FIT AND PROPER: THE LEGALITY OF PARLIAMENTARY INQUIRIES INTO CRIMINAL CONDUCT OF POLITICIANS
Recent calls for a Parliamentary Inquiry to investigate the alleged criminal conduct of the former Attorney-General Christian Porter have been dismissed as contrary to the rule of law. I disagree, such inquiries are both legal and act to balance the rule of law. The executive and legislative bodies should be held to an equal fit and proper standard under the rule of law. I will examine inquiries which make findings of criminal conduct in the process of their decision making. Likewise, I will discuss the distinction between punishment and the removal of statutory entitlements. Ultimately, I will demonstrate that a parliamentary inquiry can and should be established to uphold, rather than contradict, the rule of law.
I THE RULE OF LAW
The rule of law and the separation of judicial power are well-established principles in Australia. In fact, one of the many justifications for the separation of judicial power is to allow the courts to uphold the rule of law. Central to this understanding of judicial power is that courts, and courts alone, exercise the exclusive power of ‘adjudgment and punishment of criminal guilt’. This allows allegations to be heard in front of independent and impartial adjudicators. Importantly, the rule of law seeks to uphold equal application of the law. In other words, officers of the State should not be rendered exempt from the law merely because they hold office. One such example is set out under s 44(ii) of the Constitution which disqualifies members who are ‘convicted and … under sentence, or subject to be sentenced, for any offence under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Whilst Mr Porter does not fall into these categories, as he only faces allegations without charge at this time, it is integral that we understand that government Ministers are held to a higher standard to maintain confidence in public institutions. Intuitively, we want to be able to trust the members we have elected. Having allegations heard and either validated or dismissed reinforces public confidence in the institution. The NSW government acknowledged this benefit in 1988 when it established the Independent Commission Against Corruption (‘ICAC’) in response to several allegations of corrupt conduct. It has worked effectively to expose, publicise, and prevent corrupt conduct in NSW government and corporations. Clearly, having serious allegations against public officers heard publicly is both beneficial to public confidence and ensures officers are held to the standard of the rule of law.
A Fit and Proper Tests
To re-establish trust in government in the wake of alleged misconduct, it is necessary to examine whether parliamentarians are fit to hold their office. The ‘fit and proper person’ test is used frequently as a condition for holding a licence or office in Australia. Whilst the test exists in different forms for different legislative areas, common requirements include no past criminal convictions, no breaches of registration or authority, and public confidence in the person’s suitability. Serious allegations of criminal conduct such as those made against Mr Porter, by their nature, undermine confidence in both the Minister and the institution of Parliament. Hence, an inquiry which applies the fit and proper standards to Ministers ensures that allegations can be resolved and restore public confidence in Parliament. Thus, a fit and proper inquiry has two functions; repairing public confidence in the person by validating or dismissing allegations against them and repairing public trust in government by removing members who have irreparably lost public confidence. As such, it should not be controversial to consider a fit and proper person inquiry into members of Parliament to repair lost confidence and trust.
II DETERMINING CRIMINAL GUILT
Whilst only courts can determine criminal guilt, this does not prevent an executive inquiry forming opinions of criminal conduct. The key distinction here is that forming opinions of criminal conduct is done in the process of decision making. That is, the finding of criminal conduct is not determinative but merely a consideration of the decision maker. For example, in Precision Data Holdings the Australian Securities Commission was empowered to have an inquiry into wrongful or potentially unfair acquisition of shares. To do so, it was required to determine ‘unacceptable circumstances’ of past conduct to ensure a competitive and informed market. Framing the power to ensure a competitive market, based on public interest considerations, was essential to its validity. The High Court concluded that policy considerations distinguish mere administrative opinions of legal obligations from judicial determinations;
[A]lthough… the formation of an opinion as to the legal rights and obligations of parties [is a] common ingredient in the exercise of judicial power… if the ultimate decision be made not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power.
Forming opinions of past criminal conduct according to policy considerations, such as ensuring public trust in public institutions, is not judicial. It does not merely apply legal principles, but examines conduct and its impact on relevant policy considerations. As such, the proposed parliamentary inquiry cannot be established to make a finding of criminal guilt but, can form an opinion on whether the alleged conduct occurred if given sufficient policy considerations. An obvious and acceptable policy consideration is maintaining and repairing public confidence in Parliament and its members. This opinion will be necessary in determining if Mr Porter, and other Ministers, meet the description of ‘fit and proper’ to hold office as a member of the government.
III ADMINISTRATIVE PUNISHMENT
Furthermore, only courts can impose criminal punishment as consequence to findings of criminal guilt. This does not prevent executive and legislative bodies from removing statutory entitlements which were not obtained properly. In Duncan v New South Wales (‘Duncan’) the NSW Parliament passed legislation revoking mining licences which ICAC found to be issued under corrupt pretences. The High Court’s decision in Duncan was based on the removal of statutory entitlements being distinct from the enforcement of existing rights. If statutory rights are removed or powers are non-punitive in their purpose, then they are not exclusively judicial powers. It should be noted that non-punitive purposes have been read broadly to include community harm prevention and prevention of corruption. Gageler J has noted that ‘not… all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment’ rather, only those which have no convincing non-punitive objectives . Likewise, in Kariapper v Wijesinha the Privy Council dealt with legislation which removed parliamentarians from office in Ceylon. Since corrupt members were not qualified to hold office, removing their membership was consistent with removing entitlements, not punishment. This is consistent with s 64 of the Constitution which empowers the Governor-General to appoint Ministers who ‘shall hold office during the pleasure of the Governor-General’. Ministers have no legal right to hold administrative office rather, their office may be removed at the pleasure of the Governor-General. There is some debate in Duncan regarding the necessity of ICAC forming the opinion of corrupt conduct as well as NSW Parliament separately forming an opinion to remove the statutory entitlements. This may constrain the powers of a potential inquiry to merely forming opinions of conduct which may evidence the fitness and propriety of Ministers. What is clear, however, is that an inquiry could make recommendations to the Governor-General or Prime Minister to remove Ministerial office in cases of unfitness. As such, if an inquiry were established to examine the qualifications of members to sit in Parliament according to a ‘fit and proper’ standard, they could be removed from office or, at the very least, be empowered to issue recommendations to the Governor-General to dismiss unfit members.
