WITH THE PASSING of thirty years since Queensland’s Fitzgerald Inquiry and its seminal report, an opportunity arises to sit back and review the era in which it was conducted and to reflect upon any changes or differences that may have flowed from it.
I do so from the vantage point of one who was intricately involved in the Fitzgerald Inquiry as senior counsel, and who for some years thereafter was retained for a similar inquiry into the New South Wales Police Service.
My active participation in matters of this nature has long since passed. My vantage point is now, and has for some time been, no more than that of a bystander – albeit a sometimes officious one.
Over the years, Tony Fitzgerald and I have kept in contact and shared matters of concern and disappointment. That is not to say that he in any way shares any responsibility for the reflections I make in this article, nor should he necessarily be taken to endorse them.
While it is not usually of my nature to seek publicity, I believe that it may be of some advantage to our recent history in Queensland if the reflections of a person involved in anti-corruption investigations were recorded in a reputable journal. My musings do not intend to be a historical compendium of events, but rather focus on issues that have stood out as significant to me. However, I eschew any attempt to analyse or paraphrase the detailed and cogently expressed recommendations of the report. They remain preserved and plain for all to see.
I BEGIN WITH the question of a royal commission or a commission of inquiry. The former is by royal prerogative, the latter created pursuant to a statute. In either case, their procedures and powers are governed by a statute, often having wider application than to more than one inquiry.
In 1987, the body politic in Queensland was in manifest disarray to the extent revealed so vividly in the inquiry and later report. This disarray did not occur overnight, but by a progression of attitudes and cultures that enabled a ruling body to arrogate power unto itself and its supporters or subordinates.
One of these subordinates was the police force, the role of which was accepted as being available to do the government’s bidding. In return there was favour, and protection against criticism.
A fertile and lucrative source for police corruption was, and is, the permitting of illegal activity in return for payment or other consideration. In the 1960s, occasional media reports would be published suggesting that police were well aware of prostitution taking place, but were not acting against it. Eventually, the media was able to locate a specific person who made specific allegations and, after much pressure was exerted in the media, the Royal Commission Appointed to Inquire into and Report on Certain Matters Relating to Members of the Police Force and the National Hotel was set up in 1963 under the then Commissions of Inquiry Act.
This was a watershed moment because, so far as the public was concerned, this would determine whether there was substance or not in the allegations.
The credentials of the inquiry head were impeccable: Mr Justice Gibbs was one of Queensland’s most eminent jurists and later Chief Justice of the High Court of Australia. Understandably, he followed the accepted procedures for such an inquiry. These are encapsulated in the celebrated English report of Lord Salmon in 1966 as the ‘Six Salmon Principles’:
• Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate;
• Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them;
• (a) He should be given an adequate opportunity of preparing his case and of being assisted by his legal advisers. (b) His legal expenses should normally be met out of public funds;
• He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry;
• Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard; and
• He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.
The inquiry had one junior counsel whose staff was limited to one investigator. Only one witness (a former and allegedly disgruntled hotel staff member) was produced who could speak directly of obvious and widespread prostitutional activity at the hotel. Numerous police officers were involved who were responsible for policing the premises. They were represented by the senior counsel, who comprehensively questioned the only direct witness.
While it was inevitable that the inquiry commissioner, acting in accordance with the law, could make no finding against the policemen, the police and the government subsequently used the result of the inquiry as a shield and buttress against further similar allegations.
It was in this environment, where police turned a blind eye to such open criminality, that cogent allegations were forcefully raised by investigative journalists on national television and in a local newspaper in 1987. Unsurprisingly, the government first tried to ignore them, but when the pressure became too great, some conscientious ministers ignored the wishes of Premier Joh Bjelke-Petersen and decided that an inquiry must be instituted. So strong was their resolve that they relied on the advice of respected and independent counsel, rather than internal mechanisms, to choose who should head the inquiry.
