting part-time commissioners were appointed to the CMC, Mick Keelty and Sydney Williams QC. 

Before his appointment, Keelty completed a report into the CMC which was tabled in parliament on November 20, 2013.

In that report, Keelty described the CMC, an independent statutory body which grew out of the Fitzgerald Inquiry, as having an 'obsession with independence'. 

Keelty: CMC obsessed with independence

Keelty, himself, could not have been accused of that alleged failing. He resigned from his position as AFP Commissioner with two years remaining on his contract.

His tenure was associated with controversy and allegations of politicisation of his role during the term of the Howard government. 

These issues were exemplified by Keelty's public retraction of comments he made linking a terror attack in Spain to that country's support for the war in Iraq.

It was reported that Keelty then received a call from Howard's office, voicing displeasure at his comments on television. Shortly after that, the AFP commissioner issued a statement "clarifying" his earlier comment and retracting the link between terror attacks and support for the war in Iraq.

Exploiting legislative changes introduced in 2013, the government has appointed Levy, Keelty and Williams in "acting" roles, thereby avoiding scrutiny of the appointments by the bipartisan PCMC.

The attorney general is on the record as stating that the government will be able to make permanent appointments in 2014, after the legislative reforms have been implemented. 

The continuing part-time commissioners are George Fox and Professor Marilyn McMeniman. 

The Act governing the CMC requires one of the commissioners to be a "practising lawyer with a demonstrated interest in civil liberties".

Fox was appointed as a part-time commissioner on November 22, 2011 and has significant credentials in the area of civil liberties. He is a former president of the Queensland Law Society.

Fox's appointment was scrutinised and approved by the PCMC.

By legislation, PCMC was established as, and intended to be, a bi-partisan parliamentary committee with a role of providing parliamentary oversight of the CMC.

On November 8, 2013, the attorney general appointed Fox to perform the duties of acting chair of the CMC if the incumbent chair, Dr Levy, was absent from the State or could not perform his duties.

However, on December 20, 2013, Williams was appointed to fill that role and Fox will now only be acting chair if both Levy and Williams are unable to perform the role.

In his evidence before the PCMC, on November 13, 2013, Levy said he had some discussions with Fox after becoming aware there had been contact between the media offices of the Premier and the CMC. 

Levy said that Fox had raised two questions. One was whether Levy could be re-appointed as acting chair of the CMC and that he should seek independent legal advice about whether an extension was "legally possible". 

It is difficult to discern the other issue raised by Fox because at this point the transcript of the hearing, as released to the public, is redacted (page 12 for November 13, 2013).

From the text that remains, it can be said the issue involved a lack of confidence in Levy's independence. 

There is no indication on the transcript as to why the passages concerning this issue have been redacted.

It does appear that Fox was raising these issues on both his own behalf and on behalf of Phillip Nase, a former District Court judge whose term as a CMC Commissioner came to an end in November 2013.

In his evidence to the PCMC, on November 13, 2013, Levy said he had not been critical of the government in his first six month appointment because he was concerned, if he were, that the government would get rid of the CMC altogether.

It is difficult to avoid the conclusion that the body intended to be fiercely independent is being tamed.

Repeated acting appointments allow the government to appoint its own ideologically or politically agreeable members without needing to gain bi-partisan support.

Members like Levy are experienced bureaucratic operators.

Keelty has a track record and is on the record for being opposed to too much independence.

Members like Fox, who have exhibited independence, are shoved to one side and not even allowed the honour of heading the organisation in an acting capacity. 

The sideshow: war against the judiciary

Justice Applegarth: sentenced bikies for contempt of CMC

The government's campaign involving the CMC has also got mixed-up with its experience of poor relations with the judiciary.

This also has historic roots. As well as the demise of the Connolly-Ryan inquiry in 1997, the Supreme Court also shut down in September 2005 for apprehended bias, the Bundaberg Hospital inquiry conducted by Tony Morris QC.

This inquiry, although established by Labor premier Peter Beattie, was a political boon while it lasted for the conservative opposition. 

On December 17, 2013, Justice Peter Applegarth determined three alleged bikies should serve between four to six weeks in jail for contempt of the CMC. 

Conflict has involved bikie legislation generally as well as the government's attempt to give the attorney general, Jarrod Bleijie, power to determine prison time for some convicted prisoners, which was declared unconstitutional by the Court of Appeal. 

Justice Applegarth's sentences were significantly less than might otherwise have been imposed.

His Honour's approach was based, to some extent, on concerns he held about the very harsh conditions the prisoners would have to endure under a newly imposed prison regime for members of unlawful motorcycle groups, which includes solitary confinement for 22 hours a day.

The charges against the three men arose out of their refusal to answer questions in a CMC hearing.

This refusal meant that the men were in contempt of the CMC. It was the effect of changes to the Crime and Misconduct Act 2001 made by the Newman Government, earlier in 2013, that the men had to be sentenced to a term of actual imprisonment.

The discretion of the sentencing judge will be irrelevant if the men find themselves in the same position on a future occasion.

A second failure to answer a question in relation to the same subject matter would result in the court being obliged to sentence the prisoner to two years and six months imprisonment, regardless of the draconian conditions under which they would be held. 

Conclusion

The government controls the parliament with huge numbers.

If the bipartisan requirement for appointments is to be ignored by repeatedly appointed annointees in an acting capacity, can legislation to get rid of that requirement be far away. 

Similarly, if the PCMC offends the government, why not cut it off? The need for such a committee can simply be abolished. 

The Newman-Bleijie tactic of ignoring collective wisdom in favour of populism is unlikely to end in 2014. They promise further "reforms". 

The Fitzgerald vision of an independent check on corruption and organised crime could be fully converted into the Newman-Bleije Star Chamber. 

The occasional adverse comment or dissent from a judge carrying out her duty may be the only echo we hear of the Fitzgerald dream.

Only then will Terry Lewis and Johannes Bjelke-Petersen be properly avenged. 

Stephen Keim SC and Alex McKean