Charif Kazal v. Australia

The author of the communication is Charif Kazal, a national of Australia born in 1973. The author claims to be a victim of a violation by the State party of his rights under articles 14 (1), (2) and (5) and 17 of the Covenant. The Optional Protocol entered into force for the State party on 25 December 1991. The author is represented by counsel.⁴

4. The communication was suspended from 17 December 2018 to 11 October 2019, at the request of the parties and pending the conclusion of ongoing domestic proceedings. ↩

The author notes that in 1988, the New South Wales Independent Commission Against Corruption was established by the government of New South Wales. The Independent Commission is governed by the Independent Commission Against Corruption Act 1988 of New South Wales, under which it has powers to investigate corruption in the New South Wales public sector. The author claims that those powers include: (a) a broad discretionary power to investigate allegedly corrupt conduct; (b) the power to conduct public inquiries, functioning as a tribunal largely without formal rules of evidence; (c) the power to publish formal reports concluding that investigated persons are guilty of corrupt conduct, namely, such conduct that “could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions” (sect. 8 (1)) and that “could constitute or involve […] a criminal offence” (sect. 9 (1) (a)); and (d) the power to make recommendations that the Department of Public Prosecutions prosecute persons found to be corrupt. The author notes that, in the period 2010–2011, the Independent Commission investigated an alleged undisclosed conflict of interest of a senior executive officer of the Sydney Harbour Foreshore Authority. In December 2011, the Independent Commission published its findings, according to which the author had sought to improperly influence the exercise of the executive officer’s official functions, or place himself in a position to do so, by holding out to the officer the prospect of becoming involved in the author’s family’s private business and by paying the officer’s expenses associated with a trip to the United Arab Emirates. It was concluded in the report that the author’s conduct was corrupt as it was intended to influence the officer and could constitute or involve two criminal offences, namely: (a) giving false or misleading evidence at a compulsory examination or public inquiry conducted by the Commission, under section 87 of the Independent Commission Against Corruption Act; and (b) giving corrupt commissions or rewards, under section 249B of the Crimes Act 1900 of New South Wales. The author notes that despite the findings of the Independent Commission, there was insufficient evidence to prosecute him under criminal law. The Independent Commission itself determined that there was insufficient admissible evidence to establish the elements of the offence under the Crimes Act, but recommended prosecution for the offence under the Independent Commission Against Corruption Act. However, the Office of the Department of Public Prosecutions determined that there was insufficient evidence to merit even a reasonable prospect of success for prosecution under the Act. In March 2012, the author challenged the jurisdictional validity of the findings of the Independent Commission before the Supreme Court of New South Wales. He states that that challenge to Independent Commission’s jurisdiction was unsuccessful given the wide discretion and lack of formal evidentiary procedures of the Independent Commission, and the “could test” stipulated in the Independent Commission Against Corruption Act, that is, the findings by the Independent Commission that the conduct of the person investigated could constitute a criminal offence. On 7 February 2013, the Supreme Court found that the findings fell within the jurisdiction of the Independent Commission.

The author argues that he has been left subject to a finding of corruption that is unchallengeable due to the breadth of the Independent Commission’s jurisdiction. In addition, since no provisions in the Independent Commission Against Corruption Act allow for an exoneration process for persons innocent of any wrongdoing, he is left entirely without recourse with regard to the stain on his reputation.

On 12 May 2016, a report was published by an Inspector of the Independent Commission. The Inspector is an independent statutory officer under the Independent Commission Against Corruption Act whose role and functions are to hold the Independent Commission accountable in the way that it carries out its functions. In the report, the Inspector made a number of recommendations critical of the fundamental workings of Independent Commission, including: (a) that Independent Commission examinations should be conducted in private rather than in public; and (b) that an exoneration protocol should be implemented.

On 18 May 2016, the author wrote to the Committee on the Independent Commission Against Corruption, the body empowered under the Independent Commission Against Corruption Act to review the Independent Commission and report to Parliament on matters relating to its function. In the letter, the author requested that that Committee write to Parliament, encouraging it to adopt an exoneration protocol. On 2 June 2016, that Committee responded that it had resolved to conduct an inquiry into the Inspector’s report.

On 28 June 2017, a report was published by the Acting Inspector of the Independent Commission. The report was written with specific reference to the so-called Operation Vesta, under which the findings against the author had been made. The report substantially supported the conclusions of the 2016 report and included a recommendation that the “could test” of the Independent Commission Against Corruption Act should be repealed and replaced with a “reasonableness test”, under which findings must be supported by circumstances in which the Independent Commission could reasonably expect a properly instructed reasonable tribunal of fact to come to the same conclusion on admissible evidence. On 8 August 2017, in support of the 2017 report, the author again wrote to the Committee, encouraging it to write to Parliament and adopt an exoneration protocol. On the same date, the Committee replied through email confirming receipt of the letter and stating that the correspondence would be placed on the agenda for the Committee’s consideration at its next meeting. The author argues that, given the Committee’s failure to take any action in the light of his previous correspondence or following the reports by the Inspector of the Independent Commission, it would be extremely unlikely that his second letter to the Committee would have any impact.

On 8 August 2017, the author made a formal complaint to the Australian Human Rights Commission. On 9 August 2017, the Commission decided that, since the Independent Commission was a body of the State of New South Wales rather than the Commonwealth, investigations into his complaint were outside of the Human Rights Commission’s jurisdiction.

