Queensland Corruption and Integrity Update – September 2023

The September edition of the Queensland Corruption and Integrity Update covers recent decisions of the Councillor Conduct Tribunal (CCT), the High Court’s decision in CCC v Carne, and the first progress report into the recommendations of the Forensic DNA Commission of Inquiry. We also consider the Local Government (Councillor Conduct) and Other Legislation Amendment Bill 2023, the recent Parliamentary Crime and Corruption Committee (PCCC) meeting, and the new detention inspection function of the Queensland Ombudsman. Finally, with the release of 2022-2023 annual reports, we take a look at the highlights of some key organisations in the Queensland integrity space.

Councillor Conduct Tribunal

Mayor Tom Tate

The CCT has released its decision relating to the conduct of Gold Coast Mayor, Tom Tate. The decision related to 11 allegations that Mayor Tate allegedly failed to abide by the City of Gold Coast’s Expenses Reimbursement and Provision of Facilities for Mayor and Councillors Policy (the Reimbursement Policy) in claiming reimbursement for expenses incurred between 2016 and 2018. Under the Reimbursement Policy, the Mayor is provided $23,000 for incidental expenses, payable in advance and only for reasonable expenses incurred or to be incurred in their role as a councillor. The allegations included a number of donations that exceeded the $500 limit for obligatory donations, and other expenses, such as an annual membership for the Titans Football Club that were deemed to be inconsistent with the objectives of the Reimbursement Policy. Mayor Tate admitted that he paid the expenses personally in the first instance for all expenses the subject of allegations, before seeking reimbursement from Council and that, at the time, he held the honest belief that he was entitled to make the application.

While a number of allegations were held to be substantiated, three of the allegations were not substantiated by the CCT. The CCT ultimately ordered:

• in respect of five of the allegations, that Mayor Tate make a public admission of misconduct during a General Ordinary Meeting of Council within 60 days of the decision and reasons;
• in respect of three of the allegations, that Mayor Tate pay the amount of $2,322 to the City of Gold Coast; and
• in respect of eight of the allegations, that Mayor Tate attend training or counselling to address his conduct relating to the Reimbursement Policy.

Mayor Andrew Ireland

The CCT has released its decision relating to the conduct of Mayor Andrew Ireland of Livingstone Shire Council (LSC).

There were three allegations that Mayor Ireland had engaged in conduct that breached the trust placed in him, either knowingly or recklessly. The allegations specifically related to Mayor Ireland’s investigation into potentially inappropriate conduct of Councillors and that breaches of the Councillor Complaints Investigation Policy (the Investigation Policy) had occurred.

The Investigation Policy requires:

• that the subject councillor be afforded natural justice prior to adverse formal findings or orders;
• the investigator must provide a report to LSC; and
• LSC must consider whether the subject councillor has engaged in inappropriate conduct, and the action it will take as appropriate.

Despite the requirements of the Investigation Policy, Mayor Ireland finalised the investigation by signing a letter of reprimand, and the LSC’s publicly available Councillor Conduct Register was updated to reflect the finding.

The CCT found that Mayor Ireland acted inconsistently with the requirements of section 150AG(1) of the Act and failed to comply with the LSC Investigation Policy in the way in which he resolved the complaint.

The Tribunal ordered that Mayor Ireland:

• make a public admission in the next council meeting that he engaged in misconduct; and
• reimburse LSC $1,200 representing a contribution to the costs incurred as a result of the CCT proceedings.

Crime and Corruption Commission v Carne [2023] HCA 28

The High Court’s decision in the long-awaiting proceeding of Crime and Corruption Commission (CCC) v Carne considered whether parliamentary privilege attached to a report prepared by the CCC, and the reporting powers of the CCC more generally.

Following a decision of the Queensland Court of Appeal, special leave was granted for the CCC to appeal on 15 December 2022.

The High Court appeal centred on two key issues:

1. whether the Parliament of Queensland Act 2001 (Qld) (POQ Act) precluded the Court of Appeal from making a declaration regarding a report prepared by the CCC on the grounds that such reports are protected as ‘proceedings’ in the Legislative Assembly of Queensland; and
2. whether the said report qualified as a ‘report’ as defined in the Crime and Corruption Act 2001 (Qld) (CC Act).

The CCC argued that the Commission was legally empowered to make the report, and that the document could be made public under parliamentary privilege. Specifically, under section 69 of the Crimes Act, the CCC should be permitted to present reports to a state parliamentary committee that would then be passed onto the Speaker in the Legislative Assembly to be tabled and released publicly.