It was into this milieu – and with the ever-present ghost of the National Hotel Inquiry – that the Fitzgerald Inquiry was born. The Queensland Commissions of Inquiry Act was archaic in content, having been untouched for many decades. Its provisions were obstructive rather than helpful to conducting a controversial investigation, having been more usually required to apply, for example, to proceedings of august bodies such as the Hen Quota Appeals Tribunal or the Second-Hand Fruit Cases Packaging Board.
Fitzgerald – with great prescience, and departing greatly from established precedent – requested wholesale amendments to the Act to make it an effective instrument to conduct an investigative inquiry. Importantly, there was a significant departure from the concept enshrined in the Six Salmon Principles that greatly mirrored the trappings of adversarial litigation. The inquiry was precisely that, and the concept of parties was inappropriate. In this, Fitzgerald had the support of the government’s independent advisor and, consequently, the government itself. It was of great significance that the government was represented at the inquiry and played a positive role in seeking to expose any corruption or wrongdoing.
Fitzgerald’s investigative approach and updated legislation were also called in aid by Mr Justice Wood in the New South Wales Royal Commission into Police Corruption, which began in 1995. Without this inquisitorial approach, both inquiries would almost inevitably have produced the same result as the National Hotel Inquiry.
The winds of change were blowing elsewhere. In England in 1992, Lord Justice Scott commenced an inquiry into British arms sales to Iraq; because of secrecy considerations, his report was not published until 1996. He comprehensively questioned the then-current applicability of the Six Salmon Principles and concluded that they were no longer apposite – an inquiry should be an inquiry and not a court proceeding between parties.
ONE OF THE many things that had to be addressed ahead of the Fitzgerald Inquiry was to abrogate, by the relevant inquiry statute, the right of a person concerned to bring inquiry proceedings to a halt if a matter within the inquiry’s purview was brought before the jurisdiction of a court. It needed no great legal wizardry to realise that, for example, a ‘stopper writ’ for defamation could bring inquiry proceedings to a halt for a substantial period – probably beyond the date by which the inquiry was bound to report.
After dealing with bureaucratic attempts to restrict availability of material to the inquiry, both by police and government officials, the inquiry commenced.
Most people understood that the task of a royal commission or an inquiry was to delve into matters past and seek the truth or an explanation. By contrast, the investigations of this inquiry included then-current matters. This was very much the case in the subsequent New South Wales inquiry, where corrupt police activity was recorded even as inquiry hearings were taking place.
While public support and assistance is greatly needed by an inquiry into such matters as police corruption, care must be taken to ensure fairness in the inquiry’s conduct. There seems to be a media tendency to seize upon the fact that someone has been ‘named’ in the course of an inquiry, when the reality is that the reference is part of an investigative process. In our system, it is not the role of an inquiry to pronounce upon criminal guilt or innocence – this must always be a matter for the courts and the discretion of those who bring matters before them. In the same vein, the role of an inquiry should be to investigate and report on the issues assigned to it. In this regard, seeking out systemic problems, their causes and their appropriate remedies should be the benchmark rather than totalling convictions.
THE REPORT LISTED and examined a substantial body of serious defects in public governance and administration as Queensland stood in the late 1960s. A prevailing thread was the abuse of power and arrogant disregard of basic democratic principles.
The malaise spread from government to institutions, not least the police force. The earnest attempts of a reformist commissioner to introduce appropriate separation between police and government were set at nought, the government substituting its own choice of a more compliant (later found to be corrupt) commissioner. With its apprehended support and protection from criticism, much less scrutiny, afforded by the government, the climate was right for police corruption to flourish. An environment had developed where a stock pro forma was completed when any police officer was called upon to respond to corruption or misconduct allegations. Experience showed that the strategy was sufficient to ward off further action – it consisted of extolling the good record of the accused and questioning the mental acuity of the complainant. The mindless and limitless extent to which it was taken was evidenced by an incident where police conducted a raid at a wrong address. An innocent person in the house was savagely mauled by a police dog. When a complaint was made, the police reaction, in accordance with the prevailing culture, was combative: it extolled the virtues of the police dog and questioned the sanity of the victim.
