Family has made an exceptional contribution to surgery in this State. Recently,
Dr Michael O’Rourke was “press ganged” by Queensland Health to take over as
acting Director of Surgery in Bundaberg, after Jayant Patel fled back to the United States. His
nephew, Dr Nicholas O’Rourke, is one of the outstanding surgeons of his
generation. Other members of their family have also made important
contributions to the practise of medicine in this State. But I want to begin by
saying something about the late Dr Des O’Rourke, brother to Michael and father
is remembered as one of the great Hospital Superintendents, both in Bundaberg
and subsequently in Toowoomba. He was also a real doctor – in the sense that, despite holding the position of
Medical Superintendent, he not only ran those hospitals; he actually performed
surgery and treated sick people.
his kind of Medical Superintendent has become unfashionable in larger Queensland public
hospitals. And Des O’Rourke is probably a good example of why it has become
unfashionable – I am not qualified to comment on his surgical skills, but he
had this bizarre notion that the health of patients was more important that bureaucratic
paperwork or balancing budgets. Little wonder that he had to go. In the end,
the mandarins of Charlotte Street had him frog-marched from the grounds of Toowoomba General.
I am told
that, when Des O’Rourke was Superintendent in Toowoomba, the hospital
experienced a problem with antibiotic-resistant bacteria infecting one of the
wards. His solution was typically practical, although somewhat unorthodox. He
acquired a number of mirrors, and had them set up throughout the ward to shine
sunlight into every nook and cranny. He reasoned – correctly, as it turned out
– that the infectious bacilli could only survive in the dark.
and much more virulent pathogens are threatening the health of this State’s
public hospital system. These parasitic organisms also thrive in an environment
of Cimmerian gloom, and have evolved an immunity to even the most powerful
several species. The more widespread, low level infections consist of two in
particular – Mathematicus fabarum
vulgaris, the common bean counter, and Propellor
papyri molestus, the officious paper pusher. Less common, but more
dangerous, are Simulatus census, the
falsifier of statistics, and Medicus
maledictus, the spin doctor. However, the very worst outbreaks have been associated
with Procurator malignus – the
mordacious bureaucrat. (I note, parenthetically, that the Latin can also be
translated as “the mordacious politician”).
to control these infections by conventional means is worse than useless. Even
if you succeed in getting rid of significant numbers, you eliminate only the
weakest and least harmful. Those remaining are hardier, and even more resistant
treatment which has any chance of success is the antimicrobial ministration
pioneered by Dr Des O’Rourke. These organisms, inhabiting the crepuscular
recesses and crevices of the public hospital system, are susceptible only when
exposed to direct light. Experimentation which I have conducted over recent
months shows that even the threat of exposure sends them into frenzied
paroxysms – like Dracula, they crumble to dust when subjected to direct
Aroney has described the conduct of such organisms as “sociopathic”. In an
attempt to understand what Professor Aroney means by that, I have done a little
research of my own. According to one source, a sociopath appears normal, and is
therefore not easily recognisable as deviant or disturbed. The clinical
indicators associated with this personality type include: glibness or superficial
charm; a grandiose sense of self; a lack of any remorse, shame or guilt;
callousness or a lack of empathy; and a failure to perceive that anything is
wrong with them. Sociopaths are described as authoritarian, secretive,
manipulative, paranoid, and pathological liars.
think that Professor Aroney was guilty of exaggeration when he adopted the
expression “sociopath” might care to look at a particular document generated
out of Queensland Health’s headquarters in Charlotte Street – a so-called “risk
rating matrix”. This document, we were told, is designed to assist staff in
categorising the seriousness of adverse events. A death – whether resulting
from medical malpractice, or resulting from a workplace health and safety
incident – is regarded as a “major” issue. On the other hand, significant
damage to Queensland Health’s own reputation is an “extreme” issue. Who, but a
sociopath, could have designed an official document which rates the death of a
human being – any human being, whether a patient in one of the Department’s
hospitals, or even an employee of the Department – as a less serious matter
than an injury to the Department’s own enviable reputation?
dishonesty of Queensland Health with respect to waiting list figures is another
example. To borrow Andrew Lang’s aphorism, Queensland Health uses statistics as
a drunken man uses lampposts – for support, rather than for illumination.
