Magistrate put ICAC failings on record

To the rest of the nation, it must be hard to understand how the NSW government permits an agency of the executive to undermine public confidence in a judgment of the NSW Local Court.

Normally, when the independent courts point to problems ­inside the executive, politicians move quickly to ensure public ­servants discharge their duties properly.

That should have been the ­response two years ago when magistrate Greg Grogin, while ­acquitting Murray Kear, pointed to serious failings in the way that the ­Independent Commission Against Corruption had conducted itself in the Kear case.

But it is now clear that ICAC did not take Grogin’s criticism seriously, which suggests the government of Gladys Berejiklian has failed to protect the people of NSW from similar abuses.

ICAC’s disdain for judicial criticism is obvious from the commission’s response to a complaint by Kear that is based on Grogin’s unchallenged findings.

The proper response would have been to thank the magistrate for helping improve the standard of public administration. Instead, ICAC has tried to pick holes in Grogin’s judgments.

That is bad enough. But the commission’s independent inspector, Bruce McClintock SC, has approached the Kear complaint in a manner best described as novel.

McClintock, who is not a judicial officer, has produced a report that gives the impression that the inspector is at the top of the ­judicial hierarchy and is providing Grogin with a primer on how to do his job.

The role of ICAC inspector does not extend to providing tutorials for judicial officers. In this country, conclusive decisions on rights and obligations are made by the judiciary, not the executive.

That point needs to be remembered by McClintock and ICAC chief Peter Hall, who signed off on the commission’s criticism of Grogin’s judgments.

Remember, Grogin sat through Kear’s trial and had the benefit of eyeballing the witnesses. McClintock and Hall did not.

The next time these two appear before the NSW parliament’s ICAC oversight committee, someone should ask them if they consider it appropriate for arms of the executive to refuse to accept unchallenged findings of wrong­doing by the independent judiciary. Hall should also be asked if the commission’s rejection of Grogin’s findings indicates that no action has been taken to address the failings identified by the magistrate. Those questions, when put to ICAC this week, elicited “no comment”.

This agency’s arrogance was on show in 2015 when it lobbied to have its past unlawful actions validated by a compliant NSW government. Its conduct in the Kear affair — from start to finish — puts that perception beyond doubt.

Chris Merritt
Legal Affairs Editor – The Australian

(WTF) used with permission

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