Removing the watchdog’s bark: Crime and Corruption Commission v Carne
24.10.2023
It is not uncommon for the activities of ad hoc and permanent commissions of inquiry to be the subject of judicial review. But the series of decisions that culminated in the very recent High Court decision of Crime and Corruption Commission v Carne [2023] HCA 28 requires special attention as they deal with the intersection of judicial review of a permanent commission of inquiry’s report provided to its parliamentary oversight committee, thereby potentially raising issues of parliamentary privilege.
Statutory Background
The Queensland Crime and Corruption Commission (CCC or the Commission) and its oversight committee, the Parliamentary Crime and Corruption Committee (PCCC) are established by the Crime and Corruption Act 2001 (QLD) (CC Act).
Section 64(1) of the CC Act provides that the ‘commission may report in performing its functions’. Section 69 of the CC Act provides that the section ‘applies to the following commission reports— (a) a report on a public hearing; (b) a research report or other report that the parliamentary committee directs be given to the Speaker' [emphasis added]. The section goes on to indicate that s 69 reports are to be provided to the Chair of the PCCC, the Speaker of the Legislative Assembly of Queensland (the Speaker) and the Minister and then tabled in the Legislative Assembly.
Section 8 of the Parliament of Queensland Act 2001 (POQ Act) provides that ‘the freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly’ [emphasis added]. The section essentially repeats and reinforces the historical protection of Article 9 of the Bill of Rights (1688). Article 9 is foundational to separation of parliament, courts and executive. It has been described as a ‘provision of the highest constitutional importance and should not be narrowly construed’ (Lord Browne in Pepper v Hart [1953] AC 593 at 638D) and that ‘its importance cannot be overstated’ (Lord Judge CJ in R v Chaytor [2011] 1 AC 684 at 714). Section 9(1) and (2) of the POQ Act provides a statutory definition of the term ‘proceedings in the Assembly’.
Section 55 of the POQ Act provides for the issuing of certificates by an authorised person (including a committee chairperson), as evidence of various matters, including that documents were prepared, presented to or made or published under the authority of the Assembly, a committee.
Factual Background
Mr Peter Carne was the Public Trustee of Queensland from March 2009 until March 2014 and again from March 2016 until his resignation effective from 31 July 2021. On 25 June 2018 the CCC received an anonymous complaint which alleged that Mr Carne had engaged in corrupt conduct.
On 17 June 2019, Mr Carne was notified of a CCC investigation into the complaint and was requested to attend both a formal disciplinary interview, to allow him to hear the allegations against him and to provide comment, as well as a separate criminal interview concerning matters related to the use of resources of the Public Trust Office.
On 27 November 2019, Mr Carne was served with a letter under the hand of the Attorney-General, asking him to show cause as to why he should not be dismissed from his role.
On 28 January 2020, Mr Carne was examined by a psychiatrist and his solicitors subsequently advised the CCC that he was unable to participate in any interview at that time because of the state of his mental health.
On 30 April 2020 the CCC sent a letter to Mr Carne advising him that it had concluded its investigation and it was not proposing to recommend that there be any criminal charges laid against him. The Attorney-General was also advised of this decision. At the same time, the CCC commenced preparations for a report on the allegations and investigations it had conducted, which it intended to make public through tabling in the Legislative Assembly.
On 19 June 2020, the PCCC held a private meeting at which the Commission gave evidence. At this meeting, the Chairperson of the CCC stated that although a final decision on whether a report would be presented was still to be made, it was likely one would.
On 31 July 2020, Mr Carne resigned from the position of Public Trustee, bringing to an end the show cause proceedings.
On 11 September 2020, at a meeting of the PCCC, the Chairperson of the PCCC asked whether the CCC would be seeking a direction under s69 of the CC Act for the tabling of the report, to which the Chairperson of the CCC responded in the affirmative. He added that he did not see 'why we should not publicly report in a matter that has so much public interest and is such an important matter in terms of workplace culture, corruption risks and so forth'.
On 6 October 2020, the Commission forwarded the report to the PCCC, and requested that, under s69(1)(b) of the CC Act, the PCCC direct that the report be given to the Speaker for tabling.
As a result, Mr Carne applied to the Supreme Court of Queensland for:
(a) a declaration that the report was not a report 'for the purposes of s69(1)’; and
(b) a mandatory injunction, pursuant to s 332 of the CC Act, that the CCC retract its resolution of 6 October 2020 to approve the seeking of a direction from the PCCC to enable tabling of the report and advise the PCCC of the same.
Trial
At trial, there were two key issues for consideration:
1. Was the report one to which s 69 of the Crime and Corruption Act 2001 (Qld) applied?
2. Was the report part of the proceedings of the Assembly, and thus, did parliamentary privilege attach to it?
In dismissing Mr Carne's application, Davis J (Carne v Crime and Corruption Commission [2021] QSC 228) found that the preparation of the report was authorised by s 64 of the CC Act and was protected by parliamentary privilege.