What is the
extent of this pestilence? To describe the situation as an epidemic is no
exaggeration. “Pandemic” is perhaps a more accurate term. The best figures I
have been able to obtain suggest that the total staff of Queensland Health is
about 64,000. Of these, fewer than 1,500 are doctors, and some 13,000 are
nurses. For every single healthcare professional who actually provides clinical
services to patients, there are four other people on the Queensland Health
payroll. To be fair, these include some people who perform vital functions –
wardsmen and caterers, cleaners and laundry staff, gardeners and maintenance
personnel, laboratory technicians, electrical and mechanical engineers, and so
forth. But the fact remains that some 50,000 people – four out of every five
employees – are performing non-clinical duties.
are the consequences of this plague? Seventy years ago, Queensland led – not only Australia,
but the entire English-speaking world – in the provision of a universal free
public hospital system. We pre-empted, by more than a decade, the National
Health Service in Britain.
As recently as thirty years ago, we not only had the best free public hospital
system in Australia – in
fact, we had the only such system in Australia. In a
mere three decades, Queensland has gone from the top to the bottom of the list
– from the best to the worst – regardless of which comparative criteria you
and nurses are amongst the lowest paid in the country. Our waiting lists are
amongst the longest. The ratio of medical practitioners to population is
amongst the poorest. Mortality rates are amongst the highest. Per capita
expenditure on public health is amongst the least – and is falling further
behind as each year passes.
good demographic reasons why Queensland should be spending more on medical
care than any other State or Territory. Geographically, we are one of the
largest and most decentralised States – the only mainland State in which more than half the population lives outside the capital. We have an
ageing population, fuelled by retirement refugees from the Southern States;
but, at the same time, our workers are more likely to be employed in physically
arduous and dangerous occupations, such as the mining and agricultural
industries. We face the unique challenges of sub-tropical and tropical diseases
– the health consequences of being the “Sunshine State”.
At one extreme, we are exposed to the epidemiological factors affecting the major
population centre in the South-East of the State – soon to be, if it is not
already, the second-largest urban concentration in the country. At the other
extreme, we must meet the very different (but equally significant) challenges
involved in the provision of health-care to regional, rural and remote communities
– communities which are as far from Brisbane as Moscow is from London, as remote
from Charlotte Street as Hong Kong is from Singapore.
In the 1930s,
when Queensland established the first universal free public hospital system in the
English-speaking world, we were one of the poorest States in the nation. We are
now, on a per capita basis, one of
the richest. Since the mid-1970s, the Federal Government has taken over
responsibility for a large proportion of the cost of providing public medical
services. Yet, in the same three decades, we have allowed our public hospital
system to fall into a condition of decrepitude. That this has happened is an
indictment on governments of all political complexions. And it is a searing
indictment on the bureaucrats who have presided over the collapse of a medical
infrastructure which, at its prime, would truly have justified us in calling
ourselves the “Smart State”.
When we come
to the Jayant Patel phenomenon, what we should understand, very clearly, is
that it was never more than a secondary infection – an opportunistic or
adventitious disease, which took advantage of a body already weakened and
debilitated by years of malnourishment, and bedridden by the primary infection
which had destroyed all of its defence mechanisms.
public hospital system was already moribund, Jayant Patel could not have caused
any harm, whether in Bundaberg or anywhere else in the State. There was no
shortage of safety measures, supposedly in place, to prevent such a biomedical
disaster. Even if one or two had failed, others should have cut in. For Patel
to have practised as a surgeon at Bundaberg for two whole years, killing and
maiming dozens of patients, required an environment in which every line of defence had been breached
– or had simply disintegrated through neglect.
with, it required a Medical Board which made no serious attempt to check his
credentials – despite their having documentation, provided by Patel himself,
which, on close scrutiny, would have alerted any careful enquirer to unresolved
problems in Patel’s professional background. It required a Medical Board which
was content, without adequate enquiry, merely to take Patel’s word that he was
duly qualified and fit to practise surgery in Queensland.
It cannot be
said that the Medical Board had no warning of the deficiencies in its processes.
