Sign In

Corruption and Crime Commission Perspective

Text Size a a a Print Print this page

THE ROLE OF THE CORRUPTION AND CRIME COMMISSION IN

THE CONSTITUTIONAL SYSTEM OF WESTERN AUSTRALIA

 by THE HON. LEN ROBERTS-SMITH RFD, QC, COMMISSIONER, CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA  

19 August 2010

May I begin by thanking the Constitutional Centre of Western Australia, the Australian Association of Constitutional Law and the University of Western Australia, for inviting me to speak this evening on the role of the Corruption and Crime Commission (CCC or Commission) in the Constitutional System of Western Australia.

The Corruption and Crime Commission

 

The CCC is a statutory executive instrument of the Parliament of Western Australia, independent of the government of the day and responsible directly to the Parliament.

 

Because the CCC is established by statute enacted by the Parliament, that is the logical place to begin.

The Corruption and Crime Commission Act 2003 (WA) (CCC Act, or the Act) is a law for the peace, order and good government of the State of Western Australia,  established by the Parliament exercising its “ample and plenary” powers to do so.   The Parliament established the Commission with the purpose of improving continuously the integrity of the public sector, implicitly acknowledging its social contract with the people of Western Australia to ensure the peace, order and good government of the State, especially in regard to the delivery of goods and services to the people, protection from harm, and an enduring commitment to the public interest in exchange for the power to enact laws and levy taxes.  This protection from harm includes protection from abuses of power by public officers empowered to act in the public interest, that being effected by the purpose of the Act in improving continuously the integrity of the public sector.

The Parliament, in establishing the Commission as successor to the Anti-Corruption Commission and its predecessor, the Official Corruption Commission, deliberately acted to enhance the powers of the Commission relative to those of its predecessors.  These powers, including the power to conduct public hearings, reflected:

       the willingness of government and the community to accept the suspension of fundamental civil rights in the interests of detecting forms of serious wrongdoing with the capacity to undermine the integrity of public institutions.

The CCC Act came into operation on 1 January 2004.

By section 7A of the CCC Act, the main purposes of it 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.

 Section 7B sets out how the Act’s purposes are to be achieved.  This provision underpins the work of the CCC and its role in the constitutional framework of the State.

 It reads:

 (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.

 It is apt to emphasise at the outset that the CCC has no statutory mandate nor authority to itself investigate organised crime.  The only way in which it can combat and reduce the incidence of organised crime is by authorising Western Australia Police to use certain exceptional powers in the conduct of particular police organised crime investigations, under section 7B(2).

 The fact is, therefore, that virtually all of the work of the Commission is directed to achieving the purpose of improving the integrity of, and reducing the incidence of misconduct in, the public sector.

 The CCC is in effect a standing, or permanent Commission of Inquiry – but it has a much wider role than that.

 In this constitutional context, it is pertinent at the outset to remark upon some features which are either common to, or distinguish the CCC from, a (Royal) Commission of Inquiry.

 A Royal Commission is established by the executive government to conduct an administrative inquiry into a particular matter of public interest.  It is not itself an executive body (that is, it cannot act outside its particular inquiry), and the scope of its inquiry is determined by the terms of reference it is given.  Its purpose is to ascertain facts and to report to the government on them with its findings and recommendations.  It is not bound by the rules of evidence.  It’s findings have no binding legal effect; they do not determine legal rights or obligations, but are expressions of opinion only.  Where the subject-matter involves criminal conduct, a Royal Commission will usually be assisted by seconded police officers, who can exercise their powers of arrest and charging in aid of the Commission’s work.  Once it has reported to the executive government, a Royal Commission ceases to exist.

The CCC is a body corporate with perpetual succession  and so has a continuing existence.

 Its statutory functions encompass a range of ongoing proactive activities which extend far beyond the conduct of administrative inquiries or investigations.

 When conducting an inquiry or investigation the CCC may exercise the powers given to it in the CCC Act and powers made available by other State and Federal legislation.

 Just as the purpose of a (Royal) Commission of Inquiry is to ascertain facts, and report on them, so too is that of the CCC in its misconduct investigations. 

 In investigating or taking other action in relation to misconduct the Commission does not act under terms of reference given to it, but may act on any allegation notified or reported to it  or may make its own proposition of misconduct.

 It is not bound by the rules of evidence.

 Its assessments and opinions and recommendations have no binding legal effect.  Its reports are tabled directly in the Parliament, not delivered to the executive government (although if for any reason the Commission considers it appropriate to do so, it may make a report to a Minister or the Joint Standing Committee on the Corruption and Crime Commission (JSCCCC)).

