The office of NSW Premier Mike Baird says all options are on the table in determining the government’s response to the recent High Court ruling on the scope of the powers of the state’s corruption watchdog.
One option that should not be given serious consideration is the submission from the watchdog, the Independent Commission Against Corruption, to amend the ICAC Act. That submission has not been made public, which is curious, given this agency’s desire for public hearings into the conduct of others.
Perhaps the submission refers to the difficulty ICAC now has in conducting some current investigations. We are, though, given two pieces of information about the submission.
First ICAC wants the ICAC Act to be urgently amended, no doubt to give ICAC the wideranging powers it wrongly thought it had. Any consideration given to amending the Act should not be rushed. Any amendments resulting from the High Court’s decision would necessarily go to the heart of ICAC’s powers.
ICAC is an important body and has highlighted many corrupt practices at all levels of public administration. By doing so it has no doubt deterred many others.
ICAC wants its proposed amendments to be retrospective; it wants a free pass for contravening its own governing statute.
As we have not seen ICAC’s submission we do not know if the retrospectivity sought extends to eliminating liability for alleged contraventions of the secrecy provisions of the ICAC Act, which provide for maximum penalties of 12 months jail and a fine of $5500.
This being the 800th anniversary of Magna Carta, it is worth remembering a fundamental principle of the rule of law: we are all subject to the law, regardless of who we are.
Quite rightly the Baird government has not introduced legislation that has retrospective application if it seeks to impose a penalty or something akin to a penalty. ICAC is not authorised to make a finding of guilt or even to recommend someone be prosecuted, let alone impose a penalty. The only finding ICAC can make is a finding of corrupt conduct. However, such a finding has very significant implications for the person concerned, in particular its impact on their reputation.
Consider what position Margaret Cunneen SC would be in if ICAC had made a finding of corrupt conduct against her. She would have surely lost her position as deputy senior crown prosecutor and the impact on her and her family would be devastating.
If ICAC has previously made a finding of corrupt conduct that it should not have made or is currently conducting an investigation it should not be undertaking, those findings and investigations should not now be given the sanction of the NSW parliament.
The government should not seek any retrospective amendments to the ICAC Act.
The appropriate response is to conduct an inquiry to assess why ICAC sought to investigate Cunneen and what powers the agency should have to carry out future investigations and hearings.
An inquiry into why ICAC sought to investigate Cunneen is already well under way, having been commenced by the agency’s inspector, David Levine, a few days after the agency announced it was investigating her.
Levine is a retired Supreme Court judge. That he had the foresight to realise ICAC might be exceeding its powers demonstrates he well understands the nature of the problem at this organisation.
Levine has the same extensive powers as a royal commissioner. Although it is a matter for him alone, there is no reason why the government could not ask him to hand down an interim report.
The inspector may at any time make a report to the President of the Legislative Council and the Speaker of the Legislative Assembly if he considers it is in the public interest to do so.
The inspector may include in the report a recommendation that it be made public forthwith and the President or Speaker may then publish the report, whether or not it has been tabled in parliament.
The parliament also has a direct means of oversight of ICAC through the ICAC Committee, a statutory joint committee of both houses. All parliamentary committees were dissolved before the recent state election. The first sitting day of this parliament is May 5 and both houses should immediately move to appoint ICAC Committee members.
The committee can report on any matter relating to ICAC or the inspector. It can recommend what, if any, changes should be made to the ICAC Act. It also has the power to require the production of documentary evidence and to require people to give evidence.
It must hold public hearings unless it considers a matter secret or confidential. Interested people can make submissions. The committee could also consider if the police have adequate powers and an accused adequate protections in matters in which ICAC should not be exercising its powers.
The committee can then report to parliament on what amendments, if any, it believes should be made to the ICAC Act for the government’s consideration.
Malcolm Stewart is vice-president of the Rule of Law Institute and a member of the Magna Carta Committee.
