The Corruption and Crime Commission Threat to organised

The Corruption and Crime Commission: Threat to organised crime, or to our concept of justice? Malcolm Mc. Cusker AO QC The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

7 A. Act’s purposes The main purposes of this Act are – a) to combat and reduce the incidence of organised crime; and b) to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector. The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

7 B. How Act’s purposes are to be achieved 1) The Act’s purposes are to be achieved primarily by establishing a permanent commission to be called the Corruption and Crime Commission. 2) The Commission is to be able to authorise the use of investigative powers not ordinarily available to the police service to effectively investigate particular cases of organised crime. 3) The Commission is to help public authorities to deal effectively and appropriately with misconduct by increasing their capacity to do so while retaining power to itself investigate cases of misconduct, particularly serious misconduct. The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

Commission may on WAPOL’s application, grant “exceptional powers, and issue “fortification notices if specified “reasonable grounds” established for WAPOL’s use in “organised crime” investigation: § Coercive powers – summons to be examined before Commission by WAPOL, on matters relevant to WAPOL’s investigation § “Enhanced power” – without warrant to enter premises to search, photograph, seize suspected evidence, stop, detain and search persons § Approval of assumed identities § Authority to conduct controlled operations and integrity testing § Issue of Fortifications Notice – warning and removal The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

“Serious Misconduct” by a public officer § Corruptly acts or corruptly fails to act in the performance of his/her functions, or § Corruptly takes advantage of his/her employment to obtain a benefit for him/her or for another person or to cause detriment to another, or § Acting in his/her official capacity, commits an offence punishable by two or more years’ imprisonment The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

“Other Misconduct” by a public officer § Acting in a way that adversely or could adversely affect the honest or impartial performance of his/her functions or § Performing those functions in a manner that is not honest or impartial or § Breach of trust or § Misusing information or material acquired in connection with those functions If such conduct could constitute a disciplinary offence, providing reasonable grounds for dismissal if the public officer were employed under the Public Sector Management Act. The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

Misconduct Opinions The Commission may: § form opinions as to whether misconduct has occurred, and advise an appropriate authority of that opinion (s. 22) § prepare a report on an investigation of misconduct, including in it the Commission’s opinions and recommendations, (and its reasons ) and table the report to be laid before each House of Parliament (s. 84) The Commission must not publicly report a finding or opinion that a particular person has committed a criminal, or disciplinary offence; and an opinion that misconduct has occurred is not to be taken as a finding that a criminal or disciplinary offence has been committed. The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

Effect of Commission’s public “opinions” [80] “The Commission fully appreciates that any expression of opinion by it in a published report, that a public officer has engaged in misconduct, is serious. The publication of such an opinion of any adverse matter against a public officer, or any other person, may have serious consequences for the public officer, or person, and their reputation. ” Extract from Commission’s Report 26 September 2008 on Investigations Concerning the Mayor of Cockburn The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

Commission Report 30 October 2008, on alleged misconduct concerning officers of the Department of Fisheries [200] “The Commission does not determine guilt or innocence of criminal offences – that is for the courts. The Commission is required only to form opinions, which have no binding effect in law. ” … [201] “The Commission reiterates that an opinion by it that misconduct has occurred is not, and is not to be taken as, a finding or opinion that … has committed a criminal or disciplinary offence. ” The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

The West Australian, 19 February 2009 “New blow for CCC as top public servant cleared The Public Sector Commissioner yesterday cleared of any wrongdoing a senior State Government bureaucrat found by the Corruption and Crime Commission to have engaged in serious misconduct. ” … The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

Essentials of the Rule of Law Any matter (except a matter of government policy) which would affect the interests of a person must only be decided if: § Due notice has been given to the parties § There has been a proper hearing of the parties before an independent adjudicator § The parties have been entitled to subpoena, examine and cross-examine witnesses and present arguments § The decision is based on admissible evidence given at the hearing § The full written reasons for the decision are given § There is a right of appeal from the decision The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009