Davis J found that there was ‘no doubt that the CCC, in preparing the report and delivering it to the PCCC’, was acting under the authorisation in s 64 of the CC Act [121]. Further, the PCCC had accepted the report for the purpose of transacting the business of the PCCC [122].
Court of Appeal
On appeal to the Queensland Court of Appeal (Carne v Crime and Corruption Commission [2022] QCA 141), the majority of the court (Mullins and McMurdo JJ) found that, having investigated a complaint of corruption, the task of the CCC was to decide whether proceedings or disciplinary action should be considered. If the CCC decides that proceedings should be considered, it may report, not publicly, but to a prosecuting authority, a head of jurisdiction or the chief executive officer of the relevant unit of public administration [56]. Otherwise, there is no provision under the CC Act by which it is to report [56].
Having found the CCC was not empowered or required to make the report, the majority found that the report was not a report to which s 69 applies [68]-[69]. The majority then held that parliamentary privilege could not be conferred upon a document made and delivered to the PCCC in purported, but not actual performance of the CCC’s functions. In the majority’s view, the preparation and delivery of the report, without the operation of s 69, were not ‘acts done in transacting the business of the Assembly or its committee’ [80]-[81].
Freeburn J dissented and held that the CCC had the statutory power to prepare the report and that the report was subject to parliamentary privilege. His reasoning was similar to the trial Judge. On the interpretation of s 64 of the CC Act, His Honour stated:
... to interpret s 64(1) as only permitting reports whilst there remains a potential for criminal charges, or for disciplinary action, would be to read down the section too far. [134]
Freeburn J agreed with the trial judge that the report here was brought into existence for the purpose of being submitted to the PCCC and was actually submitted to the PCCC with a request that the PCCC direct that the report be given to the Speaker [176]-[183].
Issues before the High Court
The first ground of appeal was essentially the privilege issue. That is, was the report a proceeding in parliament? The CCC argued that the Court of Appeal was precluded from making the declaration by s 8(1) of the POQ Act, which prohibits ‘proceedings’ in the Legislative Assembly being ‘impeached or questioned’ in any court. According to the CCC, its preparation and presentation of the report were brought within the scope of ‘proceedings’ in the Legislative Assembly by operation of s 9 of the POQ Act.
The second ground of appeal went to construction of the CC Act. The CCC argued that the conclusion of the Court of Appeal that the report is not a report for the purposes of s 69(1) of the CC Act was erroneous.
Decision of the High Court
There were two joint judgments, both dismissing the appeal.
Kiefel CJ, Gageler and Jagot JJ found that the CCC's argument that its preparation and presentation of the report were brought within the scope of ‘proceedings’ in the Legislative Assembly by operation of s 9 of the POQ Act must be rejected on the facts. In their Honours’ view, because the report was not prepared for, or presented to, the committee for purposes of transacting business of the committee but rather, was presented to the PCCC for the Commission’s own purposes, s 9 of the POQ Act was not satisfied [23].
In respect of the second ground of appeal, their Honours held that the report was not a report to which s 69(1) of the CC Act applies. Further, there is no provision of the CC Act which authorises a report of this nature [26]-[27].
Gordon and Edelman JJ also found that the Court of Appeal was correct to find that the October draft was not a report for the purposes of s 69(1) of the CC Act.
In the view of the Gordon and Edelman JJ, parliamentary privilege does not present any obstacle to the declaration made by the Court of Appeal because, on the facts, no question of parliamentary privilege arose; no act was done in the course of, or for the purposes of or incidental to, transacting business of the PCCC to which parliamentary privilege could attach [78]. In particular, the October Draft was not prepared ‘for the purposes of or incidental to, transacting business’ of the PCCC, but rather for the purposes of the CCC [31], [78].
Observations on the High Court’s construction of the Act
As to the second ground, which related to whether the report was one contemplated by s 69 of the CC Act, the High Court’s interpretation of the CC Act was not surprising given the increasing tendency of the courts to read narrowly statutes regarding the jurisdiction and powers of permanent commissions of inquiry (see for example: Greiner v ICAC 2 [1992] 28 NSWLR 125; Balog v ICAC (1990) 169 CLR 625; Independent Commission Against Corruption v Cunneen [2015] HCA 14). The CC Act is an overly complex piece of legislation, one result of the CCC’s ‘one stop shop’ model. While the CCC's interpretation of the Act's over many years (26) was not unreasonable and supported through the litigation by two justices of the Supreme Court, the High Court’s interpretation was equally open and reasonable as a matter of statutory construction.
The lesson here for legislatures (once again) is that the statutory functions and powers of a permanent inquiry must be clearly set out and defined.
Observations on the decision on the privilege issue
The High Court’s decision on the first ground and the application of the provisions of the POQ Act is much more difficult to reconcile.
