tag:theconversation.com,2011:/uk/topics/margaret-cunneen-16127/articlesMargaret Cunneen – The Conversation2015-06-29T19:00:46Ztag:theconversation.com,2011:article/440572015-06-29T19:00:46Z2015-06-29T19:00:46ZWhat’s in a name? Cameron singles out BBC over Islamic State coverage<p>Speaking on <a href="http://www.bbc.co.uk/radio/player/b0607w1d%20">BBC Radio 4’s Today</a> programme about the appalling murders in Tunisia, David Cameron told presenter John Humphreys that he wished the BBC would desist from referring to the terrorist organisation responsible for these killings as “Islamic State”. <a href="http://www.independent.co.uk/news/uk/politics/i-wish-the-bbc-would-stop-calling-it-islamic-state--david-cameron-unleashes-frustration-on-broadcaster-10351885.html">He said</a>:</p>
<blockquote>
<p>I wish the BBC would stop calling it ‘Islamic State’ because it is not an Islamic State. What it is, is an appalling barbarous regime … it is a perversion of the religion of Islam and many Muslims listening to this programme will recoil every time they hear the words.</p>
</blockquote>
<p>That Humphreys pointed out that it was “tricky” to decide what to call IS when they indeed call themselves by that name is worth noting, because the debate around what to name this “existential threat” has been going on for months. </p>
<p>As <a href="http://www.independent.co.uk/news/world/middle-east/isis-vs-islamic-state-vs-isil-vs-daesh-what-do-the-different-names-mean-9750629.htm">Lizzie Dearden</a> wrote in The Independent, Islamic State is precisely how the extremists wish to be known: in June 2014 the Shura Council of the <a href="http://www.al-monitor.com/pulse/originals/2014/06/jordan-isis-anbar-iraq-salafi-jihadist-maan.html">Islamic State of Iraq and al-Sham</a> (ISIS) announced the return of the caliphate and proclaimed Abu Bakr al-Baghdadi as “caliph of Islam”. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"615440055809617920"}"></div></p>
<p>The council decided to adopt Islamic State, <a href="http://www.jomec.co.uk/blog/wp-admin/monitor.com/pulse/security/2014/06/iraq-syria-isis-announcement-islamic-caliphate-name-change.html#ixzz3eS5XRlO5">wrote Al Monitor</a>, because it was a “clear indication that this organisation was no longer confined to one or two countries”.</p>
<p>The French government refuses to use “Islamic State”. In September last year, calling on the media to follow his lead, French foreign minister <a href="http://www.france24.com/en/20140917-france-switches-arabic-daesh-acronym-islamic-state/">Laurent Fabius said</a>:</p>
<blockquote>
<p>This is a terrorist group and not a state. I do not recommend using the term Islamic State because it blurs the lines between Islam, Muslims and Islamists. The Arabs call it ‘Daesh’ and I will be calling them the ‘Daesh cutthroats’.</p>
</blockquote>
<p>So what Cameron was urging the BBC to do was in accordance with current thinking and, I think we can deduce, informed by collective British Muslim opinion. </p>
<p>Last autumn the prime minister received a letter from signatories including Mohammed Abbasi, representing the Association of British Muslims, and Amjad Malik QC, president of the Association of Muslim Lawyers. <a href="http://www.theguardian.com/world/2014/sep/13/term-islamic-state-slur-faith-david-cameron">They wrote</a>:</p>
<blockquote>
<p>We do not believe the terror group responsible should be given the credence and standing they seek by styling themselves Islamic State. It is neither Islamic, nor is it a state.</p>
</blockquote>
<p>IS semantics aside, it’s interesting to consider why Cameron chose only to admonish the BBC. He could have just as easily said: “I wish the media would stop calling it Islamic State” because, after all, one is just as likely to read of IS in the <a href="http://www.telegraph.co.uk/news/worldnews/islamic-state/11476731/The-brutality-of-Islamic-State.html%20">Telegraph</a> or the <a href="http://www.dailymail.co.uk/news/article-3142884/David-Cameron-says-beat-ISIS-terrorists-threaten-way-life-Sousse-terror-attack.html">Mail</a> – or even here on The Conversation – as to hear it spoken of on the BBC.</p>
<h2>Enemy within?</h2>
<p>Plus ca change. The fact is that in times of national crises, particularly war, the BBC has become used to being criticised for the content and manner of their coverage. This stretches back at least as far as World War II when Churchill expressed his intense discontent at how the BBC reported the early days of conflict. Lord Reith, founding father of the BBC, wrote in 1949 of Churchill speaking of them as the “enemy within the gates, continually causing trouble, doing more harm than good … something drastic must be done about them.”</p>
<p>By the time of the Suez Crisis in 1956 prime minister Anthony Eden was fully expecting the BBC to become a functioning arm of the establishment. On the 40th anniversary of the crisis, former member of government during the Eden years and Telegraph editor, Lord Deedes, wrote:</p>
