Review Mechanisms – Crime & Corruption (Restoring Reporting Powers) Amendment Bill 2025
This is the third commentary on this Bill which is set for a public Parliamentary Committee hearing on 24 March 2025, ahead of a Committee Report on 11 April 2025.
The first two commentaries dealt with how the Commission is to deal with public statements and reports and the proposed protections in respect of reputational damage for those affected by them.
This commentary examines strengthening review mechanisms, reputational repair protocol, and oversight by parliamentary commissioner as safeguards to ensure the Commission is accountable for the way in which it produces statements and reports.
Strengthening Review Mechanisms
The Holmes Review noted “…the predicament a person can find themself in if an anticorruption commission issues a report that includes findings they have engaged in corrupt conduct if there is insufficient evidence to warrant a prosecution so the person ‘never gets [their] day in court’ and can never clear their name”. (Holmes Review p 246) This potential predicament ultimately led the Queensland Human Rights Commission to submit that consideration should be given to “including mechanisms to challenge [decisions to report] and/or adverse findings in public reports”. (Holmes Review p 246)
A submission that a Supreme Court challenge to a report should extend to review on the ground that the findings made by the Commission “could not reasonably be supported by the evidence” was considered by the Holmes Review. This submission pointed to a similar appeal avenue to the District Court from findings made by a Coroner at an Inquest. (Holmes Review p 246)
The Holmes Review concluded “judicial review may be an imperfect safeguard, but the solution is not to introduce … merits review”. (Holmes Review p 248) This is against the background of the Review noting that in relation to judicial review, there is the difficulty of seeking relief “both in terms of proving a case and assembling the monetary resources to mount it”. (Holmes Review p 9)
Despite the Review’s conclusion, it is argued that as a policy measure, merits judicial review should be introduced to hold the Commission more accountable and as means of fully protect reputational rights arising from the Commission’s public statements and reports.
Reputational Repair Protocol
A reputational repair protocol is another desirable review mechanism. The Holmes report details “the Office of the Inspector in NSW has raised the idea of an exoneration protocol in a number of reports starting from 2016.” (Holmes Review p 248) This idea had been rejected by the Parliamentary Committee in 2016, and again in 2021. (Holmes Review p 248) That appeared to be because an exoneration protocol has been conceived of as some form of “merits review” of the kind that would confuse the role played by the Commission with the role played by a Court, according to the Parliamentary Committee. (Holmes Review p 248) Moreover, a person is not exonerated just because they are “subsequently acquitted or their prosecution is discontinued”. (Holmes Review p 248).
To reject having an exoneration protocol simply because it “would confuse the role played by the Commission with the role played by the Court” is, with respect to, an inadequate justification for rejecting an exoneration protocol.
Oversight by Parliamentary Commissioner
In relation to the separate issue of further expanded oversight powers of the Parliamentary Commissioner, the Holmes Review outlined the Independent Commission Against Corruption Act 2012 (SA) “requires the South Australian Inspector - who helps to oversee the [South Australian] Independent Commission Against Corruption - to consider whether the Commission has exercised its powers in an appropriate manner”. (Holmes Review p 251) This includes whether the Commission has “invaded privacy unreasonably or caused undue prejudice to a person’s reputation”. (Holmes Review p 251)
Particularly having regard to the significant current limitations in relation to Judicial Review in Queensland, the power of the South Australian Inspector should too be given to the Queensland Parliamentary Commissioner.
Further comments on the Crime & Corruption (Restoring Reporting Powers) Amendment Bill 2025 – Protections on Public Statements and Reports
This is the second blog in a short series on the Crime & Corruption (Restoring Reporting Powers) Amendment Bill 2025 (Qld) (the Bill) which is currently before the Queensland Parliament. Further observations about the Bill, which is to be the subject of a Parliamentary Committee Hearing on 24 March 2025, are outlined hereunder.
The Bill inserts a new section into the Crime and Corruption Act 2001, namely s 48B, which states the Commission must not:
- make any finding or statement that a person has or has not engaged in, or is or is not engaging in or about to engage in, corruption.
- make any finding or statement that there is evidence, or, insufficient evidence, supporting the start of a proceeding against a person (Explanatory Notes p 12).
The amending Bill does, however, permit the Commission to make public statements and publish reports, but in doing so, the newly inserted s 65A provides that some matters the Commission must consider include:
- The need for accountability and transparency in government and the public sector.
