The Holmes report and the peculiarities of Recommendation 4

The Miles Labor Queensland Government appointed former Chief Justice Catherine Holmes to advise it on addressing issues arising from the decision of the High Court in Crime and Corruption Commission v Carne, the result of which was that the Crime and Corruption Commission (CCC) could not publish reports of investigations into allegations against former Public Trustee Peter Carne (and by inference former Labor Deputy Premier Jackie Trad) where the CCC had been unable to establish evidence that would meet the standard to bring prosecutions against Carne or Trad.

Notwithstanding the ancient Common Law principle that a person is properly entitled to a presumption of innocence unless convicted by due process in a Court of Law, the CCC (and its equivalent bodies in other jurisdictions) have, through the publication of reports on investigations, usually under the guise of corruption prevention, successfully tarnished the reputation of numerous individuals notwithstanding their inability to achieve successful prosecutions.

Such reports have been greedily sought both by the media and by the political opponents of the individuals subject to complaint and potential investigation. This approach has been justified under the guise of maximising transparency in our system of government and public administration.

At this stage it is not appropriate to address the broad issue in the Holmes Report but rather seek to draw attention to one of the real peculiarities contained in Recommendation 4.

Whilst Holmes supports a mechanism to enable the CCC to publish reports identifying individuals even if no prosecution is possible from its investigations (see Recommendation 3), which reports can apparently be critical of that individual and thus ruin their reputation in the community at large, elected officials are to be given a significant exemption.

Holmes proposes that elected officials who have not been found guilty of a related offence to a corruption investigation should only be the subject of a CCC report if:

• It contains no critical commentary or expression of opinion concerning them, or
• No recommendation is based on their conduct,
• Matters that can be reported are:
• The allegations of corruption investigated are unsubstantiated or
• The evidence does not support consideration of prosecution proceedings.

Holmes acknowledges this recommendation was not the subject of any submissions to her. Accordingly, her advancement of this proposal can only be considered as arising from her own reaction to the general issues covered by her report which, perhaps, can be indicative of her experiences over her career.

Holmes attempts to differentiate elected officials from the holders of other positions within the public sector, but her reasoning appears weak.

All public officials, whether elected or not, should be held accountable to the same objective standards of behaviour.

Most public officials obtain their positions only after going through rigorous processes of selection and behaviour management over the years within a highly regulated system. Their behaviours are the subject of constant supervision by systems that are based on centuries of practical experience of the behaviours of people within such systems.

Elected officials however are determined by the murky processes of the democratic system They, in many if not most cases, achieve their positions by playing the game of the art of political manoeuvre in the party and community mechanisms that participate in the political process. Success in elections is often achieved through the factional label being carried by the individual not by any individual capacities that are recognised through the process of electoral politics. Their loyalty to the interests of the masters of these factions is clearly demonstrated in their decision-making processes which leads to legislative and administrative decisions being made in those factional interests.