KEVIN LINDEBERG'S DECLARATION OF CONCERN ON THE HEINER AFFAIR "I accuse, fraud or breach?" PARTISANSHIP INSIDE THE PCMC CRIPPLES THE FITZGERALD REFORM PROCESS AND GOVERNMENT BY THE RULE OF LAW IN QUEENSLAND RE SECTION 295 OF THE CRIME AND MISCONDUCT ACT 2001
3 October 2010
On 22 June 2010 a public Statement of Concern II on the Heiner Affair was delivered to Queensland Premier the Hon Anna Bligh and Opposition Leader, Mr John Paul Langbroek. It declared that because of the misinterpretation of the obligatory bipartisanship provision of s 295 of the Crime and Misconduct Act 2001 (“CM Act”), as was applied by the Parliamentary Crime and Misconduct Committee (“PCMC”) when deciding what to do with the Heiner Affair allegations, was so serious, the entire Fitzgerald Reform Process may be crippled unless it was reviewed. [See Statement of Concern II at:
Amongst the 13 signatories are the former Chief Justice of Western Australia, the Hon David Malcolm AC WACit, former NSW Supreme Court Justice and former ICAC Chairman, the Hon Barry O'Keefe QC, former NSW Appeal Court Justice the Hon Roddy Meagher QC, and NSW Compensation Court former Chief Judge, the Hon Dr Frank McGrath.
How did such a dire warning come to be issued by such eminent jurists in 'post Fitzgerald Queensland?'
Well, a logical analysis of the interpretation of s 295 of the CM Act now being adopted by the PCMC, the Bligh Government, and, most recently, the LNP Opposition, shows why. They are claiming that the bipartisanship obligation in s 295(3) only applies when a decision outcome by the PCMC is “to refer” a complaint of official misconduct to either the Crime and Misconduct Commission ("CMC") or the Parliamentary Commissioner to be reviewed. They are also claiming that because s 295(3) is silent when a decision outcome is “not to refer” a complaint, ordinary voting patterns apply. This is called "strict, narrow, literal" statutory interpretation.
It is out of step with modern statutory interpretation. This position is, however, not just erroneousness but so mischievous and fatal that it is open to conclude that a serious fraud is being perpetrated against Parliament and the people of Queensland in terms of the PCMC being presented as an unfettered "bipartisan" committee in holding the Crime and Misconduct Commission ("CMC") to account on behalf of the Parliament and the people of Queensland according to law.
The aforesaid retired judges have suggested that this (mis)interpretation is "...too significant to ignore."
Their grave concern requires some detailed explanation. A forbearance on its length is requested so that readers may better understand what has happened in recent months, and how we have reached such a crisis in the good governance of Queensland.
This has become a tipping point regarding the good governance of Queensland.
What is Statutory Interpretation according to law
Speaking extrajudicially in London in February 2010, Justice of the High Court of Australia, Her Honour Susan Crennan, in her Statute Law Paper addressed "Statues and the Contemporary Search for Meaning", said this: "...The purposive approach to statutory interpretation, originating in Heydon's Case, [(1584) 3 Co Rep 7a at 638 [76 ER 637 at 638]] requires an answer to a more contingent question than what does the language of a statute mean; the purposive approach requires an answer to the question: "What does the language of the statute mean having regard to the purpose or 'mischief' to which the statute was directed?" Too great and inflexible an emphasis on a strictly literal approach to statutory interpretation, particularly in the context of tax evasion, led to the eventual favouring of the purposive approach over and above the literal approach." http://www.hcourt.gov.au/speeches/crennanj/crennanj1feb10.pdf
Relevantly, Justice McHugh in Sarasvati v The Queen (1990-91) 172 CLR 1 at 21 said, "…In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as the 'ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act.” In Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321, Mason and Wilson JJ earlier said: "…The propriety of departing from the literal interpretation ... extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions." (Bold and underlining added)
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ said: "...[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy." Addressing the "legal meaning" in respect of statutory interpretation in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 McHugh, Gummow, Kirby and Hayne JJ said : "... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Bold and underlining added)
The legal/political Challenge
It is strongly suggested that the unavoidable absurd consequences of this (aforesaid) interpretation embraced by the Bligh Government, the LNP Opposition and the PCMC are that:
(a) it destroys the purpose of the CM Act; and
(b) it makes no sense within its context.
Put simply, their interpretation runs into severe, immediate and insurmountable conflict with the s 14A of the Acts Interpretation Act 1954 (Qld). It runs into immediate conflict with "the Golden Rule" of statutory interpretation expressed in Grey v. Pearson (1857) 6 HL Cas 1, which says: "...the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further."
A “partisan majority” decision outcome “not to refer” a complaint can be an act (and is, in the case of the Heiner Affair) that may have serious potential impact on the promulgation of official corruption.
This extraordinary “fettered” interpretation now being embraced is all the more disturbing when one knows that the former Borbidge Queensland Government Attorney-General and Minister for Justice, the Hon Denver Beanland, who first introduced this critically important bipartisanship obligation inside the Parliamentary Criminal Justice Committee ("PCJC") in October 1997, rejects it.
