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Chapter 1: Introduction

Chapter 1: Introduction

Published in:
Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 1-25

This book seeks to develop a theory of government illegality, and to specify measures by which breaches of law by agents of the state may be prevented and controlled. Under what circumstances are governments more likely to abuse those powers which they command? What factors predispose public servants and elected officials to engage, with intent or through negligence, in unlawful activity? What political, organisational or administrative structures are best suited to discourage official misconduct? What form of remedial responses are best suited to deter future abuses, to make whole the injured citizen, and to restore the rule of law? These are among the questions which the following pages will begin to answer.

The theory is not intended to be universally applicable. Conceived within the context of western parliamentary democracies, and based on data from the Commonwealth of Australia, its usefulness to totalitarian systems, autocracies, and lesser dictatorships is questionable.

Australians are fortunate to live in a society which is basically well governed. As far as one can discern, political dissidents are not tortured and murdered by members of the defence forces, as they have been in Argentina (Amnesty International 1981). Public health authorities do not conduct grotesque experiments on unwitting subjects, as they have in the United States (Jones 1982; Bowart 1978). Postal officials do not pass on mail illegally to law enforcement agencies as they have in Canada (Canada 1981). Australian intelligence agents do not detonate explosive devices in friendly foreign harbours, as have the French (Shears & Gidley 1985). Managers of Australia's nuclear reactors have not, through their negligence, caused a catastrophic accident as have their counterparts in the Soviet Union.

Notwithstanding their relatively good showing by world standards, agencies within the Australian public sector are far from faultless. As the following, chapters will demonstrate, they are capable of inflicting considerable harm.

In 1977, a judicial inquiry in Queensland found that fabrication of confessions, perjury, and planting of evidence by police were pervasive (Queensland 1977). Eleven years later, press reports of the Fitzgerald inquiry indicate that many of the practices may have persisted. In 1978, the Beach Inqury in Victoria found that police routinely concocted evidence and testified falsely in court. The inquiry also concluded that, among other things, police assaulted suspects in the course of interrogation, and that information regarding injury to persons in police custody had been suppressed and distorted (Victoria 1978).

The failure of the Australian government to regulate the safety of imported medical devices adequately has contributed to death and injury. At least five people died after receiving artificial heart valves which were defective (Everingham 1984). One woman in Australia has died and thousands of others sustained permanent injury from the notorious Dalkon Shield contraceptive device (Cashman 1989).

Other harms which have resulted from the action or inaction on the part of government agencies or their officers include death and injury suffered by public sector employees at work, serious environmental pollution, and gross waste and inefficiency in the expenditure of public funds.

The focus of this book is on criminal or otherwise unlawful conduct by agencies in the Australian public sector or by officers of these organisations acting in the course of their employment.

Initially, it was intended to exclude corruption and other misdeeds for personal gain from the analysis, and to focus exclusively upon illegal conduct in the line of duty - in furtherance of government policy. This initial intention proved to be misconceived, however. Many illegal acts of an exclusively personal nature flow from some of the same organisational pathologies which give rise to or facilitate crime within the scope of employment. Moreover, the distinction between conduct for personal gain and that in furtherance of policy is often vague and ambiguous. An over zealous public official may break the law because of mixed motives - desire for individual recognition and personal advancement on the one hand, and fervent dedication to organisational goals on the other. Altruistic and self-interested acts often occur in a common constellation of events (Doig et al. 1984, op. 28-9). Maurice Punch (1985, p. 10) provides an excellent illustration in the police setting, but the situation is to be found throughout the public sector. Perjury and conspiracy to pervert the course of justice are common techniques of covering up illegal acts committed in the course of implementing public policy, just as they are used to cover the tracks of the corrupt.

Not all of the incidents analysed in this book entail criminal conduct strictly defined. Indeed, the acts in question vary widely in terms of their moral blameworthiness. Some were, and remain, shocking to the public conscience, and are all but universally condemned. Others reflect a considerable degree of moral ambiguity. Whilst some arose from calculated intent or recklessness, most stem from negligence rather than venality.

