15 May 2014

Queensland Government enacts significant changes to corruption watchdog legislation

by Eleanor Dickens, Barry Dunphy

Queensland agencies, Chief Executive Officers and their delegates must now reconsider and redefine integrity policies following changes to the Crime and Misconduct Commission's functions.

The Crime and Misconduct Commission Amendment Act 2014 was recently passed by the Queensland Parliament and introduced a range of significant changes to the functions, operation and governance arrangements of Queensland's corruption watchdog, the Crime and Misconduct Commission (CMC). These changes contain some of the most significant legislative changes to the CMC's legislative framework since the initial establishment in 1989 of the CMC's predecessor entity, the Criminal Justice Commission.  

In this article, we will highlight the key changes made by the Amendment Act.  

Background to the Amendment Act

The changes implemented by the Amendment Act are the result of two reviews. The first was the review by the Independent Advisory Panel (established in October 2012 and constituted by former High Court Justice the Honourable Ian Callinan AC and Professor Nicholas Aroney) which was followed by the Parliamentary Crime and Misconduct Committee Inquiry into the CMC's release and destruction of Fitzgerald Commission of Inquiry documents. The majority of the recommendations made by these reviews have been accepted by the Queensland Government and are now reflected in the Amendment Act.

The Crime and Corruption Commission

The key policy driver behind many of the changes in the Amendment Act is to focus the functions of the CMC on "corruption" and the investigation of serious corruption. The name of the Crime and Misconduct Commission will be changed by the Amendment Act and will become the Crime and Corruption Commission.

The key substantive amendments set out in the Amendment Act are detailed below.

Definitional change from "official misconduct" to "corrupt conduct"

A key finding of the Independent Advisory Panel was that the definition of "official misconduct" in the CM Act had a broader application as compared with other definitions in equivalent anti-corruption statues in other Australian jurisdictions. The Independent Advisory Panel also found that the resources of the CMC were, in part, being applied to the investigation of trivial and vexatious complaints. The Amendment Act makes several changes to sections14 and 15 of the CM Act to now define "corrupt conduct" as opposed to "official misconduct".

The previous definitions of the terms "conduct" and "official misconduct" have been amended, and the legal threshold for establishing whether specific conduct will trigger the Commission's anti-corruption functions has substantially changed. Under the Amendment Act, for conduct to constitute "corrupt conduct" the conduct in question must satisfy a number of cumulative threshold tests, being whether the conduct:

  • adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of an agency or a public office holder; and
  • results, or could result, directly or indirectly, in the performance of functions or exercise of powers in a way that is not honest or impartial; involves a breach of the public trust; or involves a misuse of information; and
  • is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and
  • would, if proved, be a criminal offence or a disciplinary breach providing reasonable grounds for terminating the person's services. The requirement that the conduct in question satisfy one of these elements was included in the previous definition of "official misconduct". The difference being that the test is now "would" the relevant conduct, if proven, satisfy one of these criteria. The approach of changing the relevant test from "could " to "would" was recommended by the Independent Advisory Panel.    

The new section 15(2) of the CM Act also includes examples of the types of conduct which may amount to "corrupt conduct". The type of conduct includes abuse of public office, bribery, fraud, extortion, obtaining a financial benefit or sedition.

Chief Executive Officer Reporting obligations

Previously under section 38 of the CM Act, Chief Executive Officers were required to notify the CMC of a complaint or information or a matter (complaint) if the Chief Executive Officer "suspected" that the complaint involved, or may involve, official misconduct. The Amendment Act changes the notification requirements for Chief Executive Officers by only now requiring that the Commission be notified where a Chief Executive Officer "reasonably suspects" that the complaint involves corrupt conduct.

This amendment is consistent with the finding of the Independent Advisory Panel that the Commission's focus should be on investigating serious cases of corrupt conduct. The Amendment Act also changes section 40 of the CM Act to allow an expanded use of the Commission's directions power. This will give the Commission greater capacity to issue directions to agencies to ensure that only the more serious corrupt conduct matters are referred to the Commission.   The Commission can also now dismiss or take no action in response to a complaint on the grounds that the complaint was not made in good faith; was made primarily for a mischievous purpose; or was made recklessly or maliciously.

New complaint process

Amendments to section 36 of the CM Act provide that a complaint made to the Commission about corruption must be made by way of statutory declaration. The Commission can decide that this requirement is not necessary in exceptional circumstances such as where the person making the complaint fears retaliation for making the complaint.

Next steps forward: implementation

The next step following the commencement of the Amendment Act will be for agencies and Chief Executive Officers and their delegates to reconsider and then redefine relevant integrity policies and practices so they are totally aligned with the changes implemented by the Amendment Act.  

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.