Alister Henskens portrait
Alister Henskens portrait

Crimes Amendment (Misconduct In Public Office And Other Matters) Bill 2018


Mr ALISTER HENSKENS (Ku-ring-gai) (11:22:01): I speak in the debate about the Crimes Amendment (Misconduct in Public Office and Other Matters) Bill 2018. I will explain some of the reasons the Government opposes the bill. In doing so, I do not question the honourable and good intentions of the member for Balmain in bringing forward this bill. The member for Balmain said that this bill is intended to be an anti-corruption measure, and none of us wants corrupt government. It is regrettable that in recent times New South Wales members of Parliament have been found corrupt by the Independent Commission Against Corruption [ICAC] in the performance of their duties. They include Eddie Obeid, Ian Macdonald, Tony Kelly, Joe Tripodi, Angela D'Amore and Karyn Paluzzano. They were members of the former New South Wales Labor Government prior to 2011.

No New South Wales Liberal Party member of Parliament has lawfully ever been found to be corrupt by the ICAC. The wrongful finding against a good and honourable man, Nick Greiner, was contrary to law and rightly overturned by the New South Wales Court of Appeal. Rex Jackson, who was a Minister in the Wran Labor Government before the Coalition established the ICAC and had the nickname of "Buckets", was found with $100,000 in cash in the boot of his car and convicted of conspiring in the release of prisoners. He was sentenced to 10 years imprisonment. Ian Macdonald, a former Labor Minister in the Carr, Iemma, Rees and Keneally governments, was convicted on two counts of wilful misconduct in public office and was sentenced to 10 years imprisonment.

Eddie Obeid, a former Labor Minister in the Carr Government, was convicted of wilful misconduct in public office and was sentenced to five years imprisonment. Mr Obeid is awaiting trial on offences similar to those of Mr Macdonald and it is reasonable to conclude that if found guilty of those offences he will be sentenced to a term of imprisonment of nearly 10 years or more. Corruption is a blight on the body politic and is contrary to the good and right intentions of the overwhelming majority of members of Parliament who work hard to serve their communities. But there are serious defects with this bill that cut across the good intentions of the member for Balmain in bringing it forward. Rather than going harder on corruption, this bill, if passed, would go softer on corruption—which I am sure is an unintended consequence and not appreciated properly by the member for Balmain.

For example, under the current common law offence of misconduct in public office there is no limit on the sentence that can be imposed upon persons found guilty of that offence. If passed, this bill would put a cap on a maximum term of imprisonment for the statutory offences set out in the bill under new sections 217 to 222 proposed to be inserted in the Crimes Act. This Government will simply not agree to The Greens' attempt to go soft on corruption in this bill. If this bill were passed, everybody convicted of the current common law offence of misconduct in public office—including the likes of Rex Jackson, Ian Macdonald and Eddie Obeid—would receive lighter sentences if found guilty.

The bill misunderstands the basic principles of the law of sentencing. Sentencing principles require a judge to look at all factors using a process of instinctive synthesis, as explained by the High Court in Markarian v The Queen (2005) 228 CLR 357. Sentencing principles require a judge, after taking into account the maximum sentence as applying to the worst case, to put that offence in the range of penalties from no penalty up to the maximum. Because this bill sets the worst case at seven years imprisonment, it does not just put a cap on the maximum sentence but actually slides all penalties within a range from the maximum to the minimum.

Even if, as the member for Liverpool suggested, the maximum is set at 10 years it will still have the effect of reducing the sentences in all misconduct in public office offences between a 10-year maximum to zero, depending on where they fall in a range of worst, medium or low criminality. A 10-year maximum still does not solve the problem that this bill, even with a 10-year maximum, would go lighter on corruption and criminal convictions for corruption than is currently the case under the common law, where there is no capped maximum sentence.

I fear that this and other shortcomings in the bill arise because of a lack of consultation. The Government values the opinions of its stakeholders. By genuinely engaging with experts and thought leaders, we continually ensure that our legislation meets standards of best practice. It appears that The Greens have not followed that path of good policymaking, which requires a deft hand and a commitment to thorough consultation. Instead, this bill demonstrates that The Greens have taken a different approach. The bill shows that The Greens approach legislation as an opportunity to radically bulldoze through the status quo without regard for the consequences.

Let us take this bill as an example. The bill seeks to codify a common law offence. Codification is a complex issue requiring an expert touch to ensure that gaps are not created. The Government has been advised that important legal stakeholders, including the NSW Police Force, Law Enforcement Conduct Commission, Bar Association and Law Society, were not consulted on the drafting of this bill. As a result, the bill has failed to consider several important aspects of corruption law, including reckless indifference offences; aggravated offences; the accounting of profits; compensation to the State or to any innocent third party for any benefits gained; the interaction of the codified offences with existing common law offences; and the unwinding of any agreements obtained by official misconduct.

Critically, the bill would also result in a reduction of the maximum penalty for corruption, which proper consultation with legal stakeholders would have revealed. The alternative—that The Greens have been informed that the bill would weaken corruption law, but want to proceed regardless—is even more concerning. I have always found the member for Balmain to be a person of integrity who is reasonable to deal with. What I fear is that the member for Balmain might have been set up to introduce this bill as part of some of the toxic factional battles within The Greens. I feel that the communist left of The Greens, led by Mr David Shoebridge, who is a former barrister and no doubt has given advice to the member for Balmain about the bill, has tried to set him up.

As the Australian Labor Party [ALP] has been the sole party with members found by the ICAC to be corrupt and convicted of criminal misconduct in public office, I hope that its members could not possibly bring themselves to support this bill. No reasonable member of Parliament [MP] could support this bill. I hope that the ALP will not support this bill as a means of trying to help their mate Eddie Obeid in his forthcoming criminal trial. If passed, the bill would allow a lighter sentence if Mr Obeid were found guilty of the offences he currently faces. I call on all Labor MPs to not pass a bill that would go softer on corruption. It really would be the last straw if they tried to help Eddie Obeid, after having elevated him to the highest levels of government of this State, including as a Minister of the Crown, this one little time with the problems he created with his corrupt and criminal activities.

All MPs should vote against this bill. They should not allow this bill to go softer on corruption. No case has been made out to codify what is already a desirably flexible common law position under the current law. The bill should not be supported. I encourage Luke Foley and the Labor Party to not help their mate, to not allow this Parliament to go softer on corruption and to stand up to keep the flexibility and the maximum unlimited and uncapped sentence on corrupt behaviour in this State as part of the law of New South Wales so that their rhetoric—which is they say they do not support corruption—is actually backed up by their actions.