On 28 March 2013 the Hon. Ian Callinan AC and Professor Aroney submitted their Review of the Crime and Misconduct Commission Act 2001 to the Queensland Parliament.
This review made several recommendations for alteration of the Act.
In response, the ART made a Submission to the Queensland CMC Independent Advisory Panel Review
The ART submission was directed to recommendations 3D, 3E, and 3F (Paper p 2), made by the Crime and Misconduct Act Advisory Panel in its review. They propose that:
- A complainant be required to swear a statutory declaration which would include statements that the Act had been read and understood and that the complaint is not “baseless”.
- To avoid being baseless the complaint must have been made on the basis of something seen or heard by the complainant or on the basis of information provided by a credible person (not someone the complainant believed to be credible) and the complainant must have considered key definitions in the Act.
- There be substantial penalties for making “baseless” complaints and that a right to compensation from the complainant should be available to the CMC and the person subject of a” baseless” complaints.
- The Act be amended to raise the threshold for mandatory notification of matters to the CMC by public officials by requiring that the public official “reasonably suspect” a complaint involves or may involve official misconduct”.
- The MC should be obliged to instigate prosecutions for “egregious cases of baseless complaints”.
ART argued that:
The aim of the recommendations is to significantly reduce the number of what are described as “trivial” and “vexatious” complaints. If implemented they clearly will significantly discourage and so reduce the number of complaints made, although the impact on the vexatious is difficult to predict.
But there are serious consequences that would flow from such changes.
- Significantly discourage complaints of value. As the Panel acknowledged (p116, the Panel Report); it can be “the occasional seemingly insignificant allegation which leads to the uncovering of serious corruption”. A classic example is discussed in the attached Paper – the investigation into the Obeid family in New South Wales (Paper, p 13 – 14 ). At the outset all that was available was suspicions. After many months of investigations, it was still unclear, as counsel conceded in the opening of the public proceedings, that the minister’s decisions could be explained on the basis of bad governing. The reality is that the person making the complaint will not be in possession of all the facts and will be aware of that. In those circumstances, under the proposed changes, few people will be prepared to take the risks that would be involved in making a complaint to the CMC – particularly those who should be encouraged, especially the honest and careful. ln addition, anonymous complaints will no longer be possible.
2.Significantly weaken the anti-corruption system. Adoption of the proposed changes will significantly change Queensland’s anti-corruption system. At present it reflects generally accepted best practice by providing a peak body, a one-stop-shop to which people can take their concerns. It thereby receives “information of current and emerging misconduct issues” (Paper p 9). The proposed changes would end the one-stop-shop system and, by discouraging all complaints, sound and poor, seriously weaken the anti-corruption system. That will also, rightly or wrongly, send a message to the community and to all public officials, that the government no longer wishes to take crime, misconduct, abuse of office and corruption seriously. Public officials will be left with the impression that minor corruption may be tolerated and the deterrent presence of the CMC will be severely limited.
Such fundamental changes require a clear and strong case to be made out before they are accepted. The attached Paper examines the case put by the Panel. It raises several concerns.
- Argument based on numbers. The Panel relied heavily on numbers, arguing that the numbers spoke for themselves (Report, p 12). We submit that numbers are rarely able to speak for themselves and that to assess the significance of numbers, and to make comparisons between institutions and their performance, a thorough contextual analysis and evaluation of the systems in question is required. The panel acknowledged that that was not available (Paper pp 4-5).
When the numbers are investigated, and more recent numbers considered, what one finds is that the 42% increase in complaints, relied upon by the Panel, occurred over a four- year period, that the rate of increase had been declining significantly in 2010/2012, and that in 2012/13 the number of complaints had turned and was 15% less than the previous year (Paper pp 5 and 6).
What then are the numbers saying? Might they be saying that, if there was a “culture of complaint” it was declining?
The reality is that numbers alone cannot supply the answers – particularly about the causes of the changes in them. .
- Assessing complaints “on their face”. The Panel considered a sample of complaints provided by the CMC and came to the conclusion that many were “on their face trivial” (Paper p7). Such an approach is likely to be inaccurate because it is in the investigation of such complaints that it is often found that they are connected to more significant matters – the O’Beid case being a classic example.( See paper p 13 -14).
- A relevant matter overlooked? As noted, the Panel described many of the sample of complaints as trivial. But there is nothing to indicate that, in assessing their seriousness, consideration was given to the long standing principle of law and ethics that people holding public appointments are in positions of public trust. It is highly relevant. The law requires it to be considered when sentencing a public official charged with an offence as a result of a misconduct complaint, and convicted, in assessing the gravity of the offence (Paper p 8).
- The public interest. As the Panel identified, the debate concerns competing public interests. It mentions, but dismisses, with little discussion, the public interest concerns that support the status quo (Paper p10).
The ART agrees with the Panel that its proposals will significantly discourage many complainants from communicating their concerns to the CMC. But, for the reasons given, we submit that this will be at great cost to the effectiveness of the CMC and Queensland’s Government Integrity System.
We submit that recommendations 3D, 3E and 3F not be implemented.
The Queensland Government website containing information about the Review of the Crime and Misconduct Act 2001 is here
It has links to public submissions sought as part of the review, to an executive summary of the recommendations and to the final (redacted) report which was tabled in QLD Parliament on 18 April 2013