To limit the coverage to strict criminality would narrow the scope to only those cases which resulted in convictions having been recorded in a court of law. Needless to say, in the public sector as on the streets, not every crime which is committed results in the conviction of the perpetrator. Indeed, in some instances, Australian governments are able to escape criminal liability altogether by relying upon the archaic doctrine of crown immunity. At times, authorities with the discretion to prosecute public sector offenders exercise their discretion not to do so.

Similarly, to exclude civil wrongs, that is, harms arising from tortious conduct, would also be unduly restrictive. The line between civil negligence and criminal negligence is fine indeed. Our task is not to belabour whether a particular injury arose from a public servant's unreasonable failure to be aware of the risk posed by his actions or those of his subordinates, whether the oversight was so unreasonable as to warrant the framing of criminal charges, or indeed, whether there was recklessness, a conscious disregard of the impending risk. The distinction is not insignificant, for the legal consequences can be profound. But our concern lies as much with the antecedents of harmful official actions as with precise calibrations of culpability.

For present purposes, government illegality has been defined rather broadly. The book will focus on criminal or otherwise unlawful conduct, proven or alleged, occurring in the Australian public sector. This will include the breach of any law - civil, criminal or administrative - which renders those in breach liable to penalties.

Government illegality deserves our attention for a number of reasons. The size of the Australian public sector and the scope of its activities are great, and destined to remain so. An active and ubiquitous state carries that much more potential for abuse.

Of great concern to public officials in the current climate of fiscal crisis is the fact that breaches of the law by governments can entail very great cost, in financial as well as in human terms. The incidents analysed in this book resulted in loss of life, in severe physical injury and psychological trauma, and in hundreds of millions of dollars in lost revenue. Remedial measures in the aftermath of these incidents involved millions of dollars in investigative expenses, and further millions of dollars in eventual compensation to victims.

As a result of these incidents and their consequences, public servants and elected officials suffered acute personal embarrassment. Governments sustained considerable political damage, which in some cases contributed to their eventual electoral defeat.

A number of the incidents in this book entailed less tangible costs as well. The basic rights of Australians to privacy, to freedom of association and to freedom of expression were violated, and in some cases, perhaps irreparably eroded.

On another level, a number of incidents discussed below represented attacks on the rule of law. The government, after all, is the ultimate moral exemplar. When the government breaks the law, the legitimacy of the legal order is threatened. As Brandeis (1928) so eloquently put it

In a government of laws, the existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or ill it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to be a law unto himself; it invites anarchy.

The purpose of this book is not to engage in expos social criticism, to hang out Australia's dirty linen, nor to indulge in simple hand-wringing. It was written in the belief that one can learn from the mistakes of the past. The analysis of each of the cases is intended to illustrate what went wrong, and how a repetition of the incident in question might be prevented in future.

Previous studies

There is not a great body of literature on government illegality and its control in Australia. This book, which combines case studies with analysis, is the first of its kind. Among the overseas examples of case studies in this area are the American collections by Becker and Murray (1971), Lieberman (1972), Douglas and Johnson (1977), and Ermann and Lundman (1987), which deal with a variety of misconduct on the part of a range of agencies, and that of Wise (1976), which focuses primarily on misconduct by police and security agencies. Corruption in British government has been the subject of a book by Doig (1984).

A more common genre includes those works which focus on a specific incident or pattern of misconduct. In addition to those works cited in the chapters to follow, the Australian literature includes such discussions of alleged police misconduct as that connected with the Ananda Marga conspiracy case (Molomby 1986), and the Mickelberg prosecution (Lovell 1985). Among the more noteworthy American examples are Hersh's (1970) study of the My Lai massacre, Bernstein and Woodward's review of Watergate, and Garrow's (1981) study of the FBI campaign against Martin Luther King.

Generic studies of abuses of power in Australia include Harding's (1970) work on police killings, illegalities by agencies of the criminal justice system (Basten et al. 1982; Zdenkowski et al. 1987) and Grabosky and Sutton's (1989) collection which includes various examples of nonfeasance by Australian regulatory agencies.

