Frank Costigan QC has died. He was a great Australian but unfortunately he will always be remembered in the context of his conflict with Kerry Packer. The conventional wisdom in the media is that somehow this was a blemish on Costigan’s character.

The truth is, of course, somewhat different. Costigan was a Royal Commissioner and, as such, had a job to do. In this case, the enquiry was into the criminal activities of the Painters and Dockers Union, a union that was the centre of organised crime.

Once appointed, Costigan discovered that one criminal investigation led to another and we had a runaway Royal Commission which went for four years.

His investigation of the union effectively destroyed it as a criminal organisation but it was the further investigations that were of more interest. He discovered and investigated the prevalent tax fraud called “bottom of the harbor” where assets were stripped leaving a shell and the company records destroyed.

Due to a leak, we now know that a number of his enquiries ended up at Kerry Packer’s door. Packer was the wealthiest man in Australia and certainly the most powerful. He controlled an important part of the media and terrified the politicians.

It was not a good career move to investigate Packer, as Costigan found out. Having done the work, there were no glittering prizes. Costigan was an excellent lawyer and would have made a great judge but neither Liberal nor Labor, State or Federal, had the guts to appoint him.

One thing needs to be absolutely clear: it was Costigan’s duty to investigate wherever the trail led. He was an old fashioned Catholic of high moral principles and he knew the difference between right and wrong. He must have known the risk he was taking in looking at Packer. Probably any other Commissioner would not have had the courage to do so. Yet it is this investigation which is presented as a stain upon Costigan’s character.

In the event, the Packer report was leaked to the media and the destruction of Costigan took its course.

Packer was never charged and the media and the politicians exonerated him. This is as it should be because, unless convicted, Packer was innocent at law.

But that was not enough. The media and politicians decided that Costigan had done wrong in even daring to investigate Packer.

These events have resonated in criminal investigations throughout Australia ever since. These days, high profile, wealthy persons are not investigated for three reasons: first, they outgun the prosecution lawyers, second, the career of the prosecutor is at risk of being destroyed (as it was with Costigan) and third, all governments owe too much to the wealthy and powerful to do anything about it. The only people prosecuted at the top end of town are those who have already gone broke.

Unfortunately, the legacy of Costigan was to show the wealthy, respectable crooks how to get away with it.

Frank Costigan QC stands as an honest and courageous lawyer. We need more like him.

Peter Fray

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