- The seriousness of the corruption matter. (Explanatory Notes p 12)
Additionally, s 65A(4)(g) provides that where a person’s identity is readily apparent or can be reasonably identified from the public statement, the Commission must also consider further criteria, namely:
- whether the standing and status of the person warrants greater public scrutiny;
- the seriousness of the person’s conduct; and
- whether the statement may unreasonably interfere with the person’s privacy or reputation. (Explanatory Notes p 12)
The Holmes Review notes that, as the law currently stands, before the amending Bill is debated by Parliament, there is a risk that:
“the consideration [currently] given to human rights comes to be seen as ‘perfunctory lip service’, especially if the [Human Rights Act 2019] compatibility assessment almost always leads to the conclusion that the Commission’s ‘duties and responsibilities outweighs the rights of individuals to privacy and reputational protection’.” and that the Commission’s operations manual does not mention the “impact on a person’s privacy or reputation”. (Holmes Review p 150-151)
The Holmes Review also observes that “a common and emphatic feature” of many submissions was that the Commission should not be allowed to report on matters unrelated to corruption. (Holmes Review p 169)
In the new list of criteria, the Commission is required to consider (in producing a public statement or issuing a report), the reputational issue. However, it is but one of several matters the Commission must take into consideration. There is a concerning lack of emphasis on a person’s privacy and reputation and indeed, fair trial rights if charges are laid.
In light of the comments in the Holmes Review, especially the reference to the current ‘perfunctory lip service’ given to human rights, the Bill should be amended so as to more strongly emphasise that the effect on reputation should be a prominent factor the Commission should take into consideration when making a public statement or report.
CCC Reporting Bill
There is currently a Bill before the Queensland Parliament dealing with the important issue of how the Queensland Crime and Corruption Commission (CCC) (the Commission) should be regulated and controlled in its Reports and public statements on the outcome of investigations carried out by the Commission.
The Crime and Corruption (Restoring Reporting Powers) Amendment Bill 2025 (Qld) (the Bill) has the objective to “safeguard against the release of information to the public about corruption matters in circumstances where the risks or harms outweigh any benefits to be derived from releasing the information.” (Explanatory Notes p 1)
The Bill has been a long time in the making. It follows the High Court case of Carne (Crime and Corruption Commission (Qld) v Carne [2023] HCA 28) which held that the CCC had no power to report on investigations of alleged corrupt conduct other than to the relevant authorities for the purposes of disciplinary or criminal proceedings.
The Bill was introduced into the Queensland Parliament on 20 February 2025. The Parliament’s Justice Integrity & Community Safety Committee must produce a Report on the Bill by 11 April 2025.
The Explanatory Notes under the “Consultation” heading record that the CCC was the only entity consulted on the draft Bill. This is totally unacceptable having regard to the importance of the Bill.
The Explanatory Notes make no reference at all to the Independent Crime & Corruption Commission Reporting Review prepared by The Honourable Catherine Holmes AC SC which was provided to the previous Queensland Government on 20 May 2024 (hereinafter referred to as the Holmes Review).
This is a comprehensive and very valuable report which adds significantly to the Australian jurisprudence on the vexed topic of how Crime Commissions around the country can achieve a proper and fair balance between undertaking investigations and preparing reports on those investigations while properly and effectively protecting the reputation of those affected by these reports.
The preface to this impressive report notes that it “endeavours to reconcile the different public interest considerations which apply in identifying what reporting and public statement powers would appropriately be conferred on the [CCC].” It is important to remember while the work of anticorruption commissions is vital, it can be accompanied by a human toll which requires safeguards to protect individuals who may be caught up in the process. (Holmes Review p 1).
The Holmes Review recommendations recognise in relation to an individual against whom there has been no finding of, or sanction based on, “[reporting of] corrupt conduct cannot ordinarily be justified.” It was also recognised in relation to individual corrupt conduct, reporting should only take place “where there has been a finding of, or sanction based on, corrupt conduct and where the [CCC] forms the view that the conduct in question is serious corrupt conduct.” (Holmes Review Executive Summary p 3)
The Holmes Review notes that ‘corrupt conduct’ is defined in s15 of the Crime and Corruption Act 2001 as conduct “that adversely affects the performance of the functions of a unit of public administration: conduct that is not honest or impartial: conduct that impacts public confidence in public administration even where it does not involve a lack of propriety.” (Holmes Review p 33 - 34).