Studies of remedies for government illegality are also rare. Available Australian remedies have been the subject of works by Aronson and Whitmore (1982), Finn (1977; 1978) and Baker (1985). Institutions of government and their accountability are discussed by Cranston (1987). The major American work on government liability is that of Schuck (1983).

A more general discussion of public law remedies in Australia is that of Goldring (1985); in England, that of Birkinshaw (1985). These include references to such institutions as judicial review of administrative decisions and ombudsmen. Hurwitz (1981) discusses these in comparative perspective. The use of civil litigation directed specifically against abuses by Australian police authorities has been addressed by Churches (1980) and Goode (1975). An American overview is that of del Carmen (1986), and British perspectives have been provided by Harrison (1987), and by Clayton and Tomlinson (1987).

A number of articles deal generally with the jurisprudence and sociology of public sector misconduct and its control. The best Australian source is that of Fisse (1987) which discusses the choice between individual and corporate liability for government illegality. Comparable American works are those of Stone (1982; 1985), Doig et al. (1984) and Thompson (1985).

Finally, a few scholars in the field of public administration have addressed the issue of bureaucratic accountability and control. In Australia, the major contributions are those of Cranston (1987), Spann (1979, Ch. 18), Smith and Weller (1978) and Hazlehurst and Nethercote (1977); in Britain, that of Dunsire (1978). United States contributions range from the landmark general treatise on bureaucracies by Downs (1967) to the study of communications within public agencies by Kaufman (1973), to the descriptive overview of accountability machinery in the U.S. civil service by Rosen (1982), to more recent work by Gruber (1987).

Selection of cases

The cases selected for analysis in this book were not chosen randomly. Admittedly, this will inhibit one's ability to generalise from the observations which are made. But it should not stand in the way of greater understanding of government illegality, its causes, and means for its control.

The cases were selected in order to present as broad a landscape as possible of public sector illegality in Australia. The incidents described below occurred in federal, state and local government jurisdictions. The organisations involved include not only agencies of criminal justice, but other departments of state and statutory authorities. They involve allegations of the use of excessive force by police and prison officers, gross waste and inefficiency in the expenditure of public funds, environmental pollution, and danger to the health and safety of public sector employees. The incidents affected a variety of types of victim - both individual and collective. They include clients of the agency, its employees, individual citizens, ethnic communities, taxpayers, the natural environment, and in one case a foreign government.

Incidents were also chosen to reflect variation in the degree to which the practices in question were embraced by the agencies under whose auspices they occurred. Some of the conduct was institutionalised policy - officially endorsed if not publicly heralded. In other cases, the practices, although in furtherance of policy, were recognised as illegal, but unofficially condoned. In others still, the illegal conduct in furtherance of policy was officially condemned. And finally, there was conduct undertaken exclusively for personal gain.

Another criterion for selection was whether the incident in question, or at least its legal and political consequences, occurred in the relatively recent past. In some cases, matters were not entirely finalised at the time of writing. But in every case, there is enough of a tale to tell to warrant inclusion.

In the choice of cases, there may be a slight bias toward more highly publicised sensational matters. Some were major scandals. A number of the incidents were the subject of royal commissions, and have become household words to most Australians conversant with current affairs. There are no discussions of traffic offences by drivers of state-owned buses, or of accidents involving government motor vehicles whose drivers may have been negligent. Other cases, however, were nonetheless obscure; some went all but unnoticed outside the locale in which they occurred, and others have begun to fade dimly into history. Nevertheless, each contains an object lesson.

Theoretical foundations

There exists a paucity of theory on government illegality in particular, and on white collar crime in general. Without canvassing the entire history of western political thought, it might be instructive to begin with brief reference to America's founding fathers. Acutely sensitive to the potential for the abuse of power which resides in a highly centralised government, they deliberately set about designing a political system in which powers were dispersed (Wills 1981). The principles of separation of powers, checks and balances, and the fundamental statement of individual rights enshrined in the United States Constitution provided a model for subsequent democratic governments.