Mr Beanland claims that this key accountability provision affecting the operations of the PCMC simply cannot be fettered if it is to achieve its purpose. At the time when he introduced the bipartisanship provision - originally s 118(e) of the Criminal Justice Act 1989 ("CJ Act") - he was meeting Commissioner Tony Fitzgerald QC's demand for bipartisanship in combating corruption in government and addressing recommendations associated at p102-103 Point 5.2.7 PCJC Report 38 A Report on the Accountability of the CJC to the PCJC. http://www.parliament.qld.gov.au/view/committees/documents/PCMC/reports/pcjc38.pdf
Relevantly, on the bipartisan nature of Parliamentary committees, this unanimous all-party 9 May 1997 Report, chaired by the Hon Vince Lester MP, said at pp102-103:
"...it has been argued that the bi-partisan nature of Parliamentary committees is sometimes illusory. This argument is premised on the concept that Members of Parliamentary committees, as parliamentarians have political party affiliations and it is perhaps naive to suggest that there is not a strong temptation for members of a Parliamentary committee to take a position which advantages that Member’s political party or disadvantages that Member’s political opponents....Fitzgerald believed that as criminal justice issues should be considered in an impartial way, the PCJC he proposed would also be bipartisan in form and conduct."
"Mr Ken Davies, the Chairman of the second PCJC, in a submission to the Commission of Inquiry, agreed that from his experience with both the first and second PCJC’s, it was very rare for the PCJC to be split on any issue along party lines, and in the great many majority of instances, voting within the PCJC was unanimous. [Submission p.7] Mr Davies did however note that from his experience:
… political considerations influence the operation of the PCJC in a more insidious manner. The issues which the PCJC pursues, the questions which are asked in the course of pursuing those issues, and the reports which are prepared (whether unanimous, majority or minority reports) are all influenced to some extent by party political considerations. [Submission p.8]
And, the Report went on:
"...The current PCJC has not been hesitant in tackling party sensitive matters. The current political climate in Queensland, however, created by events in the last 12 months, has provided a unique political atmosphere which it must be conceded has tested each Member in their consideration of several issues. To expect any less would be naive and unrealistic. Nevertheless, with a few rare exceptions, the current PCJC has been successful in tackling party sensitive issues and the current PCJC does not believe that any political considerations have operated to restrict its effectiveness in seeking to make the CJC accountable for its actions.
In any event, the possibility of committee decisions being made along political party lines can be countered by a requirement such as that in the case of the committee supporting the appointments of CJC Commissioners. Such a requirement means that decisions of the Committee must be made unanimously or by a majority of the members other than a majority consisting wholly of members of the political party or parties in government in the Assembly. In this regard reference should be made for example to s.11(3) of the Act and also to the current Committee’s recommendation in paragraph 3.5 regarding guidelines which the PCJC may issue to the CJC." (Bold and underlining added)
That is, when s 118(e) of the CJ Act was first enacted in 1997 and later replicated in s 295(3) of the CM Act in 2001, any party political advantage was knowingly fettered inside the PCJC in the interests of "the public good of eradicating corruption in government". The PCMC is not a normal Parliamentary committee established pursuant to ss 80, 81 and 83 of the Parliament of Queensland Act 2001. It is established pursuant to Part 3 of the CM Act. It is critically different.
Significantly now however, in its 7 January 2009 application in respect of how the PCMC handled the Heiner Affair allegations by refusing to refer them to an acting Parliamentary Commissioner for independent examination and advice because of an (ALP) "partisan majority" vote, despite the non-government PCMC members wanting a referral, (ALP) party political self-interest has prevailed inside the PCMC and thrown "the public good of eradicating corruption in government", rooted in the Fitzgerald Reform Process, into deep crisis.
It is open to conclude that the PCMC has stepped outside the law in presenting its (ALP) "partisan majority" 7 January 2010 decision outcome on the Heiner Affair as "finality" when it is not. In doing so, it is a serious prima facie abuse of power which cannot be allowed to stand.
This is an unavoidable conclusion. I am not alone in the view. It is supported by the retired senior judges (and others) in their 21 June 2010 landmark Statement of Concern II. To have such a credible warning placed on the public record by such eminent jurists (and others) ought to be a wake-up call to everyone genuinely interested in government by the rule of law in Queensland, and especially to those who have a responsibility to apply and comply with this law: our politicians. To date, it is not so.
For instance, on 15 July 2010 Premier Bligh claimed that the PCMC was independent and that she did not involve herself in such matters. This is an unacceptable abrogation of her responsibility to uphold lawful government as Head of Government.
On 29 July 2010, the LNP Opposition rejected the retired senior judges’ interpretation of s 295(3) in Statement of Concern II.
As both major political parties are now, in 2010, accepting "fettered bipartisanship" inside the PCMC, it has heightened all the critical issues concerning good governance.
What does Bipartisanship mean
The first step is to understand what bipartisanship means in a political context. Put simply, its objective is to take partisanship out of decision-making and decision outcomes by politicians by fettering any political advantage normally open through "the manipulation of the numbers."
Partisanship can take different forms. For example, it can be (i) abuse of a government’s majority position inside a committee; or (ii) not deciding matters on their merits but instead playing a partisan line to manipulate a decision outcome to the advantage of a political party involved. What heightens everything in respect of the PCMC is that its decision-making and decision outcomes are in the "criminal justice" field where impartiality is vital in the interests of justice being done.
The retired senior judges, inter alia, have advised that bipartisanship, as a legal requirement, is an "unfettered" watchdog device on decision-making inside the PCMC. They have made it abundantly clear that non-compliance with this "unfettered" understanding of bipartisanship under s 295(3) means that any "partisan majority" PCMC decision outcome cannot be presented as "finality" but instead, because it equates to “gridlock”, it carries the contrary legal definition of "a nullity at law."
To reiterate, bipartisanship, as a statutory obligation on decision outcomes inside the PCMC (i.e. in this instance, in the handling of complaints lodged with the PCMC concerning the manner in which the CMC may have handled a public interest disclosure about corruption in government), is unique compared with all other Queensland Parliamentary committees.
