ICAC’s apologists should stick to the proven facts

Chris Merritt                 16 December 2021

Published in the Australian Newspaper

When Stephen Charles and Anthony Whealy were judges, every word they uttered deserved respect. Now that they are retired, their forays into public policy debates need to earn respect based on their fidelity to the facts, their willingness to disclose relevant information and the quality of their argument.

If that test is applied to their defence this week of the NSW Independent Commission Against Corruption, and their associated criticism of this newspaper’s Paul Kelly, there is only one conclusion: they should have remained in silent, dignified retirement.

This was apparent on Wednesday when this newspaper published an apology for an extraordinary and incorrect assertion in their commentary of the previous day.

Readers were given a misleading picture of ICAC’s persecution of Sydney silk Margaret Cunneen SC, who is now president of the Rule of Law Institute. The apology should be kept in mind during the coming debates about the proposed Commonwealth integrity commission.

For those who missed it, here is the core of the apology:

“Anthony Whealy and Stephen Charles, in an article published on the opinion page on December 14, stated it ‘has never been decided’ whether Margaret Cunneen had ‘acted appropriately or not’ in relation to an allegation that ICAC sought to investigate.

“In fact on July 24, 2015, the NSW Solicitor-General found there was no basis for any charge.

“This decision was amplified in the December 2015 report of then ICAC inspector David Levine, which found the allegation had ‘no support in reliable, credible or cogent’ material,” the apology says.

Whealy and Charles criticised Kelly for a “litany of misconceptions” that they believe to be “harmful to the quest for integrity in public life”.

They rejected his argument that federal parliament should retain responsibility for ministerial standards instead of following NSW and allowing outsiders to arbitrate on ministerial responsibility.

What we are witnessing is an attempted power grab, here and in Britain, that threatens to erode one of the planks of the Westminster system of government.

Whealy and Charles have much in common with those in Britain who want to to strip parliament of the power to police its own standards and hand that power to entities that, inevitably, would come to be dominated by lawyers and former judges.

In Britain Prime Minister Boris Johnson has been confronted with a report by the Committee on Public Standards calling for statutory power to be given to the government’s independent adviser on ministerial interests.

This person – just like ICAC in NSW – would have the power to initiate action against ministers for breach of standards. The “adviser” would have the power to tell the prime minister how ministers should be punished – even in some cases, to the point of dismissal.

This has been called out by Charles Moore, a former editor, who, since last year, is formally known as Baron Moore of Etchingham.

Writing in the UK Telegraph on November 19, he warned that this proposal would change the British Constitution and mean that an unelected person could, in effect, decide who may govern.

This is close to what has just happened in NSW – thanks to the stupidity of the NSW parliament in allowing ICAC to police the ministerial code of conduct.

In terms that could apply equally to this country, Moore wrote: “Is this what we want? Is this really what a wise public service would want? This is not Iran, where an unelected Guardian Council, guided by its version of divine truth, decides what is law and who may rule. This is Britain, by whose messy politics a free country is preserved.”

Moore and Kelly are on the same side of this argument, the democratic side. Ministers, under the Westminster system of government, are responsible to parliament – not public servants with law degrees.

It is unfortunate that Whealy and Charles chose not to disclose on Tuesday that they are directors of the Centre for Public Integrity. Had they done so, readers might have discovered that one of their fellow directors is Geoffrey Watson SC.

Remember him? Watson was once counsel assisting at ICAC and still pops up from time to time in media outlets that consider him an authority on integrity. He has even addressed the National Press Club.

Yet how much weight should be given to the views of these people? Whealy and Charles gave a misleading version of what happened in one of ICAC’s greatest scandals; and Whealy failed to disclose on Tuesday that he is a former assistant commissioner at ICAC. Like Watson, he was part of the club.

And consider Watson’s record. Two years ago ICAC Inspector Bruce McClintock SC produced a 205-page report on Watson’s time as counsel assisting. It was tabled in parliament and is protected by parliamentary privilege.

It says Watson “caused serious damage to the public standing of the commission which may well have reduced its ability to perform its important public function of attacking corruption”.

He had adopted a “sneering, contemptuous” tone that “verges on bullying and is inconsistent with the duty of fair conduct imposed on counsel assisting”, the McClintock report says.

He had caused the resignation of former NSW police minister Mike Gallacher by accusing him of corruption without providing supporting evidence and had refused to withdraw the allegation, the McClintock report says.

No finding of corruption was ever made against Gallacher.

Watson conceded to McClintock that “I could have worded that matter differently and better”. He had been “frustrated and cranky” and had been called “a lying c..t” by a barrister sitting behind him during a hearing, the report says.