Just months earlier, it had discovered a similar mistake, when it had taken the
word of a man named Berg – an alleged paedophile, convicted of theft on two
Continents, and self-proclaimed Bishop of the Russian Orthodox Church – that he
was duly qualified and fit to practise psychiatry in Queensland. For Patel even
to come to Queensland required a Medical Board which had learnt nothing from its past mistakes, even
after Berg was exposed as a fraud.
required a Medical Board willing to assume that a private employment agency – a
firm which expected to earn about $13,000 for placing Patel in Bundaberg – had
conducted all the necessary checks with Patel’s previous employers and
It is almost
1,000 years since the first recorded system of medical registration was
instituted by a wise ruler – Roger, the Duke of Salerno. He decreed: “Who from
now on, wishes to practise medicine, has to present himself before our
officials and examiners, in order to pass their judgment.” It may fairly be
said that the Medical Board, in Queensland,
has turned back the calendar to the Dark Ages.
So much for
the Medical Board.
presence in Queensland required a public hospital system, willing to employ him as a surgeon, without
making even the most rudimentary inquiries or investigations regarding his
previous employment or professional standing. A private company would be
expected to take more care in employing a night-watchman. If Patel had applied
for a job, stacking shelves at Woolworths, he should have expected to face more
rigorous integrity checks.
Patel’s employment in Bundaberg required a health system which was driven by
budgets, statistics, and other bureaucratic falderal – a health system which
was totally oblivious to the welfare of patients. The primary object in
appointing Patel to the vacant surgical position was to find somebody – anybody
– who could be relied upon to work long hours for a modest salary, without
making waves with his bureaucratic masters. The standard of his surgical skills
was an irrelevancy. There is no other explanation for the fact that Patel was
appointed to Bundaberg as an “area of need”.
It should be
understood that the “area of need” concept was implemented by government with
the perfectly sound object of protecting remote communities, which may be
unable to attract a doctor who has either been trained in Australia, or been
assessed as having training and experience equivalent to Australian standards. The
intention was that, if such a community could not attract a doctor who
satisfies Australian standards, they would be better off with a doctor who
doesn’t satisfy Australian standards, than to have none at all. But this entire
concept was corrupted, it was perverted by the Charlotte Street bureaucrats, and turned
into a kind of “secret passage” to inveigle the likes of Jayant Patel into our
Not only in
Bundaberg, but throughout the State, hospital administrators were granted “area
of need” approval merely for the asking. This was critical to the Patel
phenomenon. The fact is that, without “area of need” approval for Bundaberg,
Patel could never have worked there. Without such approval, Patel would have
had to submit his credentials to scrutiny by the Royal Australasian College of Surgeons – and
it is highly improbable that they would have been so lacksidasical as the
Medical Board in overlooking Patel’s erratic past.
describe Bundaberg as an “area of need” is laughable. Bundaberg not only
possesses one of the top dozen public hospitals in Queensland; it also has two private
hospitals, which surely would have closed their doors long ago, if it were
truly an “area of need”. First class surgeons – surgeons of the calibre of Dr
Brian Theile and Dr Pitre Anderson – were living and working in Bundaberg, but
were not welcome at the public hospital. Other surgeons – competent and even
outstanding surgeons like Dr Charles Nankivell, Dr Sam Baker, and Dr Lakshman
Jayasekera – had been willing to work in Bundaberg, but were driven off by a
public health system which did not value their qualities. Dr Geoffrey de Lacy –
an exceptionally competent surgeon and former director of surgery at the QEII
Hospital in Brisbane – arrived in Bundaberg shortly after Patel, but was turned
away from the Bundaberg Base Hospital, because they already had what they
wanted in Jayant Patel.
bureaucrats, had exactly what they wanted: a compliant surgeon. A surgeon who
could be trusted to fill in the right forms – no matter whether the information
which he entered into the forms bore any resemblance to the truth. A surgeon
who would show respect, deference even, to the non-clinicians who presided over
the hospital’s administration – no matter that he was intolerably rude to
lesser mortals amongst the hospital staff, such as the nurses and junior
doctors who actually looked after patients. A surgeon who was ready to move
into action at a moment’s notice – no matter that he didn’t bother to wash his
hands after going to the toilet, or to change his surgical gown after slipping
out to the carpark for a quick fag – no matter even that he didn’t bother to
ensure that the patient was properly anaesthetised before starting to work with
the scalpel. A surgeon who not only operated within his budget, but even made a
positive contribution to the budget, both by achieving the hospital’s quota for
elective surgery, and by helping to educate a new generation of surgeons with
his own unique insights into surgical practice.