 Because the CCC is a permanent body, unlike an ad hoc Commission of Inquiry, it has the capacity to follow-up and report upon what action has been taken on its recommendations.  Similarly, if criminal charges have been laid by CCC officers exercising their powers as authorised officers under the CCC Act,  just as police would, the CCC may prosecute those charges in the Magistrates’ Court or refer them to and liaise with the Director of Public Prosecutions, for prosecution on indictment in the District or Supreme Court.

 So what does the CCC do and how does it do it?

 Functions of the Corruption and Crime Commission

 The functions of the CCC are performed by the Commissioner in the name of the Commission.   The Commissioner may delegate some powers to officers of the CCC, but the most important of them are non-delegable.   These include the power to conduct examinations on oath; to summons a person to produce documents or things; to approve an assumed identity; a controlled operation or an integrity testing program; or the powers of the Commission under the Surveillance Devices Act 1998 (WA).

The functions of the CCC are to be directed to improving continuously the integrity of, and reducing the incidence of misconduct in, the public sector.

The concept of “misconduct” is central to the CCC Act.  “Misconduct” is defined in section 4 of the CCC Act.   Broadly, “serious misconduct” involves corruption in public office or a public officer committing a criminal offence punishable by two or more years imprisonment.   Misconduct otherwise is essentially conduct by a public officer:

     that is dishonest, not impartial or in breach of their public duty;

 and

     constitutes an offence against a written law or could (notionally) provide reasonable grounds for termination of the office or employment of a public service officer.

 The point here is that “misconduct” as defined in the CCC Act is not trivial conduct.  Nor is a breach of public service discipline sufficient.  It would only be so if it also constituted or could constitute an offence against a written law or afford reasonable grounds for termination of office or employment.

 The Act gives the CCC two basic functions.

 Prevention and Education Function

 The first is that of helping to prevent misconduct.  The Act calls this the prevention and education function.   There are many ways in which the CCC performs this function.  They include analysing information and intelligence; analysing systems used within public authorities to prevent misconduct; providing information to, consulting with and making recommendations to public authorities; providing information to the general community; generally increasing the capacity of public authorities to prevent misconduct by providing advice and training; and by reporting on ways to prevent misconduct.

 Misconduct Function

 The second statutory function of the CCC is to ensure that allegations about, or information or matters involving misconduct are dealt with in an appropriate way.  The Act calls this the misconduct function.

 Again, there is a range of ways in which the CCC performs this function.  They include receiving or initiating allegations; investigating or taking other action if it is appropriate to do so; or referring the allegations to other agencies so they can take action themselves or in cooperation with the CCC; monitoring the way other agencies take action in relation to allegations of misconduct; and making recommendations and furnishing reports on the outcome of investigations.

 The CCC may also consult, cooperate and exchange information with other State and Federal agencies.

 Consistently with the statutory obligation that the Commission help public authorities to deal effectively and appropriately with misconduct by increasing their capacity to do so, the Commission refers the vast majority of allegations to the particular department or agency concerned (or some other appropriate authority, such as police) for investigation.

 The Commission then monitors such investigations and reviews them when completed.

 In fact, the Commission itself investigates only 1% of the matters referred to it – although they will usually be the most serious, difficult or complex.

Last Financial Year

 In the 2009/10 financial year, the CCC:

 (a)   delivered 101 corruption prevention and education presentations and workshops to more than 3,500 public officers;

(b)   reviewed the misconduct policies and procedures of the then Department of Planning and Infrastructure and the Department of Health;

(c)   received more than 3,200 allegations of misconduct;

(d)   referred 4% of those to Western Australia Police (WAPOL) for investigation;

(e)   referred 78% to the agency concerned, for investigation;

(f)   monitored 1,600 agency investigations;

(g)   reviewed the conduct and outcomes of 1,800 agency investigations;

(h)   undertook 143 new misconduct investigations;

(i)   continued a review of Taser use by WAPOL;

(j)   continued a review of WAPOL misconduct processes;

(k)   charged 9 persons with 174 criminal offences; and

(l)   tabled 8 Parliamentary reports.

 Investigative Powers and Methodologies

 The conduct of investigations into alleged misconduct is clearly only part of the work of the CCC.  The powers and investigative methodologies which the CCC may bring to bear to this end have been given, or made available, to it because history has shown that corruption and other forms of public sector misconduct are difficult and often even impossible to discover by traditional means of inquiry or investigation.  Obviously too, police would not be interested in investigating alleged misconduct which did not involve a criminal offence, no matter how gravely inimical it might be to the public interest.

