Michael Sheldrick delves into the Corruption and Crime Commission, to see if recent negative press is warranted.
Earlier this year I had the opportunity to interview a former premier as part of my research into Western Australia’s Corruption and Crime Commission (CCC), the subject of my honours dissertation. The interviewee left me in doubt as to his view about the body.
Somewhat dramatically, his expression full of loathing and contempt, he had told me that the CCC was ‘the East Berlin Stasi of our democracy’ and on that basis alone should be abolished. Was he being serious?
I don’t deny the CCC has been the subject of, on balance, negative criticism in recent months, but was it really fair to compare it to one of modern history’s most vilified secret police agencies? Keen to form my own view on the matter, I set about investigating the CCC’s conduct.
For those of you less familiar with the work of the CCC, let me provide the briefest of overviews. Tasked with improving the integrity of the WA public sector, the CCC is, in the words of its creator, former Attorney-General Jim McGinty, ‘one of the most powerful’ anti-corruption agencies in Australia.
Amongst its arsenal of corruption-fighting powers is the ability to form and publish opinions as to whether a public officer’s actions constitutes misconduct; conduct examinations in the public eye; enter and search public premises; make recommendations as to whether consideration should be given to the prosecution of criminal charges; and apply for and execute search and telecommunication interception warrants.
In exercising any of these powers, the CCC is generally not bound by the rules of evidence that the courts are ordinarily subject to, including the right to self-incrimination.
Given the ramifications such powers pose to the privacy of individuals under investigation, their use calls for the highest level of oversight to ensure they are exercised in accordance with the law. Recent history is littered with countless examples of anti-corruption agencies being usurped as a means for stifling government dissidents in other jurisdictions.
Consequently, the CCC is meant to be kept in line by a dedicated parliamentary oversight committee as well as a specially designated parliamentary inspector (a position previously occupied by the renowned barrister Malcolm McCusker QC and currently held by the former President of the Court of Appeal, Christopher Steytler QC).
Despite these layers of oversight, the CCC has been attacked extensively over the use of its special powers. Despite reassurances by some that the public can be confident that such powers are subject to oversight, the CCC has been compared not only to the ‘East Berlin Stasi’ but pretty much any unjust investigative and legal body from the history annals. References to the ‘Court of Star Chamber’ – what eventually became the symbol of the strict, arbitrary and tyrannical power of 17th century English monarchs – is perhaps most common.
Such charges are based on the notion that the CCC unfairly destroys reputations without any justification for doing so. People who find themselves in such situations are then left with the now apparently discredited ‘corruption’ finding hanging above their head, their career in tatters.
Perhaps the most well-known example of this is the case of former-Premier-turned-lobbyist, Brian Burke. In a series of CCC findings, Burke was found to have engaged in questionable activities as a lobbyist. He was vilified and subject to intense media scrutiny as a result. And then in May this year the Supreme Court threw out corruption charges against Burke on the basis he had ‘no case to answer.’
Having already had his reputation tarnished as a result of the CCC’s adverse finding, as the argument goes, Burke was left without remedy or redress. On this basis alone, commentators have called for an overhaul of the way in which the CCC operates. Indeed, some have argued for adverse findings of the CCC to be kept in private until they can be tested in a court of law, thereby reducing the risk of unfair reputational damage being caused.
Having closely looked into the matter, it is my belief that such arguments are based on a flawed understanding of the nature of a body like the CCC.
The primary purpose of the CCC is to improve the integrity of the public sector and to reduce the incidence of misconduct in it. Accordingly, the CCC’s power to publish findings is directed not only at exposing criminal conduct, but also behaviour that strikes fundamentally at good governance and the public interest.
Such behaviour may not be criminal but still sufficiently malign to warrant the public’s attention. Indeed, whilst the behaviour of a lobbyist like Burke may not have met the high threshold for liability in criminal law, it still arguably fell short of the standards people involved in the public arena should be expected to abide by.
As Jim McGinty notes, ‘Brian Burke’s conduct, although not illegal, if left unchecked … would have corrupted the process of government completely.’ Consequently, whilst activities classified as misconduct by the CCC may result in criminal charges, CCC findings should not be misconstrued as declarations that a particular person has committed a criminal offence.
Trials commenced subsequent to an adverse finding by the CCC should not by themselves be seen as affecting the validity of the CCC’s original findings. As Commissioner Temby said of the Independent Commission Against Corruption (the NSW equivalent of the CCC), ‘prosecutions are no more than an incidental by-product of the work the Commission does.’
Ultimately, it is misleading to claim the CCC has unfairly tarnished an individual’s reputation merely because that person is not subsequently found guilty in a court of law. The test of fairness for a body like the CCC should be whether it has exposed behaviour unacceptable to the public interest. In the case of Brian Burke I believe it did, criminal or not.
The CCC’s ability to report publically on such findings is crucial to its effectiveness. Removing such powers could inadvertently hinder the CCC’s ability to reduce public sector misconduct by exposing unacceptable, albeit not strictly criminal, behaviour to what U.S. Supreme Court Justice Louis Brandeis once described as ‘the disinfectant of sunlight.’
The fact that over-the-top allegations have been levelled at the CCC is unsurprising, and even to an extent inevitable. The confrontation of sectional (and corrupt!) interests, by its very nature, has always provoked stiff retaliation as such interests fight for their survival.
The words of the great anti-corruption fighter of Queensland, Tony Fitzgerald, are perhaps most insightful here. Speaking more than twenty years ago, Fitzgerald noted: ‘It…will undoubtedly become standard practice… for those whose conduct is in question to impugn the motives and behaviour of those appointed to that task. Orthodox allegations will include… extravagantly pejorative terms such as ‘witch-hunt’, ‘McCarthyism’, and so on’.
Indeed, a quick flick through the media reports reveals that the term ‘East Berlin Stasi’ was first used in a radio interview to describe the CCC by none other than Burke’s mate and fellow disgraced lobbyist, Julian Grill. Surely that’s got to say something about the success of the CCC.