Why would any
bureaucrat want to work with Brian Thiele, or Charles Nankivell, or Sam Baker,
or Geoff de Lacy – Australian-trained surgeons of impeccable standing and
ability – when they had the choice of a Jayant Patel? All else aside, just
think of the money which Patel generated for the Bundaberg Base Hospital. Under the
Byzantine system of “weighted separations” adopted by Queensland Health,
hospitals are rewarded for doing especially difficult or dangerous elective
surgery, and the rewards are even greater if the patient is seriously ill. Who
but Patel could have been trusted to perform operations – operations which were
both unnecessary and impossibly complex – on patients who were already close to
death’s door, merely to fill the hospital’s coffers with much-needed pieces of
silver? And if the patients died – as they often did – so much the better:
post-operative care is an expensive business, and Queensland Health offers no
financial incentives to hospitals which actually keep their patients alive.
I am not sure
how widely understood it is, even now, that Patel was never accredited as a
surgeon in Australia.
Under Australian law, he could not have obtained a “provider number” to
practise surgery anywhere in the country. Under Queensland law, he was not entitled even to
call himself a surgeon. But that meant nothing to Queensland Health. Of the
unsuspecting patients on whom Patel was foisted by Queensland Health, not one
was told that the man, held out by Queensland Health as its “Director of
Surgery”, was not even qualified to be called a surgeon in this country.
how Patel got to Bundaberg. But for him to be appointed as Director of Surgery,
the local hospital administration had to break every rule in the book.
employment at Bundaberg had been approved by the Medical Board on the condition
that he be supervised by the Director
of Surgery – nobody thought to mention to the Medical Board that Patel was in
fact going to be employed as the
Director of Surgery, not supervised by anyone. Make no mistake about it: from
his first day in office, Patel was acting illegally – with the active
connivance of Queensland Health’s bureaucrats.
and privileging procedures are supposed to ascertain a specialist’s level of
competence, and to set limits for the procedures which he or she is permitted
to undertake. In Patel’s case, these procedures were simply ignored. There was
not even an interview panel – or any of the other usual and proper processes –
to fill the vacancy.
accepting all of the misadventures which led to Patel’s appointment as Director
of Surgery in Bundaberg, there were still further safeguards, supposedly in
place, to protect patients.
peer review systems, such as Mortality and Morbidity Committees – systems by
which the performance of one surgeon is supposed to be reviewed by his or her
professional colleagues. Those systems ought to have picked up problems with
Patel’s surgical practice. But Patel himself, as Director of Surgery, was put
in charge of such systems for the Surgical Department at Bundaberg. Not
surprisingly, the systems over which he was appointed to preside failed to
detect his own incompetence.
Bundaberg had every safeguard imaginable – and then some – to detect and deal
with such medical disasters: every committee, every clinical forum, every
departmental meeting, every system for recording and documenting adverse events
and complaints. Even the most fastidious bureaucrat, conducting an audit of Bundaberg Hospital ’s quality assurance systems,
could have ticked every box. Surely, with this state of the art array of alarm
bells, one of them had to go off, sooner or later!
The truth is
that the alarm bells did start to sound, perhaps faintly at first, but fairly
quickly nonetheless, and with increasing volume as the body-count mounted. However,
an alarm bell is utterly useless, unless someone is listening – someone, that
is, in a position of authority, both willing and able to react.
