The ACT Integrity Commission is holding further public examinations this week as it investigates the tender for building works at Campbell Primary School. Here legal columnist HUGH SELBY backgrounds what’s happening and what limited outcomes there may be.

FROM Wednesday, there are to be further days of public examination by the ACT Integrity Commission as it investigates how and why the tender for building works at Campbell Primary School was not given to the recommended tender applicant, local firm Manteena, but instead went to Lend Lease. 

No criticism is made of either construction company. Each went about the process of submitting a tender, and then submitting more information, doing what was asked of them. 

This article provides some background to how and why our integrity commission operates, what’s happening at the public examinations and what limited outcomes there may be. 

It reveals that the present legislation needs amendment to clarify the processes followed, especially for public examinations. Such clarification will make the work of the commission more effective. 

An Act that does not, cannot deliver 

The Integrity Commission Act (the Act) was passed in 2018. Given the extensive experience of special investigative bodies in other states (including crime commissions, commissions specially set up to respond to complaints about police, and ICAC-like bodies) we might expect that this Act was “fit for purpose”. 

Sadly, it’s not. Most of its considerable length comes from procedural niceties that seem excessive, given how limited are the possible results of an investigation (as to which see below). 

The Act is sparse on the business end as to how its “examinations” should be conducted. (The commission has published “guidelines” for its hearings. These are helpful but cannot fix the legislative gaps). 

For example, there is no mention of the standard of satisfaction (be that balance of probabilities, beyond reasonable doubt, or something in between) that the commissioner must reach before forming an opinion or making a finding about alleged improper conduct. 

This is both extraordinary and worrying. How can a lawyer advise their client, decide on what questions to ask or make submissions as to outcomes when the basics of who has an onus to establish the facts and to what level is overlooked? 

Another problem is that while the Act emphasises the obligations to co-operate that are placed on a person called to an “examination”, it fails to make clear what rights they and their lawyers can exercise. 

An interrogation body with a fancy name 

The functions of the commission include investigating conduct that is alleged to be corrupt, and then “referring suspected instances of criminality or wrongdoing to the appropriate authority for further investigation and action [such as the Office of the Director of Prosecutions]”. 

That doesn’t mean anything will happen after such a referral. Recently, a special investigation (by a former High Court judge) about aspects of the “solicitor Gobbo as police informant” debacle led to recommendations that charges be laid. The Victorian director of prosecutions rejected those recommendations. The value of the investigation and its outcome was zero. 

By contrast, the recent Sofronoff Inquiry, conducted pursuant to our Inquiries Act, both investigated (that is, gathered evidence) and called witnesses in open hearings where that evidence could be tested by questions from not just the counsel assisting the commissioner, but also the lawyers for other “interests”. 

The procedures followed under the Inquiries Act clearly reflect our established conventions for public hearings in an adversarial system, modified by the “inquisitorial” slant that comes from having a counsel assisting the commissioner. More about that later. 

Those Sofronoff “open hearings” were very different to the “examinations” of the ACT Integrity Commission. The differences reflect markedly different functions and the applicability of conventional litigation processes to those functions. Unfortunately, the Act does not recognise those differences and their consequences. They are discussed below. 

Although both Commissioner Walter Sofronoff and Commissioner Michael Adams are former Supreme Court judges their tasks under their respective legislation are different. All that Commissioner Adams can do in Operation Kingfisher is make suggestive findings, followed by referral elsewhere for possible action. 

By contrast, Commissioner Sofronoff, to answer the specific inquiry questions (its terms of reference), evaluated all the evidence that was tested not only by counsel assisting but also the lawyers for each interested person, gave notice of possible adverse findings, invited comment and then produced his final report. 

He accepted the submissions from the DPP’s barristers that he should not make comment about what was, or ought, to happen to the DPP because that was outside the terms of reference. 

Rights curtailed 

The present Act provisions, just as with crime commissions, negate rights we otherwise enjoy that require the state to prove its case without our help. 

The right to silence is taken away by the laws that establish these commissions. 

The acceptability of crime commissions is that they focus, or are supposed to, upon serious criminal conduct, so serious that the public interest in compulsion to answer questions outweighs the individual’s rights as against the state. 

Query whether what apparently happened in the Campbell Primary School tender process is of sufficient gravity to warrant the departure from a stock standard police investigation. 

This query does not suggest that the integrity commission is acting outside its legislative remit. It is acting within it. The query goes to what our politicians chose to do, and whether they had and have sufficient understanding of what they did in 2018. 

