Crime and Corruption Commission v Carne

[2022] HCATrans 225

[2022] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2022

B e t w e e n -

CRIME AND CORRUPTION COMMISSION

Applicant

and

PETER DAMIEN CARNE

Respondent

Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 12.29 PM

Copyright in the High Court of Australia

MR P.J. DUNNING, KC:   May it please the Court, I appear with my learned friends MR M.R. WILKINSON and MS S.E.D. SPOTTISWOOD for the applicant, the Commission.  (instructed by Crime and Corruption Commission)

MR J.M. HORTON, KC appears with MR J.P. PEMBERTON for the respondent.  (instructed by Gilshenan & Luton Legal Practice)

KIEFEL CJ:   I might ask Mr Horton to address the Court first, Mr Dunning.

MR DUNNING:   Of course, thank you, Chief Justice.

KIEFEL CJ:   Mr Horton, regardless of whether or not the applicant has misunderstood aspects of the issues raised and how they were dealt with by the Court of Appeal, why is this not a matter of sufficient public importance and, involving as it does both the statutory scheme and the intersection with parliamentary privilege, that this Court should not consider the matter itself?

MR HORTON:   Yes, it satisfies those requirements, in our respectful submission, Chief Justice, but there are two real reasons why we say that it is not an appropriate matter for special leave.  The first is this, that we raised below at first instance and in the intermediate court, the question of whether there was a denial of procedural fairness.  That matter has never been determined.  So, if the matter were to be heard by this Court in a substantive sense, this Court would be treated as a trial court in terms of having at least, potentially, to determine that question, upon which there are no findings.  And that would be no insubstantial task.  There is a section 55 certificate, that is, a certificate from the chair of the parliamentary body which is not conclusive evidence but is evidence of privilege attaching.  That point, as we said, has never been determined and so it adds a complexity to this case which means it is not simply a question of statutory construction.  That is the first point.

The second is this, sometimes in cases like this where there is a matter of public importance involved, and this action is against an individual, and where the public body benefits, if you like, from the broader interpretation and the jurisprudence of this Court, there is often an agreement to pay the costs regardless of the outcome of the other party, particularly where one benefits from the fruits of the judgments below.  And that has not been the case here.

KIEFEL CJ:   Has there been any discussion, has that been sought?

MR HORTON:   No.

KIEFEL CJ:   Just returning to your first point, Mr Horton, the procedural fairness point.  You say that makes this an inappropriate vehicle for the consideration of the broader statutory questions; could you develop that, please?

MR HORTON:   Yes.  At first instance, it was alleged that there was a denial of procedural fairness in this sense, that the report had been sent to our client and later there were adjustments to it upon which our client had an opportunity to comment.  And one of those particular amendments was pejorative remarks about there being repeated and undoubted failures with respect to integrity.

So, we had a point about procedural fairness.  We raised it before the trial judge.  The trial judge declined to deal with the issue on the basis that the report was privileged.  There were no factual findings made at first instance.  Then, on appeal, again, the way the court resolved the issue meant that the procedural fairness point did not need to be raised because we succeed on our primary point.

Really, the point comes down to this.  We would need, in argument, to re‑run that point because it is one of our main points.  It may not need to be decided, of course, if we succeed again on our primary point, but if we did not, we would wish to run that.  It is really an Ainsworth‑style case, your Honour, that is, whether or not the report is privileged, arguably, this – it is amenable to a declaration of breach of procedural fairness, but of course our primary case is it is not privileged, there was a denial of procedural fairness, but that particular point has never been determined.  It just really makes it a more factual and complicated case than simply a question of statutory construction.

KIEFEL CJ:   Yes, I see.

MR HORTON:   But I am not suggesting it takes away from the point to statutory interpretation, it is just really an additional point of complexity and treats this Court, to some extent, as a trial court on that point.

KIEFEL CJ:   Yes, I see.  Is there anything further you wish to ‑ ‑ ‑

MR HORTON:   If your Honour is putting – I have accepted that there is a point of general importance, we can develop, of course, that there is no reason to doubt the correctness of the majority’s decision below, but as I am ‑ ‑ ‑

KIEFEL CJ:   Why do you not develop that submission as well?

