Publicising untested allegations involving public sector organisations and officials can also unfairly damage the public’s trust in their institutions of government. The institution of local government, and by extension democratic government, is being damaged by the high number of baseless allegations
The Commission indicated that
a large number of allegations received by the CCC in the lead up to local government elections are baseless and merely designed to effect electoral damage on political opponents, with confidence in [the CCC] undermined when it is required to deal with allegations that, on their face, appear to have reputational damage as their goal and attempt to leverage the involvement of the CCC to achieve this
The CCC also stated that given its prioritisation of the assessment of politically sensitive matters in the public interest, it is also of concern that significant assessment resources are directed to baseless matters and diverted from other potentially more important matters. Further the tendency for allegations of corruption engaged in by councillors to be publicised in the media means that corrupt individuals get advance warning that they are being scrutinised by the CCC and can destroy or fabricate evidence. It noted the impacts of digital and new media, arguing that the risk of damaging an individual’s reputation arising from the publication of a baseless allegation was ‘amplified in contemporary society where mass communication methods mean that allegations are instantaneously and widely transmitted, and stay on the public record in perpetuity’.
The Bill will accordingly amend the CC Act to make it an offence to publish:
- a corrupt conduct allegation about a candidate for a State election during the election period for the election; and
- a corrupt conduct allegation about a candidate for a local government election during the election period for the election.
The offences will carry a maximum penalty of 50 penalty units or six months imprisonment. The amendments in the Bill also provide for a related statutory injunction power.
The Explanatory Statement notes that the Bill includes a definition of corrupt conduct allegation which addresses both complaints and allegations of corrupt conduct consistent with the CCC’s 2016 report. Corrupt conduct is defined in section 15 of the CC Act. The definition of ‘publish’ under the Bill is intended to target publication that has the potential to deliver information to a mass audience. The definition covers newspaper, radio or television or other electronic or printed forms of mass media.
The Statement comments that it is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social
The definition of ‘candidate’ under the Bill is intended to include those people who nominate to be a candidate under relevant electoral legislation, incumbent Members of the Legislative Assembly and councillors and those people who otherwise announce or publicly indicate an intention to be a candidate. Where a person has made or notified a complaint to the CCC or notified the CCC of the intention to publish an allegation, and three months have passed, the offences do not apply. This reflects the recommendation in the CCC’s 2016 report that it should be an offence for any person to publicise an allegation or the fact of a complaint without first notifying the CCC and allowing the CCC at least three months to determine whether the allegations have merit.
The Statement comments
Since the High Court decision in Lange v Australian Broadcasting Commission [1997] 189 CLR 520 there has been the implied right to communication about government or political matters in the Commonwealth Constitution. However, the implied freedom is not absolute. It is noted that freedom of speech issues were considered in the CCC’s 2016 report.
The 2016 report
notes that the key arguments put forward by those in favour of publicising allegations of corrupt conduct (including most media groups) were that:
- • the public has a democratic ‘right to know’;
- open discourse informs opinions and supports democratic participation;
- it provides a ‘check and balance’ on the CCC’s performance;
- it provides greater scrutiny of the process of investigating allegations (seen as particularly important in the context of the practice of devolving complaints to agencies complained about to investigate themselves);
- it will bring others forward to report their concerns (e.g. media attention that led to the Fitzgerald Commission of Inquiry); and
- it is reasonable that elected officials and candidates should be subjected to greater accountability and scrutiny than ordinary individuals.
The key arguments put forward by those against publicising allegations of corrupt conduct (including the Queensland Law Society, Local Government Association of Queensland, local governments, and the Queensland Council for Civil Liberties) were that:
- it risks longstanding reputational damage for individuals, noting digital media can be far more widespread and does not disappear from the public record;
- it risks reputational damage for agencies and organisations, not just individuals;
- it undermines investigation processes by alerting the subject of allegations and other parties involved who can then destroy evidence or concoct false versions of events;
- limits investigative options, particularly covert strategies;
- encourages baseless allegations to be made for political gain; and • may have a prejudicial effect that erodes the possibility of a fair trial.
... While no other Australian jurisdiction has a specific offence relating to publicising allegations of corrupt conduct during an election period, section 56 of the South Australian Independent Commissioner Against Corruption Act 2012 (ICAC Act) makes it an offence for a person to publish, without the authority of the Commission or a court hearing proceedings for an offence against the ICAC Act, any information relating to a complaint, report, assessment, investigation or report under the ICAC Act, where the information published might enable certain people associated with the complaint etc (including the subject) to be identified. The concept of ‘publish’ under section 56 includes publication by newspaper, radio or television as well as the ‘internet or other electronic means of creating and sharing content with the public or participating in social networking with the public’.
The Bill is as follows
Clause 1 provides that, when enacted, the Bill will be cited as the Crime and Corruption Amendment Act 2020 (the Act).
Clause 2 states that the Act amends the Crime and Corruption Act 2001 (CC Act).
Clause 3 inserts a new section 216B (Unlawfully publishing corrupt conduct allegations during election periods) after existing section 216A.
Subsection (1) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a State election during the election period for the election.
Subsection (2) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a local government election during the election period for the election. Each offence carries a maximum penalty of 50 penalty units or 6 months imprisonment.
Subsection (3) provides that liability under subsections (1) and (2) does not apply if the publication of the corrupt conduct allegation occurs at least three months after: (a) the complaint was made or notified to the commission (for a corrupt conduct allegation identifying a relevant complaint); or (b) the commission was notified of the person’s intention to publish the allegation.
