It is a pleasure to deliver the 2015 Jeff Shaw Memorial Lecture.  It is poignant to be here in this magnificent place – Sydney Trades Hall – erected in the 1890’s, opened in 1895; built with the slow eye of a perfectionist, everyman employed was a unionist.  This hall has been at the heart of industrialised labour ever since.

It is a real honour for me to be asked to give this lecture. I was never really central to Jeff Shaw’s universe. He was always in a much higher stratosphere than me. Hewas well ahead of me in my progression through the legal profession. He was miles ahead of me in his impact on the Labor Party. He was instrumental in the left take over of Young Labor, in the early 1970’s, paving the way for people like John Faulkner, Anna Katzmann, Robert Tickner, Daryl Melham and me who followed years later. Jeff was at the Bar when I was still a student.  He was admitted to the Bar in 1976 and took silk in 1986.

Prior to his election to the Legislative Council in 1990 he built a reputation as a consummate lawyer and a leader of the Industrial Bar.  He was a fine Attorney General from 1995 until 2000.  Like all good Attorneys General, he presented the government’s policies as and when they were formulated; publicly aligning himself with the position that was taken by the cabinet but always working overtime to moderate the approach to law and order issues that some of his cabinet colleagues took.  Jeff’s was a voice of reason.  He knew how to argue his case to cabinet and he understood when it was strategically necessary to give ground.

I remember one occasion when I was pitted against him in a politics in the pub debate that was organised by Trevor Davies in a hotel in Chippendale.  The topic was about bail reform and sentencing juveniles.  Jeff defended the government’s policies; I was critical.  I had the luxury of being a side lined, armchair critic.  Jeff had the responsibility of governing and shaping Labor’spolicies in the face of radio shock jock criticisms and campaigns.  

Jeff was bemused by my stridency.  He outlined his position to an audience of inner city lefties.  He was sympathetic but he explained that he had a job to do.  He also hinted that things could be a lot worse.  He was right, of course.  We all saw how much worse things could get – under both Labor and Liberal Attorneys General.

Under Jeff Shaw’s watch there was never any talk of incursions upon the right to silence, standard non parole periods, mandatory sentencing, imprisoning offenders after the expiration of their sentences or disallowing the cross examination of certain prosecution witnesses – a new development being mooted by the current Attorney General.

Jeff Shaw was a politician who believed in the rule of law and the central position of the courts in our system of justice.  He did nothing to promote the parallel justice system that has appeared over the last 20 years that seems to have set up a form of competition to the real criminal courts.  I am speaking of those investigative bodies that are permanent, standing inquiries like the Crime Commissions, the Police Integrity Commission and the ICAC.

To the casual, lay observer these bodies look and sound like courts.  They are headed by Commissioners who look, sound and act like judges. The Commissioners have often held high judicial office.  The Commissioners preside as if they were judges.  They hear arguments and make rulings on evidence and points of law.  Lawyers appear before them representing parties.  Witnesses give evidence before them on oath; and at the end of a hearing they make findings - not of guilt or innocence – but of a more subtle, but often equally devastating variety. To many ordinary people, they are virtually the same as courts.

In ICAC’s case, they declare that people have engaged in corrupt conduct.  An ICAC pronouncement that someone acted corruptly has many of the characteristics of a judgment of a real court of law. It not just affects the person’s reputation, it can cause problems for theirability to maintain employment.  It can lead to their disqualification from a political party.  It ends political careers.

The Shaw Family with Phillip Boulten SC and Mark Lennon, Secretary of Unions NSW

Once ICAC makes a finding of corrupt conduct, the newspapers describe the person as “corrupt” – no qualifications like “allegedly corrupt”: - they are corrupt.

But this all occurs in a forum that does not have the long cherished and time tested safeguards of our criminal courts.

There is no right to silence in ICAC, the PIC or the NSW Crime Commission.  A suspect can be forced to answer questions where the answers tend to incriminate them.  A suspect has no automatic right to cross examinewitnesses at ICAC.  Nor do they have the unfettered right to call witnesses.  