The suite of
executive offices at the Bundaberg Base Hospital is far removed from the clinical departments of the hospital. The occupants are
hermetically sealed behind glass doors. Is this to maintain an appropriate
air-conditioned ambience, which ensures that their working environment is
optimised, so as to allow them to fulfil their heavy burden of paper-shuffling
and navel-gazing during the few brief hours when they are in attendance? Or is
it to keep out the undesirables who might interrupt their deep cogitation on
important budgetary and administrative issues – undesirables such as sick
people or, worse still, people who look after sick people?
offices may be remote from the clinical departments of the hospital – both
physically and spiritually. But, by Christmas of 2004, at the very latest,
those offices were reverberating to the tintinnabulation of alarm bells. Still,
calibre of the bureaucrats inhabiting the executive offices at Bundaberg –
itself a very significant contributing factor to the Patel phenomenon – was
merely symptomatic of a far more fundamental malaise within Queensland Health. People
of that character, occupying such positions, are not employed by chance. From
my observation, most of these individuals would not even make the short-list
with a private sector employer, seeking a manager for a far less complex
business, with fewer staff and a much smaller turnover than Bundaberg Base Hospital’s multi-million
dollar budget – say, a Coles supermarket, or a McDonalds hamburger restaurant.
comparisons are, however, unfair. Private sector employers look for managerial
staff who are resourceful – who have judgment and discretion, presence of mind,
initiative – who are innovative, progressive and proactive. Those same
qualities in fact disqualify a person from appointment or promotion
within the Queensland Health bureaucracy. District Managers, Directors of
Medical Services, and the like, are not expected to think for themselves; in
fact, they are not even allowed to. The reality is that the executives in
Bundaberg did exactly what was expected of them – no more and no less – and the
real blame lies with the architects of a system which set them up to fail.
One of the
ultimate protections against medical malpractice – at least in cases where it
produces fatal consequences – is the Coroners
Act, under which it is mandatory to report any death which “was not
reasonably expected to be the outcome of a health procedure”. But even that did
not stop the Patel juggernaut. Of the 13 deaths which have been identified as
connected with sub-optimal care on his part, only one was reported to the
coroner. Of the remaining 12, none was the result of emergency surgery – they
were all “elective” operations, in the sense in which that term is used by
Queensland Health: in other words, they were operations where the patient’s
survival did not depend upon urgent
surgery. Without the benefit of the Patel experience, one might have thought
that any death resulting from
“elective” surgery would be regarded as unexpected.
Conan Doyle – the Scottish medical practitioner who created the character of
Sherlock Holmes – observed that: “When a doctor does go wrong he is the first
of criminals. He has nerve and he has knowledge.” The Coroners Act certainly offered very little challenge to a man of Patel’s
ingenuity. So what, if a patient like Mr Kemps died in the course of elective
surgery? The cause of death was clear enough – massive blood loss. And how
could anyone say that a death is unexpected, when the patient has suffered
massive blood loss – that is exactly what you would expect! So, of course,
there was no need to report the matter to the coroner! But, just in case, we
had better get the most junior and inexperienced doctor on the surgical team to
sign the death certificate – after all, when you have a medical career as
chequered as Jayant Patel’s, you don’t want to go around signing bits of paper
which may come back to haunt you.
There is one
final line of defence in our medical system against the likes of Jayant Patel. When
all else fails, there remain the loyal, hard-working, competent and
conscientious clinical staff – the Toni Hoffmans and the Peter Miachs of this
world – to blow the whistle. They are the white blood cells in the medical
system’s body politic – the final, natural, defensive barrier against dangerous
parasites and pathogens.
though, the worst of the pathogens which have infected the body politic of
Queensland Heath – Procurator malignus,
the mordacious bureaucrat – is in the nature of a retrovirus: its first function
is to destroy the body’s natural defences, to kill off the white blood cells
which protect the body from infection and disease. Whistleblowers are lucky if
they are just ignored – the moment they show any sign of being effective, the
retroviruses go all out to destroy them first.
