Conflicts of Interest
The appointment of investigators or inquiry officers to examine public interest disclosures by whistleblowers, where it may be in the interests of that decision-making officer to make findings or recommendations in their own interest, is an important tactic that allegedly may have been used by watchdog authorities and agencies seeking to suppress disclosures.
The practice used by watchdog authorities, of referring allegations made against agencies back to those same agencies to investigate, may allegedly be totally dependent on conflicts of interest to secure a suppressed outcome.
Recent examples where the conflict of interest issue arose with quasi judicial inquiries may indicate the variety of situations that can arise and the variety of responses that decision-makers can take to reduce concerns about conflicted interests:
- The Queensland Floods Commission of Inquiry. Here one of the three Commissioners had acted as a consultant for one of the agencies under inspection by that Inquiry. The Commissioner was suspended from hearing matters related to that agency.
- Presiding Commissioner Carmody of the Queensland Child Protection Commission of Inquiry, was selected to inquire into the Heiner Affair where earlier, as the head of the Queensland Crime Commission [QCC] in 2001, he faced allegations regarding the treatment of public interest disclosures about the Heiner Affair. Commissioner Carmody failed to disqualify himself from hearing the Heiner matters. In doing so, Commissioner Carmody ruled that he avoided any contention that he was in a conflict of interest situation by examining only the actions by elected officers of the government (i.e. the political Executive, the Cabinet) and by not examining the actions by appointed public officers such as he had been when head of the QCC.
The implications, for any appointed officer named in the Heiner allegations, arising from Carmody’s findings about the actions of elected officers, may have pointed to a continuing perception of a conflict of interest[1] in his findings about the (shredding) actions of Premier Goss and the 5 March 1990 Goss Cabinet in his 1 July 2013 Report[2]. These matters, however, were put to Commissioner Carmody directly during the recusal hearing on 24 July 2012 but he rejected this argument by adopting a strict narrow interpretation of what the term “government” was to mean. Contrawise, lawyers for whistleblower Lindeberg argued that the term had to mean “whole of government” to properly understand what the Heiner affair was all about.
More recently, the CCC undertook, in writing on 2 March 2015 to the Heiner whistleblower, Kevin Lindeberg, that the CCC would use an interstate senior judge to assess the allegations made about certain sitting Queensland judges, and others, associated with the destruction of the Heiner documents and the alleged cover-up. Inter alia, the shredded documents concerned child abuse and child sexual abuse in their contents. This was an undertaking by the CCC so as to reassure the whistleblower and the public interest that any conflicts of interest that may exist or may be perceived to exist would be properly avoided. Without telling the whistleblower and in conflict with its undertaking, however, the CCC then appointed a retired Queensland senior judge to do the preliminary inquiry.
Where a government regularly or repeatedly ignores this conflict of interest issue in clear situations, confidence may be lost that the government is even considering the conflict of interest issue at all. The perceptions gained by the public from the accumulation of such allegations over repeated cases may lead to a change of confidence in the judicial and inquiry systems overall.
Conflicts of interest situations, repeatedly created by government watchdogs and agencies for the conduct of inquiries, investigations and reviews, may too easily create a vulnerability in those inquiry processes. That vulnerability may have a tendency that undermines effective whistleblower protection, let alone the impartial administration of justice. Conflicts of interest involving apprehensions of bias in decision-makers must always be assiduously avoided. When the corruption being suppressed is allegedly so serious, governments may appear to lack the confidence to undertake investigations unless their outcome has been ‘pre-determined’, and/or rendered safe by a ‘fear & favour’ appointment. Specific provisions in whistleblower legislation strictly prohibiting the appointment of conflicted persons or entities to investigate public interest disclosures, including disclosures of reprisals, may be required. When that decision-maker person appointed may have a real or apprehended conflict of interest in the matter under review, an injunction process paid for by the agency or a Whistleblowers Protection Body which then bills the agency, may greatly deter agencies and watchdogs from an alleged tactic upon which governments allegedly may now seem to place great reliance.