The author argues that the investigation conducted by the New South Wales Independent Commission Against Corruption was not conducted by a competent, independent or impartial tribunal. He argues that the public informal hearing in his case, taken together with the Independent Commission’s wide jurisdiction resulting from the “could test”, i.e. the findings by the Independent Commission that the conduct of the person investigated could constitute a criminal offence, severely undermines the right to the presumption of innocence before being proven guilty, in violation of article 14 (2) of the Covenant. The author submits that the Independent Commission’s ability to make a finding on the likelihood of criminal activity based merely on the premise that an investigated person “could” be guilty and subsequently to publish that finding in the public sphere clearly undermines the presumption of innocence. He claims that his inability to appeal the findings of the Independent Commission amount to a violation of his rights under article 14 (5) of the Covenant. He also claims that, due to the lack of an exoneration protocol, investigated persons are left in a unique position: their lives are substantively affected as if they were guilty of a crime but they are left without the fundamental mechanisms of the presumption of innocence, the right to appeal and the protection provided by procedural and evidentiary burdens otherwise found within the criminal justice system.

In addition, the author notes that, while the Independent Commission’s findings do not have criminal consequences, such findings retain the unique stigma of a criminal finding for the private lives of investigated persons. He argues that the public hearing held by the Independent Commission and the finding that his conduct could constitute a criminal offence was a violation of his right to not be subjected to arbitrary or unlawful interference with his privacy, family, home, correspondence, honour and reputation, in violation of his rights under article 17 of the Covenant.

On 10 July 2020, the State party submitted its observations on the admissibility of the communication. It notes that it accepts that the author is an individual subject to its jurisdiction and also acknowledges that the alleged breaches of the Covenant submitted by the author, which relate to the conduct of the New South Wales Independent Commission Against Corruption, occurred in the State party’s jurisdiction within the meaning of article 2 of the Convent. As the domestic proceedings in the matter have been finalized, the State party notes that it accepts the admissibility of the communication.

The State party submits that the Committee should find that the author’s claims do not constitute violations of the Covenant. As concerns the author’s claims under article 14 (1), (2) and (5) of the Covenant, the State party submits that the Independent Commission’s proceedings do not constitute the determination of any criminal charge or rights and obligations in a suit at law and therefore does not fall within the scope of article 14 (1). In the alternative, even if the Independent Commission’s proceedings were determined to fall within the scope of article 14 (1), the State party submits that those proceedings would meet the minimum threshold for a fair and public hearing by a competent, independent and impartial tribunal established by law within the meaning of article 14 (1). The State party also submits that article 14 (2) and (5) of the Covenant is not engaged, as the author was not charged or convicted of a crime as part of the Independent Commission’s proceedings. It notes that, while the author is correct that the Independent Commission can make a finding that a person “could” be guilty of an offence, the Independent Commission cannot make findings of criminal guilt or attach any punishment or sanctions to its findings. The State party argues that, in addition to the fact that article 14 (5) is not engaged in the author’s case, as he was not charged with a criminal act, the author nevertheless had appeal avenues available to him. In 2017, the author brought proceedings to the New South Wales Supreme Court for damages and various declarations on the basis that the Independent Commission’s proceedings had been ultra vires, that its finding of corrupt conduct against him had not been made according to law and its finding that he gave false evidence had not been made according to law.

The State party notes that the Independent Commission is an independent organization established under the Independent Commission Against Corruption Act 1988 (New South Wales). Among its principal functions is the investigation and exposure of corrupt conduct in the New South Wales public sector. From 2010 to 2011, the Independent Commission conducted an investigation into an alleged undisclosed conflict of interest of a senior executive of the Sydney Harbour Foreshore Authority. In December 2011, following the conclusion of that inquiry, the Independent Commission published a report entitled “Investigation into the undisclosed conflict of interest of a senior executive of the Sydney Harbour Foreshore Authority”. In the report, the Independent Commission found that the author had sought to improperly influence the impartial exercise of the official functions of the senior executive by holding out the prospect of the senior executive being involved with the author and members of the author’s family in a private business and paying for his flights to the United Arab Emirates. The Independent Commission found that that conduct came within section 8 (1) (a) of the Independent Commission Against Corruption Act because it could adversely affect, either directly or indirectly, the senior executive’s impartial exercise of his functions. The Independent Commission found that the conduct also came within section 9 (1) (a) of the Act because it could constitute or involve an offence under section 249B (2) (b) of the Crimes Act 1900 (New South Wales). However, the Independent Commission found that consideration should not be given to obtaining the advice of the New South Wales Department of Public Prosecutions with respect to a prosecution of an offence under section 249B (2) (b) because it did not consider that there was sufficient admissible evidence to establish the elements of the offence.

On 26 March 2012, the author sought judicial review of the report on the basis that the Independent Commission had made its finding of corrupt conduct against him on a basis that was not available under the Independent Commission Against Corruption Act. On 7 February 2013, the Supreme Court held that the Independent Commission had made no error and had not exceeded its jurisdiction. On 12 May 2016, the Office of the Inspector of the Independent Commission published a report on the Independent Commission. The Inspector of the Independent Commission is an independent statutory officer whose role is to oversee the operations and conduct of the Independent Commission and ensure that it complies with the law and does not abuse the powers it has been vested with by law. In the 2016 report, the Inspector made a number of recommendations on the ways in which the Independent Commission could be improved.

