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Parker, Nicholas --- "Intr-Icac-Ies Of Legal Responses To Corruption: A Comparative Analysis Of New South Wales And The United States Of America" [2022] UNSWLawJlStuS 10; (2022) UNSWLJ Student Series No 22-10


INTR–ICAC–IES OF LEGAL RESPONSES TO CORRUPTION: A COMPARATIVE ANALYSIS OF NEW SOUTH WALES AND THE UNITED STATES OF AMERICA

Nicholas Parker[1]*

I INTRODUCTION

It is uncontroversial that governments in the United States of America and Australia both consider the investigation and punishment of public corruption a core tenet of servicing the public interest.[1] However, a comparative analysis of federal anti-corruption mechanisms in the United States with those in New South Wales reveals fundamentally divergent approaches to regulating the conduct of public officials. As a result, a deeper interrogation of these differences, especially in relation to each jurisdiction’s legal construction of corrupt conduct, institutional independence and structure in investigations, and the role played by public opinion and transparency as a pacifier for the politicisation of enforcement proceedings, poses deeper normative reflections from which both jurisdictions may refine and develop their anti-corruption frameworks, and their own definitions of corruption.

In particular, the inclusion of international comparisons with respect to anti-corruption frameworks is of inherent value to domestic Australian political and legal debate. This is evident given the rising relevance of novel corruption allegations that sit uneasily with the traditional construction of bribery and conflict of interest crimes, such as the high-profile resignation of former New South Wales Premier Gladys Berejiklian, and the conviction of Eddie Obeid due to investigations by the Independent Commission Against Corruption. Similarly, the emergence of competing proposals for a ‘Federal ICAC’ or ‘Commonwealth Integrity Commission’ by both major Australian political parties adds further value to a comparative analysis at the formative stages of the legislative process.[2]

To this end, this article makes three claims: first, that the legal construction of ‘corrupt’ conduct is strongly influenced by context, and not always directly comparable. In this sense, the article argues that, whilst New South Wales and the United States both criminalise ‘corruption’, the actual conduct covered is defined by different elements and tests; namely, where proscriptive federal statute codifies narrowly defined forms of conduct in the United States, enforceable across a patchwork of enforcement bodies within the executive which access enforcement through the judiciary, New South Wales utilises a split criminal-regulatory approach which has limited codification of criminal corruption, due in part to the development of the Independent Commission Against Corruption – a fully-integrated, comprehensive anti-corruption agency.

On this basis, the article’s second claim is that a more relevant functional aspect for comparison between the two jurisdictions is their broader structural approach to anti-corruption strategies. The article will make the argument that, although their legal frameworks differ considerably, the anti-corruption strategies of the United States and New South Wales are similar in the sense that their rationale is grounded upon the notion that governments with officials who are free from corruption are more legitimate public representatives, and that therefore preventing corrupt conduct is in the public interest.[3] Accordingly, the article will suggest that comparative insights are of particular relevance from a reform perspective in Australia, given that the main driver of legitimacy under the New South Wales model is the institutionalisation of independent anti-corruption bodies, which is absent in the United States model altogether. In contrast, the United States model for enforcement is more flexible, and is implemented through criminal prosecution and ad hoc investigations by special counsel that derives its legitimacy from more nuanced expressions of independence, and the constitutional authority of the judiciary.[4] Accordingly, the degree to which this nuanced approach has been successful, or less so, in the United States is of relevance to the Australian reform debate.

Within this comparison, the article will seek to problematise the structural differences between ‘integrated’ and ‘ad hoc’ approaches to the functional aspect of anti-corruption strategies, as well as draw parallels between similar criticisms of both frameworks in relation to resisting politicisation, both real and perceived, as well as their capacity to prevent corruption through education and clear standard-setting. In particular, the examples of the Maguire-Berejiklian investigations and the Metherell-Greiner scandal, when compared to the Kerr-Clinton investigation in the United States,[5] shows that the institutionalisation of an integrated independent anti-corruption agency has the capacity to consistently cast a broader scope of investigations into public officials than an ad hoc approach, thereby bringing a wider range of conduct into the public domain.[6] However, as a direct consequence of this characteristic, the ‘integrated’ approach also risks losing the perceived legitimacy and authoritativeness of judicial findings arising from a higher threshold of criminal prosecution, and thereby has the potential to intervene in the day-to-day function of government in a clumsy, or even arbitrary manner.[7]

Finally, the third claim made by this article is that the functional aspect of anti-corruption structures is inherently accompanied by a consideration of the conceptual role both models hold for seeking legitimacy by connecting their function to the public interest. In this sense, another functional comparison arises between the ‘integrated’ and ‘ad hoc’ approach, whereby the New South Wales model’s approach to investigations indirectly conceptualises the ‘public interest’ through the judgement and decisions of the ICAC’s Commissioners, whereas the United States’ utilisation of Special Counsel investigations poses a more direct imposition of public opinion by directly seeking an undertaking of impartiality from the Executive as part of the ad hoc originating process, so as to render any attempt to politicise any investigation electorally detrimental.[8] Though not without its risks, as evidenced by the political challenges faced throughout Special Counsel Robert Mueller III’s investigation of the Trump Administration, this article therefore recommends that encouraging a more direct conceptualisation of public interest in New South Wales’ ‘integrated’ approach has the potential to benefit the perceived legitimacy of corruption investigations in conduct that warrants investigation, albeit falls within more contested or nuanced forms of public misconduct.

