The drama surrounding NSW’s Independent Commission Against Corruption (Icac) has had a long season playing to full houses, with the audience showing no sign of ennui.
First, an overview before we get to the latest spellbinding plot twists.
For years strong vested interests in New South Wales have wanted to get rid of Icac, or seriously clip its wings. The commission got in the way of traditional business methods whereby rent seekers bent the ears of politicians in Macquarie Street.
A fresh opportunity to strike at Icac arose following the collapse of its investigation into deputy senior NSW prosecutor, Margaret Cunneen.
The high court found that Icac’s legislation gave rise to a narrower meaning of the word “corruption” than had been traditionally applied, and narrower than it was believed parliament intended.
While the parliament did pass legislation that restored Icac’s previous findings of corruption, the genie was out of the bottle and victims of the corruption fighter’s investigations were lining-up to attack the integrity of its work and the commissioner, former Supreme Court judge Megan Latham.
They were assisted in this project by the Murdoch press, which published numerous selective leaks alleging wrongdoing by the commission.
For example, Icac seized Margaret Cunneen’s mobile phone on the basis of a “notice to produce” and only served a warrant later. It was claimed that the phone came into Icac’s possession illegally.
It is also claimed by the Obeids that evidence used against them in Operation Jasper had been planted in their office.
Eddie Obeid and his sons are now suing former Icac commissioner David Ipp, lawyers and investigators and counsel assisting Geoffrey Watson – seeking orders that they all were engaged in misfeasance in public office.
Before the high court put an end to the Cunneen investigation, Icac was seeking to explore whether the crown prosecutor had attempted to pervert the course of justice by telling her son’s girlfriend, Sophia Tilley, to “fake chest pains” and so avoid giving a blood test at the scene of a car accident. Ms Tilley was breath tested by the police and did not return positive reading.
Against that background the Icac inspector, a statutory office held by David Levine, commenced an “audit” of the way the corruption fighter had handled Operation Hale, the Cunneen case.
The audit soon turned into a report, which was published on December 4.
Levine was pretty hot under the collar about the investigation and critical that the commission had referred evidence it had collected to the DPP, to see whether there was a case against Cunneen, her son and Sophia Tilley for perverting the course of justice and giving false and misleading information. The solicitor general later told us there wasn’t, without providing further details.
The trouble was, the inspector was hot under the collar while he was in the process of preparing to do his report, because he made comments that were inappropriate for someone tasked with providing an independent report.
On April 20, 2015, following the high court’s “narrow construction” of the definition of corruption, Icac announced it made submissions to the NSW government seeking amendments to its legislation so that previous corruption findings could be sustained.
Levine told the media that this was “as blustering a statement by a poor loser as it was an improper and dismissive attack on the judgment of the highest court in the land”.
Further, he warned Premier Mike Baird against a “knee jerk legislative reaction”. Baird ignored this advice saying: “I’m open to whatever’s required to ensure those who have been found corrupt don’t get away with it and at the same time ensure we have the strongest possible Icac we [can] have,”
Commissioner Megan Latham wrote to Levine about his public statement:
“The more disconcerting aspect of these comments is that you have apparently aligned yourself with those in the community and the media who regard the commission’s investigation of Ms Cunneen as improper and unfounded.”
Levine’s response was to say that he found her email, “insulting, condescending and to border on insolence”.
A reading of the Operation Hale report shows a very strained relationship between inspector and commissioner.
Out of the woodwork comes retired Icac inspector, Harvey Cooper – Levine’s predecessor in the post. He wrote to The Sydney Morning Herald saying serious findings had been made against commissioner Latham, “without first affording her the opportunity to be heard in opposition to those findings”.
Levine had conducted his investigation into Operation Hale and made recommendations without interviewing anyone from Icac, let alone the commissioner. This was a denial of procedural fairness and consequently Cooper said Levine’s report is “flawed”.
“The only proper course now is for it to be withdrawn and a new report obtained from a person independent of the current commissioner and inspector.”
A moment ago there were cries for Latham to stand aside, now it’s Levine’s turn. It surely can’t get more theatrical than that.
Aspects of the inspector’s report are also disputed on factual and other legal grounds.
For instance, Levine said the seizure of Cunneen’s phone by means of a notice to produce was “an abuse of power and serious maladministration”. He got a legal opinion saying the same thing.
However, Icac hotly contests this view, saying its legislation gives it power to require someone to produce material it may need for investigation and evidence.
One significant factual dispute arose because Margaret Cunneen had told the inspector that she and Latham met frequently and had more than a professional connection. She claimed that Latham’s son was instructed in taekwondo by her partner, Greg Wyllie, and that she lived next door to the commissioner’s personal trainer.
This was said to give rise to “frequent meetings” in Willoughby and “a difficulty arising by reason of the acquaintance of the parties”. In his recommendations Levine said that Icac needs to be sensitive to conflicts of interest and should never have taken on the Operation Hale inquiry.
Latham disputes the factual findings underpinning this recommendation. She said her son has never been been instructed in taekwondo and does not know Ms Cunneen or her partner or any member of her family.
Further, Latham denies that there were “frequent meetings” in Willoughby between the commissioner and the prosecutor.
Levine was also concerned that the NSW DPP, Lloyd Babb, had been placed in a conflicted position as a result of Icac sending him five discs of material gathered during Operation Hale, including 2,274 pages of SMS messages and other communications taken from Cunneen’s mobile phone, dating back 10 years.
No further prosecutions flowed from that material, but Babb was confronted with possible disciplinary action against Cunneen on the basis that by texting journalists about current criminal cases she had allegedly breached the DPP’s code of conduct.
She contended that because the seizure of her phone was illegal, no disciplinary action against her could flow from the contents of her phone. Last week she issued a statement saying she had been “completely exonerated of any disciplinary action”.
Since conflicts of interest were uppermost in Levine’s report, there is a potential one that he did not explore.
As we know, the Obeids have commenced their civil action against Icac and counsel assisting. They want to call Margaret Cuneen as a witness to give evidence about her fraught experience with the watchdog.
Deputy senior prosecutor Cunneen and Obeid have also been portrayed as being together in the same camp in the publicity war against Icac, particularly that conducted in the Australian.
At the same time the DPP’s office is examining evidence provided by Icac and determining whether to bring proceedings against Eddie Obeid arising from adverse reports from Icac in Operations Cabot, Meeka and Jasper and against Moses Obeid in relation to corruption findings in Operation Indus.
Levine was concerned about conflicts, some of which are on shaky ground. Yet this one, which could give rise to an adverse and unfortunate public perception was left unmentioned.
There’s been a lot of sound and fury about Icac, yet in the end Levine did not call for anyone’s scalp.
A session with the NSW parliamentary oversight committee is next for Megan Latham, where she will come up against some right wing coalition voices, allies of those who have been sent to Coventry by her commission.
No one in the NSW Liberal party forgets that 10 members either went to the crossbench or resigned as a result of Icac’s investigation of illegal election funding, including leading stalwarts of the party’s right faction.
It won’t be fun, but at least she’s already stood-up to plenty of prior hectoring and bullying. It’s to be hoped that she and ICAC stay the course.