On 28 June 2017, in response to complaints made by the author and others, the Office of the Inspector published another report, which specifically related to the inquiry involving the author. The 2017 report was critical of the weight given to certain evidence by the Independent Commission Against Corruption and noted that the Independent Commission’s finding was weak and flawed. In addition, in the Inspector’s view, incorrect weight had been given to evidence that had led to the referral to the Department of Public Prosecutions and the Independent Commission had failed to comprehensively consider legal tests. The Inspector was also critical of the public nature of the proceedings, of the lack of a written record of the reasoning behind the decision to make the proceedings public, although a written record was not required by the Independent Commission Against Corruption Act, and of the lack of exoneration protocol available to the author. The Inspector considered and made recommendations regarding the effectiveness and appropriateness of certain provisions of the Act. However, the Inspector examined the substance of the complaints and found that there had been no impropriety or maladministration.

On 27 December 2017, the author commenced proceedings in the Supreme Court of New South Wales relating directly to the claims made in the communication. On 24 May 2019, the Supreme Court dismissed the proceedings. The Court was not satisfied that there was an underlying cause of action for the intentional tort of misfeasance in public office and, for the same reasons, found that there were no grounds to provide declaratory relief to the author. The Court held that the case was one in which summary intervention could be justified.

The State party notes the author’s claims that the Independent Commission’s proceedings did not constitute a fair hearing by a competent, independent and impartial tribunal established by law and therefore breached rights provided by article 14 (1). The State party submits that article 14 (1) applies only to criminal charges and rights and obligations in a suit at law.⁵ It notes that the Independent Commission has no power to impose sanctions or punishment; it can only make and report findings and opinions based on results of its investigations and make recommendations for the taking of further action. The State party notes that it accepts that the Independent Commission may, and in the author’s case did, make findings that the author had given false evidence and engaged in corrupt conduct. Those matters had been referred to the Department of Public Prosecutions and would have been considered criminal charges if the Department had progressed to prosecution of the case. Although those are serious matters and the Independent Commission’s findings can broadly relate to criminal offences, such findings do not constitute the determination of a criminal charge within the meaning of article 14 (1). The State party notes that article 14 (1) also applies to rights and obligations at a suit at law. The State party argues that, in the present communication, there is no provision under the Independent Commission Against Corruption Act or any other relevant domestic law that grants a right or entitlement to individuals who are investigated by the Independent Commission. It can thus be distinguished from other matters that have come before the Committee, including the determination of social security benefits and pension rights or the taking of private property.⁶ The State party therefore submits that the Independent Commission proceedings were not a determination of the author’s rights and obligations in a suit at law and that, accordingly, the author’s claims do not fall within the scope of article 14 (1) of the Covenant.

5. The State party refers to general comment No. 32 (2007), para. 15. ↩
6. The State party refers to general comment No. 32 (2007), para. 15. ↩

In the alternative, the State party submits that, should the Committee find that the Independent Commission’s proceedings amounted to the determination of the author’s rights and obligations in a suit at law, it was a fair and public hearing by a competent, independent and impartial tribunal established by law consistent with article 14 (1). The State party observes that the author’s submissions focus on the “could test” applied in the Independent Commission proceedings and the lack of an exoneration protocol. It submits that those complaints do not fall within the scope of the guarantee provided by a fair hearing in article 14 (1), such as absence of influence, procedural fairness or expeditious hearings.⁷ It further notes that the Committee has confirmed that errors of fact or law do not per se amount to a breach of article 14 (1), the Committee having observed “that it is not an appellate court and that allegations that a domestic court has committed errors of fact or law do not in themselves raise questions of violation of the Covenant unless it also appears that some of the requirements of article 14 may not have been complied with.”⁸ The State party refers to the criticisms by the Inspector in the 2017 report of the author’s Independent Commission proceedings, but notes that those criticisms concerned judicial errors or areas for reform and that the 2017 report concluded that there had been no maladministration or impropriety. The State party notes that it accepts that there is justified criticism of the Independent Commission’s findings and reasoning. It argues, however, that, as there was no procedural error in the Independent Commission proceedings, there was no breach of article 14 (1) of the Covenant.

7. The State party refers to general comment No. 32 (2007), paras. 25–27. ↩
8. R.M. v. Finland, communication No. 301/1988, para. 6.4. ↩

As concerns the claims by the author that the proceedings in his case were not conducted by a competent, independent and impartial tribunal established by law, in violation of his rights under article 14 (1), the State party notes that the Independent Commission was established by the Independent Commission Against Corruption Act and that it is independent of the executive and legislative branches of the Government. Furthermore, the Act requires that the Commissioners of the Independent Commission be qualified to be appointed or have been appointed as a judge of the Supreme Court of New South Wales or of another state or territory or the Federal Court or the High Court of Australia. That ensures that the Commissioner’s independence is protected by legislative safeguards as to security of tenure and fixed and transparent rules of appointment. The Act provides that the New South Wales Independent Commission Against Corruption has jurisdiction to inquire into allegations of corruption, including the type raised in respect of the author’s case, and the State party notes that the author does not submit that the Independent Commission has exceeded its jurisdiction. For those reasons, the State party submits that the Independent Commission proceedings satisfied the minimum threshold for a fair and public hearing by a competent, independent and impartial tribunal within the meaning of article 14 (1) of the Covenant.

