Queensland Corruption and Integrity Update – April 2023

This month’s edition of the Corruption and Integrity Update considers updates from the Councillor Conduct Tribunal, summarises a number of Legal Services Commissioner judgments, outlines the latest feedback from the Queensland Ombudsman, and provides an update on some of the recommendations flowing from the Coaldrake Report.

Councillor Conduct Tribunal

On 11 April 2023, the Councillor Conduct Tribunal (CCT) held that a Councillor from the Pormpuraaw Aboriginal Shire Council had engaged in misconduct as defined under section 150L(1)(b)(i) of the Local Government Act 2009 (Qld) (the Act), resulting in a contravention of section 12(3)(b) of the Act, being his statutory duty to “provide high quality leadership”.

On 8 July 2020, the Councillor engaged in a physical altercation with a member of the public in the Local Arts and Culture Centre car park. The incident was captured on CCTV and witnessed by a number of members of the public.

The Councillor self-reported the matter, did not challenge the allegation before the CCT and ultimately did not contest the final hearing.

The CCT ultimately issued a reprimand against the Councillor pursuant to section 150AR(1)(b)(ii) of the Act, noting the behaviour was reckless and that a physical altercation against a member of the public has the potential to bring the Councillor and all of local government into disrepute.

Finally, we note the CCT has issued Practice Direction #1 of 2023, dealing with expedited misconduct applications and the specific procedures relating to the conduct of hearings by the Tribunal where the allegation of misconduct and the associated facts and circumstances are not contested by the Councillor.

Legal Services Commissioner Updates

Legal Services Commissioner v Sewell [2023] QCAT 94

The above proceedings concerned an application brought by the Legal Services Commissioner (LSC) to amend its original disciplinary application brought against the respondent. By way of background, the disciplinary application relates to allegations of professional misconduct and/or unsatisfactory professional conduct arising from conduct that is said to be likely to bring the legal profession into disrepute.

The application to vary the original disciplinary application was brought by the LSC as allegations of dishonesty were raised during the course of the hearing. The application was unopposed by the respondent, with QCAT ultimately considering whether varying the disciplinary application would affect the fairness of the proceeding. QCAT found that the matters were well known to the respondent and that they should be able to be dealt with without further investigation. In addition, it was found that the Tribunal should not ignore allegations of dishonesty where the practitioner will be given a fair opportunity to deal with the issue. QCAT permitted the application be varied.

Legal Services Commissioner v Pennisi [2023] QCAT 118

In the above proceedings, the applicant commenced disciplinary proceedings against the respondent on the basis of two charges, being:

• the respondent failed to maintain reasonable standards of competence when preparing a will and enduring power of attorney where the client did not have the capacity to execute the documents (Charge 1); and
• the respondent failed to maintain reasonable standards of competence and diligence in carrying out their role when engaged to act in the administration of the estate of a client (Charge 2).

A hearing was held before a Judicial Member with both a Practitioner Panel Member and a Lay Panel Member assisting.

In relation to Charge 1, it was held that the applicant failed to establish to the Briginshaw standard that the conduct of the respondent fell short of the standard to be expected of a solicitor.

In relation to Charge 2, the allegations were admitted by the respondent and his conduct was found to amount to unsatisfactory professional conduct. In a thoroughly detailed and well-analysed judgment, the Tribunal ordered that the respondent be publicly reprimanded, pay a pecuniary penalty of $5,000 and pay the applicant’s costs of and incidental to the application to be assessed on the standard basis. The Tribunal made no order for costs to the complainant, who separately made submissions on this point.

Legal Services Commissioner v Magill [2023] QCAT 134

In the above proceedings, the applicant commenced disciplinary proceedings against the respondent on the basis of three charges:

• the respondent engaged in conduct which was likely to a material degree bring the profession into disrepute, contrary to rule 5 of the Australian Solicitors Conduct Rules 2012. Specifically, this charge related to seven convictions for breaching bail on six occasions (Charge 1); and
• the respondent failed to provide the Queensland Law Society with notice of his conviction for breaching bail conditions, as required under s 57 of the Legal Profession Act 2007 (Qld) (Charges 2 and 3).

The parties agreed that Charge 1 amounted to professional misconduct, and Charges 2 and 3 amounted to unsatisfactory professional conduct. The Tribunal noted that the respondent showed a flagrant disregard for the law and authority of the court in circumstances where the respondent was an experienced criminal law practitioner and a former police officer, and presumably was trained in and had specific knowledge about the importance of bail undertakings.

In considering the conduct, the Tribunal stated that the conduct “demonstrates a flouting of the law, a disdain for the undertakings given, and hence an unfitness to engage in legal practice”, finding the respondent guilty of professional misconduct.

In making this finding, the Tribunal ordered that the name of the respondent be removed from the roll of legal practitioners in Queensland, and that he would pay the applicant’s costs, and any such costs that were incidental to the disciplinary action.

Queensland Ombudsman continues public education

The April edition of the Queensland Ombudsman’s Perspective publication considers, amongst other things, the topic of procedural fairness. The Ombudsman has released a series of casebook examples to assist the public in understanding the concept, as well as commentary to provide further assistance and clarity.

Review of the Public Interest Disclosure Act 2010

As discussed in previous editions of the Corruption and Integrity Update, the review of the Public Interest Disclosure Act 2010 is ongoing. The final report was initially scheduled to be completed by 30 April 2023, however the significant number of submissions (including the submission of Gadens) has meant that the deadline for the final report has been extended to 19 June 2023.

CCC continued progress towards Coaldrake Report recommendations

The Crime and Corruption Commission (CCC) continue to make progress towards the recommendations set out in the Coaldrake Report, recently issuing a tender for consultation work to undertake a review of Corruption Investigations. The two-phase engagement is set to review the current state of investigations, as well as implement initiatives to close the gap between the current and future state. The tender closed on 4 April 2023, and the successful tenderer has yet to be announced.

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Authored by:
Daniel Maroske, Director
Angela Szczepanski, Director