 Broadly there are two ways in which the CCC may source particular investigative powers.  The first is through the CCC Act itself; the second is by accessing generic statutory powers available to a range of law enforcement and similar bodies.

 Those powers specific to the CCC are contained in Part 6 of the CCC Act.

 The CCC, may:

 (a)   by notice require a public authority or public officer to produce a statement of information.   There is no privilege against self-incrimination,  and nor do public interest immunity or legal professional privilege in right of the State apply.   However the statement of information is not admissible in evidence against the person, in proceedings for any criminal offence (except under the CCC Act itself);

(b)   by notice, require any person to produce documents;  and

(c)   summons any person to attend before the CCC at an examination and give evidence or produce a document or other things.

 When issuing a notice under section 94 or 95 or a summons under section 96 of the CCC Act, the CCC may include a notation that disclosure of it, or any official matter connected with it, is prohibited.  Non-disclosure notations are used primarily to protect the integrity of investigations which are still covert, or the reputations of persons who may be involved or mentioned. Disclosure contrary to such a notation is an offence punishable by imprisonment for up to three years, or a fine of $60,000 or both.

Other powers in Part 6 of the CCC Act include:

 (d)   CCC officers authorised by the Commissioner may, at any time, without a warrant enter and inspect any premises occupied or used by a public authority or public officer in that capacity, and inspect and take copies of documents;

(e)   the CCC may apply to a Judge of the Supreme Court for a search warrant, to enter and search any premises or vehicle for records or things likely to be relevant to the investigation of serious misconduct;

(f)   the use by CCC officers of assumed identities;  and

(g)   the Commissioner may grant an authority for the conduct of a controlled operation or an integrity testing program.

 Consistently with the nature of the CCC’s investigations being to find out the truth rather than adjudicate contesting claims, section 135 of the CCC Act provides that except as otherwise stated in the Act, the CCC is not bound by the rules of practice or evidence and can inform itself on any matter in such manner as it thinks fit.

 Significant investigative methodologies available to the CCC in common with other agencies such as State or Federal police, the Independent Commission Against Corruption (ICAC) in New South Wales, the Crime and Misconduct Commission (CMC) in Queensland, the Police Integrity Commission (PIC) in New South Wales and the Office of Police Integrity (OPI) in Victoria, amongst others, are the use of surveillance devices and telecommunications interception powers under Commonwealth and State legislation.

 Telecommunications interception may be authorised by judicial warrant under the Telecommunications (Interception and Access) Act 1979 (Cwlth).  There are extremely strict statutory criteria which must be met before a warrant can be granted and on the confidentiality and use of intercepted communications.  A warrant may only be issued for a maximum of 90 days.  Agencies authorised to conduct lawful interceptions are subject to strict reporting requirements and to regular inspection by the Commonwealth Ombudsman  or State Ombudsman acting on behalf of the Commonwealth Ombudsman.

 Although the CCC is able to utilise surveillance devices under the Commonwealth Surveillance Devices Act 2004, it rarely does so.

 Such devices are ordinarily deployed by the CCC under and in accordance with the Surveillance Devices Act 1998 (WA).

 Again, there is a strict regime which must be complied with.  A warrant for an optical or listening device can only be granted by a Supreme Court Judge, who must be satisfied the application meets a range of statutory criteria.  A warrant is for a maximum of 90 days.

 The CCC’s use of surveillance devices is subject to audit by the Parliamentary Inspector of the Corruption and Crime Commission.

 I have mentioned the above powers and methodologies before discussing the conduct of examinations under Part 7 of the CCC Act, because in practice, a misconduct investigation will inevitably have involved the use of some or all of them (as well as otherwise traditional investigative methods) before a decision is made to conduct an examination.

That is not to say that all the powers and methodologies available to the CCC are used in every investigation – they are not.

The CCC is very conscious of the intrusive nature of these powers and methodologies on individual rights and freedoms.  In deference to that, the CCC applies the principle of least intrusion.  So for example, if it is anticipated a person will provide a document willingly, the CCC will not issue a notice under section 95 of the Act compelling them to do so (noting that some people require a notice, to protect their own position), and so on.

 Compulsory Examinations

 Terminology is important.  One often sees examinations conducted by the CCC referred to as “hearings”.  That tends to convey the idea of the type of hearing conducted by a court or tribunal, in the nature of a trial of a criminal charge or a disputed claim.  That is a completely wrong idea of an examination conducted under Part 7 of the CCC Act.

 The compulsory examination of a person by the CCC is simply an investigative tool.  Its purpose is to obtain information to advance the investigation – that is, not to prove or disprove any “case”, but to find out the truth.