As concerns the author’s claims under article 17, the State party notes that it accepts and recognizes that there was an interference with the author’s privacy and that his reputation has been damaged. Notwithstanding that interference with the author’s privacy and damage to his reputation, the State party submits that there has been no violation of his rights under article 17 of the Covenant because the interference was lawful and not arbitrary and did not constitute an unlawful attack on the author’s honour and reputation within the meaning of article 17.

The State party notes that the New South Wales Independent Commission Against Corruption is an independent organization established by law under the Independent Commission Against Corruption Act, which empowers it to obtain information and documents and conduct compulsory examinations and public inquiries to give effect to its investigatory functions. The State party acknowledges that the Independent Commission’s investigatory powers, by their very nature, involves an interference with the privacy, family, home and correspondence of persons subject to or involved in investigations, including, in the present case, the author. However, it submits that the interference was not unlawful or arbitrary but, rather, was aimed at the legitimate purpose of investigating the corruption of public officials and was subject to a range of proportionate procedural safeguards and restrictions. The procedural safeguards and restrictions are contained in the Independent Commission Against Corruption Act and other constituent documents. Under the Act, the Independent Commission may obtain information and information only for the “purposes of an investigation”.⁹ Where the Independent Commission conducts a compulsory examination it must be “satisfied that it is in the public interest to do so” and that the examination is to be conducted in private.¹⁰ Further safeguards and restrictions exist in relation to deciding whether to conduct a public inquiry. Those considerations include: (a) the benefit of exposing to the public and making it aware of corrupt conduct; (b) the seriousness of the allegation or complaint being investigated; (c) any risk of undue prejudice to a person’s reputation; and (d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.¹¹ The State party submits that the Independent Commission had due regard to those matters, in particular the balance between the public interest and preserving the privacy of the author, in making its decision to hold a public inquiry and recommend that its report be made public and that, accordingly, while the author’s right to privacy was interfered with as a result, the Independent Commission’s inquiry had been lawful and not arbitrary.

9. Independent Commission Against Corruption Act, sects. 21 and 22. ↩
10. Ibid., sect. 30. ↩
11. Ibid., sect. 31 (2). ↩

The State party also notes that undue prejudice to the author and his family formed part of the considerations of the Independent Commission. It notes that, under the Covenant, with regard to honour and reputation, protection is limited to unlawful attacks and is thus not as broad as the protection in respect of privacy, family, home and correspondence. First, only the prohibition of unlawful attacks, not arbitrary ones, is provided for in the legal system and, second, “attacks” reflect a high threshold that requires any interference to meet a certain intensity.¹² The word “attacks” refers only to the intentional impairment of the honour or the reputation of another.¹³ The State party notes that, while it acknowledges that the Independent Commission’s inquiry damaged the author’s reputation, it was not an unlawful attack within the meaning of article 17. The Independent Commission’s proceedings do not fall within the scope of an unlawful attack under that article because the finding that the author could have engaged in corrupt conduct was lawful, that is, it was done in accordance with the Independent Commission Against Corruption Act. The investigation into the author was consistent with the purpose of the inquiry, which was to investigate an undisclosed conflict of interest of a senior executive of the Sydney Harbour Foreshore Authority, and the Independent Commission lawfully applied the civil standard of proof. Accordingly, the State party submits that neither aspect of the author’s submissions under article 17 amount to a breach of the Covenant.

12. The State party refers to Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd revised ed. (N.P. Engel, 2005), p. 403. ↩
13. Ibid. ↩

The State party notes that, while the author’s submissions do not amount to a breach of its obligations under the Covenant, it recognizes that the author’s life and reputation were damaged as a result of the investigation and report of the Independent Commission. It also notes that it is firmly committed to upholding and ensuring that there are strong integrity arrangements in the public sector, which also protect the right to a fair trial and protect the reputation of persons investigated or alleged to have engaged in criminal conduct. It further notes that, as a matter of policy, it affirms that reforms are necessary in order to address shortcomings in State integrity bodies and that, in fact, significant reforms to the Independent Commission were made in 2011, subsequent to the investigation relating to the author. The most substantial reforms to the Independent Commission occurred in 2016 after the Parliamentary Committee on the Independent Commission Against Corruption commenced an inquiry into the functions of the Independent Commission. The reforms, both legislative and non-legislative, addressed many of the concerns raised in the author’s communication. Notably, they included additional measures to assist exonerated persons and further develop the Independent Commission’s procedures and practices. The Parliamentary Committee considered the need for further mechanisms to assist exonerated persons, in addition to the existing mechanisms of judicial review in the New South Wales Supreme Court and for complaints to the Inspector. Accordingly, the Independent Commission has taken steps to ensure that information is published concerning legal actions that take place as a result of its findings. As such, findings about individuals involved in corruption inquiries who are found not guilty of the charges laid against them or situations where the Department of Public Prosecutions has decided not to prosecute due to insufficient evidence are published on the Independent Commission’s website to ensure that the full story of corruption investigations is in the public record.