MR HORTON:   Yes, can I please.  Could I take you, please, to some findings of the majority, beginning at application book 68.  The majority decision, paragraphs [14] and [15].  Your Honours will see there that the question which the court is addressing is the primary point raised below.  Is this particular accord one which is of a kind which is capable of being published?  That is entirely separate, of course, from the question of whether it can be given to the oversight body.  No point was taken below expressly so about the ability of the CCC to present and submit this report to the body which oversees it – that is, the Parliamentary Crime and Corruption Commission.

We then take you, please, to application book 72, paragraph [26] of the majority reasons.  This is where the majority considers this, you will see from the second half of the paragraph, your Honours, the question is whether the CCC has a function in raising the standard beyond that legally recognised by the Act – that is, of corrupt conduct.

Over the page, to paragraph [30], at application book reference 73, you will see that the Act defined the way in which the Commission here could deal with the complaint.  The contest between the parties here seems to be between the very general powers and the specific ones.  We accept that the Commission here has very general powers, but then, when one gets to the specific function being exercised – which here is considering a complaint – there are specific things that can be done; the majority has regard to them.  Relevantly speaking, in paragraph [30], the outcome of considering a complaint is its referral:

to an appropriate authority –

an adjudicative authority, bearing in mind the CCC is an investigative body, primarily, or:

(d)      starting a disciplinary proceeding –

itself.  Now, here, of course, the CCC did refer the complaint to the Director of Public Prosecutions, who declined to proceed further.  There was no start of a disciplinary proceeding by the CCC, by commencing application in the Queensland Civil and Administrative Tribunal.  So, with that, the majority found the work of the Commission was exhausted.  That is, the complaint had been dealt with in the way the Act contemplated, and your Honours will see there in paragraph [32] on that same page of the application book, section 49 deals with – and you will see the heading there, “Reports about complaints dealt with by the commission”.

So, the applicant says, of course, that section 64(1), the ability to report generally, is something which was found below to not be permissible unless there is a positive finding of corrupt conduct.  With respect, the finding of the majority is this, that when one comes to the specific function about reporting in response to a complaint about corrupt conduct, section 49 is the way in which specifically that function is discharged.

Now, this is of no small moment because at this point the CCC is behaving like an investigative body but transgressing – careful not to, of course – must be careful not to – to transgress into an adjudicative body.  The way the CCC would read the section would be to permit it to give a report publicly about matters which the DPP decided not to prosecute, about which it decided not to apply to QCAT about, but which it seeks the protection of parliamentary privilege to report, in effect, to the world at large.

You will see that in section 49, your Honours, that that is the way in which the Commission can report, and there is relevantly two ways here; one, to a prosecution authority, if you turn the page, subsection (2)(a).  That was done and it was unsuccessful in the sense that that body, the DPP, decided not to proceed; and (f), to the chief executive officer, which here was the Attorney‑General.  That is the reporting in a specific sense to which the majority had reference in a more specific sense than those general functions, for example, in section 64.  Section 64, your Honours will see, is at application book 75, paragraph [36].  Subsection (1):

The commission may report in performing its functions.

Yes, the particular function here, though, was the one to which the majority had regard, which was responding to a complaint about corrupt conduct which the Act contemplates be dealt with in three relevant ways:  the DPP, QCAT and reporting to the Attorney‑General.  You can see that the majority was mindful of the adjudicative investigative distinction, if you return to paragraph [34] on the preceding page, application book 74, where in the second line of that paragraph the majority referred to this not being an adjudicative role.  That is, it is the role of the CCC to investigate, not to adjudicate.

This Court has already considered this point in Balog’s Case and decided, of course, that bodies like this are primarily investigative bodies and that their function is facilitative for others to adjudicate – and this Act, it is the same.  So, although the point might be important, it is one that has already been visited by this Court in Balog’s Case, and this case does not give any reason to depart from that well‑established precedent.

Can we take your Honours, then, please, to section 69, which is at application book 77, in paragraph [45] of the majority’s reasons.  This section is fundamental to the matter in this sense.  The applicant would say this case is all about reporting to the parliamentary oversight body which, as we said, was never in issue and remains not in issue.  But, section 69 is the gateway by which it is assessed whether a report – which was not the subject of a report in a public hearing – can be made public.  This is the important protection that lies between the report that is inside and outside the Commission’s functions which might then lead to a tabling in Parliament.

