Appointing a sitting judge to chair Queensland’s public inquiry into the Queensland floods could blur the separation of powers between the executive and judiciary, says an expert in public inquiry. While another legal world watcher says complaints from the bar could just be a case of barristers “beating their own drum”.
Premier Anna Bligh this week launched a statewide independent Commission of Inquiry — a Royal Commission in all but name — to examine Queensland’s unprecedented flood disaster, which has so far claimed the lives of 30 people and left thousands of houses and business inundated.
Queensland Justice Cate Holmes has been appointed to head the Commission, with Jim O’Sullivan, a former Queensland Police Commissioner and Phil Cummins, an international expert on dams, selected as Deputy Commissioners.
But Queensland Bar Association president Richard Douglas SC said this week that public inquiries were inherently political and appointing a sitting judge could compromise their perception of independence. In a press release, Bligh noted that it was “unusual that a sitting Supreme Court Judge would be appointed to head a Commission” but, after discussing the appointment with Chief Justice Paul De Jersey, it was established there was support for Holmes.
Professor Scott Prasser, executive director of the Public Policy Institute at the Australian Catholic University and author of Royal Commissions and Public Inquiries in Australia, says that appointing someone from the judiciary could lead to a blurring of the separation of powers.
“The appointment is an issue, because people keep using the term of a ‘judicial inquiry’, there’s no such thing. It’s an executive government inquiry. The reason people like judges to chair them is because it brings a sense of impartiality to an inquiry,” he told Crikey. “So you’re sort of saying to a judge that they may have to pass judgment on executive government laws, which is blurring that separation of powers.”
In Victoria, it is general policy not to appoint sitting judges to chair a Royal Commission, Prasser said, but this has not become a precedent in other states. One of the most explosive inquires to be held in Queensland was the Fitzgerald Inquiry, which examined corruption in the police force. That inquiry was chaired by Tony Fitzgerald QC, a former judge who had retired from the Federal Court to rejoin the Queensland Bar.
Richard Ackland, editor of law magazine Justinian, told Crikey that any complaints from Douglas may have been a case of the Bar Association wanting one of their own appointed to head the Commission.
“I think the bar is speaking up because they want their bloke in there,” Ackland told Crikey. “A Royal Commission can get terribly political, but judges are sitting everyday on political issues in courts. Just take a look at the High Court, which casts judgment on highly political cases.”
Prasser says, despite the appointment of a sitting judge, he is happy with the make up of the panel.
“I think the membership of the inquiry is good, with a judge, a former policeman and a water expert,” he said. “You’ve got a mixture there of legal experience, to cover the many legal issues that will come up, you’ve got the ex-policeman, who knows what it’s like to work in a crisis, and you’ve got the water expert to interpret the data.”
Under the terms of reference handed to the inquiry, the Commissioners will be expected to investigate a range of issues including the preparation of all levels of government, the performance of insurers and the management of Wivenhoe Dam. Prasser says the terms of reference are adequate for investigating the tragic event.
“I think they’re really good terms of reference, I think they touch base with all the key issues — they look at both what’s happened in the past and there’s also a look to the future,” he said. “The only minor criticism I have, and it is minor, is that [they] may have appointed someone who represents local government. Because local government is such an important delivery mechanism in this sense.”
An interim report from the Commission is expected by August, with the full findings slated for release early next year.