This is the third commentary on this Bill which is set for a public Parliamentary Committee hearing on 24 March 2025, ahead of a Committee Report on 11 April 2025.

The first two commentaries dealt with how the Commission is to deal with public statements and reports and the proposed protections in respect of reputational damage for those affected by them.

This commentary examines strengthening review mechanisms, reputational repair protocol, and oversight by parliamentary commissioner as safeguards to ensure the Commission is accountable for the way in which it produces statements and reports.

Strengthening Review Mechanisms

The Holmes Review noted “…the predicament a person can find themself in if an anticorruption commission issues a report that includes findings they have engaged in corrupt conduct if there is insufficient evidence to warrant a prosecution so the person ‘never gets [their] day in court’ and can never clear their name”. (Holmes Review p 246) This potential predicament ultimately led the Queensland Human Rights Commission to submit that consideration should be given to “including mechanisms to challenge [decisions to report] and/or adverse findings in public reports”. (Holmes Review p 246)

A submission that a Supreme Court challenge to a report should extend to review on the ground that the findings made by the Commission “could not reasonably be supported by the evidence” was considered by the Holmes Review. This submission pointed to a similar appeal avenue to the District Court from findings made by a Coroner at an Inquest. (Holmes Review p 246)

The Holmes Review concluded “judicial review may be an imperfect safeguard, but the solution is not to introduce … merits review”. (Holmes Review p 248) This is against the background of the Review noting that in relation to judicial review, there is the difficulty of seeking relief “both in terms of proving a case and assembling the monetary resources to mount it”. (Holmes Review p 9)

Despite the Review’s conclusion, it is argued that as a policy measure, merits judicial review should be introduced to hold the Commission more accountable and as means of fully protect reputational rights arising from the Commission’s public statements and reports.

Reputational Repair Protocol

A reputational repair protocol is another desirable review mechanism. The Holmes report details “the Office of the Inspector in NSW has raised the idea of an exoneration protocol in a number of reports starting from 2016.” (Holmes Review p 248) This idea had been rejected by the Parliamentary Committee in 2016, and again in 2021. (Holmes Review p 248) That appeared to be because an exoneration protocol has been conceived of as some form of “merits review” of the kind that would confuse the role played by the Commission with the role played by a Court, according to the Parliamentary Committee. (Holmes Review p 248) Moreover, a person is not exonerated just because they are “subsequently acquitted or their prosecution is discontinued”. (Holmes Review p 248).

To reject having an exoneration protocol simply because it “would confuse the role played by the Commission with the role played by the Court” is, with respect to, an inadequate justification for rejecting an exoneration protocol.

Oversight by Parliamentary Commissioner

In relation to the separate issue of further expanded oversight powers of the Parliamentary Commissioner, the Holmes Review outlined the Independent Commission Against Corruption Act 2012 (SA) “requires the South Australian Inspector – who helps to oversee the [South Australian] Independent Commission Against Corruption – to consider whether the Commission has exercised its powers in an appropriate manner”. (Holmes Review p 251) This includes whether the Commission has “invaded privacy unreasonably or caused undue prejudice to a person’s reputation”. (Holmes Review p 251)

Particularly having regard to the significant current limitations in relation to Judicial Review in Queensland, the power of the South Australian Inspector should too be given to the Queensland Parliamentary Commissioner.