Independence in doubt as Fairfax goes easy on ICAC

ICAC NSW commissioner Megan Latham.

Margaret Cunneen, her son Stephen Wyllie and his girlfriend Sophia Tilley were told not to breathe a word to anyone that they were under investigation by the top-secret corruption watchdog, ICAC.

With their mobile phones seized, unexpectedly and unlawfully, one morning in July 2014, they were thrown into a world of intimidation, fear and isolation with no way of contacting friends or family.

While they were silenced, The Sydney Morning Herald splashed claims about Cunneen across its front page. Story after story. They linked her to questionable characters, and Tilley to underworld figures. Absurd articles, now that we know the truth: Tilley had a blood alcohol reading of zero and Cunneen made an offhand comment a day after her accident about Tilley’s “fake chest pains” in a conversation on a tow-truck driver’s phone that was, by chance, being tapped by the Australian Crime Commission.

At the time, Cunneen was not allowed to publicly defend herself. ICAC gags those it is investigating, with the threat of prison if they are found to have been speaking. There is surveillance, too.

All the while, those close to ICAC leak to selected journalists, almost exclusively working for Fairfax Media, generating positive publicity for a body that depends on state funding. It is this flow of information to the media, while ICAC’s targets are deprived of a right of reply, that is disturbing.

In recent months, Fairfax’s The Sydney Morning Herald has stepped in to defend ICAC as evidence of its unlawful conduct has emerged.

Former Labor senator Graham Richardson has been one of the rare voices prepared to speak on this issue and face criticism from Fairfax.

“The threats to witnesses that they will be jailed if they reveal even the fact that they were interviewed is in stark contrast to the routine breaking of the law that is made every time someone from ICAC rings a journalist and leaks what happened in private interviews,” he said.

The one-time political kingmaker has faced the odd leak against himself — he woke up last December to read a front-page Herald article “revealing” he was embroiled in a “potentially explosive” ICAC investigation. But a year later the hype has dissipated into nothing.

“The Sydney Morning Herald has been the beneficiary of ICAC’s illegal leaking for more than two decades,” Richardson said.

“Accordingly, they are desperate to protect such an invaluable source.

“They give virtually no coverage to anything negative that can be said about ICAC, rubbish its detractors and distort their coverage.”

Former Liberal energy and resources minister Chris Hartcher’s barrister, Alister Henskens, now a NSW MP, put it more bluntly in an ICAC hearing when he said of the Sydney Morning Herald’s journalist Kate McClymont: “Apparently Ms McClymont is some sort of clairvoyant.”

Hartcher had been raided on the morning of December 4, 2013, by ICAC officers. While he and his family were stunned to find investigators executing search warrants to trawl through his home and offices, the media were quickly outside filming the commotion.

“In my opinion it would not have been possible to organise crews and to have got from Sydney to Erina at a distance of approximately 70km unless there had been notification by ICAC that the raid was taking place,” Hartcher noted.

Two days later, the corruption watchdog had still refused to provide Hartcher with details about why he was being investigated. The flow of information to the media, however, was more forthcoming. The Sydney Morning Herald revealed ICAC was holding two inquiries and stated categorically Hartcher would be a key subject of both of them.

It was news to him. And it was information that would not be publicly announced until February 2014.

“I have no doubt at all that the material relating to me was leaked from ICAC to The Sydney Morning Herald and I lodged a complaint about it with the then commissioner David Ipp, who declined to investigate the complaint,” said Hartcher, who resigned over allegations of setting up a scheme to funnel illegal property donations into the Liberal party ahead of the 2011 state election.

What has surprised some is how McClymont, an award-winning journalist well respected by her peers, seems to have tied her fortunes so firmly to ICAC. She and her colleagues seem to have failed to maintain a healthy cynicism about ICAC and its methods.

Australia’s first journalism professor, John Henningham, said the journalist within him knew that if you’re going to get a juicy bit of information, of course, you’ll be wanting to use it.

But he said: “It raises the question whether organisations receiving leaks are as robust in their criticism or evaluation of ICAC as they could be or should be.

“Judicial organisations, you hope, could work according to higher principles and we should be able to trust them to do their work effectively and without stepping outside the boundaries.”

All media organisations benefit from leaks. The difference in this case is that despite promising to be “independent always”, Fairfax has comprehensively failed to scrutinise the anti-corruption body as the cracks emerged in recent months, leading to ICAC’s inspector David Levine releasing a report into the Cunneen investigation find that ing ICAC commissioner Megan Latham abused her power and presided over unlawful conduct.

