Corruption & Integrity Update – September 2022

This month’s Corruption & Integrity Update contains a summary of the keenly-awaited National Anti-Corruption Commission Bill, details on the proposed Federal Judicial Commission, highlights from the various annual reports recently published by a number of Queensland’s integrity agencies and provides a recap on the latest information coming out of the Commission of Inquiry into Forensic DNA Testing in Queensland.

National Anti-Corruption Commission

On 28 September 2022, the Federal Attorney-General introduced the National Anti-Corruption Commission Bill 2022 (NACC Bill) providing for the establishment of the National Anti-Corruption Commission (NACC). In its current form, the Bill casts a wide net for this proposed investigative body and includes a broad definition of corrupt conduct, broad jurisdiction to investigate and broad powers to compel the production of information.

Jurisdiction and powers

The NACC Bill looks to provide the NACC Commissioner with a broad jurisdiction to investigate Commonwealth Ministers, parliamentarians, parliamentary staff, heads and employees of Commonwealth agencies, government contractors and their employees, members of the Australian Defence Force, statutory office holders and appointees, officers and directors of Commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth.

The Bill looks to arm the Commissioner of the NACC with the independence to commence inquiries and investigations and discretion as to how it deals with corruption issues. The NACC Commissioner would also have covert investigative powers including telecommunication interception powers and the ability to use surveillance devices.

The Bill would create offences for the provision of false or misleading information or documents or failure to comply with a notice to produce.

Definition of corrupt conduct

The definition of corrupt conduct under the NACC Bill includes:

• any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly:
  1. the honest or impartial exercise of any public official’s power as a public official; or
  2. the honest or impartial performance of any public official’s functions or duties as a public official;
• any conduct of a public official that constitutes or involves a breach of public trust;
• any conduct of a public official that constitutes, involves or is engaged in for the purpose of abuse of the person’s office as a public official;
• any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official;
• any conduct of a public official in that capacity that constitutes, involves or is engaged in for the purposes of corruption or any kind.

Corrupt conduct that occurred before the commencement of the definition of corrupt conduct would still fall within the scope of the Commission’s jurisdiction.

Conspiracy or an attempt to commit or engage in corrupt conduct would also fall within the definition of corrupt conduct.

The Bill also attempts to protect against undue reputational damage – allowing the Commissioner to make public statements where it is appropriate to avoid damage to a person’s reputation.

Upon introduction of the NACC Bill, the Attorney-General also announced the Government’s intention to strengthen whistle-blower protections and separate reforms to the PID Act, intended to be in place when the NACC begins operation.

A joint parliamentary inquiry into the legislation will run for the next six weeks.

Government response to the Australian Law Reform Commission Report ‘Without Fear of Favour: Judicial Impartiality and the Law on Bias’

The Federal Attorney-General has confirmed the Government’s commitment to implement the recommendations from the Australian Law Reform Commission Report ‘Without Fear of Favour: Judicial Impartiality and the Law on Bias’.

While most recommendations contained in the report are directed to the federal courts for consideration, the government has now confirmed its support for the three recommendations directed to the government, namely:

1. the establishment of a Federal Judicial Commission – agreed in principle
2. the development of a more transparent process for appointing federal judicial offices on merit – agreed
3. the collection and reporting of statistics on judicial diversity – agreed.

QLD’s integrity landscape – Annual Report highlights

Crime and Corruption Commission

In a year that saw significant leadership changes at the Crime and Corruption Commission (CCC), the activities highlighted in its Annual Report include:

• 160 disclosures to law enforcement agencies;
• 160 days of hearings to examine witnesses relating to major crime, intelligence and corruption investigations;
• 30 confiscation and proceeds of crime matters;
• the assessment of 4,000 complaints of suspected corruption;
• 90 recommendations to units of public administration; and
• 8 people charged with 73 criminal offences relating to corruption investigations.

