Every year a committee of the NSW parliament examines the annual report of that state’s anti-corruption commission and calls in its top officials to answer ­questions.

It’s the main method of ensuring the Independent Commission Against Corruption is accountable for its allocation of public money. It received $44m last ­financial year, up $3.7m on the year before.

If the transcript of this year’s hearing is any guide, the pending report of that committee is unlikely to have much to say about problems with ICAC that have been identified in a new book. That book, Australia’s Anti-Corruption Commissions: Strengthening Trust?, contains a series of essays on these agencies.

These institutions are a uniquely Australian development. No other Westminster democracy has followed our example.

It’s worth considering why that would be.

My chapter in this book outlines delays by ICAC of more than seven years in providing briefs of evidence to the Director of Public Prosecutions so that wrongdoers can be brought before the courts and punished.

Another chapter that should raise concerns is by Gary Sturgess, one of the original architects of ICAC, who writes that the commission has become “a morals ­tribunal”.

Sturgess is concerned that this is the result of amendments in 1995 that empowered the ­commission to conduct inquiries into breaches of the NSW ­government’s ministerial code of conduct.

“Ministerial codes of conduct are not primarily about corruption,” Sturgess writes.

“They are principles designed to ensure that ministers continue to work with each other in a relationship of trust.

“Empowering ICAC to police the code has blurred the boundary line between law and ethics, resulting in the label of ‘corrupt conduct’ becoming much more fluid and inchoate.”

What Sturgess does not spell out is that a tribunal of morals is exactly what former premier Nick Greiner wanted to avoid when he introduced the bill that led to the creation of ICAC.

In Greiner’s second reading speech, delivered on May 26, 1988, he said: “The independent commission is not intended to be a tribunal of morals. It is intended to enforce only those standards established or recognised by law”.

On the issue of delays, my chapter outlines how the inconsistency between the rules that apply in ICAC and the courts contributed to years of delays in bringing Eddie Obeid to justice.

ICAC, which is not a court, uses coercion. The justice system does not. That inconsistency is one of the factors that meant the DPP was unable to finalise an indictment until six and a half years after ICAC completed its inquiry into Obeid, his son, Moses, and Ian Macdonald.

This needs to be understood in the context of the commission’s governing statute.

The ICAC Act amounts to an instruction to ICAC staffers to treat the prosecution of criminal conduct by the DPP as less important than the commission’s internal operations.

The point here is that the interests of justice should take precedence over the interests of any government agency.

In order for that to happen, parliament needs to revisit the ­priorities in the ICAC Act which says assembling evidence for criminal prosecutions is not to be treated as one of the commission’s principal objects.

Criminal justice is downgraded in the ICAC Act to the status of a mere “other function”.

This – and the inconsistent rules – helps explain why ICAC, in other cases, has taken up to seven and a half years to provide briefs of evidence to the DPP.

After almost four decades of experience, it’s time for parliament to face up to these facts. ICAC’s impact on criminal justice has not always been positive.

The starting point is to accept the reality that the law enacted by parliament means ICAC’s work, in certain cases, is impeding the prompt enforcement of the law.

Consider an investigation known as Operation Aero.

The report from that inquiry was published in February, 2022 – more than a year after receipt of the last submission, more than two years after the conclusion of a public hearing, four years after the initial referral to ICAC and almost seven years after the alleged events at the heart of the affair.

Officially, that inquiry was over. But the commission then took another two years and four months to provide its first briefs to the DPP concerning the people it had investigated.

In another investigation, known as Operation Skyline, seven years and six months elapsed from the time ICAC first learned of allegations of wrongdoing in a letter dated April 28, 2017, to when it provided a brief of ­evidence to the DPP on October 25, 2024.

After publishing its Skyline report in October, 2022, two more years elapsed before ICAC was able to provide a brief of evidence to the DPP.

In Operation Paragon, the commission received a tip-off in May, 2018, and then took seven years and six months to provide a brief of evidence to the DPP in November last year.

That brief arrived at the DPP two years and eight months after ICAC published its report on the Paragon inquiry.

In Operation Gerda, ICAC’s brief of evidence only arrived at the DPP in October, 2024 – seven years and seven months after the commission received a tip-off in March, 2017.

The brief arrived four years and five months after ICAC published the report of its completed inquiry in May, 2020.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.
Australia’s Anti-Corruption Commissions: Strengthening Trust? is edited by Scott Prasser and David Clune, and is published by Connor Court.