We have discussed in this series the activity of the Integrity entities contrary to their legislated rules, the lack of equality before the Law, the abuse of legal process by the sidelining of the Director of Public Prosecutions (DPP)and the entities making findings that they are ‘prohibited’ to make.
In this part, we raise the issue of public examinations.
The legislation bemoaned as inadequate by the entities, at least to some degree, balances the ledger regarding the use of this extraordinary power by setting strict guidelines. The problem with guidelines is that they are open to interpretation; in this case, if they used the public interest value, they got it the wrong way around.
In these cases, the power was exercised on several occasions, but how it was exercised raises significant concern.
The Premier was not required to expose himself to a public hearing as others of equal or less culpability were.
As we have previously raised the issue of fairness and equality before the Law, this is a prime example that the entities cannot be relied upon to discharge these responsibilities fairly and equally.
This is an instance of who you are, trumping equality before the Law.
Earlier this year, the former Mayor of the City of Casey, Amanda Stapledon, was found deceased in a car. IBAC had investigated Ms Stapledon over serious matters associated with the Council and relationships with a property developer.
It was reported at the time (The Australian 2nd Feb 2022, ‘IBAC blamed for Mayor’s death’) that Stapledon played a relatively minor role. It was reported that although she suspected something might be wrong, she did not benefit directly from her involvement.
Perhaps described best as immersed in the process, a bit like it was alleged the Premier was in the Red Shirts. However, the benefit to the Premier was far more apparent; he won an election.
She was, however, subject to the humiliation of a public examination which it was claimed caused the tipping point leading to her demise. She died three days after receiving the IBAC report.
We have discussed some of the Legal principles and extend that commentary to the other very basic principle, the presumption of Innocence.
The presumption of Innocence until proven guilty means that the burden of proof is always on the Government to satisfy you that [defendant] is guilty of the crime with which [he/she] is charged beyond a reasonable doubt.- https://law.unimelb.edu.au/__data/assets/pdf_file/0003/3445545/Paper_Belkin_Ira.pdf
That definition seems unambiguous and is a principle that must be applied to all legal processes.
The public examination process is so compromised in lack of equality in its application that it must be removed from the options available to the integrity entities.
These examinations can best be described as a ‘Show Trial’ and give the distinct impression they are used for punitive purposes as they never seem to elicit more admissible evidence than the private inquisitions, where the Integrity Units have enormous power to extract information.
If the agencies cannot conduct a successful investigation and prosecution with all their extraordinary powers, resorting to ‘Show trials’ is an abuse of power.
It must be remembered that the IBAC has the option to apply to the Supreme Court to have a matter put before the Public Examiner as it could be argued that many of the crimes investigated are Organised so that they could fall under the Examiner’s remit. https://www.chiefexaminer.vic.gov.au/
No matter what you may think as an investigator, if you cannot legally harness the evidence required for a prosecution, then so be it, and provided you have applied your best efforts, time to move on.
The value of a public examination as an investigation tool is moot, so it is clearly a sanction.
There are also stringent legal policies about the principle of justice and a fair trial.
What constitutes a fair hearing will require recognition of the interests of the accused, the victim and the community (in a criminal trial) and of all parties- https://www.ag.gov.au › public-sector-guidance-sheets
It is arguable that putting a suspect before an IBAC ‘Show Trial’ has the real potential to influence potential jurors. That could favour or disadvantage the accused. Whether or not, is not the issue; but the potential is.
Putting people who, at worst, are suspects, having not been charged with any Criminal or other offence, to public humiliation is a sanction no matter how it is argued. Therefore, as they are innocent before the Law, public examination ‘Show Trials’ are punishment without conviction.
The modern-day version of the medieval stocks, without rotten tomatoes.
The presumption of Innocence is a straightforward principle and forms the cornerstones of our legal system; however, because of some foible, the principles have been thrown away in establishing the Integrity units.
The case for extraordinary powers for these units is somewhat justified. Still, when you review the annual reports of IBAC, for example, a cursory cost-benefit analysis of the organisation, leaves a lot to be desired. With the millions invested thus far, the outcomes seem a bit on the thin side, and significant scalps are very rare, and not because significant scalps are less corruptible.
Our legislators have generally been sold a pup on this issue.
It is, therefore, imperative that a proper and detailed nonpartisan approach needs to review the functions of all the Integrity agencies we fund to examine rationalisation and cost-effectiveness.
Pooling all Integrity functions within Government under one accountable umbrella would mean rationalising resources, skills, and accountabilities, minimising the need for an extraordinary expansion of the cost and size of individual Integrity units. In addition, the cost savings by consolidating administrations would be substantial.
This would expand opportunities for employees to further their careers within the sector, improving performance and justifying specialist training that will strengthen the battle against corruption overall.
As part of its charter, these authorities must have a role in prevention and detection and, without compromising operational security, be transparent and accountable.
As we have said, we support the necessity of Integrity units, provided they operate within the framework of our laws and not outside them.