Corruption and Integrity Update – OIA functions and CCC powers subject to scrutiny

The past month has seen the spotlight turned on both the Office of the Independent Assessor (OIA), by way of Parliamentary Inquiry, and the Crime and Corruption Commission (CCC), by way of a Supreme Court challenge to its coercive powers.

Inquiry into the functions of the Independent Assessor and the performance of those functions

On 27 October 2021, the State Development and Regional Industries Committee resolved to conduct an Inquiry into the OIA. Following the receipt of a significant number of written submissions, public hearings were rolled out across Queensland throughout March. Witness submissions and testimony were provided by a number of regional Mayors and Councillors, as well as industry bodies including the Local Government Association of Queensland (LGAQ) and the Queensland Law Society (QLS). The OIA itself also provided detailed written submissions alongside oral testimony from the Independent Assessor, Ms Kathleen Florian, on the investigative processes undertaken by the OIA, as well as the relationship with other bodies including the CCC and the Councillor Conduct Tribunal.

The overwhelming theme of the submissions and testimony considered by the Inquiry was that there was a need to review the powers, functions and resourcing of the OIA to allow for more effective operation and oversight of the local government complaints system.

The State Development and Regional Industries Committee is yet to confirm the date for the issuing of the final report, however we anticipate a number of recommendations are likely to be made regarding the operation of the OIA going forward, and we will provide updates as and when more information comes to hand.

SQH v Scott [2022] QSC 16

On 4 March 2022, the Supreme Court of Queensland released the public judgment of Her Honour Justice Williams in the matter of SQH v Scott [2022] QSC 16. The judgment concerned an appeal of a decision made by a presiding officer arising from a CCC coercive hearing and saw both the Attorney-General of Queensland and the Queensland Humans Right Commission join the proceedings as intervening parties.

The appeal concerned a decision by the CCC’s presiding officer that the applicant did not have a reasonable excuse to answer the following question: “what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs?” On appeal, the applicant sought to challenge the presiding officer’s decision on three grounds, namely that the presiding officer had erred:

• in finding that the applicant did not have a reasonable excuse in circumstances where the coercive hearing occurred after the applicant had been charged and therefore had the capacity of constraining the applicant’s legitimate forensic choices in the future conduct of their trial;
• by failing to have regard to a relevant consideration, namely section 201[1] of the Crime and Corruption Act 2001 (CC Act), and the impact that the availability of the coerced material to co-defendants would have on the capacity of the safeguards that exist in the CC Act to quarantine coerced answers from the applicant’s trial; and
• by making a decision that was not compatible with the applicant’s rights in accordance with the Human Rights Act 2019 (Cth) (HR Act).

Leave to appeal was granted for each ground of appeal, recognised by the court as important questions of law, and noting specifically with reference to the HR Act, that it was a relatively new piece of law in Queensland, lacking in mature jurisprudence on its application.

The 85-page public judgment provides a detailed analysis of complex issues of law, including the abrogation of the privilege against self-incrimination, the use of derivative evidence, and the interplay of coercive powers with legislated human rights for individuals. Ultimately, Her Honour dismissed the appeal and held that the presiding officer had not erred in deciding that the applicant did not have a reasonable excuse to answer the question posed. It would appear from the judgment that the protections built into the CC Act in conjunction with judicial discretion in a supervisory role were adequate protections for those individuals compelled to respond to questions at a coercive hearing.

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Authored by:

Angela Szczepanski, Director
Daniel Maroske, Director

At Gadens, we have extensive experience assisting clients in responding to both CCC and OIA investigations and hearings.

Please don’t hesitate to contact Daniel Maroske, Director or Angela Szczepanski, Director should you require any assistance in matters involving the CCC/OIA or if you would like to arrange a presentation on investigations and hearings with your organisation.

[1] Section 201 provides that the CCC must give evidence to defence unless court certifies otherwise