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.

Holmes seems very sensitive about the capacity of the CCC and similar bodies through their reports to be able to influence the democratic process using such suggestions that any CCC report about elected officials should be "purely factual and neutral". Yet surely all persons, whether elected official, other public official or general member of the public who comes within the purview of the CCC should be subject to the same standards of judgment as to behaviour?

It is always the reputation and liberty of the individual that is at risk when bodies such as the CCC, with their extraordinary coercive powers, take aim at an individual through receiving a complaint and undertaking an investigation.

One of the great problems posed by the growth of these extraordinary institutions across Australia is that their proponents in academia and the persons who pursue career opportunities within the institutions now constitute what can be termed the 'New Puritans'. They seek to apply to the behaviour of many of the individuals who come under their scrutiny a standard that does not reflect the fact that all democratic politics is a matter of the provision of favours either directly or indirectly to one's supporters.

Only the CCC and its staff, in their view, have the true capacity to objectively determine what is right and proper for the good of the public. They fail to accept that the democratic process evolved as an alternative to the use of force and represents a mechanism for continually changing compromises all of which are driven by the endless battle to ameliorate the conflicting wants, needs and desires of individuals and groups. There is no objective right-only an everchanging series of compromises. It always was and will be a mucky process to undertake but as has been long acknowledged, it is far better than the alternative.

Political careers have been destroyed through the public reporting by these oversight bodies over minor issues such as bottles of wine and hair dressing appointments through actions and behaviours that constantly occurs in the general community, and which will always continue as part of the human condition.

Holmes purports to weigh the human rights of elected officials in a different manner to other officials apparently on the basis that "privacy assumes less weight for politicians given that they lay themselves open to scrutiny".

However, given the growth of social media and mechanisms for administrative review of actions by public officials it can be equally argued that issues of privacy for such persons as well as the general community are now substantially less than they once were. As society moves further into the digital age, the capacity for any individual, no matter their position or role, to maintain privacy for any of their actions continues to lessen.

In my submission, any suggestion that elected officials should be in any way differentiated from other public officials in reports from the CCC does not pass the pub test. This recommendation of Holmes should be abandoned for the special pleading that it is.

That is not to say that her fundamental recommendations to facilitate the publication of reports by the CCC when it cannot discover evidence of behaviours that can be judged on the criminal standard is itself acceptable.

If a criminal prosecution cannot be maintained on acceptable community standards, then all person's reputations, whatever their position as elected official or not, should remain unsullied by the reporting of our 'New Puritans'.