The Corruption and Crime Commission: its Beginnings, Purpose and Effectiveness

The Corruption and Crime

Commission: its beginnings, purpose and effectiveness

by Tse Chee Loo Senior Lawyer, Corruption and Crime Commission

‘Western Australians deserve a Police Service and a public sector that are free from the scourge of corruption’.1

The solution to the ‘scourge’ proposed by former Attorney General Jim McGinty in 2003 was the Corruption and Crime Commission. The Commission was touted as ‘one of the most powerful crime and corruption fighting bodies

in Australia’,2 that would be able to investigate Western

Australian Judges, Ministers, Members of Parliament, Police and other public officers.

Since its inception, the Commission has turned its attention to a diverse range of allegations of misconduct and, more recently, unexplained wealth allegations. In its early days, the Commission made headlines by probing into the proposed Smiths Beach Development in Yallingup - focussing on the attempts of former Premier, Brian Burke, and former Labor Government minister, Julian Grill, to influence public service officers involved in the development proposal.3 The Commission became associated in the public consciousness with Mr Burke wearing his signature panama hat.4 The Commission has since dealt with thousands of misconduct allegations, such as vehicle examiners accepting cash bribes to certify vehicles as roadworthy without examining them,5 senior executives at the North Metropolitan Health Service accepting bribes from contractors,6 and the use of electorate allowances by former Member of Parliament Mr Phillip Edman to fund visits to strip clubs, travel and entertainment for female companions, speeding infringements and expenses associated with Mr Edman’s private yacht.7 In 2019, the Commission’s identification of multiple, dubious payments authorised by the Acting Director-General of the Department of Communities led to an investigation of one of the largest cases of public sector fraud in Australia’s history. Following a cooperative investigation between the Commission, the WA Police Force and the Department of Communities, the WA Police Force charged Mr Paul Whyte with over 500 corruption offences, totalling in excess of $22 million. Mr Whyte pleaded guilty to 530 corruption charges and is yet to enter pleas in relation to further charges. The Commission’s remit extends beyond investigating individual wrongdoing, to reporting on broader issues of public importance - such as the use of Taser weapons by the WA Police Force8 and misconduct risks in WA prisons.9 In 2018, the Commission took on a much greater role in tackling organised crime when it was granted additional powers to investigate unexplained wealth and criminal benefits, and to apply to the courts to freeze and confiscate assets. This significant change has assisted the Commission to fulfil its statutory functions and purposes as a ‘Crime Commission’ to combat and reduce the incidence of organised crime and illicit activity in WA. In October last year, the Commission resolved its first unexplained wealth matter in the Supreme Court. The matter had been referred to the Commission by

the WA Police Force after an investigation by the Organised Crime Squad into activities of three persons, which did not lead to criminal charges by the Police. The Commission was successful in obtaining freezing orders over assets including cash, a Ferrari and Rolex watches. The Supreme Court made an unexplained wealth declaration for almost $630,000 and ordered the confiscation of cash and assets.

In the same month, the Supreme Court made a criminal benefits declaration against Mr Paul Whyte. The criminal benefit acquired by Mr Whyte, to the exclusion of others who benefitted from the commission of his confiscation offences, was assessed as over $11 million. The Commission obtained orders to confiscate assets including two Mosman Park properties, Mr Whyte’s interest in a government superannuation fund and his interest in his father’s deceased estate, as well as monies connected with his interest in horses. In 2020 the Commission had $13-15 million in assets subject to Supreme Court freezing orders in the course of performing its unexplained wealth function.

How does the Commission investigate allegations?

The Corruption and Crime Commission has significant powers of investigation in the Corruption, Crime and Misconduct Act 2003. If the Commission determines that a matter should be investigated, it can execute search warrants,10 apply for telecommunications service warrants and surveillance device warrants,11 conduct controlled operations,12 and compel persons to produce documents and other things.13 The Commission may conduct an examination for the purposes of an investigation.14 An examination is inquisitorial; that is, it is an inquiry conducted by the Commission to ascertain facts. It is not an adversarial contest between parties trying to prove or disprove a case. Whilst the purpose of a police investigation is to obtain evidence about an alleged offence, the Commission’s investigatory purposes are much broader. In a misconduct investigation, for example, the Commission must also seek to ascertain how the misconduct came about, why it was not prevented or detected, whether it extends beyond the individual agency, whether it is the result of systemic flaws and what organisation or policy or procedural changes are necessary to prevent or deal with such conduct in future.15

Commission examinations are conducted in private unless, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commission considers it is in the public interest to conduct a public examination.16 The Commission is not bound by the rules of evidence and can inform itself on any matter in such manner as it thinks fit.17

What happens when the Commission concludes an investigation?

Following a serious misconduct investigation, the Commission may prepare a report to Parliament which may include statements as to its assessments, opinions and recommendations.18 Before reporting any matters adverse to a person or body, the Commission must give the person or body a reasonable opportunity to make representations concerning those matters.19

The Commission’s functions do not include prosecuting individuals for offences arising from a Commission investigation, as the Court of Appeal made clear in A v Maughan [2016] WASCA 128. However the Commission can assemble evidence that may be admissible in a prosecution and furnish it to a prosecuting authority or recommend that consideration be given to prosecuting a particular person.20 In performing its unexplained wealth function, the Commission has authority to apply for unexplained wealth and criminal benefits declarations. To satisfy liabilities that arise from such declarations, the Commission applies to the court for property confiscation orders. These are key steps taken by the Commission to disrupt criminal activity by removing the financial motivation for it.