II METHODOLOGY AND SCOPE

A Dealing with Models from Different Levels of Government

Before conducting any analysis, it is important to make three qualifications with regard to the scope and methodology of this paper. First, the comparison between anti-corruption frameworks at a state and federal level requires further justification. To this end, comparing New South Wales’ ICAC model to the United States’ federal approach is a valid comparison because of the capacity for both models to be applied at any level of government; previous academic treatment has directly compared state and federal mechanisms in the past.[9] Additionally, with specific regard to the United States, the comparison is also justifiable by the fact that the federal framework can and has been utilised in eradicating corruption at in state-level politics, which is relevant to the Australian experience both in terms of conceptual questions regarding federal structures for anti-corruption mechanisms, as well as demonstrating the functional similarities between the two systems.[11] In this sense, the differences between a state and federal government is not an insurmountable difference from a comparative perspective, given the systems’ function is similar.[12]

B Utilising a Broad Functional Aspect: Legal Responses to Corruption

As a consequence of the qualification that state and federal anti-corruption mechanisms are functionally comparable, a second further qualification made by this paper is that the methodology of comparative analysis is not affected by the identification of a functional aspect broadly defined around legal responses to corruption generally. Relevantly, the utilisation of a broader functional aspect is a recognised tool of comparative analysis where there is a lack of functional equivalent between two jurisdictions, such that the difference in state and federal levels of government, combined with fundamental legal differences between an ‘integrated’ and ‘ad hoc’ approach, should properly be dealt with by considering the two systems under a broader thematic lens.[13] Accordingly, the paper follows the methodological approach of comparative analysis which looks to functional differences to construct more complex understandings of a subject.[14]

C Limiting Scope to Deal with ‘Edge’ Cases: Corruption in the Form of Favour Reciprocation and Non-Pecuniary Benefits or Gratuities

Finally, it should also be noted that the area of political corruption, especially in relation to political donations, electoral law, and lobbying, are well-covered areas of academic interest.[15] However, it is equally important to clarify at the outset that this paper does not seek to analyse these forms of corruption, chiefly because they are more conventional in nature and already subject to specific organised crime, anti-bribery, and foreign influence legislation.[16] Rather, the paper seeks to look into forms of ‘edge case’ corruption; namely, conduct which falls outside the traditional, direct types of corrupt practices, such as pecuniary bribery, and rather forms part of ‘new’ corruption typology, such as non-pecuniary benefits like political appointments, and favour reciprocation.[17] The nature of these cases, which fit uneasily into traditional legal constructions of bribery and corruption, also renders them particularly susceptible to politicisation, as has been exemplified by recent examples of allegations which may fall under ‘new’ corruption typology, such as the Berejiklian scandal.[18]

Similarly, although political donations and electoral law receive considerable academic treatment, the reality is that the structural diversity and scope of corrupt conduct extends far beyond this narrow lens; a 2007 ‘Review of anti-corruption strategies’ by the Australian Institute of Criminology identified payments to political parties as merely one of eleven different structural processes which drive the corruption of a broader governmental system.[19] In this sense, the confluence of examples of ‘new’ corruption emerging outside traditional conceptualisations of corruption, as well as a comparative dearth of research outside of political donation and electoral law, means that an analysis dedicated to a corruption typology which deals with implicit favour reciprocation and political appointments is a timely and relevant academic exercise.

III WHAT IS CORRUPT CONDUCT?

A comparison of the United States and New South Wales reveals that the definition of ‘corrupt’ conduct from a legal perspective depends greatly upon legislative and political context. Crucially, New South Wales attempts to utilise a ‘fully-integrated’ approach, within which the Independent Commission Against Corruption is responsible for the prevention, investigation, and, at least in part, enforcement of the legislative definition of corrupt conduct contained in an enabling statute,[20] whereas the United States approach is typified by a patchwork of agencies and executive bodies which investigate against criminal standards of wrongdoing that are enforced by the Courts at first instance.[21]

A New South Wales – the Independent Commission Against Corruption Act 1988

Despite appearing at a simplified level as a ‘fully-integrated’ corruption agency, the sources of law surrounding corruption in New South Wales extend beyond the Independent Commission Against Corruption.[22] Section 8(1) of the Independent Commission Against Corruption Act 1988 (NSW) (‘the Act’) contains the statutory definition of corrupt conduct.[23] Relevant to the question of ‘new corruption’, or more accurately, corruption which derives non-pecuniary benefit for the public official,[24] the provision is drafted broadly, and encompasses “any conduct of any person that adversely affects... the honest or impartial exercise of official functions by any public official”,[25] “involves the dishonest or partial exercise of his or her official functions”,[26] or “involves a breach of public trust”.[27] Further, s 8(2) of the Act specifies forms of conduct which constitutes corrupt conduct, including “official misconduct”.[28] The amended s 8(2A) also adds specified corrupt conduct in relation to collusive tendering,[29] and “fraudulently obtaining or retaining employment or appointment as a public official.[30] Accordingly, at first instance, the definition of ‘corrupt conduct’ in New South Wales appears comprehensively broad to accommodate forms of corruption that are not related to pecuniary benefit.