An interrogation is just that

“Corrupt conduct” requires conduct that could be a criminal offence, or a serious disciplinary offence, or grounds to sack, AND is any of, “not honest or not impartial”, or “breaches public trust”, or “adversely affects….the honest or impartial exercise of functions by a public official”. 

“Public official” includes our politicians, their staff, our ACT public servants, the decision makers in our courts and tribunals. 

For those who followed the previous days of public examination we know that various public servants, a staffer of a politician, and some union officials are “assisting the commission in its investigation”. 

Given the witness list for the public examinations, it is likely that there have been private examinations for one or more persons of interest. Such private examinations are not open to the public, and possibly not open to other persons of interest or their lawyers either. We don’t know (and if you ask, as I did, no information will be given). 

Our lack of knowledge entails that our understanding of what we do see and hear in the public examinations may be far from what the broader picture entails. 

It’s a pertinent question, therefore, to ask if these public examinations serve the public at all. 

What we would like to know yields to protecting reputation 

The objects of the integrity commission law include, in the quest to expose corrupt conduct, achieving a balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation. 

As to the adverse effects upon a person’s reputation, their identity can be suppressed by the commission (as it has been with the pseudonym Mr John Green who has been giving evidence at the public examination and will do so again this week). 

The Act also provides for a quasi-remedy to restore a reputation when findings and opinions by the commissioner are not followed by actions that find the corrupt conduct proved. 

It’s only an investigation, but its processes are confused

Following preliminary inquiries the commission can investigate. It has wide powers, including – subject to a warrant obtained from a magistrate – entry and search, and seizure of things. In broad terms these powers mimic what good police investigators do. 

During the investigation the commissioner may hold public or private examinations. 

There is an implicit preference for private examinations. Public examinations require attention to: 

(a) whether the corrupt conduct is related to an individual and was an isolated incident or systemic in nature; 

(b) the benefit of exposing to the public, and making [the public] aware of, corrupt conduct; 

(c) the seriousness of the matter being investigated. 

Just how these are to be prioritised is not stated. Where does one start? 

Whether the interrogation is private or public the Act requires that the tenets of natural justice and procedural fairness must be respected; however, the evidence can be gathered as the commission sees fit, and should be done – as far as possible – in a non-adversarial manner. That means it is inquisitorial. There is a preference for written submissions, rather than spoken advocacy. 

This is a haphazard mixing of terms, functions and procedures with no attention to the difficulties that it causes. 

What has happened is that concepts that apply to litigation have been grafted into a special investigation that gathers evidence preliminary to some other body taking determinative action, without working through in the legislation how this grafting can work properly. 

Our litigation system of examinations of witnesses is based on an adversarial approach. That is, the parties are pitted against each other. The decision maker is expected to be a generally silent referee, making rulings on matters of evidence and procedure, and then they give their reasons for decision, preferring one side to the other. 

Coronial inquiries into death and fires are the exception, as are inquiries. Such examinations are inquisitorial. This means that the coroner or inquiry commissioner can intervene and ask questions much more than a decision maker in other civil or criminal matters can. 

The coroner and inquiry commissioner also have the help of a counsel assisting. Unlike this commission’s examinations, coronials and inquiries are in public and the interested parties (be they few or many) get to see and hear all the evidence. They also have a real opportunity to test it. 

The Act does not mention whether or not other persons of interest/ witnesses and their lawyers can apply to attend a private examination, or even be told that it will occur or has occurred. 

If the private examination is simply an in-camera interrogation of a person then no other person or interest can have an expectation to be present. 

That is probably what is intended. The confusion is caused by the limited opportunity, but only at the public interrogations, for other persons to question the person being interrogated. That questioning is called cross examination, but that too is a misnomer. 

Cross-examination requires the leave of the commission, which is given after considering a written request that sets out the proposed scope of the cross-examination. This is substantially less than what is standard in coronials and inquiries. 

Being so much less, its purpose is unclear. Cross-examination requires a strategic purpose. “Fishing” is not enough. It should reflect mastery of the evidence. Once upon a time, before an accused went to trial in the Supreme Court, there was an administrative inquiry before a magistrate, called a committal. Its purpose was to determine the sufficiency of evidence to warrant a trial. 

The prosecution evidence would be presented in open court and their witnesses could be cross-examined by the defence. Whether or not the defence chose to cross-examine reflected their assessment, based on their knowledge of the totality of the prosecution evidence, as to the advantages of testing the evidence before the magistrate or keeping their hand hidden until they were before a jury. 

Before the integrity commission, the decision to cross-examine is made with much less information. The lawyer did not see or hear any private examination. Prudence suggests that saying nothing may be the best course, as saying anything may give the commission some further ideas as to where to dig. 

