Costigan & Beyond

[1985] Reform 21 of the wife and her relatives were not to be seen draw attention away from the important as the remnants of a vanishing culture which achievements of the Commission. Undeniably, will be obliterated in time by the process of as it has highlighted the value of computerised similation. They are to be seen as part of the technology in the fight against organised crime. sense of identity and development of the chil This technology will be taken over by the dren, part of their links to an Aboriginal culture National Crimes Authority. As a result of the and heritage which comes to them through their Commission’s Fourth Interim Report in July mother. In her Honour’s view, the failure of the 1982 dealing with ‘Fraud on the Common husbands to recognise this and to encourage wealth Revenue’, two Special Prosecutors were these links should have weighed in the trial appointed Mr Roger Gyles QC was charged judge’s decision about custody. with the task of dealing with the ‘bottom of the harbour’ tax schemes and Mr Robert Redlich costigan & beyond dealt with criminal matters arising out of the In a way beset with those that contend, on the one side for confidential sections of the Report. Consider too great liberty and on the other side for too much able sums have been returned to the public authority, ’tis hard to pass between the points of both purse as a result and it has been claimed by unwounded some that Australia’s tax evasion industry in the Thomas Hobbes process has suffered its cruellest ever blow. The Costigan Royal Commission on the Ac tivities of the Federated Ship Painters and However, the Sydney Morning Herald has re Dockers Union presented its Sixth and Final ported the New South Wales Premier, Neville Report to the Victorian and Federal govern Wran, as having declared that the credibility of ments on 26 October, 1984. Letters Patent had the Costigan Commission ‘has been shattered’ been issued in September 1980 but varied in by the finding of a Queensland coroner that the June 1981, April and December 1982, February death of Brisbane bank manager, Mr Ian and December 1983 and then June 1984. The Coote, was due not to ‘foul play’ but suicide. It scope of the Commission’s investigations was had been suggested by the Commission that Mr significantly extended during its course, eventu Coote, linked in the media as a business contact ally covering all parts of Australia and strata of of Kerry Packer, had been murdered. A number society. To assert that controversy has sur of expert witnesses before the inquest denied rounded the Final Report would be more preg that this was possible. Mr Wran is quoted as nant of understatement than originality. Reac saying of the Costigan Report, parts of which tion has been polarised. Critics have claimed were leaked in the National Times: that in its zeal to identify organised crime in Australia, the Costigan Commission was con People’s names and reputations were sullied without temptuous of civil liberties and ignored elemen any attempt being made at all to see who was re sponsible for the leaking of confidential material. tary principles of natural justice. They have You can’t condemn a journalist for wanting a scoop said too that its proposals for a new criminal in or information that’s not available to anyone else vestigation regime paid insufficient attention to but I am highly critical of the people who make con the regulation and accountability of the police. fidential material available in that way because it Supporters have claimed on the other hand that does such great harm to individuals and the whole thieves and drug-runners should not be pro fabric of society. tected by ‘legal niceties’ and have pointed to the invasions of civil liberties perpetrated by crimi A number of issues relevant to law reform arise nals of the kind the Costigan Commission in out of the Commission’s Reports: vestigated. • The Costigan Commission, like the The controversy which has been generated by Stewart Royal Commission and the neo the Final Report and Kerry Packer’s involve natal National Crimes Authority, is still ment in the fracas has served to some extent to another of the ventures by government [1985] Reform 28 into ‘alternative’ means of dealing with dubious voluntariness may all contrib organised criminal activity and criminal ute to findings of various degrees of cer complicity on the part of prominent per tainty — on the balance of probabilities, sons. These recently have included beyond reasonable doubt etc. The likeli Royal Commissions, Commissions of hood of a jury being able to bring its col Inquiry, Judicial Inquiries and Senate lective mind impartially and without Special Committees. Royal Commis pre-judgment only to the issue and the sions and their like, though, do not bring facts put before the court subsequent to criminal proceedings nor are they purely the findings of a Royal Commission is investigative bodies. It is out of this dangerously reduced. These are some of strange and little analysed meld that the issues that are being examined in the problems about the proper function of Commission’s Contempt Reference bodies such as the Costigan Commission headed by Professor Michael Chester- rear their heads. The new Federal man. A wide-ranging research paper on Attorney-General, Mr Bowen, has also the effects of prejudicial publicity, will been critical of some of the practices of be completed in 1985, together with ten the Costigan Commission maintaining tative draft legislation aimed at bal that the government is still completely ancing the rights of the accused to a fair committed to the fight against organised trial with the interests of the community crime but stressing that: in the free dissemination of newsworthy material and in public investigation of .. .this fight can and must be waged without en allegations of corruption, crime and croaching on fundamental civil rights. The govern fraud. ment specifically reaffirms that it rejects, as a means of combating criminal activity, the policy favoured • Issues of privacy and media account by Mr Costigan of public exposure of persons sus pected of criminal activities. There is no place in our ability are raised by the leaking and pub legal system for guilt by accusation or denunciation. lication of confidential aspects of the Costigan Commission’s investigations. For example, how public should they be? How ac The seriousness of such breaches of se countable does the community wish them? Although curity cannot be underestimated, both they are not curial bodies, to what extent should the insofar as they have the potential im rules of natural justice and even of evidence apply? properly to harm the reputations and livelihoods of the individuals concerned • The considerable amounts of publicity and because they could effectively frus generated by hearings before Royal trate the investigations being conducted Commissions and like bodies create real by the Commission or being referred to dangers that those subsequently charged the National Crimes Authority for fur will not be able to receive a fair trial in ther attention. the courts. Sub judice rules do not pre vent what can be absolutely damning in • Of further interest to the ALRC’s Ref formation being made available in mem erence on Insolvency headed by Mr Ron orable form to the public not long before Harmer are the recommendations of those involved are charged. Of particu Commissioner Costigan on bankruptcy. lar concern is the fact that, as the rules of He has proposed that the Bankruptcy evidence do not apply to non-curial pro Act be amended: ceedings, findings made by such investi — to provide specifically that the Official gative bodies may well be based substan Trustee may investigate trusts, com tially on material that cannot be admit panies, businesses, partnerships and ted in the courtroom. Hearsay evidence, other entities suspected of being j opinion evidence and admissions of financially associated with the bank [1985] Reform 29 rupt or any member of his or her fam- laws similar to those in the United States iiy; in the Labour-Management Reporting — to rectify the apparent anomaly ap and Disclosing Act of 1959. Thus, a per pearing in s 269(b) by making it an son would be prohibited from holding offence to carry on business in the office in a union for a period of five bankrupt’s own name without dis years following conviction for an indict closing to the person with whom he or able offence. she deals that he or she is an undis charged bankrupt; • Central to the recommendations of the — to render it an offence to fail to dis Costigan Report is the perceived need to close to the Registrar in Bankruptcy investigate ‘any apparently unexplained or the Official Trustee all banks, accretion of great wealth’. Section 264 of building societies, credit unions, cred ther Income Tax Assessment Act does it and other accounts in any name not over-ride legal professional privilege used by, or on behalf or for the ben nor the privilege against self efit of the bankrupt; and incrimination (see ALRC, Interim Re — to require the bankrupt to supply to port on Evidence, forthcoming). Were the the Official Trustee quarterly state Costigan Report’s recommendations ments of all deposits into and draw acted upon, these restrictions on the Tax ing from such accounts. Officers’ investigative powers could be lifted. Matters which formerly were the • One of the first achievements of the subject of s 264 notices could then be Commission was the successful recom handled by a Taxation Investigation Tri mendation of its Third Interim Report bunal.

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