ICAC is not bound to follow the laws of evidence that courts must follow. The ICAC is under no obligation to reveal incriminating evidence to a suspect.  There is no duty to disclose its hand in advance of springing a trap on a witness. Ambush is one of ICAC’s stock standard tools of trade. Importantly, there is no duty to disclose exculpatory evidence to a witness.

There is no requirement to prove corrupt conduct (which is often criminal conduct) beyond reasonable doubt.

Not only does ICAC have the power to compel witnesses to give evidence, it can tap people’s phones, search their houses and offices and ICAC can arrest people who don’t comply with their summonses.

These tribunals, like ICAC, running in parallel to the criminal justice system have great powers that courts and police don’t have. But one function that they don’t haveis the power to find people guilty of offences and then punish them.  That is still left to the courts. Our constitution demands it. Our society has no place for star chambers or show trials. But ICAC and other investigative agencies can pose collateral threats to the administration of justice. It is in everyone’s interests that these investigative agencies conduct themselves in ways that do not pose significant threats to the fair trials of those who are targeted by them.

In many ways ICAC does not act like a court. One feature that differentiates ICAC from the courts is its relationship with the media.  ICAC has a very effective association with the media.  Indeed, one of its statutory purposes is to expose corruption.  So, the exposure of public officials and politicians caught out in corrupt practices is regarded as an objective in its own right.  It is not just an ancillary consequence of conducting high profile hearings.  The theatre of the examination carries its own message: “If you are corrupt, ICAC will expose you”.

ICAC has been very successful with its media management.  The broadcasting of counsel assisting’s opening speeches, the apparent scheduling of witnesses in a media – cycle friendly fashion, backgrounding journalists prior to each day’s hearings, issuing press releases and counsel assisting making themselves available for puff piece media articles have all helped ICAC convey its operational message.

And, by and large, that message has been received well.  ICAC enjoys broad public support.  Its ability to expose politicians’ and public officials’ failings and departures from acceptable standards has impressed people.  Its public support rises every time ICAC catches out another politician.  By the end of last year many people felt a sense of gratitude to ICAC for being so effective in exposing unsatisfactory political practices.

Now, let me state plainly, ICAC has been very effective in the way it has uncovered corrupt practices. It is a very effective investigative body. It is now well and truly a part of the landscape.

But its effectiveness in exposing corrupt practices has raised public expectations about outcomes.  People question why it is that ICAC has been so successful in identifying corruption when other law enforcement agencies and the courts have not.  The answer to that query is:  ICAC has powers and functions that police and the courts do not share.  ICAC is specially equipped to deal with subjects that are particularly resistant to ordinary methods of police investigation. ICAC has extraordinary powers. Most significantly, ICAC has the power to over-ride a person’s privilege against self incrimination. This power, though, should be used for extraordinary cases.

Another question that is commonly posed is why is it that people who have already been found by ICAC to be corrupt are not being punished?  The public see politicians exposed by ICAC. Reports issue finding them to have acted corruptly but nothing happens.  Or, at least, nothing happens publicly.

The same politicians who ICAC labels as “corrupt” walk around free, proclaiming their innocence.  Court cases crank slowly into action, if they do at all.  People want to see follow through.

There is an expectation that justice through the courts will swiftly follow ICAC’s exposures and when there is a lag – or worse – when there is no court case at all – people start to doubt the capacity of our courts to deal with ICAC cases effectively.  I am afraid that there has been a degree of comparing and contrasting ICAC with the courts in public discussion over the least year or so – and the courts have not fared well in the comparison.  There is a widespread appetite for swift and certain action against corrupt politicians – even if it means bypassing the normal, slow paced court system with all its in-built safeguards designed to ensure a fair trial.

In this sense, the public’s admiration for ICAC poses some risks to courts’ reputations.  There may come a time when the public have more confidence in ICAC’s ability to dispense justice through exposure and shaming than in the courts’ ability to dispense justice through the mechanism of a fair trial and sentencing following upon and only following upon conviction beyond reasonable doubt.

There are also risks to an accused person’s fair trial when someone comes to court following their exposure in an ICAC inquiry.  

