Opinion Pieces

It’s past time for ICAC to have its wings clipped

January 28, 2022

When the NSW Independent Commission Against Corruption inquiry is done and dusted, Gladys Berejiklian’s reputation will be in ruins. If you heard it here first then you haven’t been listening.

This outcome was predicted 30 years ago by NSW Supreme Court judge and royal commissioner Peter McClellan. He didn’t need a crystal ball to see that ICAC would succeed so rarely that eventually it would exist mainly as a cautionary tale.

So it’s difficult to understand why former ICAC assistant commissioner Anthony Whealy would deny the existence of ICAC’s numerous and diverse structural issues.

First, ICAC works on a completely different continuum to our commonly held views of justice, the court system or public governance, yet wields far more power than all of them – it has become the judge, jury and executioner. There is no permanent oversight body looking at who, how or what ICAC investigates, and whether these investigations are even in the public’s interest.

Dennis Cowdroy QC, the inaugural commissioner of the ACT Integrity Commission, argues that integrity commissions such as ICAC disregard normal court procedures by compelling individuals to appear, answer questions, submit to interrogation and surrender personal effects or face contempt charges.

Added to this, the NSW ICAC has surveillance powers not enjoyed by our security agencies. ICAC needs to have its powers rebalanced to prevent the hard-won rights of individuals in legal proceedings from being obliterated.

Second, as Cowdroy points out, the reputational damage from an investigation starting is astronomical and “attempts to alleviate reputational damage can rarely remedy public damage to an innocent person”.

There are few historical parallels with which to compare ICAC; however, it constantly provides justification for those who claim it resembles in process and outcome the activities of Joseph McCarthy’s House Un-American Activities Committee. ICAC also denies citizens due process and ruins lives and reputations.

While inspector-general of ICAC, former Supreme Court judge David Levine found evidence of confidential material being released to the media. At the same time, ICAC commissioner Megan Latham reportedly told a private dinner of barristers that public hearings were “a lot of fun, like pulling wings off a butterfly, just more enjoyable”. Notably, the media and the Bar largely remained silent, thereby appearing to endorse the comments.

The NSW ICAC exists in the centre of its own ecosystem with so many intersecting webs of interests that holding it to account is difficult. ICAC proceedings are almost always intrusive and humiliating; now a mere notice of investigation is a political death sentence.

Those on the left love ICAC, not because it gets rid of corruption, because as we have seen ICAC has ignored systemic corruption. The left loves ICAC because it has impugned three Liberal premiers while not laying a hand on Eddie Obeid or Ian Macdonald while they were in government running amok, much less the people who appointed them and on whose support they relied. Indeed, former commissioner David Ipp said he did not have the time to investigate all of that.

Some argue ICAC is drunk on power – and, as any good bouncer would know, when someone is starting to sway at the bar, it’s time for them to head home.

ICAC started wobbling when it trashed the reputation of NSW Special Emergency Service commissioner Murray Kear with a startling corruption finding. ICAC then had another shot and started knocking over customers’ drinks when it ruined the career of former NSW police minister Mike Gallacher, with another allegation of corruption for which there was scant, if any, evidence.

And for its last hurrah, lunging at the bouncer, ICAC decided to accuse NSW’s most senior criminal prosecutor, Margaret Cunneen.

The High Court found that ICAC had exceeded its powers, leading Mike Baird to pass a piece of retrospective law to make the actions of ICAC lawful. The documents concerning this legislation remain locked in the safe at ICAC, and to this day ICAC refuses to hand them over even to the NSW parliament.

ICAC has made the governance of NSW unpredictable. It needs urgent reform.

When commissioner Latham said public hearings were like “pulling wings off butterflies”, we should have reminded ourselves that no butterfly should be tortured for the amusement of lawyers, and the citizens of NSW should be afforded the same rights as butterflies.

Seen in this light, Berejiklian’s tribulations are standard operating procedure for this commission.

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