Coalition and Labor should refrain from making changes to Australia’s justice system with parts of discredited ICAC model

Chris Merritt                 14 April 2022

Published in the Australian Newspaper

On election day, the community will pass judgment on two contending versions of a national integrity commission. Both models should be judged against this criterion: will they erode the doctrine of freedom under the law?

In this country, people are free to conduct their affairs in any manner they choose so long as it is not forbidden by law.

Vague laws are the enemy of freedom. They hand arbitrary power to agents of the executive branch of government and leave ordinary people vulnerable to officialdom.

This is why parliaments have a responsibility to ensure the boundaries of unlawful conduct are clear and known to all. Lawmaking that disregards that principle should be viewed with suspicion by those who value liberty.

One of the great benefits of a federation is that the rest of the nation can learn from the experience of individual states. This is why the Americans sometimes describe their states as the laboratories of democracy.

Beneficial change will spread but mistakes can be quarantined, which brings us to NSW.

That state’s Independent Commission Against Corruption is widely viewed as the model by those who yearn for a federal anti-corruption agency with “teeth”.

But is it much of a model? And what do those “teeth” consist of?

Every state and territory now has an anti-corruption commission but none have replicated exactly what happens in NSW.

Those who are attracted to the idea of an a federal ICAC with teeth, might take a different view if they were asked about the different elements that go to make up the NSW model.

How many people would be in favour, for example, of allowing a federal ICAC to ignore the rules of evidence and base its decisions on material that would never pass muster in a court? That happens in NSW.

How many would like to give a federal ICAC special status so the merits of its findings could never be tested on appeal? That also happens in NSW.

How many would be in favour of abolishing the unquestioned right of defence counsel to test the credibility of prosecution witnesses during cross examination? The ability to expose unreliable prosecution witnesses at ICAC can only be done if the commission, which presents those witnesses, agrees.

How many would be in favour of replicating the internal procedures of ICAC – an organisation that once took evidence at a public hearing from a brain-damaged witness who suffered from amnesia?

Nobody in authority had read the medical documentation this witness’s lawyers had disclosed to the commission.

How many would be in favour endangering the right to a fair trial before an unbiased jury by generating prejudicial publicity at public hearings when criminal proceedings are foreseeable? And how many like the idea of delaying bringing wrongdoers to justice?

In July last year when the NSW Supreme Court handed down guilty verdicts against Eddie Obeid, his son Moses and former NSW Minister Ian Macdonald it concerned events that took place 14 years in the past and had been known to ICAC for a decade.

When the case finally came to court, it was delayed for months because the prejudicial publicity generated by ICAC hearings threatened to taint the pool of potential jurors. And when the trial eventually went ahead, Justice Elizabeth Fullerton was forced to abandon normal criminal procedure and run the trial without a jury.

The biggest issue, however, is the vague definition of corruption used by ICAC in NSW. This has been highlighted by John Nicholson, a former acting inspector of ICAC, who has written that the definition of corruption in that state permits the commission to use “an uncertain standard”.

If the definition of corruption is vague, so is the boundary of the commission’s jurisdiction – and that leaves people uncertain about what they can and cannot do.

At the moment, the Morrison government has rejected the NSW model and says it will only introduce its alternative model with Labor support.

The government’s proposed commonwealth integrity commission, which was designed by former Attorney-General Christian Porter, would be responsible for pursuing breaches of 143 laws directed at specific wrongs.

Those laws would form the boundaries of its jurisdiction and there would be limited capacity for mission creep – unlike the vague boundaries of the NSW model.

But from a rule of law perspective there are problems with the options put forward by the government and Labor.

Labor has yet to unveil the details of what it has in mind, but legal affairs spokesman Mark Dreyfus has stated in the past that there will be public hearings and public findings of corruption.

The law enforcement division of the government’s model would also hold public hearings and make public findings of corruption.

Yet if ICAC-style public hearings and public findings are so beneficial, why not invite the media to provide live broadcasts from the interview rooms of the Australian Federal Police?

There are two reasons why that does not happen. The first is to avoid reputational harm to the innocent and the second is to ensure the guilty face a trial whose fairness cannot be impugned.

Those interests are undermined when bodies like ICAC conduct investigations in public and pre-empt the justice system by making adverse public findings when court proceedings are foreseeable.

The experience in NSW shows this is a real issue. That state uses a system that damages people who might never be declared corrupt let alone prosecuted or convicted in a court of law.

This country has a perfectly good system of justice. The Coalition and Labor are both wrong to consider undermining that system with elements of the discredited ICAC model.