<blockquote>
<p>There was a feeling during Suez among the ministers that the BBC was in the last resort a branch of government. They were not easily disabused of this notion.</p>
</blockquote>
<p>During the Falklands war of 1982 it was the government’s wish that the media should suspend objective reporting and news gathering and embrace the British cause without question. When the BBC attempted to report objectively it was met with the full force of the Thatcher government. She herself <a href="http://www.telegraph.co.uk/news/politics/margaret-thatcher/11684868/Margaret-Thatcher-papers-BBC-assisted-the-enemy-during-the-Falklands-War.html%C2%A0">“strongly”</a> believed that the BBC was assisting the enemy – while Norman Tebbit wrote in his 1988 <a href="https://books.google.co.uk/books?id=YFu1AwAAQBAJ&pg=PT113&lpg=PT113&dq=the+unctuous+%E2%80%9Cimpartiality%E2%80%9D+of+the+BBC%E2%80%99s+editorialising+was+a+source+of+grief+and+anger&source=bl&ots=pwmncnE_Rs&sig=7o2e6DESZl3l8nkNzVjqtdjUeC0&hl=en&sa=X&ei=aWqRVcWRGIGbsgHLiYjADg&ved=0CC0Q6AEwAg#v=onepage&q=the%20unctuous%20%E2%80%9Cimpartiality%E2%80%9D%20of%20the%20BBC%E2%80%99s%20editorialising%20was%20a%20source%20of%20grief%20and%20anger&f=false">autobiography</a>:</p>
<blockquote>
<p>The unctuous ‘impartiality’ of the BBC’s editorialising was a source of grief and anger … For me, the British broadcasting Corporation might have called itself the Stateless Persons Broadcasting Corporation for it certainly did not reflect the mood of the people who finance it. The wounds inflicted by the BBC have not healed.</p>
</blockquote>
<p>Little changed during the Blair years. In 2004, the former director general, Greg Dyke, wrote that the former PM had <a href="http://news.bbc.co.uk/1/hi/uk/3609072.stm">“unleashed the dogs”</a> after the Hutton report – and in his memoirs Dyke prints letters from Blair which he claims show how the government tried to “bully” the BBC into changing its coverage in the run-up to the Iraq war. A BBC journalist told the Scottish <a href="http://www.coldtype.net/Assets.04/Essays.04/BBC.Herald.pdf">Daily Herald,</a>:</p>
<blockquote>
<p>You have to understand, we just could not cope with the barrage of complaints … Long letters detailing alleged mistakes and misrepresentations and demanding that we answer every specific point we raised. We felt under undue pressure as an organisation. We felt it was a case of daily harassment.</p>
</blockquote>
<h2>Mutual suspicion pact</h2>
<p>More broadly, the relationship between the BBC and successive governments since its creation in 1926 has been characterised by antagonism. Various governments, regardless of party, have attempted to limit the BBC’s perceived power and influence.</p>
<p>In times of warfare or threats to national security the aim has been to either make the BBC subordinate to government or, more realistically, to weaken its ability to operate relatively independently and autonomously. The conflicts between the two serve to illustrate the gap between what government expects the broadcasters to report and what the broadcasters see as their professional duty to report.</p>
<p>The point is that the BBC is a singular, publicly-funded broadcaster with a rich history and an international reputation which – deserved or not – means that it has a much scrutinised news output. Successive governments have sought to manage that output so that it presents the best view of themselves while maintaining the status quo. </p>
<p>It is in this context that we must view Cameron’s decision to call out the BBC, and only the BBC, for it’s reporting of Islamist terrorism.</p><img src="https://counter.theconversation.com/content/44057/count.gif" alt="The Conversation" width="1" height="1" />
Successive governments have criticised the BBC for being too impartial or not impartial enough.John Jewell, Director of Undergraduate Studies, School of Journalism, Media and Cultural Studies, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/402992015-04-16T04:24:43Z2015-04-16T04:24:43ZAre corruption watchdogs out of control? Their records say no<p>The <a href="https://theconversation.com/high-court-forces-icac-to-drop-cunneen-inquiry-and-review-others-40171">High Court ruling</a> against the Independent Commission Against Corruption’s attempt to investigate a senior lawyer raises interesting questions about the powers and activities of anti-corruption agencies. </p>
<p>The <a href="http://www.abc.net.au/news/2015-04-15/margaret-cunneen-inquiry-icac-loses-high-court-bid/6393364">decision on Wednesday</a> focused on the definition of corruption within New South Wales’ <a href="http://www.legislation.nsw.gov.au/maintop/view/inforce/act+35+1988+cd+0+N">ICAC statute</a> and meant ICAC could not investigate the Crown prosecutor, Margaret Cunneen, whose alleged conduct may have perverted the course of justice.</p>
