David Penberthy: It should not be the job of a bunch of lawyers to hound elected officials from office

By taking the side of a bunch of unelected lawyers on this, voters are effectively disenfranchising themselves, writes David Penberthy.

The speed and unanimity with which our 69 state MPs approached the ICAC reforms has aroused an unsurprising level of suspicion. Voters have a dim view of those in politics and the optics of every single member voting at warp speed to narrow the powers of our anti-corruption watchdog looked at first blush like a complete rort. Especially in a parliament which is home to two men still awaiting trial on (hotly denied) charges that emanated from ICAC, and others who have had close shaves with ICAC’s interpretations of the law.

The truth is more complicated than that. And the impetus for the ICAC overhaul has been made starker by the events in NSW these past dramatic days, where a toiling premier has been driven from office not only with no conviction against her, but without even being charged with an offence.

The truth is that the work of these anti-corruption watchdogs has ranged from the excellent to the amateurish and the importance of its investigations from the crucial to the marginal. The end result of all this is that bad people and good people end up being punished in equal measure.

SA Best MLC Frank Pangallo introduced the controversial new SA ICAC laws that sailed through parliament. Picture: Keryn Stevens

And make no mistake, the punishment can be life altering. It can also be life-ending, as it was in South Australia with the case of senior SAPOL officer Chief Superintendent Doug Barr, who took his own life after being investigated by ICAC while awaiting the news that his name had been cleared of any and all wrongdoing.

Much of this is actually the fault of politicians themselves, which is slightly karmic given that they’re the ones who now want to reform these anti-corruption watchdogs. If ICAC had a motto it should really be “mud sticks”. In the many years I spent covering NSW politics on Macquarie St, Sydney’s equivalent of North Tce where the boisterous parliamentary chamber is nicknamed “The Bear Pit”, politicians would almost refer their opponents to ICAC for sport after a boozy lunch on a Friday.

The frequency with which referrals were made spawned a term used by journalists in NSW – “Do you think this is ICACable?” – to inquire as to whether the allegations the politicians were levelling deserved the attention of ICAC’s toecutters.

The end result of all this is that we have seen a good bloke in Barry O”Farrell quit his job after winning a deserved landslide for forgetting to declare a bottle of Penfolds Grange. And now we have seen Gladys Berejiklian hit the wall for the reasonably common crime of having dubious taste in blokes.

I have read all the wire taps involving the conversations between the ex-premier and her former boyfriend, Wagga Wagga’s own Daryl Maguire, who can be fairly described as being a pitiable Walter Mitty fantasist who was constantly on the make.

Former Wagga Wagg MP and Berejiklian boyfriend Daryl Maguire in the witness chair at ICAC last year. Picture: ICAC

In those conversations, Berejiklian repeatedly told Maguire not to tell her about all his silly wheeler-dealing, and whatever commissions he claimed to have cut from brokering deals which (rightly) brought him into ICAC’s purview. ICAC would argue now that the reason it extended its gaze to Berejiklian is if there was enough in Maguire’s comments to arouse her suspicions about his conduct, and that she may have been concealing his misconduct by not raising her concerns with ICAC or the Police.

As I said, everything I read from their secret chats suggests she was almost yawning whenever he started rabbiting on. She was also probably so blinded by her affection for him that she thought telling him to change the subject was enough. So unless dating a big-noting name-dropper is against the law, it is hard to see what she has done wrong.

The bigger point here is that in a pure legal sense, Berejiklian has done absolutely nothing wrong at all. As I said, she has not been charged with a single thing, and I would bet my house that she never will be. Instead, she has quit knowing the stench of that investigation would follow her if she continued as leader.

Ex-NSW Premier Gladys Berijiklian outside her office following her Picture: Sam Ruttyn

So much for the presumption of innocence.

NSW has not had a full-term premier since the 1999 election and has had six premiers since Bob Carr resigned in 2005, and the instability has been due in considerable part to the workings of ICAC. And if you go back to ICAC’s inception, pushed by Nick Greiner’s Liberals at the 1988 NSW election in the somewhat murky back draft of the Neville Wran era, it was Greiner himself who was forced to resign as a result of an ICAC investigation which was later overturned as being wrong in law.

As I said at the start of this piece, I totally understand the public suspicion about what happened on North Tce. But here is a point worth considering: How is that the public can be so strongly critical of the performance of the judiciary in every other area, yet instinctively rally behind a questionable ICAC, just because the politicians have ganged up on it?

I would argue that by taking ICAC’s side on this, the voters are effectively disenfranchising themselves. It is the voting public that should do the hiring and firing when it comes to our politicians. The process by which we do that is called an election.

It should not be the job of a bunch of lawyers to hound elected officials from office, where an allegation has the effect of being a conviction, with flimsy rules of evidence that enable fishing expeditions, and where the wrongly accused have no redress to clear their names.

It makes sense to have an independent Office of Public Integrity to sort the wheat from the chaff when it comes to what is investigated, and for those investigations to be of magnitude in order to make it to ICAC’s desk.

Bottles of wine and reluctant pillow talk with a deluded lover don’t strike me as grounds for knocking off premiers. That’s the public’s job.