FOI Responses from the Productivity Commission

A Member has written to a Commissioner of the Productivity Commission and questioned whether the correct procedures have been followed in relation to his re-appointment by the Hon Bill Shorten MP when Mr Shorten was the Assistant Treasurer.

Under the Section 4 of Commonwealth of Australia Constitution Act Her Majesty the Queen is able to appoint an Administrator of the Commonwealth to “step into the shoes” of the Governor-General when the Governor-General is traveling overseas or has a real or apparent Conflict of Interest.

The Administrator of the Commonwealth is by convention the longest serving State Governor who is currently the Governor of New South Wales, Her Excellency, Professor Marie Bashir.

Both the Governor-General and the Administrator of the Commonwealth have to swear an Oath of Office.

Her Excellency, Ms Quintin Bryce, the Governor-General swore the Oath of Office on 5 September 2008 as follows:

Note the phrase: “I will do right by all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or ill will. SO HELP ME GOD!”

The Hon Bill Shorten MP is married to Ms Chloe Bryce the daughter of Her Excellency, Ms Quentin Bryce, the Governor-General. Mr Shorten is the father of the Governor-General’s granddaughter Clementine.

There a relationship that can be characterised as one of “affection” exists between Mr Shorten and Her Excellency the Governor-General.

To avoid putting Her Excellency, the Governor-General in a position of breaching the Governor-General’s Oath of Office Mr Shorten should make his recommendations for appoints to the Administrator of the Commonwealth, Her Excellency Professor Marie Bashir. Her Excellency can then make the recommended appointment without contravening the Oath of Office, since there is no relationship of “affection” between Mr Shorten and Her Excellency Professor Marie Bashir.

However Mr Shorten failed to adopt the correct procedures as mandated by the Commonwealth of Australia Constitution Act and the common law Rule against Bias (Nemo iudex in causa sua – no one can be the judge of their own cause).

{For the law in relation to non-pecuniary real or apparent Conflicts of Interests refer to Pinochet II}.

Mr Shorten made a recommendation to re-appoint Mr Michael Woods as a Full-time Commissioner to the Productivity Commission to his own Mother-in-Law who then re-appointed Mr Woods!

 

In a request for documents under the Freedom of Information Act received by the Productivity Commission on 24 June 2012 the Member requested:

Copies of any correspondence between the Deputy Commissioner Mr Mike Woods and the Solicitor-General, Mr Stephen Gageler SC, in relation to these matters.

The FOI response dated 2 July 2012 has confirmed that Counsel Assisting the Solicitor-General has forwarded this correspondence to “the appropriate member of the OLSC” for consideration and any necessary reply.

A copy of the correspondence was also sent to an Assistant Commissioner of the Productivity Commission.

Australian Guardians is awaiting the response of the Solicitor-General.

The correct protocol was followed by The Treasurer the Hon Wayne Swan MP when he recommended the appointment of Mr Greg Medcraft to be the incumbent Chairman of ASIC.

Since ASIC has responsibility for the administration of some Superannuation Laws, and Mr Shorten is the Minister of State responsible for Superannuation, Mr Swan made the recommendation of this appointment to the Administrator of the Commonwealth Her Excellency, Professor Bashir, who then using the prerogative powers of the Crown appointed Mr Medcraft to his role in accordance with Section 10 of the ASIC Act 2001 and Section 16A of the Acts Interpretations Act 1901.