Corruption and ethics Queensland style
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While the ICAC in NSW claims the scalp of a
sitting Premier yesterday, concerns increase about the Queensland
Government's planned changes to its corruption watchdog, as well as the
conduct of its handpicked acting chair. Barrister Alex McKean comments.
DID DR KEN LEVY chuckle quietly to himself as he set in motion the processes to have Ros Bates
referred to the Ethics Committee of Parliament? Did he grin or grimace
as he signed off on the paperwork to have the troubled MP investigated.
The thought ‘there but for the grace of the Premier go I’ may have
crossed his mind as his pen scratched the parchment, consigning Ms Bates
to the tender mercies of the Queensland Parliament's Ethics Committee.
But Ros never really had to worry.
The bar is not set all that high in terms of expectations of the
ethical conduct of MPs of the Deep North in this savage year of our Lord
2014. It takes an accumulation of allegations of naked corruption, in
the style of the unlamented Scott Driscoll to prompt the government into action.
The matter then proceeds along the well-worn path from wholehearted
support, via cautious defensiveness, to opprobrium, expulsion and
desperate claims of ignorance by those who well knew not all of the
apples in the barrow smelled so sweet.
The Ethics Committee’s report
shows that within hours of the Premier achieving victory in March 2012,
Ms Bates sent emails to five MPs who looked set to be given ministries
in the government, and to Michael Caltabiano, then DG of the Transport
Department.
Her son was subsequently employed.
Where Ms Bates came unstuck was when she read a letter from her son into the record in Parliament on 15 October 2013.
That letter contained the sentence:
'... at no stage did my mother employ me, nor did she ask anyone to give me a job.'
In light of the earlier emails, Dr Levy clearly took the view this may amount to a misleading of Parliament.
Ms Bates submitted in her defence that her emails had not contained any express request that anyone give her son a job.
The Ethics Committee however referred to authority to the effect that it is possible:
‘... that a factually correct statement could also be misleading…
by, for example, the deliberate omission of relevant information.'
Reading that part of the Ethics Committee’s decision may give Dr Levy pause.
The Ethics Committee said that although there was no express request
for employment, the emails were sent for the purpose of Ms Bates getting
her son a job and that a reasonable person, hearing the statement in
the House in October 2013, could have been misled in substance.
It was conceded there was an argument that Ms Bates should have known
she may be misleading the House, in October 2013, where she was the
author of the earlier emails and where those emails had to be provided
to the CMC, in the intervening period, as part of the investigation into
Ms Bates.
The Ethics Committee, however, was apparently swayed by Ms Bates’
submissions that she was focused on her son’s letter, his state of
health and the intense media interest in the matter.
An astute observer might say that the intense media interest in the
case and the fact Ms Bates knew there was a CMC investigation going on
should have alerted her to give careful consideration to each line of
the letter she subsequently read in the Parliament.
So, because Ms Bates did not intend to mislead anyone, she is cleared and need only deliver an apology to the House — again.
Perhaps the Attorney should introduce a three-strikes rule for recidivist Parliamentarians?
But Dr Levy need not even concern himself with the prospect of being
exposed to the ineffectual ministrations of the Ethics Committee for his
transgressions.
Seemingly a protected species, a special Select Committee on Ethics was called into existence to deal with the allegations Dr Levy misled the Parliamentary Crime and Misconduct Committee.
That Select Committee appears to have been concerned to both delay its investigations[1] into Dr Levy and to ensure there is the minimum possible level of transparency involved in its deliberations.
Now it appears that Dr Levy need not even worry about the Select Committee. The government has recently introduced a Bill that will not only bring the CMC finally to heel, it will also guarantee Dr Levy’s tenure until 29 October 2014.
One of the policy objectives of the Bill is that it will
‘...lead to an improvement in public confidence in the CMC.'
It certainly seems that an injection of public confidence is required.
The actions of the Premier in dismissing the entire membership of the PCMC
in an apparent effort to avoid further investigation of Dr Levy and the
referral of that investigation to the Select Committee on Ethics, which
has resisted all attempts to give even the appearance of transparency,
have significantly eroded public confidence in the CMC.
Guaranteeing Dr Levy a job through legislation would achieve
precisely the opposite of the professed policy objective, where his
continued appointment constitutes a serious threat to public confidence
in the CMC.
The provision of a legislative imprimatur guaranteeing his
appointment, while Dr Levy remains under investigation by the Select
Committee would be a serious blow to what confidence remains.
Dr Levy authored an article in the Courier Mail on 31 October 2013. The article supported the anti-association legislation introduced by the Government.
In it, Dr Levy said:
'... the Attorney-General and the Premier – with support of the
Queensland Government – are taking the strong action that is required.'
This unprecedented move by a CMC head was at the very best naïve. The
real source of Dr Levy’s problems lies, as so often in these cases, in
the steps he subsequently took to obscure the input of highly-placed
people in the government into that article.
On 1 November 2013, Dr Levy appeared before the PCMC.
The Opposition Leader, Ms Palaszczuk, asked Dr Levy if he had any discussions with "anyone from the government" before he submitted the article to the Courier Mail.
Dr Levy denied that suggestion several times.