 Before the CCC conducts an examination of a person it is required to inform the witness of the general scope and purpose of the investigation, unless it considers that in the circumstances it would be undesirable to do so.

 Because the examination is part of an investigation and not in any sense a trial, there is no duty nor other requirement of disclosure, for the same reason police officers do not disclose what evidence they have to a person they are about to interview.

 There are two schools of thought on whether the examination of persons before the CCC should be conducted in public or in private.

 One says all should be in public so people know what the CCC is doing; the other says all should be in private, so as not to damage peoples’ reputations.

 The position that the public interest may have primacy over private interest was supported by Gleeson CJ  who asserted that while there is a requirement to weigh a number of competing factors there is:

 No general obligation in a commission of inquiry to avoid or minimise publicity in order to protect reputation.

       … [T]here is a danger in confusing two rather different ideas.  The authorities amply demonstrate that potential damage to the reputation of a person who is the subject of a complaint being investigated at a hearing by the Commission enlivens the requirement to observe the rules of natural justice and entitles that person to procedural fairness … there remains to be considered however, the question of the practical content of those rules in a given case.  There is a fallacy in passing from the premise that the danger of harm to reputation requires the observance of procedural fairness to the conclusion that fairness requires the proceedings be conducted in all respects in a such a way as to minimise damage to reputation.

Peter M Hall, QC effectively summarised this public interest weighing process, when stating that:

 Investigative commissions with far-reaching coercive powers are required to bring into account a number of factors in deciding what procedural fairness means in a particular case, striving at all times to achieve a proper balance in their use.  Such a balance takes into account the public interest for which the commission and its powers exist (such as the legitimate exposure of corruption by public officials and those dealing with them) and an individual’s interest, among other things, in his or her reputation.  However, as Gleeson CJ in Chaffey pointed out, proceedings before courts frequently carry a risk, sometimes involving almost a certainty of damage to the reputation of persons who may not be parties to the proceedings.  Notwithstanding the fact of publicity, sometimes of a sensational nature, such persons have no right to be represented or to place material before the court to gainsay the adverse evidence.

 Hall further acknowledged the tension between public interests and the protection of privacy and from prejudice of individuals.  In doing so, he acknowledged that the establishment of Royal Commissions carries with it the presumption of open hearings and open justice and, by inference, public hearings by standing commissions of inquiry.  He noted that:

 The public airing of evidence is an inherent part of the process.  While hearings that are conducted publicly potentially expose individuals to the risk of damage to reputation, the risk needs to be balanced against the disadvantages of taking evidence in private hearings.

 Hall then cited Mason J (as he then was), in support of this position.  Mason J stated, in regard to the conduct of private hearings:

       However … [a private hearing] seriously undermines the value of the inquiry.  It shrouds the proceedings with a cloud of secrecy, denying to them the public character which to my mind is an essential element in public acceptance of an inquiry of this kind and of its report.  An atmosphere of secrecy readily breathes the suspicion that the inquiry is unfair or oppressive.  Especially is this so when the inquiry has power to compel attendance and testimony.

       The denial of public proceedings immediately brings in its train other detriment.  Potential witnesses and others having relevant documents and information in their possession, lacking knowledge of the course of proceedings, are less likely to come forward.  And the public, kept in ignorance of developments which it has a legitimate interest in knowing, is left to speculate on the course of events.

       … Here the ultimate worth of the … Commission is bound up with the publicity that the proceedings attract and the public has a substantial and legitimate interest in knowing what is happening before the Commissioner.

 What the CCC Act says, is that except as provided in section 140, an examination is not open to the public.   That is therefore the default position under the Act, to which the Commission is therefore legally obliged to give effect.

The CCC may open an examination to the public under section 140 if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so.

 Consistently with that, of the 89 sets of examinations in various investigations which have been conducted by the Commission since its inception, 70 were held in private and 19 were held in public.

 It is a contempt of the Commission, punishable as a contempt of the Supreme Court, for a person to refuse to attend on a summons or to be sworn or affirmed or to answer any question relevant to the investigation which the Commission requires them to answer.

 There is no privilege against self-incrimination  — however the “trade-off” for that is that a statement made by a witness in answer to a question that the Commission requires the witness to answer is not admissible in evidence against them in any criminal proceedings or proceedings for the imposition of a penalty other than contempt, proceedings for an offence under the CCC Act (such as giving false or misleading evidence) or disciplinary action.

 Giving false or misleading evidence to the CCC, or bribing witnesses to withhold evidence from or give false evidence to the CCC, are offences punishable by up to five years imprisonment and a fine of $100,000.