Has the Commission freed Western Australia from the scourge of corruption?

Unsurprisingly, given the extraordinary coercive powers the Commission has under the Act and the nature of the

conduct it uncovers, the Commission is not without its adversaries and vocal opponents. Commissioner John McKechnie QC, who applied for reappointment after being the only Commissioner to last a full five year term, observed, ‘Anyone who becomes Commissioner to earn the love and respect of their fellow human beings, had a poor choice of career adviser’.21 Given its purpose, the success of the Commission will never be measured by how many persons are convicted of criminal offences or have property confiscated as a result of its investigations. In terms of its unexplained wealth function, the true measure of its success is the extent to which it disrupts crime, particularly organised crime, by reducing the profitability of illegal activities - in turn, reducing harm to the community. In terms of its serious misconduct function, the measure of the Commission’s success is the extent to which it helps foster a culture of integrity in the public sector of Western Australia.22 Back in 2008, former Parliamentary Inspector Malcolm McCusker AC CVO QC, was asked to look forward to the year 2020. He expressed hope that the Commission would eventually come close to “working itself out of a job” by establishing a culture within the public service where there is a heightened awareness and consciousness of what is “misconduct”, and of the high standards expected in public office.23 It is trite to observe that ‘culture’ is a nebulous concept that is difficult to measure. Nevertheless, I put forward one figure for consideration. In the last financial year, the Commission assessed 5,743 allegations of serious misconduct, half of which were from members of the public, and 28 referrals of potential unexplained wealth matters.24 By way of comparison, the Commission assessed 2,410 allegations in the 2004-2005 financial year. This may demonstrate improvement in public confidence in the Commission’s work, greater understanding of what misconduct entails and more willingness to report suspected misconduct.

It is fitting to end with the words of the Commission’s longest serving Commissioner, John McKechnie, QC, speaking on International Anti-Corruption Day in 2016:

My message today, is for everyone in the community to express their abhorrence of corrupt behaviour, in any form they encounter, by reporting it to the Commission, or the Police, or the Public Sector Commissioner.

Make it too uncomfortable for the public officer who may be tempted to stray from their duty.

This is not a responsibility that just falls on the Commission or other official body. Everyone who loves this State of ours, has a responsibility not to stand by but to stand up to corrupt activity.

Anyone can make a difference.

Endnotes

1 Western Australia, Hansard, Legislative Assembly, 15 May 2003, 7861 (JA McGinty, Attorney-General). 2 Western Australia, Hansard, Legislative Assembly, 15 May 2003, 7861 (JA McGinty, Attorney-General). 3 Corruption and Crime Commission, Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup, 5 October 2007; Corruption and Crime Commission, Supplementary Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup, 27 August 2009. 4 Mr Burke was convicted of giving false evidence during a Commission examination and fined $25,000. Mr Burke, Mr Grill and former ministerial staffer Nathan Hondros were acquitted of corruption charges in the Supreme Court. The DPP’s appeal was successful but the retrial was abandoned when the DPP determined it was no longer in the public interest to continue. 5 Corruption and Crime Commission, Report on the Investigation of Alleged Public Sector Misconduct by Employees of the Department for Planning and Infrastructure in Relation to the Inspection, Licensing and Registration of Motor Vehicles, 16 September 2010; Corruption and Crime Commission, Report on the Activities of Certain Vehicle Examiners Contracted by the Department of Transport, 24 January 2017. 6 Corruption and Crime Commission, Report into bribery and corruption in maintenance and service contracts within North Metropolitan Health Service, 16 August 2018. 7 Corruption and Crime Commission, Misconduct risks in electorate allowances for Members of Parliament, 17 December 2019. 8 Corruption and Crime Commission, The Use of Taser Weapons by Western Australia Police, 4 October 2020. 9 Corruption and Crime Commission, Report into misconduct risks in WA prisons, 26 October 2018. 10 Corruption, Crime and Misconduct Act 2003 (CCM Act) s 101. 11 Pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) and Surveillance Devices Act 1998. 12 CCM Act s 121. 13 CCM Act ss 94 and 95. 14 CCM Act s 137. 15 The Hon. Len Roberts-Smith RFD, QC, The Role of the Corruption and Crime Commission in the Constitutional System of Western Australia, 19 August 2010. 16 CCM Act s 140. 17 CCM Act s 135. 18 CCM Act s 84. 19 CCM Act s 86. 20 CCM Act s 18(2)(h) and s 43. 21 Transcript of speech by John McKechnie QC for International Anti-Corruption Day 2016. 22 CCM Act s 7A; The Hon. Len Roberts-Smith RFD, QC, The Role of the Corruption and Crime Commission in the Constitutional System of Western Australia, 19 August 2010. 23 Malcolm McCusker AO QC, Parliamentary Inspector of the Corruption and Crime Commission, Public Accountability of the CCC, Vista Public Lecture Series: 2008 Theme: “20/20 Vision”, 18 June 2008, https://sat. justice.wa.gov.au/_files/Malcolm_McCusker_Lecture. pdf 24 Corruption and Crime Commission Annual Report 2019-2020.