Crime and Corruption Commission v Carne [2023] HCA 28
At a glance
- On 13 September 2023, the High Court of Australia dismissed an appeal by the CCC to publicly release a report on its investigation into the former Public Trustee of Queensland Peter Carne.
- The High Court found the CCC did not have the statutory power to do so, as there were no findings of corruption and the CCC report did not constitute parliamentary proceedings.
- The impact of Carne is already being seen, with the CCC recently conceding Supreme Court litigation brought by Jackie Trad, former Queensland Deputy Premier and Treasurer.
- The High Court’s interpretation of ‘proceedings’ under Queensland law may similarly apply in Victoria.
- The landmark decision highlights the need for anti-corruption bodies to carefully observe the parameters of their powers to make public reports.
Background
In June 2018, the Crime and Corruption Commission (CCC) received an anonymous complaint alleging corrupt conduct and maladministration by Peter Carne, former Public Trustee of Queensland.
The CCC subsequently launched an investigation into the allegations, which led to it taking two significant actions under the Crime and Corruption Act 2001 (Qld) (Corruption Act) – referring information to the Attorney-General and making recommendations to the Acting Public Trustee regarding the Public Trust Office’s operation. Notably, the CCC did not pursue criminal proceedings.
A dispute arose when the CCC sought to publicly release its report on the investigation (the Report). The CCC intended to rely on section 69(1)(b) of the Corruption Act to direct its oversight body, the Parliamentary Crime and Corruption Committee (the Committee), to present the Report to the Speaker of the Legislative Assembly.
Mr Carne initiated proceedings in the Supreme Court to prevent the Report being tabled. In response, the Committee issued a certificate under section 55 of the Parliament of Queensland Act 2001 (Parliament Act) certifying that the Report was a document related to its business under section 9(2)(c). Section 8 of the Parliament Act stipulates that “proceedings in the Assembly” cannot be questioned in any court. Section 9 clarifies that “proceedings in the Assembly include all words spoken and acts done” while “transacting business of the Assembly or a committee”.
Initially, Mr Carne’s attempt to block the Report’s release was dismissed, but the decision was overturned on appeal. The majority of the Court of Appeal concluded that the Report did not qualify as a report under section 69(1) of the Corruption Act and issued a corresponding declaration.
Outcome
The High Court considered whether:
- the preparation and presentation of the Report could be considered “proceedings in the Assembly”, which would render it immune from any judicial scrutiny or questioning, and
- the Report qualified as a ‘report’ under section 69(1) of the Corruption Act.
The High Court held that the preparation and presentation of the Report did not fall within the scope of “proceedings in the Assembly”. The High Court determined the CCC created the Report for the sole purpose of making it public and did not present it to the Committee to transact its business. Consequently, the High Court found that parliamentary privilege did not extend to the Report and that the section 55 certificate did not change that fact.
In assessing the second issue, the High Court found that the Report did not meet the criteria of a ‘report’ in line with section 69(1) of the Corruption Act. In fact, the High Court found that no Corruption Act provisions authorised the production of the Report for the purpose of making it public as the investigation made no finding of corrupt conduct.
“The Supreme Court affirmed that parliamentary privilege in Victoria extends to protect documents prepared for parliamentary business or committee work.”
Implications for Victoria
The High Court’s ruling on the interpretation of “proceedings in the Assembly” under the Corruption Act may similarly apply to section 19(1) of the Constitution Act 1975 (Vic) (Constitution Act).
Victoria derives its parliamentary privilege from historical precedents and statutes. This includes Article 9 of the English Bill of Rights 1688, which is mirrored in section 19 of the Constitution Act. Sections 73 and 74 of the Constitution Act further safeguard reports and proceedings from external scrutiny.
For example, in the case of Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594, the Supreme Court affirmed that parliamentary privilege in Victoria extends to protect documents prepared for parliamentary business or committee work. However, the court’s ruling also makes it clear parliamentary privilege does not extend “to all mail that is delivered to and received by a member of Parliament”.
One possible difference between the Victorian and Queensland law is that section 162(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) makes it easier to submit reports to the Parliament, compared to section 69(1) of the Corruption Act. However, it is important to note that the IBAC Act imposes one of the most stringent criteria for initiating investigations in the country, primarily due to its restrictive definition of the term ‘corruption’.
Looking ahead
For anti-corruption bodies like Queensland’s CCC and Victoria’s IBAC, this High Court decision will help guide their report-related actions. In particular, it highlights the need to carefully differentiate between what will fall within parliamentary privilege and what will not.
Historically, the CCC and its predecessor agencies have issued reports on significant matters stemming from their investigations. The High Court’s ruling clarifies that the scope of the CCC’s public reporting powers under the Corruption Act are limited to findings of corrupt conduct, public hearings and CCC reports tabled in Parliament.
Carne is already being applied, with the CCC recently conceding Supreme Court litigation brought by former Queensland Deputy Premier and Treasurer, Jackie Trad, to prevent the release of a report into her alleged interference in an independent selection process. The CCC has agreed to pay Ms Trad’s legal costs.
This landmark case underscores that even well-established oversight bodies with considerable expertise can inadvertently operate beyond their statutory boundaries. In the aftermath of this judgment, the CCC has called for legislative amendments aimed at expanding its capacity to make public reports. The decision highlights the necessity of a contemporary understanding of existing and emerging legislation within the anti-corruption space.
It is anticipated that public officials who escape findings of corruption may also attempt to use Carne to safeguard their reputation by blocking the release of unfavourable reports – at least until foreshadowed legislative reform is implemented. Until then, this will remain an interesting area to watch.