I write to record my strong disagreement with the views expressed by John Tierney in his column "Berejiklian victim of unjust ICAC model" (Opinion, NH 6/10/21).
Dr Tierney's article is predicated upon a number of assumptions that have been repeated in media reports in recent days and which do not withstand scrutiny.
First he claims that Gladys Berejiklian has been an outstanding premier with an almost flawless record of good government through challenges of drought, bushfires and now a pandemic.
Leaving to one side the debatable question of her performance record, this claim is necessarily underpinned by the argument that misdeeds in public office can be justified, or at least excused, if the subject of the enquiry is otherwise of exemplary character. This is an argument that is sometimes advanced on behalf of lawyers, medical practitioners and other professionals who are accused of professional misconduct in their professions.
The argument has been comprehensively discredited because it ignores the fact that politicians, like professional practitioners, are entrusted with power and the conduct in question, if established, may amount to a breach of the trust reposed in them.
There is an important public interest principle at stake here and it is that the public is entitled to expect that its elected representatives will act, and be seen to act, with integrity in all things so that we may have confidence in the parliamentary system of government by which we are ruled.
It is no answer to an allegation of corruption or misdeed in public office to say that the subject is usually a person of exemplary character with an excellent performance record.
Second, Dr Tierney complains that ICAC enquiries are public and evidence is "sifted through" under the media's glare where politicians' reputations are trashed in the court of public opinion, sometimes in circumstances where no court action follows.
But this is no different from the position of any person who is accused of professional misconduct or a crime.
The corridors of our legal institutions are littered with the lost careers of people who were forced from their employment and suffered financial ruin to defend allegations of which they were later acquitted.
The important point here is that the independent commissioner does "sift through" the evidence and affords Ms Berejiklian the opportunity to give evidence and be heard and legally represented in open proceedings according to the finest traditions of our democratic system of open justice. The contrary position would be intolerable.
ICAC's findings that fall short of recommending criminal prosecution do not thereby lose their utility.
Allegations made secretly, hearings convened behind closed doors and findings of acquittal announced after the enquiry had been completed in secret is not a process that would enhance confidence in the integrity of public office.
Third, Dr Tierney repeats the unfortunate claim made by some other political commentators that the ICAC process reverses the principle of innocent until proved guilty. Adopting the terminology of the criminal law, this claim misconceives the whole nature of what is at issue.
We are not dealing with a question of liability for criminal behaviour where a defendant is entitled to acquittal unless the crown can prove the elements of an offence beyond reasonable doubt, pending which the defendant is entitled to the presumption of innocence.
We are dealing with a question of professional responsibility and whether a person has maintained that high level of personal integrity required of those who aspire to public office.
ICAC's findings that fall short of recommending criminal prosecution do not thereby lose their utility. They fulfil an important public function in advising us about dishonest conduct and sharp practice which, although falling short of criminal behaviour, nevertheless renders a person unsuitable for public office or positions of trust.
Finally, the Berejiklian investigation will not, as Dr Tierney claims, be "a further test of the ICAC's credibility", and certainly not in the sense inferred by Dr Tierney, that some adverse findings be made against Ms Berejiklian.
Section 13 of the ICAC Act, 1988, ascribes a wide range of functions to ICAC.
They include advice, education, recommendations about present or future practices, and advice to Parliament and other authorities about the adequacy of present laws in relation to the public sector.
We are well served by the Independent Commission Against Corruption and it will be a foolhardy government that does anything to interfere with it.
