Carne v Crime and Corruption Commission

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SUPREME COURT OF QUEENSLAND

CITATION:

Carne v Crime and Corruption Commission [2022] QCA 141

PARTIES:

PETER DAMIEN CARNE
(appellant)
v
CRIME AND CORRUPTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 11753 of 2021
SC No 10786 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2021] QSC 228 (Davis J)

DELIVERED ON:

5 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2022; further written submissions received on 30 June 2022

JUDGES:

McMurdo and Mullins JJA and Freeburn J

ORDERS:

1.   Appeal allowed.

2.   Set aside the order made in the Trial Division on 10 September 2021 dismissing the appellant’s application.

3. Declare that the document made by the respondent entitled “An investigation into allegations relating to the former Public Trustee of Queensland: Investigation Report” is not a report for the purposes of s 69(1) of the Crime and Corruption Act 2001 (Qld).

4.   The respondent to pay the appellant’s costs of the appeal.

5.   Liberty to apply for such further orders consistent with this judgment by written submissions, not to exceed five pages in length, to be submitted within 21 days of the delivery of this Court’s judgment.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – where the respondent investigated allegations of corrupt conduct made against the appellant – where no finding of corrupt conduct was made – where the respondent prepared a report of that investigation purportedly pursuant to s 69 of the Crime and Corruption Act 2001 (Qld) (“the Act”) – where the purposes of the Act are to combat and reduce the incidence of major crime and to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector – where, to achieve those purposes, the Act confers upon the Crime and Corruption Commission (“the Commission”), inter alia, prevention and corruption functions – where by s 64 of the Act the Commission is empowered to report in performing its functions – where by s 23 of the Act the Commission’s prevention function is concerned with the prevention of major crime and corruption – where by s 33 of the Act the Commission’s corruption function empowers it to deal with conduct which is corrupt conduct – whether the Commission’s prevention function extends to a broader function of helping to prevent conduct by senior public servants and public officials which might be considered to fall short of a standard to be expected of them where that conduct does not constitute major crime or corruption – whether the Commission’s corruption function empowers it 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 – whether the Commission remains empowered to report under s 64 of the Act after performing its functions – whether s 69 of the Act confers upon the Commission a general power to report – whether…

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Details
Case
[2022] QCA 141
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by Mr Carne against the Crime and Corruption Commission (the respondent), which had investigated allegations of corrupt conduct against him. The dispute arose when the respondent prepared a report of the investigation and sought to have it tabled in the Legislative Assembly. The central legal issues in the case revolved around the interpretation of the Crime and Corruption Act 2001 (Qld) and the extent to which the respondent's functions under the Act allowed it to report on conduct that did not constitute major crime or corruption. The court was required to decide whether the respondent's prevention and corruption functions empowered it to report on conduct that did not meet expected standards but was not criminal or corrupt. Additionally, the court had to determine if section 69 of the Act conferred a general reporting power upon the respondent and whether the report in question was a "report" for the purposes of that section. The court also needed to address the issue of parliamentary privilege and whether it applied to the preparation of the report, potentially precluding judicial review of the appellant's claims about procedural fairness.

The court's reasoning and outcome in this case were grounded in the statutory interpretation of the Crime and Corruption Act and the principles of parliamentary privilege. The court found that the respondent's prevention function did not extend to helping prevent conduct that fell short of expected standards if that conduct was not criminal or corrupt. Similarly, the respondent's corruption function did not empower it to report on conduct beyond what was defined as corrupt under the Act. Regarding section 69, the court determined that it did not confer a general reporting power but was limited to specific instances outlined in the Act. Consequently, the report in question did not qualify as a "report" for the purposes of section 69(1) because it was not one of the types of reports explicitly mentioned in the Act. The court further held that parliamentary privilege protected the report, precluding the appellant's claims about procedural fairness from judicial review. This protection meant that the issues of procedural fairness and the publication of the report were within the purview of the Legislative Assembly, not the courts.

The final orders of the court were that the appeal was allowed, the previous order dismissing the appellant's application was set aside, and it was declared that the respondent's report was not a report for the purposes of section 69(1) of the Crime and Corruption Act. The respondent was ordered to pay the appellant's costs of the appeal. Additionally, the respondent was granted liberty to apply for further orders consistent with the judgment within 21 days of the court's decision.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order made in the Trial Division on 10 September 2021 dismissing the appellant’s application.

