Flat White

Federal ICAC? Be careful what you wish for

16 June 2022

6:20 AM

16 June 2022

6:20 AM

The saying ‘the ends justify the means’ is often erroneously attributed to the early 16th century Florentine diplomat and philosopher Niccolò Machiavelli. However, it has been used by historians through the ages to describe his political philosophy as espoused in his most famous work, The Prince, and in particular in connection with his view that it is better for a ‘prince’, or ruler, to be feared than loved.

As far as anti-corruption commissions are concerned, one may well ask the question of whether the ends justify the means of its existence.

Of course, corruption is an insidious activity that acts like a cancer on democratic processes and cannot be condoned. However, even more insidious is the corruption of proper legal processes to the detriment of fundamental rights such as the presumption of innocence, or the right to call evidence in your own trial. 

Former senior Crown Prosecutor Margaret Cunneen SC was exonerated after a ruling by the High Court of Australia found the News South Wales ICAC exceeded its authority in investigating her for alleged corruption. Following this ruling, the NSW Director of Public Prosecutions found there was no evidence whatsoever warranting her prosecution, which begs the question of why so much time, effort, and taxpayer dollars were spent by ICAC on a case that had little to no chance of securing a conviction.

The Western Australian equivalent of ICAC, the Corruption and Crime Commission (CCC), has engaged in similar actions that have resulted in untold personal and reputational harm to those the subject of its inquisitions and their families.

One such case, which ran over a decade, is recounted by former WA state parliamentarian Julian Grill in his book Secret State (Connor Court, 2022).

From 2004-07 what was known as the ‘Smiths Beach Inquiry’ was launched and run by the CCC. Grill and his business partner, former WA Premier Brian Burke, had been hired to advise and lobby for a proposed development in the WA’s south-west for accommodation, homes, and commercial space. Grill recounts that this inquiry was initiated by an anonymous and still secret complaint made to the CCC alleging that some local councillors had been bribed to support the development. This did not happen. The Smiths Beach Inquiry was followed by a broader ‘Lobbyist’ inquiry into all of the lobbying done by Burke and Grill and then by two secret extraordinary parliamentary inquiries, all induced by the CCC.

Using methods such as covert surveillance, including phone taps, hidden recording devices, and cameras, the CCC, at a series of public hearings, sought to show Burke and others had acted corruptly. At these hearings the ‘accused’ were not allowed to give evidence, or to call evidence in rebuttal. The hearings generated sensational media coverage, but none produced any evidence of corruption. 

However, the CCC convinced the WA Director of Public Prosecutions in 2008 to bring a charge of corruption against Burke, Grill, and Nathan Hondros, the Chief of Staff to then Fisheries Minister Jon Ford. It was alleged that they had unlawfully disclosed confidential state information. The ensuing Supreme Court trial did not get beyond first base when Justice Michael Murray found that there was no case to answer. An appeal by the CCC led to the matter being sent back for a re-trial. However, in 2012 it was conceded by the Director of Public Prosecutions that it was not in the public interest for a new trial to proceed and the matter was dropped.

Following this episode, in which significant public monies were spent for no tangible legal outcome, queries were raised about the lawfulness of the CCC’s actions. Indeed, as Grill notes, in 2016, the WA Court of Appeal in A v. Maughan held that the CCC did not have the power to commence and prosecute criminal proceedings against any person. This judgment put several CCC convictions on other matters in doubt. 

In 2016, the Parliamentary Inspector for the CCC, former Supreme Court Justice Michael Murray, launched an inquiry into the prosecution of Grill, Burke, and Hondros following a complaint by Burke himself. Mr Murray delivered his report the following year, determining that the CCC did not have the power to commence and prosecute criminal proceedings. Tellingly in his report, Murray noted:

[T]he unlawful commencement of criminal proceedings by a State instrumentality is an extremely serious matter, the consequences of which, for the individuals involved and for the State’s criminal justice system, are difficult to measure.

There is no place in a democratic society that values the rule of law for investigative bodies to conduct operations over several years which can only be described as witch hunts. There are still, I believe, no legislative safeguards in place to ensure ICAC and the CCC do not launch investigations and ultimately prosecutions which have little chance of success, while at the same time trashing hard-won professional and personal reputations and destroying lives. 

If this is the kind of regime envisaged by those who argue for a federal anti-corruption body, then the ends clearly do not justify the means. As noted by Margaret Cunneen herself:

There are numerous bodies already in existence to whom complaints may be made of any suspected misfeasance. There is the Commonwealth Ombudsman, the Independent Parliamentary Expenses Authority, the Australian Public Service Commission, the Australian Criminal Intelligence Commission, the Australian Commission for Law Enforcement Integrity, and others. We don’t hear many famous cases from these bodies, and we would if they had them.

For many decades in this country, in law schools and in public discourse, we have taken pride that our common law system with its appeals, checks, and balances, and hard-won evidentiary rules developed for the protection of individual liberty, and “the golden thread” of the presumption of innocence, would never be eroded. Are we now prepared to abandon these human rights for another sector of Australian citizens?

For those who want a federal ICAC, be careful what you wish for. In the words of St Thomas More (as depicted in Robert Bolt’s play, A Man for All Seasons): 

This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down […] do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.

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