A State of Ignorance
From personal research, it seems that not all Queensland parliamentarians, and others, know that bipartisanship, as a legal requirement, is even in the CM Act in this key area of its operation. This ignorance, where it exists, must be removed because it is highly injurious to government by the rule of law, accountability and keeping faith with the Fitzgerald Reform Process.
Where this ignorance exists, it is not fully appreciated what the law says about decision outcomes which are not reached in a bipartisan manner. While it has been freely and gainsayingly bandied about in public and on the floor of the Queensland Parliament by Premier Bligh and others that the PCMC is a bipartisan committee, without ever being forensically challenged, few understand that as the Bligh Government and LNP Opposition now want it to function, the PCMC is not bipartisan at all but has been fatally crippled by partisanship due to the misinterpretation of s 295(3) as manifest in the Heiner Affair.
Just as one cannot claim to be half-pregnant without being either deluded or deceptive, one cannot be legally half-bipartisan without creating such a massive mischief in the eradication of corruption in government that it actually, and perversely, entrenches partisanship when at its worst, that is, “in the negative” decision outcome. It can, in effect, continue and/or cover-up corruption. This is because both Government and Opposition PCMC members can use their vote inside the PCMC so as to achieve the covering up of their own (party's) alleged misdeeds highlighted in complaints lodged with the PCMC by whistleblowers or others.
How can this happen?
It is generally expected and/or accepted that politicians can and/or may act in partisan ways in the performance of their duties when it comes to the workings of Parliament and its committee systems. It would not be acceptable, or so one would hope, if they did so when handling individual grievances from their constituents. It's fair to say however that many Parliamentary committees do or try to work towards a common objective in a bipartisan way, like the powerful Integrity, Ethics and Parliamentary Privileges Committee, and other committees like the Public Accounts and Public Works, Law, Justice and Safety, Speakers Advisory and Scrutiny of Legislation. Any bipartisan majority (or unanimous) decision outcome which comes about in those committees is normally, and regularly, achieved in a spirit of goodwill and ethical conduct. They are established pursuant to ss 80, 81 and 83 of the Parliament of Queensland Act 2001, and are not bound by law to be bipartisan.
In the natural order of our polity, it is nigh on impossible, if even desirable, to take partisan politics out of politicians in everything they do in Parliament and committees. This is so despite the related Standing Order No 272 which addresses the issue of bias, and the Code of Ethical Standards (p3) concerning primacy of the public interest pursuant to the Code's Statement of Fundamental Principles (i.e. "...Members are elected to act in the public interest and make decisions solely in terms of the public interest.") http://www.parliament.qld.gov.au/view/committees/documents/MEPPC/other/ethicalStandards/CodeOfEthicalStandards.pdf
Notwithstanding some standing as independents, by being partisan - i.e. being a member of the ALP, LNP, or whatever other lawful political grouping - a person is elected to Parliament through the ballot box in the first place. There is nothing intrinsically wrong with that because our system, in the main, functions on party politics, and voters expect their politicians to honour the partisan policies upon which they are elected. If it were otherwise - as some may suggest is the case now - those seeking elected office might be permitted to say and do anything to get elected just to enjoy Parliamentary privilege and power of public office and forget about their pre-election promises or oaths of office sworn and/or affirmed before taking up public office.
Probity in Government
Coming into this environment is the electorate's expectation that our system of government will not be abused and that the law will always be obeyed. The electorate and democracy's watchdog is the duty on elected and appointed public officials to uphold and maintain probity in public office. It is an essential requirement in any properly functioning democracy. While cynics may deride belief in its necessity in the corridors of power, history shows us that its absence in the exercise of power inevitably deals a fatal blow to democracy and government by the rule of law. Legislation like the Criminal Code (Qld), the CM Act and the Public Sector Ethics Act 1994 underpin this duty.
The Relevance of Intuitive Political Advantage in an Adversarial Westminster System of Government
Given the adversarial nature of our political system where "political advantage" is always sought and advanced, albeit some times flowing naturally out of accountability measures, does anyone seriously believe that if either a government majority inside the PCMC, or even its non-government (i.e. Opposition) minority, wanted "to refer" a credible potentially criminal and politically embarrassing complaint against themselves for independent examination by the Parliamentary Commissioner with all the potential respective odium and advantage that may result, that it would not instantly enjoy "bipartisan" support? Of course it would.
In other words, the enacting of an obligation to be (only) bipartisan "in a positive decision outcome" - i.e. to refer - was not required if and when politicians decide to do the right thing in "the public good of eradicating corruption in government" by having an independent examination carried out. The obvious political advantage any potential exposure of wrongdoing would bring to the Government and/or Opposition makes any decision outcome "to refer" an easy option because of its intuitive political advantage to both sides of politics, as the case may be. In effect, enacting bipartisanship only "in the positive" only makes "a virtue out of an intuitive politico/adversarial compulsion", and has all the hallmarks of window dressing, a con job - if indeed, it were so in 1996/97 and 2001 when first introduced and then continued with respectively.
In other words, it is strongly open to conclude that there was never any real mischief "in the positive" decision outcomes which warranted addressing by such a "fettered" amendment in the first place by Mr Beanland.
It is only when bipartisanship applies and/or doesn't apply "in the negative" decision outcomes that a very different 'accountability/logical/legal/politico' scenario arises.
To do nothing about a credible, potentially criminal and politically embarrassing complaint by refusing to refer it to be independently examined by the Parliamentary Commissioner so as to prevent the potential exposure of wrongdoing and adverse political consequences, invokes unacceptable notions of cover-up.