Subsection (4) provides that subsections (3)(a) and (b) apply whether the notification or complaint was made before or after commencement of the Act.
Subsection (5) provides that new section 216B does not limit another provision of the CC Act or another law that restricts the publication of a corrupt conduct allegation.
Subsection (6) provides definitions for the following terms for new section 216B: ‘candidate’; ‘corrupt conduct allegation’; ‘election period’; ‘local government election’; ‘publish’; ‘relevant complaint’; and ‘State election’.
‘Candidate’, for either a State or local government election, is defined as a person who holds an office to be contested in the election, or a person who has publicly indicated their intention to be a candidate for the election, or a person who has nominated to be a candidate under an Act applying to the election (including for example the Electoral Act 1992).
‘Corrupt conduct allegation’ is defined as a statement that indicates that a relevant complaint has been, or is proposed to be, made or notified to the commission (paragraphs (a) and (c)), or a statement that identifies the subject matter of a complaint made or notified to the commission (paragraph (b)), or a statement that alleges a person is, may be, or has been involved in corrupt conduct (paragraph (d)).
The definition of ‘relevant complaint’ means a complaint about a person that involves, or may involve, corrupt conduct of the person. Corrupt conduct is defined under existing section 15 of the CC Act.
The definition of ‘election period’ refers to the relevant periods under the Electoral Act 1992 and the Local Government Electoral Act 2011.
The definition of ‘local government election’ refers to the Local Government Electoral Act 2011,
The definition of ‘publish’ means publicly disclosing a corrupt conduct allegation or causing a corrupt conduct allegation to be publicly disclosed, by using either newspaper, radio or television or other electronic or printed media for communicating to the public or participating in social networking with the public. It is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social discourse.
‘State election’ is defined as an election of a member or members of the Legislative Assembly.
Clause 4 amends the heading of existing section 344 (Injunctions) to insert, after ‘Injunctions’, the words ‘for contraventions of s 212’ consequential to the amendments in clause 5.
Clause 5 inserts a new sections 344A to 344C after existing section 344.
New section 344A (Applications for injunctions for contraventions of s 216B) creates a new statutory right to apply for an injunction.
Subsection (1) provides for the circumstances in which the statutory right for an injunction under new section 344A will be available. An injunction may be applied for where a person has engaged, is engaging or is proposing to engage in conduct that constitutes or would constitute an offence of unlawfully publishing corrupt conduct allegations during an election period under new section 216B. In order to apply for an injunction the CCC, or candidate, must have reasonable grounds to believe that an injunction would mitigate any adverse effect on the CCC or the candidate to whom the conduct relates.
Subsection (2) provides that an injunction is available to the CCC or a candidate during the election period to which the conduct for the offence relates. It also provides that the application for the injunction may be made to the District Court.
Subsection (3) outlines the types of injunctions the District Court may grant, namely an injunction to stop the person from engaging in the conduct that constitutes or would constitute an offence under section 216B, or to require the person to do anything else that the court considers desirable.
Subsection (4) allows the District Court to grant an interim injunction until the application is finally decided.
Subsection (5) confirms that the powers to make an injunction under new section 344A do not limit any other powers of the District Court.
Subsection (6) provides that where the CCC applies for an injunction the court need not require any undertaking from the CCC as to damages or costs.
New section 344B (Injunctions if s 216B proceeding started) provides a Magistrates Court with the power to grant an injunction in circumstances where offence proceedings under section 216B have started in the Magistrates Court.
Subsection (1) provides that in order for the section to apply the proceedings for the 216B offence must have started in the election period to which the proceeding relates.
Subsection (2) allows the magistrate to constitute the court to consider whether an injunction should be made.
Subsection (3) provides that the magistrate may grant an injunction to stop the person from engaging in the conduct to which the section 216B proceedings relate or to require the person to do anything else which the court considers is desirable.
Subsection (4) provides that the magistrate may act on the magistrate’s own initiative to grant the injunction or on application by the prosecution.
Subsection (5) indicates the circumstance in which subsection (6) will apply, namely where a section 344A injunction proceeding has started in the District Court; and the proceeding relates to the same conduct to which the section 216B proceeding relates.
Subsection (6) provides that the District Court may transfer any existing proceeding in relation to an application for an injunction made under section 344A to the Magistrate Court.
Subsection (7) provides that if the District Court orders the transfer of injunction proceedings under subsection (6), the registrar of the District Court must send to the clerk of the relevant Magistrates Court a copy of the order and any record of the hearing of the section 344A injunction proceeding.
Subsection (8) defines the terms ‘section 216B offence proceeding’ and ‘section 344A injunction proceeding’ for the purpose of new section 344B.
New Section 344C (Hearing and deciding s 344A or 344B injunctions) sets out procedural matters applying to injunctions under new sections 344A or 344B.
* The Government's ducks weren't lined up in a row, as within 24 hours following introduction of the Bill the Attorney-General issued the following media release -
Statement from the Attorney-General
Published Today at 09:21 AM
Attorney-General and Minister for Justice The Honourable Yvette D'Ath
The government respects the recommendations of the CCC.
However, given the limited time for the parliamentary Legal Affairs Committee to consider the law changes the CCC seeks, the CCC Bill introduced yesterday in State Parliament is withdrawn.
