ICAC sentences Premier to the roughest injustice

Chris Merritt                 2 October 2021

Published in the Australian Newspaper

For Australians, the rule of law is a birthright of incalculable value. Yet what has just happened to Gladys Berejiklian means the nation’s oldest state has lost sight of what this doctrine is all about.

Berejiklian is resigning as NSW Premier not because she is corrupt but because this state has undermined the rule of law and established a parallel system of rough justice, in which the presumption of innocence and equality before the law count for nothing.

The unchecked power of that parallel system can be gauged from the fact that the nation’s most successful premier has been forced from office because an over-mighty institution, the Independent Commission Against Corruption, merely issued a press release.

Unless the bureaucrats at this commission are utterly naive, they would have known that announcing a plan to subject the NSW Premier to a public inquiry would force her to resign – and to do so in the midst of a pandemic before anyone had heard the case against her, considered her defence or examined the rigour of ICAC’s assessment.

In a state governed by the rule of law, Berejiklian’s departure from public life would be unjustified. She has been charged with nothing and accused of nothing.

But she has been damned by innuendo – which is evident by the rush to judgment by those in the media who seem confident, without hearing one word of evidence or considering her side of the story, that ICAC is always right.

On one level, that assessment is understandable. Once ICAC makes a finding there is no appeal on the merits – which means mistakes go uncorrected. Under the law of NSW this commission is just like the Pope: infallible.

And remember, ICAC is not a court and is not bound by the rules of evidence that are the bulwark for rigour and fairness.

Unlike police, who respect the presumption of innocence and conduct their investigations in private, ICAC thrives on publicity and if that harms those who turn out to be innocent, so be it.

The parliamentary committee that oversees this commission is yet to make up its mind whether to introduce an exoneration protocol to provide a remedy for ICAC’s innocent victims.

The need for such a protocol was first identified by the late David Levine, a former Supreme Court judge and ICAC inspector who had a spectacular clash with former ICAC commissioner Megan Latham. Levine’s proposal has been backed by the Rule of Law Institute.

Levine’s successor, John Nicholson, examined the commission’s conduct in relation to businessman Charif Kazal and former public servant Andrew Kelly. He found they had been “stigmatised and shamed” by ICAC but had been unable to test the merits of the agency’s assertion that they were corrupt as neither was ever charged with any offence.

“The legislation preserves the work of ICAC as though it is infallible,” wrote Nicholson in a report that has been tabled in parliament. He believed this could amount to a breach of Australia’s obligations under Articles 11 and 12 of the Universal Declaration of Human Rights.

Those in the media who have rushed to judge Berejiklian might be wise to turn their attention on ICAC, which was embroiled in a financial dispute with the Premier last year. That dispute coincided with the period when the commission was tapping telephone calls between Berejiklian and her former boyfriend, Daryl Maguire.

When the Premier was asked about her love life at an ICAC hearing, that hearing was conducted by former judge Ruth McColl, not ICAC chief commissioner Peter Hall. The reason was clear enough.

McColl’s appointment was clearly due to concern about an apparent conflict of interest between the ICAC commissioners and the Premier over who should decide ICAC’s budgetary allocation.

ICAC wanted a new system that sidelined Berejiklian’s department and the NSW Treasury. It also argued that those departments should have no role in designing a new funding model.

The commission’s preferred funding model would ensure that its base funding could never be cut.

Berejiklian’s refusal to give ICAC what it wanted forms a sharp contrast with past practice. Under previous premiers, NSW governments have been in thrall to the power of this organisation, retrospectively validating its unlawful conduct in 2015, stripping innocent people of property on ICAC’s say-so in 2014, and in the same year enacting special legislation that bypassed due process and closed the courts to those seeking remedies after the commission was found to have exceeded its jurisdiction.

This is not how things were supposed to be. NSW started with the best of intentions when, in order to deal with an extraordinary surge of high-level corruption, an incoming government in the 1980s, led by Nick Greiner, created this organisation.

It was the nation’s first anti-corruption agency and was vested with extraordinary powers. With the benefit of hindsight, the propensity for collateral damage was always present.

Those targeted by ICAC were stripped of procedural and substantive rights that are available in the justice system.

But its methods include relics from the pre-modern era: an inquisition, coercion and public shaming. And all this is done without the inconvenience of the rules of evidence or the need to prove anything in a court of law.

This commission’s public hearings have given rise to concern within the NSW Bar Association that they sometimes “seem” like show trials. This was how the Bar Association described this commission during an inquiry six years ago.

But the Bar’s cautious language underplays the problem: ICAC’s public hearings are show trials. Once the media is present, and publicity is assured, questions are put to witnesses that have frequently been asked and answered in private hearings.

This happened to Berejiklian last year during a shameful hearing in which she was quizzed in public about the meaning of particular terms of endearment.

All this has not been lost on the rest of the nation. Every state and territory now has an anti-corruption agency – but none operates in the same manner as ICAC in NSW. When it was created, the main concern was to vest the new organisation with sufficient power to end the culture of corruption that had tarnished the state’s standing.

Yet today, the example of what has happened in NSW has triggered concern that the powers vested in these agencies are so great that they need continuous, careful and effective oversight.

South Australia’s parliament, wary of misuse of power, has just voted to wind back the role of that state’s ICAC.

But even Ann Vanstone, who is South Australia’s Independent Commissioner Against Corruption, has been worried by the way the NSW commission operates.

Last December, Vanstone told her state parliament that the South Australian commission was “starkly different” to that in NSW, where public hearings inflicted reputational harm and public findings of corruption remained in place “even if followed by an acquittal in the criminal court”.

Dennis Cowdroy QC, who was the inaugural commissioner of the ACT Integrity Commission, warned in March that without proper oversight, “there exists a real possibility that the powers bestowed upon such agencies could be used for purposes never intended. Such agencies are not courts yet wield immense power”.

Christian Porter, the former federal attorney-general, was so worried that he believed the key elements of the ICAC system in NSW – extensive use of public hearings and public findings – needed to be avoided.

He told Perth radio last year that, as a matter of principle, it was up to courts to determine guilt and innocence.

“Having public hearings that result in a determination in a report is a system which, at a state level, has gone wrong so many times and (is) so well documented to have gone wrong so many times that it represents an approach which isn’t properly consistent with the rule of law and providing protections to civil servants, public servants, politicians, whoever it might be, providing protections that we all enjoy,” Porter said. “The presumption of innocence, right to a fair hearing, full disclosure of adverse evidence that might be alleged against you.”