Australia: Queensland Government releases recommendations of the review of the Crime and Misconduct Act 2001

Key Points:

The recommendations, if implemented, would change the scope of matters referred to the Crime and Misconduct Commission and its focus.

The recently released review of the Crime and Misconduct Commission (CMC), Queensland's public sector (including police) official misconduct and corruption watchdog, makes a range of recommendations. Former High Court Justice Ian Callinan AC and Professor Nicholas Aroney have made 17 recommendations, which if adopted, will affect the future operation of the CMC.

In this article, we will highlight the key recommendations arising from the review.

About the Review

In October 2012, the Queensland Government announced the appointment of an expert advisory panel to review the Crime and Misconduct Act 2001 (Qld). The terms of reference provided that the advisory panel, consisting of Ian Callinan AC and Nicholas Aroney, should make recommendations as it thought fit:

  • as to whether the Act should be amended;
  • to improve the operation of agencies charged with powers and functions conferred by the Act;
  • to ensure the maintenance of public confidence in the Act and relevant agencies; and
  • to ensure the prioritisation of focus by the relevant agencies on criminal organisations, major crime, the elimination and prevention of corruption in public affairs and timeliness and appropriateness of action taken.

On 3 April 2013, chapter 11 of the advisory panel's review was released, which set out a summary of their conclusions and recommendations.

Threshold tests and complaints

The key focus of the advisory panel's recommendations, based on the opening statements in chapter 11, was whether the CMC, in its operations, is effective, efficient and economically conducted and whether there is an excessive "integrity industry" in Queensland.

After noting the very high number of complaints processed by the CMC, the advisory panel recommended the following actions be taken:

  • to raise the threshold of what conduct constitutes "official misconduct" in order to limit the scope of matters to be dealt with by the CMC (recommendation 3A);
  • that all complaints to the CMC should be accompanied by a statutory declaration to the effect that the complaint is not baseless (recommendation 3B);
  • that the CMC should accurately state all of the relevant legal requirements for the making of a genuine complaint on its website and internal documents (recommendation 3C); and
  • that the Act should be amended to enable the prosecution of those who make baseless complaints (recommendation 3D) and that the CMC should be obliged to instigate prosecutions for baseless complaints (recommendation 3F).

Relevantly, the advisory panel also recommended that the Act should be amended to raise the threshold for triggering the mandatory reporting of "official misconduct" by public officials (recommendation 3E). Presently, section 38 of the Act provides that public officials are required to report official misconduct on the forming of a "suspicion". In legal terms, this is a relatively low threshold. The advisory panel have recommended that the reporting obligation should only be triggered where a public official "reasonably suspects" that a complaint involves or may involve official misconduct.

Focus of the CMC

Another key issue for the advisory panel was whether the current educative functions of the CMC are a distraction. The following recommendations were directed towards this issue being:

  • that there should be an administrative restructure of the CMC to be conducted by the Public Service Commissioner (recommendation 1);
  • the CMC's preventative function should cease and should largely be undertaken by the Public Service Commission (recommendation 4);
  • that the Ethical Standards Units within Departments should disappear or at least be greatly reduced (recommendation 6) and that an Inspectorate within the Public Service Commission (recommendation 5) be established to deal with such matters; and
  • that research undertaken by the CMC should be limited (recommendation 12).

Next steps forward... debate and implementation

Among the recommendations put forward by the advisory panel was the establishment of an Implementation Panel (consisting of the Public Service Commissioner, the Chairperson of the CMC and two other persons including a senior lawyer) to "oversee and assure the speedy implementation" of the recommendations (recommendation 17).

The Queensland Government has already resolved to introduce this recommendation to ensure that appropriate reforms are undertaken.

The next step will be for the Implementation Panel to consider the form of any legislative amendments in implementing any or all of the advisory panel's recommendations.

No timeframes have yet been published on this point.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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