 By the time at which the Commission decides to summons a person to appear before it to be examined, the investigation will have progressed to a point at which the CCC considers it necessary to obtain information from that person on oath or affirmation.

 The Commission’s primary objective in its examinations and investigations is to find the truth.

 Some persons in that situation are prepared to tell the truth; others are not.

 It ought not to be expected that if a person asserts in evidence before it things which the Commission already has evidence are not the truth, the Commission will either say that or immediately produce the countervailing evidence.  What the Commission will want to know initially, is whether or not the person is prepared to tell the truth as he or she knows or believes it to be.  Of course, at an appropriate time (which may be on a later occasion) information which appears to call for comment or explanation by a witness will be put to them so they have the opportunity to do that.

 The Commission’s absolute intent in conducting an examination of a person is to elicit the truth.  There is no public interest in, nor any benefit to the Commission’s investigation, in conducting an examination for the purpose of “catching out” witnesses giving false or misleading evidence.  In the Commission’s view, if the only outcome of an examination is that the witness is charged with giving false or misleading evidence, then that examination has been unsuccessful.

 Of course witnesses who do give false or misleading evidence can expect to be charged with that offence.

The examination of a witness before the CCC is conducted by a person appointed to assist the Commission.  That person is usually (but does not have to be) a lawyer.   Counsel Assisting may, so far as the Commission thinks proper, examine the witness on any matter that the Commission considers relevant.

The notion of “relevance” in the context of an administrative investigation is a very different notion from relevance in a court of law.  For the latter, evidence is relevant:

       If it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

 Of course, as we have seen, there are no “facts in issue” in an investigation, the purpose of which is not to determine issues of fact, but to discover them.

 Thus, what is relevant to a CCC investigation is anything the Commission bona fide believes will assist it in its inquiry.

 It is the role of Counsel Assisting to examine the witness to elicit and test whatever evidence the witness can give to inform the investigation.

 The idea of counsel representing that witness, or another witness, “cross-examining” the witness is misconceived:  It is the role of the Commission itself to test the evidence so as to discern the truth.

 Implicit in this, is the onus on the Commission to give full and proper consideration to all the material available to it and which bears on the investigation, whether adverse or favourable to an individual or body, when making its assessments and forming its opinions.

 Further, despite the fundamental difference between an administrative inquiry and a trial in a court, lawyers appearing before the Commission (either as representing a witness or as Counsel Assisting) are subject to the same professional and ethical rules which ordinarily apply to them.

 Thus Counsel Assisting the Commission are obliged to conduct themselves in accordance with the Professional Conduct Rules  and so:

 (a)   must fairly assist the Commission to arrive at the truth, seek impartially to have the whole of the relevant evidence placed intelligibly before it, and to assist it with adequate submissions of law to enable the law properly to be applied to the facts;

(b)   must not, by language or other conduct, seek to inflame or bias the Commission against any person whose conduct is in question before it;  and

(c)   must not argue any proposition of fact or law which Counsel Assisting does not believe on reasonable grounds to be capable of contributing to an opinion of misconduct and also to carry weight.

 The essential feature that a CCC examination is not a forensic contest but an aid to an investigation is reflected in the statutory provisions concerning legal representation of witnesses.

 A person appearing for examination before the CCC is entitled to be represented by a lawyer  and that lawyer may – so far as the Commission thinks proper – examine that witness on any matter that the Commission considers relevant.   No person appearing before the CCC who has wanted a lawyer to represent them, has ever been denied that.

Under the CCC Act, the Commission may allow a person to be legally represented at an examination while another witness is giving evidence if it considers that there are “special circumstances”  and may allow that legal representative to ask such questions as the Commission considers relevant.   The statutory presumption therefore is that a person will not be permitted to have his or her lawyer represent them and ask questions at the examination of another person, unless the Commission considers there are special circumstances which necessitate or justify that.

 Alleged misconduct being investigated may involve possible criminal offences  but will not necessarily do so.  Whether that be so or not in a particular case, a CCC investigation will usually involve much more, and be more extensive than, an ordinary criminal investigation.  That is because section 17(2)(ca) of the CCC Act requires the CCC to ensure that in performing all of its functions, it has regard to its prevention and education function.

 So it is that whilst for example a police investigation is concerned only to obtain evidence about an alleged offence, a CCC misconduct investigation (even where it concerns possible criminal offences) must also seek to ascertain how the misconduct came about, why it was not prevented or detected, whether it extends beyond the individual agency, whether it is the result of systemic flaws and what organisational or policy or procedural changes are necessary to prevent or deal with such conduct in future.