In addition, the CCC was involved in several public sector reviews. Notably, the CCC provided submissions to Professor Peter Coaldrake AO as part of the Review of culture and accountability in the Queensland public sector. The CCC noted that the final report following the review included recommendations to manage issues that the CCC had previously raised, such as influencing practices and funding models for integrity agencies.

Queensland Integrity Commissioner

Throughout the 2021-22 financial year, the Queensland Integrity Commissioner (QIC) received 110 requests for advice from designated persons. Of the 110 requests, 70 were responded to with formal written advice and 14 were responded to with oral advice. The remaining requests for advice were out of scope, withdrawn or were dealt with by preliminary opinion only.

Office of the Independent Assessor

Over the course of the 2021-22 financial year, the Office of the Independent Assessor (OIA) has worked to consider and implement recommendations from the State Development and Regional Industries Committee (SDRIC) Inquiry into the Independent Assessor.

Another key focus of the OIA has been addressing the investigation and legal backlogs through improvements to the complaints handling process and an increase in funding for temporary staff. As at 30 June 2022, the OIA had 87 open investigations, down from 160 the previous year, with all complaints allocated to investigators (down from 57 on hold pending investigator availability in 2020-2021).

With the backlogs now addressed, the focus for the OIA moving forward into 2022-23 will be the substantial reduction of investigation and legal timeframes; and assisting councillors and the Councillor Conduct Tribunal to expedite matters where misconduct is agreed.

Queensland Ombudsman

In the 2021-22 Annual Report, the Ombudsman identified several recommendations from the Coaldrake Review that were directly relevant to its office, including:

• establishing a single clearing house for complaints;
• reviewing public interest disclosure legislation; and
• providing the Ombudsman with the authority to investigate complaints against private organisations carrying out functions on behalf of the government.

The Ombudsman has begun working with the government to implement these recommendations, in particular, the recommendation that the Ombudsman be provided with the authority to investigate complaints against private organisations.

Queensland Audit Office

A primary focus of the Queensland Audit Office (QAO) in the 2021-22 financial year was cyber security. The QAO implemented enhanced digital security arrangements, and trained staff to help mitigate the increasing cyber security risks. An independent strategic review of the QAO was conducted, which provided 32 recommendations relating to the efficacy of the organisation. In light of the recommendations, the QAO has highlighted five key priorities for its strategic direction, leadership and governance.

Department of Justice and Attorney General Complaints

The Department of Justice and Attorney-General (DJAG) has published the DJAG Client Complaints data. During 2021–22, a total of 997 client complaints were received in DJAG.

The most common complaint related to service delivery, followed by complaints relating to policy and procedure.

Commission of Inquiry into Forensic DNA Testing in Queensland

On 6 June 2022, the Queensland Premier announced a Commission of Inquiry into Forensic DNA Testing in Queensland to be conducted by retired judge Mr Walter Sofronoff KC. The Commission of Inquiry commenced on 13 June 2022. Public hearings commenced on 26 September 2022, initially focusing on decision making around forensic DNA testing thresholds between 2018 and 2022 and related matters.

The Commission of Inquiry was prompted by issues raised by Queensland police regarding the thresholds of DNA testing in state-run laboratories, Forensic and Scientific Services (FSS). The Interim Report, delivered last week, revealed that FSS did not test samples under a certain threshold, even in circumstances where the samples could have identified partial or full DNA profiles, with up to 10% of samples classified as having no or insufficient DNA capable of producing partial or full DNA profiles if having been tested further.

On the first day of hearings, the inquiry heard that the changes to threshold testing were first introduced in 2017 as a means to increase testing speed and lowering laboratory expenses. The findings of the Inquiry to date suggest there may have been serious miscarriages of justice, and calls for the need to review and re-test samples from potentially thousands of major crimes dating back to 2018.

Hearings are expected to continue into October, with the final report to be provided to the Premier, Minister for Health, and the Attorney-General by 13 December 2022. Given the significant implications that the revelations of this inquiry may have, we will continue to watch closely in the coming months.

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Authored by:

Daniel Maroske, Director
Angela Szczepanski, Director