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  • Writer's pictureStuart Jeffery

Common(wealth) Knowledge #59: Daryl Maguire and the differences between ICAC and court

Much of ICAC’s investigation into Daryl Maguire may not be admissible in his criminal trial.

With the Independent Commission Against Corruption’s report into former premier Gladys Berejiklian and MP Daryl Maguire being published, politicians from both major parties in New South Wales have supported the decision to only recommend charges into Daryl Maguire, despite some public backlash. But what makes ICAC different from a court, and why couldn’t ICAC bring criminal charges against Maguire itself?

New South Wales was the first place in Australia to implement an independent anti-corruption body, setting an example for the other states. It would be joined by Queensland in 1991 and Western Australia in 1992.

During the late 1970s and the 1980s, the three big buzzwords for politicians and lawyers alike were ‘corruption,’ ‘fairness,’ and ‘accountability.’ In addition to legislation targeted at stopping racial and sexual discrimination, this period also saw a massive overhaul of Australia’s administrative law system.

Administrative law is all about those three buzzwords, seeking to promote accountability in the executive branch of the government, ensuring that decisions made by the executive government were fair, both in the substance of those decisions and the procedure involved in the process, and rooting out corruption.

The Australian administrative law system was deemed inadequate, and so the Administrative Decisions (Judicial Review) Act 1977 (Cth) was passed to allow the Federal Court of Australia, established just one year earlier, to hear complaints about faults in decisions made by the executive government.

Prior to this, only the High Court of Australia had any administrative law jurisdiction, under Section 75(v) of the Australian Constitution. Royal Commissions were also available as a non-judicial review system, but this was an ‘ad hoc’ system, with Commissions established from time to time to investigate issues, whereas bodies like ICAC are permanent.

The Administrative Appeals Tribunal Act 1975 (Cth) led to the establishment of the AAT in 1976.

Although the courts could carry out ‘judicial review,’ where executive decision-makers made legal errors, the separation of powers meant that it couldn’t review some questions of unfairness, and could only tell the decision-maker to remake their decision, as the judiciary cannot remake an executive decision itself.

However, the AAT is part of the executive. This meant that it could override the decision-maker itself, unlike the courts. It had the power to conduct ‘merits review,’ reviewing non-legal errors of unfairness.

Although not directly linked to administrative law, this period also saw the 1977 referendum, which imposed a mandatory retirement age of 70 on all new High Court judges, and the investigation into Justice Lionel Murphy, a former Labor Senator, in the 1980s.

The ADJR Act and other reforms were brought in just in time because the 1980s would see a number of corruption allegations against various state governments.

The most famous of these is the Fitzgerald Inquiry into corruption in Queensland’s government under Nationals Premier Joh Bjelke-Petersen. Others included the WA Inc scandal, where the Western Australian government got involved with private sector corporations and lost over $600 million, and allegations against New South Wales Premier Neville Wran, although the Street Royal Commission exonerated him.

However, all of these reforms were at a federal level. The New South Wales government was the first to realise that what was needed was an overhaul of the system at a state level too.

This led to the creation of ICAC in 1988, a single, centralised body with the power to investigate corruption and matters of integrity.

Like the Commonwealth government, New South Wales recognised that an administrative law system that only involved judicial review would be limited in what it could do. A recent example of this, which was covered in-depth in Common(wealth) Knowledge #52, saw the Federal Court recognise that there were issues with the Freedom of Information request system, itself a part of the administrative law system, but the court lacked the power to do anything about it,

Making ICAC part of the courts would also limit what it could do. Australia’s legal system is considered to be an ‘adversarial system.’ This means that a judge hears the complaints of the two sides in the case, and relies only on the evidence presented to it. It also allows courts to make ‘common law,’ judge-made law that fills in the gaps in legislation.

Maggie Wang, an executive decision-maker in the Department of Immigration, who was also under investigation by ICAC, complained about ICAC being unfair, because it didn’t follow the rules of evidence and requirements placed on adversarial courts.

The problem here is that a court cannot carry out ‘fact-finding missions,’ investigating the case to find its own evidence. While the adversarial system works for courts, it makes anti-corruption investigations much harder to do. ICAC, therefore, had much broader investigative powers, including compelling witnesses to give testimony and compelling people and organisations to hand over documents.

If the whole point of ICAC is to not be part of the judiciary, then it would be unconstitutional to allow it to make laws. As an independent body, it has the discretionary power to recommend criminal charges to the Department of Public Prosecutions. This allows the Commissioner to choose whether or not to recommend charges, which is why ICAC could recommend charges against Daryl Maguire and Maggie Wang, but not Gladys Berejiklian.

While the standard rules of court do not apply in an ICAC investigation, like the right to silence, if criminal charges are laid by the Department of Public Prosecutions, then Section 26 of the Independent Commission Against Corruption Act 1988 (NSW) states that if a person objected to giving something as evidence to ICAC, but was compelled to anyway, this cannot be used in court. This is because, in court, that refusal would be respected, and so that evidence wouldn’t be available.

Finally, as ICAC reports are publicly available, if an investigation leads to a criminal trial, it is likely that it would be a trial without a jury, because the ICAC evidence that was published in the report, but wouldn’t be heard by the jury in a normal trial, means that the jury would be ‘tainted.’ This will likely be the case for Daryl Maguire’s trial.

Criminal trials for Daryl Maguire and Maggie Wang are not expected until later this year.

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