You can be guilty of corrupt conduct but not be successfully criminally prosecuted

“So it has taken ICAC two years to tell us that Gladys Berejiklian has not broken the law.” So tweeted Matt Kean MP, leading moderate light of the NSW Liberal Party, shortly after ICAC had released its massive report — including findings Berejiklian had engaged in serious corrupt conduct and breached the public trust during her term as premier.

Kean knows better than this, so it was particularly telling that he chose to join the pile-on in defence of Berejiklian and its necessary corollary: an assault on the legitimacy of the Independent Commission Against Corruption. The Liberal Party, from Peter Dutton down, has not held back in its refusal to accept this verdict, and in doing so has engaged in some shameless sophistry.

The essence of the attack on ICAC’s determination draws on another of its findings: that it would not be referring Berejiklian for potential criminal prosecution because it had concluded there was no realistic prospect of her being convicted of any crimes.

This has been taken up as a simplistic battle cry: if she didn’t commit a crime, that must mean she did nothing wrong! It follows like night follows day, right? Wrong. The conflation of legal principles and functions here is cynical and deceptive, but potentially effective on a half-interested public. 

There are critical distinctions that need to be understood. ICAC is not a part of the apparatus of the criminal law. Its remit is quite different: to investigate allegations of corrupt conduct by or affecting public officials, make findings on those allegations (on the civil standard of proof) and, if warranted, refer individuals to prosecuting authorities such as the police. That is as far as ICAC goes.

The reason ICAC and its fellow anti-corruption bodies exist is there is a recognition that the blunt instruments of criminal law are inadequate to effectively address the systemic risk of public corruption. That’s why we finally have a federal anti-corruption commission — because it was desperately needed.

It is entirely possible for a person to be found, on the balance of probabilities, to have engaged in corrupt conduct, in circumstances where they are never going to be successfully prosecuted for a crime in respect of that same conduct.

Why? Several reasons. Corrupt conduct is more broadly defined than the relevant criminal offence provisions. Evidence given under compulsion before ICAC cannot be used in a subsequent criminal trial of that person (meaning, for example, that nothing Berejiklian said under oath at ICAC’s hearing can be used against her in a criminal prosecution).

As the new NACC chief Paul Brereton said this week, in noting that it is possible for conduct to be corrupt but not criminal:

We do not make findings of criminal guilt, to which rules of evidence and proof apply. If there is evidence of criminal conduct, we may refer to a prosecuting agency. But it is precisely in the area where it may not be possible to establish criminal conduct to the high criminal standard of proof that the commission’s work can be most important in enhancing integrity by investigating and exposing corrupt conduct, even where it cannot be prosecuted in a criminal court.

It is a ridiculous notion that unless a person has been convicted in a criminal court it cannot be legitimately said that they are guilty of any wrongdoing justifying adverse consequences. 

The MCC members in the Long Room who spewed abuse at Australian cricketers committed no crimes, but several of them were suspended and may be expelled because they breached the code of acceptable conduct within that institution.

Likewise, a minister who misleads Parliament commits no crime, but conventionally is obliged to resign because that conduct undermines the integrity of our system of government.

Corrupt conduct, as defined in ICAC’s legislation, is simply another species of wrongdoing that’s considered to be sufficiently reprehensible and dangerous to warrant investigation and exposure, quite separate and distinct from any question of whether the same acts also constituted a crime.

Despite all the cries of outrage, there is nothing remarkable about ICAC’s findings in the Berejiklian case. She did engage in corrupt conduct, of an embarrassingly obvious and shameless kind — using public money to keep her boyfriend happy. That’s corrupt every day of the week, no matter how competent or otherwise perfect she was.

It’s equally unsurprising that ICAC decided not to refer her on, because it was right: prosecuting her would have almost no prospects of success.

The guilt/innocence binary being constructed by Dutton and co around this issue is false. Their continued undermining of ICAC is a disgrace.