The past few weeks have seen a flow of newspaper stories critical of the New South Wales anti-corruption commission and, by implication, supportive of some of Icac’s important targets.
The beneficiary of this timely leaked information has been Rupert Murdoch’s national newspaper, the Australian. At the same time the Australian, with a straight face and without producing evidence, has accused the Fairfax press of being the beneficiary of leaks from Icac.
The antecedents of this wrangle probably have their origins at the point where journalist Kate McClymont and the Sydney Morning Herald were on the front foot with stories about Eddie Obeid, which eventually culminated in several Icac investigations and adverse findings against the former Labor politician.
When it came to this big story, the Murdoch papers weren’t anywhere to be seen – they were left in the dust.
In January this year Graham Richardson, a columnist for the Australian, started the ball rolling by demanding an “official inquiry” into leaks from Icac. “For the best part of two decades these leaks have flowed freely to McClymont and there has never been an investigation into who at Icac is the criminal,” Richardson wrote.
Needless to say, there’s a history here, as McClymont has had the former senator, now lobbyist, in her sights for many years. The Icac-Fairfax information pipeline was then regurgitated by other News Corp writers as though it was an established fact. You can read McClymont’s response to Richardson’s accusation here.
The Icac inspector, former NSW supreme court judge David Levine, told the NSW parliamentary committee that has oversight of some of the corruption fighter’s activities:
Realistically, Mr Chairman and members of the committee, the issue of leaks is intractable and at times risible, and is evidence – for me – of a blood feud between News Ltd and Fairfax Media Ltd.
The newspaper slugfest against Icac would no doubt be pleasing to vested business interests keen to get back into the game Icac so rudely interrupted – whether it be lobbyists for prohibited donors finding ways to oil the political machine, or people getting an inside run on government business.
They have found a supportive voice among the elements of the NSW Liberal party’s right wing and wittingly, or unwittingly, they are being championed by Murdoch’s national daily, which has had a fine old time feasting on the morsels of incomplete information tossed into its cage.
Indeed, the Australian admitted as much in an editorial on 13 November:
[NSW premier] Mr Baird seems oblivious to the political risk posed by an agency stacked with activist lawyers hostile to conservatives.
There’s agreement from Newcastle property developer Jeff McCloy (the “walking ATM”) who has launched supreme court proceedings seeking to stop Icac releasing its report into the secret funding of Liberal candidates by prohibited donors (Operation Spicer).
His lawyer told the court on Thursday that the public inquiry “was getting close to being out of control”.
The Obeids too are seeking damages against Icac, various of its officers, counsel assisting Geoffrey Watson SC and former commissioner David Ipp, who they allege engaged in misfeasance in public office. The plaintiffs also want orders that Icac’s reports affecting the family members are a nullity.
The leaked information in the Australian, remorselessly repeated day-after-day, can be summarised as follows:
- ICAC bungled the seizure of prosecutor Margaret Cunneen’s mobile phone. Initially it was done using a “notice to produce”, then allegedly a week later ICAC officers served a warrant in simulation of a lawful seizure.
- Text messages on Cunneen’s phone sent to Telegraph journalist Janet Fife-Yeomans that were critical of the DPP, Lloyd Babb, were “leaked” to her boss by Icac. She has complained to Inspector Levine about these things.
- Icac filmed a document at the office of the Obeids that was an opinion from the solicitor general about a public-private partnership proposed by Australian Water Holdings. This is said to have been outside the terms of the warrant, which was concerned about a search for material relating to the Mount Penny coal tenement.
- Former NSW Liberal minister Chris Hartcher has complained to Levine that former Icac commissioner David Ipp has refused to investigate his allegations that Icac leaked information about him to the Sydney Morning Herald.
- Icac did not make publicly available evidence from witnesses that were supportive of former mines minister Ian Macdonald, about whom Icac has made findings of corrupt conduct.
On top of that, Telegraph columnist Miranda Devine recently wrote a piece about former NSW police minister Mike Gallacher bewailing his scrutiny as part of Spicer’s electoral funding inquiry. Devine laid on the cliches, describing the stood-aside minister as a “working class battler who dragged himself up by his bootstraps from Mt Druitt High, and public housing in at [sic] Lethbridge Park”.
