Prompted by our report ‘ ‘Unlawful’: Lehrmann slams secret corruption hearings, STEVEN FENNELL, who was acquitted of murder by the High Court, digs into the dangers of preventing an investigated person from speaking publicly.
When an investigation is secret, coercive, and one-sided, where does fairness begin? Bruce Lehrmann’s decision to publicly challenge the National Anti-Corruption Commission may ultimately be judged on the particular facts of his case. But there is a much larger question buried underneath the controversy—one that has received remarkably little public attention. Why do democratic governments believe that secret investigations, conducted with extraordinary coercive powers and accompanied by restrictions on what the person investigated may say, are fair? And perhaps the more uncomfortable question is this: Who speaks for the person being investigated? Not the investigating agency, not the government, not the prosecutor, not the media—and, ultimately, not even the person’s lawyer can fill that role if the person themselves is prevented from publicly explaining what happened to them.
The Extraordinary Power of the Modern Investigator
There is an obvious reason for creating bodies with powers beyond those available to ordinary police. Queensland’s history provides the justification. The Fitzgerald Inquiry exposed entrenched corruption involving police, politics, and organised crime. In its aftermath, the Criminal Justice Commission (CJC) was established in 1989 to investigate police and public-sector misconduct, as well as assist with organised crime. Then came the Queensland Crime Commission (QCC) in 1998, focused on organised crime and paedophilia. In 2001, these two worlds were brought together into the Crime and Misconduct Commission (CMC), combining major crime, public-sector integrity, and witness protection. By 2014, the CMC became the Crime and Corruption Commission (CCC). Today, the CCC describes itself as an independent statutory body established to combat major crime and corruption, possessing investigative powers not ordinarily available to police or other government agencies. There is nothing inherently wrong with that; the question is what happens when extraordinary powers become normal investigative tools.
Powers are One Side of the Equation
A coercive investigation can be enormously powerful. A person can be compelled to attend, compelled to answer questions, the process can be conducted privately, information can be restricted from publication, and the person under investigation may be unable to give the public their version of events. The justification is obvious: secret investigations protect witnesses, protect evidence, prevent suspects from coordinating their stories, and protect ongoing investigations. All of that is legitimate, but it creates an equally obvious problem: the more power the State gives itself, the more important the safeguards protecting the individual become. That is the part of the conversation that seems strangely underdeveloped.
What Happens to the Presumption of Innocence When Nobody Can Speak?
Consider the position of an ordinary person who becomes the subject of a powerful investigative body. The State knows what it is investigating, the investigators know what evidence they possess, and they determine which witnesses to interview, which questions to ask, and how to use powers to compel evidence that the ordinary citizen does not possess. When the investigation takes place behind closed doors and the person investigated is told they cannot publicly discuss what happened, something fundamental happens to the balance of power. The State, the investigator, and the institution all have a voice, but the person being investigated may have none. That should trouble anyone who believes procedural fairness is more than a phrase lawyers use in court.
“But They Have Lawyers”
Yes, they do, and lawyers are essential. However, a lawyer defending or advising a person is not the same thing as the person being permitted to explain publicly what has happened to them, nor should legal representation automatically answer the democratic question. Imagine an ordinary citizen saying: “A powerful government agency investigated me, compelled me to answer its questions, conducted the process privately, and then told me I could not publicly explain what had happened.” Would we instinctively describe that as a fair contest, or would we immediately ask what safeguards existed?
The Secrecy Argument is Not as Simple as It Sounds
There is a legitimate case for private investigations. Nobody seriously argues that police should announce an undercover operation before conducting it, that witnesses in organised-crime investigations should necessarily have their identities published, or that investigators should disclose every piece of evidence to a suspect before establishing where it leads. Secrecy can be necessary, but necessary secrecy is not the same thing as unlimited secrecy. There is a world of difference between saying, “We cannot tell the public what we are investigating because doing so would compromise the investigation,” and saying, “We investigated you, but you cannot tell the public what we did.” The first protects the investigation; the second potentially protects the investigator.
The Evolution of Queensland’s Anti-Crime Bodies Deserves Scrutiny
This is where the history becomes particularly interesting. The original architecture was created in response to extraordinary circumstances, responding to a Queensland in which organised crime, police corruption, and political corruption had become deeply intertwined. Over subsequent decades, however, the architecture evolved. The CJC, QCC, CMC, and ultimately CCC became increasingly broad institutions, merging public-sector integrity with major crime functions. That evolution may have been entirely justified, but it creates a question that should be asked openly: Were powers designed for exceptional threats gradually normalised across a much wider range of investigations, and if so, did individual protections evolve at the same speed?
The Problem Isn’t That Investigators Investigate
The answer isn’t to abolish anti-corruption commissions—quite the opposite. A functioning democracy needs independent bodies capable of investigating corruption and serious crime, including circumstances where ordinary police powers may be inadequate. The problem is institutional imbalance. An investigator needs secrecy, coercive powers, and protection from interference. But the individual needs something too: meaningful independent oversight, enforceable procedural protections, access to necessary evidence to challenge serious allegations, a genuine opportunity to challenge unlawful conduct, and eventually a point at which the veil of secrecy comes off. Otherwise, secrecy becomes an institutional shield rather than an investigative technique.
Who Investigates the Investigators?
This may be the most important question of all. If an anti-corruption body investigates an individual and that person believes the investigation itself was unlawful, unfair, or abusive, where do they go? A complaint to another government body? A court proceeding taking years? Judicial review, parliamentary oversight, an ombudsman, or a review mechanism? There is an uncomfortable circularity here: the person may need to disclose what happened to prove it was unlawful, while the very rules imposed upon them prevent them from explaining what occurred. That is a problem worthy of public debate.
Perhaps We Have Accepted the Wrong Proposition
We have become accustomed to hearing that secrecy is necessary because investigations are sensitive. That may be true, but necessity should always prompt a second question: Necessary for whom? Necessary to protect a witness, evidence, or an investigation? Or necessary to protect an institution from public scrutiny? The first three may be essential to justice; the fourth should make every democracy uncomfortable.
And This is Bigger Than Lehrmann
The current controversy provides a convenient opportunity to examine the system, but this isn’t really about whether Bruce Lehrmann is right. He may be right about some things and wrong about others, and his allegations may ultimately be upheld, rejected, or partially upheld by a court. But the larger issue survives whatever happens to his case—it concerns every person who may one day become the subject of a powerful investigative body. The question is whether we have created institutions with extraordinary powers while assuming that the people subjected to those powers can simply trust the institutions to use them properly. Power requires accountability, and the more extraordinary the power, the more extraordinary the accountability should be.
The Question Parliament Should Answer
Perhaps the time has come for Parliament to ask a very simple question: If an investigative commission can compel a citizen to participate in a private investigation and restrict that citizen from publicly discussing it, what corresponding rights does that citizen have—during the investigation itself, not after years of litigation? Who independently speaks for them, scrutinises the investigators, ensures coercive powers are used proportionately, determines when secrecy remains necessary, and decides what the public is entitled to know when an investigation ends? These questions do not undermine anti-corruption bodies; they make them stronger. An institution that genuinely has nothing to hide should not be frightened by scrutiny, and a democratic system that genuinely believes in fairness should never be satisfied with a system where the most powerful participant in an investigation controls it. The question isn’t whether investigators should have power—they must.
The question is whether the person on the other side of that power has enough rights to make its exercise genuinely fair.