James O’Doherty: ICAC’s new powers – and moves to block them – are extraordinary
New powers granted to ICAC to allow it to use illegally recorded private conversations during its investigations are extraordinary, writes James O’Doherty — but the move to block them is even more so.
Opinion
Don't miss out on the headlines from Opinion. Followed categories will be added to My News.
There is a saying among political operatives on Macquarie Street: ICAC is always listening.
There was no better example of the Independent Commission Against Corruption’s knack for capturing explosive phone taps than its investigation into corrupt former politician Daryl Maguire and, later, former premier Gladys Berejiklian.
Even politicians who believe they are squeaky clean live in fear that their private conversations could be hoovered up by the corruption watchdog, if they are caught on the phone to someone under secret investigation.
But until now, ICAC has been bound by certain rules for tapping the phones of people subject to its investigations.
Applications to intercept phone calls, for example, have to be approved by a member of the Administrative Appeals Tribunal. Surveillance devices applications need to be approved by a Supreme Court judge.
But under an extraordinary rule change ushered through this week, some of those rules no longer apply.
ICAC can now use illegally recorded private conversations during its investigations.
ICAC Commissioner John Hatzistergos asked for the new powers because the watchdog somehow found itself in possession of a recording which they wanted to use as part of an investigation.
While ICAC would not say what investigation the recording pertained to, sources familiar with the matter said it related to allegations senior Liberals had been paid to ultimately help fugitive property developer Jean Nassif and his collapsed company Toplace.
If ICAC discovered the recording on property seized during a raid, the watchdog would need new legal powers to listen to it.
The extraordinary new powers given to ICAC are the latest twist in a saga stretching as far as the remote mountains of north Lebanon.
A parliamentary inquiry into allegations first raised by Liberal MP Ray Williams, which sparked a nationwide manhunt for two Perrottet brothers, has now been ditched at the request of the corruption watchdog.
The committee had tried to summon Nassif to appear but the developer wrote back saying he could not appear because he was in remote Lebanon, where he was getting deliveries by mule.
To put ICAC’s new powers in context, the last time the watchdog requested access to illegally recorded conversations was in 2009, so it could listen to a secret tape recorded by murdered businessman Michael McGurk.
The man who granted them that power was none other than Hatzistergos — the then-attorney-general, now ICAC commissioner.
After a reported backlash from the Labor caucus, then-premier Nathan Rees was forced to limit ICAC’s power to listen to illegal recordings to one specific investigation.
Current Premier Chris Minns this week went further: the new rules now in place will apply for anything ICAC investigates, from now until the end of 2025.
While Labor MPs have fallen in behind their leader, Liberal leader Mark Speakman is now trying to block the new ICAC powers.
That move is almost as extraordinary as the powers themselves.
Speakman, a Senior Counsel who too often treats the Bear Pit as a courtroom, argued that giving ICAC the power to listen and use illegally recorded conversations creates a dangerous legal precedent.
He made the valid point on Thursday that the regulations could encourage people to break the law by illegally recording their political enemies.
“It’s important to have a strong, but it’s also important to uphold the rule of law,” Speakman said.
“We want corruption stamped out but we want proper oversight as well.”
But, considering ICAC is believed to have asked for these powers in the course of an investigation into allegations about senior Liberals, it is a dangerous political gamble for Speakman to block them.
Speakman says he is open to giving ICAC limited powers to view illegal recordings, as long as there are more safeguards in place.
The Liberal leader is not alone in his criticism.
Liberal Democrat John Ruddick is leading the charge in the Upper House to throw the rules out, arguing they erode personal freedom.
“The price is that a few corrupt people get away with it. That’s not great, but its better to protect our ancient civil liberties,” he said.
Barrister Margaret Cunneen, who fought and won against ICAC in the High Court, said that it would be “dangerous” to rely on illegally gained evidence, which “may be out of context, selective or incomplete”.
But defenders of ICAC say there is nothing controversial about letting the watchdog probe illegal recordings.
“My gut reaction is that it’s probably a good thing for ICAC to be able to do it, provided the person’s rights and liberties are restored if they go on criminal trial,” said barrister Geoffrey Watson SC.
The Upper House will vote on whether to block the new powers in September.
That vote could ultimately be decided by the Greens, who face a difficult choice between preventing corruption and upholding civil liberties.
A year since October 7, what has happened to Australia?
As protests around the world mark a year since the October 7 attack on Israel, US correspondent Tom Minear says he does not recognise how Australia has changed since then.
Are you sabotaging your child’s future?
With so many students becoming more anxious, distracted and sleep-deprived, this neuroscience expert is proposing parents implement these measures now, before it is too late.