Carne v Crime and Corruption Commission

The primary issue in this case was whether a report by the Crime and Corruption Commission constituted a “report” for the purposes of s 69(1) Crime and Corruption Act 2001. The report concerned an overview of the investigation and outcomes in respect of the appellant, a former Public Trustee of Queensland against whom an anonymous complaint was made to the Commission. The Court of Appeal majority found the report was not made in the Commission’s performance of its corruption or prevention functions, as the Commission had already dealt with the complaint, and therefore the report was not one to which s 69 applies. Meanwhile, Freeburn J (dissenting) considered the report was made within the Commission’s broad performance functions, for which the Commission has a broad discretion as to the actions it may take. Ultimately, the majority allowed the appeal and granted declaratory relief in favour of the appellant. The question of whether the report was subject to parliamentary privilege, is not included in this case note.

McMurdo and Mullins JJA and Freeburn J

5 August 2022

Background

The appellant, a former Public Trustee of Queensland, resigned following an anonymous complaint made about him to the Crime and Corruption Commission. [1]–[6]. The Commission then advised the appellant’s solicitors that the Commission intended to publish a report providing “an overview of the investigation and the outcomes”. [7]. The Commission provided a draft of the report and invited submissions from the appellant about its contents. [7].

The report was purportedly made under s 69(1)(b) Crime and Corruption Commission Act 2001, which allows reports of the Commission to be tabled in the Legislative Assembly, including a report that the Parliamentary Crime and Corruption Committee (“‘PCCC”‘) directs be given to the Speaker of the Assembly for the tabling of the report. [8]. The Commission requested the PCCC to give that direction. [8], [10]. The appellant disputed that s 69(1)(b) was applicable in this case and that the Commission had the power to make such a request and sought declaratory and injunctive relief to that effect. [9], [11].

The primary judge dismissed the appellant’s application, finding the report was one subject to s 69(1) of the Act and the Commission’s request for the PPC to make a direction under that section was a proceeding of Parliament which “could not be impeached or questioned”, per s 8 Parliament of Queensland Act 2001. [13]. The appellant then challenged that decision. [13].

Decision of the Court of Appeal

The Court of Appeal allowed the appeal and granted declaratory relief. [15], [82].

The majority found the report was not one to which s 69(1)(b) applied because it was not a report made by the Commission “in the performance of any of its statutory functions.” [15]. The Commission’s “prevention” function did not apply to the publishing and tabling of the report by the Assembly. [19]. Nor did the Commission’s corruption function extend to the report. [52]–[61]. The Commission’s function to raise standards of integrity and conduct in a unit of public administration does not provide the Commission with a wide function “to do whatever it believes would be likely” to have that effect. [26]–[29]. Section 69 also does not facilitate the PCCC’s monitoring of the Commission’s performance of its functions. [66].

Section 69 does not confer a power on the Commission to make a report, nor does it confer a power on the PCCC to require the Commission to make a report. [46]–[50]. Rather, s 69 operates where a report is made pursuant to another source of power or duty under the Act. [51], [65]. The majority rejected the primary judge’s finding that the report was made under s 64, a general power to report in the performance of the Commission’s functions. [68]. The Commission “misconceived its functions and powers in the course which it has pursued with this report”, having already “dealt with” the complaint through its investigation and referral to prosecutors. [68]. Therefore, the report was not one to which s 69 applies. [69].

Freeburn J (dissenting) appears to have agreed with the majority that s 69 does not itself confer power on the Commission or PCCC for the making of the report. [124]. However, in examining s 64, His Honour found the report was made in the Commission’s performance of its functions, pursuant to that section. [124]–[126]

His Honour considered the Commission’s functions to be arranged as a hierarchy under the Act. [107]. The main purpose is public interest aspects such as cooperation and capacity building, including promoting confidence in integrity of units of public administration. [102], [107]. Notably this purpose is broader than simply the prosecution of corruption. [110]. To carry out this purpose, the Commission investigates and deals appropriately with corruption. [107]. Next are two broad functions: the corruption function, and prevention function. [108]. Regardless of the purpose of function the Commission is exercising, it has a wide discretion as to what actions it may take. [110]–[111].

The preparation of the report, and proposed publication, aligned with the Commission’s prevention function. [126]–[137]. His Honour found there were no temporal limits on the Commission making the report in the exercise of its functions, even if completed after the investigations had ended. [132]–[133].

A Hughes of Counsel