The evisceration of the Independent Commission Against Corruption and its commissioner, Megan Latham, has been a long time coming.
New South Wales politicians of all stripes have traditionally put their hands on their hearts and declared their support for a squeaky clean public administration ... three cheers for Icac.
Yet in their heart of hearts they have feared and detested the country’s most formidable corruption-busting body. Two Liberal premiers fell foul of Icac and, during the recent Operation Spicer investigations into electoral funding, at least 10 Liberal MPs were banished to the crossbench or into oblivion as a result of their involvement with tainted donors.
Other senior Liberal party figures, such as Paul Nicolaou and Nick Di Girolamo, were also unhappily caught up in Operation Spicer, but were not found to have acted corruptly.
The wounds run deep, especially after Barry O’Farrell shot his premiership to death by providing an incorrect answer to the commission in a separate but related matter.
Icac’s parliamentary oversight committee, dominated by politicians from the right of the spectrum, soon got to work. Its job was ably assisted by two other factors: Icac’s inspector, the former judge David Levine; and the commission’s attempted investigation into allegations against senior crown prosecutor Margaret Cunneen, which ended up being stuck down by the high court.
While she waged a personal war against Icac commissioner Latham, Cunneen was in thick with conservatives in the upper house, such as the Reverend Fred Nile, who also sat on the oversight committee. Levine, also batting from Cunneen’s end of the pitch, came up with a whole pile of recommendations that would have effectively defenestrated Icac’s functions as a public investigator.
Cunneen, Levine and the parliamentary committee gave rise to an imperfect storm, with the rightwing media bellowing like banshees.
Levine recommended an end to corruption investigations conducted in public, while the former Icac commissioner David Ipp remarked: “The whole raison d’etre of Icac is the exposure of corruption. The idea of exposing corruption behind closed doors is oxymoronic.”
The inspector also wanted an exoneration protocol so that those who had been found corrupt by Icac and who had not been convicted of a criminal offence after a trial could apply to the supreme court to expunge Icac’s findings.
It was left to Bruce McClintock SC, who, along with former chief justice Murray Gleeson, had conducted a review of Icac in 2015, to carefully explain that Icac makes corruption findings on the balance of probabilities, while the DPP has the job of prosecuting and if possible securing convictions beyond reasonable doubt.
Much of what Icac discovers through its coercive powers cannot be admitted in criminal proceedings, so it can be no surprise that findings of corruption can be made while criminal convictions either don’t proceed or don’t succeed.
McClintock submitted to the parliamentary committee: “Thus, it is inevitable that a proportion of cases where Icac finds corrupt conduct will not result in any prosecution, even [though] its findings were appropriate on the information available to Icac … That does not mean that the person in question did not engage in corrupt conduct, still less that the person is ‘innocent’.”
In the end the government and Labor members of the parliamentary committee agreed to airbrush Levine’s two major recommendations – secret hearings and exonerations – to arrive at a three-commissioner Icac where all investigations would be conducted in secret, unless the chief commissioner and one other agreed otherwise.
Additional “safeguards” have been included in the new act that amount to a backdoor version of an exoneration protocol. New guidelines for the conduct of public inquiries have to be formulated, along with prior disclosure to anyone under investigation of all the available evidence and time for responses to be formulated.
No adverse findings can be made without first giving the affected party a right of response and for that response to be included in the final report. People whose conduct attracts critical observations but no formal adverse findings cannot be identified in the responses.
These measures are a shift towards greater protections for those in the frame and remove much of the rough and tumble in the hunt for the truth. It should suit the politicians and the business interests that pull the strings no end.
Premier Mike Baird’s claim that his new legislation is just a reflection of the bipartisan recommendations of the parliamentary committee is disingenuous to a fault. Importantly the Labor members of the committee did not support the requirement that commissioner Megan Latham lose her job – and if she wanted it again she would have to make an application.
To require the commissioner to put her hand up for her job while she has been investigating members of the governing political party and while findings involving senior Liberals are still pending shows the extent to which the fix is in.
If she had chosen to do so, her appointment would have to be approved by the Coalition-controlled parliamentary committee. How do you think that would work?
The intemperate cross-examination of Latham by members of the committee on things like the commission issuing a press release announcing the Cunneen matter had been referred to the DPP, and her right to refuse to answer questions on operational matters, gives us a clue.
In fact the committee can veto the appointment of any commissioner – ie politicians can blackball anyone who looks like having the constitutional fortitude to be able to put a broom through the Augean Stables of the state.
The old Icac has been abolished, replaced by a new body with legislative mechanisms that make it much more politically responsive.
We also got a look at the vengeance that accompanied these changes. Cunneen was in the president’s upper-house gallery on the afternoon the legislation was passed. It was reported that she watched as Mike Gallacher spoke in favour of the bill, while frothing about Icac and its commissioner.
Gallacher resigned as police minister and went to the crossbench as a result of evidence that emerged during the investigations into political donations. The final Spicer report found he had given unreliable evidence and “acted with the intention of evading laws” relating to the disclosure of political donations and the ban on donations from property developers, but did not make any findings of corruption.
Grinning broadly as the legislation sailed through, the former minister said: “Despite occasional challenges, some days just could not get any better … Let me say, that is exactly how I feel today.”
It should be noted that the parliamentary committee on Icac has not released Cunneen’s phone conversations and text messages intercepted by the Australian Crime Commission. With the snippets that have emerged we find Cunneen messaging her son’s then girlfriend, Sophia Tilley, “to start having chest pains” in order to delay a breath test at the scene of a car accident.
The prosecutor also hoped that by the time an ambulance arrived a zero blood alcohol reading would be recorded. In a conversation with a smash repairer Cunneen was intercepted telling him: “That naughty girl had alcohol … that’s all right, I can cover that … But she had drunk, she’s on her P-plates. But it had been some time ago, which is why I sent her a message to start having chest pains and get the ambulance because it has bought her a few more hours. Just hoping it goes down to zero ‘cause otherwise there might be complicated insurance issues.”
Nile said that Cunneen was “joking” when she made those remarks.
Icac commissioner Latham put forward those tapes in an attempt present a full picture, to counter Levine’s critical findings and the over-egged response from members of the committee.
If it had been made public in its entirety, maybe we would not now be at the point where the independence and effectiveness of the corruption fighter is so miserably compromised.
