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Appeals Court gives ministers clear view of the law

Ministers in every government — state and federal — are the biggest winners from yesterday’s courtroom victory in NSW by Ian Macdonald and John Maitland.

They now have the benefit of bright-line guidance on exactly what sort of decisions will amount to the criminal offence of misconduct in public office.

The primary reason Macdonald and Maitland are out of prison, awaiting a new trial, is that the jury that convicted them was misdirected. But the real significance of yesterday’s ruling is that an extraordinary five-judge panel of the NSW Court of Appeal has clarified a confused body of law governing this common-law offence.

They have done so with the authority of a rare and unanimous five-judge decision, based on precedent, that should come as a great relief to politicians worried about the almost inevitable introduction of a federal anti-corruption agency.

The new formulation will narrow the options open to the prosecution when Macdonald and Maitland face their retrial.

The Court of Appeal’s formulation is closely related to the submission of Macdonald and Maitland and, therefore, when applied at their retrial, will probably improve their chances of exoneration.

They are merely the first beneficiaries of this judgment. In time, every minister who makes a decision that can be shown to be legitimate will also benefit.

The prospect of being second-guessed by an overzealous anti-corruption agency or a political opponent is diminished — if ministers stick to rules that are now easier to understand.

The new approach to misconduct in public office is essentially based on a “but for” test that is intended to help juries sift through ministerial decisions that might have two motivations — one legitimate, and the other not so.

If a ministerial decision would never have been made “but for” the illegitimate component, the decision-maker could be heading for prison.

When Macdonald and Maitland face their retrial, the jury will now be confronted with two stages of decision-making.

Their guilt or innocence will not depend on the single question of whether it was illegitimate for Macdonald to exercise ministerial power to enable Maitland’s company, Doyles Creek Mining, to establish a training mine for coalminers. They could afford to lose that part of the argument and still be exonerated — if they win the next, and most critical stage of the case:

Would Macdonald, who was NSW mining minister, have used his ministerial power to create a training mine “but for” the illegitimate purpose of having it run by Doyles Creek Mining?

If the answer to that question is “yes”, Macdonald and Maitland are likely to go free.

That means the critical part of their retrial will concern the benefits of having a training mine, not whether this benefited Maitland or anyone else associated with Doyles Creek Mining.

This is how the judges explained their approach to the offence of misconduct in public office:

“Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM.’’

This means ministers who make legitimate decisions are less likely to face the risk of being hauled before a court or an anti-corruption agency because their decision results in a collateral benefit to an identifiable party.

The legitimate purpose of ministerial decisions is the one that counts. It overwhelms any collateral purpose, even if that collateral purpose is illegitimate.

The Court of Appeal has brought certainty to this area of the law and it has done so with clarity and authority.

It has given ministers a strong incentive to ensure their decisions are soundly based and legitimate — regardless of who might experience a collateral benefit.

This decision recognises the reality that most ministerial decisions create winners and losers. Yet that alone does not amount to a criminal offence.

Chris Merritt, Legal Affairs Editor
The Australian
WTF (used with permission)

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