No need for a federal ICAC, and definitely not NSW’s type

With a little effort, benefits can be discerned from even the most ­lunatic of ideas. And so it is with the present push to create a federal ICAC.

A bill to create just such an ­organisation is likely to emerge next week from crossbenchers in federal parliament. Even if it fails — and that is likely — it will force its backers to move beyond slogans to explain exactly what they would foist upon Australia.

Their scheme should be judged with these matters in mind.

The federal government ­already has plenty of agencies that have a role in fighting corruption and promoting a culture of ­integrity. The submission of the ­Attorney-General’s Department to a Senate inquiry lists 10 key ­organisations and mentioned 16 others. All these agencies have been established in a way that ­respects the integrity of the criminal justice system.

If a national integrity commission were to be established that also respected concepts such as the presumption of innocence, there would be an overlap of jurisdiction and therefore a waste of public money.

If the existing 26 agencies are considered to be ineffective or their jurisdiction too narrow, the sensible response would be to ­address any shortcomings instead of creating an entirely new ­bureaucracy.

The only logical way to justify establishing another federal integrity agency would be if there were no duplication with the other 26. That would mean giving a federal ICAC powers that exceed those of the other integrity agencies — and we have seen how that has worked out in NSW.

In this country, the courts and the justice system are the bulwarks that protect our rights and freedoms. They do so by balancing the power of the state against the liberties of the individual by applying common law rules developed over centuries and statutes ­approved by parliament. This, rather than any of the human rights commissions, is the main method of protecting human rights in this country. It works.

But in NSW successive state governments have allowed ICAC to sidestep the procedural safeguards that are found in the courts and establish itself as a parallel system of rough justice that lacks the rigour of the justice system.

If those calling for a federal ICAC disavow the NSW model, their plan will amount to a waste of public money but at least it will not undermine our liberties. If, however, they draw on the NSW model, the nation faces a nightmare.

ICAC in NSW is not a court, yet the effect of its actions can be draconian and the merits of its findings are beyond appeal. People who have never been charged or convicted of anything have lost their careers because of untested assertions at ICAC show trials where the rules of evidence do not apply and defence counsel are hobbled. It’s like pulling the wings off butterflies, according to former commissioner Megan Latham

Those who defend public hearings say they educate the community about corruption. Yet they take place at a time when nothing has been proven in court, assessed by the Director of Public Prosecutions or even decided by ICAC.

Using them to educate the community about corruption makes as little sense as holding police investigations in public in order to educate the community about crime before a court has ­determined that a crime has been committed. It might titillate but it does not educate.

There have been recent changes at ICAC. But the refusal of Gladys Berejiklian and her government to remedy the injustices of the past mean this agency ­remains a model that is weighed down with too much baggage.

Just this week, ICAC inspector Bruce McClintock SC revealed that nobody in authority at ICAC read a medical report revealing that one of its star witnesses, Paul Gardner Brook, had amnesia ­before the commission put him on the stand at a public hearing and later praised his evidence.

Those who knew about that medical report, but did not read it, included former ICAC commissioner David Ipp, former counsel assisting Geoffrey Watson SC and the former executive director of the investigation division, ­Sharon Loder, according to McClintock’s report that was ­tabled in parliament.

Peter Phelps, who is a Liberal member of the NSW upper house, says he finds the report on Gardner Brook very disappointing.

“The idea that his legal representative could hand over a key document to ICAC, and nobody in authority read it strains credibility,” he says.

“Even if we take that claim at face value, the fact that such an important matter concerning a chief witness was not acted upon is very poor administration.

“It leads a reasonable person to ask: How many other key documents went unread or ignored?” Phelps says.

The innocent victims of ICAC’s methods include former emergency services commissioner Murray Kear, businessman Charif Kazal, former NSW police minister Mike Gallacher and 3000 shareholders of mining company NuCoal Resources, whose investments were rendered almost worthless by an ill-­informed act of state parliament.

NuCoal, like the others named above, did nothing wrong. Kear was exonerated in court but is still referred to pejoratively on ICAC’s website. Gallacher lost his political career over an accusation at a public hearing that was never substantiated.

ICAC’s accusations against Kazal were so weak they were thrown out by the DPP. Yet like Kear, he is still referred to pejoratively on ICAC’s website.

Chris Merritt
Legal Affairs Editor – The Australian

(WTF) used with permission


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