I mention this example to illustrate prevailing attitudes to any police action being called into question. There was a long road to travel before acceptable attitudes and standards could emerge.
The results of the inquiry and its aftermath brought about a salutary cleaning of the stables – yet the temptations of corruption remain ever present. It is imperative to have a strategy that recognises and combats this.
With the passage of time, there seems to have grown a tendency to regard the concept of professionalism as at odds with the imperative of competition, this giving a freer hand to bold initiatives that may come close to the boundary of generally accepted canons of respect and ethical behaviour.
This notwithstanding, I have always thought the way forward is to focus on the professionalism necessarily inherent in policing. It is a task that demands courage, understanding and impartial exercise of the constable’s independent duty. A police force is an entity within which loyalty to colleagues is requisite, but can at the same time be used by the unscrupulously corrupt to mask or further their activities.
The focus must be on developing a culture that expels and repels corruption. Crucial to this progress is the attitude of the police union or its equivalent. In days gone by, such an institution was renowned for providing substantial legal expenses and moral or other support to members who faced compelling evidence of guilt. Such persons were not beyond calling on sections of the media to write ‘hero’ stories about them, no doubt in return for past, or expectation of future, information.
Here we face the obvious principle that any person accused is presumed innocent and is entitled to appropriate representation and a fair trial. However, it must also be recognised that the overwhelming majority of police union members are not corrupt and do not want corrupt people in their ranks.
Here, a police union has a real conflict. This was addressed in Fitzgerald by giving the police union leave to appear at the inquiry on the basis that its role was to assist the inquiry and not to protect any member from scrutiny. The union engaged separate representation as it deemed appropriate for those with cogent allegations against them.
The history of dealing with complaints against police as a disciplinary, rather than a criminal, matter has been beset by complexity and delay. Often, such matters have taken years to resolve. Steps forward have been taken to synchronise fairness with expedition, but this area remains complex and difficult to administer.
In keeping with the overall concept of professionalism, I think there is much to be said for the police commissioner, as the proud leader of a proud team, to have the power to dispense with the services of any person in whom he or she has lost confidence. This should be regarded separately from any possible criminal proceedings. It is the commissioner who holds the ultimate responsibility for conduct or misconduct, and a commissioner should not be placed in a situation of undue risk if a member’s conduct falls below standard. Neither should members of the service, adhering to their professional obligations and responsibilities, be constrained to tolerate or work with someone who is not prepared to adhere to the standards they all espouse.
Undoubtedly, protocols will need to be carefully constructed to ensure the process is fair. Steps have been taken in this direction, but there is still room for the concept of a professional team to be reinforced by measures of this nature.
Also important, as in any profession, is the need for adequate and skilled training. All too often, budgetary constraints cause this item to fall down the list of priorities.
WE COME NOW to the question of progress, or want thereof. Undoubtedly the inquiry and its report led to a change in government. This outcome was fully anticipated by Premier Mike Ahern, who made it clear that it was his duty to accept and implement the inquiry recommendations to make a better future for Queensland. His statesmanlike approach was firmly adopted by the next premier, Wayne Goss, who introduced vital organs of public administration in the form of the Criminal Justice Commission (later merged with Queensland Crime Commission to become the Crime and Misconduct Commission, and renamed the Crime and Corruption Commission in 2014) and Electoral and Administrative Review Commission, both of which played a key role in implementing change and improvement.
Despite this, in my view, the passage of time has seen a dismal and disappointing decline in, and departure from, the standards of proper democratic government in Queensland. This has occurred during the incumbency of governments of either persuasion.
From time to time, I have endeavoured to point out what I consider to be fundamental transgressions. There have been some heartening community reactions to government action. Notable is the electorate’s rejection of the Newman government’s high-handed excesses in the 2015 election. This gave succour to the hope that the community will insist upon certain democratic standards.