An inquiry into serious allegations against senior public officers is not only consistent with the rule of law but is necessary to uphold it. As discussed, it is not contrary to the powers of Parliament to empower an inquiry to examine if members are fit and proper to hold office. During the inquiry, they may form opinions as to whether criminal conduct occurred without determining criminal guilt. Likewise, they can remove the entitlements of office and recommend an officer be removed from office without explicitly punishing the officer for their conduct. Thus, Parliament can and should establish a parliamentary inquiry into any and all serious allegations against its members.
By Sebastian Mazay
Blackstone, William, Commentaries on the Laws of England: Vol I (Special ed, 1983) 266-9
Busuioc, E Madalina and Martin Lodge, ‘The Reputational Basis of Public Accountability’ (2016) 29(2) Governance 247
Chichelero, Cesar Augusto, Caroline Ferri and Eduardo Brandao Nunes, 'From an Idealized Separation of Powers to its Practical Problems in the Rule of Law' (2018) 5(1) Revista de Investigacoes Constitucionais 15
Senate Standing Committee on Economics, ‘Provisions of the Financial Sector Legislation Amendment Bill (No. 2)’ (Report, 11 December 2002)
Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Duncan v New South Wales (2015) 255 CLR 388
Kariapper v Wijesinha  AC 718
Pollentive v Bleijie (2014) 253 CLR 629
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Re Cram; Ex part Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
Re Woolley; Ex parte Applicants M276/2003 (2004) 255 CLR 1
Fit and Proper Person Requirements 2011 (Cth)
Gleeson, Justin, ‘It is Not Too Late Prime Minister, To Seek the Advice of the Solicitor General’ The Guardian (online, 11 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/11/it-is-not-too-late-prime-minister-to-seek-the-advice-of-the-solicitor-general>
Hitch, Georgia, ‘Scott Morrison Dismisses Calls for Inquiry into Historical Rape Allegation Denied by Attorney-General Christian Porter’ Australian Broadcasting Corporation (online, 4 March 2021) <https://www.abc.net.au/news/2021-03-04/scott-morrison-inquiry-rape-allegation-denied-christian-porter/13214832>
Independent Commission Against Corruption, ‘History’, About the NSW ICAC (Web Page) <https://www.icac.nsw.gov.au/about-the-nsw-icac/overview/history>
 See Georgia Hitch, ‘Scott Morrison Dismisses Calls for Inquiry into Historical Rape Allegation Denied by Attorney-General Christian Porter’ Australian Broadcasting Corporation (online, 4 March 2021) <https://www.abc.net.au/news/2021-03-04/scott-morrison-inquiry-rape-allegation-denied-christian-porter/13214832>.
 See Cesar Augusto Chichelero, Caroline Ferri and Eduardo Brandao Nunes, 'From an Idealized Separation of Powers to its Practical Problems in the Rule of Law' (2018) 5(1) Revista de Investigacoes Constitucionais 15, 17.
 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 3.
 William Blackstone, Commentaries on the Laws of England: Vol I (Special ed, 1983) 266-9.
 Australian Constitution s 44(ii).
 E Madalina Busuioc and Martin Lodge, ‘The Reputational Basis of Public Accountability’ (2016) 29(2) Governance 247, 254.
 Independent Commission Against Corruption, ‘History’, About the NSW ICAC (Web Page) <https://www.icac.nsw.gov.au/about-the-nsw-icac/overview/history>.
 See generally Senate Standing Committee on Economics, ‘Provisions of the Financial Sector Legislation Amendment Bill (No. 2)’ (Report, 11 December 2002).
 See eg, Fit and Proper Person Requirements 2011 (Cth) s 4.
 Justin Gleeson, ‘It is Not Too Late Prime Minister, To Seek the Advice of the Solicitor General’ The Guardian (online, 11 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/11/it-is-not-too-late-prime-minister-to-seek-the-advice-of-the-solicitor-general>.
 Re Cram; Ex part Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 149.
 See Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 (‘Precision Data Holdings’).
 Ibid, 181.
 Ibid, 189.
 See Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542.
 See Duncan v New South Wales (2015) 255 CLR 388 (‘Duncan’).
 Ibid, 407.
 See generally Thomas v Mowbray (2007) 233 CLR 307; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; see also Duncan (n 17).
 Pollentive v Bleijie (2014) 253 CLR 629, 656 (Gageler J); quoting Re Woolley; Ex parte Applicants M276/2003 (2004) 255 CLR 1, 12 (Gleeson CJ).
 See Kariapper v Wijesinha  AC 718.
 Australian Constitution s 64.
 See generally Duncan (n 17).