However, various limitations are also imposed by further statutory provisions, as well as empirical differences when the s 8 definition is implemented in practice.[31] Chief amongst these is the limitation in s 9, which further requires that corrupt conduct must also constitute or involve any of: a criminal offence;[32] disciplinary offence;[33] grounds for dismissal;[34] or, in the case of an elected official, a “substantial breach of an applicable code of conduct”.[35]

This limitation received extensive judicial consideration by the New South Wales Supreme Court of Appeal in Greiner v Independent Commission Against Corruption.[36] In Greiner, both majority judgments (Gleeson CJ and Priestly JA) expressed concern over the lack of clear and applicable standards by which to determine whether alleged conduct breaches s 9.[37] In particular, Priestly JA’s judgment engaged in a lengthy application of statutory interpretation principles in relation to s 9(1).[38] Accordingly, whilst it could be asserted that the various elements which could satisfy s 9 should be decided under the same test of whether the “facts if proved at a trial [would] constitute reasonable grounds for [a criminal offence, disciplinary offence, substantial breach of a code of conduct, or] dismissal”, the statute was not forthcoming on the relevant rule or standard by which ‘reasonable grounds’ could be established.[39] This impasse was further compounded by the fact that both majority judgments agreed on the need for the ICAC to make findings in accordance with “objective standards” comprising both legal and non-legal approaches,[40] whilst also opining, on the part of Priestly JA, that the Act could not be interpreted to have intended for ICAC to have the power to divine “a new standard [for] finding the conduct of a public official has been corrupt”.[41]

In this sense, although the Act appears to provide a comprehensive definition for corrupt conduct, the reality in Greiner showed that the broad drafting contained in ss 8 and 9 also had the unintended consequence of obfuscating exactly how and on what basis the ICAC could arrive at a finding of corrupt conduct. Worst still for the ICAC, this lack of clarity proved terminal to their legal position in circumstances where the alleged breach of ss 8 and 9 involved a previously uncontemplated or unprecedented context, or one where the form of corrupt conduct relied upon subjective moral and ethical standards, such as the case in Greiner, which concerned the offer of a public appointment to a Member of Parliament in exchange for their retirement from politics.[42] As a result, the legal definition of corrupt conduct in New South Wales, whilst workable, still contains an inherent indeterminacy with respect to the actual conduct encompassed by ss 8 and 9 of the Act.

Far from a merely academic consideration, the indeterminacy built into the New South Wales definition of corrupt conduct is pertinently relevant to the ICAC’s real-world practices. Since its creation, the ICAC has conducted in investigations resulting in the resignation of three New South Wales Premiers without a subsequent criminal finding of corruption, or in the case of Greiner, a finding under the definition in the Act which was overturned.[43] Accordingly, cases which lack the traditional elements of bribery or illicit personal gain in a conventional sense have resulted in wide-reaching political ramifications. In addition to the Greiner example of political appointments as a form of favour reciprocation, a failure by former Premier Barry O’Farrell to testify to remembering and declaring the donation of a bottle of Penfolds wine was sufficient to warrant investigation by the ICAC, however ultimately was not found to constitute corrupt conduct.[44] Similarly, the ongoing investigation into Gladys Berejiklian precipitates not from a direct pecuniary gain in relation to actions taken in public office, but rather in relation to her dealings with an undeclared intimate partner who was also a public official.[45]

Irrespective of whether a finding of corrupt conduct is or was made, these examples demonstrate that the ICAC interprets the scope of the ss 8 and 9 definitions ‘could’ encompass forms of corruption which involve mere favour reciprocation and non-pecuniary benefits, inasmuch as such actions by leading political figures has justified investigation.[46] Furthermore, the established practice of resignation by elected officials as a result of an ICAC investigations, as opposed to an actual finding of corrupt conduct, makes the indeterminacy of the definition of corrupt conduct, and therefore the scope of conduct interpreted as falling under the purview of the ICAC, an area which warrants a comparative analysis.

B New South Wales – Criminal Offences

Additionally, corrupt conduct under the Act does not necessarily constitute a criminal offence.[47] In the Second Reading Speech, Premier Greiner explicitly stated that the ICAC “will not be a crime commission”, and that the Act “makes specific provision to allow the commission to refer matters to other investigatory agencies to be dealt with”, which is now contained in s 53.[48] To this end, it is a fallacy to say that the ICAC is ‘fully-integrated’; the consideration of criminal sanctions for corruption, and their enforcement through the judiciary, are still present in, and relevant to, the anti-corruption framework in New South Wales. Rather, the wording of s 9(1) of the Act, which gives direct reference to criminal offences as a defining factor of corrupt conduct, and the intended role of the ICAC as a referral body to law enforcement agencies, means that clear and comprehensive criminal provisions for corrupt conduct should be considered necessary to ensure the effectiveness of the Act.[49] The reference to criminal provisions is also particularly relevant given the addition of s 12A of the Act, which requires the ICAC to prioritise investigations into serious and systemic corrupt conduct.[50]

In this respect, the criminal provisions for corruption in New South Wales are sorely lacking, chiefly because they fail to capture instances of corruption in the form of favour reciprocation or non-pecuniary benefits. Codification of an offence that directly relates to the corruption of public officials through incentives or gratuities is limited to s 249B of the Crimes Act 1900 (NSW). Section 249B makes it an offence for a person to receive or solicit from another person any inducement or reward on account of conduct in relation to the affairs or business of the principal.[51] The limited utility of s 249B is self-evident; on the provision’s ordinary meaning, clarification would be needed to confirm whether the offence’s actus reus requires an exchange between at least two people, and whether the mens rea comprises a intended connection between the inducement and action taken is required.[52] Similarly, the strict elements contained under s 249B hardly covers the field of corrupt conduct, which by nature is often secretive, difficult to establish, and situation-dependent.[53] As far back as 1992, the New South Wales government has described s 249B as being “developed centuries ago in the context of a very different of public administration”, and “uncertain in their scope and content”, making “the role of the [then] newly established ICAC more difficult”.[54] Plans for reform in response to these concerns were abandoned in 1994.[55]