Cover-ups involving official misconduct can and do occur in all governments from time to time. Queensland is not unique in that regard. History repeatedly shows that those in positions of power cannot always be trusted to act with the highest standards of probity. This is the reason, in the wake of the 1987-89 Fitzgerald Inquiry revelations, why Queensland found it necessary to establish the CJC, Queensland Crime Commission, and CMC.
Accordingly, a course of action which involves covering up alleged official misconduct, while obviously betraying "the public good of eradicating corruption in government", would be a highly intuitive inclination in our adversarial political system where, especially in a unicameral system of government like Queensland, a political advantage is seldom, if ever, given to the other side of politics if a real and/or prospective disadvantage is involved.
The simple truth is that power corrupts, absolute power corrupts absolutely. It is well recognised that in unicameral Queensland, the Executive has long dominated the Legislature, save inside the PCJC/PCMC when the legal ramifications of statutory “unfettered” bipartisanship are fully understood and consistently applied. It was the game changer.
The serious Mischief
Then Leader of the Opposition (and former chairman of the PCJC), the Hon. Peter Beattie, during a relevant debate gave proof to the presence (and necessity) of bipartisanship inside the PCJC in the following statement in Parliament on 10 October 1996: "...Tony Fitzgerald set up the Parliamentary Criminal Justice Committee as an all-party committee to establish a commitment to bipartisanship in the Fitzgerald reform process." The Hon Paul Braddy, former Minister in the Goss ALP Government, indicated strongly in his 10 October 1996 statement in Parliament that bipartisanship existed. He said: "...Governments and Oppositions come and go. However, a spirit of bipartisanship has surrounded all that has occurred in relation to the Criminal Justice Commission subsequent to the Fitzgerald reforms. In his report, Mr Fitzgerald, QC, as he then was, pointed out the value of being bipartisan, and he successfully urged on the Parliament of Queensland that that principle should apply in relation to the CJC; that there should be a Parliamentary Criminal Justice Committee which should work without members behaving in an overtly party political manner." (Bold and underlining added)
Former Borbidge Government Attorney-General, the Hon Denver Beanland, introduced obligatory bipartisanship into the PCJC in October 1997. Highly relevant "extrinsic material" [see definition (c) pursuant s 14B(3) of the Acts Interpretation Act 1954 (Qld)] is found in 9 May 1997 PCJC Report No 38 to the Queensland Parliament. Mr Beanland's amendment was not a con job, however, its current interpretation by the PCMC, the Bligh Government and the LNP Opposition, as played out in the Heiner Affair, leads unavoidably to it now being a fraud. To reiterate, Mr Beanland rejects their interpretation of (his) provision.
Self-evidently, the likelihood of a cover-up is greatly diminished when a “bipartisan” decision outcome decides not to refer what may be a credible, potentially criminal or politically embarrassing complaint for independent examination no matter which side of politics it may affect because of the adversarial nature of our polity and when both sides at committed to the rule of law.
However, the "fettered" interpretation of s 295(3) of the CM Act throws up very different outcomes. It invites:
(a) the Government PCMC members to use, as an act of "finality", its “partisan majority” to decide "not to refer" a credible, potentially criminal or politically embarrassing complaint affecting their own Government from undergoing a warranted independent examination; and
(b) the Opposition minority PCMC members to refuse to vote, as an act of "finality", with the Government majority PCMC members to deny the prescribed threshold of "bipartisanship" needed to permit a credible, potentially criminal or politically embarrassing complaint affecting the Opposition from undergoing a warranted independent examination.
This where the danger of perpetuating corruption arises inside the PCMC under this "fettered" interpretation of s 295(3) by making such outcomes "legal". It is quite obvious that this "mischief" interpretation is serious because it absurdly allows the covering up of potential corruption inside the PCMC by both sides of politics, and this was never its intention.
Consequently, this is why “unfettered bipartisanship” was obviously so essential. In short, a bipartisan obligation operating "in a negative decision outcome" - i.e. not to refer - is where bipartisanship's real 'purpose' lies within the objects and context of CM Act regarding lawful functioning of the PCMC in respect of s 295(3). Commissioner Tony Fitzgerald QC knew this and that why he insisted on bipartisanship in fighting corruption in government. The PCJC's May 1997 Report 38 knew this and that is why its speak about "decisions" (i.e. without qualification) of the PCJC needing to be bipartisan. Mr Beanland was complying with Fitzgerald's reasoning and recommendation and that of the PCJC's.
There is another relevant factor. It is "confidentiality." This may arise pursuant to s 66(3) of the CM Act or Standing Order 209(2) of the Queensland Parliament.
While the PCMC's deliberations are confidential, as is similarly imposed on jury members under s 70 of the Jury Act 1995, the complainant, Parliament and the public interest are entitled to a lawful decision outcome from the PCMC when the complaint has been accepted as valid. This must involve, as a matter of due process, recognition that a "partisan majority" PCMC decision outcome - either "to refer" or "not to refer" – is a "gridlock" decision. It is not a "finality" decision outcome, but "a nullity at law".
A Duty to inform Parliament
A "nullity at law" matter cannot remain in limbo, i.e. unreported and unresolved. Such a “gridlock” must be reported to Parliament, our supreme institution.
In reporting its “gridlock” to Parliament, the PCMC would be acting like “hung” juries are obliged to by reporting to judges that their statutory obligation of unanimity or 10-2 in a decision outcome cannot be achieved.
