|TE-BO: Political Corruption – The ICAC charter – good at establishing corruption, hopeless at sending criminals to goal …
| Author: TE-BO – The Eye-Ball Opinion| Date: May 7th, 2014 |
The ‘Australian’ via a story titled – ‘Punish the guilty to salvage the system’s reputation’- and reproduced below makes comment on why so few politicians pay for their corrupt behaviour in any way that reflects the way ordinary people face criminal charges for their corrupt actions.
An example – a serving police officer is found guilty of corruption – they lose everything, pension, job, and more than likely do jail time dependent on whether they become a whistle-blower. The job the ICAC has done over the last 18 months or so in exposing the corruption within NSW politics, on both sides – is not at risk of having any meaningful outcome that would place these corrupt Leaders anywhere near a jailhouse.
‘The Australia’ story published below:
Punish the guilty to salvage the system’s reputation
| Author: Anne Twomey | Date: May 7th, 2014 | Link to On-Line Story. |
THE most insidious thing about the political scandals exposed by the Independent Commission Against Corruption in NSW during the past 12 months has been the effect on public confidence in parliament and the system of government.
The impression is given that members of all sides are “on the take” and that politicians are not prepared to abide by the laws they have made.
The cries of “law and order” that so often echo down Macquarie Street ring very hollow if the same politicians who impose mandatory sentences on others have no respect for the rule of law themselves.
How can confidence be restored in the system of government? First, those who have breached the law or acted corruptly need to be punished. It must be made abundantly clear to the public that everybody is equal before the law and that those who break the law will be punished, no matter what office they hold.
At the moment, offences involving political donations and campaign funding in NSW cannot be prosecuted more than three years after they occurred. As much of the evidence in the ICAC relates to events that took place in early 2011, no prosecutions can take place unless this limitation is removed.
The people need to see prosecutions taking place before their confidence in the system can be restored. Under the election funding legislation, no prosecutions can take place without the consent of the Election Funding Authority. It does not have the power, however, to investigate or prosecute offences, so enforcement is extremely rare. But it can recover in court any political donations that a party has unlawfully accepted, and can demand double that amount from a party if it knew the donations were unlawful when it accepted them. This money then becomes part of state revenue.
We need to see swift action on the part of the EFA to recover any ill-gotten gains as soon as possible. These include donations made by others on behalf of property developers.
While the ICAC is well-equipped to fulfil its investigatory role, we rarely see prosecutions as a result of its inquiries because much of the evidence it generates is inadmissable in court and no one is resourced or responsible for bringing prosecutions to fruition after an inquiry.
Parliament should therefore consider whether to create and resource a dedicated unit to follow up ICAC recommendations with prosecutions and enforcement.
It is often very difficult to prove criminal offences beyond reasonable doubt, but corruption usually gives rise to ancillary offences that may be easier to establish. Al Capone was eventually jailed in the US for tax evasion, and it is in this area that the corrupt are usually most vulnerable. What we need is co-operation between commonwealth and state agencies to ensure all issues of potential illegality flowing from ICAC inquiries are properly followed through.
Next, the punishment needs to fit the crime. It is not just dollar amounts that matter (although the amounts in question in the scandals concerning mining leases, Australian Water Holdings and political donations have been significant). There is also a serious breach of faith with the people when members of parliament and political parties breach the law to feather their nests.
Such actions not only defraud the taxpayer but take away public confidence in the integrity of parliament and those entrusted to run the government. At the moment, penalties for breaching the law on political donations in NSW are minimal — with a maximum fine of $22,000 for political parties and $11,000 for others. When it comes to deliberate and systematic breaches of the law, more powerful deterrents should be considered, including jail time and serious penalties for political parties, such as the loss of public funding.
Consideration also should be given to classifying offences such as infamous crimes. An infamous crime is one that involves some kind of dishonesty or fraud that shows a person is untrustworthy.
If convicted of an infamous crime, regardless of the sentence imposed, a member of parliament loses their seat, and members who remain under the generous pre-2007 superannuation scheme also lose their entitlement to a pension.
As for politicians found to have behaved corruptly, regardless of whether they are convicted, parliament should seriously consider expelling them on the grounds that they have brought the house into disrepute by their unworthy conduct. Parliament needs to take action to restore its integrity in the eyes of voters and to show that it takes such matters seriously.
Finally, it needs to be remembered that political fundraising is not of itself evil. It pushes political parties to engage with the community. If parties have good candidates and good policies, and can excite public support, then they can raise more than enough to fund their needs, especially when, as in NSW, there are fixed expenditure limits for elections and significant public funding.