These concerns were further illustrated in Obeid v R, which saw the Prosecution overlook provisions in the Crimes Act, and instead opt to rely upon the common law crime of misconduct in public office so as to hold Mr Obeid accountable for obtaining personal benefit by dishonestly intervening in governmental decisions to serve his private business interests.[56] Affirming the decision in R v Quach,[57] Bathurst CJ outlined the elements of a misconduct in public office offence as a public official in the course of their office wilfully misconducting themselves without reasonable excuse or justification in a manner that is serious and merits criminal punishment.[58] Again, this characterisation of the offence is little more than a restatement of the offence itself, and leaves interpretation largely open to a case-by-case “regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve, and the nature and extent of the departure from those objects”.[59]

Whilst satisfactory for the purposes of allowing the Court to guide its decision process, this test does not make clear to public officials or the public what conduct this test will identify as corrupt conduct, nor the standard against which this should be measured. Indeed, much of the caselaw informing wilful misconduct dealt with a civil standard, as opposed to a criminal one.[60] As a result, little guidance is afforded to the ICAC in determining its own definition of corrupt conduct in light of s 9 of the Act. In this sense, the lack of clarity and modernity contained in the common law offence of public misconduct fails to abate the indeterminacy of the definition of ‘corrupt conduct’ in the ICAC definition of corrupt conduct, and if anything, compounds it.

In summary, the challenges to the effective function of the New South Wales anti-corruption framework which might benefit from a comparative perspective deal primarily with the lack of specific corruption offences, and consequently a persistent ambiguity over the relevant standard that should be applied by enforcement bodies. This in turn leads to a lack of practical clarity for public officials, as well as the potential for criticisms over a disconnect between transgressions investigated by the ICAC, and the criminal provisions that fail in their intended function to guide the direction Commissioners’ inquiries.

C The United States – Codified Criminal Provisions, Narrowly Defined

The United States’ anti-corruption framework is functionally different from New South Wales. It employs a comprehensive set of specific criminal provisions which systematically define and criminalise varieties of corrupt conduct, rather than relying on general principles.[61] However, the caselaw associated with strict codification also suggests that New South Wales might also consider the potential for a narrowing of conduct which falls under the definition of corruption, requiring the United States’ experience to raise questions of balance, rather than carte blanche adoption.

Title 18, Chapter 11 of the United States Code provides 25 provisions dealing with ‘bribery, graft, and conflict of interest’.[62] The closest functional equivalent to s 249B of the Crimes Act 1900 (NSW) is 18 USC § 201, which prohibits the bribery of public officials.[63] Unlike New South Wales, § 201 explicitly includes the corrupt giving, offer, or promise of “anything of value” to any public official for the purposes of influencing any official act.[64] The provision avoids the need to define an ‘inducement or reward’ by instead focusing on the relevant act of offer or promise, and clarifies the relevant mens rea for the offence by specifying the need for an intentional relationship between the offer or promise and an official act.[65] Similarly, obviating the need for resort to common law offences in instances of corruption which do not fall directly within the definition of bribery, 18 USC § 666 deals with theft from government funds through abuse of position, as well as various conflict of interest provisions from §§ 203-209. In this sense, the more comprehensive criminal provisions in the United States can demonstrably be seen to allay the ambiguities contained in the New South Wales framework.

However, adopting this approach – in effect, indirectly offering guidance to the ICAC by furnishing clearer authorities and standards for the purposes of s 9 – would also narrow the criminal conduct that ICAC may seek to investigate under the definition of corrupt conduct. This is certainly the empirical perspective offered in judicial treatment of § 201. In a unanimous decision, the United States Supreme Court in McDonnell v US read down the scope of ‘official act’ to only include conduct which involved the formal exercise of government power.[66] Accordingly, non-official conduct which may form part of corrupt favour reciprocation or non-pecuniary benefit, such as arranging meetings, or making recommendations for appointments, falls outside the scope of § 201.[67] In this sense, the form of conduct investigated by the ICAC in the Berejiklian and Metherell-Greiner scandals would patently fall short of the standard set by § 201.

Nevertheless, it should be noted that the High Court of Australia in ICAC v Cunneen appeared to also restrict the ICAC’s jurisdiction to official actions.[68] Though the degree to which this reading of the Court’s judgment might not be reflected by certain political opinions arising out of the Berejiklian scandal, the point remains that a narrowed scope attached to the definition of corrupt conduct, at least in part, through codified criminal sanctions referred to in s 9 of the Act, would not be without precedent in an Australian context.[69]

Also relevant to the reform debate in New South Wales is the reasoning of the Supreme Court behind excluding certain forms of favour reciprocation and non-pecuniary benefit from the scope of § 201, even though the statute was drafted to include benefits other than pecuniary gain. Namely, the Court rebuffed the Government’s attempt to interpret ‘official act’ expansively because of the risk that the normal conduct of elected officials as part of advocacy and day-to-day government business could potentially fall under § 201, and therefore reduce the effectiveness of public officials to represent their constituency.[70] This justification might be applied in an Australian context to explain why narrower codification may be preferable to broader definitions of corruption on public policy grounds, even if the opportunity cost is the exclusion of some low-impact forms of misconduct from scope.

