ICAC delays ‘ludicrous’, but not surprising

The NSW Independent Commission Against Corruption already has key performance indicators on timeliness and regularly fails to meet them.

Chris Minns needs to think again. Voluntary time standards will never put an end to the ludicrous delays that afflict the NSW Independent Commission Against Corruption.

For proof, the NSW Premier needs to look no further than ICAC’s own record of failure — outlined in its annual reports — when it comes to meeting the voluntary time standards that already exist.

The delay in producing this week’s report on former premier Gladys Berejiklian, while scandalous, is not that unusual.

The commission already has key performance indicators on timeliness and regularly fails to meet them.

In practice this means people who are entitled to a presumption of innocence are smeared at public hearings by an agency of government that is outside the justice system.

They are then left to wait, sometimes for years, while the commission considers whether they should be referred to the Director of Public Prosecutions or simply denounced as corrupt.

Last year, the Rule of Law Institute provided research to a parliamentary inquiry that shows delays of up to seven years in securing convictions against wrongdoers after they have been found corrupt by ICAC at public hearings.

When measured from the first day of a public hearing by ICAC to the day on which wrongdoers are sentenced by a court, the research found the delay had almost doubled — up from two years and six months in 2012 to four years and nine months in 2017.

To those who are unfamiliar with the leisurely pace at which ICAC prepares its reports it might seem shocking that the commission has only been able to finalise the Berejiklian inquiry twenty months after the former premier was examined at a public hearing in October, 2021.

On January 11 this year, fifteen months after Berejiklian’s public examination, ICAC sought to deflect criticism of the delay by issuing a statement asserting the inquiry had been complex.

But was it really? That is certainly not the view of Geoffrey Watson SC, a former counsel assisting at ICAC.

“I’m appalled at this,” Watson told The Sydney Morning Herald after ICAC’s January 11 explanation.

ICAC inquiry, Gladys Berejiklian, top right, judge Ruth McColl SC, bottom right, counsel assisting the commission, Scott Robertson, top left.

“The inquiry, which was not terribly complex, took too long to conduct and now this delay, which undermines public confidence in ICAC … This isn’t just unfair to the public, this is unfair to Gladys Berejiklian.”

Even if this were the only time the commission had been afflicted by such a delay, it would be unforgivable. But its most recent annual report, for 2021-22, shows the commission took an average of 554 days to complete full investigations.

That is a big improvement from an average of 807 days in 2020-21, which was the height of the pandemic.

But the improvement in the latest report simply means the commission has returned to its pre-pandemic pace of life when it took an average of 558 days to complete full investigations.

In July last year the commission told a parliamentary inquiry into time standards it completed 32 reports between 2010-11 and 2021-22 in which the public inquiry was five days or less.

It produced reports on just twelve of those 32 matters within the period set by its own key performance indicators — sixty days from the end of the public hearing.

This meant it met its KPIs for this category of matter in just 38 per cent of cases.

Or to put it another way, it failed to meet its own standard for timeliness in 62 per cent of matters in which public hearings ran for five days or less.

Exactly the same failure rate was apparent for more complex matters — those in which the public hearings extended beyond five days.

The KPI for those longer public inquiries requires a report to be produced within ninety days of the end of public hearings.

But the commission’s submission to that parliamentary inquiry shows it again failed to meet its own time standard in 62 per cent of matters.

Nobody should be surprised if the commission shrugs off criticism over the delay to the Berejiklian report.

Its submission to last year’s parliamentary inquiry shows it does not consider a public hearing to be concluded until the last day on which a submission was received.

In January, when it sought to blame complexity for the delay to the Berejiklian report, it pointed out that it had received the last submission in October, 2022 — exactly a year after Berejiklian’s public hearing.

How convenient.

In ICAC’s view of the world, that late submission meant the public inquiry only finished in October last year — twelve months after the former premier was grilled in public.

So instead of a delay of 20 months, ICAC would probably consider the delay to be a mere eight months.

Much has changed since ICAC quizzed Berejiklian in public about the meaning of terms of endearment it picked up while tapping her phone calls with her then boyfriend, Daryl Maguire.

The chief commissioner is now John Hatzistergos, a tough-minded former judge and Labor Attorney-General of NSW. But he only took office on August 7 last year — long after assistant commissioner Ruth McColl was given responsibility for the Berejiklian inquiry.

Like his predecessors, Hatzistergos is presiding over an organisation with an entrenched culture and mindset. But the new chief commissioner has some entrenched ideas of his own.

In 2001 Hatzistergos wrote in the Australasian Parliamentary Review about the need for more effective oversight for ICAC.

“The commission’s powers exceed those of parliament and its committees, and the parliament is at a disadvantage in seeking to oversee the use of those powers,” he wrote.

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