Queensland's corruption reform welcome, but there's more to be done

By Stephen Easton

March 28, 2017

The Queensland Government is expanding the definition of “corruption” and the investigative powers of the Crime and Corruption Commission, but the watchdog is still hungry for more reform.

The latest amendments will empower the agency to investigate “conduct of people outside the public sector which impairs, or could impair public confidence in public administration”  explained Attorney-General and Minister for Justice Yvette D’Ath.

“For example, this type of conduct might involve collusive tendering, fraud in relation to applications for licenses or permits issued by government, or where a person fraudulently obtains or retains an appointment within a unit of public administration,” she said.

The bill also aims to make it easier for the CCC to proactively investigate public sector corruption risks by giving it the power to look into behaviour that is “liable to allow, encourage, or cause corrupt conduct” according to the Minister.

Alan MacSporran QC

For CCC chair Alan MacSporran, reform can’t come soon enough but there is still more needed to resolve operational issues that stem from how its predecessor, the Crime and Misconduct Commission, was established by merging the former Queensland Crime Commission and Criminal Justice Commission in 2002.

MacSporran said the two respective acts that established each agency — the CJC in 1989 after the explosive Fitzgerald Royal Commission, and the QCC in 1997 — “were just thrown together” to form the CMC.

“That has caused huge problems for our functionality ever since,” he said at this year’s inaugural National Integrity conference.

“We’ve made submissions and to their credit, our parliamentary oversight committee has recommended on a number of occasions now that there be a rationalisation of the difficulties that arose from that merger.”

Unlike some other anti-corruption bodies, the CCC also uses extraordinary powers to investigate serious and organised crime, similar to the role of a body like the New South Wales Crime Commission. But it has different standards for when it can use its extraordinary policing powers, depending on whether it is trying to force information out of witnesses and suspects in serious criminal matters or looking into possible corruption.

According to MacSporran, “those differences, small though they are, create huge functionality problems” for the body, which does everything from covert surveillance and undercover operations, coercive questioning and witness protection to research, proceeds of crime regulation, prevention and investigation of public sector corruption complaints and police oversight.

Extraordinary policing powers are subject to extraordinary oversight, with good reason. But the slightly different rules that apply in different situations just wastes time.

“There’s no reason in common sense and logic why there should be a difference,” said MacSporran, who hopes the intention behind the 15-year-old merger can come to life through another round of legislative reform.

He acknowledges it’s “on the government’s radar” and needs to be addressed separately to the changes introduced last week. “We’re hoping it will happen sooner rather than later,” he said.

Most CCC crime-related hearings are private and it has broken open several high-profile murder cases when normal police investigations had stalled, without prejudicing later trials in court.

But for allegations of government corruption, MacSporran sees public hearings as a much more “useful tool” and plans to “gradually ramp up” the CCC’s use of them, where appropriate. Publicity can flush out additional evidence, but it can also alert the crooks to get their stories straight and cover their tracks.

“A public hearing power is usually beneficial when you need to expose corruption, where you need to educate the public, including the public service,” he said.

Public service “disciplinary matters” are usually referred to the relevant agency head — as in the recent case of Minister Mark Bailey’s alleged use of a private email account — but the CCC can also ask them to step aside again, as it did in the same case. If the CCC is unhappy with the results, it can also appeal to the Queensland Civil and Administrative Tribunal.

Public sector investigations that come to nought are usually still a “win” in MacSporran’s view. They either disprove worrying allegations, restoring some confidence, or they demonstrate an undeniable need for public service reform in cases where the investigation hit a brick wall due to missing records or other administrative failures.

Limited resources makes integrity a group effort

Minister D’Ath also noted that all public sector bodies have a role to play. Integrity can’t be left to bodies like the CCC, which have limited funding like everyone else.

MacSporran said the “Rolls Royce model” would have the resources and jurisdiction to reach into the private sector like the Hong Kong Independent Commission Against Corruption, echoing the chair of Victoria’s Independent Broad-based Anti-corruption Commission, Stephen O’Bryan, in an earlier presentation. But given Hong Kong’s ICAC has about 2000 employees compared to the CCC’s 350, neither is holding his breath.

The last round of reform under the previous government removed the CCC’s role in prevention of public sector corruption, which was  restored last year. In light of funding restraints, its chair views prevention as “critically important” to its public sector integrity role.

“In these days, where there’s budgetary constraints, where everyone’s expected to do more with less, including us, you can’t sustain the notion that you can investigate everything, you can put people before the courts and you can wipe out corruption and crime,” he said. “It’s just unrealistic.”

No funding was taken away when the prevention role was removed, so none was restored either, and the process of working out how to re-create a budget for prevention is a “work in progress” although big data analytics and predictive algorithms are coming into play.

The 2014 reforms also limited public sector complaints that go to the CCC to the more serious end of the spectrum. Aiming to reduce the flood of “trivial” complaints was a good idea, in MacSporran’s view but, he said, changing the rules yet again also made it harder for Queenslanders to know whether their complaints would be welcome.

Another 2014 reform intending to reduce frivolous or vexatious allegations — requiring a statutory declaration — was also rolled back last year, having proved to be more trouble than it was worth. The CCC would “routinely, with no ulterior motive, circumvent that requirement” by treating allegations that came in without a statutory declaration as pieces of general intelligence the CCC could follow up.

“So that’s how we dealt with that, but it was also cumbersome and should have been unnecessary,” said MacSporran. “… it’s hard to know — we had no hard facts on this — but it stands to reason that we might have been, with that provision coming in, discouraging bonafide complaints.”

Limited resourcing puts agencies like the CCC between a rock and a hard place in this regard. Looking into relatively minor complaints can almost overwhelm the agency, but MacSporran believes the “greater good” is served by considering a large number of matters, even if only briefly, and “quickly deciding” if they have merit or not.

“Experience has shown, most notably in ICAC in New South Wales, that often the most serious corrupt conduct is uncovered by allegations that on their face seem very minor and somewhat trivial,” he said.

“But when the surface is scratched, lo and behold there is a huge corrupt network below that allegation.”

There’s no easy way out. It’s not easy to draw a line in legislation to reserve the CCC’s limited corruption-fighting resources for only serious and systemic matters. “We need to see those complaints and look at them and assess them properly,” said MacSporran, even though it takes a lot of time.

But, he added, the CCC is trying to improve efficiency by getting as many staff as possible working across the full breadth of its functions.

“With the limited resources we have, you can’t have silos. You’ve got to have a workforce that’s agile and flexible enough to be deployed across the agency.

“So we’re developing the notion that it might be five or more businesses under one roof, but it’s [also] one, the CCC. That’s the culture we’re developing, that’s the notion we’re encouraging, that’s the tone we’re setting, and it’s necessary for us to manage along appropriately.”

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