Accordingly, a comparative assessment of the United States’ statutory construction of corrupt conduct is functionally different from New South Wales.[71] However, the broader functional equivalence between legal responses to corruption exemplified by 18 USC Ch 11 and the ICAC Act shows that longstanding criticisms regarding New South Wales’ lack of specific provisions to define forms of corrupt conduct can be ameliorated by codified provisions which also provides guidance to investigative bodies from a legal and public policy perspective. Nevertheless, a relevant question of balancing codification with capturing the desired forms of corrupt conduct persists, and adaptation to make provisions more, or less, inclusive would be required to adapt the United States’ approach to an Australian context.

IV HOW IS CORRUPTION INVESTIGATED?

Another functional difference between the United States and New South Wales relates to the investigative bodies that form part of their legal responses to corruption. Namely, where New South Wales’ ‘fully integrated’ approach places the investigative and hearings process within the broader ICAC institutional structure, the United States employs a more ‘ad hoc’ approach, whereby investigations concerning the offences in Title 18 may originate from the Public Integrity Division of the Department of Justice, or through the appointment of ad hoc ‘Special Counsel’ by the President.[72]

However, a comparative analysis that looks to broader functional equivalencies as opposed to simply identifying functional difference reveals deeper similarities between the two approaches. As touched on earlier, Greiner, Cunneen, and the addition of s 12A of the ICAC Act, which requires the ICAC to direct its attention to serious and systemic corrupt conduct, both show the efforts taken by Parliament and the Court to structurally reform ICAC to avoid disruptions to government business due to subjective or morally-weighted investigations, or perhaps ones perceived as purely personally motivated.[73] That said, the use of ad hoc Special Counsel investigations has proven to still attract similar criticism, showing that the development of institutional norms is not necessarily the main driver of sub-optimal investigative decisions.[74] Under the previous ‘Independent Counsel’ moniker, ad hoc tribunals still attracted criticism in the United States for perceived failings in avoiding investigations based on moral or subjective agendas.[75] Certainly, a broad parallel might be drawn to the implication of President Bill Clinton in the Kerr Investigation due to his relationship with Monica Lewinsky with the implication of former Premier Berejiklian in the ICAC’s investigations of Daryl Maguire due to their relationship.[76] In this sense, the unavoidable reality that anti-corruption activities inherently exist within a political domain makes both integrated and ad hoc investigation bodies susceptible to perceptions of bias.[77]

That said, a conceptual difference exists in relation to the jurisdictions’ rationalisation of their interaction with the ‘public interest’. Where s 12 of the ICAC Act requires the protection of public interest a ‘paramount concern’, public interest is more directly invoked through the Special Counsel model by requiring the Attorney General to make a public commitment to respect the independence of any resulting investigation; the theory being that, in the event of a political intervention, the public interest manifests in part electorally by evaluating whether an Attorney General had ‘good reasons’ to intervene in or not.[78]

In this sense, the functional aspect of both investigative models developing institutional legitimacy through harnessing public support can be achieved, at least conceptually, in different ways. Certainly, the United States’ model has its limitations; deferring to the discretion of Executive Officials may have been an effective nudge towards balanced and responsible governance in the past, however the experience of Attorney General Sessions in response to ongoing attempts at intervention by President Donald Trump in the Robert Mueller investigation shows that, even when dealing with issues not directly related to conventional corruption, the potential for unwarranted politicisation of ad hoc investigations under the Special Counsel model is evidently a real danger.[79]

Nevertheless, contemplating different conceptualisations of public interest is still of relevance from a New South Wales perspective. The recent Berejiklian scandal drew criticism from some academics due to the inopportune timing of a public announcement that the former Premier was being investigated by ICAC during the third wave of the COVID-19 pandemic.[80] In this sense, if such an argument is taken on face value, there may be merit for some input from Executive Officers to the ICAC in relation to procedural decisions entirely within the Commission’s control. Following the theory with the Special Counsel, exchanging the opportunity for an appropriate level of consultation for the requirement of Executive endorsement of procedural decisions may help strike a balance that enables the ICAC to conduct its investigations without being perceived as unduly intervening in the political day-to-day operations of government. Although far from a well-supported proposal, the United States’ different functional rationalisation of public interest with respect to anti-corruption investigative bodies at least warrants further consideration in an Australian context.

V CONCLUSION

The functional differences between legal responses to corruption in the United States and New South Wales pose important normative questions for those pursuing a reform agenda of ICAC. Namely, the development of strictly defined and codified sources of law with respect to defining corruption would avoid longstanding ambiguities in the New South Wales system and give greater direction and clarity to the ICAC’s approach. Similarly, although the use of ad hoc investigative bodies does not solve perceptions that anti-corruption bodies are susceptible to politicisation, the resultant idiosyncrasies of the United States’ rationalisation of public interest may, with the benefit of the ICAC’s existing institutional structure, help to legitimise its conduct through more transparent communication with public decision makers.

