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Chris Merritt
Legal Affairs Contributor
1 December, 2023
United Nations puts arrogant ICAC on notice

The United Nations Human Rights Committee has just issued a ruling that will ruin Christmas for this country’s anti-corruption commissions. Their days of avoiding the scrutiny of a full appeal process could soon be over. 

Unlike courts, the decisions of anti-corruption commissions are not subject to a full appeal on the merits – a ludicrous privilege that has watered down one of the most effective checks on the power of these quasi-judicial bodies. 

Some of these commissions also delight in subjecting innocent people to public show trials without issuing reasons explaining why such reputation-destroying procedures are necessary. 

Nobody should ever forget that when former NSW premier Gladys Berejiklian was subjected to one of these performances she was confronted with questions that had already been asked and answered at an earlier private hearing. But all that might be about to change. 

And if it does, primary responsibility will rest with the NSW Independent Commission Against Corruption and the high-handed manner in which it dealt  not with Berejiklian, but with Sydney businessman Charif Kazal. 

Kazal, unlike most of ICAC’s innocent victims, had the resources to recruit star human rights lawyer Geoffrey Robertson KC who has just persuaded the UN Human Rights Committee that certain procedures at ICAC violate international human rights. 

The result is that Australia’s record on human rights has been damaged. This will play into the hands of our adversaries and hamper this country’s efforts to promote the rule of law throughout the region. 

This is not what Kazal was after.  After examining ICAC’s case against Kazal, prosecutors refused to charge him with anything. At law, he is an innocent man. But that was not enough.

He wanted his reputation back. He had already tried and failed with the only permissible challenge – a narrowly based judicial review that was limited to questions of law. NSW governments, past and present, must share the blame for the fact that this ruling has diminished the entire nation’s record on human rights. The Coalition, when in office in Sydney, rejected a recommendation from the late David Levine, an ICAC inspector, and refused to  introduce an exoneration protocol to restore the reputations of innocent people who had been trashed by ICAC only to be acquitted in court or not even prosecuted. That would have given Kazal a remedy. It would also have recognised the fact that in free societies everyone enjoys a presumption of innocence until an real court – not a trumped up government agency – rules otherwise. 

Robertson’s advocacy has persuaded the UN committee that certain procedures at ICAC violated Kazal’s rights under the International Covenant on Civil and Political Rights.  The committee has ruled that the federal government should compensate Kazal and prevent similar violations. 

This is where things get interesting. ICAC is the nation’s oldest anti-corruption commission and other agencies – including the National Anti-Corruption Commission – have adopted many of its structures. 

So if the federal government is to comply with the Human Rights Committee’s ruling and prevent similar rights violations, this might require the Albanese government to initiate changes at other anti-corruption commissions – including its own. 

Mark Fowler, who is one of the nation’s leading human rights lawyers, believes the UN committee’s decision is momentous not only for ICAC in NSW but for every state and territory anti-corruption commission. “The committee’s ruling in Kazal v Australia that the Commonwealth ‘is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future’ necessitates an immediate review of all federal, state and territory corruption commission regimes,” says Fowler who is an adjunct associate professor of law and principal of Fowler Charity Law.“Where that review locates dissonance between domestic law and Australia’s international obligations there are three potential replies open.“First, states and territories may elect to amend their own laws. Second, the Commonwealth may pass legislation, relying on its external affairs power, overriding the inconsistent state or territory anti-corruption laws.“This was the course of action taken by the Keating Government in 1994 in response to the UNHRC’s view in Toonen v Australia that Tasmania’s laws criminalising sodomy breached Article 17 of the ICCPR, the same Article on which the UNHRC now relies in the Kazal matter.“The third option is for the Commonwealth and any offending state or territory to take no action. That would leave Australia in breach of its international obligations and risk damaging its international standing on human rights,” Fowler says.

When this country ratified the ICCPR it willingly took on the obligation under Article 2(3)(a) of that treaty to provide Australians with an effective remedy whenever their rights under that Covenant are violated. In the Kazal case, the UN committee summarised the problem with ICAC’s procedures like this: “ . . . the inquiry conducted by ICAC, and its adverse public findings made against [Kazal] which he could not challenge, amounted to a violation of [Kazal’s] rights under Article 17 of the Covenant”. 

The absence of reasons for ICAC’s decisions to hold a public hearing and make its findings public amounted to an arbitrary interference in Kazal’s right to privacy. The federal government, of course, cannot be forced to live up to its treaty obligations.  

But unless it does it would mean the Albanese government, like a series of governments in NSW, has decided to appease ICAC and similar bodies by sacrificing human rights. This would not be a good look – particularly when the UN committee’s ruling coincides with the current parliamentary inquiry, initiated by Attorney-General Mark Dreyfus, aimed at improving Australia’s human rights framework.