Ministers in every government — state and federal — are the biggest winners from yesterday’s courtroom victory in NSW by Ian Macdonald and John Maitland.
They now have the benefit of bright-line guidance on exactly what sort of decisions will amount to the criminal offence of misconduct in public office.
The primary reason Macdonald and Maitland are out of prison, awaiting a new trial, is that the jury that convicted them was misdirected. But the real significance of yesterday’s ruling is that an extraordinary five-judge panel of the NSW Court of Appeal has clarified a confused body of law governing this common-law offence.
They have done so with the authority of a rare and unanimous five-judge decision, based on precedent, that should come as a great relief to politicians worried about the almost inevitable introduction of a federal anti-corruption agency.
The new formulation will narrow the options open to the prosecution when Macdonald and Maitland face their retrial.
The Court of Appeal’s formulation is closely related to the submission of Macdonald and Maitland and, therefore, when applied at their retrial, will probably improve their chances of exoneration.
They are merely the first beneficiaries of this judgment. In time, every minister who makes a decision that can be shown to be legitimate will also benefit.
The prospect of being second-guessed by an overzealous anti-corruption agency or a political opponent is diminished — if ministers stick to rules that are now easier to understand.
The new approach to misconduct in public office is essentially based on a “but for” test that is intended to help juries sift through ministerial decisions that might have two motivations — one legitimate, and the other not so.
If a ministerial decision would never have been made “but for” the illegitimate component, the decision-maker could be heading for prison.
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