 Legal professional privilege is expressly preserved (other than for public authorities or public officers in that capacity) as a reason for a person not complying with a requirement of the CCC to answer questions, give evidence, produce records, things or information, or make facilities available.

 Reports to Parliament

 The outcome of a CCC misconduct investigation is the exposure of the facts and circumstances of the subject of it, an opinion by the CCC whether or not a public officer has engaged in misconduct and appropriate recommendations for further action.

 This will usually be achieved by the Commission tabling a report in Parliament under section 84 of the CCC Act.

 The Commission may include in such report, statements as to its assessments, opinions and recommendations and the reasons for them.

 By section 86 of the CCC Act, before reporting any matters adverse to a person or body in a Parliamentary report, the Commission must give them a reasonable opportunity to make representations to it concerning those matters.

 If Parliament is not sitting, a Commission report is deemed to be tabled in either House upon transmission of it to the Clerk of that House.

 As has been emphasised, in conducting and reporting upon investigations into alleged misconduct, the CCC does not make legally binding determinations.  That is reflected in section 23 of the CCC Act, which stipulates that the Commission must not publish or report a finding or opinion that a person has committed a criminal or disciplinary offence and that an opinion that misconduct has occurred is not to be taken as a finding that a person has committed a criminal or disciplinary offence.

 The Commission may make recommendations as to whether consideration should or should not be given to the criminal prosecution or taking of disciplinary action against particular persons, or for the taking of other action which it considers should be taken arising out of its investigation.

 Criminal Prosecutions

 Although CCC investigations are about alleged misconduct and associated systemic and other issues, they often reveal possible criminal offences.

 Where there is sufficient evidence of offences having been, or being, committed and it is appropriate for charges to be laid, the Commission will either do so or refer the matter to the Commonwealth or State Director of Public Prosecutions for advice (CDPP or SDPP).

 In this regard, the CCC has the same relationship with those offices and applies the same policies as do police.

 If the evidence and the charges are relatively straightforward, the CCC investigators will lay the charges and a CCC lawyer will conduct the prosecution in the Magistrates’ Court.

 If the matter is particularly complex or difficult or involves an offence which must be tried in the District or Supreme Court, advice will be sought from the DPP.  If the advice is that charges should be laid, the Commission will do so and the prosecution will ordinarily be conducted by the DPP.

 Matters which the Commission considers should not be the subject of prosecution or which it considers should be, but raise wider issues of law or fact or involve particular public interest considerations; would usually be the subject of a recommendation in the parliamentary report on the investigation.

 Whilst criminal prosecutions may therefore flow from CCC investigations, they are not core business but are incidental to its statutory prevention and education and misconduct functions.

 That said, since its inception on 1 January 2004 to date, the Commission has charged 73 people with 670 criminal offences with a conviction rate by person of 79%.

 The SDPP has conducted 28 prosecutions arising out of CCC investigations, resulting in 18 convictions – a conviction rate by person of 64%.

 Examples of convictions following CCC investigations include:

 (a)   various public officers convicted of corruption;

(b)   a vehicle examiner convicted of taking cash bribes to certify vehicles as roadworthy without examining them;

(c)   prison officers and other public officers convicted of unauthorised accesses to departmental data bases and unauthorised disclosure of information;

(d)   a chief finance officer of a government agency convicted of fraudulently obtaining housing subsidies of more than $70,000 over five years;

(e)   a hospital worker stealing more than $186,000 over five-and-a-half years;

(f)   a ministerial Chief of Staff convicted of corruption;

(g)   a Judge’s Associate convicted of unauthorised computer accesses and disclosure of information;

(h)   a senior police officer convicted of unauthorised accesses to police information and using it to stalk women; playing a restricted police video-recording to an unauthorised person; and recording private sexual activity and communicating it to another;

(i)   a Landgate officer accepting bribes to expedite development applications;

(j)   a TAFE lecturer convicted of a range of stealing and fraud offences involving the loss of more than $200,000 of his students’ funds;

(k)   offences of stealing or receiving property;

(l)   offences of using or supplying drugs;

(m)   giving false evidence to the CCC;

(n)   signing false statutory declarations and false statements; and

(o)   convictions for various fraud offences.

 Of much more significance, however, are the parliamentary reports tabled by the CCC.

 Parliamentary Reports on Misconduct Investigations

 Since 1 January 2004 the CCC has tabled 37 parliamentary reports on its investigations.  They are all available on the Commission’s website, at www.ccc.wa.gov.au.

