Public Servants and Corrupt Conduct

Public servants who are the subject of a workplace investigation may face allegations which are within the ambit of the Public Service Act 2008 (Qld). Sometimes, during the course of a workplace investigation, an allegation of corrupt conduct may be raised in which case a referral may be made to the Crime and Corruption Commission.

On other occasions, a complaint may be made to the Crime and Corruption Commission in relation to conduct which may constitute corrupt conduct.

In any case, allegations of corrupt conduct are ordinarily more complex than what they may appear on the surface. There are serious implications which may flow from an allegation of corrupt conduct, and it is imperative that legal advice is sought as soon as possible for specific advice.

This article will provide a general overview of corrupt conduct and is not specific advice. If you are the subject to an allegation of corrupt conduct, you may wish to contact our law firm on 07 5532 3133 to discuss your matter with our civil and/or criminal lawyers.

 

What is Corrupt Conduct?

Corrupt conduct is a very serious offence under the Crime and Corruption Act 2001 (Qld) (‘Act’).  It may be dealt with concurrently or separately with any disciplinary action taken under the Public Service Act 2008 (Qld).

Under the section 15 of the Act, it is defined as:

(1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—

(a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—

(i) a unit of public administration; or

(ii) a person holding an appointment; and

(b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—

(i) is not honest or is not impartial; or

(ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or

(iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and

(c) would, if proved, be—

(i) a criminal offence; or

(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

(2) Corrupt conduct also means conduct of a person, regardless of whether the person holds or held an appointment, that—

(a) impairs, or could impair, public confidence in public administration; and

(b) involves, or could involve, any of the following—

(i) collusive tendering;

(ii) fraud relating to an application for a licence, permit or other authority under an Act with a purpose or object of any of the following (however described)—

(A) protecting health or safety of persons;

(B) protecting the environment;

(C) protecting or managing the use of the State’s natural, cultural, mining or energy resources;

(iii) dishonestly obtaining, or helping someone to dishonestly obtain, a benefit from the payment or application of public funds or the disposition of State assets;

(iv) evading a State tax, levy or duty or otherwise fraudulently causing a loss of State revenue;

(v) fraudulently obtaining or retaining an appointment; and

(c) would, if proved, be—

(i) a criminal offence; or

(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

 

What Also May Constitute Corrupt Conduct?

Generally, under sections 16, 17 and 18 of the Act, corrupt conduct can also include conduct that:

1. happens over time or at any time;
2. happens outside of Queensland; or
3. constitutes a conspiracy or an attempt to engage in corrupt conduct.

 

Who Does Corrupt Conduct Apply to?

Corrupt conduct applies to the public sector generally, subject to certain qualifications under the Act.

Some common areas of the public sector include:

1. the Legislative Assembly, and the parliamentary service;
2. a government department, statutory bodies or agencies;
3. organisations which are funded by the State of Queensland;
4. the Queensland Police Service; and
5. local government;

 

Are There Any Time Limits for Corrupt Conduct?

There are no time limits for an offence of corrupt conduct.

Under section 19 of the Act, conduct does not stop being corrupt conduct only because a proceeding or an action for an offence to which the conduct is relevant can no longer be brought or continued or that action for termination of services because of the conduct can no longer be taken.

 

Is Corrupt Conduct a Criminal Offence?

Corrupt conduct is not a criminal offence on its own, because criminal penalties are not attached to corrupt conduct offences. In most circumstances, corrupt conduct may also amount to a criminal offence (or offences), and if that is the case, a criminal charge (or charges) will likely be concurrently laid or will follow.

There are wide range of possible criminal charges which can relate to corrupt conduct. For this reason, it is imperative that if any corrupt conduct allegations are raised that legal advice be sought as soon as possible, preferably as soon as practical after being made aware of an allegation of corrupt conduct.

 

Official Corruption under the Criminal Code

Under section 87 of the Criminal Code Act 1899 (Qld) there is a criminal offence known as official corruption.