This definition is extremely broad and would not be understood by the average member of the public as being so broad. The public views the term ‘corruption’ through the prism of popular tv shows as referring to public officials being paid money to perform an illegal act.
The fact that corruption is so very widely defined makes it crucial to ensure that where the Commission releases a report or makes a public statement in relation to an investigation it has conducted in relation to the behaviour of an individual, the report or statement should only occur where there has been a finding of guilt and the Commission forms the view that the conduct in question is serious corrupt conduct. (See Holmes Review Executive Summary p 3)
Terry O'Gorman writes on the yet another New South Wales District Court prosecution that has resulted in a Costs Order against the Director of Public Prosecutions (DPP).
Today’s Australian Newspaper reports on yet another New South Wales District Court prosecution that has resulted in a Costs Order against the Director of Public Prosecutions (DPP).
In an exchange during the course of a jury trial in a matter which was not a sex case, Judge Colefax reportedly said to the Prosecutor “how do (you propose to) discharge the onus of proof” to which the Prosecutor answered “we don’t (can’t)”.
The Australian reported that the Crown Prosecutor told the District Court in an opening address that the case had no prospects of success.
Given this startling concession, the Trial Judge took the unusual but sensible step of offering the Crown Prosecutor the opportunity of immediately seeking guidance of a senior member of the New South Wales private bar. Following that, the next day, another Senior Crown Prosecutor appeared and withdrew the case.
The Australian reports the original Crown Prosecutor has since resigned from the DPP, with his departure causing waves within the Office.
New South Wales has a Costs Regime in criminal jury trials. Queensland does not. Costs Applications, after unsuccessful Prosecutions, have become a defacto mechanism for highlighting how the New South Wales DPP is frequently running unmeritorious jury trials.
The problem revealed in this case, and similar cases reported in the Australian over the last 12 months, shows the necessity for a complaint and oversight mechanism to be installed across all DPP Offices in Australia.
None of the Australian DPP Offices have an independent and fully transparent complaints process.
The Royal Commission into Institutional Sex Abuse examined a proposal that Australia institute a DPP Inspectorate nationwide modelled on the United Kingdom Crown Prosecution Service Inspectorate which has existed for many years. The Royal Commission, in effect, fudged the issue by not including such an oversight body in its findings and recommendations.
The opaqueness and lack of transparency of DPP Offices around the country, both in relation to Prosecution decisions and complaints about misbehaviours or decisions made by Crown Prosecutors has to end.
It is well overdue for a national Inspectorate of Australian DPP Offices similar to the UK model to be established.
Terry O'Gorman writes on the CCC report into former public trustee Peter Carne
On Wednesday night, 19 February 2025 the Queensland Parliament tabled the report of the Queensland Crime and Corruption Commission into former public trustee Peter Carne despite the High Court of Australia’s finding that the Commission “lacked the power to report at all" (1).
The Hansard transcript shows a non-existent debate as to Parliament’s right to table a report highly damaging to Mr Carne in despite of the High Court’s ruling.
The Attorney-General, Deputy Premier and Health Minister were the main government speakers in favour of the tabling of the report. None of the three senior State Cabinet Ministers addressed the fundamental issue of being bound by the High Court rulings unless and until the Parliament legislated a new law to override the High Court Judgment.
The Labor Opposition indicated they were not going to oppose the motion and that is all that was said by the Opposition. There was not a mention about the important principles of respecting court decisions unless they are overruled by subsequent legislation.
Parliamentary supremacy is an important principle in our democratic process. However, the fact that neither the Government nor the Opposition addressed the fact that the tabling of the Carne report was contrary to the High Court ruling is profoundly concerning. Our community deserve better debate on important issues.
1. See page 242 of (the Independent Review into Crime & Commission’s reporting on the performance of its corruption functions 20/5/24) by the Honourable Catherine Holmes AC SC
Founding partners Terry O'Gorman and John Robertson speak with current Principal Dan Rogers
Founding partners Terry O'Gorman and John Robertson sit down with Principal Dan Rogers to reflect on their partnership, the Fitzgerald inquiry, law reform, and Robertson O’Gorman’s guiding principles and significant milestones.
