In June 2017, the Crime and Corruption Commission (CCC) indicated it did not identify any evidence to support allegations the Hon. Mark Bailey MP had used his personal email account to engage in conduct that would amount to corrupt conduct as defined in the Crime and Corruption Act 2001.
The use of a private email account in itself is not a criminal offence.
The CCC was of the view the use of a personal email account for ministerial purposes is in breach of both the Queensland Ministerial Handbook and the Ministerial Information Security Policy. As these breaches are not criminal offences, they do not amount to corrupt conduct within the jurisdiction of the CCC.
The CCC was also of the view the potential destruction of public records by Mr Bailey may be an offence under the Public Records Act 2002 (the PRA). In Queensland, the State Archivist (Queensland State Archives) is responsible for ensuring public records are appropriately made, managed and preserved. The PRA also provides the State Archivist relevant powers to investigate potential breaches of the Act.
It was on that basis the potential destruction of public records was referred to the State Archivist to investigate subject to close monitoring by the CCC.
The CCC received the final report from the State Archivist on 5 September 2017 and formally assumed responsibility for the investigation on 12 September 2017 in order to determine any criminality by Mr Bailey.
The CCC has determined not to commence a criminal prosecution against Mr Bailey for the use of a private email account and his treatment of public records contained in that email account.
In reaching this decision the CCC and State Archivist considered potential breaches of the PRA, the Right to Information Act 2009, the Information Privacy Act 2009 and other offences in the Queensland Criminal Code including disobedience to statute law and misconduct in relation to public office.
Section 13 of the PRA states that a person must not dispose of a public record unless the record is disposed of under an authority given by the archivist; or other legal authority, justification or excuse.
The maximum penalty for this offence is 165 penalty units.
A public record is defined in section 6 of the PRA.
The State Archivist found 1199 records in the private email account that were considered public records. Under the existing Queensland State Archives (QSA) approved Retention and Disposal schedules, 539 of these emails were able to be disposed of by Mr Bailey. The remaining 660 records could only be disposed of with authorisation of the QSA. The QSA has not provided any such authorisation.
The investigation undertaken by the State Archivist found there was no authority given by the archivist or other legal authority, justification or excuse for Mr Bailey to potentially dispose of these 660 public records.
The remaining consideration in determining whether Mr Bailey disposed of public records contrary to section 13 of the PRA was then limited to the meaning of the word ‘dispose’.
The word ‘dispose’ is not specifically defined in the PRA. The CCC consulted definitions in other legislation, case law and other legal resources and formed the view there must be a permanency to the disposal of a public record to meet the offence.
Considering the public records contained in Mr Bailey’s private email account were able to be recovered, and have now been recovered by the CCC with assistance from Mr Bailey, there has been no permanent disposal.
Therefore, there is no basis to pursue criminal conduct against Mr Bailey for the disposal of public records contrary to section 13 of the PRA.
The CCC acknowledges the timing of the deactivation of the private email account proximate to an RTI request raises questions about Mr Bailey’s intentions at that time.
However, the CCC has reviewed the content of all of the emails retrieved from the email account and has found no evidence to suggest the intention of Mr Bailey in deactivating the account was to conceal corrupt conduct made out by the content of any email.
In these circumstances there are no grounds to pursue a criminal offence against Mr Bailey for his use of the private email account or his management of public records in that email account, contrary to the abovementioned provisions of the Queensland Criminal Code or any provisions of the Right to Information Act 2009 or the Information Privacy Act 2009.
The CCC is confident the decision to take steps to reactivate the private email account served the public interest. The reactivation has led to the recovery and maintenance of a large number of public records and importantly it enabled the CCC to conduct a thorough assessment of the content and purpose of Mr Bailey’s email communications.
The State Archivist has made a number of recommendations with respect to the creation, maintenance and disposal of public records by Ministers which will be progressed separately by his office. The CCC supports the recommendations made by the State Archivist.
CCC Chairperson Alan MacSporran QC remains of the strong view that it is undesirable for Members of Parliament or their staff to generally use private email accounts to conduct parliamentary business. It is equally undesirable for any person in the public service to use private emails to conduct official business.
As this case amply demonstrates, the use of private email accounts and particularly the deletion of records in those accounts can give rise to a significant perception the use of such accounts is done for a corrupt purpose.
CCC Chairperson Alan MacSporran QC will address the media at a press conference today.
ENDS