McClymont and Herald state political editor Sean Nicholls seem to have become activists, appearing to protect ICAC, even as ICAC’s architect, Gary Sturgess, wrote an op-ed in their newspaper stating he had lost confidence in the body he designed.

“Let me state my position more clearly — on the basis of Levine’s findings, I would not trust any undertakings from the ICAC’s officers, if I were asked to co-operate,” Sturgess wrote.

“A retired Supreme Court judge has formally declared that the ICAC is not to be trusted. That is an intolerable position, and one hopes that the oversight committee, and the Premier and Opposition Leader have grasped the gravity of the situation.”

Sturgess called for Latham to stand aside and argued for ICAC’s powers to be reined in. He made similarly strong remarks in a piece by The Weekend Australian’s editor at large, Paul Kelly, last Saturday. Sturgess is not alone. There have been public criticisms by the NSW premier who created ICAC in 1988, Nick Greiner, the attorney-general who had carriage of the legislation in parliament, John Dowd, as well as Levine.

In the face of the growing concerns about ICAC’s abuse of power and unlawfulness, The Herald has mounted the defence of ICAC, largely explaining away its questionable practices, which include suppressing evidence that may be favourable to a witness.

Barristers answer to the Bar, Judges to the Judicial Commission and ICAC is answerable to its inspector.

Yet when Levine’s damning report came out last Friday, the Herald took more than three hours to report it on its website. When it finally published a story, there was no mention of Cunneen or ICAC in the headline.

News of the report would have come as a shock to readers of the Herald. Barely a word had been printed by its journalists about unlawful seizure of mobile phones without search warrants, about the leaking of Cunneen’s private text messages, dating back nine years, or Latham’s refusal to meet the inspector.

Further, McClymont and Nicholls in last Wednesday’s newspaper criticised Cunneen, once again, rehashing claims that had already been investigated by the NSW Solicitor General, Michael Sexton, the Victorian Chief Crown Prosecutor Gavin Silbert and Levine, who all found Cunneen had no case to answer.

The former solicitor-general for the commonwealth of Australia and former president of the Australian Bar Association, David Bennett QC, told The Weekend Australian yesterday McClymont’s report was “one-sided.”

“I remember reading the article and thinking it was a bit unfair to Cunneen. It repeated old claims from a one-sided point of view,” he said. “In the circumstances where the DPP has decided there is nothing there, to write that piece for the purpose of trying to justify the commission’s actions seems to me to be quite inappropriate.”

Bennett said that even if the claims were true, it was a lack of judgment to investigate them — a point the Herald has not accepted.

“Even if what was done could be said to amount to an attempt to pervert the course of justice, if it was true, which it probably wasn’t, it’s a trivial attempt to pervert the course of justice,” he said. “The whole thing becomes a bit ridiculous.”

At the glamorous Andrew Olle lecture last month, McClymont angrily approached this writer.

Recent reports in The Australian about ICAC’s leaks to the Herald were clearly a sore point, and McClymont denied ICAC had leaked to her.

While McClymont was comfortable expressing her anger publicly, behind the scenes she was far more emotional, leaving a voice message on the mobile phone of editor-in-chief Chris Mitchell, imploring him to be gentle in his newspaper’s reporting on her. It is little known in the media industry that McClymont’s husband, Graeme Brosnan, from whom she has split in recent times, worked as a private investigator. He has run a company called Brosnans Investigations Services, which, according to its website, has a national network of investigators and offers live surveillance.

The Australian has repeatedly contacted Brosnan but he has declined to return phone calls.

It is fairly well known within the NSW parliamentary press gallery that NSW Premier Mike Baird wants to keep the Herald onside. He is the first Liberal premier to maintain its support and, with his approval ratings in the stratosphere, he does not want to do anything to rock the boat.

Many senior members of his own party, both at a state and federal level, disagree with him. Strongly. But, in NSW, anyone who would like a promotion is not about to break rank.

And that’s without factoring in the fear that the star-chamber instils among politicians. If they speak out, they are afraid ICAC will ‘‘come after’’ them.

The politician said MPs were “intimidated by the power of ICAC because in the public mind, if you’re investigated, you’re guilty. Because of the media storm, you are tainted and damaged. So they tiptoe around in utter fear.”

It’s sometimes easy to forget the Herald was once renowned as a newspaper of independent, objective reporting. Former ICAC Commissioner Barry O’Keefe had to stand down in 1999 for far less than ICAC is being accused of now — he made a comment about the character of Blacktown Labor MP Paul Gibson at a public function. But one would expect the Herald will now continue to campaign in support of Latham as she faces growing calls to step aside.