Flat White

Australia desperately needs a Criminal Cases Review Commission

8 February 2022

12:00 PM

8 February 2022

12:00 PM

Talk about missing the point…

All those clamouring for a federal corruption commission to be an election issue have so far produced no evidence for the need. The need is elsewhere; in the criminal justice system.

‘Now that the problems of the state-based anti-corruption commissions are clear, the community deserves some answers – not from the states, but from Anthony Albanese and his legal affairs spokesman, Mark Dreyfus,’ writes The Rule of Law Institute Vice President Chris Merritt in The Weekend Australian.

‘Before people vote at the election, they need to know if Labor plans to stitch together a federal ICAC based on those aspects of the state-based commissions that are clearly on the nose.’

But there doesn’t seem to be a need. As former New South Wales Deputy Senior Crown Prosecutor and now defence barrister Margaret Cunneen SC pointed out in a column late last year, ‘The federal sphere is … less susceptible to the abuse of government resources or information. There are numerous bodies already in existence to whom complaints may be made of any suspected misfeasance. There is the Commonwealth Ombudsman, the Independent Parliamentary Expenses Authority, the Australian Public Service Commission, the Australian Criminal Intelligence Commission, the Australian Commission for Law Enforcement Integrity and others. We don’t hear many famous cases from these bodies, and we would if they had them.’

Where federal leadership is really needed to provide society with protection against state actors acting badly (corruptly) or mistakenly, with grave consequences, is in the field of the administration of criminal laws.

Unlike the Criminal Cases Review Commission (CCRC) of the UK, from where our legal system is derived – and unlike other countries with similar legal structures to ours, such as New Zealand and now Canada – Australia does not have a robust mechanism to review criminal convictions post-appeal, that may be wrong. And before you ask, Australia’s multi-jurisdictional structure is not an impediment to such a structure, as a viable approach has been outlined by eminent legal academic Dr Bob Moles of Flinders University – and made available (repeatedly) to the Federal Attorney-General’s office some time ago.

It is an elegantly simple plan: ‘A national CCRC can be established by setting up a single CCRC and then each state and territory can legislate to nominate that CCRC as the appropriate agency to review cases on its behalf and exercise powers given to the CCRC by that state to refer matters to the appeal court of that state. This would not involve any constitutional change of any sort.’

The Hon Michael Kirby writes, in the Criminal Law Journal: ‘In Australia, two of the states and both mainland territories have not yet even decided to permit a second criminal appeal by leave on compelling evidence. And no jurisdiction has yet resolved to establish a Review Commission. What is it about our country that always sees us limping behind [UK, NZ, and Canada] where justice is at stake.’

While successive Attorneys-General including George Brandis, Christian Porter, and Michaelia Cash have been approached by Moles (along with this writer) to consider the establishment of such a body, none have responded. The ammunition for a solid public argument is readily available, with impeccable sources and high-profile support. A Criminal Cases Review Commission is far more practical and far more needed than a Federal Independent Corruption Commission. The list of wrongful convictions is much longer than the list of corrupt Federal public servants or politicians.

The separation of powers means that the legal system is self-monitoring and removed from the reach of politics. Ironically, the one thing politics can do to improve the appeal process in the criminal justice system, it will not do.

Andrew L. Urban is the author of Murder by the Prosecution (Wilkinson Publishing) and edits wrongfulconvictionsreport.org 

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