Why is it that so many public office holders in Australia, from ministers and political staffers to public servants and soldiers, can abuse their office and its power without consequence? Is there no law against abuse of office?
In fact, there is. Misconduct in public office is one of the oldest laws in existence in jurisdictions descended from England’s legal system — it’s so old that it’s a common law offence, existing (in some jurisdictions) without any statutory underpinning. It has a variety of names, but in broad terms, someone who holds a public office who, in the course of fulfilling that office, engages in serious misconduct without reasonable justification, is guilty of an offence.
Each element of the offence has an extensive history of legal precedent, much of which is shared with the civil tort of misfeasance in public office — invoked by robodebt royal commissioner Catherine Holmes — but the effect is to cast a wide net.
A “public official” includes elected officials, judges, police, bureaucrats, armed forces members, health professionals working in public hospitals, academics and other staff at publicly funded institutions — indeed, anyone who “discharges any duty in the discharge of which the public are interested”, whether they’re paid or not. Misconduct not caught by statutory laws may be caught by the common law offence.
A decade ago, one legal commentator observed that “in Australia the common law offence of misconduct in public office subsists and has enjoyed a major resurgence in the two most populous states, New South Wales and Victoria”. The NSW examples related to the Independent Commission Against Corruption’s pursuit of corrupt former ministers Eddie Obeid and Ian Macdonald (Obeid and two other former Labor ministers, Joe Tripodi and Tony Kelly, are still — 10 years later — awaiting trial for corruption).
It’s noteworthy that these are examples of some of the most egregiously corrupt behaviour witnessed in Australian politics since the Bjelke-Petersen years in Queensland, or WA Inc, while more everyday forms of abuse of office — such as the blatant pork-barrelling of the Berejiklian government in NSW, or the branch-stacking, venality and rorting that characterised the Andrews government in Victoria (think Red Shirts scandal) — didn’t lead to prosecutions.
But the author, veteran public sector lawyer and prosecutor David Lusty correctly singled out NSW and Victoria. In contrast, the Commonwealth, like most other jurisdictions, has supplanted the common law offence with a statutory one: section 142.2 of the Criminal Code makes it an offence if a Commonwealth public official exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or uses any information that the official has obtained in the official’s capacity as a Commonwealth public official, to dishonestly obtain a benefit for themselves or dishonestly cause a detriment to someone else.
As another legal writer has observed, this version is a narrower offence than the common law version. Clearly lawmakers were uncomfortable with the wider remit of the common law offence, not just at the Commonwealth level and in states such as Western Australia and South Australia, but also in Canada and England.
In particular, the requirement for “dishonest” actions by the official in s.142.2 establishes a high and perhaps insurmountable hurdle, requiring prosecutors to prove a corrupt minister or rotten bureaucrat knew they were not acting in the public interest. As Lusty notes, the common law version does not necessarily require proof of state of mind, even after British courts have preferred tougher requirements for proof that officials were motivated by corruption. But clearly, under the current Commonwealth law, the prosecution of the people who devised and implemented robodebt would struggle to overcome the hurdles legislation puts in the way.
The prosecution of abuses of public office can also bring courts dangerously close to political arguments. Is pork-barrelling abuse of public office? NSW ICAC says it can be in some circumstances; 80% of voters think it is. But the major political parties jointly agree — whatever they may when in opposition — that pork-barrelling is a standard feature of politics and that politicians should decide how taxpayer money is allocated, not independent public servants. Judges may be inclined, in the absence of clear legislation, to want to leave such issues to the political arena.
If lacking a wider, common law-style misconduct in public office offence is one reason why so few Commonwealth public officials have ever been prosecuted, having an effective public sector anti-corruption body to undertake investigations into officials’ conduct is another. In its absence, we’re left with the uncertain tool of royal commissions to expose misconduct — and governments rarely call royal commissions into themselves.
And if the Commonwealth lacks of proper, useable misconduct in public office offence, it also seems to lack an effective anti-corruption body. The failure of the National Anti-Corruption Commission (NACC) to investigate robodebt or the Thales scandal — and the NACC’s own secretive behaviour around the Paladin scandal — has raised serious questions about whether the corruption watchdog will represent a genuine threat to those engaging in misconduct, or join the ranks of nobbled or useless regulators that litter the Australian public sector, from gambling regulators to ASIC and ACMA.
With the likely failure of the NACC, it’s hard to avoid the conclusion that whatever major party politicians say about the behaviour of their political opponents, they’re on a unity ticket in making sure people in public office can continue to get away with it, untroubled by either a wide-ranging law against misconduct or a body that will pursue it.
