Corruption and Integrity Update – January 2024

In this edition of the Corruption and Integrity Update we consider the fifth Quarterly Report released by the CCC regarding the implementation of the Commission of Inquiry recommendations, updates from the Queensland Integrity Commission, and recent decisions on regulators costs arising from the Court of Appeal and QCAT stemming from integrity related proceedings.

Quarterly Report No. 5 on the implementation of Commission of Inquiry recommendations

Following our previous instalments in the November 2022, March 2023, June 2023, and October 2023 editions of the Corruption and Integrity Update, the Crime and Corruption Commission (CCC) has published its fifth quarterly report on the implementation and delivery of the 32 recommendations set out in the Coaldrake Report.

As with previous updates, the recommendations that have not yet been completed by the CCC largely remain in progress, with actions having been taken over the previous quarter towards full implementation.

Amendments to the Integrity Act

On 13 December 2023, amendments to the Integrity Act 2009 (Qld) (Integrity Act) took effect. These amendments include changes to the definition of ‘designated persons’ for the purposes of the Integrity Act. The definition of ‘designated person’ no longer applies to:

• senior officers;
• ministerial staff members that are engaged to advise a Minister;
• assistant minister staff members that are engaged to advise a Minister; or
• a person formerly nominated by a Minister or Assistant Minister under section 12(1)(h) of the Integrity Act.

A person can request the Integrity Commissioner’s advice on an ethics or integrity issue within two years of ceasing to be a ‘designated person’ in circumstances where the issue arises from a post-separation obligation.

Integrity Commissioner releases Conflict of Interest Standards and Requirements for Ministers

The Queensland Integrity Commissioner has released an updated ‘Conflict of Interest Standards and Requirements for Ministers’ factsheet.

The factsheet highlights conflict of interest obligations that are set out in various legislation and policy provisions, including:

• Parliament of Queensland Act 2001 (Qld);
• Standing Rules and Orders of the Queensland Legislative Assembly;
• Integrity Act 2009 (Qld);
• Code of Ethical Standards;
• Queensland Legislative Handbook;
• Queensland Ministerial Handbook; and
• Ministerial Code of Conduct.

Ministers of the Queensland Government are personally responsible for declaring any conflicts of interest and are required to comply with their obligations.

Key takeaways are that Ministers:

• must ensure that conflicts of interest are declared;
• are obligated to manage and resolve conflicts of interest in accordance with the guidelines set out in the Queensland Ministerial Code of Conduct and other policies that are applicable;
• have a personal responsibility to appropriately manage and resolve conflicts of interest, whether they are real, perceived, or potential conflicts; and
• must have regard to private affiliations, self-interest, and personal loss or gains when making decisions in the course of their duties to avoid potential conflicts of interest.

Judgments relating to regulators costs

Crime and Corruption Commission v NDZ [2024] QCAT 21

On 16 January 2024, the Queensland Civil and Administrative Tribunal (QCAT) released its decision in the matter of Crime and Corruption Commission v NDZ [2024] QCAT 21 relating to an application for costs made by the respondent. By way of background, the matter relates to a disciplinary proceeding filed by the CCC on 5 April 2022, involving eight charges of corrupt conduct. The alleged conduct concerned the respondent’s role in police recruitment and the implementation of the QPS recruitment strategy to achieve a target of the number of females per intake.

There were delays in the matter, and the CCC ultimately discontinued the disciplinary proceeding on 26 October 2023. The respondent filed an application for costs, and the parties were directed to file written submissions.

Generally, each party to a proceeding bears their own costs in accordance with section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). However, section 102 of the QCAT Act contemplates the award of costs against parties in the interests of justice. Having regard to the statutory test, QCAT ultimately determined that the factors against the making of a costs order outweighed those in favour of an order and dismissed the respondent’s application for costs. Of interest, QCAT noted that it should not readily make costs orders against a party that is a regulator, as this discourages the regulator from performing its statutory duty to conduct disciplinary proceedings in the public interest.

McGee v Independent Assessor & Anor [No 2] [2024] QCA 7

On 2 February 2024, the Queensland Court of Appeal (QCA) released its decision in the matter of McGee v Independent Assessor & Anor [No 2] [2024] QCA 7. The proceedings arose following an appeal that led to a permanent stay of a prosecution against Mr McGee by the Independent Assessor. The appeal succeeded on the basis of an abuse of process argument.

The [No 2] judgment related to whether or not the Independent Assessor should pay Mr McGee’s costs, and if so, on what basis. Mr McGee submitted that part of his costs should be paid on an indemnity basis having regard to a Calderbank offer.

In considering the award of costs against the Independent Assessor, Justice Cooper acknowledged that “it is appropriate in exercising the costs discretion to recognise the public interest which motivates the first respondent in the exercise of her statutory functions, however that consideration cannot immunise the first respondent from an indemnity costs order in an appropriate case.”

Ultimately, the Court found that an indemnity costs order should not be made as the offers were found to not have been unreasonably rejected by the Independent Assessor. These rejections were made by the Independent Assessor in the public interest, seeking to exercise its statutory functions where it was reasonably satisfied that misconduct had occurred.

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Authored by:

Daniel Maroske, Partner
Anna Fanelli, Senior Associate
Monica Baur, Solicitor
Max Drummond, Paralegal
Safira Dashwood, Paralegal