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Why aren't alarms sounding over ICAC changes?

Opinion

Proposed changes to South Australia’s ICAC Act pose an intolerable risk to the community, writes lawyer Samuel Joyce, who argues there is an “unhealthy deference” to the current Commissioner.

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For three centuries the High Court of Star Chamber sat in a room at the Palace of Westminster beneath a ceiling decked with golden stars etched onto a sumptuous blue background from which it took its name. It exercised an unintelligible jurisdiction akin to ‘criminal equity’. It was formed partly as an antidote to the oppressive rigidity of the common law, whose strict rules of form and procedure and attachment to local juries, hesitant to convict the powerful, had become incapable of achieving what we might today call justice.

Star Chamber could impose punishment for conduct it deemed morally reprehensible but that was not strictly a violation of the common law. It had a recognised corruption jurisdiction, which comprised a power to intervene in all provinces of the administration of justice in the kingdom except (perhaps curiously) in capital cases. Its supervisory jurisdiction was not limited to other courts and extended to public institutions such as the universities. Proceedings were open to the public, but witness examinations were largely heard in private. It was inquisitorial and experimental. It associated itself almost exclusively with making the powerful accountable. Until its last days, it was a popular institution such that our modern view of it as synonymous with oppression would probably surprise its contemporaries.

Its weapon of choice was the ex officio oath. That oath bound the deponent, uninformed of the subject-matter on which he was to be examined, to answer to all questions posed on any subject whatever. A guilty defendant faced what Professor Rubenfeld calls a “cruel trilemma” of three highly unattractive options: if he answered truthfully he would condemn himself, if he stood silent he would be imprisoned for refusing to answer, and if he denied the charges he would perjure himself, which was both a crime and a mortal sin.

Is this sounding eerily familiar? The Independent Commissioner Against Corruption (ICAC) and his office are concerned with similar subject matter and employ similar procedural devices. ICAC is not a court, but he and his office have equal power to take steps which have serious consequences for individuals. The similarities start, but do not end, with the unusual powers available to such bodies. ICAC is, as Star Chamber was, our ‘curious eye of the state and king’s council prying into the inconveniencies and mischiefs which abound in the Commonwealth’.

This comparison is not to denigrate the ICAC. On the contrary. For much of its existence Star Chamber was an effective and popular tribunal. But it is well for us to remember that there is a useful, if imperfect, comparison to be made.

The current ICAC is a person who commands a unique respect and trust in the South Australian community. This trinity of trust, respect and position residing in one person is unusual. It has enhanced his institution’s power in a manner not seen in other jurisdictions. But this fact ignores the reality that the personal qualities of a particular Commissioner are not a precondition to the use of the extraordinary powers of that office.

Despite its benign beginnings, Star Chamber became an infamous tribunal of despotic might and exists now only as a pejorative connoting the arbitrary abuse of extraordinary power. There are lessons to be learned from its history that we seem to be ignoring, largely because we trust the present Commissioner. It is time we had a serious discussion about these issues.

There appears, at least on the surface, to be an unhealthy reluctance on the part of lawyers to invoke the supervisory jurisdiction of our Supreme Court review to the ICAC’s exercise of power.

SA’s political class appears inclined to give ICAC anything he wants, and arguments against his proposals are glibly dismissed as threats to openness and accountability.

Recently, an important jurisdictional point was raised about the interpretation of the ICAC Act during the Oakden Inquiry. What occurred is detailed in the Commissioner’s report. Only three of the many witnesses to that inquiry raised this jurisdictional issue. The Commissioner himself said it was an important point that went to the heart of whether he could, in practice, actually conduct such inquiries. None of the three chose to test their argument in the Supreme Court, despite the Commissioner giving them the opportunity to do so. The Commissioner may have had some doubts about whether his legal approach to that issue was correct, given present proposed amendments to the relevant section of the ICAC Act seek to put the position beyond doubt and this issue has so far been referenced in the various second reading speeches as the catalyst for amendment.

The Supreme Court has undoubted jurisdiction to review the ICAC’s use of power. The law reports of other states are replete with examples of lawyers testing the boundaries of the jurisdiction of their comparable bodies. That is healthy. We should be doing it more here.

But it is also a matter of concern that SA’s political class appears inclined to give ICAC anything he wants, and arguments against his proposals are glibly dismissed as threats to openness and accountability.

It is a matter of public record that the ICAC briefed the Premier and Deputy Premier upon their appointment, at his request, and it has been reported that he has offered to hold regular meetings with ministers and departmental CEOs about “trends and issues of concern” in their portfolios. Is this healthy? It may well be, but as a community., we have simply assumed it is because we trust the Commissioner and as a result, we have never had a serious discussion about it. At the least, it begs the question of who is running the show.

Star Chamber’s descent into tyranny serves as a warning to to cease what seems to be becoming an unhealthy deference to the present Commissioner

The defining feature of bodies such as the ICAC is the deployment of legislative devices that are in their effect indistinguishable from the ex officio oath. In corruption investigations, the privilege against self-incrimination is abrogated and the guilty examinee meets the “cruel trilemma” though the material obtained is not admissible in a court. We know from reported decisions of courts in other jurisdictions, and anecdotally, that too frequently transcripts of evidence are disseminated, sometimes quite deliberately, to officers such as prosecutors who should not have them. In many instances, because of secrecy provisions, it may not be possible to know whether dissemination has occurred. Whether dissemination, and the use made of it thereafter, is lawful in the particular circumstances is a seriously difficult legal question even for senior legal practitioners. SA appears to have paid scant attention to these issues. Our ICAC Act does attempt to control dissemination of such material, but those controls largely reside in the discretion of the Commissioner himself and not, as in other jurisdictions, in clearly defined statutory prohibitions.

The amendments effecting changes to allow ICAC to hold public inquiries into maladministration also illustrate the point. Currently, in a maladministration inquiry the ICAC must use the powers of the Royal Commissions Act to require a person to answer his questions. The Full Court of our Supreme Court has held that under the Royal Commissions Act a person is entitled to refuse to answer if the answer would tend to incriminate them.

So it is bewildering that this protection is not expressly included in the proposed amendments. Such a fundamental protection would have been very easy to include. The current iteration of the legislation creates a real risk that the privilege has been abrogated. If so, the oath would bear resemblance to the ex officio kind of oath used in Star Chamber corruption investigations.

There is an argument to be made that the privilege is not abrogated. But to test the proposition would require an examinee to refuse to answer a question and risk being in contempt of ICAC, or to otherwise immediately issue proceedings in the Supreme Court to get a ruling on that issue. The present Commissioner may well take the view that the privilege remains available. But what about the next Commissioner? The risk created by the amendments is awful and intolerable. That risk is run in the absence of consideration of the long-term implications of omitting what could easily be made explicit, and on the inadequate basis that we trust the present Commissioner.

By the reign of Charles I, Star Chamber had become the weapon of choice to prosecute dissenters. It was the refusal of puritan John Lilburne to take the ex officio oath – denouncing it for abrogating his privilege against self-incrimination – that brought about its demise. The ICAC is not now the infamous and despotic tribunal that Star Chamber became. However, the circumstances of Star Chamber’s descent into tyranny serves as a warning to cease what seems to be becoming an unhealthy deference to the present Commissioner, and to start seriously thinking about the long-term consequences of the laws we are making with healthy scepticism based on the lessons of the past.

Samuel Joyce is a senior associate at Adelaide law firm Tindall Gask Bentley, working in the fields of criminal and administrative law. He has represented clients who have been before South Australia’s ICAC.

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