The Perrottet government must protect rule of law

Chris Merritt                 26 May 2022

Published in the Australian Newspaper

It’s heartening to know that Mark Speakman, the NSW Attorney-General, retains a robust sense of humour. Any other minister who had to expose a split at the top of the state government might be a little dejected. Not Speakman.

He must have been joking this week when he included this ­hilarious line in a short document that now appears on the ­parliamentary website: “The government is committed to upholding integrity in public administration.” If Speakman’s statement was not meant to be a joke, the English language has taken a strange, Orwellian turn inside the government of Dominic Perrottet.

In Perrottet-land “upholding integrity” must mean protecting a rogue agency that engaged in conduct that had no basis in law and inflicted damage on innocent people without lawful cause. That is what this government has decided to do in relation to its Independent Commission Against Corruption.

In the real world integrity does not mean protecting powerful wrongdoers from the law. It means nobody is above the law — a principle that is particularly important for agencies that are supposed to fight wrongdoing.

Speakman’s reference to integrity is taken directly from the government’s official statement, prepared by the Attorney-General, that rejected a move to have ICAC held to account in court for unlawful conduct that took place more than seven years ago.

The parliamentary committee that oversees the commission unanimously recommended in November that its corruption declarations 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.

Just before that legislation was enacted, ICAC had agreed in the Court of Appeal that it had no basis in law for declaring those four men corrupt. A draft declaration confirming ICAC’s defeat had been prepared and circulated by Margaret Beazley, who was then president of the Court of ­Appeal.

But before the court could officially strike down ICAC’s unlawful findings, the government, then led by Mike Baird, was lobbied by ICAC, which was then led by Megan Latham. What followed is a one of the worst examples of the misuse of the legislative process.

The first problem is that parliament was never told that its Validation Act would have the effect of changing the outcome of legal proceedings in which ICAC had already admitted liability to the four men. Parliament, acting in ignorance, interfered with the judicial process.

The second problem is just as serious. The Validation Act retrospectively stripped those four men of legal rights. It retrospectively imposed a detriment.

These members of the government – the principled six – have expressed a view that is now at odds with government policy. They have strongly backed the need to provide a remedy — not for everyone affected by the Validation Act, just the four who had extracted admissions in court from ICAC.

They should take heart. They are on the right side of history.

With the honourable exception of the principled six, Perrottet’s government seems intent on alienating those who expect it to be the guardian of the rule of law, not its enemy.

Its official response to wrongdoing by ICAC amounts to this: cover it up, change the law, pretend it never happened. But reality has a way of making its presence felt.

The men who were denied their legal rights know that ICAC conceded in 2015 that they had been wrongly declared to be corrupt because the commission had exceeded its jurisdiction. They also know that those findings would have been struck down by the Court of Appeal but for the Validation Act.

ICAC fell into error by misreading the limits on its jurisdiction. Its mistake was pointed out by the NSW Court of Appeal and the High Court.

This injustice has been dragging on for so long that one of the four, mining entrepreneur Travers Duncan, died recently while waiting for this government to restore his legal rights. The remaining three deserve a remedy and the oversight committee agrees. Some would argue that the entire Validation Act should be repealed. But the oversight committee does not go that far.

It simply wants an amendment that would allow the remaining three to hold ICAC to account under the normal law – without the distortion of any retrospective validation of ICAC’s unlawful conduct.

In the seven years since the Validation Act came into force, the real justice system has had plenty of time to examine their conduct. The result: they have been convicted of nothing.

One of them, businessman John McGuigan, says the government’s decision ignores what is right and can only be explained by political expediency.

“For the Attorney-General to state that the ability of NSW citizens to rely on the law, as determined by the High Court, constitutes reliance on a ‘loophole’ is both disgraceful and legally incorrect.

“The NSW government’s ‘do what it takes’ attitude to expropriate both assets and rights and thereby preclude its citizens from an ability to rely on their legal rights is contrary to the fundamental principles of the rule of law.

“Essentially it constitutes a parallel system of justice devoid of legal principle based simply on achieving political objectives,” McGuigan says.

All wrongdoers need to be held to account. But this is particularly important when the wrongdoing takes place in an agency that is supposed to be the enemy of misconduct.