Margaret Cunneen has been accused of something which, if true, could amount to an attempt to pervert the course of justice. If she is guilty of it, she should be punished, including by the loss of her job. It would be amazing if a person charged with prosecuting major criminals were allowed to carry on after an offence so close to the kernel of what justice is about. She has vehemently denied the accusation and is, of course, entitled to be regarded as innocent.

Yet the offence, if she is guilty of it, is of a private misconduct, in her own time, not of itself seeming to involve the use or abuse of her job. She is in effect, a minister of justice in the criminal justice system. She is not accused of misusing that official position, such as by accepting a bribe to drop a case. Corruption, dishonesty, impropriety, malfeasance on nonfeasance in her official role are matters that would be properly within the remit of a crime and corruption commission of the ICAC type.

Briefly, it is said she was a passenger in a car, being driven by her son's girlfriend, which crashed. It seemed likely that the son's girlfriend would be breath-tested, and that she might be over the limit. It is alleged that Ms Cunneen, or her son in the presence of Ms Cunneen, suggested to the girl that she fake chest pains as a way of avoiding being asked to submit to a breath test. NSW Police have denied making any complaint about the matter to ICAC. If what Ms Cunneen did amounts to an attempt to pervert the course of justice, it is punishable by up to 14 years jail.

Ms Cunneen is not a judge, but her prosecutorial role is in certain respects analogous. It was only a few years ago that Justice Marcus Enfield, of the Federal Court, served jail time for an analogous offence (in his case perjury) after he was found guilty of submitting a false statutory declaration saying that he had not been driving his vehicle at the time it was clocked for a speeding offence. Misconduct this certainly was, but, as in the case of the Cunneen allegation, it was in his personal capacity; no one was suggesting that he had abused his official position.

Thirty years ago, the allegations against Justice Lionel Murphy of the High Court, when accused of leaning on a magistrate to "help his little mate", a solicitor charged with fraud, could have been in either category (Murphy was ultimately acquitted). On the one hand, Murphy, as a judge, had used a bit of judicial influence to push along the (worthy) cause of entrenching the independence of magistrates; on the other hand, some of his other actions in this regard, had probably been as a private, albeit prominent citizen. The prosecution alleged that his motives had not been pure, but focused on influencing a magistrate in the way the court dealt with a particular person.

The Murphy case is particularly relevant to the Cunneen case in another way. The Commonwealth DPP at the time was Ian Temby. Later, he was to be the first commissioner of ICAC, when it was established in NSW in response to widespread (and well justified) concern about systemic political, bureaucratic and police corruption in that state.

As DPP, Temby was able to launch, and stop, federal criminal prosecutions. He published guidelines about when and where prosecutions should be launched, or not launched. At one stage, he tentatively suggested that the standard required by a prosecutor might perhaps be somewhat different in a situation where the person accused was a prominent public figure, and there was some need, as it were, "to clear the air".

The argument was that a decision made in private by the DPP, after considering the brief of evidence, might not satisfy a suspicious and cynical public, who might think that the prominent party had escaped because of his contacts, links, pull or, perhaps, capacity to exert pressure, perhaps even on the DPP. Might it not be better that the evidence be unveiled, if needs be before a jury, and its unsatisfactory features be revealed?

Most people saw Temby's point, but the informed reaction was hostile. If the evidence falls short, it was a prosecutor's duty not to proceed. A prosecutor could not shirk such a duty for some public relations purpose, or as a way of getting out of an embarrassing fix. Anyway, the essence of the law was that every citizen, high or low, was equal before it; even villainous politicians or cops had the same rights as anyone else.

There is a certain superficial attraction in the idea that whenever there is a suggestion of a criminal offence by a public official, it should be investigated (and perhaps prosecuted and tried) by a special body, if only to make sure that there is no string-pulling or funny business. Perhaps the more so, some would say, in an intimate jurisdiction like Canberra where most of the great and powerful know each other well.

Yet there are good reasons for maintaining the distinction between corrupt public behaviour and private misbehaviour, as well as the idea that we all, big and small, appear before the same bar of justice. A Star Chamber, or inquisition, as to some extent an ICAC-style body is, is a perfectly appropriate – indeed in these days necessary – adjunct to monitoring the exercise of public power by public officials; it is far less appropriate as a secondary sort of court dispensing "justice".

Among those who resist the idea of an ICAC-style body, whether at federal or territorial level, are those who too easily elide the difference between an ICAC's functions and the functions of the court in dealing with breaches of the criminal law. They purport to fear that it will become a Star Chamber, a place where mischievous allegations can be made without any redress, where reputations will be shredded even where there is no evidence of criminality, and injustice can occur. Better, they will argue, that there be more controllable inquiries, on terms of reference settled by executive government itself, if there is any reason to fear misbehaviour in public office, they will say.

Others will be quick to point at the scarcity of successful prosecutions after ICAC-style inquiries. ICAC, for example, found corrupt behaviour on the part of a number of NSW Labor politicians, including Eddy O'Beid and Ian MacDonald, but, it is said, the evidence has not seemed good enough to put them behind bars. Was this because ICAC was making findings on standards lower than "beyond reasonable doubt?" Perhaps, and, in context, that is, but it is also to be remembered that ICAC's very fact-finding sometimes involves compulsory questioning, suspension of the hearsay rules, or the need to give promises that admissions and evidence given cannot be used in subsequent criminal proceedings. Often, merely drawing criminal, corrupt, or deeply improper behaviour to light is enough, particularly when, as at the Commonwealth level, the AFP does very little proactive work against official corruption, at best waiting for matters to fall into their lap.

Until recently, in NSW, it was Labor figures who were (deservedly) figuring prominently before ICAC. A number of senior NSW Labor figures escaped close scrutiny because their public responsibilities were federal, not state, or their positions were party organisational, not on the public payroll. Now the wheel has turned, and a number of Liberal Party figures, some in the federal arena, are squirming. It is in their interests to create, given the findings that seem inevitable, a legend of ICAC going "too far", "Being "unfair," or seeing too many things as being within their remit. In their case, the charge is all too self-serving. But one wishes that ICAC would not give them ammunition by finding that allegations against Cunneen fall in ICAC's remit.