That is why
it takes courage – extreme courage – for a Toni Hoffman or a Peter Miach to
blow the whistle. They are acutely aware of the consequences: the risk of being
sent to Coventry; the risk of facing trumped-up disciplinary complaints; the
risk of having their work hours re-scheduled to less convenient times; the
risks to their prospects of career advancement; indeed, the risks to their
entire careers. But white blood cells are like that – they go into battle
against dangerous pathogens, despite every risk that they will be destroyed in
As I have
said, the only treatment which can work against these dangerous pathogens is
the treatment pioneered by Dr Des O’Rourke – to expose them to light. That is
what Toni Hoffman did, with the assistance of Mr Rob Messenger and Mr Hedley
Thomas. I am confident that there are many others out there – nurses and
doctors – prepared, if necessary, to take the same risks and make the same
sacrifices as Toni Hoffman, for the ultimate protection of patients. But the
viability of our public health system cannot be left to depend on individuals
willing to take such risks or to make such sacrifices.
Forster has suggested some changes to our public health system. He has suggested
that more money is needed, and he is undoubtedly right. He has suggested that
some bureaucrats have to go, and again he is undoubtedly right. But he does not
seem to have suggested any systemic changes which will ensure a full and
permanent recovery. He has offered symptomatic relief, but he has not treated
the disease. He has prescribed a course of antibiotics, which may reduce the
number of dangerous pathogens, but will not eliminate all of them – and which
may well leave the most virulent even stronger, and more resistant to control.
Queensland Health really needs is systemic reform – changes which will ensure
that the curtains are torn down, and that light floods in to every dark corner
and corridor, so that the pathogens can no longer fester in the impenetrable
gloom which is their natural habitat:
We need added protection for “whistleblowers” in
the public health system, including provisions enabling people to report their
concerns to Members of Parliament, unions, professional associations, and the
We need to address the impossible conflict of
interest which exists within Queensland Health, which is currently both the
largest provider of healthcare services in this State, and also the principal
regulatory body overseeing the provision of healthcare services.
We need to create both the appearance and the
reality of genuine independence, by stripping away from Queensland Health, and
investing in a separate commission, responsibility for matters such as the
registration, credentialing and accreditation of health practitioners and
health facilities; monitoring of internal and external complaints; clinical
audits and reviews; maintenance of institutional standards across all
Queensland Hospitals and healthcare institutions; and oversight of professional
standards and disciplinary issues.
We need to give local communities,
particularly outside Brisbane,
“ownership” of their own hospitals, and a genuine role in the decision-making
We need to ensure that practising
clinicians – doctors and nurses, and allied healthcare professionals – have a
genuine role in overseeing hospital management.
We need to address the reputation of Queensland
Health for “bullying” staff, and for adopting a “shoot the messenger” attitude.
We need to re-educate – or replace –
administrative and managerial staff, particularly at District and hospital
level, to be an effective part of the clinical team, rather than remote and
aloof from the day-to-day clinical activities undertaken within a hospital.
More than anything else, we need to change the
culture within the Department’s administration, to ensure that clinical
problems are addressed in an open, frank and honest way, so that members of the
general community are not given unrealistic expectations as to the services
available to them from the public health sector; so that individuals can plan
their own health needs and requirements in full knowledge of any limitations or
delays existing in the public sector; so that members of the community who are
dissatisfied with the level of services available in the public sector can
express their concerns, in the appropriate democratic way, through the ballot
box; so that administrators and clinical staff can sensibly plan and budget to
provide the best healthcare service possible within available funding; and so
that individual clinicians, both within and outside the public sector, can
provide meaningful and realistic advice to patients regarding their prospects
of receiving appropriate and timely treatment in the public sector.
are a very minimum. But they are required, not only to ensure that a Patel-like
situation never occurs again: Without such measures, Queensland will never
again have the world-class healthcare system which is appropriate for a community
in which the expression “Smart State” is something more than a glib political
One of the
great public hospitals in this State is named in honour of Prince Charles, the
Prince of Wales. Speaking about the (British) National Health Service, His
Royal Highness once asked rhetorically: “Is the whole of the health care system
– and the confidence of the public in it – not undermined by the publicity
given to what goes wrong, rather than the tiny miracles, wrought day in day
out, by an expert, kind and dedicated staff?”
respectfully agree. There is much to be admired in our public hospital system –
and no feature of it is more admirable than the expert, kind and dedicated clinical
staff. They perform miracles, and not just tiny ones, on a daily basis. But our
community will not be helping the clinical staff if we do not address the
systemic problems which are corroding the entire edifice in which they work. The
steps which I have suggested may not cure all the ills in Queensland Health –
but they will certainly carry us a long way in the right direction.
that most of you have come here today in the hope – possibly even the
expectation – that I will say something controversial. Far be it for me to
disappoint you. Given that all I have said so far is fairly mundane, I should
like to end by saying something about the circumstances of my removal as Chair
of the Bundaberg Hospital Commission of Inquiry.