On 2 November 2013, Dr Levy called the chair of the PCMC to correct
the record, saying there had been one contact between Mr Lee Anderson
and a junior person in the CMC media office. He also wrote a letter to the PCMC chair apologising and setting the record straight.
Critically, there was no disclosure of any other contact which may
have been relevant to Dr Levy’s responses in the exchange, either in the
telephone conversation or letter to the chair of the PCMC.
On 13 November 2013, Dr Levy again appeared before the PCMC.
On that occasion, Dr Levy said, when the error was first brought to
his attention, he still did not recall the contact with Mr Anderson. He
then added that once he recalled the approach to the CMC media people,
he felt guilty and "highly embarrassed" about it and thought about clearing out his drawers and leaving.[2]
Dr Levy said:
"'If one asks ‘Did the Premier or anybody from his office ask me to write an article?’ The answer is, no."[3]
Dr Levy similarly denied that anybody else had made any contribution
to the article, tried to tell him what to write, or to influence him in
any way to write the article.[4]
He said the telephone call to ask Mr Anderson about Mr Houghton was the
only other contact he had with Mr Anderson and for only that purpose.[5]
Already Dr Levy was in trouble. His revelation about the phone call
to Anderson to ask about Houghton was a contact not referred to in his
letter.
Dr Levy’s difficulties were compounded when Lee Anderson fronted the PCMC on 18 November 2013.
Anderson gave evidence which directly contradicted that of Levy in a number of important points, including:
- the number of times there was contact between them prior to the publication of Dr. Levy’s opinion piece;
- whether Anderson suggested that Houghton should conduct the interview with Dr. Levy;
- Anderson making initial contact with Houghton to discuss the proposed interview; and
- Anderson seeking to provide input into what the article would and would not discuss.
meeting where the article was discussed, just a few days before it was
published. The meeting took place on the 15th floor of the Executive Building, where the Premier’s office is located.
On 21 November 2013, the Premier sacked the membership of the PCMC.
This was an unprecedented move. The sacking meant the PCMC was unable
to further investigate manifest inconsistencies between the evidence of
Dr Levy and Mr Anderson to Dr Levy.
The inquiry into Dr Levy’s evidence to the PCMC was removed from the
reconstituted PCMC and taken over by the Select Committee on Ethics on
the same day.
For a period of time in February 2014, the website
for the Select Committee on Ethics (‘the Select Committee’) initially
informed the public that public hearings would be held in the week
beginning 20 January 2014, if required.
On 17 March 2014, the chair of the Select Committee wrote a letter
saying it had sought additional information from relevant persons and
had determined it would not be seeking submissions from interested
members of the public, because:
'...it is considered unlikely that persons with no direct
involvement in the matter would be in a position to add value to the
Committee’s deliberations.'
At the time of writing this submission, the Select Committee has not
released any further information. It certainly has not cleared Dr Levy
and has taken an approach entirely lacking in transparency.
It is impossible to reconcile the versions of Dr Levy and Mr Anderson
about the number and nature of discussions between the two men. If Mr
Anderson’s testimony is accurate, then Dr. Levy has misled the PCMC on a
variety of issues on two separate occasions.
These are issues that were the subject of sustained questioning by
the PCMC and Dr Levy has provided answers to questions before the PCMC
directly contradicting the evidence of Mr Anderson.
Even more disturbing, there appears to have been a tendency on behalf
of Dr Levy to ‘drip-feed’ information to the PCMC about his contacts
with government figures prior to the publication of the article. It is
trite to say that the situation of giving evidence before the PCMC is
one in which the utmost candour and frankness is required of someone in
Dr Levy’s position.
It is inconceivable that Dr Levy cannot have known he was speaking to
someone from the Government when he was having discussions with Mr
Anderson. The same can be said of any contacts he had with people from
Department of Justice and the Attorney-General, a department of which he
was the director-general for a period of several years.
So, would Dr Levy be able to avail himself of the ‘Ros Bates defence’
if he were ever subject to a transparent investigation. It is difficult
to see how he could.
Firstly, the events which Dr Levy appears not to have had in his
consciousness occurred only a few days before the exchange with the
Opposition Leader. It can be said with some confidence that Dr Levy
would need to be capable of recalling such significant events occurring
so recently in order to fulfil the requirements of his role.
Secondly, Dr Levy possesses significantly higher qualifications than
those of the redoubtable Ms Bates. In his role as acting chair of the
CMC, he certainly should have an acute awareness of the issues
surrounding the possibility of misleading a Parliamentary Committee.
While these questions remain unanswered about the conduct of Dr Levy
and there is no transparent process in place where the inconsistencies
and apparent withholding of information can be properly investigated,
there can be little public confidence in a CMC of which Dr Levy is
Acting Chair.
[1]
The matter of Dr Levy was referred to the Select Committee on 21
November 2013. More than 4 months later no report has been forthcoming.
The Select Committee, unlike other Committees, has only one inquiry
ongoing at this time.
The matter of Dr Levy was referred to the Select Committee on 21
November 2013. More than 4 months later no report has been forthcoming.
The Select Committee, unlike other Committees, has only one inquiry
ongoing at this time.
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