The High Court found that the preparation and presentation of the report was not within the scope of the Queensland Legislative Assembly and dismissed the CCC’s appeal. In making the decision, the Court noted that the preparation and presentation of the report were not encompassed within the scope of ‘proceedings’ in the Legislative Assembly. This ruling was primarily based on the fact that the report was not prepared for the PCCC for the purpose of transacting its business, but rather by the CCC itself to make the report public. Consequently, parliamentary privilege did not apply to the report, regardless of the certification under section 55 of the POQ Act. Secondly, the High Court determined that the report did not qualify as a report under the CC Act, and no provision in the Act authorised its production.

The High Court distinguished this case, where parliamentary privilege did not apply, from one where a parliamentary committee, upon receiving a document unrelated to the business of the parliamentary committee, elects to retain it for the purpose of transacting its business and where sections 8 and 9 of the POQ Act would apply.

Following the High Court’s judgment, the CCC announced that it would seek urgent legislative amendments in response to the decision. Mr Barbour, Chairperson of the CCC, indicated a preference that any reforms be retrospective to allow reports that have been withheld from the public through the course of the Carne litigation to be publicised.

Progress Report on Delivery of Recommendations for Commission of Inquiry into Forensic DNA testing in Queensland

As Gadens has previously covered, the Final Report in the Commission of Inquiry into Forensic DNA Testing was released on 13 December 2022, providing 123 recommendations, with a further three set out in the Interim Report. In September 2023, the Queensland Government released the First Progress Report on the Delivery of Recommendations. All 126 recommendations were accepted by the Queensland Government, with additional funding in excess of $95 million provided to support the reform work.

As at 22 August 2023, 33 of the 126 recommendations have been completed, with a further 57 having been commenced. Activities relating to the implementation of the recommendations, much of which requires broad organisational reform, include:

• the establishment of Forensic Science Queensland (FSQ) as a business unit of Queensland Health, with the aim of focusing solely on the delivery of forensic DNA and chemistry services;
• establishment of the FSQ interim Advisory Board and three subject matter sub-committees (Forensic Justice, Forensic Biology and Forensic Medical Examinations);
• recruitment of key senior leadership roles, particularly within FSQ;
• large-scale recruitment for scientific staff across multiple position levels to ensure that FSQ has enough resources to support the implementation of the scientific process recommendations.

Progress has also been made towards recommendations aimed at historical case review, including the commencement of a legal-led case review process, and work alongside Queensland Police Service relating to activities prior to sample submission to FSQ.

The Queensland Government has committed to provide quarterly progress reports as the implementation of recommendations continues.

Local Government (Councillor Conduct) and Other Legislation Amendment Bill 2023

On 13 September 2023, the Local Government (Councillor Conduct) and Other Legislation Amendment Bill 2023 (the Bill) was introduced into the Queensland Parliament.

The Bill follows the State Development and Regional Industries Committee (SDRIC) inquiry into the functions of the Independent Assessor and the role of the Office of the Independent Assessor (OIA) in the performance of its functions. The SDRIC identified issues concerning the operations of the CCT and on 14 October 2022, tabled Report No. 28 of the 57th Parliament ‘Inquiry into the Independent Assessor and councillor conduct complaints system’ (Councillor Conduct Report). The Government’s response to the Councillor Conduct Report dated 12 January 2023, supported (or supported in principle) all 40 recommendations made by the SDRIC.

The overarching purpose of the Bill is to implement the Queensland Government’s policy relating to the recommendations contained in the Councillor Conduct Report. It is noted, however, consultations with stakeholders identified further amendments which support the SDRIC’s recommendations. Key objectives of the Bill include:

• Implementing Recommendations: The Bill addresses 19 recommendations made by the SDRIC which, together, seek to make Queensland’s councillor conduct complaints framework more effective and efficient, and whereby only matters which are in the public interest proceed to the CCT for determination;
• Former Councillors: An important complementary amendment to the councillor conduct complaints system is limiting the system’s application to former councillors. Specifically, this involves limiting the system to only those who are suspected of corrupt conduct; and
• Conflict of Interest Requirements: addressing concerns centred around adverse impacts on the ability of mayors and councillors to hold meetings and make decisions in the best interests of their communities.

The SDRIC invited submissions on any aspect of the Bill and is due to table its report on 27 October 2023.