 The subjects are wide-ranging and include allegations concerning the Riverton election; “leaks” from the Department of the Treasury; corruption of a CALM officer in the Oil Mallee industry, protection of personal data in the public sector; sexual contact with children by persons in the Department of Education and Training; various matters relating to Ministers of the Government; inappropriate associations by police officers; misconduct linked to the Smiths Beach development at Yallingup; the conduct of public officers in their dealings with lobbyists; the police investigation of the murder of Mrs Pamela Lawrence; the discontinuance of a police prosecution against Mr Joe McDonald; the conduct of a Director General of the Department of Health; the conduct of an Acting Director General and other officers of the Department of Fisheries; the conduct of the Mayor of the City of Cockburn; the conduct of public officers at the City of Wanneroo; the conduct of councillors and other public officers at the City of Bayswater; and corrupt conduct at Landgate relating to property development applications.

 What is Success?

 It should be clear that given a proper understanding of what the purpose of the CCC is, its success will never be measured by how many persons are charged with or convicted of criminal offences as a result of its misconduct investigations.

 The true measure of its success across all its work can only be the extent to which it helps foster a culture of integrity in the public sector of Western Australia.

 The role of the CCC in the constitutional system of the State is encapsulated in its statutory purpose:

       To improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector.

The Hon. Nick Greiner, who resigned as Premier of New South Wales following an adverse report on him by the ICAC, and who therefore might be expected to have a jaundiced view about that body, in fact considers it fundamentally important to the good health of the body politic in that State.  Interviewed on the ABC’s 7.30 Report he said:

 … I think ICAC is now doing exactly what it was created to do which is to try and change behaviours, change cultures, change approaches.  It is not essentially about criminality even though there might be some.  It is really about what’s acceptable behaviour in public life.

 The Commission deals with a wide-range of misconduct, which certainly includes criminal conduct by public officers, such as:

 (a)   actual criminal corruption – public officers taking bribes or other benefits while exercising their functions or powers to benefit the giver/or cause someone else a detriment;

(b)   teachers physically or sexually assaulting young children in their care, or using them for pornographic purposes;

(c)   assaults by police, prison officers or railway transit officers;

(d)   doctors or other health staff stealing drugs of addiction from hospitals; and

(e)   fraud or stealing public money or property.

 Some have said that the CCC is wasting its time and resources on other forms of misconduct which is “trivial”.

 But examples of that type of misconduct by public officers we are actually talking about include:

 (a)   public officers using or dealing drugs in the workplace;

(b)   unauthorised access to or disclosure of confidential official information;

(c)   secretly advancing the commercial or other interests of people with whom the public officer has a personal, commercial or political relationship;

(d)   making decisions for personal or other reasons which are not honest, not impartial, or not in the public interest; or

(e)   breaching the trust placed in them as public officers to advance other interests, contrary to their public duty.

 One way to think about whether these things are “trivial”, is to ask ourselves how we would feel if the decision or conduct of the public officer who behaved in this way, happened to us personally.

 All of us are affected daily, in many ways, by the decisions or actions of Ministers of state, members of Parliament, and public officers across State and local government departments, agencies and institutions.  We depend upon those people acting with integrity, honesty and impartiality in making decisions or doing things which affect us.

 The Commission believes the Western Australian community expects public officers to act with fairness, honesty and integrity and always in the public interest.  We must ask whether we as a community are prepared to accept public officers, however senior or junior they may be, acting with a lack of fairness, honesty or integrity, or to their own personal advantage or to secretly advance the private interests of other individuals contrary to their public duty?

 Public officers who do act in that way subvert the institutions upon which we all depend to maintain a just and fair society.  They undermine the very process of government.

 There is nothing “trivial” about this.  On the contrary, it is fundamental to community confidence in government, without which ultimately no government can function.

 I suggest therefore, that the defining role of the Corruption and Crime Commission in the constitutional system of Western Australia is in improving the integrity of, and reducing the incidence of misconduct in, the public sector, and in that way contributing to the maintenance of community confidence in the very institutions of governance of the State.

 _____________________________________________

 

 ENDNOTES

  Dainford Ltd v ICAC (1990) 20 ALD 207.

  Union Steamship Co of Australia Ltd v King  (1988) 166 CLR 1.

  Hall, PM 2004, Investigating Corruption and Misconduct in Public Office:  Commission of Inquiry – Powers.

  Section 8, CCC Act.

  Section 24(1), CCC Act.

  Section 184 CCC Act; all CCC investigators are also appointed as Special Constables under Part III of the Police Act 1892 (WA)).

  Section 9(1) and (2) CCC Act.

  Section 185 CCC Act.

  Section 7A(b) CCC Act.

