Impact of corruption and maladministration

August 29, at 7:

Impact of corruption and maladministration

The report directly criticises five individuals and the public authority responsible for administering Oakden, but also highlights the astonishing ignorance of successive governments who allowed deplorable conditions at the facility to persist.

The Commissioner reiterated this request in his report, claiming that the power would aid the type of investigation which led to his exposure of the circumstances at Oakden.

This is an important moment in the evolution of Australian anti-corruption commissions. Creation of a potential federal commission, now officially supported by the Labor opposition, renders the powers of such bodies a subject of national importance.

If unfair injury to the reputation and privacy of Ms Cunneen provided a galvanising moment for those opposed to Australian anti-corruption commissions, the Oakden Report provides the opposite.


By pairing the report with a plea for new powers to render his work more complete and effective, the Commissioner presents a compelling case — one no doubt irresistible to a government recently ushered to power on promises of civic accountability.

To his credit, Commissioner Lander avoids generalisations and platitudes which sometimes accompany debate about the powers of anti-corruption commissions. He acknowledges, for instance, that evidence supporting the supposed deterrent effects of public hearings is lacking.

For this reason, it warrants careful — and critical — attention. Importantly, he cannot publicly report findings of corruption itself. He supports the present restriction against the ICAC conducting corruption hearings in public, because those hearings are incidental to an investigation which eventuates in no findings per se, only the possibility of referral to other authorities.

As observers and practitioners are well aware, the stakes are high in both corruption and maladministration proceedings partly because the ICAC is vested with exceptional powers — most notably, the power to compel witnesses to give testimony — which are denied to other investigative organs such as the police.

Individuals implicated in ICAC proceedings may be forced to bear witness against themselves and thus contribute to the formation of criminal charges or to adverse public findings, not to mention bearing the inherent stress of scrutiny.

In a forthcoming paper co-authored with my colleague, Gabrielle Appleby, in the Adelaide Law Review, we have argued against presumptive use of public hearings by anti-corruption commissions, including in the circumstances advocated by Commissioner Lander.

Like the Commissioner, we recognise the existence of valid competing positions and the centrality of this issue in properly orienting an ICAC to its purpose, but we arrive at different conclusions. These questions are meant to refine that debate by challenging participants to clarify their presumptions, speak fully to the potential implications of their claims, develop their positions to a high degree of precision.

Question 1 First, what significance should be attached to the fact that the findings of anti-corruption commissions have no immediate legal effect?

Impact of corruption and maladministration

An oft-repeated principle in jurisprudence on inquisitorial proceedings is that the non-enforceable nature of their findings legitimates departure from the standards of courts. It is legally tolerable for such processes to compel testimony, in this thinking, on the basis that they eventuate no immediate legal prejudice to individuals, only potential damage to reputations.

Most people would find the stigma of public criticism by an anti-corruption commission to be deeply distressing. Its potential to ruin careers, destroy relationships, and disrupt lives should not be underestimated or viewed diminutively in contrast to conviction for a wide variety of offences, especially those that carry relatively light penalties.

While investigative in the sense that they are constituted to verify facts, commission hearings rarely take place without the advance formation of evidentiary theories by counsel assisting, or without a common understanding among participants about the critical issues being tested.

Steps preceding the hearings themselves — chiefly the gathering of documents and completion of interviews — will have already crystallised key allegations and factual controversies to be tested in the hearings, enabling counsel to conduct cross-examinations in a manner derived from their experience with courtroom practice.

With the exception that presiding commissioners may be obliged to pursue unexpected factual avenues which arise in the hearings, both the conduct of hearings and the mode of judgment exercised by a commissioner will be reminiscent of judicial decision-making in court.

Lawyers sometimes lament the fact that the public mistakenly perceives investigative commission hearings to be a form of trial, but perhaps we would do better to recognise the wisdom in this perception: True, investigative commissions may observe relaxed standards for admitting evidence, they may limit the opportunity for witnesses to advance their own theories and claims within the bounds of fairness, and the presiding official may assume a more interventionist role than in a court.

But query whether any of these characteristics fundamentally diminish the notion of a trial in a core sense. If they were to be introduced in a court, for example, would that forum cease to be a court? If the findings that result from hearings are grave for individuals, and the hearings themselves substantively resemble a judicial process, should we then also dispense with the view that those subjected to such hearings are not entitled to court-like safeguards?

An affirmative answer to this question would almost certainly endanger the constitutional validity of anti-corruption commissions by trenching on the role of courts.

But by squarely facing this dilemma, we are forced to interrogate assumptions about the gravity and impact of commission processes and to precisely articulate how and why those processes should differ from courts. We are also forced to grapple with the potential superficiality of deriving significant procedural and substantive implications from the fact that commissions do not dispose of legal rights in a strict sense.

Chapter III of the Constitution reserves to courts exclusive authority to adjudicate legal rights, but presumably a purposive interpretation of that provision should mean than the safeguards of courts are extended where they are substantively warranted — not that proceedings engaging similar prejudice to courts escape judicial standards through technical distinctions in the character of their findings.

Question 2 The next question requires us to adopt a collective perspective as members of the political community: Approaching the question from this perspective forces us to treat the powers conferred on anti-corruption commissions as ones we ourselves would be reasonably willing to endure.

The relevant consideration is not how we would want someone who has committed misconducted to be treated by a commission, but what we would accept as fair treatment if our own conduct were the subject of allegation and scrutiny.

Taking an alternate approach amounts to a double-standard — a biased belief that only the morally culpable will fall under investigation by commissions to begin with. If we recognise that the goals of anti-corruption commissions are so important as to justify certain incursions on our liberties, it follows that we should be prepared to accept the exercise of powers necessary to those goals, but not powers beyond them.

By holding ourselves to a standard of necessity, we should be drawn to select instruments that achieve institutional goals with the minimum possible danger to individuals. This includes accounting for the possibility of misdirection and error in the use of powers.

Debate about the public hearing powers of commissions thus becomes debate about whether, and under what conditions, public hearings are necessary to fulfill legitimate goals commensurate to the risks they engage. One possibility suggested by recent changes to the New South Wales ICAC is that the use of public hearings can be justified when the public has confidence in the quality of judgment which precedes a hearing.

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SCU Policy Library - Code of Conduct