VI BIBLIOGRAPHY

A Articles/Books/Reports

Allars, Margaret, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107

Bassett, Elisabeth, ‘Reform Through Exposure’ (2008) 57 Emory Law Journal 1049

Blanch, Reginald, Investigation into Dealings Between Australian Water Holdings Pty Ltd and Sydney Water Corporation and Related Matters (ICAC Report, August 2017)

Coan, Andrew, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019)

Cowdrey, Nicholas, ‘Lessons from the NSW ICAC: ‘This Watchdog Has Teeth’ (Conference Paper, Accountability and the Law Conference, August 2017)

Helibrunn, John, Anti-Corruption Commissions: Panacea or Real Medicine to Fight Corruption? (World Bank Institute Report No 37234, 2004)

Hutter, Michael, Prosecuting Public Officials/Figures for Corruption: The Approach in the United States (American Bar Association Report, 2021)

Independent Commission Against Corruption, Corruption and Integrity in the NSW Public Sector: An Assessment of Current Trends and Events (Report, December 2018)

Jackson, Michael and Rodney Smith, ‘Everyone’s Doing it! Codes of Ethics and New South Wales Parliamentarians’ Perceptions of Corruption’ (1995) 54(4) Australian Journal of Public Administration 483

Maor, Moshe, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1

McCusker, Rob, Review of Anti-Corruption Strategies (Australian Institute of Criminology Report No 23, 2006)

Murray, Cameron and Paul Frijters, Game of Mates – How Favours Bleed the Nation (2017), 44

Organisation for Economic Co-operation and Development, Specialised Anti-Corruption Institutions: Review of Models (OECD Publishing, 2nd ed, 2013)

Orr, Graeme, ‘Dealing in Votes: Electoral Bribery and its Regulation in Australia’ (PhD Thesis, Griffith University, 2005)

Reitz, John, ‘How to do Comparative Law’ (1998) 46 American Journal of Comparative Law 617

Roth, Lenny, ‘Corruption Offences’ (e-brief 11/2013, Parliamentary Research Service, New South Wales)

Sabic-El-Rayess, Amra and Naheed Natasha Mansur, ‘Favor Reciprocation Theory in Education: New Corruption Typology’ (2016) 50 International Journal of Educational Development 20

Scoville, Ryan, ‘Unqualified Ambassadors’ (2019) 69 Duke Law Journal 71

Taylor, Darian, ‘Effect of McDonnell v US Definition of ‘Official Act’ Upon Bribery Prosecution Involving Public Official Under 18 USCA § 201’ (2018) 32 American Law Reports Fed 3d Art 6

B Cases

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125

Independent Commission Against Corruption v Cunneen [2015] HCA 14

McDonnell v United States, 136 US 2355 (2016)

Obeid v R (2017) 96 NSWLR 155

R v Quach (2010) 27 VLR 310

United States v Mississippi Valley Generating Co[1961] USSC 39; , 364 US 520 (1961)

United States v Sun-Diamond Growers of California, 526 US 1403 (1999)

C Legislation

Australian Federal Integrity Commission Bill 2020 (Cth)

Commonwealth Integrity Commission Bill 2020 (Cth)

Independent Commission Against Corruption Act 1988 (NSW)

Foreign Corrupt Practices Act of 1977, 15 USC

Foreign Influence Transparency Scheme Act 2018 (Cth)

18 USC Ch 11 (2018).

D Other

Australian Labor Party, ‘National Anti-Corruption Commission’, ALP Policies (Fact Sheet, 2021) <https://www.alp.org.au/media/2675/anti-corruption-factsheet.pdf>.

Clegg, Louise, ‘Important Questions Remain Unanswered in Margaret Cunneen Case’, Sydney Morning Herald (online, 16 April 2015) <https://www.smh.com.au/opinion/important-questions-remain-unanswered-in-margaret-cunneen-case-20150416-1mmlhr.html>

Dixon, Rosalind, ‘We Are in the Middle of an Emergency – The ICAC Should Have Waited’, Sydney Morning Herald (online, 3 October 2021) <https://www.smh.com.au/politics/nsw/we-are-in-the-middle-of-an-emergency-the-icac-should-have-waited-20211003-p58wsk.html>

Independent Commission Against Corruption, ‘Further Operation Keppel Public Inquiry’ (Press Release, ICAC) <https://www.icac.nsw.gov.au/media-centre/media-releases/2021-media-releases/further-operation-keppel-public-inquiry>

Marks, Andy, ‘Berejiklian’s Downfall Derailed a Career Built on Accountability and Control. Now Who Will Replace Her?’, The Conversation (online, 1 October 2021) <https://theconversation.com/berejiklians-downfall-derailed-a-career-built-on-accountability-and-control-now-who-will-replace-her-169093>

Monaghan, Olivia, ‘History Reappears: How O’Farrell and Greiner Fell Foul of ICAC’, The Conversation (online, 16 April 2014) <https://theconversation.com/history-repeats-how-ofarrell-and-greiner-fell-foul-of-icac-25701>


* BA (Dist) LLB (Dist) (UNSW). Thanks to Professor Michael Legg for his support and advice, and to Jess for editorial assistance. All opinions and errors are solely attributable to the author.

[1] United States v Mississippi Valley Generating Co, 364 US 520 (1961), 523; Independent Commission Against Corruption Act 1988 (NSW) s 2A (‘ICAC Act’).

[2] Commonwealth Integrity Commission Bill 2020 (Cth); Australian Federal Integrity Commission Bill 2020 (Cth); Australian Labor Party, ‘National Anti-Corruption Commission’, ALP Policies (Fact Sheet, 2021) <https://www.alp.org.au/media/2675/anti-corruption-factsheet.pdf>.

[3] United States v Mississippi Valley Generating Co, 364 US 520 (1961); Independent Commission Against Corruption Act 1988 (NSW) s 2A (‘the Act’).

[4] Andrew Coan, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019) 87-88; Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 16-17.

[5] Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 16-17, 18-21; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.

[6] Organisation for Economic Co-operation and Development, Specialised Anti-Corruption Institutions: Review of Models (OECD Publishing, 2nd ed, 2013), 13.

