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28 September 2005
Dr Janet Ransley,
School of Criminology and Criminal Justice,
Griffith University
Fair Play and the Bundaberg Hospital Commission of Inquiry?
I should like to comment on your article concerning the failure of the Bundaberg Hospital Commission of Inquiry.
My interpretation of your article: Bundaberg Hospital inquiry went wrong because inquiries are tricky, and eminent and respected commissioners are required. However, while fearless investigation is needed, excessive play to the public gallery compromises fairness. Investigative processes should be fair to all. The judge did not just find that the inquiry was excessively sympathetic to patients and frontline staff and rude and sarcastic to those pejoratively labelled bureaucrats; he found in effect that a reasonable observer could conclude that the commission's mind was made up without testing evidence. The unfairness was cumulative. Cross examination was restricted and the commission reached conclusions in its interim report based on untested evidence from favoured witnesses. Any new inquiry would need to start again. Other investigative bodies could act, but the public lacks confidence in their independence. The problems with the Morris inquiry do not cure this with intense mistrust of the bureaucracy that has been generated. Regular investigative bodies need to lift their game (Ransley J., 'Fair play must rule', Courier Mail, 5/9/05).
I share your expressed concerns about an apparent bias by the Bundaberg Hospital Commission of Inquiry which could lead a reasonable observer to conclude that the commission's mind was made up without properly testing the evidence.
Unfortunately similar bias and unfairness (especially against experienced Public Servants) has been common in Queensland (and has apparently had bipartisan political support) for over a decade. Moreover this is arguably one of the primary causes of the organizational dysfunctions that have emerged in Queensland Health.
For years there has been no serious requirement for professional merit to be considered in making 'senior' Public Service appointments. Your article noted that it was wrong for the Bundaberg Hospital Commission to give the appearance of making up its mind before properly testing evidence. However I would like to draw your attention to a determination by the Ombudsman that it would actually have been legally wrong to have allowed evidence (of professional merit) to be considered in making an official determination (about the process of making a senior appointment) - see Ombudsman's Reasons. The Ombudsman's Office argued that considering evidence was not needed because Parliament had legislated to prevent appeals against SES appointments. It also remarked that that legislation could lead to irresolvable injustices.
However injustice has not been the only consequence of encouraging administrative decisions on the basis of bias, rather than requiring relevant evidence to be considered. Many, though not all, of the problems in Queensland Health (which seem to be replicated elsewhere in the public sector) are likely to be the result of defective procedures for making 'senior' appointments (see Intended Submission to Health System Royal Commission). For example, because those procedures have in practice favoured cronies and 'yes men', the result is that:
The requirements for a successful commission of inquiry are thus not limited to the points you discussed.
It is also necessary that a commission have wide enough terms of reference.
As the
Intended
Submission to Health System Royal Commission suggests, this was clearly
not the case for the Bundaberg Hospital Commission of Inquiry, while the terms
of reference of its successor (the Queensland Public Hospitals Commission of
Inquiry) are reportedly even narrower.
Regards
John Craig