The completion and release of the Spicer report has been affected by the high court’s decision in the Cunneen case, and the McCloy and Obeid court cases. The same applies to the investigation involving Australian Water Holdings (Operation Credo).
The information about the seizure of Cunneen’s phone could only have come from a few sources. We asked both Margaret Cunneen and David Levine if they were responsible for giving this information to the press.
Levine said: “The office of the Inspector of ICAC, made up of three part time workers, does not leak anything to anyone. It publicly provides information, and I comment, when it is proper, lawful and called for as a matter of public interest.”
Cunneen came up with an interesting slant. She thinks ICAC must be the leaker.
“I certainly did not inform anyone at all, let alone any journalist, of the substance of my text messages from 2012 (or any other time). The only people who had the printouts of those were: ICAC; Mr Babb (he would never give it to the press); Mr Levine (I very much doubt that he would give it to the press; and me (I certainly did not, of course). The timing of the journalist getting the text is interesting and suggestive of ICAC being responsible ... I believe that information was given to ‘take the sting’ out of the criticism of ICAC implicit in my complaint (revealed the day before),” she said.
The story the day before concerned an allegation that ICAC had “reenacted a seizure” of the prosecutor’s mobile phone “in order to cover-up a flawed raid a week earlier when they took her phone without a search warrant”.
The revelation about her text messages introduces a fresh perspective as to how leaks are supposed to work. On the basis of Cunneen’s theory, we have Icac leaking information damaging to itself to a media organisation conducting an over-blown campaign against it.
The demand from the Australian is Icac commissioner Megan Latham should stand down from her job pending an investigation conducted by David Levine.
The rhetoric becomes more indignant and over-egged with each passing day. “Icac has been revealed to be an organisation over-endowed with hubris and under-empowered with competence. It needs new leadership, a cultural revolution and more rigorous procedures.”
The newspaper’s editorial on Friday 13 November declared Icac is “plagued by overreach and error”. This is another way of saying the inquisitorial fact-finding body needs to be neutered.
Gerald Henderson is not the only right-wing commentator to say there’s a “very good case” for having ICAC hearings in private.
Former commissioner David Ipp’s response was instructive: “The whole reason d’etre of ICAC is the exposure of corruption. The idea of exposing corruption behind closed doors is oxymoronic.”
Through the fog of war it may be easy to forget Icac has been effective in the fight against corruption in NSW. In the last seven years alone it has shone light into some dark corners of the state’s operations, including:
- Operation Jarah (2015). The commission found Phillip Cresnar, a former Ausgrid engineer, and several Ausgrid contractors had engaged in corrupt conduct which resulted in Cresnar receiving $252,000 in benefits.
- Operation Magnus (2011). The commission made 17 corrupt conduct findings against the former general manager of Burwood Council, Pat Romano. He was sentenced to prison for a term of two years and six months, with a non-parole period of six months.
- Operation Halifax (2010). Here ICAC looked at the corruption risks involved in the lobbying of public authorities and officials, from which came 17 recommendations to tighten-up the regulation of lobbyists in NSW. A number of changes were implemented, including banning success fees and making public ministerial diaries.
- Operation Mirna (2008). The commission made findings of corruption against former project managers with the NSW Fire Brigades who were involved with dishonest schemes resulting in corrupt payments totalling $2.4m. Christian Sanhuaeza was convicted and jailed.
- Operation Atlas (2008). This was the notorious Wollongong Council case where findings of corruption were made against developers, council managers and four former councillors. ICAC recommended all the council’s civic offices be vacated and soon after the government put the council in the hands of three administrators.
- Operation Monto (2008). Here there were 96 findings of corrupt conduct made against 31 people on a major investigation into fraudulent procurement practices within RailCorp. About $19 million worth of contracts had been improperly allocated to companies owned by RailCorp employees or their friends and family. As a result RailCorp instituted significant reforms to the managements of its contracts and procurement.
Don’t let any of this way stand in the way of the full-throttled newspaper campaign conducted on behalf of aggrieved corporate interests and Liberal right-wing factional warriors.
The Australian instructed in its editorial on Friday 13 November the debate about ICAC “is no longer about its successes”. Yet, the gently-gently approach of ICAC for much of the noughties sent a message to unscrupulous corporate and political interests that NSW was wide open for business.
