30 Mar 2017
The Queensland Government to broaden the reach of the State's corruption watchdog
By Barry Dunphy, Eleanor Dickens
Queensland agencies should start to take appropriate steps to identify internal processes and procedures that may need to change to comply with the changes to the Crime and Corruption Act.
Queensland's anti-corruption legislation, the Crime and Corruption Act, has been the subject of significant change and amendment over the past five years. The most significant of these changes has been changes to the jurisdiction of the State's anti-corruption watchdog and the capacity of the Crime and Corruption Commission to investigate and deal with corruption in Queensland's public sector and police service.
Proposed amendments to the Crime and Corruption Act introduced into the Queensland Parliament on 23 March 2017 follow this pattern, and will extend the reach of Commission in dealing with corruption in the State. This change, along with other significant changes to the processes and operations of the Commission, are set out in the Crime and Corruption and Other Legislation Amendment Bill 2017.
Background to the Amendment Bill
The changes implemented by the Amendment Bill are the result of two core policy drivers.
Firstly, the Amendment Bill represents an election commitment of the Government to broaden the definition of corrupt conduct as defined under section 15 of the Crime and Corruption Act.
Secondly, the Amendment Bill seeks to implement the recommendations of the Parliamentary Crime and Corruption Committee report No. 97 "Review of the Crime and Corruption Commission" and report No. 99 "Report on a complaint by Mr Darren Hall".
Expanded jurisdiction of the Crime and Corruption Commission
The Amendment Bill proposes changes to the definition of "corrupt conduct". The effect of this definitional change is to expand range of conduct which will be able to be investigated by the Crime and Corruption Commission.
There are several aspects to the changes to the definition proposed by the Amendment Bill:
- The definition of "corrupt conduct" will be changed to capture the conduct of private citizens in circumstances where the conduct in question impairs or could be said to impair public confidence in public administration, even where the actions of a public sector employee have not lacked, or could lack, probity. This definitional change will potentially capture conduct such as collusive tendering, fraud in relation to applications for licences or permits issued by government or where a person fraudulently obtains or retains an appointment within a unit of public administration. In proposing this amendment, the Government has argued that the extended definition is necessary given the increased role of outsourcing and public-private partnerships in delivering Government services as well as the increased potential for private citizens engaged in these service delivery arrangements to engage in corrupt conduct.
- The Amendment Bill will also extend or expand the Commission's investigatory jurisdiction to allow the Commission to investigate and otherwise deal with conduct liable to allow, encourage or cause corrupt conduct, and conduct connected with corrupt conduct. The Commission will be able to investigate this conduct, as well as corrupt conduct, that may have happened, may be happening or may happen.
- The Amendment Bill removes the definitional requirement that in order for conduct to be considered "corrupt conduct" under section 15 of the Crime and Corruption Act the conduct must be engaged in for the benefit of, or detriment to, a person.
New record-keeping requirements for units of public administration
Units of public administration (agencies) will now be required to keep records in relation to a decision to not notify the Commission of an allegation of corrupt conduct. This is a new record-keeping requirement and it will allow the Commission to more effectively exercise its monitoring function.
Changes to the operations and procedures of the Crime and Corruption Commission
The Amendment Bill also includes several amendments that are designed to improve the operations of the Commission. This includes improvements to information-sharing arrangements between the Commission, units of public administration and integrity agencies such as the Ombudsman and the Auditor-General.
The Amendment Act also introduces a new procedural requirement identified by the Parliamentary Crime and Corruption Committee in its report into a complaint by Mr Darren Hall. The Committee concluded that the principles of procedural fairness required that, prior to publishing adverse allegations about Mr Hall in its report "Dangerous liaisons: a report arising from a CMC investigation into allegations of police misconduct (Operation Capri)", the Commission should have provided Mr Hall with an opportunity to show why the contemplated comments should not have been made.
This proposed amendment formalises what is currently the position at common law following the High Court's decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Accordingly, the Amendment Bill makes it a legislative requirement for the Commission to provide procedural fairness to persons who may be adversely affected by a Commission report to be tabled in the Legislative Assembly, or published to the public, under the Crime and Corruption Act.
Getting ready for the changes
Given the significance of these changes, agencies should start to take appropriate steps to identify internal processes and procedures that may need to change to comply with the changes.
At the very least, agencies will need to consider current record-keeping practices to ensure that decision-making processes are properly recorded.
Agencies should also consider procurement and project governance arrangements as well as internal controls to ensure that an agency and the agency chief executive officer can exercise effective oversight of the conduct of all participants, including public service officers as well as private citizens.