Whilst Lieberman (1972), in his review of various American cases, does not purport to develop a theory of government lawbreaking, he does proffer a number of explanations for the phenomenon. These include the absence of strict legal controls, shortcomings in the oversight of agency activity, lack of systematic planning, and inadequate monitoring within the Organisation. Illegality is further facilitated by pressures to discourage dissent by officers of the agency, and by the low probability of punishment in the event that official misconduct is detected.

Other insights on government illegality may be gleaned from works with a specialised focus. Perhaps the most extreme form of government illegality is the use of terroristic violence for purposes of political repression (Stohl & Lopez 1984; 1986). Theorists of state terror have observed that societies characterised by heterogeneity and stratification, where political power is centralised and a tradition of democratic principles and institutions is lacking, are more likely to experience terroristic governance. The risk is compounded when the regime faces external threat or challenge from within (Gurr 1986).

Further material for a theory of government illegality may be drawn from the literature on police misconduct.

Among the explanations for police deviance are the temptations presented by opportunities for illicit activities, the cohesiveness and insularity of police which provide support and reinforcement for 'bending the rules', and the failure of both internal and external control mechanisms (Sherman 1978; Shearing 1981; Punch 1985). Nevertheless, police are a very specialised agency of government. Whether explanations of misconduct in the police context are applicable throughout the public sector is a matter worthy of exploration.

American sociologist Edwin Sutherland, with whom the term 'white collar crime' originated, focused primarily on individual-level explanations of business misconduct. Central to these is the theory of differential association, which holds that attitudes and techniques conducive to illegality are learned from those with whom one interacts on a daily basis (Sutherland & Cressey 1978). This has been further developed into a subcultural theory of corporate crime. For example, Geis (1967) has shown how young executives learned to co-operate with their competitors in heavy electrical equipment industry to fix prices, and how they came to rationalise this as an acceptable practice.

Kriesberg (1976) discusses three models of decision making which may lead to corporate crime. The first, that of the rational actor, entails the systematic canvassing of options to maximise profits or whatever other values might be salient to the corporation. Corporate crime thus results from the rational calculus that an illegal course of action is most advantageous from the point of view of the Organisation.

The second model, that of organisational process, involves adherence to pre-existing organisational routines and established procedures. Illegality results from the absence of standard operating procedures to deal with a new situation, or with the persistence of existing procedures which mandate or permit illegal action. Central to this model is inadequate monitoring on the part of knowledgeable or authoritative officers within the Organisation.

The third of Kriesberg's models, that of bureaucratic politics, presents corporate conduct as the result of bargaining within the Organisation. Decisions which eventuate are often the product of conflict and compromise, and may therefore be vague. Illegality which flows from bureaucratic politics can result from the acquiescence of some members of the Organisation, or from the tendency to insulate oneself from knowledge of wrongdoing.

Kagan and Scholz (1984), in presenting three models of corporate misconduct, distinguish between corporations as amoral calculators, political citizens, and organisational incompetents. Amoral calculators, motivated essentially by profit considerations, rationally assess the costs and the benefits of a course of illegal action. If the probability of detection and the anticipated penalty are low in relation to the likely amount of ill-gotten gains, an illegal course of action will be adopted.

Political citizens, on the other hand, are inclined to comply with the law, but will violate laws which they regard as arbitrary or unreasonable. When they perceive their regulatory environment as excessively legalistic or nit-picking, they tend to develop a 'subculture of resistance'. Illegality thus becomes a gesture of principled disagreement and ultimately one of defiance.

Illegality arising from organisational incompetence is a reflection of management failure, rather than malevolence. To quote from the Robens Report on occupational health and safety in the United Kingdom:

Relatively few offences are clear cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement . . . arises rather through carelessness, oversight, lack of knowledge of means, inadequate supervision or sheer inefficiency (Robens 1972, p. 82).

The above theories of corporate crime beg the question of whether their explanatory reach is necessarily limited to the private sector. Are businesses qualitatively different organisations from government agencies? Does the relative absence of the profit motive and the lack of a competitive market setting in the public sector require a separate theory of government illegality? The image one has of public servants is one of risk aversion, while business people are perceived to be risk takers. Nevertheless, Stone (1982; 1985) has queried the extent to which the public/private distinction is relevant to issues of organisational illegality and its control. He observes that the line between public and private sectors, never distinct, is becoming increasingly vague, as private contractors deliver government services and as government enterprises compete directly with the private sector.

