As a former president of the Law Council of Australia and the NSW Bar Association, the opinions of Bret Walker SC on questions of law are keenly sought.
He has provided advice for all manner of clients, including the NSW Independent Commission Against Corruption. This is why politicians should pay attention now that Walker has expressed concerns about one of the key powers of ICAC and its equivalent bodies elsewhere.
He believes the power of these agencies to make public findings of corruption should be abolished because it threatens the concept of a fair trial and amounts to “misinformation”.
If accepted, Walker’s change could eliminate many of the problems with ICAC in NSW. It would refocus that organisation on investigations and leave it to courts to reach legal conclusions about what is — and is not — corruption.
He outlined his reform agenda on June 5 while delivering the Whitlam Oration for the Whitlam Institute at the University of Western Sydney.
His address, “The Information that Democracy Needs”, might eventually be seen as a turning point in the debate over the proper role of these commissions.
Stripping them of the power to make findings of corruption could ease the concern that they are becoming a parallel system of justice that bypasses the safeguards for fundamental rights that are the hallmark of the courts.
Walker believes ICAC and similar agencies “provide some answer to the serious question of who guards the guardians”.
“A critical safeguard on the kind of information that an ICAC should be able to give us, in cases of unfavourable findings, is that we should no longer be told that an individual has engaged in corrupt conduct, let alone that he or she has been found to have done so because their conduct involved the commission of a criminal offence,” Walker said.
“No other officer or agency briefing a prosecutor or committing a charged person for trial thereby informs the community that the person in question is a criminal.
“That would be a very serious kind of misinformation, in a society still attached, I think, to the notion of a fair trial before conviction.”
The common sense behind Walker’s case is obvious. How would society respond if police declared suspects guilty before prosecutors — let alone courts — had considered the evidence?
Walker’s idea would preserve the presumption of innocence and draw a clear line between the work of these commissions and the role of the courts.
At the moment, ICAC makes public findings without regard to the adverse impact this undoubtedly has on the ability of some future jury to make a decision based only on evidence presented in court. Without this function, there would still be a role for these agencies, as Walker made clear: “Such agencies are principally investigatory and should both formally and practically report to the houses of parliament,” he said.
“Perhaps, they might be permitted, with safeguards, to brief directors of public prosecutions in the same way as investigating police do.
“Perhaps, they might be able directly to commit persons against whom they make adverse findings for trial, as if they were a grand jury in olden times or a magistrate today.”
As well as easing the risk to the fairness of criminal proceedings, Walker’s plan would ensure that nobody else would be subjected to the shameful treatment meted out to businessman Charif Kazal.
John Nicholson, the former acting inspector of ICAC, produced a report that says Kazal’s treatment could amount to a breach of Australia’s obligations under Articles 11 and 12 of the Universal Declaration of Human Rights.
Article 11 guarantees the presumption of innocence while Article 12 says everyone has the right to be protected by law from arbitrary attacks upon their honour or reputation.
Kazal was found corrupt by ICAC, which then referred him to the DPP for prosecution, not for corruption but on the separate issue of whether he had given false evidence to ICAC.
The DPP found there was insufficient evidence to justify prosecuting Kazal for anything.
That left him in the worst of all possible positions. His good name had been tarnished, ICAC’s findings remain online and are not subject to appeal on the merits, and he will never have the benefit of testing ICAC’s claims in the criminal justice system.
If Walker’s change had been in force, ICAC would not have been able to pre-empt the justice system.
Legal Affairs Editor – The Australian
(WTF) used with permission