It would be unthinkable, let alone unlawful, if a jury foreman were to declare an accused guilty when knowing that the prescribed threshold of unanimity or a 10-2 majority had not been achieved inside the jury room. It would be even more unthinkable if the dissenting jurors held their silence due to their deliberations being “confidential” when knowing that the jury’s decision outcome was “gridlock” and not “finality” as was being presented to the court by the foreman.
This “reporting” responsibility is the "safeguard" in the system. It prevents cover-ups inside the PCMC. It safeguards (a) lawful “finality” decision outcomes being achieved, and (b) "gridlock" decision outcomes not being misrepresented without challenge.
Probity in public office does not allow silence otherwise abuse of power with impunity comes into the functioning of government, and the PCMC. Turning a blind eye to abuse of power is antipathetic to probity in public office and the government by the rule of law.
The unfettered bipartisanship obligation under s 295(3) brings about this duty. This internal unfettered bipartisanship operating function inside the PCMC is designed to thwart any potential erstwhile attempt, behind a shield of confidentiality, by either Government or Opposition, to cover up embarrassing complaints against their interests instead of upholding "the public good of eradicating corruption in government" on its merits.
Unfettered bipartisanship is not just a safeguard of government by the rule of law, but it is the key and essential element which whistleblowers rely on when lodging their complaints with the PCMC because it is highly likely that their complaints (i.e. public interest disclosures) will be about alleged corruption involving the political party in power, the party which enjoys the majority numbers inside the PCMC. Now, according to the interpretation of s 295(3) adopted by the ALP and LNP, Government majority PCMC members can use their "partisan majority" to cover up such a complaint inside the PCMC . This has occurred in the Heiner Affair allegations.
Why would any whistleblower take a complaint about corruption in government to the PCMC when such bias is not fettered but made lawful?
In effect, this 'new' and/or 'challenged' interpretation of s 295(3) means that politicians are judging complaints against themselves (i.e. their own party interests), and the value and expertise of the independent Parliamentary Commissioner, put in place by Parliament in 1997 as an aid in the fight against corruption, can be neutered out of partisan self-interest whenever the occasion arises for either side of politics.
When the Heiner Affair complaint was lodged with the PCMC on 14 February 2008, legal advice was firm that the PCMC was obliged to act in an unfettered bipartisan manner when handling the complaint.
Statement of Concern II suggests that Parliament might advise that the PCMC revisit its decision outcome or an independent Special Prosecutor be appointed to investigate the entire Heiner Affair. The latter is really the only proper option now open. [See Statement of Concern II at:
Regarding the 7 January 2009 (ALP) "partisan majority" clearance decision outcome 6-page Report, which was delivered to my lawyers without condition of confidentiality but has not been tabled in Parliament, it is relevant to point out in the public interest that it:
(i) failed to address all the relevant allegations in the 9 Volume Rofe QC Audit of the Heiner Affair;
(ii) failed to provide any exculpatory case law;
(iii) failed to acknowledge the fundamental duty on all lawyers to preserve all known relevant evidence required in (pending/impending) judicial proceedings; and
(iv) failed to refer certain allegations to other appropriate authorities which (purportedly) fell outside the PCMC's jurisdiction (for example, allegations against 6 sitting Queensland judicial officers).
Unaddressed corruption in government is Enemy No1 to probity in public office and to public confidence in government by the rule of law. Consequently, credible allegations of corruption must always be nipped in the bud as a matter of high principle and practical priority in a bipartisan manner. All this concerns the importance of a properly functioning bipartisan PCMC, the pinnacle accountability body in post Fitzgerald Queensland.
This is why the Fitzgerald Reform Process and government by the rule of law in Queensland now stand on the brink of collapse due to the unresolved Heiner Affair. When s 295(3) of the CM Act is interpreted correctly, a safe legal remedy under the CM Act to this serious prima facie abuse of power - which is known to be available to the Opposition to bring about a proper resolution of this long-running unresolved scandal regardless of its minority position on the floor of Parliament - becomes both necessary and unavoidable.
THE FITZGERALD REFORM PROCESS IN QUEENSLAND IN DANGER OF COLLAPSE. 14 February 2011
The Fitzgerald Reform Process of Queensland's governance is endangered due to the inappropriate interpretation by the Parliamentary Crime and Misconduct Committee ("PCMC) of its key obligation to act in a bipartisan manner when handling complaints. If this situation continues, an unacceptable reduction in public confidence and in the effectiveness of the law, public accountability and the stature of Queensland's Parliament will take place.
Failure by the PCMC to act in a bipartisan manner when handling complaints of possible corruption is being justified by this interpretation, with the known agreement and/or acquiescence of the Bligh Government and the LNP Opposition. It permits allegations of corruption against either side of politics to be covered up inside the PCMC.
A group of retired senior judges, and others, came to this view by examination of past activity of the PCMC in accordance with the law. They publicly stated that section s 295(3) of the Crime and Misconduct Act 2001 ("CM Act") was not only being interpreted incorrectly but that it was too significant to ignore otherwise the Fitzgerald Reform Process may be crippled. The Committee Systems Review Committee ("CSRC") was also informed about this warning. To date, it has been ignored by all.
- a judicial declaration in the Supreme Court of Queensland on the proper interpretation of s 295(3) of the CM Act; and
- an undertaking by the PCMC that when handling a complaint of significant public importance under s 295 of the CM Act, a report shall be provided to Parliament which sets out reasons for respective "refer" and/or "not refer" decisions by the majority and minority.
Your assistance to correct these issues of grave concern is URGENTLY requested.