Recently, a number of scholars have advanced theories which purport to explain variations in organisational deviance generally, across public and private sector entities alike. Whilst these have tended to be grounded primarily in evidence from the literature on corporate crime, their extension to the public sector has been fruitful.

One of the first attempts at a general theory of organisational crime is the work of Finney and LeSieur (1982). They focus on performance emphasis, that is the strength of goal orientation within an Organisation. Workers under pressure for greater output are more likely to offend, especially when confronted by barriers to the attainment of their desired performance. Their inclination to deviance may be reinforced or constrained by the moral climate established by top management. A variety of organisational properties, including complexity, centralisation, stratification, and the absence of participatory management may, induce alienation among employees, and thus a greater willingness to employ illegal procedures in the course of their work.

Vaughan (1983; 1986) also looks to Organisation theory to explain organisational deviance. Among the predisposing factors to illegality which she identifies are the organisation's competitive environment, the complexity of an Organisation and the complexity of transactions in which it is engaged, and the absence or weakness of countervailing mechanisms of control. To the extent to which an Organisation is unable to attain its goals by lawful means, the greater the pressure to rely upon extralegal methods. The more complex the Organisation, the more numerous the opportunities for illegality. The lower the risk that illegality will be detected, the greater the likelihood that it will be practised. The potential for organisational misconduct is further enhanced by the presence of normative support for illegality within the Organisation, and by the availability of means to carry out illegal acts.

Coleman (1987) seeks to combine individual and structural level explanations in an integrated theory of white collar crime. The basic factors which he specifies are motivation and opportunity. The culture of competition places considerable pressure on both organisations and individuals to achieve. In the face of this competitive pressure organisations and individuals must choose between legitimate and illegitimate means of achievement. Normative restraints are learned; ethical standards are acquired in association with persons who define law-abiding behaviour favourably, and in isolation from those who define law-abiding behaviour unfavourably. Decisions to engage in illegal activity reflect the perceived certainty and severity of punishment in the event of detection.

Braithwaite's (forthcoming) theory of organisational crime builds upon much of the foregoing in its attempt to explain variations in illegality across public and private sector entities. Organisations are more likely to break the law if legitimate opportunities for goal attainment are blocked, and if alternative illegitimate opportunities exist. Illegality is more likely in organisations which have developed a strong subculture of resistance to law-abiding conduct. The formation of such a subculture may be facilitated when the Organisation is viewed with hostility and distrust by authorities responsible for oversight; it may be inhibited by the threat of adverse publicity ('potent shaming') in the event that misconduct is detected. Organisations with active self-monitoring systems, and whose specialised compliance units are endowed with power and influence, are less likely to offend; so too are those with open communications procedures. Organisations in which responsibility is compartmentalised, and in which officers are isolated in 'sealed domains' of activity, are at greater risk of offending.

Analytical framework

Each of the case studies has been based on a standard framework. The chapter begins with a description of the illegal conduct in question, and the extent of harm which resulted. In some cases this was death, in others physical injury. The first section also analyses the incident, to explore the questions of responsibility and culpability. Did the harm in question result from personal malice, or from carelessness? Where on the continuum between deliberate premeditation and honest mistake does it lie?

Another consideration is whether the incident entailed purely individual conduct, or whether it was essentially a collective act - a manifestation of organisational behaviour. Certainly, individuals do not exist in a social vacuum, and organisations are comprised of people. But some cases are obviously the product of organisational processes and others more the work of a person acting mainly on his or her own. Doig et al. (1984) discuss the degree to which responsibility for an illegal act may be shared by executives and subordinates. A manager who clearly and openly directs his or her subordinates to engage in illegal behaviour is clearly responsible. Short of this, an executive may set goals which can only be attained by extralegal means, without authorising their use. Liability may also rest with a manager who has reason to suspect that illegal means are being employed in pursuit of organisational ends, but who fails to take steps to investigate. The relative contribution of senior executives, middle management and rank and file will also be discussed, as will the question whether the incident followed a discrete policy decision or rather the exercise of individual discretion.

