Corruption and Integrity Update – Updates from the ALRC, Legal Affairs and Safety Committee, as well as Carne v CCC

This month’s edition of the Corruption and Integrity Update considers the Australian Law Reform Commission’s (ALRC) report, Without Fear or Favour: Judicial Impartiality and the law on Bias. We also dive into the decision in Carne v Crime and Corruption Commission [2022] QCA 141 and highlight updates from the Legal Affairs and Safety Committee.

ALRC Report – Without Fear or Favour: Judicial Impartiality and the law on Bias

Background

Earlier this month, the Attorney-General tabled the ALRC Report, Without Fear or Favour: Judicial Impartiality and the law on Bias (Report). The ALRC’s inquiry was prompted by the High Court decision in Charisteas v Charisteas (2020) 60 Fam LR 483 (Charisteas).

Charisteas involved a family law dispute where the wife’s counsel had personal contact with the judge during proceedings, including meeting for coffee and exchanging text messages. Despite this, the Full Court of the Family Court concluded that this did not give rise to a reasonable apprehension of bias. However, this decision was overturned by the High Court.

Ultimately, the ALRC was asked to consider necessary or desirable reforms to the laws relating to impartiality and bias as applicable to the federal judiciary. In conducting its inquiry, ALRC considered:

1. Whether the existing law of apprehension and actual bias is appropriate to maintain public confidence in the administration of justice. The ALRC found the existing law does not require amendment, but procedures and institutional structures require further consideration.
2. Whether the existing law provides sufficient clarity to decision makers, the legal profession, and the community about how to manage potential conflicts. The ALRC found greater transparency in relation to the law is necessary.
3. Whether the current mechanisms for raising allegations of bias are sufficient. The ALRC determined that reform is required as the procedures to consider actual and apprehended bias have not evolved and are inconsistent between courts, registries, and individuals.

Overview of recommendations

The Report identified 14 recommendations which, if adopted, will strengthen impartial decision making and help maintain the legitimacy of the federal judiciary. Of particular note is the recommendation that the Australia government should establish a federal judicial commission to support judicial impartiality and public confidence.

Carne v Crime and Corruption Commission [2022] QCA 141

The Crime and Corruption Commission (CCC) prepared a report in 2020 following an investigation into the former Public Trustee, Mr Carne. The CCC provided the report to the Parliamentary Crime and Corruption Commission (PCCC) on 6 October 2020 and requested that the PCCC direct that the report be given to the Speaker for tabling in the legislative assembly, pursuant to s69(1)(b) of the Crime and Corruption Act 2001 (Qld) (the CC Act).

On 8 October 2020, Mr Carne commenced proceedings and sought a declaration that the report was not a report for the purposes of s69(1), and an injunction ordering the CCC retract its resolution to seek direction from the PCCC that the report be given to the speaker, or a declaration that the CCC’s resolution was invalid and of no effect.^[1] Mr Carne’s application was initially dismissed and he appealed the judgment to the QLD Court of Appeal.

Appeal

The appeal was allowed on the basis that the CCC acted outside of its functions and powers in preparing the report. Under the CC Act, the CCC may report in performing its functions.^[2] The Court’s consideration of the appeal rested on whether the report was made in the performance of the CCC’s corruption functions.

The Court found that, having investigated a complaint of corruption, the task of the CCC was to decide whether proceedings or disciplinary action should be considered. If the CCC decides that proceedings should be considered, it may report, not publicly, but to a prosecuting authority, a head of jurisdiction or the chief executive officer of the relevant unit of public administration. Otherwise, there is no provision by which it is to report. As the CCC had completed its investigation into Mr Carne and decided not to proceed with criminal or disciplinary proceedings, the CCC was not empowered or required to then make the report.

McMurdo and Mullins JJA held that, although the CCC has a function of raising standards of integrity and conduct in units of public administration, this is limited to its corruption function and “does not mean that the [CCC] has a wider function to do whatever it believes would be likely to promote a standard of conduct to be expected of senior public servants and public officials, beyond raising those standards above a level at which conduct is corrupt.”^[3]

Having found the CCC was not empowered or required to make the report, the Court held that the report could not then by the subject of parliamentary privilege.

The CCC has confirmed it will seek leave to appeal the judgment of the QLD Court of Appeal to the High Court of Australia.

Estimates update – Legal Affairs and Safety Committee

The estimates hearing for the Legal Affairs and Safety Committee (Committee) took place on 3 August 2022. The following topics were raised during the hearing.

Coaldrake Review

David Mackie is leading the integrity reform steering committee and the taskforce overseeing the Coaldrake recommendations. At the time of this hearing, the taskforce:

• is in place for 6 months but this may be extended;
• is developing a detailed implementation plan where stage 1 is to identify which recommendations can be implemented quickly and easily;
• is identifying key stakeholders, such as the Committee; and
• will be identifying the financial implications of implementing some Coaldrake recommendations.

CCC’s Influencing Practices in Queensland paper

The Influencing Practices in Queensland paper prepared by the CCC is calling for submissions in respect of the electoral process and lobbying. These influencing practices, including lobbying, may raise concerns relating to corruption risks.

Although the CCC is still at the early stage of the review process, the CCC is currently looking at submissions it has received. Further, the CCC has written to lobbying companies inviting them to contribute to the process.

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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] Judgment at [11].
[2] S64.
[3] Judgment at [26].