ICAC’s findings of corrupt conduct, the media’sunqualified acceptance of those findings and the public’s understandable conclusion that the person is, in fact, guilty makes it likely that a very large proportion of the jurors selected to try ICAC corruption cases will come to the trial with a pre-formed view that the accused is guilty.  This problem is acutely present where journalists routinely refer to the accused as “corrupt” and where there is a body of literature circulating in the community predicated on the assumption that the accused is guilty. 

ICAC, Crime Commissions and the PIC have extraordinary powers – including the power to over-ride the right to silence - because they have extraordinary tasks to perform.  They are all charged with the responsibility of investigating conduct that is difficult to detect and not well suited to ordinary police investigative techniques where the targets of the investigation are often powerful in their own right.  Parliament has given those powers to these bodies for a reason.  They want them to be used for special purposes – not for routine investigations.

If ICAC’s powers were deployed in every police station every time someone was in trouble with police, our whole system of criminal justice would become skewed and unfair. 

For reasons like this the High Court has delivered a number of judgments recently that have been specifically designed to protect an accused person’s right to a fair trial after the accused had been subjected to compulsory examination over-riding his right to silence.  

In X7 v ACC (2013) 248 CLR 92, the High Court determined that the ACC could not subject an accused person to a compulsory examination about the issues concerning charges that had already been laid against the accused.  Because a criminal trial is adversarial and accusatory in nature, an accused person is under no obligation to present a positive case – let alone in advance of the trial.  If a person is charged with criminal offences and is facing trial, compulsory examinations will usually provide the prosecution with substantial tactical and strategic advantages. Once the prosecution is informed about an accused’s defence, the prosecution is so advantaged that there is a fundamental shift in the accusatory relationship between the prosecution and the accused. In X7, the High Court found that this shift in the power balance rendered the pending trial unfair.

The High Court made a similar determination in Lee v The Queen (Lee No2) [2014] HCA 20 where the accused had been subjected to post-arrest questioning over objection at the NSW Crime Commission.

Most recently the High Court applied those principles in Commissioner of the AFP v Zhao [2015] HCA 5 where the accused was involved in criminal proceedings alleging that he lived off the earnings of sex workers and where he was also the defendant in civil proceedings seeking forfeiture of assets derived from his earnings from prostitution. So, the issue in the two sets of proceedings was identical.  The High Court  held that the civil case should be stayed until after the criminal case was completed.  The accused’s defence was preserved.  The fairness of the trial was kept intact.

Now, the situation is different at ICAC.  People are not forced to give evidence over objection at ICAC after they have been charged with criminal offences.  Universally, people are examined at ICAC and then criminal charges follow. Also, whereas there are tight statutory controls on the publication and distribution of the transcripts of compulsory examinations in the Crime Commissions’ legislation, ICAC hearings are often held in public withthe transcript made available on their website for all to read.

Nevertheless, prosecutors and investigators can still obtain considerable advantage in criminal proceedings by being aware of an accused person’s ICAC evidence and then organising themselves to meet the defence case in advance of the trial.

So far nobody has made a claim that prosecutors have been unfairly advantaged by the accused having been examined over objection at ICAC but the High Court’s recently displayed vigilance in protecting an accused’s opportunity to be fairly tried means that it is likely that X7, Lee No.2 and Zhao will be called in aid at an ICAC prosecution somewhere, sometime in the future.

Which brings me to Margaret Cunneen.

The High Court’s decision in Cunneen in April was a massive hit to ICAC’s purview.  Ever since ICAC began there has been ruminations about the proper scope of ICAC’s investigative powers.  What conduct actually constitutes “corrupt conduct”?

With public servants and politicians that answer has always been quite clear – conduct that is dishonest or partial – is corrupt.

Bribes and favouritism, nepotism and sweeteners equalscorruption.

The statutory definition of corrupt conduct for people who are not public officials – just members of the public – has not been so clear.  But nobody ever really tested the boundaries until Margaret Cunneen did. The High Court’s 4 to 1 decision in the Cuneen case is an example of that Court’s approach to statutory interpretation that deals carefully with legislative incursions upon long held rights. At its heart was a conclusion that ICAC’s extraordinary powers ought only be triggered when investigating citizens who are not public officials when their conduct has the capacity to affect the probity or honesty of public officials and not when their actions merely had the capacity to adversely affect the efficacy or effectiveness of public officials’ duties.

