So what has happened to our much vaunted independent commissions against corruption of late?
In South Australia there was a lot of pressure to introduce an ICAC. The Rann government resisted it, the Weatherill government allowed it. At the time I was in favour and I thought aspects of our system, unlike say New South Wales, were an improvement on other models. The fact that our hearings were to be private I thought was a plus, even though the public never agreed and the then Liberal opposition called for hearings to be more public. I wonder whether that view still prevails?
It has not been all plain sailing for anti-corruption commissions in Australia though. It’s fairly obvious when they are discussed that often the public does not actually understand their purpose. Fair enough too, because every state has a different approach and the Commonwealth as yet doesn’t have one.
One thing is the same with any anti-corruption commission. They are all a reinvention of the old English Star Chamber. If you have the misfortune to appear as a witness for examination, you lose many of the usual common law rights. As with the old Star Chamber, common law rights are stripped away to get to the evidence. There is no right to silence and no right against self-incrimination. You may think, ‘well, don’t they deserve it’? If it ever happens to you, you may have a change of tune.
The big legal question here is what then is done with the admissibility of the evidence that is compelled from witnesses if ultimately someone is criminally charged? It has exercised the mind of the High Court more than once and will continue to do so, as it will in other courts.
Even as late as the Troy Bell case in South Australia, a judge found in effect that the ICAC acted to prosecute Mr Bell together with the Director of Public Prosecutions, when that job was for police. That decision is on appeal but the argument is not new and was one that had been circulating for years.
However the real issue with anti-corruption commissions in the eyes of many is whether what has happened to Gladys Berejiklian in New South Wales is really okay. The matter is continuing and we won’t really know its ultimate outcome for a while yet, but one thing is clear; the political and reputational damage to a person is immense whether they’ve actually done anything wrong or not.
Even if there is wrongdoing, are we really comfortable with a public forum being used to name and shame? A number of police officers who were investigated by the then Police Integrity Commission in New Sales Wales suicided after they had been publicly confronted with their alleged wrongdoing in the witness stand, having been given no prior warning that that evidence would be publicly put to them. They couldn’t stand the shame and took their lives.
To be clear, that is not how a criminal prosecution works where the full rights at common law are afforded an accused person, including full disclosure of the prosecution case before they say anything, if indeed they choose to say anything at all.
More unsettling still is who polices the policeman? The answer is the courts do, but in a day to day sense who monitors all this? In South Australia a retired judge does, but only in a helicopter way due to a very small budget and the limited specifications of the job. In a day to day sense then there is really no monitor. So much power in one person or group of people.
You might say they are chosen because they are incorruptible, except in some instances they aren’t. Who can forget some years ago the successful criminal prosecution of members of the West Australian Crime and Corruption Commission? Also, mistakes are made. In Victoria serious questions were raised about the then Office of Police Integrity as to whether powers to examine and compel witnesses had been correctly delegated.
The New South Wales ICAC was publicly humiliated in 2015 by the High Court in the Margaret Cunneen case, which found the ICAC had exceeded its authority.
So there are multiple examples of commissions against corruption containing people who themselves were corrupt or incompetent or wrong in law.
I’m afraid I now retract my earlier enthusiasm for our ICAC. I speak of course of the model, not the people who have and currently occupy the office, both of whom are highly regarded and respected former jurists. But the model may have problems. Not as bad as New South Wales, but it has become apparent that it has a few.
To start with, what is corruption anyway? Most people when asked this, have a think, proffer an answer or look up a definition. None of those things are what our anti-corruption commissions investigate. They investigate what Parliament says is corruption; what the legislation it passes interprets the word to mean. Thus the Victorian IBAC cannot investigate something unless it falls within a definition of alleged serious criminal offending of a particular type, allowing former leader of the opposition Matthew Guy to dob himself in for the ‘mobster lobster’ lunch, knowing full well there was no jurisdiction to allow the IBAC to investigate.
Although I would not encourage adoption of that definition, we should still ask ourselves; is the threshold too low in South Australia? At present it includes any offence under our Criminal Law Consolidation Act allegedly committed whilst a public officer. That is not what most people would consider corruption to be.
Anyway, on a broader point, why should it be allowed in some jurisdictions and in some cases to publicly humiliate people and in others not?
Is the public interest, rather then the public curiosity, really served by exposing someone who may be innocent of any wrongdoing to a process that seems to have more in common with the old Star Chamber than a contemporary justice system?
There is of course a place for detecting and rooting out corruption amongst public officers, of that there can be no doubt. However how we go about this process requires a good hard look at.
Why is it necessary for the public to know about the proceedings, especially when they are broadcast and streamed live? What difference to an outcome might that have? The argument for it is that it may be helpful for people who deal with a person to understand they are under investigation. In addition, it lets the public know what’s going on. But a persuasive argument against making anything public, is to avoid the very spectacle we have seen being played out in New South Wales right now, as well as countless other examples of good people being publicly paraded with their dirty linen, more so when in some jurisdictions the person subject to an investigation can’t even talk about it.
I abhor corruption in any form and recognise that it has a huge economic cost, that leaves some nations poor when they should be rich. But we live in Australia, a first world democracy where frankly a medieval approach to corruption hunting may not be required.
The separation of powers makes our Westminster democracy work incredibly well. What we do not need are unelected, sometimes overzealous corruption fighters, making a mockery of centuries of common law principles, causing elected people to fall from public favour when they may have done nothing wrong except to have the misfortune to be obliged to appear before or be investigated by an anti-corruption commission. We don’t wish to upset the delicate balance enabled by the doctrine of the separation of powers by in effect having a fourth arm of government, never intended by our founding fathers.
It can also have an unintended chilling effect on progressive governance. Why would a public servant take a risk of any kind, on the back of the possibility of booking yourself an appointment with the ICAC? It just promotes doing nothing new and keeping your head down.
It is right for our federal Attorney-General Christian Porter to tread warily on his way to a Commonwealth Integrity Commission.
As to our state parliaments, the time may have come to reconsider what model and type of anti-corruption commission is required. It must have teeth but should it be destroying lives on a high road of moral certitude?
Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.
Disclosure: Morry Bailes is a member of the Liberal Party.
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