<p>Some may see the High Court ruling that ICAC exceeded its powers as evidence <a href="http://www.smh.com.au/nsw/craig-baumann-icac-a-star-chamber-lacking-procedural-fairness-20141118-11oy1i.html">for claims</a> that the anti-corruption agency is <a href="http://www.theherald.com.au/story/3014466/its-an-out-of-control-star-chamber/">out of control</a>.</p>
<p>But our research, a soon-to-be published review of integrity bodies around Australia, suggests otherwise: less than 1% of thousands of complaints to anti-corruption agencies in NSW and Western Australia went to formal investigation.</p>
<p>However, maladministration, misconduct and corruption often morph into each other. In practice, there are no clear boundaries. It is important to see the activities
for what they are and for the different kinds of harms they might do to the community. </p>
<h2>Why corruption demands unflinching action</h2>
<p>Corruption is a real and tangible problem. It destroys good government and undermines social and economic goals and aspirations. We have seen some admirable activities by our anti-corruption agencies in solid attempts to keep our politics and administration clean, transparent and built on integrity.</p>
<p>A politician or person in public service gets a salary. That should be the only reward for that public service. There should be no favours for a bit extra, no payments for decisions, no persuasions to do things in certain ways for extra rewards.</p>
<p>It should be fairly clear when officials do wrong things, when they fail to do something they should do, or when they do something permissible but purposely do it in an improper manner. This is the essence of corruption: breaching trust and improperly trading on that entrusted authority.</p>
<p>Among the public, there is a <a href="http://politicsir.cass.anu.edu.au/sites/default/files/2012-10-26_ANUpoll_ethics_corruption.pdf.pdf">widespread view</a> that corruption <a href="http://www.ibac.vic.gov.au/docs/default-source/research-documents/ibac-perceptions-corruption-report-v2-2013.pdf">is increasing</a> in Australia, and that many in politics are corrupt. </p>
<p>However, there is a great danger to our society if we label as corrupt those activities that involve normal decision-making and operational matters that might not be to the liking of ideological or partisan opponents, or perhaps demonstrate administrative incompetence.</p>
<h2>How many complaints do anti-corruption agencies pursue?</h2>
<p>In our research project we found that of all the things reported to the NSW ICAC (around 3000 cases), less than 1% went to full investigation. Three-quarters were closed without further action. </p>
<p>Similarly in Western Australia, less than 1% of 6000 cases went to full investigation, but most were referred for external investigation or for agency system-based evaluation.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=629&fit=crop&dpr=1 600w, https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=629&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=629&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=790&fit=crop&dpr=1 754w, https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=790&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/78137/original/image-20150416-31694-6fcfrz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=790&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An official accepting money for favours is a clear-cut case, but corruption can be a more murky affair.</span>
<span class="attribution"><span class="source">Shutterstock/Maryna Pleshkun</span></span>
</figcaption>
</figure>
<p>In the same project we tried to classify the complaints that came to the anti-corruption agencies. We found that overwhelmingly they were not about corruption, but about criminal activities such as misappropriation or assault, drug use in the workplace, poor work behaviour, such as harassment, unprofessional conduct, neglect of duty, or failure to act.</p>
<p>A large proportion of behaviour (in the order of 25% of cases) breached codes of conduct, demonstrated conflict of interest, poor control of information, petty misuse of power, or breach of confidentiality.</p>
<p>A recent case (and I stress that I do not know any more that what I read in the media) involved a chief executive of a major organisation who was referred to an anti-corruption agency. He was alleged to have misused his credit card and
some appointments may not have complied with all the processes required. </p>
<p>This person ran a billion-dollar enterprise; he needed to be nimble with strategic decisions and he rubbed his opponents up the wrong way. To use a corruption allegation to sort out these managerial issues seems not to be the right way to go. There are other managerial remedies.</p>
<p>The landscape of public-service delivery often does not distinguish among corruption, misconduct and maladministration. Where there is fraud and embezzlement, there is a clear criminal case to be made. Where there is laziness, poor service, or even bullying and harassment, management - not an anti-corruption agency - must deal with that.</p>