Both judgments avoided the issue of parliamentary privilege by finding ‘on the facts’ that the issue of privilege did not arise, because the relevant acts done did not satisfy the requirements of s 9 of the POQ Act. That is, that the CCC’s report was not prepared and submitted ‘for the purposes of the committee’ [31]. The fact a document was prepared for a committee’s consideration and provided to the committee was itself insufficient to trigger the relevant sub-parts of the statute.
In argument before the High Court, Mr Bret Walker SC, for the Speaker of the Legislative Assembly of Queensland, put that the motivations or purpose of both the person who produces the document and the person who receives it are irrelevant to the question of whether a document is prepared for the purposes of the Assembly or a committee. Mr Walker submitted that it is the functional connection, objectively considered, of the document with the Assembly or committee which must be considered. Kiefel CJ, Gageler and Jagot JJ explicitly accepted this proposition and then stated that ‘the mere preparation’ of a document for the Assembly or a committee, or presentation of a document to the Assembly or committee, by a third party will not suffice if there is no other connection to the work of the Assembly or a committee at the time the document was prepared [36].
Three points need to be made about this issue.
First, it is hard to escape the conclusion that the court, in identifying various statements made by the CCC in the material before it, was in fact identifying the motivations for the report and ascribing those motives to the CCC to determine 'purpose'.
Secondly, Kiefel CJ, Gageler and Jagot JJ appeared to adopt the notion of the ‘appropriative act’ for parliamentary privilege to apply. That is, privilege is not attracted to a document until the Assembly, committee, member or their agent does some act with respect to it for the purposes of transacting business. Their Honours seem to have embraced (at [36]) this concept as enunciated by McPherson JA in Rowley v O’Chee [2000] 1 Qd R 207 at 221 who in turn referred to cases like Rivlin v. Bilainkin [1953] 1 QB 485 and Grassby (1991) 55 A Crim R 419. The embracement of this doctrine will have implications for people like whistle-blowers, who unilaterally disclose material to committees and members. Further, it is unclear what appropriative act is required to activate the privilege. In Carne, the preparation of the report was anticipated by the PCCC, it was clearly prepared for the PCCC’s consideration, and it was presented to the committee and was under its consideration when the action was taken in the Supreme Court. What further acts needed to be taken?
Thirdly, Kiefel CJ, Gageler and Jagot JJ did not address the issue that there may be concurrent purposes for the creation and submission of documents to a committee. That is, both submitters and the committee may have differing, or the same, concurrent purposes. For example, if a committee is enquiring into the effectiveness and efficiency of a program the purpose of which is determine whether the program has been value for money and otherwise successful, but a submitter provides via submission evidence of criminal conduct (fraud) in the department overseeing the program.
Similarly, Gordon and Edelman JJ stated that the ‘current case may be distinguished from one where a parliamentary committee, upon receiving a document unrelated to the business of the parliamentary committee, elects to retain it for the purpose of transacting its business’. According to their Honours, ‘in such cases, the application of ss 8 and 9 of the POQ Act would have the result that the document would be privileged’.
It is difficult to comprehend how the report at the centre of Carne the report did not fall within this description. Again, the preparation of the report and the intention to present it to the committee was discussed in two separate PCCC meetings. Moreover, it was anticipated, it was prepared for the PCCC, provided to the PCCC and under consideration by the PCCC.
The public policy issue
A letter from the Chair of the Crime and Corruption Commission to the Chair of the Parliamentary Criminal Justice Committee argued that at least 32 reports and 256 media releases from the CCC, released over the past 26 years would never have been prepared and published if the High Court’s view of the act was known. The significance of the decision and its implications on the future operation of the CCC lays in the examination of that list, where there would have been no report or publically declared outcome of significant corruption investigations.
Without statutory amendment, the public will remain ‘in the dark’ about the outcomes of a large number of corruption investigations where a decision does not result in criminal proceedings, but nonetheless contain lessons for, and usually recommendations to reduce the incidence of corruption or misconduct in Queensland’s public sector. Also, the very real benefit in some people under investigation, who may have been wrongly accused or slurred, to have a public report clearing their name cannot be understated.
The CCC may be regarded as a permanent commission of inquiry, in that it has substantial power to inquire into suspected corruption, but unlike commissions of inquiry that are expected to publicly report ‘the truth of a matter’, the CCC has largely been muzzled.
Neil Laurie is the Clerk of the Parliament (Queensland), a position he has held since February 2003. Neil instructed counsel, on behalf of the Speaker of the Legislative Assembly, in all three proceedings associated with this matter.
Suggested citation: Neil Laurie, ‘Removing the watchdog’s bark: Crime and Corruption Commission v Carne’ (24 October 2023) <https://www.auspublaw.org/blog/2023/10/removing-the-watchdogs-bark-crime-and-corruption-commission-v-carne>