What is the role of ICAC?
When the NSW parliament created the Independent Commission Against Corruption it wanted a powerful tool to weed out corruption in order to restore the state’s reputation after a series of scandals.
The goal was admirable. The result is not.
According to the ICAC Act (1988) No 35, the statutory role of ICAC is:
(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and
(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community.
In its role of investigating and exposing corruption, ICAC has become a parallel system of justice that has been stripped of the safeguards that are a feature of the courts. It is disingenuous to seek to minimise the scale of this design flaw by asserting that the commission is not a court, cannot make findings of law and cannot impose penalties. Such analysis elevates form over substance.
To expose and educate the community about corruption, ICAC holds public hearing and makes its findings public. Thereby imposing one of the most severe penalties that could ever be inflicted upon a person: a public taint of corruption. This has destroyed the reputations of innocent people, ruined their careers, hobbled their businesses and left them without an adequate means of redress or exoneration.
NSW ICAC’s independence, jurisdiction and ability to hold public hearings must be balanced against the risk of causing inappropriate and irreversible reputational harm to others.
Ultimately, NSW ICAC must continue to maintain public trust if it wants to be considered a good model for emulation.
What are the flaws of ICAC?
1. ICAC is not a Court but wields immense power
Integrity bodies such as ICAC are not courts. Even though they may appear to share many similarities with the courts, they are part of the Executive and not the Judicial arm (Courts). As such, their findings should not be viewed as possessing the same authority as a court’s, and certainly should not act with the jurisdiction of a court in its investigations.
a. As ICAC is not a Court, it does not have the power to make findings of guilt or innocence
The liberties of all Australians rest on the principle that everyone is free to engage in activity that does not amount to a breach of the law. Liability under the law and the imposition of penalties are the exclusive prerogative of independent courts, not integrity bodies such as ICAC.
As ICAC is not a court, it is neither entitled nor has the power to make findings of guilt or innocence.
Rather than making criminal findings, ICAC focuses on “corrupt conduct.” According to Paul Kelly in the Australian;
corrupt conduct is, among other things, about “a breach of public trust”. How wide is this? We know what fraud is – but breaches of public trust enter the realm of the selective and subjective. The act says conduct can be corrupt that “could” adversely affect the impartial exercise of official functions.
b. As ICAC is not a Court, it does not apply the same safeguards to protect an individual’s rights
The rule of law is a fundamental concept in Australia that protects individuals rights and liberties by ensuring no one is above the law and the law is applied equally and fairly. Under the rule of law, everyone is considered innocent until proven otherwise in a court of law. The presumption of innocence ensures the burden of proof rests with the prosecution to establish guild beyond reasonable doubt before an unbiased decision maker.
Ron Hoenig MP explained at the Presumption of Guilt Conference:
“if the state are prosecuting you, you have a whole range of protection such as the presumption of innocence, you are protected such as the right against self-incrimination you have the right to not give evidence if you do not want to. If you are being investigated by the Independent Commission against Corruption you have no rights whatsoever.”
Dennis Cowdroy QC, the inaugural commissioner of the ACT Integrity Commission outlined the following areas where integrity agencies such as ICAC breach safeguards usually applied by the Courts;
- Those under investigation can be compelled to attend examinations where the rules of evidence do not apply,
- documents that might be privileged must be surrendered,
- they are required to give evidence that might incriminate themselves,
- their freedom of movement can be restricted,
- they can be forced to surrender personal items such as mobile phones; and
- they can be subjected to reputational damage.
c. As ICAC is not a Court, it can act as both investigator and judge
Another safeguard of the justice system is the institutional and functional separation between police who investigate, the Director of Public Prosecutions which independently assesses the material collected by investigators and runs prosecutions, and the judiciary which impartially presides over an adversarial contest between the defence and the prosecution – and is itself subject to multiple levels of appeal. This separation establishes a healthy degree of tension as the separate bodies make their own, independent assessments. State power is distributed and is subject to review at multiple points.
ICAC does not have this safeguard of institutional and functional separation, but instead is both the investigator and decision-maker.
2. ICAC holds Public hearings and makes Public Findings
ICAC holds public hearings as a way to expose corruption and increase public confidence in the integrity of investigations. In NSW, it is common for questions that have already been asked and answered in ICAC’s initial private hearings to be asking again in a public hearing- adding very little to the stock of knowledge.
a. Public hearings can jeopardise the right to a fair and prompt trial
If the police, a similar investigative agency, were empowered to make public findings and conduct public hearings on the pretext that this would educate the community about crime, there would be media cameras invited into police interview rooms and press conferences once police have decided who is guilty, naming these people. Police reports would be tabled in parliament and they would be beyond correction or appeal. The justice system would be unable to give these people a fair trial as such statements may amount to prejudicial pre-trial publicity.
“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 .. An adverse finding by the commission on such a matter could severely impact upon the ability of a person adversely named in achieving a fair trial.”
