By Troy Wild, Legal Practice Director and Natalie Todd, Senior Workforce Advisor
With the changes last year to the Crime and Corruption Act 2001 (Qld) and the widened definition on what constitutes corrupt conduct and therefore what is reportable to the CCC, we have endeavored to explore this to provide some guidance and insight into the requirement.
Councils are starting to realise what this now means in practice. With any legislative change, it takes time to understand what the new requirements mean in practice. One of the key elements we have focused on due to many queries being received by the team, is whether bullying amounts to corrupt conduct.
CCC Notification Requirements
The Crime and Crime Commission (CCC) must be notified of any reasonable suspicion of corrupt conduct in accordance with ss. 38 or 40 of the Crime and Corruption Act 2001 (Qld) (CC Act).
Under Section 15 the CC Act there are two types of corrupt conduct.
“Type A” corrupt conduct involves conduct that affects, or could affect, a public officer (an employee of a public agency, that includes local government) so that the performance of their functions or the exercise of their powers:
is not honest or impartial, or
knowingly or recklessly breaches the trust placed in the public officer, or
involves the misuse of agency-related information or material.
Common examples of Type A corrupt conduct include fraud and theft, extortion, unauthorised release of information, obtaining or offering a secret commission and nepotism.
"Type B" corrupt conduct relates to specific types of conduct that impairs, or could impair, public confidence in public administration and involves, or could involve, any of the following:
fraud relating to an application for a licence, permit or other authority relating to public health or safety; the environment; or the State's natural, cultural, mining or energy resources, or
dishonestly obtaining public funds or State assets, or
evading a State tax, levy or duty or fraudulently causing a loss of State revenue, or
fraudulently obtaining or retaining an appointment.
Both Type A and Type B corrupt conduct must, if proved, be either a criminal offence or serious enough to warrant termination of the officer’s services.
Council can notify the CCC of suspected corrupt conduct by using the online referral form on the CCC website. Unless informed otherwise by the CCC, no action should be taken by Council on the matter until the CCC provides Council with a Matters Assessed Report either:
It is important to note that where there is a suspicion of corrupt conduct in Council, the matter may also be deemed a Public Interest Disclosure (PID). In such circumstances, Council will need to ensure compliance with their PID Policies and Procedures, including notifying the discloser and subject officer of their protections and obligations.
Is Workplace Bullying Corrupt Conduct?
The question has been asked as to whether workplace bullying meets the definition of corrupt conduct, and generally the answer is no. There are, however, aggravating factors that can bring such conduct into the CCC jurisdiction.
Workplace bullying may amount to corrupt conduct if the alleged conduct involves a breach of trust and would, if proven, be a criminal offence or a disciplinary breach providing reasonable grounds to terminate the officer’s services. The latter would include conduct of a serious or systemic nature: for example, conduct that forms a pattern of behaviour intended to cause a detriment to an employee or favour another employee, in a financial way or otherwise, in the workplace.
Bullying that is ‘a breach of trust’
When assessing allegations of bullying, the positions held by each party and the nature of their relationship between their roles are important in determining whether there has been a breach of trust, an essential element in the definition of corrupt conduct in this context.
There must be a connection between the alleged conduct and the officer’s job – that is the “breach of the trust” necessary for workplace bullying to amount to corrupt conduct. In relation to allegations of workplace bullying involving officers employed at the same level, there is no supervisory relationship and the officers have no specific responsibilities towards one another outside the personal conduct principles and general employment obligations imposed on all employees by the employer.
Accordingly, allegations of bullying involving officers employed at the same level in most cases do not amount to corrupt conduct because there is no breach of the trust.
Senior officer bullying a subordinate
Generally, allegations of workplace bullying against an officer who is senior to the complainant/victim, and who has supervisory responsibilities towards them, may involve a breach of trust. This is because a supervisor or manager is likely to have specific responsibilities vested in their position to protect staff they supervise from harm within the workplace.
If a supervisor or manager engages in workplace bullying towards a subordinate, this is arguably a breach of the trust that is placed in that officer by virtue of their position. This type of conduct, if proven, would be of such seriousness that it could result in the termination of the officer and therefore it may amount to corrupt conduct.
Breaches of personal conduct principles or general employment obligations (as found in a Council’s Code of Conduct and work health and safety policies) do not necessarily constitute a breach of the trust.
To find out more, contact either Natalie Todd on 0411 740 557 or firstname.lastname@example.org or Troy Wild on 0437 418 692 or email@example.com.