A NATIONAL INTEGRITY COMMISSION?
THE HONOURABLE STEPHEN CHARLES AO QC*
Before one considers the question whether there should be a Nati onal Integrity Commission (‘NIC’), one must first examine the issues involved. What protection is there now to discover and guard against federal corruption or improper behaviour? What indications are there of federal activity that w ould justify establishing a NIC? How should one define corruption? How wide a j urisdiction should the NIC have? Should the NIC exercise its jurisdiction in camera or with public hearings? What sort of report should the NIC make with what type of findings, and to whom?
For context, I must go back to the Royal Commission into the Act ivities of the Federated Ship Painters and Dockers Union (‘Costigan Commiss ion’), conducted by Frank Costigan QC with the redoubtable Douglas Meagher QC assisting. The Commission was set up in 1980 by the Fraser government, to in vestigate the activities of the Union at a time when the government was stru ggling in the polls, its popularity declining. The Bulletin had investigated the Union and had described ‘“murder and mayhem on a frightening scale”’ on th e waterfront.1 The Union was affiliated to the Australian Labor Party (‘ALP’), and su ch a commission was political gold for the right. But early in its investigatio ns, the Commission learnt that the Union was making substantial illegal profits an d was using a company unrelated to the docks to launder these profits,2 as also were many other companies, in what became known as the ‘Bottom of the Harbour’ sc heme.3 What had seemed at the outset a certain winner for the Fraser government became a serious embarrassment in the years leading up to the March 198 3 election, with many of those implicated living in the west and north-east of Australia.4
The Commission was nonetheless extremely successful where prev ious ones had failed, with innovative methods of investigation and the use of the computer in * Former Justice of the Supreme Court of Victoria Court of App eal. This is a revised version of the 13th Fiat Justitia Lecture delivered at Monash University on 13 November 2019.
1 Scott Prasser, Royal Commissions and Public Inquiries in Australia (LexisNexis Butterworths, 2006) 192 [8.19].
2 Royal Commission on the Activities of the Federated Sh ip Painters and Dockers Union (Interim Report No 3, 18 December 1981) 5, 7–8.
3 See generally PN Grabosky, Wayward Governance: Illegality and Its Control in the P ublic Sector (Australian Institute of Criminology, 1989) ch 9.
4 Adam Sutton, ‘The Bottom of the Harbour Tax Evasion Schemes’ in Peter Grabosky and Adam Sutton (eds), Stains on a White Collar: Fourteen Studies in Corporate Crim e or Corporate Harm (Federation Press, 1989) 1, 4–11. 120 Monash University Law Review (Vol 46, No 2)
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analysing vast quantities of documentary evidence.5 The Commission was among the first to use the computer and in doing so discovered large ar eas of organised crime, until then ignored by crime prevention bodies, which led Co stigan and Meagher to call for the creation of a National Crime Authority (‘NCA’).6
Accordingly, a conference was held in July 1983 to consider th e establishment of a NCA, attended by experts from around and beyond Australia. C ostigan, Meagher and others argued that Australia faced an unprecedent ed threat from organised crime, such as illegal trafficking in drugs, prostitu tion, gambling, tax evasion and corporate fraud; the threat was said to be so serious t hat it justified the establishment of such a body, with extraordinary investig ative powers, on a permanent basis.7 There was a substantial body of opposing civil libertarians who argued that such a body would destroy hard-won rights such as the right to silence, the right to resist arrest, protection from seizure of one’s documents, and legal professional privilege, and cause permanent damage to r eputations.8 These arguments were later marshalled in an article by Ronald Sackvi lle, titled ‘Royal Commissions in Australia: What Price Truth?’.9 Sackville forcefully maintained that ‘investigative Royal Commissions constitute a serious an d continuing threat to civil liberties in Australia’10 and argued that royal commissions should be used more sparingly than in recent times, that greater restraint shou ld be shown in making and publishing findings of criminal guilt against ind ividuals, and that Australian courts should be less reticent when asked to review the conduct and findings of royal commissions.11 Notwithstanding the force of these arguments, the NCA (now the Australian Crime Commission) was duly establis hed by the Hawke Government in 1983.12
The Costigan Commission was given repeated extensions to its l ife until it was closed in late 1984, the last report submitted in October 1984. It is believed that the New South Wales Premier, Neville Wran, had warned Hawke t hat the continuance of the Commission could bring down the NSW government.13
There was ample evidence of corruption during the 1980s to just ify the 5 See Mark Findlay, ‘International Rights and Australian Ada ptations: Recent Developments in Criminal Investigation’ (1995) 17(2) Sydney Law Review 278, 284; George Gilligan, ‘Royal Commissions of Inquiry’ (2002) 35(3) Australian and New Zealand Journal of Criminology 289, 298–9.