In addition, in 2016, the Independent Commission Against Corruption Amendment Act 2016 (New South Wales) was passed to give effect to the Parliamentary Committee’s recommendations. Those changes, which further improved the Independent Commission’s practices and procedures, included: (a) the provision that the power to conduct a public inquiry must be authorized by the Chief Commissioner and at least one of the other Commissioners, ensuring majority agreement; (b) a requirement to issue public inquiry guidelines to the staff of the Independent Commission and the Counsel Assisting the Commission to ensure procedural fairness during public inquiries; (c) a requirement to give a person an opportunity to respond before including an adverse finding or opinion about the person in an investigation report and to include in the report a summary of the substance of any response, if requested to do so; and (d) a requirement that, in including a response to an adverse finding, the Independent Commission must not identify any person who is not the subject of an adverse comment or opinion unless the Independent Commission is satisfied that it is in the public interest and will not cause unreasonable damage to the person’s reputation, safety or well-being and states that the person is not the subject of any adverse comment or opinion. The State party argues that those reforms to the Independent Commission demonstrate its continued commitment to strengthening and improving integrity in the public sector while continuing to uphold its obligations under the Covenant. It further notes that, at the federal level, the Government has announced its intention to establish a commonwealth integrity commission designed to successfully investigate corrupt conduct in the federal public sector while preventing injustice and unfairness to the people investigated.

On 7 February 2022, the author submitted his comments on the State party’s observations. He reiterates his claims that the conduct of the New South Wales Independent Commission Against Corruption amounted to a violation of his rights under articles 14 (1), (2) and (5) and 17 of the Covenant.

The author notes the State party’s argument that, as the Independent Commission is not a judicial body that makes criminal findings, its proceedings do not fall within the scope of article 14 (1) of the Covenant. He argues that a State party cannot circumvent its article 14 obligations by establishing a quasi-judicial mechanism to make serious determinations against an individual that, as a matter of domestic law, technically sits outside the criminal justice system. He argues that, rather, the concept of a criminal charge under article 14 (1) bears an autonomous meaning, independent of the categorizations employed by national legal systems and has to be understood in terms of the Covenant. He claims that the proceedings of the Independent Commission constitute a form of show trial, with a determination by a judge after the examination of witnesses but without the basic safeguards of pretrial inquiry, burden of proof, trial by jury and right of appeal. He also claims that the fact that the Independent Commission has no power to impose criminal sanctions entirely misses the point and has insufficient regard to the devasting consequences that a finding of corruption may have on an individual. That person is likely to be ostracized in public and private and will inevitably find it extremely difficult to conduct business. He argues that a finding of corruption alone is therefore, in itself, a serious sanction and, furthermore, that article 14 is engaged where the alleged acts, such as those in his case, are “criminal in nature”.¹⁴ He submits that, should the Independent Commission’s proceedings be found not to concern a criminal charge or criminal matter, they must be determined to be a suit at law, with the consequence that article 14 (1) is engaged.

14. General comment No. 32 (2007), para. 15. ↩

The author reiterates his claim that he was denied the right to a fair hearing by a competent, independent and impartial tribunal, as: (a) an independent report subsequently concluded that there had been no legitimate basis for the public inquiry in his case and that the Independent Commission’s investigation had constituted an abuse of power;¹⁵ (b) he had not been properly informed in advance of the nature of the allegations against him; (c) the Independent Commission had ignored exculpatory evidence that would have cleared him of the allegations made against him; (d) the Independent Commission had accepted without qualification the evidence of a witness who, at the time, was engaged in contentious litigation against him; and (e) a confidential document that could have been obtained only through the Independent Commission investigation had later been used by a witness in the investigation in furtherance of ongoing civil proceedings against the author, contrary to the Independent Commission Against Corruption Act.

15. The author refers to the Office of the Inspector report of 28 June 2017, recommendations 1 and 5, and paras. 306–309. ↩

The author further reiterates his argument that the State party violated his rights under article 14 (2) and (5), as he was accused of a criminal offence and was denied the presumption of innocence and the right to appeal the findings of the Independent Commission Against Corruption. He reiterates his argument that the damage to a person’s reputation can be a much more severe punishment than any financial penalty or even a prison sentence. He notes the State party’s submission that the judicial review process before the New South Wales Supreme Court satisfies that requirement for a right of appeal. He argues, however, that, in order for the requirements under article 14 (5) to be met, there must be a substantial review¹⁶ on the basis of both the sufficiency of the evidence and the law.¹⁷ He argues that, in his case, the Supreme Court did not engage in a substantial review of the facts and the law but that, rather, the judgment was limited to questions such as whether or not the Independent Commission had exceeded its jurisdiction.

16. Reid v. Jamaica, communication No. 355/1989, para. 14.4. ↩
17. Domukovsky et al. v. Georgia (CCPR/C/62/D/623/1995, 624/1995, 626/1995 and 627/1995), para. 18.11; Saidova v. Tajikistan (CCPR/C/81/D/964/2001), para. 6.5; Kovaleva et al. v. Belarus (CCPR/C/106/D/2120/2011), para. 11.6; and Wade v. Senegal (CCPR/C/124/D/2783/2016), para. 12.4. ↩

The author notes that, as concerns his claims under article 17 of the Covenant, the State party has accepted that there was an interference with his privacy and that his reputation was damaged. He also notes that the Attorney General has himself acknowledged that the author was “stigmatized and ashamed by a finding that has not been made and cannot be tested in an environment that has rules of evidence and procedures established over centuries to ensure a fair and impartial hearing”.¹⁸ Similarly, the Assistant Attorney General has stated that the Independent Commission’s proceedings have “seen lives destroyed over trivialities, careers ended over investigations that have gone nowhere and the tarnishing of the reputations of people who appear as witnesses, not as suspects, only to find themselves painted guilty in the public eye by their mere appearance”.¹⁹ The author notes the State party’s contention that there has been no violation of article 17, as the interference with the author’s right to privacy was not unlawful. He maintains that the interference was arbitrary and argues that it is difficult to comprehend what legitimate objective could be said to be pursued by publishing a report that concludes that a person could have engaged in acts of corruption and that, in any event, the publication of the report did not fulfil the requirement of proportionality.