For all the rogue operators, there are also dedicated and worthy politicians who have all been sullied by the recent controversies. One can only hope that they have the courage to do what is necessary to restore public confidence in our political system.
Anne Twomey is a professor of constitutional law at the University of Sydney.
Ms Twomey makes a good argument for Members found wanting on the corruption and misappropriation of MP expenses – but let us take an obvious case of deliberately misleading the House. Treasurer Wayne Swan delivered 6 budgets and every one was woefully misaligned with the facts. His 2nd latest forecast delivered in May 20123 suggested a return to surplus within 2 years and a very small deficit for the 2012-13 year. Everybody who’s anybody in the land knew Swan fudged his books to deliver what was an election budget promising everything he knew he could not deliver.
Was that a case of misleading the HOUSE for the purpose of acting dishonestly? Of course he is guilty of being a dumb-ass and with no idea how to manage a Nation’s finances – but sending him to goal for inflicting a 300 billion debt overhang inherited by the next Government that we are all now lambasting because of the cuts that have to be made.
Returning to the ICAC inroads and exposure of political corruption – they have all been achieved under their charter that stipulates the following conditions –
- to investigate and expose corrupt conduct in the NSW public sector
- to actively prevent corruption through advice and assistance, and
- to educate the NSW community and public sector about corruption and its effects.
The full version of the ‘Independent Commission Against Corruption Act 1988 No 35’ can be read here –
Where is the ‘hell and fury’ outcome for those that are found to be corrupt?
We know that the Obeid and MacDonald corruption happened well outside the three-year rule referred to in Twomey’s story above – does that then mean they will escape any criminal charges?
The Act pertaining to ICAC’s powers to pursue guilty party’s stipulates the following:
Part 11 Section 114A
114A Disciplinary proceedings—taking action based on finding of corrupt conduct
(1) This section applies if a finding is made by the Commission in a report under section 74 that a public official has engaged, or has attempted to engage, in corrupt conduct.
(2) Disciplinary proceedings in connection with the employment of the public official may be taken by the employer of the public official on the ground of the conduct of the public official on which the finding was based.
(3) The person or body determining the disciplinary proceedings:
(a) is not required to further investigate whether that conduct occurred, and
(b) may take any disciplinary or other action against the public official of a kind that the person or body may otherwise take in disciplinary proceedings against any such public official, and
(c) is to give the public official an opportunity to make a submission in relation to any proposed disciplinary or other action.
(4) Any such disciplinary or other action is taken to be action under the law relating to the taking of disciplinary proceedings against the public official and that law (including any right to appeal against or seek a review of the action) applies accordingly.
(5) Evidence given to the Commission by the public official may be admitted and used in disciplinary proceedings against the public official that are authorised by this section (and in any related appeal or review proceedings) despite sections 26 and 37 or any other law. However, the admission and use of the evidence in those proceedings does not cause it to be admissible against the public official in any other proceedings.
(6) The regulations may do any of the following:
(a) exclude any proceedings against a public official from the operation of this section,
(b) declare that any proceedings against a public official are disciplinary proceedings in connection with the employment of a public official for the purposes of this section.
(7) This section does not apply:
(a) to a finding of corrupt conduct that is made before the commencement of this section, or
(b) to any evidence given before that commencement that would not at that time have been admissible in disciplinary proceedings.
(8) In this section:
(a) engagement under a contract for services, and
(b) appointment as a statutory officer to whom a declaration under subsection (6) (b) applies.
evidence given to the Commission means:
(a) a statement of information, or a document or other thing, produced in response to a notice by the Commission, and
(b) an answer made, or a document or other thing produced, by a person summoned to attend or appearing before the Commission at a compulsory examination or public inquiry.
The seriousness and systematic corruption that Obeid and several other exposed MP’s over the last 18 months or so – and all to be seen as having acted criminally – face public ridicule for their actions. Yet the ICAC provisions for punishment extend to the above clauses extracted from the ACT.
That would mean that any recommendations made by the ICAC report would be for other agencies to pursue and for them to establish what laws have been broken and press criminal charges. The findings of ICAC do not prove guilt to the satisfaction of a court proceeding. In fact – this inadequacy demonstrates why politicians who drafted the ICAC charter were negligent in their diligence – and deliberately so for not setting out a crime and punishment section as a part of the ACT.
One has to ask was this an oversight with sinister motives?
Ms Twomey – the author of the story appearing in ‘The Australian’ has outlined just how ICAC is a ‘toothless tiger’ – what the public want to know is what new Premier Mike Baird is going to do about it?