The ink is dry on Tony Fitzgerald’s report into how corruption is investigated in Queensland, but it remains unclear how the state government will deal with a long list of “additional issues” that weren’t within the inquiry’s terms of reference.
Key points:
- The report aims to steer the CCC away from mainly criminal investigations, Professor AJ Brown says
- Misconduct law specialist Calvin Gnech says a lack of public hearings was a missed opportunity
- Protection for whistleblowers was not covered by the terms of the inquiry and still needs to be addressed, critics say
Mr Fitzgerald, who led the historic Fitzgerald Inquiry into police corruption 30 years ago, co-chaired the inquiry with retired Supreme Court justice Alan Wilson.
Their findings on rebuilding public trust in the Crime and Corruption Commission (CCC) were released yesterday.
As the authors noted, the report was “not Fitzgerald 2.0”, and was charged only with examining and reporting on “quite specific aspects” of the CCC’s operations.
The 10 “additional issues” outlined in the report’s appendix include how the CCC should be funded, the need for a clearing house for corruption complaints, and the need for certain legislative reforms.
The report was commissioned by the Queensland government after a string of high-profile failed prosecutions, and the finding by the Parliamentary Crime and Corruption Committee (PCCC) that the CCC had erred in its decision to charge eight Logan City councilors with fraud in 2019.
One of the key recommendations is that fewer police be seconded to the CCC, in favor of training up “civilian investigators” from a range of other professional backgrounds.
Griffith University public policy and law Professor AJ Brown said this was to allow the CCC to pivot away from predominantly criminal prosecutions.
He said there were many instances of corruption and misconduct being raised that did not meet the benchmark of a criminal offence, but nonetheless needed to be stamped out.
“The remedy may not be a criminal prosecution, it might be disciplinary action in relation to individuals, or it might be system reform in relation to procedures and institutions,” he said.
“When the CCC looks at serious misconduct issues that are high corruption risks, like acting in the presence of undisclosed conflicts of interest or alleged favoritism or nepotism, the threshold that’s being used to judge those things is not necessarily simply whether a criminal offense has been committed.”
Professor Brown said the report was not suggesting civilians were better placed to judge corruption matters.
“There’s a range of different disciplines and skills that have to be brought to bear potentially, whether they’re a lawyer, or a police investigator or a forensic accountant or a policy person – they all need to see the big picture of corruption and what’s involved in addressing it and stopping it through all sorts of different angles.
“This is potentially a big turning point — not just in Queensland, but for anti-corruption investigations and training right around the country — to actually recognize that we need to have the skills that deal with that full complexity,” Professor Brown said.
Among the 87 submissions that the inquiry received, which were only publicly released when the report was complete, former Queensland police commissioner Bob Atkinson submitted his view that “unless there is clear criminal and/or corrupt activity, an educational approach is better than an aggressive prosecutorial approach”.
Mr Atkinson highlighted the prosecution of police Superintendent Michelle Stenner as an example of what he saw as misuse of the CCC’s powers on telephone intercepts, search warrants and covert methods to gather evidence.
Superintendent Stenner was acquitted of perjury in a retrial in October last year, after initially being prosecuted over allegedly giving false testimony to a CCC hearing in 2017.
Mr Atkinson argued that evidence-gathering techniques should only be used in the most serious matters.
“The Stenner case, which was never more than a HRM [human resource management] matter, is an example of the misuse of such powers [phone intercepts and coercive hearings],” he said.
Lack of public hearings a ‘missed opportunity’
Brisbane-based lawyer Calvin Gnech, who specializes in professional misconduct law, said the inquiry had missed the opportunity to reset the bar for transparency and the CCC.
“Only in recent times have the submissions of everyone been disclosed on the website, so the practical effect is there has been no contradiction to any of the submissions,” Mr Gnech said.
“And we now know that the CCC themselves submitted four separate submissions to the inquiry, and no stakeholder or no community member has been able to contradict those submissions in any way because of the way it was conducted.”
Mr Gnech said Mr Fitzgerald and Mr Wilson should have allowed public hearings as part of the review.
“This was the first reform in regards to corruption that was considered in Queensland since 1989, and ultimately a concerning feature of the whole inquiry that has been disappointing is the lack of any public hearings or transparency in regards to the submissions.
“At the moment, you’ll see the benefit of a public inquiry right here in Queensland by looking at the meticulous way that Commissioner Richards has conducted the inquiry into policing and domestic violence in a public way, to allow for public comment, and contradiction of any statements made by – in that inquiry – the police service or any other stakeholder.
“That’s been denied here in regards to the way the process of the inquiry was conducted, and it’s disappointing,” he said.
“I think looking back on this, for a number of reasons, this may well be a missed opportunity.”
Whistleblower protection still an open question
It’s the areas the CCC report didn’t examine that have attracted a lot of commentary, including those outlined in its appendix.
Professor Brown said the key unresolved issue remained how whistleblowers were to be protected under the Public Interest Disclosure Act.
“The parliamentary committee separately recommended that there needed to be a review of the … whistleblower protection laws and the government accepted that as a separate recommendation,” Professor Brown said.
“So I think everyone has been waiting for the government to say how it’s going to progress that review separately — it was never included in the terms of reference for this inquiry.”
Professor Brown said a legislative review remained critical because the commission of inquiry was a result of the CCC’s attempted intervention in support of the whistleblower who made the original Logan Council corruption allegations.
“So that’s sort of the unresolved issue at the heart of this,” he said.
“As part of the wash-up, it’s going to be very important that the Queensland government indicate how that review [of the Public Interest Disclosure Act] is going to happen so that the true root causes that really began this whole saga can actually be addressed.”
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