ICAC and perhaps most lawyers believed that the ICAC Act defined as “corrupt” any conduct by a member of the public that could have adversely affected the way that a public official carried out their functions irrespective of whether the action could have affected a public official’s probity or propriety.  It was widely believed that it would be a sufficient basis for ICAC to investigate a person’s conduct if their own corrupt conduct could interfere with or harmfully affect the way a public servant administered the affairs of the State.

So, for example, widespread illegal collusive tendering for government contracts, whilst involving no impropriety on the part of a public servant, was the very essence of corrupt conduct that ICAC had been keen to expose and halt.  But now, after the High Court’s decision in Cunneen, ICAC is cut out of such investigations.  ICAC is  now restricted to investigations where the conduct – whether of a public servant or not – could affect the propriety of a public servant.

This came as a shock to many. In retrospect, it ought nothave. When the Premier, Nick Greiner, introduced the ICAC Act into parliament in 1988, he made it plain that its focus was to be on the public sector and, although it was going to be given the power to investigate the corrupt conduct of private individuals which affects public administration, ICAC was meant to concentrate its coercive powers on the public service.

Significantly, Nick Greiner said, “the independent commission will not be a crime commission. Its charter is not to investigate crime generally. The commission has a very specific purpose which is to prevent corruption and enhance integrity in the public sector.”

The majority judgment of French CJ, Hayne, Kiefel and Nettle JJ pointed out that, if the ICAC Act was interpreted so as to allow ICAC to use its powers to investigate corrupt activity that only adversely interfered with public officials’ exercise of functions, a very wide range of offences would be caught, many of which have nothing to do with corruption in public administration as the general public understands that concept. They gave ten examples. Some of them point clearly towards the correctness of the majority’s interpretation of the Act.

For instance, if ICAC had the wider jurisdiction that ICAC itself contended for, it would be open to ICAC to use its coercive powers to investigate the theft of a council garbage truck because the loss of the garbage truck would adversely affect the council’s ability to collect garbage in a timely and efficient manner. Similarly, the majority pointed out that ICAC could investigate fraudulent stockbrokers whose corrupt dealings with a government authority’s funds caused a loss, or a case where a government IT contractor had an employee embezzle funds from the contractor because the contractor’s loss could affect their ability to perform the contract to supply software, leading to a public servant not being able to use their computer at full capacity.

In a similar vein, the majority pointed out that the broader interpretation of the Act would mean that ICAC could investigate currency violations, bankruptcy and company offences that lead to a reduced return in insolvency to a public authority. Harbouring a criminal would qualify. So too, would the murder of a public official – even if they were killed in a domestic killing because you can’t get a more severe interference with the duties of a public servant than killing them. They also said something similar about domestic violence offences against public officials.

Justice Gageler was the sole judge who delivered a dissenting judgment. His reasoning was much the same as Chief Justice Tom Bathurst’s minority judgment in the NSW Court of Appeal. He thought that the Act could be interpreted to include corrupt conduct by an individual which had the capacity to adversely affect the administration of official public functions. He said, “I consider it sufficient, to be investigated by ICAC, that criminal conduct has the potential to impair the efficacy of an exercise of an official function by a public official. I do not consider it necessary that the criminal conduct has the potential to affect the probity of an exercise of an official function by a public official.”

His Honour highlighted the public policy dilemma that has arisen now as a result of the majority’s interpretation of the Act, “The choice, starkly illustrated, is between two extreme consequences. At one extreme is that to which the broader efficacy reading of s 8(2) leads: ICAC having power to investigate an isolated case of a witness telling a lie to a police officer. At the other extreme is that to which the narrower probity reading of s 8(2) leads: ICAC having no power to investigate, expose, prevent or educate about State-wide endemic collusion among tenderers in tendering for government contracts; as well as ICAC having no power to investigate, expose, prevent or educate about serious and systemic fraud in the making of applications for licences, permits or clearances issued under New South Wales statutes designed to protect health or safety (such as the Child Protection (Working with Children) Act 2012 (NSW) or the Work Health and Safety Act 2011 (NSW)) or under New South Wales statutes designed to facilitate the management and commercial exploitation of valuable State-owned natural resources (such as the Mining Act 1992 (NSW), the Fisheries Management Act 1994 (NSW) or the Forestry Act 2012 (NSW)).”