  Misconduct occurs if:

(a)   a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment;

(b)   a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person;

(c)   a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or

(d)   a public officer engages in conduct that:

(i)   adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct;

(ii)  constitute or involves the performance of his or her functions in a manner that is not honest or impartial;

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv)  involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,

      and constitutes or could constitute:

(v)   an offence against the Statutory Corporations (Liability of Directors) Act 1996 or any other written law; or

(vi)  a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).

  Sections 3 and 4(a), (b) and (c) CCC Act.

  Section 17, CCC Act.

  Section 18, CCC Act.

  Section 18(2), CCC Act.

  (a) Supplementary Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup (27 August 2009).

(b)   Report on the Investigation of Alleged Public Sector Misconduct in Connection with the Activities of Lobbyists and Other Persons: Fortescue Metals Group Ltd (14 September 2009).

(c)   Report on the Investigation Into Allegations of Misconduct by Councillors or Employees of the City of Bayswater (13 November 2009).

(d)   Report on the Investigation of Alleged Public Sector Misconduct in Connection with the Activities of Lobbyists and Other Persons: A Ministerial Decision in Relation to Applications for a Mining Tenement at Yeelirrie (16 November 2009).

(e)   Report on the Investigation of Alleged Public Sector Misconduct at the City of Wanneroo (3 December 2009).

(f)   Western Australia Police Property Management Practices: Report on the Progress of Recommendations Contained in the 2005 Joint Inquiry by Western Australia Police and the Corruption and Crime Commission (4 December 2009).

(g)   Pursuant to Section 89 of the Corruption and Crime Commission Act 2003 the Commission presented the Report on the Investigation of Alleged Public Sector Misconduct in Relation to the Activities of an Associate to a Judge of the District Court of Western Australia to the Joint Standing Committee on the Corruption and Crime Commission (JSCCCC) and the Attorney General on 25 February 2010.  A Precis was subsequently tabled in the Parliament by the JSCCCC as Report No. 8 in the 38th Parliament 2010 (Legislative Assembly on 18 March 2010 and Legislative Council 23 March 2010).

(h)   Misconduct Handling Procedures in the Western Australian Public Sector: WA Health (22 April 2010).

  Sections  94, CCC Act.

  Section 157, 158, CCC Act.

  Section94(4), CCC Act.

  Section 94(5), CCC Act.

  Section 95, CCC Act.

  Section 96, CCC Act.

  Section 167 CCC Act.

  Section 100 CCC Act.

  Section 101 CCC Act.

  Sections 102-118 CCC Act.

  Sections 119-134 CCC Act.

  Parliamentary Commissioner for Administrative Investigations.

  Section 138, CCC Act.

  In Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21.

  Hall, PM, supra, p. 639.

  Ibid, pp. 652-653.

  Ibid, p.654.

  In Victoria v Australian Building Construction Employees and Builders Labourers Federation  91982) 152 CLR 25 at 97.

  Hall, supra, at 654.

  Section 139(1).

  Section 140 does not apply to an organised crime examination  under Part 4 of the CCC Act – section 140(1).  Thus organised crime examinations must be held in private.

  Section 160 CCC Act.

  Section 157, CCC Act.

  Section 145, CCC Act.

  Sections 168, 169, CCC Act.

  Section 143(1), CCC Act.

  Nicholls v The Queen [2005] HCA (2005) 219 CLR 196, per Gleeson CJ at [37].

  Lloyd v Costigan (No. 2) (1983) 53 ALR 402, 405; MFI & Ors v National Crime Authority (1991) 105 ALR 1, 16.

  Ross v Costigan  (No. 2) (1982) 41 ALR 337, 351.

  Rule 72, WA Bar Association Conduct Rules 15 February 2006; Model Rules of Professional Conduct and practice of the Law Council of Australia, March 2002; and see Hall, supra, at 679-680).

  Rule 61, WA Bar Association Conduct Rules, 15 February 2006.

  Ibid, Rule 63.

  Ibid, Rule 64.

  Section 142(1), CCC Act.

  Section 143(2), CCC Act.

  Section 142(5), CCC Act – the term “special circumstances” is not defined.

  Section 143(3), CCC Act.

  And always will where the allegation is of serious misconduct under section 4(a), (b) or (c) of the CCC Act.

  Section 144, CCC Act.

  A report may be made to the Minister, or another Minister or the Joint Standing Committee instead of Parliament, if for any reason the Commission considers it appropriate to do so:  section 89, CCC Act.

  Section 84(3), CCC Act.

  Section 93(3), CCC Act.

  Section 43, CCC Act.

  These figures are included in the preceding figures for the Commission.

  Section 7A(b), CCC Act.