Queensland senior counsel Stephen Keim is distinctly unimpressed by Premier Campbell Newman and his government:
The Newman government has a track record of individual events where donations to the Liberal National Party have been mysteriously followed or accompanied by legislative or administrative actions that have favoured the donor. Not so mysteriously, this convergence of interest has often involved mining interests as the beneficiary donor.
Coming on the same day that the Giles government in the NT rescinded a previous Legislative Assembly resolution to establish an independent investigation into political donations under the Inquiries Act (effectively a royal commission), there seems to be a hint of a pattern here.
Liberal democracy cannot work effectively if decisions are hostage to the highest bidder instead of the will of the people. I think Stephen Keim’s position is a little extreme (although I don’t have a detailed knowledge of current Queensland politics), and I certainly don’t think things are anywhere near that bad in the Territory. On the other hand, we really wouldn’t know if they were. The Australian Electoral Commission is currently undertaking an investigation into whether a somewhat mysterious company called Foundation 51 should be regarded as an “associated entity” under electoral law and therefore required to disclose all donations made to it:
The Labor Party has alleged in the Territory Parliament that Foundation 51 is a slush fund set up to allow businesses to channel money into the CLP without having to declare it.
Mr Lewis, a member of the CLP management committee, had in the past said the foundation had contributed significantly to the party’s win in the Blain by-election.
He later clarified that Foundation 51 had only passed on research to the CLP.
Somewhat ironically, it was the very fact that the AEC is conducting an investigation that CLP Chief Minister Adam Giles used as an excuse to rescind the previous resolution to set up an inquiry under the Inquiries Act: why waste money on our NT enquiry when the independent AEC is looking at it anyway?
One of several problems with that argument is that the AEC’s powers are nowhere near as great as those of an inquiry under the Inquiries Act. As observed above, an inquiry established under the Inquiries Act is effectively indistinguishable from a royal commission. Not only can it require the delivery of documents and compel any person to attend and give evidence before it, but can require witnesses to answer all questions that may be asked. Witnesses cannot refuse to answer a question on grounds of self-incrimination or for any other reason.
That makes such an inquiry a very powerful investigative tool. However, the quid pro quo for this compulsion to answer questions is that nothing said in evidence before such an inquiry can subsequently be used in evidence in civil or criminal proceedings in any court. What is the point of such an inquiry then? First, it exposes murky conduct to the cleansing effect of public scrutiny, as the current New South Wales ICAC Inquiry into political donations in that state powerfully demonstrates. Secondly, and perhaps even more importantly, even though the actual evidence gathered in such an inquiry cannot itself be used in civil or criminal proceedings in any court, once police and prosecutors know for certain where the “bodies are buried” they have a much better chance of finding and presenting admissible evidence in a later prosecution to prove the fact that they now already know (although it may often take quite a bit of time to track down that evidence, hence the frequent significant delay between explosive and seemingly incriminating evidence being uncovered by a body such as ICAC or a royal commission and the subsequent laying of criminal charges).
By contrast, the powers of the Australian Electoral Commission are nowhere near as wide. Under section 316 of the Commonwealth Electoral Act 1918, the AEC can certainly compel production of documents and attendances of witnesses to give evidence, but once they are in attendance it can’t actually force them to answer questions to any meaningful extent. Probably more important from the viewpoint of the CLP government, the AEC generally speaking does not conduct public hearings. Its investigations take place in private, and it may or may not actually publish a report once those investigations are complete. Much more comfortable for any political party having something to hide, not that I’m suggesting that the CLP is in that category of course.
In the interests of caution, I should point out that an investigation with the powers of a royal commission is not a magic bullet solution ensuring that we will get to the complete truth of any situation. Although witnesses before such a body cannot refuse to answer questions, there is nothing to prevent them from having spectacular memory lapses, even if most people regard them as wildly implausible. The appearance of Federal Liberal powerbroker Arthur Sinodinos before the NSW ICAC political donations inquiry graphically illustrates this phenomenon:
In his evidence on April 3, Senator Sinodinos — who stood down from the Abbott ministry pending the inquiry — said “I don’t recall” or “I don’t remember” more than 50 times.
Nevertheless, there is a clear need for such a mechanism in the Northern Territory to maximise the chances that governments will be properly accountable for their decisions and deals to the people who elect them.