The need for bipartisanship to fight corruption in government has always been a logical, commonsense necessity. Not surprisingly, it was a key recommendation of the landmark July 1989 Fitzgerald Report. If nothing else, it underpins public confidence in Parliament and government that its decision outcomes in this area of "criminal justice" deliberations are based on the merits of the case rather than on party political self interest.
This article’s purpose is to assist in understanding the recommended changes to the Parliamentary Crime and Misconduct Committee ("PCMC") found in the 15 December 2010 unanimous Committee Systems Review Committee ("CSRC"). http://www.parliament.qld.gov.au/view/committees/documents/CSRC/CSRCES&Rec's.pdf It complements my earlier article sent to all Queensland Opposition and Independent MPs on 3 October 2010, titled, "I accuse, fraud or breach? - Partisanship inside the PCMC Cripples the Fitzgerald Reform Process and Government by the Rule of Law in Queensland - Re Section 295 of the Crime and Misconduct Act 2001." (a.k.a. "Memo I")
A fundamental principle underpinning the rule of law is that no one should judge in his/her own cause. (See British American Tobacco Australia Services Limited v Laurie  HCA 2 (9 February 2011); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; R v Watson; ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1982-1983) 151 CLR 288; Re JRL; ex parte CJL (1986) 161 CLR 342; Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509 and Webb v The Queen (1993-1994) 181 CLR 41])
In a parliamentary committee setting, bipartisanship is a valid attempt to respect that democratic principle. However, it is under serious attack in Queensland because of the way it is being applied in the powerful PCMC with the apparent acquiescence of both sides of politics (i.e. ALP and LNP) who make up its membership.
In examining the relevant CSCR Recommendation 18, highly disturbing, unavoidable conclusions emerge. I have made certain recommendations which I believe cannot be ignored, especially by law-makers, if government by the rule of law is to matter in Queensland.
THE ORIGINS OF BIPARTISANSHIP INSIDE THE PCJC/PCMC
When bipartisanship was originally made a requirement for the Parliamentary Criminal Justice Committee ("PCJC") in respect of its decision outcomes when handling (whistleblower) complaints, its undoubted purpose was address the tyranny of "partisan government majority decision outcomes." It was recognised that all governments (irrespective of political complexion) are always capable of achieving such a potential self-serving outcome in parliamentary committees by wilful "partisan block voting" along custom and practice rules established under Standing Orders. This tyrannical mischief, perceived or real, had to be disarmed otherwise it represented a fatal flaw in the Fitzgerald accountability system.
Accordingly, it was disarmed by the October 1997 amendment first introduced by the Borbidge Government's Attorney-General, the Hon Denver Beanland. It was continued with by the Beattie Government in October 2001. [See s 118(e)] to the Criminal Justice Act 1989; and s 295(3) of the CM Act]. The public record shows that Parliament and the Borbidge Government, in October 1997, were implementing the relevant unanimous findings of the May 1977 PCJC Report 38 - A Report on Accountability of the CJC to the PCJC which addressed this key concern about the good governance of Queensland.
This amendment, and its continuance, was done to prevent “partisan majority” decision outcomes inside the PCJC/PCMC from being considered a "finality at law." http://www.parliament.qld.gov.au/view/committees/documents/PCMC/reports/pcjc38.pdf ).
The imposition of statutory bipartisanship on a parliamentary committee was unusual. However, in its wisdom, the Queensland Parliament recognised that it was needed because the PCJC uniquely oversighted the powerful Criminal Justice Commission ("CJC"). This was because, at any given time [as with the Crime and Misconduct Commission ("CMC")], the CJC could be required to investigate allegations of corruption involving the government and its politicians whose outcome might be so highly injurious that a government might fall or be acutely embarrassed. All these decision outcomes (i.e. "to refer" and "not refer") therefore needed to be above suspicion.
In other words, in such a special situation when handling "criminal justice" issues in which politicians were key decision-makers in oversight committees, there may be a natural propensity on the part of the government majority inside the PCJC/PCMC to abuse their power for party political interests instead of upholding government by the rule of law without fear or favour. In short, bipartisanship, properly applied, assists in underpinning public confidence in government and is a safeguard against covering-up corruption in government by its party political majority members inside the PCJC/PCMC.
However, "a sting" in this arrangement has emerged because of a spurious interpretation of s 295(3).
When introducing bipartisanship into the PCJC and continued with in the PCMC in respect of s 295(3) of the CM Act, it was never intended to be used as a "veto" by voting as a "partisan block" to serve or advantage party political interests otherwise it would have entrenched partisanship by law which was the great mischief the original October 1997 amendment was endeavouring to remedy.
Readers ought not to forget that on 24 November 2008, the ALP Government/PCMC Chairman faithfully told the Tasmanian Select Joint Committee on Ethical Conduct in the Queensland Parliament, on this issue of bipartisanship inside the PCMC, that the PCMC "...cannot make a majority decision." Some six weeks later, those same ALP Government/PCMC government members made a "partisan majority" decision outcome on 7 January 2009 in respect of the Heiner Affair, and then asserted that it was "finality at law." They decided not to refer the allegations of corruption for independent review by an acting Parliamentary Commissioner despite the non-government members wanting a referral. (http://www.parliament.tas.gov.au/ctee/old_ctees/Transcripts/24%20November%2008%20-%20Brisbane.pdf : See pp20 and 26)
Consequently, by applying it as a "veto" measure (either in "the positive" [to refer] or "the negative" [not refer]), it can effect a cover-up and be a serious prima facie abuse of power by either government or opposition members inside the PCMC. Therefore, to achieve proper "finality at law" regarding a PCJC/PCMC decision outcome in respect of handling a complaint, Parliament required that any "partisan majority PCMC decision outcome" [i.e. either "to refer" or "not to refer" a complaint matter for independent review under s 295(3)] not be a "finality at law" but instead, be a "gridlock/deadlock" decision outcome which equated to a "nullity at law."