6 See Richard Morris, ‘The Incorrigible Waterfront and Its De cline: Inquiries and Royal Commissions into Ex-Officio Payments and Illegal Activities, 1958–1984’ [1988] (Nov ember) Labour History 71, 79.
7 See Justice Michael Kirby (ed), ‘Liberty’s Toboggan’ [1983] (Octob er) Reform 167, 168.
8 See ibid 168–9.
9 See Ronald Sackville, ‘Royal Commissions in Australia: Wha t Price Truth?’ (1984) 60(12) Current Affairs Bulletin 3.
10 Ibid 11.
11 Ibid 12–13.
12 See CT Corns, ‘The National Crime Authority: An Evaluation’ (1989) 13(4) Criminal Law Journal 233, 234.
13 See Cary Bennett, ‘The Emergence of Australia’s National C ampaign Against Drug Abuse: A Case-Study in the Politics of Drug Control’ (2008) 32(3) Journal of Australian Studies 309, 311–14. A National Integrity Commission? 121
establishment of investigative bodies. In Perth, when Brian Bu rke was Premier of Western Australia from 1983 to 1988, WA Inc was in full swing, an d the concern was that the Burke government was too close to entrepreneurs.14 The Royal Commission into Commercial Activities of Government and Other Matt ers (‘WA Inc Commission’) report referred to the money Labor raised thro ugh donations to the ‘Leaders Account’, which included $2.038 million from Alan Bond, $950,000 from Lang Hancock and $860,000 from Laurie Connell.15 There was no illegality in the making of these donations, nor is it illega l to solicit donations to a political party. But there was obviously a widespread pu blic perception that a politician who takes a large donation from someone seeking access w ill be anxious to do something in return, and the playing field is there by tilted. The WA Inc Commission found no evidence of illegal behaviour against Mr Burke.16
The Commission of Inquiry into Possible Illegal Activities a nd Associated Police Misconduct (‘Fitzgerald Commission’) began in 1987. It revea led, assisted by several brave journalists, that Queensland police had been in fected by ‘the joke’ since the early 1960s, and exposed the connections between cor rupt senior police and those who ran illegal drug, gambling and prostitution ra ckets across the State.17 Many senior policemen were incriminated, three government Min isters were gaoled for corrupt conduct, a fourth, Russ Hinze, died befor e facing court; the police commissioner (Terry Lewis) was gaoled and lost his k nighthood and the Premier was charged with perjury and narrowly avoided convi ction.18 Fitzgerald and his Commission uprooted and transformed Queensland’s poli tical landscape.
At the same time New South Wales was also riddled with corruption. When Nick Greiner as Premier set up the Independent Commission Again st Corruption (‘ICAC’) in May 1988 he said in his second reading speech that h e was appalled by the reputation NSW had acquired around the country and overse as. He continued:
In recent years, in New South Wales we have seen: a Minister of the Crown gaoled for bribery; an inquiry into a second, and indeed a thi rd, former Minister for alleged corruption; the former Chief Stipendiary Magist rate gaoled for perverting the course of justice; a former Commissioner of Po lice in the courts on a criminal charge; the former Deputy Commissioner of Poli ce charged with 14 Steven Loxley, ‘Burke Insists on Going for the Strokes’, The Australian Financial Review (online, 20 November 1987) <https://www.afr.com/politics/burke-insis ts-on-going-for-the-strokes-19871120-k2j1z>.
15 Royal Commission into Commercial Activities of Government and Other Matters (Report, 12 November 1992) pt II, [1.1.4], citing Royal Commission into Commercial Activities of Government and Other Matters (Report, 19 October 1992) pt I vol 6, [26.2.1]–[26.3.4]. The report corrects Mr Hancock’s donation amount stated in pt I to $950,000, having previously reported the figure as $950,00: a t app 4. 16 See ibid [1.1.2]–[1.1.28].
17 Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Report, 3 July 1989) 30–3 (‘ Police Misconduct ’).
18 Chris Salisbury, ‘Thirty Years On, the Fitzgerald Inquiry Still Looms Large over Queensland Politics’, The Conversation (online, 1 July 2019) <https://theconversation.com/thirt y-years-on-the-fitzgerald-inquiry-still-
looms-large-over-queensland-politics-119167>.