As a result of the decision in Margaret Cunneen’s case, ICAC is now frozen out of investigating widespread, systemic corruption designed to defraud the state. It also means that relatively insignificant matters, like lying to police are no longer caught within ICAC’s headlights. The political ramifications of the decision were enormous. There was immediate cross-party support for retrospective legislation to confirm existing findings of corrupt conduct – even where ICAC’s investigations were contrary to its statute. There was unsurprising political jousting where both sides represented themselves to be tough on corruption. Now our parliament has to make some difficult decisions.

The Premier has appointed an independent panel, comprising the former Chief Justice of Australia and NSW, Murray Gleeson and a leading Sydney silk, Bruce McClintock to review ICAC’s jurisdiction in the wake of the Cunneen decision. They have to report to the Governor by 31 July. They are considering the appropriate scope for ICAC’s jurisdiction, any legislative amendments that are required to provide ICAC with appropriate powers to prevent, investigate and expose serious corrupt conduct and/or systemic corrupt conduct involving, or affecting, public authorities and/or public officials, and whether any limits or enhancements, substantive or procedural, should be applied to the exercise of ICAC’s powers.

The most important issue that Messrs Gleeson and McClintock will need to consider is whether or not to recommend that ICAC have its jurisdiction extended to allow them to investigate the types of cases that the High Court ruled that they could not investigate. Will they decide that ICAC ought to be allowed to delve into cases concerning corrupt conduct that adversely affects the administration of the public service but which is not capable of leading public servants into a dishonest or partial exercise of their functions? 

If the Act is to remain substantially as it is, widespread corrupt practices that have a real potential to significantly impair good government in NSW will be unable to be investigated using ICAC’s coercive powers. If, though, the Act is amended to add to ICAC’s jurisdiction, there are risks that extraordinary, coercive investigative powers will be able to be utilised for a range of relatively minor infractions that do not involve any corrupt conduct by public servants or politicians. 

The political reaction following the High Court’s judgment suggests that politicians on both sides of the divide are naturally inclined to beef up the scope of ICAC’s powers. If that happens, parliament may be tempted to extend an open invitation to ICAC to delve into matters that most people would not regard as “corrupt conduct”. ICAC’s investigation of Margaret Cunneen’s conversations with her son and his girlfriend was widely seen as a sledge hammer being used to crack a nut. If the Act is “remedied” to allow that kind of investigation, others will surely follow. 

This is so even though section 12A of the Act requires the commission “as far as practicable” to “direct its attention to serious corrupt conduct and systemic corrupt conduct”. But, what one person regards as “serious”, another may simply regard as trifling. 

Of course, the reviewers are not bound to choose one option rather than the other option. It is not necessarily a stark choice between two contrasting positions. It may well be that the solution lies in providing ICAC with the ability to be able to investigate “serious” and/or “systemic” corrupt conduct that is capable of effecting either the probity of public officials’ functions and/or the effectiveness of their functions. 

This would allow ICAC to investigate the type of widespread, institutionalised private sector corruption that Justice Gageler highlighted in his judgment. ICAC could review endemic collusion amongst tenderers, systemic frauds in the application for mining exploration licences and other schemes that are designed to avoid proper scrutiny by government agencies whose job is to protect public welfare and safety. To my way of thinking, these practices are appropriate targets for ICAC — even more so than many examples of low-level corrupt practices within the public service that are undoubtedly firmly within ICAC’s jurisdiction like: paying a sling to the tip attendant to dump building waste from a home renovation or giving a friend’s son an easy ride through the test for a driving licence. 

