22 Jul 2021

Fighting corruption in Queensland: update

By Eleanor Dickens, Daniel Maroske

Public sector agencies and those organisations and individuals who engage with the public sector should keep apprised of potential developments to the Crime and Corruption Commission's functions, powers, and operations.

Given the Crime and Corruption Commission's (CCC) crucial role as Queensland's anti-corruption regulator, this article highlights some of significant recent developments that touch on the CCC's jurisdiction and how it discharges its critical regulatory and statutory functions.

These developments comprise of the recently tabled five-year review on the CCC's activities on 30 June 2021 by the Queensland Parliamentary Crime and Corruption Committee (PCCC) and the CCC's latest Prevention in focus update which serves as a reminder of how certain conduct can constitute corrupt conduct, even where a person has resigned or retired from the agency where the alleged conduct occurred.

The PCCC Review: key recommendations to improve the Crime and Corruption Commission

The PCCC's recent review of the CCC's activities summarises various performance indicators and proposes recommended changes to the Crime and Corruption Act 2001 (CC Act) in relation to the CCC's functions, powers, and operations.

Having regard to the CCC's corruption function, the review noted:

  • the number of corruption complaints received by the CCC in 2019-2020 (3,327, consisting of 8,726 allegations) increased by 7% in comparison to the previous year;
  • there has not been a significant increase in the number of referrals to the CCC following amendments to section 15(2) of the CC Act which broadened the definition of 'corrupt conduct'; and
  • further clarity is required to demarcate between a CCC "assessment" and "investigation."

Key recommendations arising from the review include:

  • Recommendation 9: that the government consider legislative amendments to enable CCC officers to make lawful disclosures and be afforded the same protections as those engaged in a unit of public administration under the Public Interest Disclosure framework.
  • Recommendation 10: that the definition of "money laundering" in the Criminal Proceeds Confiscation Act 2002 be reviewed to ensure it is fit for purpose and enables prosecution of the offence where appropriate.
  • Recommendation 11: that the CCC produce easily accessible material to assist in the education of persons and their legal representatives participating in coercive hearings.
  • Recommendation 12: that consideration be given to amending section 197 of the CC Act to ensure clarity in regards to its interpretation and intent. Section 197 of the Act currently restricts the use of privileged answers, documents, things or statements disclosed or produced under compulsion.
  • Recommendation 22: that the CC Act be amended to clarify the distinction between an "assessment" and an "investigation". It was noted that such a distinction is not academic and that a clear distinction between the steps was important.
  • Recommendation 30: that the CCC engage with the Department of Justice and Attorney-General if issues regarding the application of the Human Rights Act 2019 arise, to ensure the CCC's powers are not inadvertently undermined.

The CCC's Prevention in focus update

The CCC's recent Prevention in focus update provides a useful reminder that certain conduct can constitute corrupt conduct, even where a person has resigned or retired from the agency where the conduct occurred.

Using a recent case study to emphasise its concerns, the CCC highlighted that:

  • A failure to disclose a prior relationship with a person you deal with in your work may amount to corrupt conduct; and
  • The disclosure of confidential information to a person can constitute corrupt conduct.

Drilling down into these concepts further, it is important to recognise that public sector employees may face conflicts of interest where their private interests interfere, or appear to interfere, with their duty to put the public interest first. In the case study highlighted by the CCC, QCAT considered that the conduct of a police officer in failing to disclose an acquaintance (and a subsequent willingness to assist the acquaintance in relation to a police investigation) had the potential to undermine any further investigation and undermined the public confidence in the QPS.

With respect to the disclosure of confidential information, through the case study, the CCC identified that the disclosure of confidential information can constitute a serious form of possible corrupt conduct which can potentially amount to a criminal offence in certain circumstances. The CCC's position on the disclosure of confidential information comes as no surprise given the CCC's examination of the improper access and dissemination of confidential information by public sector agencies in Operation Impala which was released in February 2020.

Findings of corrupt conduct, including post-employment

Where a public sector employee engages in corrupt conduct, the CCC may apply to QCAT for an order under section 219I of the CC Act that the individual be dismissed. However, where the individual resigns or retires before such an order can be made, the CCC may nevertheless obtain a declaration under section 219IA of the CC Act outlining the order which QCAT would have made had the person still been employed by the relevant public entity. Similar declarations are available to public sector agencies utilising provisions under the Public Sector Act.

Such declarations can be an effective deterrent against person's seeking future employment in the public service, given agencies can obtain information about disciplinary declarations that exist, or require applicants to disclose this information in their applications.

Key takeaways for Queensland anti-corruption efforts

  • It is anticipated that the Queensland Government will implement a number of recommendations arising from the PCCC review. Public sector agencies and those organisations and individuals who engage with the public sector should keep apprised of potential developments to the CCC's functions, powers, and operations.
  • The CCC's prevention in focus update is a reminder:
    • for those working in the public sector to carefully consider and disclose immediately any relationship or interest which may represent an actual or perceived conflict of interest with your professional responsibilities; and
    • that the improper use of confidential information, including the unauthorised disclosure of confidential information, is a significant corruption risk and therefore officers need to carefully consider how they deal with information of this nature.
  • A person who resigns prior to a disciplinary matter involving corruption being finalised can nevertheless be the subject of a disciplinary declaration.

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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.