Time for ICAC chief to make way

The agency’s legal Left culture has exposed it to hubris.

Megan Latham, the boss of NSW’s out-of-control Independent Commission Against Corruption, must go. She has presided over unlawful behaviour during an investigation that the agency should never have begun, according to yesterday’s report from the former judge, David Levine, who serves as ICAC’s independent inspector. Former premier Nick Greiner, who set up ICAC in 1988, says: “On current evidence, we cannot rely on the existing ICAC system to deliver fair or reasonable results.” He makes this damning remark today in an exclusive interview with The Weekend Australian’s Paul Kelly, who highlights ICAC’s “deep reluctance to accept the accountability safeguards essential for an institution with such exceptional powers”.

Like the post-Fitzgerald inquiry Criminal Justice Commission in Queensland and Victoria’s Office of Police Integrity, ICAC has developed a legal-left culture among its staff; it is prone to overreach. On balance, ICAC has been bad for the cause of good government in NSW and it stands as a rebuke to those who would agitate for a federal anti-corruption body.

Last year ICAC launched an investigation — with the portentous name Operation Hale — into the conduct of NSW deputy senior crown prosecutor Margaret Cunneen. The allegation was that she had tried to pervert the course of justice following a traffic incident in Sydney involving her son’s girlfriend Sophia Tilley. Ms Cunneen was said to have advised Ms Tilley to fake chest pains to avoid a breath test for alcohol. Even if the allegation were true — Ms Cunneen denied it and Ms Tilley passed the breath test — it was not the serious public corruption that ICAC was meant to deal with. At one point the agency had Ms Cunneen and three others under surveillance. But it’s no great surprise to anyone following the case that Mr Levine dismisses the allegation against Ms Cunneen as “trivial”. He says ICAC lacked a sense of proportion in pursuing it.

Operation Hale had an unintended value; it showed beyond doubt that the investigators, rather than the targets, were in breach of the law. The agency seized Ms Cunneen’s personal mobile phone by means of a notice to produce — not the correct legal procedure. A week later ICAC officers arrived at Ms Cunneen’s home with the necessary search warrant and the phone in an evidence bag; they took a video as they again “seized” the phone they already had. Mr Levine quotes a legal opinion that the search warrant could not retrospectively validate the earlier, unlawful seizure. He says the way in which Ms Latham issued the notice to produce amounted to an “abuse of power and serious maladministration”.

And Mr Levine speaks of the “stark unfairness” of ICAC passing on the contents of Ms Cunneen’s personal phone — 2274 pages of text messages and other files, some going back to 2005 — to her boss, Director of Public Prosecutions Lloyd Babb. This included texts sent by Ms Cunneen in which she criticised Mr Babb’s handling of an appeal case. Mr Levine says it “beggars belief” that ICAC handed over so much private material for a disciplinary fishing exercise by the DPP.

In April the High Court agreed with Ms Cunneen that ICAC had gone beyond its jurisdiction to pursue her. At that point, NSW Premier Mike Baird should have reined in the agency to ensure it focused on serious public corruption. Instead, he responded by giving ICAC more power. In seeking to appear cleaner than clean — and nobody doubts Mr Baird’s integrity — the Premier has played into the hands of a culture of self-righteous lawlessness by the legal Left. It is no coincidence that ICAC’s two biggest scalps were conservative, cleanskin premiers — Mr Greiner and Barry O’Farrell.

For its 2012-14 pursuit of former Labor ministers Eddie Obeid and Ian Macdonald, ICAC received wide publicity. Yet the remarkable fact about the Obeid investigation is that it was not launched while Labor was in power but years later once the Coalition had formed government. To some — Fairfax Media, for example — ICAC can do no wrong. But that is the quid pro quo for being on the receiving end of (highly selective) leaks from within the agency. The political effect of the Obeid case was to destroy Labor as a credible opposition. This led ICAC to fear the Coalition government would become an unchecked threat to the public interest. Such was the background to the agency’s pursuit of Coalition MPs over electoral funding activity that would not be unlawful in other states or federally. Like the Cunneen case, this too fell short of the serious public corruption that should preoccupy ICAC. Breaches of electoral law could have been left to the NSW Electoral Commission.

Having acknowledged that the Levine report raises “very serious” issues, Mr Baird is on notice; reform of ICAC is expected. It’s time to withdraw the agency’s licence to pull the wings off butterflies — as Ms Latham infamously characterised the inquisitorial role of counsel assisting ICAC.