Parliamentary Crime and Corruption Committee

The PCCC held a public meeting on 15 September 2023 to discuss the CCC’s activities for the period 1 April to 30 June 2023, as detailed in the CCC’s public report (the Report).

The Report highlighted a number of the CCC’s achievements in its key areas of focus, including:

• Corruption involving improper influence, abuse of authority and exploitation of public sector resources: finalisation of investigations relating to improper influence of public administration employees (being 10% of current CCC investigations), matters relating to the misuse of authority by employees in the public sector (being 62% of current CCC investigations), and the exploitation of public resources (being 12% of current CCC investigations); and
• Critical organisational capabilities including digital, analytics, intelligence and workforce planning: the introduction of analytics initiatives to modernise the CCC, reduce information silos, leverage the value of data assets, and promote a data-driven culture, including the development of dynamic data dashboards.

The CCC also provided a further update on the implementation of recommendations of the report of the Fitzgerald/Wilson Inquiry, noting that as of 30 June 2023, the CCC have completed 10 recommendations and have made material progress on 15 other recommendations. The CCC stated the remaining recommendations require legislative amendments and therefore require government cooperation.

Annual Report Highlights

At the end of September, a series of annual reports were tabled in the Queensland Parliament, providing insights into the activities of organisations in the Queensland integrity space.

Crime and Corruption Commission

The 2022-2023 Annual Report of the Crime and Corruption Commission (CCC) highlighted a range of activities, including:

• 126 days of hearings to examine witnesses relating to major crime, intelligence and corruption investigations;
• 15 confiscation and proceeds of crime matters;
• 90 recommendations to units of public administration;
• 35 corruption prevention recommendations made;
• seven recommendations for disciplinary action relating to three people;
• one person charged with two criminal offences relating to corruption investigations; and
• the implementation of the Strategic Plan 2023-27.

With respect to the Fitzgerald/Wilson Inquiry, the Annual Report indicated that significant progress has been made towards the implementation of recommendations, including the recommendation requiring the CCC to obtain DPP advice before charging. The CCC has consulted with the Department of Justice and Attorney-General (DJAG), Queensland Police Service, and Office of the Director of Public Prosecutions to reach an agreed position on the implementation of the recommendation.

The CCC also continues to work towards the recommendations arising from the PCCC Five-Year Review 2021.

Office of the Independent Assessor (OIA)

The 2022-2023 Annual Report states that in 2022-2023, the OIA received 897 complaints with 958 allegations about councillor conduct, representing a two per cent increase on the complaints received in the previous year. Of these complaints, 53% have been from the local government sector, 38% from the public, 2% from the CCC, and 6% from other sources. There was also a 44% decrease in councillor self-referrals. 49% of allegation received related to alleged misconduct, and 41% related to alleged inappropriate conduct, 37% of which related to alleged breaches of the mandatory Code of Conduct for Councillors in Queensland.

The OIA continues to focus on addressing the backlog of investigations, with 205 investigations completed in 2022-23. As of 30 June 2023, 34 investigations remain ongoing, with the majority of OIA investigations being resolved in less than three months.

It is reported that the backlog in determining CCT matters has continued. As of 30 June, there were 66 applications with 146 allegations of misconduct before the CCT awaiting a hearing or decision. Since the establishment of the CCT, 71 applications have been determined, 18 of which were decided in 2022-23.

Queensland Ombudsman

In its 2022-2023 Annual Report, the Ombudsman highlighted aspects of growth for the office over the last financial year and identified particular recommendations arising from the Coaldrake Report as being directly relevant to its office, including:

• enhancing integrity bodies’ independence by involvement of parliamentary bodies in setting their budgets and contributing to key appointments; and
• providing the Ombudsman function with the authority to investigate complaints against private organisations carrying out administrative actions taken on behalf of the government’s functions.

The introduction of the Integrity and Other Legislation Amendment Bill 2023 was stated as an important step in the implementation of these recommendations.

The Ombudsman also supported the Public Interest Disclosure Act Review, both in preparing a submission, but also in providing the Review with advice on a range of operational and policy issues, and providing relevant statistical information to support the Final Report.

In 2022-23, the Office responded to 11,837 contacts, received 7,227 complaints, and finalised 1,124 investigations, making 172 recommendations for improvement. Of the 166 recommendations that were made and responded to by 30 June 2023, all were accepted by the relevant agencies.

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Authored by:

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