Hon Michael Mischin MLC LLB (Hons) BJuris (Hons)
Parliament of Western Australia
Member of the Legislative Council (North Metropolitan Region) -Parliamentary Secretary to the Attorney General; Minister for Corrective Services
The Role of the Corruption and Crime Commission in the Constitutional System of Western Australia -Parliamentary Perspective
“In a representative democracy it is important that Parliament provide an oversight, on behalf of the community, of independent statutory authorities. This session will discuss Parliament’s role in ensuring that the operations of the CCC are in accord with its statutory obligations and community expectations.”
Commission is a creature of Parliament.
The Corruption and Crime Commission Act 2003 establishes and confers special investigative powers on the Corruption and Crime Commission (“Commission” or “CCC”).
In doing so, the Act also provides for a number of accountability mechanisms essential to scrutinise the use of these powers. There are two principal Parliamentary oversight mechanisms, intended to complement each other – a Parliamentary Standing Committee, and a Parliamentary Inspector.
The Standing Committee qua Parliament
The principal one is the ‘Joint Standing Committee on the Corruption & Crime Commission’.
Sec.216A requires the Parliament to establish a joint standing committee comprising an equal number of members appointed by each House. The functions and powers of the Standing Committee are to be determined by agreement between the Houses and are not justiciable.
The Committee’s functions and powers are defined in the Legislative Assembly’s Standing Orders 288-292 and other Assembly Standing Orders relating to standing and select committees, as far as they can be applied.
Pursuant to SO 288, at the commencement of every Parliament a Joint Standing Committee on the Corruption and Crime Commission is appointed by resolution of the Assembly and forwarded to the Legislative Council for its concurrence.
SO 289 prescribes that the function of the Joint Standing Committee is to
(a) monitor and report to Parliament on the exercise of the functions of the Corruption and Crime Commission and the Parliamentary Inspector of the Corruption and Crime Commission;
(b) inquire into, and report to Parliament on the means by which corruption prevention practices may be enhanced within the public sector; and
(c) carry out any other functions conferred on the Committee under the Corruption and Crime Commission Act 2003.
Sec. 216A of the Act does not prescribe the number of members forming the Joint Committee. However, SO 290 requires that the Committee consists of four members, two from the Legislative Assembly and two from the Legislative Council.
The current Joint Standing Committee had its genesis on 25 November 2008, when the Legislative Council concurred with a resolution of the Legislative Assembly to establish the Joint Standing Committee on the Corruption and Crime Commission of the 38th Parliament of Western Australia (‘the Committee’). Its membership changed when composition of the Legislative Council changed on 22 May 2009, following the expiration of the fixed four-year term of the Council and reflecting the results of the September 2008 State general election.
The current membership comprises:
Chairman: Hon Nick Goiran MLC [Liberal Party]
Deputy Chairman: Mr John Hyde MLA [ALP]
Members: Hon Matt Benson-Lidholm MLC [ALP]
Mr Frank Alban MLA [Liberal Party]
A report of the Joint Standing Committee is presented to the Assembly and the Council by members of the Joint Standing Committee nominated by it for that purpose. That would usually be the Chairman in the case of the Legislative Council and the Deputy Chairman in the case of the Assembly.
Without limiting the effect of anything in SOs 288 to 291, the Standing Orders of the Assembly relating to standing and select committees are followed as far as they can be applied. Inter alia, this enables the Committee to call and compel the attendance of witnesses, receive evidence and, of course, to have the protection of Parliamentary Privilege.
Among the other functions of the Standing Committee under the Act, it has a role in the appointment of the Commissioner.
The Commissioner is appointed under s.9 of the Act by the Governor on the recommendation of the Premier. Under s.9(3a) the Premier is obliged to recommend the appointment of someone on a shortlist of three eligible people submitted to him by the “nominating committee” (consisting of the Chief Justice, the Chief Judge and a person appointed by the Governor “to represent the interests of the community”), who has the support of the majority of the Standing Committee and “bipartisan support”.
“Bipartisan support” is defined to mean the support of members of the Committee from both the Premier’s and the Leader of the Opposition’s parties [s.3(1)]. The Premier is also required to consult with the Standing Committee, although the Act does not prescribe the nature of the consultation.
The Commission is statutorily empowered to report to Parliament.