The second part of each chapter will address the organisational pathologies which may have contributed to the incident in question. The issue at hand here is different from the question of individual versus collective action ' for the misdeeds of a particular individual may still have an organisational basis. The characteristics of organisations can affect the behaviour of their members. To use a very awkward metaphor, the shape and composition of a barrel can facilitate or inhibit the decay of the apples contained therein.

At perhaps the most basic level, one may readily appreciate how shortcomings in organisational procedures for recruiting and training personnel may lead to misconduct. Inadequate supervision, whether by managerial personnel within an Organisation or by responsible authorities external to the Organisation, may also contribute to misconduct. Bad management and ineffective leadership generally may have adverse consequences for an agency's behaviour.

Overall, the book will test the theories outlined above, and will explore any apparent linkages between the characteristics of an Organisation and the misconduct under review. Are large organisations more likely to go astray than small ones? Are agencies in which decision-making is decentralised more prone to misconduct than those in which decisions are made at the top?

A key consideration relating to the organisational bases of government illegality is the flow of communications within the Organisation (Downs 1967, Ch. 10). If policies and procedures are inadequately communicated from management down to the operating personnel, the likelihood of their deviating from these standards is that much greater. Alternatively, if adverse information is not communicated upward, management may not become aware of an impending problem in time to take preventive or ameliorative measures (Hall 1982, pp. 196-7; Guetzkow 1965). Other problems may arise when an Organisation is deluged with information - a phenomenon known as 'overload' (Katz & Kahn 1978, pp. 44955).

An issue related to both supervision and communications within an Organisation is the extent to which delegation and decentralisation shield top management from knowledge of misconduct on the part of their subordinates (Finney & LeSieur 1982, p. 266). If one believes the accounts given by principals in the Iran-Contra affair, President Reagan remained ignorant of the diversion of funds which had been engineered by the staff of the National Security Council.

Organisations also interact with each other in the course of their daily affairs, and where co-ordination of activities is important, a failure of communications can have unfortunate consequences. The extent to which an agency goes astray on its own, or rather as a result of dependence on another Organisation will also be explored.

Environmental pressures may also contribute to official misconduct. Pressures on an Organisation to produce results may invite officers to take foolish risks, or to deliberately transgress the law. The legal and political environment can be similarly influential. Where laws governing acceptable conduct are perceived as ambiguous and where public pressures do not appear intense, agencies may engage in conduct that would otherwise be unthinkable.

Interaction between environmental and structural properties may also contribute to government illegality. In the case of the Challenger space shuttle disaster, pressures to adhere to a tight launch schedule, combined with the reluctance of technical personnel to advise senior management about the risk of a cold weather launch, produced a decision with fatal consequences (Rogers 1986; Romzek & Dubnick 1987).

The third part of each chapter discusses how the incident was detected, and how the law was mobilised in consequence. In some cases the misconduct in question was self-consciously clandestine, whilst in others, the nature of the incident was such that it came almost immediately to public attention. In the former context, the illegality may have been disclosed by a victim, by a third party, or by a whistleblower within the Organisation itself. The circumstances of public disclosure are an important consideration, as they bear significantly upon issues of deterring similar conduct in future. The role of the news media in detecting official misconduct or in according persistent publicity to an incident in its aftermath is often crucial to the outcome of a matter.

The term 'mobilisation of law' refers to the choice of legal action taken by the injured citizen and/or the government in response to the incident in question (Black 1973). In some instances, this entailed criminal prosecution alone. In others, a criminal prosecution was undertaken by the state, and civil action for damages brought by individual plaintiffs. Some remained exclusively in the domain of civil law, and others still involved various administrative remedies. In one case, no legal action eventuated. In a number of cases, these prosecutions and civil actions were preceded, accompanied, or followed by judicial or parliamentary inquiries.