To analyse and prescribe some cure or improvement for the current malaise would be a task far beyond the scope of these observations. I confine myself to commenting on what I perceive to be the major issues; all are deep seated and fundamental.
First, let it be observed that the overwhelming majority of political candidates are driven to devote themselves to being elected representatives out of a sense of good conscience and public duty. This is hardly the perception of a politician held today by the average Queensland citizen.
Why should this be so?
In my humble opinion, it has much to do with honesty, trustworthiness and a true appreciation of the role of an elected representative, particularly a member of government.
In ordinary life, a promise or an undertaking to do something is an acid test as to the good faith and integrity of the maker. Disregard of a promise justifies deep distrust, not only of the maker but of the institution they represent. Coupled with this is the three-year electoral cycle, where statesmanlike decisions with impacts far into the future are difficult to accommodate.
A further complication is the existence of political parties whose role is in the background, but whose function and agenda is to strive for members to be elected to government with an attendant obligation to their party’s rules and discipline. It is absolutely vital to appreciate the difference between a political party as a sectional interest and a government entrusted by the people to use its mandate to act for the common good.
As long ago as 2009, after my departure from the last public office I held, I delivered a paper to a Commonwealth anti-corruption conference. There, I lamented the conduct of politicians of either persuasion using the trappings of their office to swell the coffers of a political party. As an officious bystander, I have since repeated and furthered this lament in several iterations. What I originally said on this topic, and to which I unhesitatingly adhere, is as follows:
In any decision-making process, fairness demands that all interested parties are treated equally. The community is fully aware, as are the major political parties, that pressuring interested parties to pay for access to a decision maker is anathema to this principle. Take the example of a controversial property or mining development. What is the perception of a reasonable person if the well-resourced applicant pays to sup with the decision-maker whilst the objector is not only not invited but cannot afford the tariff imposed? What is on offer? As former Minister, now prisoner, Nuttall now famously said at his trial: ‘Nothing is for nothing.’
Not only is it wrong from the point of view of perceived and actual fairness, it is deeply flawed because it wilfully and arrogantly disregards a fundamental principle of our democracy, that those elected to govern must use the power entrusted to them for the benefit of the community. Simply put, the attributes of Government have been temporarily reposed in those elected. These attributes are not their property and are not for sale to augment the coffers of sectional interest in the form of a political party.
No party has ever claimed to justify the practice. In fact, they know full well that it is wrong. For a period, each major political party at both federal and state levels ceased to do it. It would seem that cynically they turn a blind eye to criticism, expecting that the wave of adverse attention will be replaced by some other issue in the ongoing cycle of public events.
This arrogance and cynicism reached its zenith when, in the lead up to the 2018 Queensland election, each party undertook to abide by what were called the ‘Fitzgerald Principles’, which urge parliamentarians to act honourably, fairly and in the public interest, and to treat all people equally. Clearly enunciated among these was the disavowal of promoting paid access to politicians. Hardly was the ink dry on this undertaking when each party continued the process apace; it is still alive and well.
One of the basic foundations of ethical behaviour is to be bound by a promise or undertaking. This is especially so when a vote is earned by reason of the constituent relying on it. Those who ignore this foundation cannot expect, nor are they entitled, to be trusted or respected.
Perhaps the day will come when representatives’ actions in this area will be tested in the courts. Of relevance is the 2010 Amendment to the Criminal Code (Qld) (s 92A), establishing the offence of abuse of public office. Chillingly for those who choose to sail close to the wind, an explanatory note to the legislation points out that relevant to the dishonesty component of the offence is the perception of this conduct by the reasonable member of the public.
If elected representatives choose to disregard so fundamental a principle, is the community not entitled to be apprehensive as to what other expedients they will be prepared to descend? The whole web of government and public administration is necessarily predicated and reliant upon trust. Forfeit this and the body politic is terminally ill.
The gloom can only be penetrated by the citizens who vote being forever watchful, resolutely insisting that the fundamentals of public administration and democracy are constantly in motion.