18. The author refers to Christian Porter, Member of Parliament, address to the National Press Club of Australia, 20 November 2019, available at https://dogcu9j3g6mpl.cloudfront.net/public/2019/12/Transcript%20-%20PORTER%2C%20CHRISTIAN%20WED%2020%20NOVEMBER%202019.pdf?VersionId=AYxGNrjCF.RAllvObiuDbANAoL3CxsYu. ↩
19. The author refers to Paul Karp, “Commonwealth Integrity Commission: what is it and how is it different from ICAC?”, The Guardian, 5 October 2021. ↩

Finally, as concerns the State party’s information on the establishment of a commonwealth integrity commission and reforms to the Independent Commission, the author notes that those reforms have no bearing on the claims raised in his communication and that, furthermore, the integrity commission has not yet been established.

On 9 March 2023, the State party submitted additional observations on the communication. It reiterates its submission that the author’s claims do not amount to a violation of the Covenant.

The State party notes that, in its observations, it stated the Government’s intention to establish a commonwealth integrity commission but notes that the Government did not ultimately bring forward legislation to establish that body. However, after a change of government in the most recent federal election, held in 2022, the National Anti-Corruption Commission was established, which will have broad jurisdiction to investigate public sector corruption. The National Anti-Corruption Commission will be empowered to make a finding of fact, including a finding of corrupt conduct and will operate with procedural fairness. For example, a person subject to an adverse finding will have an opportunity to respond before the relevant report is finalized or published and will be able to apply for judicial review. The State party argues that the establishment of the National Anti-Corruption Commission demonstrates its continued commitment to strengthening and improving integrity in the public sector and to upholding its obligations under the Covenant.

As concerns the author’s claims under article 14 (1), the State party reiterates its argument that the Independent Commission is not a judicial body, as it has no power to make criminal findings or impose sanctions or punishments, and it submits that a published finding that a person engaged in corrupt conduct is not, in and of itself, a serious sanction for the purposes of article 14 and it does not involve a sanction that can be regarded as being penal in nature.²⁰

20. The State party refers to general comment No. 32 (2007), para. 15; and Arkadyevich v. Russian Federation (CCPR/C/115/D/2141/2012), para. 7.6. ↩

As concerns the author’s claims under article 14 (5), the State party reiterates its submission that, as the Independent Commission’s proceedings were not a criminal procedure, article 14 (5) does not apply to it. It notes that, should the Committee nonetheless be of the view that article 14 (5) does apply, it submits that the Supreme Court’s review does constitute a substantial review for the purposes of article 14 (5). It refers to the Committee’s reasoning in Volchek v. Belarus and argues that, as in that case, the Supreme Court, in making its decision in the case that is the subject of the present communication, referred not only to the procedural aspects of a hearing but also to the “information on file” and it notes that, in Volchek v. Belarus, the Committee observed that the relevant court’s consideration of both aspects indicated that “the court did engage in an evaluation of facts and evidence and did not limit the review to points of law only” .²¹

21. Volchek v. Belarus (CCPR/C/129/D/2337/2014), para. 6.7. ↩

The State party also reiterates its submission that there was no arbitrary interference with the author’s privacy, family, home or correspondence, as any interference was aimed at the legitimate purpose of investigating the corruption of a public official and, furthermore, that it was subject to a range of proportionate safeguards and restrictions. It further reiterates its submission that the proceedings of the Independent Commission do not fall within the scope of an unlawful attack under article 17 because the finding that the author could have engaged in corrupt conduct was lawful, that is, was done in accordance with the Independent Commission Against Corruption Act and, in any event, any interference would not have reached the high threshold of an unlawful attack required under article 17 of the Covenant.

Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s claim that he has exhausted all effective domestic remedies available to him. The Committee also notes that the State party has not objected to the admissibility of the present communication. The Committee therefore considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

The Committee notes the author’s claims that the investigation conducted by the New South Wales Independent Commission Against Corruption was not conducted by a competent, independent or impartial tribunal, in violation of his rights under article 14 (1), that the public findings by the Independent Commission stating that his conduct could constitute a criminal offence undermined his right to be presumed innocent, in violation of article 14 (2), and the fact that he could not challenge that finding under domestic law violated his right to appeal under article 14 (5) of the Covenant. The Committee notes the State party’s submission that the Independent Commission’s proceedings did not constitute the determination of any criminal charge or rights and obligations in a suit at law and therefore do not fall within the scope of article 14 (1) of the Covenant and its submission that article 14 (2) and (5) is not engaged, as the author was not charged or convicted of a crime as part of the Independent Commission’s proceedings and as its finding regarding corrupt conduct has no attached punishment or sanctions.

