The 16 documents at the heart of ICAC overreach

Chris Merritt                 22 April 2021

Published in the Australian Newspaper

Every now and then, the community catches a glimpse of the true nature of the relationship between the NSW government and its Independent Commission Against Corruption.

The latest insight has emerged in legal action aimed at extracting documents from ICAC’s archives. It provides a lesson for the rest of the nation: do not, under any ­circumstances, create an anti-corruption agency that enjoys the power and influence of the NSW model.

The threat to the rule of law is too great. Consider what could possibly explain the fact that this agency, which is supposed to be independent, is now holding cabinet information in its archives.

That startling fact has emerged during legal action in the NSW Civil and Administrative Tribunal aimed at uncovering a range of documents including details of the commission’s communications with politicians and the media about an unusual law that was enacted in 2015.

The proceedings are aimed at ICAC’s lobbying efforts before the government retrospectively changed the law to protect the commission from the consequences of its unlawful actions.

The commission has produced a bundle of 16 documents for the tribunal, which is considering whether to make them public. ICAC has argued that they should not be made available because they are secret, cabinet information or are covered by legal professional privilege.

When the High Court found in 2015 that ICAC had been exceeding its jurisdiction, then premier Mike Baird enacted a special law “validating” the commission’s conduct and preventing victims of that conduct from obtaining a remedy in court.

This was an unjust departure from orthodox lawmaking that has tainted the commission. Despite a series of overhauls and a change at the top, the taint will remain until ICAC’s victims gain access to justice under the normal law.

Retrospective laws that extinguish legal rights are a direct attack on the principle that everyone is subject to, and has the benefit of, the normal law. That applies to the humble and the mighty, including ICAC.

The erosion of principle is even greater when retrospective laws have the effect of protecting wrongdoers. And in 2015, the wrongdoer was ICAC. It had conceded in court that it had no legal basis for resisting a declaration that it had been making invalid declarations of corruption.

So what did it tell the government that persuaded it to excuse the commission’s unlawful conduct and destroy the legal rights of its victims? Who did it brief in the media? And what is the cabinet information that the commission is so keen to keep secret?

Those 16 documents are likely to have the answers — if the commission is ordered to make them available.

Senior tribunal member Sigrid Higgins reserved her decision on April 15 but is expected to expedite her judgment because of the interest of the NSW parliament’s ICAC oversight committee. This committee has taken an interest in the commission’s involvement with the government in the days leading up to the enactment of the Validation Act.

In response to a series of questions from the oversight committee, the commission has already revealed that former commissioner Megan Latham met Baird on April 27, 2015.

The commission also told the oversight committee that the government gave ICAC a confidential consultation draft of the Validation Bill on May 5, 2015, the day before it was approved and came into effect.

Baird had previously flagged his intention of preserving ICAC’s findings. But by handing over the draft bill, the government was going much further.

This gave the commission advance notice of the substance and expected timing of a change that would have a direct impact on proceedings in the Court of Appeal in which ICAC would otherwise have been on the losing side.

The commission had already accepted that the state of the law meant it was unable to oppose an application for a declaration that several of its corruption findings were invalid.

But on May 5 it knew that the Validation Act would probably be introduced on May 6. And that would reverse the position and leave the victims of its invalid findings without a remedy.

On May 6, when the Validation Act came into force, it stymied moves by then Court of Appeal president Margaret Beazley, who had circulated a draft ­declaration on the same day that said ICAC had no jurisdiction to declare certain applicants corrupt.

This intervention by parliament was another breach of principle. At the request of Baird’s government, it directly interfered to reverse the outcome of proceedings that were almost concluded in the Court of Appeal.

Conduct by ICAC that had been unlawful on May 5 was retrospectively rendered lawful on May 6. Welcome to justice, NSW style, where the anti-corruption agency engages in wrongdoing and then has a compliant parliament change the law, interfere in a court case and pretend everything is fine.

The message this sends to wrongdoers is in line with the mantra of bad parents: “Do as I say, not as I do.”

The application seeking access to the 16 documents has been lodged by solicitor Andrew Christopher under the Government Information (Public Access) Act. He has given notice that if his application is successful he plans to provide the documents to businessman John McGuigan, chairman of Cascade Coal.

McGuigan was among those who were prevented by the Validation Act from obtaining declarations that ICAC had invalidly declared him to be corrupt.

In 2019, the Federal Court unanimously found that directors of McGuigan’s company had not engaged in cartel conduct. This demolished accusations that had been made at an ICAC inquiry that Cascade had been part of what was “arguably” an illegal agreement.