THE HONOURABLE STEPHEN CHARLES AO QC*
Before one considers the question whether there should be a Nati onal Integrity Commission (‘NIC’), one must first examine the issues involved. What protection is there now to discover and guard against federal corruption or improper behaviour? What indications are there of federal activity that w ould justify establishing a NIC? How should one define corruption? How wide a j urisdiction should the NIC have? Should the NIC exercise its jurisdiction in camera or with public hearings? What sort of report should the NIC make with what type of findings, and to whom?
For context, I must go back to the Royal Commission into the Act ivities of the Federated Ship Painters and Dockers Union (‘Costigan Commiss ion’), conducted by Frank Costigan QC with the redoubtable Douglas Meagher QC assisting. The Commission was set up in 1980 by the Fraser government, to in vestigate the activities of the Union at a time when the government was stru ggling in the polls, its popularity declining. The Bulletin had investigated the Union and had described ‘“murder and mayhem on a frightening scale”’ on th e waterfront.1 The Union was affiliated to the Australian Labor Party (‘ALP’), and su ch a commission was political gold for the right. But early in its investigatio ns, the Commission learnt that the Union was making substantial illegal profits an d was using a company unrelated to the docks to launder these profits,2 as also were many other companies, in what became known as the ‘Bottom of the Harbour’ sc heme.3 What had seemed at the outset a certain winner for the Fraser government became a serious embarrassment in the years leading up to the March 198 3 election, with many of those implicated living in the west and north-east of Australia.4
The Commission was nonetheless extremely successful where prev ious ones had failed, with innovative methods of investigation and the use of the computer in * Former Justice of the Supreme Court of Victoria Court of App eal. This is a revised version of the 13th Fiat Justitia Lecture delivered at Monash University on 13 November 2019.
1 Scott Prasser, Royal Commissions and Public Inquiries in Australia (LexisNexis Butterworths, 2006) 192 [8.19].
2 Royal Commission on the Activities of the Federated Sh ip Painters and Dockers Union (Interim Report No 3, 18 December 1981) 5, 7–8.
3 See generally PN Grabosky, Wayward Governance: Illegality and Its Control in the P ublic Sector (Australian Institute of Criminology, 1989) ch 9.
4 Adam Sutton, ‘The Bottom of the Harbour Tax Evasion Schemes’ in Peter Grabosky and Adam Sutton (eds), Stains on a White Collar: Fourteen Studies in Corporate Crim e or Corporate Harm (Federation Press, 1989) 1, 4–11. 120 Monash University Law Review (Vol 46, No 2)
Advance
analysing vast quantities of documentary evidence.5 The Commission was among the first to use the computer and in doing so discovered large ar eas of organised crime, until then ignored by crime prevention bodies, which led Co stigan and Meagher to call for the creation of a National Crime Authority (‘NCA’).6
Accordingly, a conference was held in July 1983 to consider th e establishment of a NCA, attended by experts from around and beyond Australia. C ostigan, Meagher and others argued that Australia faced an unprecedent ed threat from organised crime, such as illegal trafficking in drugs, prostitu tion, gambling, tax evasion and corporate fraud; the threat was said to be so serious t hat it justified the establishment of such a body, with extraordinary investig ative powers, on a permanent basis.7 There was a substantial body of opposing civil libertarians who argued that such a body would destroy hard-won rights such as the right to silence, the right to resist arrest, protection from seizure of one’s documents, and legal professional privilege, and cause permanent damage to r eputations.8 These arguments were later marshalled in an article by Ronald Sackvi lle, titled ‘Royal Commissions in Australia: What Price Truth?’.9 Sackville forcefully maintained that ‘investigative Royal Commissions constitute a serious an d continuing threat to civil liberties in Australia’10 and argued that royal commissions should be used more sparingly than in recent times, that greater restraint shou ld be shown in making and publishing findings of criminal guilt against ind ividuals, and that Australian courts should be less reticent when asked to review the conduct and findings of royal commissions.11 Notwithstanding the force of these arguments, the NCA (now the Australian Crime Commission) was duly establis hed by the Hawke Government in 1983.12
The Costigan Commission was given repeated extensions to its l ife until it was closed in late 1984, the last report submitted in October 1984. It is believed that the New South Wales Premier, Neville Wran, had warned Hawke t hat the continuance of the Commission could bring down the NSW government.13
There was ample evidence of corruption during the 1980s to just ify the 5 See Mark Findlay, ‘International Rights and Australian Ada ptations: Recent Developments in Criminal Investigation’ (1995) 17(2) Sydney Law Review 278, 284; George Gilligan, ‘Royal Commissions of Inquiry’ (2002) 35(3) Australian and New Zealand Journal of Criminology 289, 298–9.