The Committee recalls its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, in which it recalled that article 14 (1) applied to cases regarding the determination of criminal charges against individuals or of their rights and obligations in a suit at law. Criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.²² The Committee also recalls that the concept of a “suit at law” encompasses: (a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law; and (b) equivalent notions in the area of administrative law, such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers or procedures regarding the use of public land or the taking of private property.²³ In addition, it may cover other procedures which, however, must be assessed on a case-by-case basis in the light of the nature of the right in question.²⁴ In the present case, the Committee notes that the author was not charged with a criminal offence nor faced a sanction that could be regarded as penal. It also notes that the investigation conducted by the Independent Commission cannot be characterized as a judicial procedure aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law or equivalent notions in the area of administrative law nor as another procedure aimed at determining rights and obligations in a suit of law. Thus, the Committee considers that the author’s claim falls outside of the scope of the protection of article 14 (1) of the Covenant and finds that the author’s claims under article 14 (1) of the Covenant are incompatible ratione materiae with the provisions of the Covenant and are therefore inadmissible under article 3 of the Optional Protocol.

22. General comment No. 32 (2007), para. 15. ↩
23. Ibid., para. 16. ↩
24. Ibid. ↩

With respect to the author’s claims under article 14 (2) and (5) of the Covenant, the Committee notes that article 14 (2) applies to individuals charged with a criminal offence.²⁵ It further recalls that article 14 (5) of the Covenant does not apply to procedures determining rights and obligations in a suit at law or any other procedure not being part of a criminal appeal process, such as constitutional motions.²⁶ In the present communication, the Committee notes that the author has not been charged with or found guilty of a criminal offence. The Committee therefore finds the author’s claims under article 14 (2) and (5) of the Covenant to be incompatible ratione materiae with the provisions of the Covenant and are therefore inadmissible under article 3 of the Optional Protocol.

25. Ibid., para. 3; see also, for example, Jagminas v. Lithuania (CCPR/C/126/D/2670/2015), para. 7.4; and D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.6. ↩
26. General comment No. 32 (2007), para. 46. ↩

The Committee takes note of the author’s claims under article 17 of the Covenant that the public finding by the Independent Commission was a violation of his right to privacy and it considers that the author has sufficiently substantiated those claims for the purposes of admissibility and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee takes note of the author’s claims that the public finding by the Independent Commission that his conduct could constitute a criminal offence was a violation of his right not to be subjected to arbitrary or unlawful interference with his privacy, family, home, correspondence, honour and reputation. It notes his claim that that finding left him with a stain on his reputation, as he could not challenge the finding due to the lack of an exoneration protocol under the Independent Commission Against Corruption Act. The Committee also notes the State party’s observations in which it acknowledged that there had been interference with the author’s privacy and that his reputation had been damaged but that, notwithstanding that interference, there had been no violation of the author’s rights under article 17 of the Covenant, as the interference had been lawful, not arbitrary and had not constituted an unlawful attack on the author’s honour and reputation within the meaning of article 17 of the Covenant.

The Committee recalls its general comment No. 16 (1988) on the right to privacy, according to which article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with their privacy, family, home or correspondence and against unlawful attacks on their honour and reputation.²⁷ It recalls that the term “unlawful” means “that no interference can take place except in cases envisaged by law”.²⁸ The Committee also recalls that the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.²⁹ Accordingly, any interference with privacy and family must be proportionate to the legitimate end sought and necessary in the circumstances of any given case.³⁰ The Committee further recalls that article 17 affords protection to personal honour and reputation and that States parties are under an obligation to provide adequate legislation to that end, while provision must also be made for everyone effectively to be able to protect themselves against any unlawful attacks that do occur and to have an effective remedy against those responsible.³¹

27. General comment No. 16 (1988), para. 1. ↩
28. Ibid., para. 3. ↩
29. Ibid., para. 4. ↩
30. See Toonen v. Australia, communication No. 488/1992, para. 8.3. ↩
31. General comment No. 16 (1988), para. 11. ↩

The Committee notes the State party’s argument that the interference with the author’s right to privacy was not arbitrary but, rather, was aimed at the legitimate purpose of investigating corruption in the public sector and subject to a range of proportionate procedural safeguards and restrictions. It also notes the State party’s submission that the Independent Commission had due regard for the balance between the public interest and preserving the privacy of the author in making its decision to hold a public inquiry and recommending that its report be made public and that, accordingly, while the author’s right to privacy was interfered with as a result, the Independent Commission’s inquiry was not arbitrary nor did it constitute an unlawful attack on the author’s honour and reputation. The Committee further notes the State party’s argument that reforms to the Independent Commission and the establishment of the National Anti-Corruption Commission demonstrate its continued commitment to strengthening and improving integrity in the public sector while continuing to uphold its obligations under the Covenant. The Committee notes the author’s claim that the interference with his right to privacy was arbitrary, as the publication of the Independent Commission’s findings did not fulfil a legitimate objective nor did it meet the requirement of proportionality.