Official corruption can be related to an allegation of corrupt conduct and can arise from the same alleged circumstances as a corrupt conduct allegation. This means that a person can be charged with official corruption and be subject to a corrupt conduct allegation at the same time or may be charged with official corruption at a later date.

If a person is guilty of official corruption, they are liable to imprisonment for 7 years and to be fined at the discretion of the Court.

You can read more about official corruption by viewing this article: https://pottslawyers.com.au/criminal-law/other-computer-offences/official-corruption/

 

Who Determines Whether Conduct Amounts to Corrupt Conduct?

The Crime and Corruption Commission receive and assess complaints or referrals about conduct which may amount to corrupt conduct.

The Crime and Corruption Commission will generally assess whether the nature and substance of a complaint or a referral is within their jurisdiction pursuant to the ambit conferred to them by the Act.

If a complaint or referral is within the Crime and Corruption Commission’s jurisdiction, there are a wide range of investigative and coercive powers conferred to them by the Act.

If a complaint or referral is not within the Crime and Corruption and Commission’s jurisdiction, they may refer a complaint to another organisation which may have the proper jurisdiction to deal with the complaint.

 

Disciplinary Proceedings for Corrupt Conduct

In Queensland, the Crime and Corruption Commission may institute disciplinary proceedings against a ‘prescribed person’ for corrupt conduct in the Queensland Civil and Administrative Tribunal.

Section 50(3) of the Act defines a ‘prescribed person’ as:

prescribed person means—

(a) a person—

(i) who is a member of the police service; or

(ii) being a member of the police service, whose employment as a member of the police service ends after the corrupt conduct happens, regardless of whether the employment ends before or after the start of a disciplinary proceeding for the corrupt conduct; or

(b) a person (other than a judge or holder of judicial office, or a member of the police service)—

(i) who holds an appointment in a unit of public administration; or

(ii) who held an appointment in a unit of public administration that ended after the corrupt conduct happened, regardless of whether the appointment ended before or after the start of a disciplinary proceeding for the conduct

Importantly, under s219DA, A disciplinary proceeding for corrupt conduct can still be brought in the Queensland Civil and Administrative Tribunal even if the prescribed person’s employment or appointment has ended:

1. before or during the QCAT hearing; or
2. after the hearing and before QCAT makes its decision.

 

What are the Penalties for Corrupt Conduct in the Queensland and Civil Administrative Tribunal?

The Queensland and Administrative Civil Tribunal’s has various powers under the Act which they may exercise at their discretion for corrupt conduct offences.

The powers that the Queensland and Administrative Civil Tribunal may exercise depends on how the prescribed person is defined under section 50(3) of the Act in relation to a disciplinary proceeding for corrupt conduct.

Consequently, depending on how the person is defined, some penalties may include:

1. dismissal;
2. suspension from duty without pay for at least 3 months;
3. probation;
4. permanent demotion or demotion for a particular amount of time;
5. reduction in rank or salary level; or
6. forfeiture or have deferred salary increment or increase;
7. fined a statement amount that is deducted from the person’s salary or monetary entitlements other than superannuation on termination of the person’s service.

 

Conclusion

Corrupt conduct is evidently a very serious allegation and offence. This article has demonstrated the importance of seeking legal advice as soon as practicably possible, given that an allegation or finding of corrupt conduct may also be accompanied with related criminal charges or may eventually lead to criminal charges.

Our firm has experienced civil litigation lawyers and criminal lawyers who can assist clients navigate the complex nature of corrupt conduct allegations or findings by providing strategic and tailored legal advice relevant to the circumstances with an objective and compassionate approach.

You can contact our Gold Coast Law Office on (07) 5532 3133 or our Brisbane Law Firm on (07) 3221 4999.

Alternatively, feel free to request a free initial consultation to discuss your matter with our civil and/or criminal lawyers.