BY GRANT HOOLE

On the 28th of February 2018, little more than two weeks before South Australian voters went to the polls to elect a new Liberal government, the state’s Independent Commissioner Against Corruption released a blistering report on the maladministration of Oakden, a former aged care facility for the mentally ill.

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. Campaigning for premier, Liberal leader Steven Marshall seized not only on the content of the report, but on the then Labor government’s refusal to accept Commissioner Bruce Lander QC’s past requests to expand the ability of the ICAC to hold public hearings. 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. Marshall characterised the government’s refusal as indicative of a culture of secrecy and unaccountability. Now Premier, he has promised imminent legislation satisfying Commissioner Lander’s request after the state parliament reopens today.

This is an important moment in the evolution of Australian anti-corruption commissions. The conferral of public hearing powers on South Australia’s ICAC (albeit partially, as the conferral is sought only in respect of certain investigative subjects) would bring the commission into closer alignment with its counterparts in other states, where public hearings are the norm. Creation of a potential federal commission, now officially supported by the Labor opposition, renders the powers of such bodies a subject of national importance. The perceived benefits and shortcomings of public hearings were also central to debate surrounding recent changes to New South Wales’s ICAC, spurred in part by that commission’s invalid attempt to convene hearings into alleged impropriety involving crown prosecutor Margaret Cunneen SC.

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. Commissioner Lander’s report eminently displays the value of a standing watchdog capable of safeguarding the rights of society’s most vulnerable members. 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.

It is nonetheless important that the substance of Commissioner Lander’s request not be lost in the political circumstances supporting its hasty adoption. The question of whether anti-corruption commissions should conduct investigative hearings in public or in private is a surrogate for challenging root questions about the institutional characteristics necessary to fulfill a commission’s objectives, and about how institutional powers should be measured to purpose.

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. And while he dismisses the previous government’s objections to public hearings as politically motivated, he acknowledges the existence of valid countervailing considerations. The Commissioner’s advocacy for expanding the ICAC’s hearing powers stems from his understanding of the purpose of his commission, and of how that purpose is meant to complement other institutional components of the legal system. For this reason, it warrants careful – and critical – attention.

South Australia’s ICAC is empowered to investigate both corruption in the familiar sense (defined in reference to offences under the criminal law), and more general acts of public misconduct or maladministration concerning the misuse of public resources. The Commissioner can publicly report findings of ‘serious or systemic’ misconduct or maladministration when such activities, if known, would endanger public confidence in the administration of government. Importantly, he cannot publicly report findings of corruption itself. Where the Commissioner’s investigation leads him to conclude that corruption has occurred, he must report the matter to the Director of Public Prosecutions, which may or may not elect to proceed with criminal charges.

This distinction is critical to Commissioner Lander’s request for public hearing powers. 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. In the Commissioner’s view, an investigation focused on corruption is thus analogous to an investigation by the police: its occurrence in private protects the integrity of the investigation, including in circumstances where the individuals being investigated are unaware.

By contrast, the Commissioner’s investigation into misconduct or maladministration may eventuate in a public report in which he states findings about individual and organisational behaviour. It follows, in the Commissioner’s view, that hearings in aid of such investigations should be public, so that the public may be assured that he has observed a thorough and fair process. This would allow the public to judge for itself whether an ICAC has behaved appropriately in investigating serious misconduct or maladministration – an issue brought into focus by challenges to the Commissioner’s authority to publicly criticise individuals, which delayed completion of the Oakden Report.

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. Commissioner Lander’s advocacy for specific hearing powers nevertheless presents, in my view, the most compelling case available for public hearings, because it focuses on protecting the integrity of the process itself, not on contestable assumptions about what public hearings can achieve. Rather than repeat arguments against public hearings, I thus wish to confront Commissioner Lander’s position on its own terms, offering two questions which I believe grapple with some of the root issues and precepts that underlie debate about anti-corruption commissions. 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?

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. While it was likely not his intention, Commissioner Lander’s position invites us to reconsider the merit in this distinction.

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.

Non-enforceable, adverse findings require a commissioner to be satisfied that the evidence fulfils statutory and common law criteria supplying the meaning for terms such as ‘serious maladministration’, and to impartially consider the positions of affected persons before deciding. 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: that the public resolution of an accusation is central to what a trial conjures in our imaginations, and whether or not that resolution has an immediate legal quality is secondary. 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? In other words, should we be prepared to follow Commissioner Lander’s advocacy to a more radical but perhaps logical conclusion: that those subjected to ICAC hearings are facing something akin to charges; that the hearings themselves are a form of adversarial adjudication; and that those persons should thus be entitled to the privileges and safeguards of a judicial process?

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: what degree of incursion on our freedoms should we be prepared to accept as necessary to fulfil the purposes of an anti-corruption commission?

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.

This requires not only clarity in stating a commission’s institutional goals, but honesty in recognising the apprehended consequences of pursuing those goals via different approaches. 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. In other words, the laudable goals associated with public hearings – transparency, deterrence, public education, etc. – can be satisfied in a manner commensurate to a hearing’s possible harms if the decision to commence a hearing is taken with due care, guided by diligent application of the commission’s legislative mandate. Responding to controversy surrounding the ICAC’s jurisdictional overstep in the investigation of Ms Cunneen, the state parliament legislated to expand the number of commissioners from one to three. In the government’s thinking, deliberation amongst a greater number of commissioners reduced the risk of error in escalating an investigation to a hearings phase.

Yet the evidence given in parliamentary hearings leading to these reforms did not suggest that a lack of deliberation was to blame in the investigation of Ms Cunneen: the decision to convene formal hearings was taken after discussion among the ICAC’s executive team, not by the Commissioner acting alone. Thinking realistically about excesses of power by anti-corruption commissions, the most troubling issue is probably not that individual commissioners will act with vindictiveness or abject indiscretion in convening a hearing. It is that reasonable people applying complex mandates – and influenced by the institutional cultures which surround them – will sometimes act in error (or act on suspicions that are reasonable but ultimately disproved by a hearings process after individual stress and stigma have already been inflicted).

Advocacy for the presumptive privacy of commission hearings recognises these harms and argues that they are incommensurate with the claimed goals of public hearings, especially when many of those goals might be satisfied by alternate means (such as public reporting on concluded investigations, referral of prosecutable cases to other agencies, or narrow allowances for public hearings in exceptional cases). Conversely, advocacy for public hearings – stated in terms of necessity – would contend that once the use of hearing powers is legitimately warranted, the only way to fulfill a commission’s objectives without unduly endangering individuals is to act with the utmost transparency. A middle position might draw distinctions based on the individuals implicated, arguing for example that the harsh effects and risks of public hearings are justified in respect of senior public officials whose stations signal tacit consent to public scrutiny, but not in respect of their subordinates or those outside the public service.

Each of these positions has merit. The point in drawing them out is to demonstrate that close, careful thinking about the powers necessary to fulfill a commission’s objectives should seize us with the complexity of the task. It should caution us to take time and debate the issue in a detailed and (to the greatest extent possible) non-partisan manner, and not to sanction hasty legislative changes taken in the political reckonings of the moment. This includes the aftermath of the Oakden Report, however meritorious and distressing the findings of that report may be.

 

Grant Hoole is Vice-Chancellor’s Postdoctoral Fellow and Director of the Inquisitorial Justice Project at the Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW

Suggested citation:  Grant Hoole, ‘Two questions about the powers of anti-corruption commissions on AUSPUBLAW  (3 May 2018) <https://auspublaw.org/2018/05/two-questions-about-the-powers-of-anti-corruption-commissions/>