ICAC must prioritise the justice system’s needs

John Hatzistergos, ICAC Chief Commissioner. Picture: Richard Dobson

At last, I have a reason to say something nice about ICAC: its latest annual report shows a remarkable improvement in internal efficiency.

Under the leadership of chief commissioner John Hatzistergos, the NSW Independent Commission Against Corruption completed 91 per cent of last year’s preliminary investigations within timelines set by its key performance indicators.

This is the highest figure in nine years and is a praiseworthy achievement.

But it is not the full story.

It is important that ICAC’s investigations are conducted in a timely manner but it is far more important that this process should not be permitted to delay criminal justice.

And that, unfortunately, is exactly what is happening.

Consider this example:

It was only a few months ago that ICAC finally got around to providing briefs of evidence to the Director of Public Prosecutions concerning a group of people associated with the Labor Party who had been under investigation for almost seven years.

It was back on January 15, 2018, that the NSW Electoral Commission asked ICAC to investigate the NSW branch of the Labor Party and certain individuals concerning a fundraising dinner organised by a group called Chinese Friends of Labor.

That dinner had taken place almost three years earlier, on March 12, 2015, at The Eight Modern Chinese Restaurant in Sydney’s Haymarket.

The Electoral Commission had been concerned about $100,000 cash in political donations that had been received by NSW Labor and Country Labor in the lead-up to a state election.

Right from the start, the Electoral Commission put ICAC on notice that it believed serious criminal offences might have been committed.

Yet consider the leisurely manner with which this affair was handled by ICAC before it finally made its way into the justice system.

Within days of the 2018 referral from the Electoral Commission, ICAC – then led by Peter Hall – launched a preliminary inquiry followed by a full investigation known as Operation Aero.

Nineteen months later ICAC conducted a public inquiry which started on August 26, 2019 and finished on December 12 of that year.

That was when the real problems set in. It was not until February, 2022 – more than two years after the conclusion of the public hearing and four years after the initial referral – that the commission produced a report.

That, however, is not the worst part of this tale.

After the report from Operation Aero was published in February, 2022, the commission then took another two years and four months to provide briefs of evidence to the DPP concerning people involved in that inquiry. The first brief of evidence was sent to the prosecutors on June 20 this year, followed by a second brief in relation to other offences on September 4.

Meeting the requirements of the prosecutors was the last step in ICAC’s involvement in this affair.

That means the DPP had to sit and wait for almost seven years after the Electoral Commission told ICAC that serious criminal offences might have been committed.

If charges are laid tomorrow, there is only a slim chance that court proceedings could commence before next March – which would be 10 years after the infamous dinner.

If witnesses are brought before the court to give evidence about what happened at that fundraiser, how much credence should be given to their recollection of events that took place 10 years earlier?

The effect of this sort of delay is to give priority to the interests of ICAC in securing publicity and producing reports while downgrading the need to bring those accused of criminal wrongdoing before the courts.

Was it not possible to produce briefs of evidence for the prosecutors while simultaneously writing a report on the affair?

Hatzistergos notes in his annual report that the commission now has staff preparing briefs rather than relying on investigators putting aside time from other duties.

But is that enough?

Two years ago, the Rule of Law Institute urged the NSW parliament’s ICAC oversight committee to streamline the entire process.

This followed even greater delays in the conspiracy case against former MP Eddie Obeid, his son Moses and former minister Ian Macdonald who had been investigated at great length by ICAC.

In July 2021, when the Supreme Court’s Justice Elizabeth Fullerton handed down guilty verdicts against the Obeids and Macdonald, her ruling concerned events that took place up to 14 years in the past at the time the case was finalised. They had been known to ICAC for more than a decade.

One way of avoiding a repeat of these delays is for parliament to accept that while ICAC is not a court, it deals with matters that can come before the courts. It should therefore be required to give priority to the requirements of the justice system.

Why not oblige the commission to provide the DPP with evidence of possible criminal conduct at the earliest possible moment? That could require the commission to adopt the approach of the Coroners Court and suspend an inquiry at any stage once it is clear that an indictable offence may have been committed.

That would make it clear that the public interest in the prompt resolution of criminal matters outweighs ICAC’s interest in conducting inquiries and revealing facts.

Relieving the commission of those matters at the earliest possible stage would also eliminate double-handling and clear the way for even greater efficiencies.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.