No entity should be above the law, including ICAC

The pledge by Amanda Stoker, the federal Assistant Minister to the Attorney-General, to stop a national integrity commission turning into a “monster” like NSW’s Independent Commission Against Corruption does not go far enough. Senator Stoker is right to rule out a body with the power to destroy lives and careers over trivialities, run investigations that go nowhere and tarnish the reputations of those who appear as witnesses at public hearings. She and her colleagues would serve the national interest better if they took a hard look at ICAC and concentrated on resourcing the tried and tested watchdogs established to deal with corruption – the legal system, financial watchdogs and, within government, ombudsmen, the Auditor-General and the Joint Committee of Public Accounts and Audit. Those baying on Twitter for a federal corruption watchdog to delve into sports and regional rorts, and other wastes of taxpayers’ money, should grasp the difference between corruption, which warrants legal action, and pork-barrelling, which demands political solutions.

Procedural fairness, including the presumption of innocence, evolved in the legal system across centuries. If ICAC and similar interstate bodies are to make a constructive contribution to the rule of law they need to do so through the legal system. In 2014, ICAC’s former head, Megan Latham, gave the game away in an infamous speech to young barristers. “If any of you get tired of adversarial litigation, inquisitorial litigation is fantastic,” she advised. “You are not confined by the rules of evidence. You have a free kick.” And because witnesses already had been questioned in camera, she said, the role of counsel assisting was like “pulling wings off butterflies”. ICAC’s public hearings have all the characteristics of show trials, replaying private conversations taped in the course of secret investigations, when too often the hearings do not lead to charges of wrongdoing but to needless humiliation for those involved.

Gladys Berejiklian is the third Liberal premier forced from office by ICAC’s anonymous lawyers and investigators. Barry O’Farrell resigned in 2014 over an undeclared gift of a $3000 bottle of wine and Nick Greiner, ICAC’s founder, quit in 1992 after offering Liberal turned independent MP Terry Metherell an executive position in the Environmental Protection Authority. ICAC’s finding against Mr Greiner was overturned by the courts and Mr O’Farrell was never charged with anything. Nor was former police minister Mike Gallacher, who had to resign at the height of an illustrious career over an accusation at an ICAC public hearing that was never supported by evidence. Former NSW State Emergency Service commissioner Murray Kear was accused by ICAC in 2014 of terminating the employment of a whistleblower. He faced the prospect of going to jail for up to two years but he proved his innocence.

In 2011 ICAC found that businessman Charif Kazal was corrupt. But he was never charged with any offence, which meant he was never given what every Australian, including alleged murderers and rapists, is due – a day in court to clear their names. And the reason? Independent prosecutors examined ICAC’s brief and found there was insufficient evidence to justify prosecuting Mr Kazal for anything.

Former prosecutor Margaret Cunneen SC, whom ICAC wrongly accused of misconduct over a 2014 traffic accident at which she was not present, made an important point in 2018 when she called for ICAC to be subjected to a new system of ­review aimed at weeding out mistakes that currently remain ­uncorrected. “What about these people who have no form of redress?” Ms Cunneen said. “They are not guilty of any crimes, what do they do? What is the remedy for them?’’ As Rule of Law Institute of Australia vice-president Chris Merritt wrote on Saturday, the NSW parliamentary committee that oversees ICAC is yet to decide whether to introduce such an exoneration protocol to provide a remedy for its innocent victims.

Experience in other states shows the problem with either side of politics bringing “public watchdogs” to heel is that doing so gives political opponents a free kick to claim the government in question is soft on corruption. But as ACT Integrity Commission inaugural commissioner Dennis Cowdroy QC warned in March, without proper oversight “there exists a real possibility that the powers bestowed upon such agencies could be used for purposes never intended. Such agencies are not courts yet wield immense power”. Allowing them to run rampant, without sufficient accountability, makes for rough justice.