6 See Richard Morris, ‘The Incorrigible Waterfront and Its De cline: Inquiries and Royal Commissions into Ex-Officio Payments and Illegal Activities, 1958–1984’ [1988] (Nov ember) Labour History 71, 79.
7 See Justice Michael Kirby (ed), ‘Liberty’s Toboggan’ [1983] (Octob er) Reform 167, 168.
8 See ibid 168–9.
9 See Ronald Sackville, ‘Royal Commissions in Australia: Wha t Price Truth?’ (1984) 60(12) Current Affairs Bulletin 3.
10 Ibid 11.
11 Ibid 12–13.
12 See CT Corns, ‘The National Crime Authority: An Evaluation’ (1989) 13(4) Criminal Law Journal 233, 234.
13 See Cary Bennett, ‘The Emergence of Australia’s National C ampaign Against Drug Abuse: A Case-Study in the Politics of Drug Control’ (2008) 32(3) Journal of Australian Studies 309, 311–14. A National Integrity Commission? 121
establishment of investigative bodies. In Perth, when Brian Bu rke was Premier of Western Australia from 1983 to 1988, WA Inc was in full swing, an d the concern was that the Burke government was too close to entrepreneurs.14 The Royal Commission into Commercial Activities of Government and Other Matt ers (‘WA Inc Commission’) report referred to the money Labor raised thro ugh donations to the ‘Leaders Account’, which included $2.038 million from Alan Bond, $950,000 from Lang Hancock and $860,000 from Laurie Connell.15 There was no illegality in the making of these donations, nor is it illega l to solicit donations to a political party. But there was obviously a widespread pu blic perception that a politician who takes a large donation from someone seeking access w ill be anxious to do something in return, and the playing field is there by tilted. The WA Inc Commission found no evidence of illegal behaviour against Mr Burke.16
The Commission of Inquiry into Possible Illegal Activities a nd Associated Police Misconduct (‘Fitzgerald Commission’) began in 1987. It revea led, assisted by several brave journalists, that Queensland police had been in fected by ‘the joke’ since the early 1960s, and exposed the connections between cor rupt senior police and those who ran illegal drug, gambling and prostitution ra ckets across the State.17 Many senior policemen were incriminated, three government Min isters were gaoled for corrupt conduct, a fourth, Russ Hinze, died befor e facing court; the police commissioner (Terry Lewis) was gaoled and lost his k nighthood and the Premier was charged with perjury and narrowly avoided convi ction.18 Fitzgerald and his Commission uprooted and transformed Queensland’s poli tical landscape.
At the same time New South Wales was also riddled with corruption. When Nick Greiner as Premier set up the Independent Commission Again st Corruption (‘ICAC’) in May 1988 he said in his second reading speech that h e was appalled by the reputation NSW had acquired around the country and overse as. He continued:
In recent years, in New South Wales we have seen: a Minister of the Crown gaoled for bribery; an inquiry into a second, and indeed a thi rd, former Minister for alleged corruption; the former Chief Stipendiary Magist rate gaoled for perverting the course of justice; a former Commissioner of Po lice in the courts on a criminal charge; the former Deputy Commissioner of Poli ce charged with 14 Steven Loxley, ‘Burke Insists on Going for the Strokes’, The Australian Financial Review (online, 20 November 1987) <https://www.afr.com/politics/burke-insis ts-on-going-for-the-strokes-19871120-k2j1z>.
15 Royal Commission into Commercial Activities of Government and Other Matters (Report, 12 November 1992) pt II, [1.1.4], citing Royal Commission into Commercial Activities of Government and Other Matters (Report, 19 October 1992) pt I vol 6, [26.2.1]–[26.3.4]. The report corrects Mr Hancock’s donation amount stated in pt I to $950,000, having previously reported the figure as $950,00: a t app 4. 16 See ibid [1.1.2]–[1.1.28].
17 Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Report, 3 July 1989) 30–3 (‘ Police Misconduct ’).
18 Chris Salisbury, ‘Thirty Years On, the Fitzgerald Inquiry Still Looms Large over Queensland Politics’, The Conversation (online, 1 July 2019) <https://theconversation.com/thirt y-years-on-the-fitzgerald-inquiry-still-
looms-large-over-queensland-politics-119167>.
