State orchestrates appointment

by Chris Griffith
Published 11 October 1992 in The Sun-Herald


my face


It is the snatching of conflict out of the jaws of consensus.

All the major players believe Brisbane barrister Robin O'Regan QC is an eminent, respectable, and admirably qualified successor to Sir Max Bingham as chairman of Queensland's anti-corruption warchdog, the Criminal Justice Commission.

The Liberal and National Parties do and so does Premier Wayne Goss who has publicly and persistently floated Mr O'Regan as his preferred candidate.

So, apparently does the Criminal Justice Commission, although it is important to note there is a gerrymander operating regarding the touting of Sir Max's views. Mr Goss never asked Mr Max his view of other applicants, nor was he asked to rank them.

Nevertheless Mr Goss says he is wondering what all the fuss is about? If there are no objections, he argues, why not appoint Mr O'Regan as soon as possible and "get on with the job".

In response, the current row is not about Mr O'Regan's suitability as chair; it is about adherence to the consultation process as outlined in the Fitzgerald report.

In particular it is about the Government's credibility in deciding not to seek the Parliamentary Criminal Justice Committee's (PCJC) endorsement before appointing Mr O'Regan.

The Criminal Justice Act says a CJC chair cannot be appointed unless the PCJC endorses the appointment unanimously, or by a majority that including at least one Opposition party member. Opposition members therefore collectively can veto an appointment.

However, if the Parliamentary Committee is dissolved because of an election, which is less than 10 pc of the time, the Government is obliged only to consult the Opposition party leaders.

No endorsement is required - the Premier can simply run his preferred candidate past the Opposition leaders and appoint anyone and ignore any protests.

It is this second option Mr Goss and his Attorney General, Dean Wells, intend now to exercise. They argue the Act equally prescribes both processes and consultation with the Opposition party leaders is in order because the Parliamentary Committee is yet to be reestablished.

The Opposition parties, on the other hand, say the Government has manipulated the appointment process time-wise to give the impression the selection cannot wait until the Parliamentary Committee is reformed.

They say that by prescribing consultation with the leaders and not the Committee, the Government has stripped them of their appointment veto power, a power that ironically they would be less inclined to use if committee consultation took place.

One would therefore expect a mature Goss Government, keen to avoid controversy over a non-controversial appointment, would bend over backwards to allow the Parliamentary Committee to reconvene to make its endorsement, and simultaneously enhance its reputation as a custodian of the Fitzgerald reform process.

After all, the option of consultation just with the Opposition leaders was written into the Act in 1989 as a stop-gap measure to allow for initial appointments by the Cooper Government prior to the Committee's existence, and as a fall-back mechanism where an appointment could not be delayed.

It was certainly not the preferred consultation mechanism of Tony Fitzgerald QC who argued the need to keep the CJC and EARC independent of executive government, yet accountable to Parliament through these over-seeing Parliamentary Committees.

In his report, Tony Fitzgerald said: "The exclusion or reduction of party political considerations and processes from the decision-making process with respect to the administration of criminal justice is an important consideration underlying the establishment of the CJC.

"Accordingly, executive authority and connection with the CJC must be limited to what is necessary to finance it, provide administrative and resource needs, and that necessary for public financial and other accounting purposes."

Acting Opposition leader, Kev Lingard, and the credible Deputy Liberal leader, Santo Santoro, are therefore correct when they say consultation with the PCJC is the desirable option and should proceed unless the appointment is urgent.

So is it necessary for an appointment to be made before a new Parliamentary Committee can be formed?

The Government's argument for the urgency was summed up by Mr Wells this week on the ABC's The 7.30 Report.

Mr Wells said: "Sir Max Bingham retires on November 30. Now the CJC would like to have his successor in place for at least a month before that so he can learn the ropes. That takes us to the 30th October.

"Now we're not going to have a parliamentary committee until well into November, consequently it can't be done unless we do it this way."

Yet, as Mr Lingard points out, Sir Max's contract does not expire until December 30. A Parliamentary Committee could be appointed in the first week of November and a decision could be reached by the end of that week, some seven weeks prior to Sir Max's departure.

Of course, some of Sir Max's final weeks are in the form of accumulated leave, but even this still allows leeway for Mr O'Regan to be "broken-in".

It is therefore interesting how the Government has manipulated the concept of timing to create impressions of urgency or delay.

The same Government that now is determined to act ASAP on Sir Max's successor took five months and had to be prompted publicly before it appointed a part-time CJC Commissioner to replace barrister Jim Barbeler.

And the same government that believes, as Mr Wells does, that the Committee was "indecisive" not to endorse Mr O'Regan in August now claims the new Parliamentary Committee may not be formed until around mid November - an act of dithering if ever there was one.

Given Mr O'Regan is likely to be appointed anyway, it is interesting to think why the Government has done everything possible to influence and manage the selection process in such a public fashion.

When you add together the preemptive public touting of Mr O'Regan's candidature, the public pressuring of the Committee in August to agree, and now, its determination not to allow the Opposition its veto power, you have a government obsessed with control and with delivering the goods job-wise over an appointment that has unanimous support.

It appears a case of power must not only be exercised, it must be seen to be exercised.