– Dennis Cowdroy QC
Chris Merritt, in a lecture to the Samuel Griffith Society considered the impact of ICAC’s hearings upon the Obeid case and questioned whether ICAC’s threat to a fail trial could be traced back to the adverse consequences of the NSW parliament giving less weight to the interests of criminal justice than it gives to publicising the work of its anti-corruption commission. This highlights the need for NSW parliament to provide a statutory instruction to ensure that this does not undermine the fairness of foreseeable criminal proceedings.
b. Public hearings cause reputational harm
Another aspect of a public hearing is the reputational harm inflicted, where public findings of corruption remain in place even if followed by an acquittal in a criminal court.
“The presumption of innocence is an interest or right alive at all times although usually it may only come into play in the face of a formal charge … that right is battered whenever a finding of corrupt conduct is made, and more particularly when that label is applied to conduct that at best only amounts to disciplinary or termination type conduct. Numerous persons who have had that label stamped upon their forehead have been keen to clear their name so that their honour or good character (including the presumption) can be restored.”
– Report by the Office of the Inspector of the Independent Commission Against Corruption on complaints by Andrew Kelly, Charif Kazal and Jamie Brown, tabled in the NSW parliament, June 29, 2017
Margaret Cunneen SC considered the impact of public hearings by ICAC in an interview with Alan Jones on Sky News and stated:
“They (ICAC) choose their own targets and they operate for maximum shame and humiliation on the way through, by then, it doesn’t matter whether anyone is ever found to be guilty or not guilty, your reputation is gone, and your job is gone.
Why does New South Wales have public hearings? If they insist on public hearings there must be a quid pro quo and that must be a public apology and exoneration for the many, many times that it gets it wrong.”
3. ICAC’s Lack of Review
Article 12 of the Universal Declaration of Human Rights aims to prevent “arbitrary” attacks on a person’s honour and reputation. Those who have been stigmatised and shamed by ICAC are unable to test the merits of the agency’s assertion that they are corrupt.
“The definition of ‘arbitrary’ is wide enough to include an ICAC finding of corrupt conduct that cannot be challenged.”
-Report by the Office of the Inspector of the Independent Commission Against Corruption on complaints by Andrew Kelly, Charif Kazal and Jamie Brown, tabled in the NSW parliament, June 29, 2017
The original mistake was creating an agency without ensuring its coercive power was balanced by respect for the presumption of innocence and the ability to test the merits of a flawed finding. Even those convicted in a court of corrupt dealings, and indeed those who have had their appeals finalised, still have mechanisms for having their innocence restored to them should it be the case that they are able to mount a compelling case that they are in fact innocent of a crime.
This design flaw has trapped ICAC in a moral hazard. It conducts its work safe in the knowledge that the law of NSW does not permit anyone to test the merits of its findings.
To this extent, ICAC is not just an alternative system of justice, but an alternative that is presumed to be infallible
4. ICAC’s lack of Exoneration Protocol
The Rule of Law Institute of Australia has written extensive commentary about the flaws in the NSW ICAC Model- most recently in its Submission to the Committee on the Independent Commission Against Corruption: Inquiry into Reputational Damage on an individual being adversely named in the ICAC’s Investigations. This submission outlined the need for ICAC in NSW to adopt an exoneration protocol.
An exoneration protocol should be available to those who have been acquitted by a court or who have never been charged over matters that have been investigated by ICAC. It should be available only to those who are entitled to a presumption of innocence.
It would not be available to those found guilty by a court of an offence based on the same or similar facts that formed the basis for an adverse finding by ICAC.
There have been multiple examples, click here to read more, of individuals who have been adversely named by ICAC as engaging in corrupt conduct but have later been found innocent by the Courts. An exoneration protocol would provide a remedy for innocent people whose reputations have already been tarnished and have been awaiting the introduction of a remedy that would enable them to remove the taint and clear their names.
How is NSW’s Integrity Commission (ICAC) different to Victoria’s Integrity Commission (IBAC)?
Chris Merritt discussed on Sky News the differences between ICAC and IBAC:
1. Public hearings- NSW generally conducts public hearings. In Victoria the default position is private hearings. Before IBAC conducts a public hearing it considers the damage done to a person’s reputations and it will only be in extraordinary cases will they go on to have a public hearing.
2. Jurisdictional differences- Victoria focuses on corruption in terms of honest application of public duties, whereas NSW focuses on corruption not just in terms of honesty but has the added focus on impartiality of public administration.
3. Powers- Victoria requries a preliminary inquiry before they can use the same co-ercive powers used in NSW
Submissions made regarding ICAC
The Rule of Law Institute of Australia has written the following submissions regarding the overeach by ICAC
Review of the Inspector’s report to the Premier, The Inspectors Review of the ICAC
12 April 2016: Select Committee on the Establishment of a National Integrity Commission
10 June 2016: Review of the Inspector’s Report to the Premier: The Inspector’s Review of the ICAC
8 September 2016: Public Hearing for the Report on Proceedings before the Committee on the ICAC: Review of the Inspector’s report to the Premier: the Inspector’s review of the ICAC.