Under ss.84-90 of the Act, it can report on specific matters concerning its activities or, under s.88, make a special report on any administrative or general policy matter relating to its functions, and can have such reports laid before each House of Parliament. Instead of laying such reports before Parliament it may, under s.89, report to the Minister or the Standing Committee “if, for any reason, the Commission considers it appropriate to do so.”
In addition to these discretionary reports, it has an obligation to report on general matters. Sec.91 provides that by the end of September each year the Commission must prepare a report “as to its general activities during that year” – commonly referred to as its ‘Annual Report’. Sec.91(2) lists the matters to be reported on. The report must be tabled before each House of Parliament within 21 days of its preparation.
Sec.92 also provides that Rules of Parliament may be made and gazetted requiring the Commission to report to each House or the Standing Committee, as and when prescribed in the Rules, as to the general activities of the Commission – ie: periodical reports or ‘sub-Annual’ Reports.
The Parliamentary Inspector
The second mechanism for oversight is the Parliamentary Inspector. Whereas by its nature the Standing Committee can only meet on an occasional basis, the Parliamentary Inspector provides continuous oversight on Parliament’s behalf.
The office of Parliamentary Inspector of the Corruption and Crime Commission was established pursuant to s.188 of the Act on 1 January 2004.
Inspector Christopher Steytler is the second appointed under the Act and commenced his term on 1 February 2009, following the expiration of the term of the inaugural Commissioner Mr Malcolm McCusker AO QC on 31 December 2008. The Acting Commissioner in January 2009, during the interregnum, was Mr Ken Martin QC.
As one may gather from the name, the Parliamentary Inspector is an “officer of Parliament” under s.188(4) and “is responsible for assisting the Standing Committee in the performance of its functions.”
The manner of the Parliamentary Inspector’s appointment reflects the process for the appointment of the Commissioner – namely, by the Governor on the recommendation of the Premier, from a short-list of three names and with the bipartisan support of the majority of the Standing Committee [s.189].
The Parliamentary Inspector’s functions are listed in s.195(1), and they are:
(aa) to audit the operation of the Act;
(a) to audit the operations of the Commission for the purpose of monitoring compliance with the laws of the State;
(b) to deal with matters of misconduct on the part of the Commission, officers of the Commission and officers of the Parliamentary Inspector;
(cc) to audit any operation carried out pursuant to the powers conferred or made available by the Act;
(c) to assess the effectiveness and appropriateness of the Commission's procedures;
(d) to make recommendations to the Commission, independent agencies and appropriate authorities;
(e) to report and make recommendations to either House of Parliament and the Standing Committee;
(f) to perform any other function given to the Parliamentary Inspector under the CCC Act or another Act.
These functions may be performed [s.195(2)]
• on the Parliamentary Inspector's own initiative,
• at the request of the Minister,
• in response to a matter reported to the Parliamentary Inspector,
• in response to a reference by either House of Parliament, or
• in response to a reference from the Joint Standing Committee or the Commission itself.
In order to protect the Inspector, the Commission is not to exercise any of its powers in relation to him or her. [s.195(4)]
As with the appointment of the Commissioner, the reporting regime for the Inspector mirrors that for the Commission.
The Inspector may report to the Parliament or to the Standing Committee at any time on matters affecting the Commission, including the operational effectiveness and requirements of the Commission and any administrative or general policy matter relating to the functions of the Parliamentary Inspector.
The Inspector is also obliged to report annually to the Parliament about his or her general activities during the year.
Sec.203 of the Act requires the Parliamentary Inspector to prepare, by the end of September each year, a report as to his or her ‘general activities’ during the preceding year, and to cause it to be laid before each House of Parliament within 21 days of the preparation of the Report. As with the Commission, Parliament may make and gazette Rules requiring periodical reports to each House or to the Standing Committee as to the Inspector’s general activities.
Primacy of Parliament : Suspension & Removal from Office
Ultimately, Parliament can enforce its oversight by way of suspending or removing from office the Commissioner or the Inspector.
Commissioner and the Inspector may be suspended or removed from office, by the Governor on addresses from both Houses of Parliament, if the Governor is satisfied that they are incapable of performing the duties of their office, or incompetent or have neglected to perform those duties or have been guilty of misconduct. [ss.12 & 192.] But if suspended, the Commissioner or Inspector are to be restored to office unless a statement of the grounds of suspension is laid before each House during the first 7 sitting days of that House following the suspension and each House, within 30 sitting days of the same session in which statement is so laid, passes an address praying for the removal of the Commissioner or Inspector from office.
