OpED: State Government must hold its ground
Councillors could be jailed for up to two years for an honest mistake if attempts to remove the requirement for dishonest intent in new conflict of interest offences are accepted by the Palaszczuk Government.
The latest call from the Crime and Corruption Commission would see standards applied to local government that go well beyond those principles that have been enshrined in the judicial system for centuries.
The proposal, as it currently stands, require the criminal watchdog to prove there was a dishonest intent before such serious penalties can be applied.
The CCC, however, wants that element of intent removed from the offence in a move that could expose local councillors to the risk of prosecution and jail for innocent mistakes, errors of judgement or basic administrative oversight.
The LGAQ has been a long supporter of greater transparency but we believe this should not be at the cost of an elected representative losing legal rights that are otherwise afforded to even the most serious criminals.
The former President of the Queensland Law Society Bill Potts agrees.
“Prosecutions with criminal penalties should only occur where intention is clearly established,” Mr Potts said.
“Where the prosecution seeks to deter and punish behaviours it must be proven that the citizen intended to commit the offence. It is a bed rock principal in criminal law, with very rare exceptions.
“As a society we recognise that that mistakes can occur outside the knowledge or control of the individual.”
The LGAQ is firm in its belief that there should be no watering down of long-standing legal doctrines which would reduce the burden of proof when the prosecutor already has unprecedented powers of investigation, access and influence, including the ability to compel a witness to answer questions.
The laws as drafted strike the right balance between punishing wrongdoing and providing for natural justice. An honest mistake has never been a criminal offence. It should not become one now.
There should be no need to reduce the burden of proof required to prosecute what are essentially community members, drawn from all walks of life, over administrative errors related to their register of interest.
The CCC has a right to express an opinion. But it is not the fourth arm of the government. It is up to the executive to decide public policy.
The separation of powers exists for a reason.
The government has already expanded the CCC’s role by ceding its own legislative prerogative to the watchdog on several occasions in recent times.
This time, it needs to take retain control of its own agenda and back the changes it drafted and consulted with stakeholders like the LGAQ and the Queensland Law Society on.
The LGAQ is calling on the Palaszczuk Government to show common sense and not bend to this latest request.
Make no mistake, the LGAQ supports a strong and well-resourced CCC but it cannot agree with the watchdog when it is advocating an agenda that is antithetical to fairness and equity in the administration of the law.
The protection of the innocent must remain the cornerstone of our well-tested and resilient legal system.
Greg Hallam AM
Chief Executive Officer
Local Government Association of Queensland
LG House, 25 Evelyn Street, Newstead Qld 4006
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