The ICAC failed Gladys. We need this watchdog but we must change it

The Independent Commission Against Corruption has been a revered institution since its formation under the Greiner government in 1989. The ICAC has diligently and methodically exposed systemic corruption, and been fearless in exposing politicians, bureaucrats and people who have sought to manipulate public processes for personal gain.

It has helped foster public trust in government, improved policymaking and execution, enhanced the interests of taxpayers and strengthened the foundations of our democracy.

Then-premier Gladys Berejiklian with Matt Kean, her environment minister, in 2020.Credit: Nick Moir

We should cherish its very existence.

But the ICAC is not beyond rebuke, or improvement, and the inquiry and report into former NSW premier Gladys Berejiklian places a spotlight on the case for change.

The failures of the inquiry since its very inception are almost Shakespearean, except in this case the tragedy is the loss of one of the state’s finest premiers on dubious grounds – as well as the trauma she had to endure from needless levels of intrusion into her personal life.

The ICAC has a methodical approach to its work that is governed by legislation. The first step is the concept of private hearings, where evidence can be gathered and assessed before the decision is taken to proceed further. But it was here, in the supposed sanctity of private hearings protected by the very laws that govern the ICAC, that the first failure occurred.

The ICAC accidentally published transcripts from private hearings, and it was no surprise to see the circus that followed.

One Nation’s Mark Latham – someone who once cried at a public podium about an apparent intrusion into his personal life when he was federal opposition leader – read elements into Hansard. His horrid instincts for political gain and the torment of a good woman turned what should have been a secret investigation into a crude political cudgel to be deployed against Gladys Berejiklian.

The second failure occurred due to the ICAC’s impossibly slow processes with this inquiry. A two-year delay in reporting findings meant there was no potential for the electorate to cast a democratic judgment on her actions.

The ICAC had every right to investigate, but Berejiklian also had every right to expect a timely investigation. In her resignation speech on the day the ICAC announced its inquiry, she warned that was unlikely – and wasn’t she tragically correct?

And finally, there are the findings of the report. Everyone in NSW is now familiar that the ICAC is an investigative body and its processes and tests are different to a court of law – and for good reason. But it is bizarre that the ICAC has sought to render serious findings against the former premier at the same time as it avoids seeking any sanction for them.

There is no finding of personal financial benefit; no referral to public prosecutors for failing to act on the conduct of Daryl Maguire; and no finding that she breached the law.

Incredibly, the ICAC seeks to establish, for example, that the motivation for her actions as a public officeholder was to advance and maintain her personal relationship with Maguire.

I fully understand the ICAC exploring the financial motivation of people seeking to abuse public processes to enrich themselves. But do we really want the state’s independent watchdog making serious findings based on its interpretations of the evolution of someone’s love life?

The ICAC’s mission is too vital to the integrity of public life in NSW to be distracted by such a wild diversion.

We want the ICAC to succeed, but it is not beyond accountability, and it is timely for the parliament to review this sorry saga to strengthen the commission’s capacity to pursue its mandate – balanced with the natural justice principles that need to be available to those whom it pursues.

Matt Kean is NSW’s former Liberal treasurer and was a senior minister in the Berejiklian government. He is now opposition health spokesman.

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