<p>The case on which the High Court ruled would seem, on the face of things, to involve allegations that would be a matter for the police.</p>
<h2>Transparency is vital in a murky area</h2>
<p>So somewhere in this murky field there is real corruption: tangible and egregious examples of manipulation for private benefit, of bribery, extortion, nepotism, conflict of interest, misuse of information, cronyism. We have seen these behaviours through the work of our anti-corruption agencies, and have seen
exposure, criminal prosecution and recommendations for better practice.</p>
<p>It is important to distinguish doing one’s job from manipulating the system. When an official is bought a cup of coffee or a modest lunch, that in itself is not corruption. It is corruption, however, when that exchange leads to a change of a decision or an outcome that is bought.</p>
<p>Guarding against allegations of corruption requires a high level of transparency. There should be no secrecy about things that might be perceived by others as benefits, but perceived by the official as the nuts and bolts of doing one’s job. </p>
<p>The High Court did not canvass these matters, but these are the sorts of issues that make up the nuts and bolts of corruption mitigation.</p><img src="https://counter.theconversation.com/content/40299/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Graycar led a research team at the ANU which received funding in 2013 from the Victorian Independent Broad-based Anti-corruption Commission.</span></em></p>ICAC has claimed some high-profile scalps, prompting some claims that the watchdog is out of control. Yet our new research shows 99% of complaints don’t proceed to a formal investigation.Adam Graycar, Professor Social and Policy Studies, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/401712015-04-15T07:13:31Z2015-04-15T07:13:31ZHigh Court forces ICAC to drop Cunneen inquiry and review others<p>Today, a majority of the <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2015/hca-14-2015-04-15.pdf">High Court held</a> that NSW’s Independent Commission Against Corruption (ICAC) did not have the power to investigate conduct allegedly engaged in by Margaret Cunneen SC, NSW’s deputy senior Crown prosecutor, and her son. </p>
<p>The decision is likely to have a bearing on <a href="http://www.smh.com.au/nsw/high-court-rejects-icacs-bid-to-investigate-crown-prosecutor-margaret-cunneen-20150415-1mjpgb.html">other ICAC investigations</a> into the conduct of private individuals.</p>
<p>In May 2014, Cunneen was alleged to have told her son’s girlfriend to fake chest pains in order to prevent a police officer from taking a blood alcohol reading after a car accident.</p>
<h2>What did the High Court decide?</h2>
<p>The High Court had to consider a narrow legal issue: whether the alleged conduct fell within the definition of “corrupt conduct” in the <a href="http://www.legislation.nsw.gov.au/maintop/view/inforce/act+35+1988+cd+0+N">Independent Commission Against Corruption Act 1988 (NSW)</a>. The issue arose because the alleged conduct involved Cunneen in her personal capacity (rather than in her capacity as a Crown prosecutor). While it might have affected or hindered the efficient investigations of the police officers, it involved no improper conduct on their part.</p>
<p>The ICAC Act allows ICAC to investigate private individuals, but only where their conduct “adversely affects” or “could adversely affect” the exercise of official functions by public officials where it could involve a list of matters. These include bribery, blackmail, fraud and, relevantly for Cunneen, perverting the course of justice.</p>
<p>The <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2015/14.html">High Court</a> held, by a 4:1 majority, that Cunneen’s alleged conduct fell outside the definition of “corrupt conduct”. They held that corrupt conduct requires impropriety on the part of the public official of the kind listed in the Act. This includes acting dishonestly or impartially, acting in breach of public trust or misusing public information or material.</p>
<p>For those interested in the legal arguments, I have <a href="http://theconversation.com/icac-asks-high-court-to-decide-extent-of-its-investigatory-powers-38102">previously explained</a> these in more detail.</p>
<h2>Does the decision affect other ICAC investigations?</h2>
<p>ICAC had argued that if the High Court adopted a narrow definition of “corrupt conduct”, this would affect a number of its concluded and ongoing investigations. While the decision will undoubtedly affect some of ICAC’s investigations into the conduct of private individuals, it is difficult to predict its precise impact. The facts of each investigation will have to be assessed in light of the court’s explanation of the term “corrupt conduct”.</p>