This would leave the particular issue before the PCJC/PCMC unresolved and in need of further review so that the complainant (and the public interest) received due process and a lawful/proper "finality at law" decision outcome.
\ A PROSPECTIVE HISTORIC "SWITCH" INSIDE THE PCMC
In its so-called 'landmark' 15 December 2010 report, the CSRC has unanimously recommended an historic "switch" within the PCMC. Recommendation 18 recommended that non-government PCMC members become the "majority" when voting as a block by making the PCMC Chair a non-government member - in a committee reduced to 3-3 instead of the normal 4-3 government vs non-government respectively - with a casting vote in a tied-vote situation.
Taking into account Recommendation 18, and applying it hypothetically, the argument highlighted in 21 June 2010 Statement of Concern II on the Heiner Affair and in Memo 1 concerning the proper interpretation of s 295(3) has now become more clarified and more compelling.
Addressing the present context where the government members hold the majority inside the PCMC, the retired senior judges, and others, in Statement of Concern II, argued that a "partisan government majority" decision outcome of "not to refer" a complaint (i.e. the Heiner Affair as recorded in the related 9-Volume Rofe QC Audit which sets out 68 alleged prima facie criminal charges against certain persons involved in the initial unlawful destruction of evidence act and against others, inter alia, who could find no wrongdoing in such conduct when acting as review decision-makers), could not be treated as a "finality at law" but was a "gridlock/deadlock at law" and therefore had to be treated as a "nullity at law".
The "gridlock/deadlock" had to be reported to Parliament in a similar manner as a hung jury is obliged to report its "gridlock/deadlock" predicament to the presiding judge.
The retired judges argued that in treating the PCMC's "Heiner Affair" “government majority member” decision outcome as "finality at law" instead of a "nullity at law", it was so serious that unless the matter was reviewed then the Fitzgerald Reform Process ("FRP") may be crippled.
THE CRUX OF THE MATTER
Succinctly, they were arguing that s 295(3) could not be interpreted and applied as a "veto" otherwise “partisan political block voting” (by either Government or Opposition PCMC members) in decision-making would allow the covering-up of unresolved allegations of criminality from inside the PCMC involving their respective sides of politics.
In the case of the Heiner Affair complaint, the 7 January 2009 "not to refer" vote inside the PCMC was initially tied, but, by the government (ALP) Chairman (albeit lawfully) using his casting vote, a "partisan government majority" decision outcome was achieved. To repeat, the non-government PCMC members wanted the issue referred to an acting Parliamentary Commissioner to be independently examined but lost by the ALP/PCMC Chairman voting twice.
Now, if Recommendation 18 were to be adopted by the Queensland Government and passed into law by Parliament, and s 295(3) was still interpreted to mean that a "partisan majority" decision outcome can be considered a "finality at law", we would have the 7 January 2009 PCMC vote reversed in the Heiner Affair, but with no effective change.
Queensland could have the "partisan non-government majority members’" PCMC decision outcome wanting the unaddressed Heiner Affair's alleged corruption referred for examination by an independent Parliamentary Commissioner summarily blocked/stopped by the "government minority members" voting as a block "not to refer" the matter thereby denying the decision outcome its bipartisan character which is necessary to make such a referral lawful and able to proceed.
Given what is publicly known about the scope and seriousness of Heiner Affair's allegations, it is also pertinent to point out that those government minority members would know that those allegations being denied an independent examination, if found to have substance, would be highly injurious to their side of politics.
Furthermore, due to confidentiality restrictions on all PCMC members, this blocking vote could be exercised without any public explanation by the government minority PCMC members if a PCMC Report to Parliament on the matter were not forthcoming which would otherwise permit and/or require a dissenting report with its reasons.
It is also worth remembering that because the 7 January 2009 government majority PCMC Heiner Affair findings have never been reported to Parliament, it has denied the non-government PCMC members an opportunity to give their reasons why they wanted a referral in a dissenting report.
However, by changing the "majority" inside the PCMC to the non-government side and being applied, a significant but perverse benefit arises in respect of reports to Parliament.
For example, the non-government PCMC majority may decide to present a report to Parliament why it wanted a matter (like the Heiner Affair) independently investigated, and the government minority PCMC members could then be required (although there is presently no legal obligation to do so) to attach their dissenting report as to why they didn't want a referral. Such a report, tabled in Parliament, would be open to public scrutiny.
But, by application of the ALP/LNP jointly-agreed interpretation of s 295(3), this demonstrable "gridlock/deadlock" must be presented and accepted as a "finality at law", and not as a "gridlock/deadlock", a "nullity at law" in the face of what the retired senior judges and others have advised and why Parliament first introduced the law in October 1997.
To repeat, by applying the interpretation of s 295(3) adopted by both major political parties in Queensland and the PCMC (despite being roundly rejected by senior retired judges et al in Statement of Concern II and not being in accord with modern statutory interpretation re Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 or s 14A of the Acts Interpretation Act 1954), the Parliament and the Queensland people are being asked and/or required to accept this indisputable "gridlock/deadlock" situation as a proper "finality at law."
