Pitfalls of past must Be avoided
AS the Albanese government begins to implement its election commitment to establish a federal anti-corruption commission, it’s time to consider how such a body might avoid the pitfalls of similar commissions around Australia.
The NSW ICAC has had its share of controversy, but so has the West Australian body, the Corruption and Crime Commission (CCC).
We can hopefully learn from mistakes and flaws in established anti-corruption organisations so that the federal version gets the balance right between the rights of individuals to fairness and the importance of reducing corrupt misconduct and activities by government and law enforcement bodies.
One of the major criticisms of bodies such as the ICAC, the CCC, Victoria’s IBAC and the Queensland CCC is that public hearings can destroy reputations, and the procedures of such bodies mean that there is a major power imbalance between the “hunter and the hunted’’.
The power of anticorruption bodies is enormous and they are not bound by rules of evidence. And as Dennis Cowdroy, QC, the inaugural head of the ACT Integrity Commission, has observed, the holding of public hearings by such bodies not only can breach human rights such as the right to privacy and to reputation, but the “holding of a public hearing could potentially jeopardise a criminal trial (especially before a jury) arising out of the conduct which has been the subject of investigation and which has been exposed publicly before the commission”.
So we need to tread carefully in designing the federal anti-corruption body. We should heed the lessons of what happened to former WA politician Julian Grill and former premier Brian Burke, who were entangled with WA’s CCC from 2005-12.
Grill has written about the experience in a powerful, lengthy but eminently readable book, Secret State (Connor Court Publishing).
In essence Grill and Burke were lobbyists. They found themselves targeted by the CCC in two inquiries, one into a property and land development, and the other into lobbying.
It is acknowledged, of course, that Burke had been jailed in 1994 and served seven months of a two-year term for parliamentary travel misuse. But Burke had served his time and as a returning citizen was entitled to earn a living to support himself and his family.
But the fact that Burke was involved in lobbying with Grill could have influenced the views of those in the CCC, who raided the homes of both, naturally with someone having tipped off the media so it could “just happen’’ to be at raids in 2006.
Burke and Grill were subjected to the most appalling trial by media. Leaked telephone intercepts were published by the media. As this columnist noted in a piece for Crikey in October 2007: “The CCC has unfortunately allowed its investigations into the activities of Mr Burke and Mr Grill in the Canal Rock development case and other matters to become a media free for all … The CCC itself made selected phone calls by Burke and Grill available to the media and the vast majority of its hearings were held in open court.”
Both men faced corruption charges after the CCC findings but were acquitted in 2010.
The prosecution appealed, and a retrial was ordered. In 2012 the WA DPP decided not to proceed with the charges.
But the CCC’s conduct had cost both men dearly in terms of their health, their families and their finances.
The conduct of the CCC was exposed, and herein lie the important lessons to be learnt, in part by two of WA’s most courageous lawyers, Malcolm McCusker, QC, and Tom Percy, QC (the latter acted in the controversial Sue Neill-Fraser case).
McCusker, who at the time held the oversight role into the CCC, damned it over adverse findings made against a public servant who had involvement in the land project Burke and Grill had been working on.
McCusker interviewed CCC staff and found, in a report in 2008, that the CCC’s finding of “misconduct’’ against the public servant had no basis in fact. The “facts’’ relied on by the CCC did not exist and even the chief investigator in the
Let’s learn from some of the patently unfair practices of other commissions, like that in WA, so this time we ensure the ‘hunted’ does not have his or her life destroyed.
CCC inquiry had not recommended a “misconduct’’ finding. McCusker warned the CCC against making adverse findings against individuals without applying proper legal standards. And, as Grill reveals, the CCC was so alarmed by McCusker’s relentless oversight of it that it sought an injunction against him, ex parte, which means without giving McCusker notice!
Percy, who acted for Grill, exposed another dangerous tactic of the CCC, the element of surprise with witnesses. In other words, create a “gotcha’’ moment by not telling the individual being investigated the sorts of matters you are inquiring about.
Ensuring corruption does not occur and having a federal body that can investigate allegations is a good idea. But let’s learn from some of the patently unfair practices of other commissions like that in
WA so this time we ensure the “hunted’’ does not have his or her life destroyed. The rule of law should not be abandoned because it’s politically expedient to do so.
Hobart barrister Greg Barns, SC, is a human rights lawyer who has advised federal and state Liberal governments.