Punishment without crime has no place in the law

President of the Legislative Council Ben Franklin and the Speaker of the NSW Legislative Assembly Greg Piper receive the ICAC report on former NSW Premier Gladys Berejiklian.

It is hard not to be troubled by the NSW Independent Commission Against Corruption’s finding that Gladys Berejiklian engaged in “serious corrupt conduct” – yet committed no crimes. And if that decision portends what could be done by the newly established National Anti-Corruption Commission, Australians would do well to be deeply concerned.

To say that is not to condone Berejiklian’s reprehensible conduct. But if the law should imitate God in being no respecter of persons, treating the grandest no less severely than the most humble, it should surely be no disrespecter of persons either, instead granting everyone the “equal respect” that underpins the rule of law.

What “equal respect” means is that the dignity of the great is as deserving of protection as that of the weak, so that the state’s power to punish – including by branding its victims with humiliating epithets – ought to be constrained by the most effective of safeguards.

Moreover, while we bestow public honour (for instance, through our system of national awards) for the virtue of a lifetime’s achievements, we have, until recently, inflicted the punishment of public dishonour not for vice, as do theocracies, but only for clearly identified acts their perpetrators could and should have known were illegal.

Of course, given the mood of the times, there might well be public enthusiasm for paralleling the Order of Australia with a Disorder of Australia, officially tarring individuals with appropriately graded degrees of disgrace; and it may be that our anti-corruption tribunals partly play that role.

However, one scarcely needs to be a fuddy-duddy to remain attached to the ancient principle of “Nullum crimen, nulla poena sine lege” (No crime, no penalty without a law) – which means no punishment can legitimately be imposed unless a properly defined crime has been committed.

It is nonetheless true that, viewed historically, the full realisation of that principle has proven especially complex and protracted in respect of corruption. In large part, that reflects the fact that the concept of corruption was, for many centuries, hopelessly polysemic.

Gladys Berejiklian surrounded by media as she arrives for the ICAC hearings. Picture: NCA NewsWire / Damian Shaw

Thus, the term as frequently referred to rottenness in the body politic, and in its leading members’ moral quality, as to individual conduct, with the result that people have been accused of corruption less for actionable deeds than for epitomising that real or presumed degeneration.

The difficulties that creates for the rule of law were already starkly apparent in the first body charged with eradicating corruption, the Censors instituted in 443-435BC by the Roman Republic. While primarily responsible for carrying out the census, they had the right to affix a damning mark (nota censoria) to a senator’s name, effectively terminating a senatorial career.

Roman law defined a number of prosecutable offences against the public good, including ambitus (bribery) and peculatus (theft of public funds). But particularly in the Republic’s waning years, when intensified electoral competition led to an explosion in the “gifts” showered on voters, in civic construction targeted to swinging tribes and in lavish spending on public games, the patrician Censors used the nota censoria to disqualify their political adversaries, regardless of whether a prosecutable offence had been committed.

In 58BC, Publius Clodius Pulcher, Tribune of the Plebs, succeeded in passing a law that required the Censors to institute proper legal proceedings before they declared a senator corrupt; but that law’s repeal, which followed vicious attacks on Clodius’ motives, allowed declarations of “infamia” to continue, fuelling the divisions that led to the Republic’s downfall.

Much the same could be said of the charges of corruption that played so prominent a role in 18th century England. As heightened conflict within the elite roiled a newly empowered House of Commons, the challenges the Hanoverian prime ministers faced in mustering durable coalitions boosted their reliance on the widespread distribution of benefits.

Those actions were savaged by the factions seeking to weaken the crown; but there is little reason to believe the critics were any more virtuous than their adversaries – or that their criticisms accurately reflected the forces at work.

Rather, Sir Lewis Namier’s famous conclusion, that the torrents of benefits were “not a shower-bath from above, constructed by Walpole, the Pelhams or George III, but a water-spout springing from the rock of freedom to meet the demands of the People”, has stood the test of time – and it is no coincidence that Edward Gibbon, in chapter 21 of the Decline and Fall, called what the factions termed corruption “the most infallible symptom of constitutional liberty”.

NACC commissioner Paul Brereton

Yet the period did set the foundations for notable changes, which played themselves out over the course of the 19th century, in the framework governing official misconduct.

To begin with, it entrenched the notion, which had emerged in the 17th century, that public office was a trust that imposed stringent duties of probity. At the same time, the development of a “loyal opposition” – whose effectiveness was greatly strengthened by the resurrection in the 1780s of parliamentary committees scrutinising public expenditure – and the growth of a vigorously free press ensured breaches of that trust were identified and loudly condemned, rebounding on their perpetrators.

Meanwhile, legal reformers, led by the redoubtable Jeremy Bentham, blasted parliament and the courts for punishing conduct without having carefully specified exactly what was prohibited. And most of all, the broadening of the franchise brought with it the realisation that so long as there was adequate disclosure, determining whether a parliamentarian, party or government lived up to the community’s moral standards was not a task for the courts – or for parliament – but for the electorate.

Reflecting those trends, a series of great legal reforms, beginning in 1883, dramatically narrowed the previously inchoate concept of corruption, centring it clearly on the misuse of office for private gain. In Britain and its colonies, the days when loose charges of corruption could be pursued without affording their targets the full protections of the criminal law seemed to be over.

But not, it turns out, in Australia. If the ICAC legislation is vague, that of its national counterpart is even vaguer, allowing vast swathes of conduct to be characterised as corrupt. The scope that creates for politically motivated mischief, and for the commissions to abuse their power to harass and humiliate, is correspondingly greater than it has been for centuries.

It is, in contemplating those possibilities, impossible not to be reminded of Bentham’s scathing comment on the laws of his time. They are, he wrote, like those “a man makes for his dog”: they don’t tell the poor creature beforehand “what he should not do”; “they lie by till he has done something which they say he should not have done – and then they beat him for it”. The only question is who they will beat next.