In other words, their interpretation permits demonstrable "unfinished" business concerning serious allegation of corruption in the highest levels of government to become "finished" business in the FRP's pinnacle accountability authority: the PCMC. It therefore follows that the PCMC, the ALP and LNP will have rendered the FRP meaningless. They will have reduced this key bipartisanship law to a mockery and brought ridicule on Parliament, our supreme democratic institution.
Whether realised or not by the CSRC because of the unavoidable ramifications of CSRC Recommendation 18, the absurdity of their fettering of bipartisanship in s 295(3) has been exposed. When s 295(3) is properly interpreted, the true purpose of bipartisanship in its PCMC context within the CM Act 2001 becomes patently obvious and necessary in the constant fight to expose and eradicate all corruption in government, whether engaged in by either side of politics, in or out of power.
Democratic government by the rule of law demands that all credible allegations of corruption in a complaint received and accepted by the PCMC be impartially investigated and not knowingly left as unfinished business (i.e. "gridlock/deadlock") by those with a prima facie vested interest in the outcome. All bona fide complaints are entitled to a proper "finality at law" decision outcome. Otherwise, if left as unfinished business, it must tend to undermine public confidence in government, the principle of equality before the law, and democracy itself.
The crippling of the FRP has come about because of this fettering of bipartisanship in s 295(3) to claim that it only applies in PCMC decision outcomes when a matter is "referred." This has come about by applying an outmoded "strict, narrow, literal" method of statutory interpretation which is no longer used by the courts. It flies in the face of s 14A of the Acts Interpretation Act 1954. Their interpretation can be reasonably termed, "spurious."
My earlier Memo I dated 3 October 2010 addressed this aspect comprehensively. For instance, the leading authority in Project Blue Sky Inc at 384 McHugh, Gummow, Kirby and Hayne JJ said : "... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Bold and underlining added)
This is the situation which you, as law-makers, and the people of Queensland, now face in 2011. Serious prima facie allegations of corruption (against either side of politics) put in a credible complaint to the PCMC may now be covered up inside the PCMC when a "partisan majority decision outcome" either "to refer" or "not to refer" is not treated as a "gridlock/deadlock", a "nullity at law".
As to why the CSRC unanimously recommended Recommendation 18's "switch" is unknown publicly. However, if the "switch" was sold to the non-government members on the CSRC by the Bligh Government as some sort of relinquishing-of-power concession, or if it was viewed by them as a brave new "visible" step to advance accountability, the reality is - as seen in the Heiner Affair - that it means absolutely nothing so long as the interpretation of s 295(3) runs counter to what was advised in Statement of Concern II.
As matters now stand, "bipartisanship" is being and/or is capable of being used as a "veto" instead of its true purpose of taking "partisan" politics out of decision-making inside the PCMC so that the common scourge of corruption in government can be tackled impartially and on the merits and facts of the case, not its politics.
Irrespective of respective political philosophies and allegiances held in our democracy, we all want politics played out within the law where no one is above it by its arbitrary application.
It is to be earnestly hoped that the Queensland Opposition and Independent MP's fully realise just how serious this matter is to open and accountable government in Queensland in its "post-Fitzgerald era."
At the very least, especially in light of increasingly compelling evidence supporting the retired senior judges and QC's interpretation of s 295(3), Members of Parliament should urgently and responsibly seek:
- a judicial declaration in the Supreme Court of Queensland on the proper interpretation of s 295(3) of the CM Act;
- an undertaking by the PCMC that when handling a complaint of significant public importance under s 295 of the CM Act, a report shall be provided to Parliament which sets out reasons for respective "refer" and/or "not refer" decisions by the majority and minority.
This judicial declaration would be taken in the public interest. Its narrow focus of "statutory interpretation" is justiciable without breaching Article 9 of the Bill of Rights 1689. It would also be essential to underpin the principle of government by the rule of law so that this key (accountability) provision relating to the PCMC's key function is not left misunderstood or open to arbitrary interpretation.
Whistleblowers, as a key user group, are entitled to know, legally and morally, whether the PCMC is genuinely bipartisanship or just a sham in its oversighting function before lodging a complaint with it under s 295 of the CM Act.
When statutory "bipartisanship" was introduced into the decision outcomes of the PCJC/PCMC by the Queensland Parliament, it had the same effect as a tiny drop of tint has on white paint. The entity changes irrevocably from one molecule to the next as a chain reaction. Its colour changes instantly. In respect of the PCJC/PCMC, it changed the decision-making environment and outcomes irrevocably from other normal parliamentary committees and had binding legal consequences like a chain reaction. There is no half-way house (i.e. being half-way bipartisan) otherwise it entrenches the very mischief its introduction was supposed to overcome, namely, "partisanship" in decision making and outcomes inside the PCJC/PCMC.
Without gainsay, it should be remembered that all this has come to light - for the first time since the adoption of the FRP - because of the known serious impact which the Heiner Affair will have on the good governance of Australia, and Queensland in particular, when properly resolved.
We are regrettably witnessing an independent examination into serious allegations of corruption associated with the Heiner Affair - whose calls for resolution enjoy the public support of highly respected former senior judicial officers, QC's and other people of high community, organisational and academic standing - being resolutely squashed inside the PCMC by replacing a principled interpretation of bipartisanship [as in s 295(3)] with a convenient, self-serving, highly mischievous and illogical interpretation which turns open and accountable government and its original 1997 purpose on its head.
The all-important accountability clock in Queensland has, in effect, been turned back to the "pre-Fitzgerald era."
All this goes directly to maintaining government by the rule of law. It is now in the balance and at tipping point as we enter 2011.
"KEVIN LINDEBERG'S DECLARATION OF CONCERN II"