Primacy of Parliament : Accountability
In short the scheme involving the CCC recognises the immense powers that the Commission has at its disposal. There will always to be a tension between
• the need for an independent agent with adequate powers to find and root out corruption with sufficient regard to operational requirements for confidentiality, and
• the need to ensure that powers are not being misused and that the independent watchdog does not become a feral predator.
There is an inevitable tension between independence and restraint and between the need for fearless use of investigative discretion and the need for accountability.
The accountability framework that Western Australia has adopted is one that attempts to achieve that balance. But it also quite properly recognises the primacy of Parliament, by the creation of a Joint Standing Committee of Parliament accountable to Parliament, and the appointment of a Parliamentary Inspector, whose function it is to assist that Standing Committee.
Hence there exists an accountability framework in Western Australia which attempts to ensure that the Commission is responsible to a Committee, the Committee to Parliament and the Parliament to the people of Western Australia.
Functional conflict between the Commissioner and the Inspector and the role of the Standing Committee
It is almost inevitable that there will be some difference of opinion between those responsible for different components of a scheme such as that described above, where there is an attempt to ensure independence but also accountability; and particularly so when both the Commissioner and the Inspector are diligently and energetically executing what they see as their respective legislative responsibilities.
In 2007 and 2008, five reports prepared by the then Parliamentary Inspector were tabled in Parliament which were critical of investigations undertaken by the Commission and its expressions of opinion concerning certain individuals. The Inspector’s reports gave rise to a dispute between the Commissioner and the Inspector as to whether the Inspector could:
(i) critically review misconduct opinions reached by the CCC; and
(ii) table directly with Parliament a report which contained this critical review.
At the height of the dispute, the Commissioner commenced two sets of proceedings in the Supreme Court of Western Australia in December 2008 seeking a declaration as to the legality of the Inspector’s actions in tabling such a report with Parliament.
On 4 February 2009 the Standing Committee hosted a day-long meeting between the Commissioner, the then Inspector Mr Malcolm McCusker QC and the current Parliamentary Inspector, Mr Christopher Steytler QC. As a result of that workshop, the litigation was discontinued on 6 February 2009.
The Standing Committee produced a report to Parliament – the ‘Report on the Relationship between the Parliamentary Inspector and the Commissioner of the Corruption and Crime Commission’ tabled 19 March 2009.
The dispute raised many important issues as to the functions, powers and responsibilities of the Commission and the Parliamentary Inspector as they pertain to each other.
The Committee considered it to be inevitable that issues of this nature would arise with new legislation such as the CCC Act. A similar dispute had occurred in Queensland between the Criminal Justice Commission and the Parliamentary Criminal Justice Commissioner.
But the Committee considered that out of what was a regrettable public dispute between organs of government arose a number of worthwhile outcomes.
Firstly, the CCC reaffirmed:
(i) that the role of the Parliamentary Inspector in monitoring its operations was essential to the effective operation of the legislative scheme. This included the audit of the CCC’s activities in terms of its compliance with State laws;
(ii) that without such external and independent oversight to scrutinise the performance of the Commission’s functions, community and Parliamentary confidence in the appropriateness and integrity of its processes, and consequently those of the public sector, would be severely diminished; and
(iii) that the Commission welcomed any recommendations from the Parliamentary Inspector for improvements to its efficiency and effectiveness appropriate to this role.
Secondly, since commencing in the office in June 2007, the Commissioner had reviewed various aspects of the Commission’s practices and, where appropriate, refined them. The Commissioner's attention had been particularly focused on improving processes concerning the Commission’s interaction with witnesses and people the subject of an investigation, both during continuing investigations and at their conclusion and reporting stage.
Thirdly, the Commissioner had implemented a number of enhancements to Commission practices for both external and internal purposes. Externally, they were aimed at increasing clarity for witnesses of their rights and obligations in regard to investigations and the Act. Internally, this refinement had resulted in more robust, transparent and reviewable practices in performing the Commission’s functions and improving the quality of its reports.
A further outcome of this meeting was an agreed mechanism by which any significant difference of opinion of the type described between the Commissioner and the Inspector would be addressed.