Queensland’s Truth Telling Commission breaches Westminster and election conventions

Recently, the chair of Queensland's government's Truth Telling and Healing Commission was reported in the media for publicly attacking the leader of the Liberal National Party and opposition, David Crisafulli, for his party's stated policy to close down the commission if elected at this week's election.

The Truth Telling Commission is a special commission of inquiry that was appointed by the present Queensland Labor government to report on the impact of European settlement and 'colonisation' on Aboriginal peoples in this state.

It was established under legislation similar for the appointment of royal commissions, but 'customised to facilitate the participation of Aboriginal peoples and Torres Strait Islander peoples by adopting a culturally appropriate and non-legalistic approach.'

So, in all respects it is like a royal commission inquiry so the first issue is whether the chair of such a body should be making any public comments that could be construed as being political or partisan.

While the investigatory powers of commissions are governed by legislation how their chairs behave during and after an inquiry is very much determined in Westminster democracies like Queensland's by accepted conventions of what is regarded as appropriate behaviour by officials and elected members.

Because such commissions are appointed to investigate some perceived wrong-doing, scandal or controversial issue, it is essential they be seen as being independent and not partisan.

While such commissions should be energetic in their pursuit of the 'truth' in their inquiry and public hearings, it is important they neither appear to be biased in how they conduct their investigations nor in any public comments their members might make.

They must keep the political fray at arm's length otherwise they are a diminished tool of investigation.

Remember two previous Queensland commissions – the Connolly-Ryan inquiry into the Criminal Justice Commission appointed by the Borbidge coalition government and the first Bundaberg Hospital Commission of Inquiry established by the Beattie Labor administration – were both closed down when the Supreme Court found they had exhibited what is called 'apprehended bias' or perceived bias in their processes thus prejudicing the independence of their investigations.

The bias in those two cases related to the issues under investigation were not politically targets, but the principle is the same – commissions of inquiry must be independent.

Similarly, when Dyson Heydon who chaired the Abbott government's royal commission into trade union governance was due to speak at a Liberal party function there was a huge outcry about him showing partiality. It tainted the commission's findings.

The Truth Commission's public criticism of the current LNP opposition could therefore be construed of indulging in inappropriate political and partisan comment and thus showing a perceived 'bias' in the conduct of its inquiry.

It is for the government to criticise the opposition's policies not a supposedly independent commission of inquiry.

Making matters worse was that the Truth Commission's comments were made during the current Queensland election campaign when 'caretaker conventions' have been officially evoked by the government.

Caretaker conventions seek to ensure public resources and actions by public officials are not misused during an election to favour any political party, especially the incumbent government. This raises the issue whether a government appointed and funded body like the Truth Telling Commission, by becoming involved in a political issue during an election campaign, is in breach of those conventions.

While Queensland's 'Guidelines on the Caretaker Conventions' do not explicitly cover issues concerning public officials making public comments, unlike in other jurisdictions like the ACT, it is an accepted convention and practice that all officials, including those leading a commission of inquiry, exercise restraint in their public comments during these sensitive times.

In Westminster democracies it is respect for such conventions that are as important in ensuring democratic practice and integrity as any detailed written constitutional or legislated provisions.

Former prime minister Morrison's secret appointment of himself to control five additional departments of state while not illegal or strictly unconstitutional was nevertheless seen to have undermined the principles of responsible government and its underlying conventions.

The chair of Queensland's Truth Telling Commission needs to consider his position. Many consider comments made about LNP's policy were highly political showing an actual, as opposed to a 'apprehended bias', and therefore he should resign immediately. An apology to the current LNP leader of opposition would be inadequate. Unless this happens any good work which the commission might do prior to the election, will be completely undermined.