Private sector corruption is probably even more difficult to detect than public sector corruption. Public servants have supervisors and systems that they must comply with and which are susceptible to auditing and review. Private sector pirates don’t often leave a paper trail. ICAC’s coercive powers are designed for and well suited to investigating offences that are difficult to detect. Why not allow ICAC to scrutinise “serious and systemic” private sector corruption? 

I believe that the politicians who will have to consider the Gleeson / McClintock report will be looking for a signal to empower ICAC, not to emasculate it. This approach mirrors much of the commentary in the mainstream media which in turn both influences and reflects public opinion. These opinions are legitimate and quite sound but there needs to be a careful balancing of ICAC’s jurisdiction against the need to preserve important individual rights such as the right to silence and the associated right to a fair trial. ICAC should not be investigating trivial or marginal matters and certainly not in public. 

I trust that the political debate that will follow the Gleeson / McClintock review will give proper weight to the importance of common law rights such as the right to silence and the need to preserve an appropriate balance between prosecutors and police on the one hand and the accused on the other. Australian parliaments are too quick to unravel time-honoured protections — especially following irritating High Court judgments. This is happening right now in Canberra as Federal Parliament is considering amendments to the Law Enforcement Integrity Commissioner Act that would essentially over-ride the High Court’s decisions in X7, Lee (No. 2) and Zhao. 

Under a range of amendments that have the support of the Australian Crime Commission and the Commonwealth DPP, the Law Enforcement Legislation Amendment (Powers) Bill 2015 proposes that ACC examiners and the Integrity Commissioner will be able to interrogate people after they have been charged with criminal offences and, in certain circumstances, permit the publication and distribution of the transcript of the examination to the prosecuting authorities and police. As the High Court said in their judgments on this issue in recent times, this practice seriously tips the balance of fairness against the accused in any trial so far as to render the trial to be unfair. Now Parliament is considering institutionalising and sanitizing this unfair practice. 

As always, it is the legal profession that takes the lead in the defence of the rights of the individual against the state. The Law Council of Australia will be attempting to convince the Senate Legal and Constitutional Committee to abandon this Bill. 

Indeed, the legal profession through its peak bodies,regularly argues that Parliament overlooks the rights of individuals in many different respects. Right now citizenship is front and centre of our nation’s attention. It seems that the Prime Minister and the Immigration Minister are very keen to strip Australians of their citizenship on the basis that a Minister believes it to be appropriate. The ALP is giving serious consideration to supporting the Government on this draconian but populist proposal. 

Mr Abbott’s move on citizenship stripping is an entirely predictable strategy that is being deployed at a time when it is necessary to divert public attention from his Government’s economic and budgetary difficulties and his own leadership vulnerabilities. This is exactly what John Howard did in 2001 at a time when he was facing an impending election defeat when he commenced his campaign against asylum seekers (people rescued by the Tampa), a campaign called “we decide who comes into this country and on what terms” that has never ended — dare I say it, under both Liberal and Labor Governments albeit with varying degrees of callous indifference to human suffering. 

These issues all bear on a political culture, one that Jeff Shaw never owned and actively sought to contain. Australia’s major political parties have too often and too easily taken a populist route when considering the whichpath to take through the political traps set by the media on law and order issues. This is especially so in the states and territories when decisions need to be made about criminal law policies. This is how a form of parallel justice has emerged.

Standing commissions of inquiry have their place. Indeed, they are here to stay. ICAC has been very successful in recent years. So much so that there are now calls for a Commonwealth ICAC. I support the establishment of a federal anti-corruption agency. It is naïve to think that there is no serious or systemic corruption in Commonwealth contracting and provisioning spheres. Lucrative defence contracts, off-shore detention contracts, trade initiatives and national infrastructure are all areas ripe for the same type of collusion that we have seen uncovered by ICAC. 

It is to be hoped that the important decisions that both the NSW and Commonwealth parliaments need to make about corruption issues will give effect to a proper balance between the need to expose and, where appropriate convict and punish corrupt players on the one hand and the need to preserve proper processes that foster both justice and fairness to the accused in a forensic setting. This balance can be achieved. Attorney General Jeff Shaw was good at this balancing act. We are all indebted to him for his service to this state.

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