At the same time as the public and other government agencies may respond to public sector illegality, the wayward Organisation may engage in 'damage control', seeking to gneutralize, weaken, or redirect' the public reaction (Finney & LeSieur 1982, p. 285). This may involve developing a legal defence, or attempting to distract public attention from the incident in question. In some instances, an agency or government may 'stonewall,' in the hope that any unfavourable public attention may subside. In others, it may engage in an aggressive counter-offensive, seeking to discredit its critics or to re-capture public support.

Where the incident resulted from a collective decision, the dynamics of the decision-making process will be described to the extent that they are visible. In addition to the predispositions of decision-makers, and the selectivity with which they seek out and process information, decisions are affected by group dynamics (Janis & Mann 1977). A decision maker who is surrounded by sycophants and yea sayers may not reach the same conclusions as one who is willing to listen to devil's advocates or to those with deeply held contrasting views. Decision-makers are also inclined to take risks in group settings which they would not do when acting alone - a phenomenon known as the 'risky shift' (Cartwright 1973).

The fourth section of each chapter will describe the outcome of those legal processes which were mobilised. For those cases which involved criminal prosecutions, the verdict and penalty, if any, are noted. Where the action taken was civil or administrative, the outcome of the case and damages or costs assessed against the government are discussed.

The fifth and final part of each chapter summarises the long-term consequences of the incidents in question. It reviews any changes in Organisation and practice which may have taken place within the agency as a result of the matter, as well as any changes to external oversight procedures and accountability mechanisms which may have been introduced. Where legislative changes were introduced, these too are noted.

The book's conclusion seeks to identify any common patterns running through the various case studies, and to suggest topics or issues which warrant further investigation. It then discusses the remedies which may be available to redress wayward governance. As the case study chapters demonstrate, the diversity of official misconduct in Australia is such that there is likely to be no one intervention which can serve as a general solution to the problem of government illegality. Indeed, the goals of redress are so varied that they require an array of remedies. As readers work their way through the case studies, they may wish to pause and contemplate the extent to which the outcome of each case conforms to the following ideals.

The first goal of a system of response to governmental wrongdoing is deterrence. Stated simply, the individuals or Organisation (or both) who are responsible for a breach of the law should be discouraged from repeating their transgression. In addition, other individuals and organisations alike should be discouraged from following in their footsteps. In other words, there should be a credible threat that future misconduct will be met with unambiguously undesirable consequences for the individual or organisational perpetrators. The rationale for a deterrent to official misconduct should be patently obvious. If public agencies and public officials can go about their business with impunity there exists an open invitation to the abuse of power.

The second goal is that of rehabilitation. Where the incident in question has arisen from some shortcoming within the Organisation, the shortcoming should be remedied. When, for example, negligent conduct within an Organisation may be traced to an inadequate training program or unsatisfactory communication of standard operating procedures, an appropriate remedy would require rectification of these problems. Rehabilitation, of course, may apply to individuals as well as organisations. Where an officer's wrongs have arisen from insufficient training, he or she should be given remedial instruction. The rationale for rehabilitation is also uncomplicated. By reforming an Organisation, one reduces the likelihood of the same wrongs being inflicted repeatedly upon the public.

The third goal is that of victim compensation. Briefly stated, those who suffer injury as a result of official wrongs should be entitled to reimbursement for their losses. Where costs, be they financial, physical or psychological, are wrongfully inflicted upon the public, they should be borne by the perpetrator, or at least spread across society as a whole.

The fourth goal is that of denouncing the misconduct in question and of reaffirming the rule of law. This is especially important in light of the argument above that the government, as moral exemplar, threatens the legitimacy of the legal order when it breaks the law. It is of great importance that a common sense of anger and indignation be forcefully expressed, and that the collective conscience of the public be reaffirmed. Response to government illegality must remind society that no individual or Organisation is above the law.

A final consideration in fashioning remedies for official misconduct is the avoidance of 'overkill'. Public servants already enjoy a reputation for being risk averse. Should they experience the threat (or the reality) of draconian punishment, they may be inhibited to an even greater degree from vigorous execution of their duties. Others may be discouraged from seeking or remaining in public employment altogether. To devise just remedies without such a chilling effect on public administration is no small task.


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Last updated
3 November 2017