It would, of
course, be completely inappropriate for me to question the correctness of
Justice Moynihan’s decision. But what I wish to say is this: on the assumption
that decision of Justice Moynihan correctly states the law in Queensland, the law must be changed. I say
that, essentially, for four reasons.
foremost, the success of a public inquiry depends on attracting and maintaining
the support and goodwill of the public. In a nutshell, the public need to know
that the inquiry is “fair dinkum”. Public confidence is vital.
is essential that any Inquiry Commissioner must have a sufficient scope of
discretion to decide which witnesses are called, and when – to decide the
forensic strategies and tactics which are best calculated to bring out the
truth – even if that involves treating some witnesses differently from others.
public inquiries must be informed by what Justice Thomas has called “a sense of
social, political, moral or economic direction”. For a judge in a court of law,
there is a roadmap – it may sometimes be imperfect, sometimes ambiguous, sometimes
incomplete – but a roadmap nonetheless. That roadmap is the law, comprising
Acts of Parliament, regulations and other subordinate legislation, and previous
judicial decisions. But public inquiries do not have any such roadmap: they
must navigate by dead reckoning, informed by their own moral compass.
and final reason is the most important. As the word “inquiry” implies, the
process is an investigative one. The idea that one can conduct any kind of
investigation, with a mind that is a blank canvass, is simply farcical.
It was a
great personal honour and privilege to be asked by the Premier to head the
Bundaberg Hospital Commission of Inquiry. But, like most honours and
privileges, I sensed that it carried with it certain duties. To my mind, my
foremost duty – and I make no apology for this – was to ask the questions and
pursue the issues which I imagined that the people of this State would want
answered, if they had the opportunity to confront the witnesses who appeared
If the person
chairing a public inquiry is prohibited by law from forming and voicing
suspicions, drawing inferences, and developing hypotheses, then we might as
well give up. There is simply no point in having Commissions of Inquiry, or
Royal Commissions, whilst the law in Queensland remains as stated by Justice Moynihan.
Bundaberg Hospital Commission of Inquiry has any lasting influence on the
conduct of public inquiries generally, I hope it will flow from the successful
experiment of allowing the proceedings to be televised. My fear, however, is
that Justice Moynihan’s decision will lead future public inquiries in a very
different direction: away from the ideals of openness and transparency which
were my touchstones, and towards a recognition that any attempt at openness and
transparency increases the risk of a successful judicial challenge. If that
were to happen, I think that the public would be the losers.
That is why I
say to you, on the assumption that Justice Moynihan’s decision is correct in law,
that the law must be changed. Fortunately, our constitutional system of
government already embodies a procedure which permits public inquiries to be
conducted without fear that they will transgress Justice Moynihan’s ruling. Parliamentary
inquiries – including inquiries conducted by Parliamentary commissioners – are
exempt from judicial scrutiny. They are not subject to judge-made rules of the
kind applied by Justice Moynihan. They are accountable only to the Parliament
and, through the Parliament, to the electorate.
I see a
future in which there are no more Royal Commissions or Commissions of Inquiry
in this State – a future in which public inquiries, like the Bundaberg Hospital
Commission of Inquiry, will be conducted by Parliamentary Commissioners, free
of judicial oversight, but subject to the ultimate control of the legislature
and the electorate.
And that is how it
should be. Serving judges have withdrawn from participating in public
inquiries, for the very reason that such inquiries are properly viewed as part
of the political process – part of the legislative/executive branch of
government – rather than an exercise of judicial power. The next logical step
is to recognise that, as part of the democratic processes connected with the
legislative and executive branches of government, public inquiries should be
exempted from oversight by unelected judges, and brought under the direct
control of the State’s foremost democratic institution, the Parliament.