[7] John Helibrunn, Anti-Corruption Commissions: Panacea or Real Medicine to Fight Corruption? (World Bank Institute Report No 37234, 2004) 1, 9.

[8] Andrew Coan, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019) 87-88.

[9] John Helibrunn, Anti-Corruption Commissions: Panacea or Real Medicine to Fight Corruption? (World Bank Institute Report No 37234, 2004); 10 Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1; Organisation for Economic Co-operation and Development, Specialised Anti-Corruption Institutions: Review of Models (OECD Publishing, 2nd ed, 2013).

[11] McDonnell v United States, 136 US 2355 (2016); Michael Hutter, Prosecuting Public Officials/Figures for Corruption: The Approach in the United States (American Bar Association Report, 2021) 4.

[12] John Reitz, ‘How to do Comparative Law’ (1998) 46 American Journal of Comparative Law 617, 623.

[13] John Reitz, ‘How to do Comparative Law’ (1998) 46 American Journal of Comparative Law 617, 623.

[14] John Reitz, ‘How to do Comparative Law’ (1998) 46 American Journal of Comparative Law 617, 623.

[15] Elisabeth Bassett, ‘Reform Through Exposure’ (2008) 57 Emory Law Journal 1049; Graeme Orr, ‘Dealing in Votes: Electoral Bribery and its Regulation in Australia’ (PhD Thesis, Griffith University, 2005); Ryan Scoville, ‘Unqualified Ambassadors’ (2019) 69 Duke Law Journal 71; Michael Jackson and Rodney Smith, ‘Everyone’s Doing it! Codes of Ethics and New South Wales Parliamentarians’ Perceptions of Corruption’ (1995) 54(4) Australian Journal of Public Administration 483.

[16] See for example Foreign Corrupt Practices Act of 1977, 15 USC §§ 78dd-1; Foreign Influence Transparency Scheme Act 2018 (Cth).

[17] Amra Sabic-El-Rayess and Naheed Natasha Mansur, ‘Favor Reciprocation Theory in Education: New Corruption Typology’ (2016) 50 International Journal of Educational Development 20, 21-22. See also, Independent Commission Against Corruption, Corruption and Integrity in the NSW Public Sector: An Assessment of Current Trends and Events (Report, December 2018), 36, 65, citing Cameron Murray and Paul Frijters, Game of Mates – How Favours Bleed the Nation (2017), 44.

[18] Rosalind Dixon, ‘We Are in the Middle of an Emergency – The ICAC Should Have Waited’, Sydney Morning Herald (online, 3 October 2021) <https://www.smh.com.au/politics/nsw/we-are-in-the-middle-of-an-emergency-the-icac-should-have-waited-20211003-p58wsk.html>.

[19] Rob McCusker, Review of Anti-Corruption Strategies (Australian Institute of Criminology Report No 23, 2006) 5.

[20] ICAC Act (n 1) s 4.

[21] 18 USC §§ 201(c), 203-209, 666 (2018); Organisation for Economic Co-operation and Development, Specialised Anti-Corruption Institutions: Review of Models (OECD Publishing, 2nd ed, 2013), 13; Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 16-17.

[22] Organisation for Economic Co-operation and Development, Specialised Anti-Corruption Institutions: Review of Models (OECD Publishing, 2nd ed, 2013), 13.

[23] ICAC Act (n 1) ss 7, 8(1).

[24] Amra Sabic-El-Rayess and Naheed Natasha Mansur, ‘Favor Reciprocation Theory in Education: New Corruption Typology’ (2016) 50 International Journal of Educational Development 20, 21-22. See also, Independent Commission Against Corruption, Corruption and Integrity in the NSW Public Sector: An Assessment of Current Trends and Events (Report, December 2018), 36, 65, citing Cameron Murray and Paul Frijters, Game of Mates – How Favours Bleed the Nation (2017), 44.

[25] ICAC Act (n 1) s 8(1)(a).

[26] ICAC Act (n 1) s 8(1)(b).

[27] ICAC Act (n 1) s 8(1)(c).

[28] ICAC Act (n 1) s 8(2)(a).

[29] ICAC Act (n 1) s 8(2A)(a).

[30] ICAC Act (n 1) s 8(2A)(e).

[31] Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 111-112.

[32] ICAC Act (n 1) s 9(1)(a).

[33] ICAC Act (n 1) s 9(1)(b).

[34] ICAC Act (n 1) s 9(1)(c).

[35] ICAC Act (n 1) s 9(1)(d).

[36] (1992) 28 NSWLR 125.

[37] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 147 (Gleeson CJ), 190 (Priestly JA); Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 112-113.

[38] Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 113; Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 186-192 (Priestly JA).

[39] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 190 (Priestly JA); Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 113.

[40] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 147 (Gleeson CJ).

[41] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 192 (Priestly JA).

[42] Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 113.

[43] Andy Marks, ‘Berejiklian’s Downfall Derailed a Career Built on Accountability and Control. Now Who Will Replace Her?’, The Conversation (online, 1 October 2021) <https://theconversation.com/berejiklians-downfall-derailed-a-career-built-on-accountability-and-control-now-who-will-replace-her-169093>; Olivia Monaghan, ‘History Reappears: How O’Farrell and Greiner Fell Foul of ICAC’, The Conversation (online, 16 April 2014) <https://theconversation.com/history-repeats-how-ofarrell-and-greiner-fell-foul-of-icac-25701>; Reginald Blanch, Investigation into Dealings Between Australian Water Holdings Pty Ltd and Sydney Water Corporation and Related Matters (ICAC Report, August 2017), 12; Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 111-112.