<p>It would certainly be expected that ICAC will review current investigations. And individuals subject to previous or ongoing ICAC investigations will be keenly reviewing the decision to see whether ICAC has exceeded its powers in those investigations.</p>
<p>Depending on how ICAC responds, today’s decision might also provide the impetus for a more systemic review of ICAC’s investigations by one of its oversight bodies. The <a href="http://www.oiicac.nsw.gov.au/">Inspector</a> of ICAC, currently former Supreme Court Justice David Levine AO RFD QC, is tasked with auditing ICAC’s operations to ensure compliance with NSW law. A <a href="http://www.parliament.nsw.gov.au/icac">parliamentary joint committee</a> is charged with monitoring and reviewing the exercise by ICAC of its functions and reporting to Parliament.</p>
<h2>ICAC’s future: should the government respond?</h2>
<p>Given the political damage that both major parties have sustained before ICAC in recent years, there may not be much appetite for extending its powers in light of today’s decision. However, the decision provides an important opportunity to reconsider the appropriate scope of the commission’s powers.</p>
<p>When then premier Nick Greiner <a href="http://www.icac.nsw.gov.au/about-the-icac/legislation/second-reading-speech">introduced</a> ICAC in 1988, he said it was part of restoring:</p>
<blockquote>
<p>… the integrity of public administration and public institutions in this state. Nothing is more destructive of democracy than a situation where the people lack confidence in those administrators and institutions that stand in a position of public trust.</p>
</blockquote>
<p>However, he stressed that it was not intended that ICAC would “investigate crime generally”.</p>
<p>It could be argued that today’s High Court’s decision is consistent with the principles on which ICAC was founded. The court’s interpretation of ICAC’s powers limits the commission’s jurisdiction to ensure its focus is on certain types of deliberately improper conduct on the part of public officials.</p>
<p>Private individuals can only be investigated where their conduct has the capacity to affect the probity of a public official’s conduct. Other illegal conduct by private individuals is left to be investigated by other agencies, such as the NSW police force.</p>
<p>However, a number of recent, and very serious, ICAC investigations have revealed that attempts by private individuals to interfere with government decision-making perhaps ought to fall within ICAC’s jurisdiction. While these matters may not involve improper conduct by government officials, they may still have the capacity to undermine the integrity of government processes. In this way, they affect public trust in government institutions.</p>
<p>Such actions often not only affect the integrity of government processes, but also how taxpayers’ money is spent or public assets are used. This can lead to inequality of opportunity for businesses and individuals.</p>
<p>The High Court expressed some concern that a wider view of corrupt conduct would bring too many offences within ICAC’s jurisdiction. At a practical level, this might mean ICAC would be unable to discharge its functions. This concern, however, could be addressed by reviewing the seriousness of the conduct that ICAC chooses to investigate.</p>
<h2>Other lessons from the Cunneen decision</h2>
<p>Today’s High Court decision did not consider whether, given the relatively low level of seriousness of the alleged conduct, ICAC should have investigated Cunneen. ICAC’s decision to conduct a public investigation also warrants further attention.</p>
<p>Under its statute, ICAC must “direct its attention to <em>serious</em> corrupt conduct and <em>systemic</em> corrupt conduct”. The commission is also directed to take into consideration whether the subject matter of the investigation is trivial in determining whether to proceed. </p>
<p>To conduct a public inquiry, ICAC must be “satisfied that it is the public interest to do so”, taking into account, among other matters, “the <em>seriousness</em> of the allegation or complaint being investigated”.</p>
<p>While not raised directly by today’s decision, the Cuneen investigation highlights that ICAC’s compliance with these statutory requirements may also be in need of review.</p><img src="https://counter.theconversation.com/content/40171/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council. She previously received funding from the Local Government Association (South Australia) through their research and development scheme, to undertake a survey of public sector and community attitudes to corruption, misconduct and maladministration in local government.</span></em></p>The High Court has decided ICAC did not have the power to investigate a NSW Crown prosecutor, so the commission will have to review investigations involving the conduct of private individuals.Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.