In the present case, the Committee notes that the State party has not disputed that the public inquiry of the Independent Commission constituted an interference with the author’s right to privacy. It also notes that the inquiry and its subsequent findings were authorized under the Independent Commission Against Corruption Act and thus envisaged by law. The Committee further notes that the question before it is therefore to assess whether the inquiry and the publication of the findings constituted an arbitrary interference with the author’s right to privacy under article 17 of the Covenant. The Committee notes in that respect that a public hearing was held and a public report published in which the Independent Commission concluded that the author had sought to improperly influence the impartial exercise of the official functions of a public officer and that that conduct could constitute a criminal offence under section 8 (1) (a) of the Independent Commission Against Corruption Act and section 249B (2) (b) of the Crimes Act 1900 (New South Wales), but that ultimately no criminal charges were filed against the author by the Department of Public Prosecutions. The Committee takes note of the State party’s argument that that the interference was not contrary to the author’s rights under article 17 of the Covenant, as the Independent Commission’s inquiry was conducted in the interest of pursuing a legitimate objective, namely, investigating alleged corruption in the public sector. The Committee, however, recalls that, even in the pursuit of such a legitimate aim, any interference with privacy must also be proportionate to the legitimate end sought and necessary in the circumstances of any given case. The Committee notes, in connection to the Independent Commission’s inquiry involving the author, that the Office of the Inspector published a report in 2017 that was critical of the inquiry and that concluded that the Independent Commission’s findings were weak and flawed, while also criticizing the public nature of the proceeding, noting that the Independent Commission had not provided written reasoning as to its decision to make the proceedings public and criticizing the lack of an exoneration protocol available to the author. The Committee also notes statements made by the Attorney General, as referred to by the author, in which the Attorney General stated that the author and his co-accused had been unable to test the corrupt findings made against them in a court of law and that the consequence was that each had been stigmatized and ashamed by a finding that had not been made and could not be tested in an environment that had rules of evidence and procedures established over centuries to ensure a fair and impartial hearing to them and to their opponents.³² In the present case, the Committee finds that the decision by the Independent Commission to hold a public hearing and make public findings in which it concluded that the author had sought to improperly influence the impartial exercise of the official functions of a public officer, but where those findings could not be challenged by the author before any domestic authority and for which the Independent Commission provided no reasoning as to its decision to make the proceedings and findings public, amounted to an arbitrary interference with the author’s right to privacy. The Committee finds that the decision to make the proceedings public, without providing the author with adequate procedural safeguards, cannot be found to be proportionate and necessary to the objective pursued in the particular circumstances of the case, especially taking into account the author’s claim that the publication of the findings damaged his reputation and his ability to conduct his family business. In that connection, the Committee takes note of the State party’s argument that subsequent reforms to the Independent Commission and the establishment of the National Anti-Corruption Commission demonstrate its continued commitment to strengthening and improving integrity in the public sector while continuing to uphold its obligations under the Covenant. It notes, however, that those reforms do not have any bearing on the author’s case nor have they offered him an avenue of redress.

32. The author refers to Christian Porter, Member of Parliament, address to the National Press Club of Australia, 20 November 2019. ↩

The Committee therefore concludes that the inquiry conducted by the Independent Commission and its adverse public findings against the author, which he could not challenge, amounted to a violation of the author’s rights under article 17 of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 17 of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to take appropriate steps to provide adequate compensation and reparation to the author for the violation suffered. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.

This dissenting opinion refers exclusively to the violation of article 17 of the Covenant, the argument for which, to my mind, is not well developed in the Committee’s Views.

The State party recognizes that the publication of the results of the investigation carried out by the New South Wales Independent Commission Against Corruption affected the author’s right to honour. However, it maintains that the publication of the results of the investigation was permitted by law. Furthermore, the State party argues that the requirement of “non-arbitrariness” is not applicable when it comes to justifying an attack on honour. It bases its argument on the fact that, in the case of the right to honour, article 17 of the Covenant proscribes unlawful interference, not arbitrary interference – the latter being expressly prohibited with regard to the other rights covered by the article, namely, privacy, family, home and correspondence – and the fact that the results of the investigation by the New South Wales Independent Commission Against Corruption were published in accordance with the domestic legislation in force. In any event, as a subsidiary argument, the State party asserts that the publication of the results of the investigation was not arbitrary.

In support of the latter argument, the State party sets out the parameters taken into account in weighing the author’s right to his honour against the other legal interests at stake, and it was on the outcome of that assessment that the decision to publish the results of the investigation carried out by the New South Wales Independent Commission Against Corruption was based (see para. 4.11).

The Committee concludes that there was a violation of article 17 of the Covenant, not because the Committee itself disagrees with the assessment carried out by the domestic authority to the point of considering it “arbitrary”, but because the author was unable to challenge the outcome of the investigation (see para. 8.6), which amounts to asserting that there has been a violation of the right to honour arising from a violation of the right to effective judicial protection or access to justice. This is a difficult argument to make, because it combines rights of a different nature – one substantive, the other procedural – but, above all, because it requires the reintroduction of the alleged violation of article 14 of the Covenant, which the Committee itself has considered inadmissible (see paras. 7.5 and 7.6).

Furthermore, the Committee’s conclusion is inconsistent in that it alters the terms in which the individual communication was formulated, given that when the author invoked the violation of article 17 of the Covenant, he did not at any time mention that it had been caused by the impossibility of challenging the findings of the New South Wales Independent Commission Against Corruption (see paras. 3.1 and 3.2).

In the light of these concerns, the Committee should consider whether and to what extent the Covenant’s due process protections apply to investigations by specialized anticorruption agencies. One possibility for doing so is the statement in general comment No. 32 (2007) that article 14 may “cover other procedures which, however, must be assessed on a case-by-case basis in the light of the nature of the right in question.”³⁶

36. General comment No. 32 (2007), para. 16. ↩