It is this provision about which the majority said below, one needs first to find a function in the CCC before it can be the subject of a tabling.  This is the section which engages the Court’s power to rule on whether a report was in or outside the Commission’s functions and that is the way in which the majority concluded the matter.

You will see that from the conclusions about section 69, your Honours.  Application book 81, first at the top of the page, which is the end of paragraph [59] of the majority reasons, it was regarded the Commission had addressed the complaint “already”, because “it has completed its investigation”.  Paragraph [61]:  the general function in section 34 of the Crime and Corruption Act did not expand the functions of the Commission – that is repeated in paragraph [64].  Then, [67] in the conclusions at the bottom of the page:

The relevant functions of the Commission in this case are the corruption functions.

And the corruption functions, over the page, are dealt with in the way which we have already taken your Honours to.  There was no other action to be taken by the Commission to address the complaint.

JAGOT J:   Mr Horton, can I – I am sorry.  You complete your thought.

MR HORTON:   I already had, your Honour.

JAGOT J:   You had completed it, okay.

MR HORTON:   Thank you.

JAGOT J:   I am not following how the procedural fairness point bites, because the primary judge dealt with it at [175] to [177] on page 57 on the basis that, because of the parliamentary privilege conclusion, the procedural fairness challenge was not justiciable.  Then the Court of Appeal determined it on the basis effectively of section 69, and the report was not one to which section 69 applied – therefore no parliamentary privilege – and the orders that are sought at page 114 in the special leave application is the setting aside of the orders of the Court of Appeal and the restoration of the orders of the trial judge.

Between those two poles, if the Court of Appeal is right, it is right.  If the trial judge is right, the trial judge is right.  I am not following how the procedural fairness issue will arise in this Court.

MR HORTON:   Yes.  It arises only if we were not to succeed on our primary point, which is one we fixated on, of course, in the Court of Appeal.  That is the first point.

JAGOT J:   But then it will not arise if parliamentary privilege follows either, or it does arise?

MR HORTON:   We say it does, in two senses, your Honour.

JAGOT J:   Right.

MR HORTON:   One is the Ainsworth sense.  Now, you will recall that in Ainsworth the report had in fact been tabled, but this Court issued a declaration that the persons whose reputation was affected had been denied procedural fairness.  Now, Justice Brennan dealt expressly with the parliamentary privilege and said it did not preclude the declaration.

Now, we accept that since that case the Parliament of Queensland Act has been passed which may change matters, but we would suggest not materially.  So, that is the way in which it might arise, your Honour; that is, even if the report were to be considered privileged fully i.e. the contents, to issue a declaration of the CCC’s denial of procedural fairness does not in any way impeach the proceedings of Parliament, including of its committee.

JAGOT J:   Well, that might itself be an important issue.

MR HORTON:   I do not want to . . . . . myself into . . . . . but, as you know, we have accepted the importance generally of the matter, and my point was not really it was unimportant, my point was there were more issues than at first appeared in the matter because there were some residual points, or one residual point in particular, which had not been resolved below.  It was just an additional point, rather than saying it was unimportant.

JAGOT J:   Okay.  Thank you.

KIEFEL CJ:   I think you were continuing your submissions about why there is no reason to doubt the correctness of the Court of Appeal’s ‑ ‑ ‑

MR HORTON:   Yes, that is really the point, your Honour.  I have come to the conclusion, that is really this, that the majority had regard both to the general powers of this Commission and to the specific ones, and it adopted a perfectly orthodox approach in saying that when it comes to the important function of assessing a complaint about corruption, one must look to the specific functions and the specific way in which the Act says this body may report, and the report is, in the normal way, to those bodies which might fairly and neutrally adjudicate it, or to the head of the relevant public service body.

It is an entirely orthodox decision.  It has been visited already by this Court in Balog’s Case, so the importance of it was recognised there, of course, but there is no occasion, because of the well‑settled principles, to revisit it on that basis, in our respectful submission.

KIEFEL CJ:   Yes, thank you, Mr Horton.

We need not trouble you, Mr Dunning.  There will be a grant of special leave in this matter.  Gentlemen, I would have thought that the matter could be dealt with comfortably within a day?

MR DUNNING:   We agree, thank you, Chief Justice.

KIEFEL CJ:   Mr Horton?

MR HORTON:   Yes, your Honour.  Yes.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn until 1.30 pm.

AT 12.48 PM THE MATTER WAS CONCLUDED