The Corruption and Crime Commission: Threat to organised crime, or to our concept of justice? Malcolm McCusker AO QC The John Curtin Institute of Public

The Corruption and Crime Commission:

Threat to organised crime, or to our concept of justice?

Malcolm McCusker AO QC

The John Curtin Institute of Public Policy Breakfast Forum – 25 February 2009

7A. 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.


7B. 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.


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


“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


“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 functionsIf such conduct could constitute a disciplinary offence, providing reasonable grounds for dismissal if the publicofficer were employed under the Public SectorManagement Act.


Misconduct OpinionsThe 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.


Effect of Commission’spublic “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


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 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.” …


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


Documents

The Corruption and Crime Commission: Threat to organised crime, or to our concept of justice? Malcolm McCusker AO QC The John Curtin Institute of Public