ICAC creators question ‘theatrics’ of counsel assisting

The architects of ICAC say it has become a public spectacle causing reputational damage to innocent people.

Questionable conduct.

The architects of ICAC have condemned its theatrical questioning style, saying it has become a public spectacle causing reputational damage to innocent people.

Gary Sturgess, who set up ICAC for the Greiner government in 1988, and then attorney-general John Dowd, who introduced the enacting legislation into parliament, both said reform of ICAC was needed to stop colourful and untested allegations appearing in the media that had the ability to damage names and reputations.

Mr Sturgess said the theatrics of ICAC’s counsel assisting were not helpful and there needed to be more effective management of ICAC’s process. “I recognise and fully acknowledge the concern and the damage that can be done to people’s names and reputations,” he said.

“For me, the answer lies in more effective management of the process rather than fundamental redesign of ICAC ... I do think that if the process is allowed to become extraordinarily colourful and counsel assisting engage in theatrics that can create problems for witnesses subsequently cleared of corruption.”

Mr Sturgess said he was aware that, before the royal commission into child sexual abuse began, an explicit decision was made for counsel to conduct itself in a measured way. He said he had no doubt ICAC staff would be inclined to the temptation of thinking they stood “above the law”.

“In my personal view, we should get ICAC’s investigation, inquisitorial and reporting processes right rather than seeking to replace it with some fundamentally different kind of organisation,” he said.

When designing ICAC, Mr Sturgess and Mr Dowd visited Hong Kong to look at its anti-corruption body. They spent long days discussing issues such as whether to give ICAC powers of a standing royal commission or if it should have the power to issue search warrants.

Mr Dowd agreed with his former colleague that ICAC had caused irreparable damage to innocent people and argued that at times hearings needed to be held in-camera. The hearings had become a spectacle for the media, with ICAC counsel given “too much latitude” to ask questions that were “extrav­agant in nature” rather than simply trying to elicit facts. “Once you start allowing questions which are going to create headlines, you need to contain the cross-examiner and counsel assisting to make sure that it doesn’t become a public spectacle rather than inquiry to find out facts,” Mr Dowd said.

“I think that there is too much latitude allowed in questions and that the commissioner hearing matters should disallow some questions which are extravagant in nature.”

Mr Dowd said hearings were originally meant to be held in private until it had been established there had been wrongdoing. “It may not have been spelt out, but as the minister who had control of it in the house that was clearly my view,” he said.

“In some cases, irreparable damage has occurred both to innocent and non-innocent people. Not everyone who has been damaged is without blame, but this can be covered by a more stronger protection during the hearings and by more hearings in-camera.”