Joanne Harrison fraud could lead to shake-up of 300-year-old Parliament rules

Joanne Harrison’s $700,000 fraud at the Ministry of Transport could lead to changes in the rules of Parliament and the protections placed around some of its most important appointees.

The rules, in essence, date back to 1700, when the English Parliament devised a regime to protect judges from improper political interference.

Harrison’s fraud led to Auditor-General Martin Matthews’ forced resignation in 2017 after a parliamentary committee threatened to use the power of the House to “address” the Governor-General and have him formally removed. Matthews was caught up in the Harrison fraud as he was the chief executive of the Ministry of Transport when the fraud took place.

Former Prime Minister Sir Geoffrey Palmer has asked Parliament to consider the issue of how statutory officers such as the Auditor-General are removed from a post, noting that the Matthews case exposed significant flaws in the current rules.

He submitted this to Parliament's Standing Orders committee, which is currently reviewing Parliament's rulebook, known as Standing Orders. Recommendations from the committee will be incorporated into Standing Orders for the next Parliament.

Auditors-General and the other Officers of Parliament, the Ombudsman and the Parliamentary Commissioner for the Environment perform watchdog roles on behalf of Parliament.

The roles are established to be free of undue political interference and can only be deposed if the House decides to "address" the Governor-General asking for them to be removed.

The Matthews case exposed a gap, which was that Parliament's process for removing an officer could become hostage to political pressure and rob the officer of natural justice and proper process. Matthews petitioned Parliament in 2020, asking it to consider the way he was treated.

A parliamentary select committee inquiry considered that petition and suggested the Government review the legislation that underpins those roles, potentially recommending changes to bolster the protections around officers of Parliament.

One possible fix was suggested by former Clerk of the House, David McGee, author of Parliamentary Practice in New Zealand (often known simply as "McGee"). In a submission on that petition, McGee proposed something akin to a change made to protect the independence of judges. In 2004, then-Attorney-General Margaret Wilson passed legislation that prohibited Parliament from removing senior judges unless an external panel found there were grounds to do so. This created an added protection between Parliament and politicians and the judiciary.

One solution to the problem could be through amending the legislation that underpins the officers of Parliament to legislate a more detailed and rigorous way of removing them - something akin to the removal of a senior judge.

Palmer said the Standing Orders Committee should "ask some questions about progress" towards a fix.

"The position remains unsatisfactory and places high officers of state in an invidious position," he wrote.

Constitutional expert and lawyer Graeme Edgeler also submitted to the committee. Edgeler said the committee should look at whether the Standing Orders could be changed to be more specific about the process that should be followed when considering whether to remove an officer from their job.

Sir Geoffrey Palmer thinks changes are needed to the protection of Officers of Parliament. Photo / Mark Mitchell

His submission questioned whether a particular committee might be entrusted with all such inquiries to remove people from their post and to look at what sort of powers that committee could have.

Edgeler wrote that the committee should look at the powers that such a committee might have, and whether it should have the "power to call for people and papers, and the expectation that it may take evidence on oath" and whether the cross-examination of witnesses be allowed.

This could look something like the committee convened by the US House of Representatives to examine the January 6th 2021 attack on the US Capitol.

Edgeler told the Herald the main changes to protect Officers of Parliament would need to come from legislation, but some could also come from changes to Parliament’s Standing Orders.

"The question is what Standing Orders can do versus what a statute can do," Edgeler said.

"What are the House's processes for dealing with this?" Edgeler said.

His submission warned that the House should consider what process it would follow before it was faced with a circumstance in which it would have to put that process into action.

This would include the process the House would take if it was given grounds to remove a judge. This would be slightly easier than the process for removing someone like an Auditor-General, as it would come after the work of an independent panel, but there were still no real rules around what Parliament should do at the point it was forced to consider the removal of a judge.

"What are the House's actual processes for dealing with this?" Edgeler said, noting that in previous cases where judges might have been removed, they had instead resigned.

“It’s going to happen at some point where the person doesn’t just resign. What process does the House have set up to deal with any of this? It doesn’t have a process - it’s going to wing it.”

He said if the House were "lucky" it would first be faced with removing a senior judge - "lucky" because this would only happen after an external panel had found grounds exist to remove the judge.

If the House were "unlucky" it would face another Martin Matthews situation in which it had to devise a process on the hoof to investigate and potentially remove a statutory officer, all the while ensuring natural justice had been adhered to.

"Suddenly it's, 'what do we do?'" he said.

“I think even if they accept the result was correct at the end of the Martin Matthews [situation] - he resigned - they would probably accept the process wasn’t ideal. They should have a sense of what the process involves.”