Watch the full video below:
Dan Rogers, Principal, Robertson O’Gorman has been named as a finalist in the Lawyers Weekly Partner of the Year Awards for Criminal Partner of the Year.
Dan Rogers, Principal, Robertson O’Gorman has been named as a finalist in the Lawyers Weekly Partner of the Year Awards for Criminal Partner of the Year.
Lawyers Weekly’s Partner of the Year Awards showcases outstanding performance by partners, or partners equivalent, across individual practice areas within the Australian legal profession.
The fifth annual Partner of the Year Awards, run in partnership with principal partner Taylor Root, offers finalists and winners a range of experiences and opportunities that extends far beyond their winning moment.
This year’s finalists which was announced from Tuesday 6 September, features 250 high-achieving legal professionals across 31 submission-based categories.
“The Partner of the Year Awards is all about acknowledging those at the top of their game — the best partners in Australia who exude the highest level of technical expertise, finesse and leadership capabilities,” said Lawyers Weekly editor Emma Ryan.
“This year’s finalists represent the elite in each practice area, with their work making an invaluable contribution to their firms, clients and the community alike.
“On behalf of Lawyers Weekly, I’d like to congratulate each of the finalists on their achievements. We look forward to celebrating with you soon.”
Dan Rogers, Principal at Robertson O'Gorman Solicitors said that he was humbled to be recognised and proud to be named as a finalist in the Partner of the Year Awards 2020.
“Robertson O'Gorman Solicitor's recognition for our excellent contribution to the criminal law industry reinforces the strength of our service and dedication to connecting with the community and engaging with clients,” he added.
The secret prosecution of Witness K and Bernard Collaery
The prosecution of Witness K and Bernard Collaery has sparked national debate on issues relating to national security, government accountability, freedom of speech, the rule of law and open access to justice.
With public discourse surrounding the prosecutions intensifying, this post serves to summarise and highlight key features of the background of the case ahead of the public forum to be held at Brisbane City Hall on 29 October 2019.
Background
In 2004, Australia and Timor-Leste had commenced treaty negotiations in relation to oil and gas deposits in the Timor Sea. It was during these negotiations that Australia’s Secret Intelligence Service (ASIS) bugged the walls of Timor-Leste’s cabinet offices under the guise of a foreign aid program. This action gave Australia’s negotiators an unfair advantage in relation to the overall negotiations of the treaty.
Witness K is a former ASIS operative who had firsthand knowledge of the spying operation on Timor-Leste’s treaty negotiations. He later became aware that high Australian officials involved in the spying were lobbying for an Australian oil company with interest in the area. He complained through proper channels about the illegality of the bugging and obtained permission to speak to his ASIS-approved lawyer, Bernard Collaery.
After learning of the espionage, Timor-Leste initiated international arbitration proceedings against Australia, alleging that the bugging had rendered the treaty void as the negotiation was not made in good faith. Collaery, representing Timor-Leste, was intending to call Witness K as a confidential witness in the proceedings.
In December 2013, the homes and office of both Witness K and Collaery were raided by ASIO and Australian Federal Police. Documents and data were seized, including Collaery’s legal advice to the Timor Leste Government relating to its strategy for arbitration, and Witness K’s passport was cancelled preventing him from testifying at The Hague.
Four and a half years later, the Commonwealth filed criminal charges against Witness K and Bernard Collaery.
The prosecutions
The charges against Witness K and Collaery are pursuant to Article 39 of the Intelligence Services Act which criminalises the unauthorised disclosure of certain information about ASIS.
Witness K announced in August of this year that he will plead guilty to the charge, with Collaery facing trial separately.
Collaery’s trial will be conducted in partial secrecy under the provisions of the National Security Information Act 2004 (NSI Act). The principle that judicial proceedings are open to the public is well established, however the NSI Act is designed to prevent prejudicing national security. It is unclear just how much of Collaery’s trial will be kept secret from the public, and from Collaery himself.
This case touches on and challenges numerous long-standing principles grounding Australia’s legal system. The public forum to be held on 29 October 2019 will involve a discussion of the prosecution of Witness K and Bernard Collaery through the lens of highly qualified speakers.
Robertson O’Gorman is hosting East Timor Prosecutions Public Forum: The secret prosecution of Witness K and Bernard Collaery for national security offences at Brisbane City Hall on 29 October 2019. Spaces are limited. Tickets are available here.