I’m a Laborite, but I’m appalled ICAC felled three Liberal premiers

The witness box at the Independent Commission Against Corruption, as former premier Gladys Berejiklian found to her discomfort, sometimes without justification, is an unenviable place. The ICAC in public hearings regularly generates humiliation as an almost inevitable byproduct of cross-examination.

In this, as in other features, the ICAC assumes certain characteristics of the United States House Un-American Activities Committee during the “Red Scare” of the 1950s. There, the keyword that smeared countless innocent Americans was “communist”. At the ICAC, the word is “corrupt”. And Australian reputations have been damaged, even ruined.

Three former Liberal premiers announce their resignations after encounters with the ICAC: Nick Greiner, Barry O’Farrell and Gladys Berejiklian. Credit: The Sydney Morning Herald

Now that Premier Chris Minns has referred his stood-aside minister Tim Crakanthorp to the ICAC – 35 years after Liberal premier Nick Greiner launched the commission, then became its first major scalp, later exonerated – it is worth asking: has this corruption watchdog served our state well? Given that it went on to force the exit of two more Liberal premiers, Berejiklian and Barry O’Farrell before her, readers might expect that I, as a senior Labor Party figure for many years, might find joy in its determinations.

Wrong. The ICAC was never a sound idea, and I openly opposed its creation at the time. It is alien to our system of justice, affording few rights to defendants: denying the presumption of innocence and permitting little or no redress to those wrongfully labelled corrupt.

First, an ICAC story. If you are called before this body, then not only your critics but also a certain proportion of the community assumes the worst. Dealing effectively with the witness box at the ICAC involves telling a story against yourself.

An inquiry in the late 1980s into North Coast developers and political contributions focused mainly on then Nationals’ deputy premier Wal Murray. However, I was called regarding my own experience of being confronted by lobbyists. At the time, I was the general secretary of the NSW ALP and just recovering from a minor operation on my lower abdomen. I was actually standing in the witness box at the ICAC, as it was somewhat painful to sit, given the stitches that were still present.

Why had I met certain North Coast developers in the lead-up to a state general election? I replied that people lobbied me all the time and referred to the fact that, while I was on a gurney outside the operating room at St George Hospital a few days earlier, the anaesthetist who was about to knock me out for the operation came over and engaged me in a vigorous discussion about the relative merits of public versus private medical insurance.

Justice Adrian Roden QC was chairing the ICAC proceedings. He leant forward and asked politely: “Tell me, Mr Loosley, what position did he take?”

I replied: “Your Honour, the doctor was strongly in favour of private medical insurance. And given our respective positions at the time, I agreed with every word he said.”

The courtroom laughed. I knew instinctively that this was the story The Sydney Morning Herald would publish the next day. And so it proved to be. Otherwise, the headline might have read: “Loosley admits he met North Coast developer”.

It’s always worth remembering that the ICAC was born of political malice; it is the fruit of a poisoned tree. Elected in 1988, the Greiner-Murray Coalition government pursued a policy of exacting political damage against Labor following the ALP administrations of Neville Wran and Barrie Unsworth (1976 – 1988). True, there had been real scandals during Labor’s long period in office, including criminal misconduct involving figures such as chief magistrate Murray Farquhar and corrective services minister Rex Jackson.

The critical point is that such scandals were dealt with according to the criminal justice system that existed at the time, and both these offenders, and others, served time in jail for their wrongdoing.

During debate in the Legislative Assembly which saw the ICAC legislation introduced, the then Liberal attorney-general, John Dowd, told the House on May 18, 1988: “The commission will spend much time examining the workings of the Labor Party.” He told parliament 13 days later: “It is inevitable that if in the past 12 years one government [Liberal] has been in office for two months and the other [Labor] has been in office for the remainder of that period, the corruption of the latter ... will be examined.”

Now Minns has been obliged to refer Crakanthorp to the corruption commission after accepting his resignation following his alleged failure to declare family property interests. The premier had no choice, really. If he had not involved the ICAC, the opposition would have referred matters to that body backed by media calls.

A friend and colleague of mine in an earlier state Labor government used to have an expression for his staff on issues of potential controversy: “This is ICAC-able.” This required the matter to be referred to the ICAC prior to a minister making a decision, thus distorting the Westminster system of ministerial responsibility and accountability to the parliament and the electorate. NSW is no better for the introduction of the ICAC. Arguably, state politics are worse, operating under the shadow of a body not answerable to democratic imperatives or public opinion.

The fall of three premiers should have surely taught the Liberal Party, at least, an indelible lesson. Nick Greiner departed office in 1992 on the basis of an ICAC report which was embraced opportunistically by the Labor opposition and independents, only to have the NSW Court of Appeal overturn the finding. O’Farrell exited stage left seemingly on the basis of a bottle of wine. Berejiklian had an embarrassing boyfriend who dragged her down.

All these issues should have been the responsibility of the parliament overwhelmingly, and the ultimate arbitrators of controversy, the people, whose conclusions would have been reflected at the ballot box.

Stephen Loosley is a former ALP national president, senator and general secretary of the NSW ALP.