Ministers’ move to change NSW ICAC law rejected
Chris Merritt 25 May 2022
Published in the Australian Newspaper
The NSW government has rejected a move backed by six of its most senior members that would enable the Independent Commission Against Corruption to be held accountable in court for unlawful conduct that took place more than seven years ago.
This has put the government of Premier Dominic Perrottet at odds with the views of three cabinet ministers and three parliamentary secretaries who were part of last year’s unanimous call for change by parliament’s ICAC oversight committee.
By rejecting the view of the government-dominated committee, the government has also snubbed Labor, One Nation and the Greens, whose representatives on the committee had agreed with the six government members.
This committee recommended in November that ICAC’s actions against four men should be assessed in court without the benefit of retrospective legislation that was rushed through parliament in 2015 to “validate” actions by the commission that would otherwise have been unlawful.
The split within the Perrottet government emerged this week in the government’s formal response to the oversight committee, which was prepared by Attorney-General Mark Speakman.
The three cabinet ministers on the oversight committee were Local Government Minister Wendy Tuckerman, Multiculturalism Minister Mark Coure and Agriculture Minister Dugald Saunders. They were joined by three parliamentary secretaries: Tanya Davies, Taylor Martin and Justin Clancy.
The four men at the heart of the affair had won admissions from ICAC in the NSW Court of Appeal that the commission had no legal basis for declaring them corrupt.
Before the court could issue a declaration striking down ICAC’s findings, the government, then led by Mike Baird, was lobbied by the commission and retrospectively changed the law to favour ICAC.
That change, known as the Independent Commission Against Corruption Amendment (Validation) Act, was a response to decisions by the High Court and the NSW Court of Appeal showing ICAC had exceeded the limits on its jurisdiction.
It later emerged that 128 people had been adversely affected by inquiries and findings that had no basis in law.
Instead of calling for the repeal of the Validation Act and allowing all 128 people to sue, the oversight committee believed a firm finding could be made that the four men who had gone to court and won admissions from ICAC had “a legitimate grievance which should be remedied”.
It called for an amendment that would restore the four men to the position that would have applied, but for the Validation Act, on the day the Court of Appeal had been due to formalise their victory over ICAC.
Labor’s Adam Searle, who is part of the oversight committee, said the government’s decision was disappointing and curious. It did not seem to understand what the committee had recommended, he said.
The government’s formal response to the oversight committee says the four men “fully exercised their review and appeal rights in this matter” and that without the Validation Act, “a significant number of past investigations and findings of corrupt conduct reaching back to 1989” could be affected.
Mr Searle said he was a strong advocate for a robust anti-corruption framework, had consistently backed ICAC and had voted in favour of the Validation Act and did not regret doing so.
“But when we made this law, the parliament was not made aware that there was a group before the courts who had the legal right to have the findings made against them at ICAC set aside, that the ICAC itself had agreed to this, and the NSW Court of Appeal had agreed to the terms of a judgment to give effect to this,” Mr Searle said.
“Parliament removed the legal rights of this group before that judgment could be entered, and did so without members being aware of all the facts.
“Had they known, an exception could have been made for them,” he said.
The Validation Act cut across a draft declaration in favour of the four men that had already been circulated to the parties by Margaret Beazley, who was then president of the Court of Appeal and went on to become state Governor.
The government’s decision not to restore the legal rights of the four men comes soon after the death of one of them, mining entrepreneur Travers Duncan.
The remaining three are businessmen John McGuigan, John Atkinson and Richard Poole.