[44] Reginald Blanch, Investigation into Dealings Between Australian Water Holdings Pty Ltd and Sydney Water Corporation and Related Matters (ICAC Report, August 2017), 12.

[45] Independent Commission Against Corruption, ‘Further Operation Keppel Public Inquiry’ (Press Release, ICAC) <https://www.icac.nsw.gov.au/media-centre/media-releases/2021-media-releases/further-operation-keppel-public-inquiry>.

[46] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, 186 (Priestly JA); Margaret Allars, ‘In Search of Legal Objective Standards: The Meaning of Greiner v Independent Commission Against Corruption(1994) 6(1) Current Issues in Criminal Justice 107, 112-113.

[47] ICAC Act (n 1) s 9(1)(b)-(d).

[48] Explanatory Memoranda, ICAC Act 1988 (NSW); in Nicholas Cowdrey, ‘Lessons from the NSW ICAC: ‘This Watchdog Has Teeth’ (Conference Paper, Accountability and the Law Conference, August 2017) 8; ICAC Act (n 1) s 53.

[49] Lenny Roth, ‘Corruption Offences’ (e-brief 11/2013, Parliamentary Research Service, New South Wales) 8.

[50] ICAC Act (n 1) s 12A.

[51] Crimes Act 1900 (NSW), s 249B.

[52] Lenny Roth, ‘Corruption Offences’ (e-brief 11/2013, Parliamentary Research Service, New South Wales) 8.

[53] Independent Commission Against Corruption v Cunneen [2015] HCA 14, 2, [4] (French CJ, Hayne, Kiefel and Nettle JJ).

[54] Independent Commission Against Corruption v Cunneen [2015] HCA 14, 2, [4] (French CJ, Hayne, Kiefel and Nettle JJ).

[55] Independent Commission Against Corruption v Cunneen [2015] HCA 14, 2, [4] (French CJ, Hayne, Kiefel and Nettle JJ).

[56] Obeid v R (2017) 96 NSWLR 155.

[57] Obeid v R (2017) 96 NSWLR 155, 175 [60] (Bathurst CJ), affirming R v Quach (2010) 27 VLR 310.

[58] Obeid v R (2017) 96 NSWLR 155, 175 [60].

[59] Obeid v R (2017) 96 NSWLR 155, 175 [60].

[60] Obeid v R (2017) 96 NSWLR 155, 176 [67].

[61] Michael Hutter, Prosecuting Public Officials/Figures for Corruption: The Approach in the United States (American Bar Association Report, 2021) 1; Darian Taylor, ‘Effect of McDonnell v US Definition of ‘Official Act’ Upon Bribery Prosecution Involving Public Official Under 18 USCA § 201’ (2018) 32 American Law Reports Fed 3d Art 6.

[62] 18 USC Ch 11 (2018).

[63] 18 USC § 201(b) (2018).

[64] 18 USC § 201(b)(1) (2018).

[65] Affirmed in United States v Sun-Diamond Growers of California, 526 US 1403, 1406 (1999).

[66] Darian Taylor, ‘Effect of McDonnell v US Definition of ‘Official Act’ Upon Bribery Prosecution Involving Public Official Under 18 USCA § 201’ (2018) 32 American Law Reports Fed 3d Art 6; McDonnell v United States, 136 US 2355, 2367-2373 (2016).

[67] McDonnell v United States, 136 US 2355, 2359 (2016).

[68] Independent Commission Against Corruption v Cunneen [2015] HCA 14, 20, [22] (French CJ, Hayne, Kiefel and Nettle JJ).

[69] Nicholas Cowdrey, ‘Lessons from the NSW ICAC: ‘This Watchdog Has Teeth’ (Conference Paper, Accountability and the Law Conference, August 2017) 21.

[70] McDonnell v United States, 136 US 2355, 2372-2373 (2016).

[71] John Reitz, ‘How to do Comparative Law’ (1998) 46 American Journal of Comparative Law 617, 623.

[72] Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 10; 5 USC § 1211 (1994).

[73] ICAC Act (n 1) s 12A; Louise Clegg, ‘Important Questions Remain Unanswered in Margaret Cunneen Case’, Sydney Morning Herald (online, 16 April 2015) <https://www.smh.com.au/opinion/important-questions-remain-unanswered-in-margaret-cunneen-case-20150416-1mmlhr.html>.

[74] Andrew Coan, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019) 87-88.

[75] Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 23.

[76] Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 23; Rosalind Dixon, ‘We Are in the Middle of an Emergency – The ICAC Should Have Waited’, Sydney Morning Herald (online, 3 October 2021) <https://www.smh.com.au/politics/nsw/we-are-in-the-middle-of-an-emergency-the-icac-should-have-waited-20211003-p58wsk.html>.

[77] Moshe Maor, ‘Feeling the Heat? Anticorruption Mechanisms in Comparative Perspective’ (2003) 17(1) Governance 1, 23.

[78] Andrew Coan, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019) 87-88.

[79] Andrew Coan, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford Scholarship, 2019) 87-88.

[80] Rosalind Dixon, ‘We Are in the Middle of an Emergency – The ICAC Should Have Waited’, Sydney Morning Herald (online, 3 October 2021) <https://www.smh.com.au/politics/nsw/we-are-in-the-middle-of-an-emergency-the-icac-should-have-waited-20211003-p58wsk.html>.


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