The fundamental problem of this Act is that it seeks to combine investigative conduct (which, as with police inquiries, is done out of the public eye) with “now you see it, now you don’t” interrogation conduct that has coercive powers – some of which can be in public, but is mostly behind closed doors. 

It would be worthwhile to consider a changed approach as follows: 

1. All primary examinations with a witness/suspect are conducted in private. The interviewee may have a lawyer present for limited purposes that are expressly set out in the Act; 
2. Any person likely to be criticised is provided with all transcript from those private examinations and invited to submit as to likely lines of cross-examination they wish to pursue with one or more witness/suspect; 
3. For such cross-examination the usual rules (as found in the Uniform Evidence Act and the professional conduct rules) will apply. This will deal with improper attempts to attack the believability of the witness. 
4. Such cross-examination will be at a public examination with the names of both the witness and the cross-examiner’s client suppressed. 

No doubt there are other approaches that should be considered. The important point is that any of them can be better than what the Act now sets out. 

Role uncertainty and ignoring common sense 

In another departure from convention a person required to attend a private or public examination will receive a confidentiality notice (that prevents them, on pain of penalty, sharing information about the investigation with others). 

This abrogates the principle that “there is no property in a witness”. This principle establishes that any party is free to talk to witnesses (subject to well-based concerns about intimidation and safety). 

A response to this criticism might be that it is clear to the commission and those who appear before it (be that in private or public session) as to who are mere witnesses and who are “corruption suspects”. 

But we, the public, won’t know that distinction. It may be clear to witness Mr John Green as to his role. It isn’t clear to us. Such a lack of clarity defeats having a public examination. We would be better served by an informative press release. 

What’s more, such a response (that those inside would know what’s what) would expose a dangerous fault line for those lawyers acting for a person of interest. Unless the commission explicitly commits to indicating that such a person is a mere witness or something more, then the lawyer’s approach to asking their client questions may entail that they must cease to act during the investigation to follow well established professional conduct rules. 

For example, to what extent does or should the lawyer ask their client (who is being interrogated by the commission) to tell them what they did, with whom and why? With a witness there is no problem; however, it’s different if the client is a suspect. An experienced defence lawyer asks their client to tell them what the police say that the witness did, not the witness’s version. This gives the defence lawyer the widest scope to test the prosecution evidence. 

Asking the witness to tell their story can lead to answers that fetter what questions that lawyer can ask at any examination (be that in a court or before an investigative body), and what submissions they can make. That fettering may be solved by replacing the lawyer. The new lawyer will not ask the client those questions that entail too much knowledge. 

If the lawyer must cease to act then there will be delays, and extra expense, while a new lawyer is found who, to properly represent their client, then acquires sufficient knowledge of all that happened. 

“Confidentiality notices” also defy common sense. Suppose that two persons A and B are suspected of jointly setting up and performing a corrupt act. If they did the deed then either they are going to plan an agreed defence, or one of them is going to rat out the other. In either case “the confidentiality notice” ignores human nature. If either one, or both, didn’t do the deed then the notice is a waste of time. 

The Act also prevents a witness from talking to a lawyer if that lawyer might have “an interest in the proceedings” by way of acting for another witness or even be involved in the activity being investigated. As with “confidentiality notices” this approach defies human nature. 

These provisions may bring the law into disrespect. Suppose that the commission gives directions as to who can contact whom. It then becomes clear that the direction has been ignored. If corrupt conduct is found then the focus needs to be upon a subsequent successful prosecution or other enforcement action. 

If it is successful then taking action for breaching a notice seems pointless. If there is no follow up action on the findings of “corrupt conduct” then an action for breaching a notice wreaks of pettiness and spite – “you got off, but we’ll get you on this procedure-based charge”. 

A Clayton’s report 

When the commission reports, it may include, with its reasons, “its findings, opinions and recommendations”. However, there are things it cannot do, such as, it must not include findings of guilt or recommendations about prosecution, or a finding of corrupt conduct (unless the conduct fits within “serious or systemic corruption”). 

It follows that we will have to read between the lines when a report goes up on the commission’s website. Why bother? There are so many tried and true ways to ignore those between the lines. Better to wait and see if any action is taken against anyone. 

Postscript 

Readers familiar with our Chief Minister’s “irrits” with the media publicising of the Sofronoff Report before his government could “consider it” may be amused by the provision that requires this Commission, as the default, to publish its reports on the Commission website “as soon as practicable after giving the Speaker [of the Legislative Assembly] the report”. 

“CityNews” legal commentator and former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

Berry’s office: ‘Manteena was not to get the contract’