3. Declare that the document made by the respondent entitled “An investigation into allegations relating to the former Public Trustee of Queensland: Investigation Report” is not a report for the purposes of s 69(1) of the Crime and Corruption Act 2001 (Qld).

4. The respondent to pay the appellant’s costs of the appeal.

5. Liberty to apply for such further orders consistent with this judgment by written submissions, not to exceed five pages in length, to be submitted within 21 days of the delivery of this Court’s judgment.

Background

Background to the litigation

Before considering each of those questions, it is necessary to say something of the factual background and the role of the Commission and the PCCC.Factual Background The statement of agreed facts explains how the report came into existence and how the dispute arose:(a)On 25 June 2018, the Commission received an anonymous complaint against the appellant.(b)That complaint was assessed by the Commission to involve multiple allegations of “corrupt conduct” under s 15 of the CC Act.(c)In July 2018, the complaint was referred to the Commission’s Corruption Operations Division for investigation.(d)In August 2018, the Commission received further correspondence from the same anonymous source who disclosed some additional information.(e)In September 2018, the Commission commenced an investigation of the allegations against the appellant.(f)On 13 June 2019, the appellant was advised by the Attorney-General of the allegations against him, and he was immediately suspended from office.(g)By an email on 17 June 2019, the Commission notified the appellant of the Commission’s investigation and requested an opportunity to conduct:i. A formal disciplinary interview to allow the appellant to hear the allegations against him and to provide comment; andii. A separate criminal interview concerning matters related to the use of resources of the Public Trust Office.(h)Between June 2019 and January 2020, the Commission and the appellant’s solicitors exchanged correspondence about the subject matter of the investigation, and the process for proposed interviews.(i)The appellant did not participate in an interview with the Commission during the period from June 2019 to January 2020 in relation to the Commission’s investigation.(j)On 27 November 2019, the Attorney-General served the appellant with a “show cause” letter containing various allegations against him.(k)On 28 January 2020, the appellant was examined by a psychiatrist.(l)On 13 February 2020, the appellant’s solicitors advised the Commission that the appellant was unable to participate in any interview at that time because of the state of his mental health.(m)The appellant has never been interviewed by the Commission in connection with the investigation and has never provided a written response to the Attorney-General’s “show cause” letter.(n)The Commission says that it completed the investigation on 3 April 2020 and that no further investigation of the appellant is contemplated by it under the CC Act.(o)On 30 April 2020, the Commission advised the appellant’s solicitors that it had concluded its investigation and advised that at the current time it was not proposing any criminal proceedings against the appellant.(p)By a separate letter on the same day the Commission advised the Attorney-General that: i. it had determined that no criminal prosecution would be pursued against the appellant;ii. the Commission had concluded its investigation into the appellant.(q)On 19 June 2020, a private meeting was held between the Chair of the PCCC and the Chair of the Commission during which the PCCC Chair asked: “Did you say you are proposing to prepare a report in relation to this matter because it seems like, again, a cultural issue, as we have discussed in relation to the earlier matter?”The Chair of the Commission responded:“We have not decided finally, but for the reasons you are articulating I think it is one that we should, because it is high profile and it has been in the media. We have not charged him. His show cause will take its course and, after all that has settled, I think we probably should articulate some of the concerns that we had.”(r)On 31 July 2020, the appellant resigned as the Public Trustee prior to the ”show cause” matter being finalised; the appellant’s resignation brought the “show cause” process to an end.(s)On 4 September 2020, the Commission sent a letter to the appellant’s solicitors which:i. advised that the Commission “intends to publish a report on this investigation in accordance with section 69 of the [CC Act], providing an overview of the investigation and outcomes”.ii. Enclosed a copy of the draft report for the appellant’s consideration prior to any publication and invited the appellant to provide comments by 9 September 2020.(t)On 9 September 2020, the Commission extended the time for the appellant to make a submission until 16 September 2020.(u)On 11 September 2020, a private meeting was held between the PCCC and the Commission during which the Commission advised the PCCC that the Commission would be seeking a direction under s 69 of the CC Act.(v)On 16 September 2020, the appellant’s solicitors delivered confidential submissions in response to the draft report.(w)On 18 September 2020, the Commission wrote to the appellant’s solicitors seeking, among other things, responses to particular issues raised by media publications attributing various comments to the appellant.