Page 4628 - Week 12 - Thursday, 1 November 2018
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The Chief Minister made it clear in his evidence that it was not the government’s intention to draft the legislation in a way that the decision to conduct a public or a private hearing was one way or another determined but that it would be left neutral. I was concerned that some witnesses did not read it that way and that there may have been some inadvertent drafting that has resulted in a quasi-default private hearing.
An example in this instance that I point to is section 139 of the exposure draft which requires the commissioner to essentially justify to the inspector a decision to hold a public hearing with notice to be given to the inspector at least seven days prior to the hearing. The concern here is that the commissioner is having to justify his or her decision to hold a public hearing and that if the requirement is that the notice must be given at least seven days prior, presumably it allows the inspector to veto that decision.
The committee did not envisage that the inspector’s role would be to have a day-to-day second-guessing of the commissioner’s decisions, and the report reflects the committee’s conclusions that the inspector have the important and powerful role of having oversight over the operations of the commission but not as the vetoer of the commissioner’s day-to-day operational or investigative decisions.
The issue of retrospectivity and the exposure draft’s provisions to prevent the commission from investigating matters that have already been scrutinised by other bodies was also an issue of great public interest. In giving evidence before the previous select committee the Auditor-General clearly stated it is not her role to make findings of corruption. This is in stark contrast to the remit we have for the commission, and on that basis I was strongly of the view that a previous investigation by another body should not be a bar to the commission deciding to investigate the matter in the event the commissioner believes it appropriate to do so. I am pleased the discussion in the committee resulted in a recommendation which sees the commissioner’s decision to investigate a matter previously looked at to be based on a public interest test.
The fact is that in setting up a body with strong powers, like this one, the commissioner to be appointed must be someone with the respect of the entire community, someone who has the experience and the gravitas that the role requires. The commissioner’s independence and robust discharge of his or her obligations should be protected.
In this regard the discussion about the eligibility of the commissioner was discussed at great length and I took on board the concerns that narrowing the field too much had the risk of leading to the reality of choosing from a very small pool of people, most likely limited to old white men, as was stated. The committee’s ultimate conclusion that it require a two-thirds majority approval of the Assembly with the requirements of expertise and experience together with the appropriate restrictions to avoid conflict or a perception of conflict is a good balance.
There were, of course, also very technical discussions about privilege and derivative immunity. I am grateful for the evidence from our legal experts and the Clerk on assisting us to navigate these complex and important issues. I think we reached a good
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