December 1, 2018
The proposed watchdog against corruption would undermine some of the most fundamental principles of fairness and justice
Cracking down on corruption is like motherhood. It is so virtuous that only a fool would oppose it.
But just as there are unwise ways to become a mother - as a single teenager, for example, or with a drug-addicted father - so too are there times when the policing of corruption is not as wonderful as it seems.
The commission proposed in Independent MP Cathy McGowan's National Integrity Commission Bill will almost certainly erode some of the fundamental rights and safeguards that make our legal system fair and just. Let me say that again: this proposed national integrity commission would almost certainly erode the fairness built into our justice system.
McGowan’s bill would empower a future integrity commission to breach several of the fundamental legal rights granted to those accused of a crime under the traditional justice system. Politicians and public servants would face the prospect of having their careers ended and reputations trashed by a process with fewer rights and procedural safeguards than a police interview.
The right to silence would be the first casualty of McGowan’s integrity commission. The Bill empowers the commissioner to compel any person – including witnesses not accused of corrupt conduct – to attend a hearing, testify and produce any document or piece of evidence deemed relevant or face a criminal conviction. Refusing to answer even one question if called to testify before a hearing is punishable by two years’ imprisonment.
The right to remain silent is a bedrock of virtually every civilised legal system in the world for good reason. A person accused of a crime should be permitted to remain silent because he or she may actually know nothing about the crime in question. Being compelled to answer questions under the threat of punishment is neither fair nor just. The right to silence also acknowledges that an innocent person may prefer to remain silent for a range of reasons apart from guilt, including a poor memory, intoxication, age or vulnerabilities relating to mental fitness or capacity.
McGowan’s national integrity commission actually goes further than abolishing the right to silence. It also removes the privilege against self-incrimination. Unlike every witness testifying before court, any person summoned to McGowan’s commission could again face two years jail for declining to provide an answer to a question that would prove they’ve committed a criminal offence.
At first glance, McGowan’s bill appears to compensate for removing this privilege by guaranteeing that any incriminating evidence discovered during one of the commission’s interrogations will be inadmissible in future criminal proceedings against the person providing it. However, any incriminating evidence discovered as a result of a compelled interrogation would still be fair game.
The privilege against self-incrimination acknowledges that confessions obtained through compulsion are inherently unreliable. This was the lesson of England’s medieval star chambers, whose record of false convictions informed the common law’s recognition in the early 18th century that the power to compel an individual to convict themselves out of their own mouth could easily be abused.
In this sense, privilege against self-incrimination serves as a vital safeguard of individual liberty against the overweening power of the state, ensuring the onus of proving any charge of criminal wrongdoing remains squarely with the prosecution. The New South Wales ICAC’s numerous attempts to exceed its powers and jurisdiction are a salutary reminder that a national integrity commission would not necessarily be immune to similar overreach.
However, the most draconian aspect of McGowan’s commission is that it upends the presumption of innocence. Although the proceedings of a national integrity commission may look like a courtroom, its powers would be solely investigative. Much like the federal police, it would have the power to refer findings for prosecution, while the jurisdiction to convict would remain squarely with the courts. McGowan’s bill blurs this distinction by empowering the commission to make findings of "corrupt conduct". In high-profile investigations with strong media attention, being branded "corrupt" by a national integrity commission would carry the same ignominy and career-ending consequences as a finding of corruption. Yet such a finding would carry the same legal weight as a police interview.
A high-profile corruption finding would also risk prejudicing a future jury if the matter did proceed to trial, further eroding the presumption of innocence.
Legal rights such as the presumption of innocence and right to silence are not designed to make it easier to lay a conviction. Rather, their role is to provide our justice system with fairness and rigour.