(x)On 23 September 2020, the appellant’s solicitors responded.(y)On 30 September 2020, the appellant’s solicitors:i. wrote to the Commission challenging the basis on which the Commission proposed to proceed under s 69 of the CC Act and requested that the Commission reconsider publishing the report to avoid legal proceedings; andii. wrote to the PCCC enclosing its letter to the Commission.(z)On 6 October 2020, the Commission advised the appellant’s solicitors that their submissions had been considered, attached a copy of the report and stated that the Commission had approved the seeking of a direction from the PCCC pursuant to s 69(1)(b) of the CC Act to enable tabling of the report in the Legislative Assembly.(aa)On that same day, the Commission sent the report to the PCCC and requested that pursuant to s 69(1)(b) of the CC Act, the PCCC direct that the report be given to the Speaker of the Legislative Assembly. The Commission attached a briefing note and flying minute recording the Commission’s decision to approve the seeking of that direction.(bb)On 8 October 2020, the appellant commenced this proceeding seeking declarations and an injunction.(cc)By letter dated 8 October 2020, the Commission advised the PCCC of the proceeding and requested that the PCCC refrain from further considering the report and giving a direction under s 69(1)(b) of the Act until the appellant’s proceeding had been heard by the Court.(dd)By letter dated 8 October 2020, the Commission advised the appellant’s solicitors that the Commission would not pursue a direction under s 69(1)(b) of the CC Act until the proceedings had been decided by the court.(ee)By letter dated 13 October 2020, the PCCC advised the Commission that it had resolved, as per the Commission’s request, to defer consideration of the Commission’s request for a direction to give the final report to the Speaker in accordance with s 69(1)(b) of the CC Act until the appellant’s application had been decided by the court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As the report is protected by parliamentary privilege, the appellant’s claims about procedural fairness are not justiciable. The issues of procedural fairness and the publication of the report are properly within the borders of the business of parliament.The Declarations and Injunctions There is a further reason for refusing the relief sought by the appellant. The terms of the declarations and injunctions sought by the appellant are set out above.[132] In broad terms the appellant seeks:(a)declarations that s 69(1) of the CC Act does not apply to the report, that in preparing the report the Commission failed to observe the requirements of natural justice, and that the resolution of the Commission seeking a direction from the PCCC that the report be given to the Speaker was invalid; and(b)a mandatory injunction requiring the Commission to retract that resolution.[132]Paragraph [85] above. The relief sought in the notice of appeal is similar but omits the claim for an injunction. There are some inherent problems. The first is that the report has already been sent by the Commission to the PCCC. That occurred on 6 October 2020.[133] That means that the PCCC is entitled to direct that the report be given to the Speaker pursuant to s 69(1)(b) of the CC Act.[134] The second is that the Commission’s own resolution to seek a direction from the PCCC is not an act or a step that is authorised by the CC Act. It may be that, as a matter of practice, the Commission requests such a direction from the PCCC. However, the Act gives the PCCC a right to direct that a report be given to the Speaker irrespective of whether the Commission invites such a direction.[133]Paragraph [89] above.[134]At present, of course, the PCCC has agreed to await the court’s decision. That leads to the third problem. At the core of the relief sought by the appellant is a desire to stop the PCCC from directing that the report be given to the Speaker.[135] That rather starkly exposes the difficulty. In other words, whilst the terms of the declarations and injunction go to some effort to avoid directly impacting the PCCC, in substance what the appellant asks this court to restrain is the PCCC’s right to direct that the report be given to the Speaker.[135]Even if the PCCC did not yet have the report the terms of s 69 still entitle the PCCC to issue a direction. In my view, orders to that effect would be contrary to the principle that parliamentary proceedings are immune from outside examination by other organs of the state and would be to trespass inadvertently into the legislature’s province. Finally, there is good reason to be sympathetic to the appellant’s plight. If the PCCC does decide to direct that the report be given to the Speaker, then unproven and untested allegations against him will enter the public domain. However, the decision that the PCCC makes about that, and its balancing of the legitimate reputational interests of the appellant as against the public interest as reflected in the CC Act, are a matter for the PCCC – an arm of parliament. It is not this court’s role to either enjoin the Commission from submitting the report to the PCCC or to enjoin the PCCC from deciding to direct that the report be given to the Speaker.