The standing of the NSW Independent Commission Against Corruption continues to crumble before our very eyes.
The ICAC has acted with unabashed hostility to a decision in the High Court last week, where it held that the anti-corruption commission acted outside of its powers.
First, the commission publicly demanded the parliament, which authorises its activities, to retrospectively approve its past misuse of power. For a state agency to openly lobby for this approval, shows a stunning disrespect for the rule of law.
The commission made the point that the High Court decision would call into question convictions where evidence from ICAC was used. However, this is hardly a concern for parliament. It is a problem of ICAC’s own making. Protracted and renewed litigation is a fair consequence for state investigatory bodies acting beyond their lawfully defined boundaries. It is fundamental that a government body operates strictly within their limits, since the consequences can be so serious.
Now, the commission has seemingly surrendered to several individuals appealing against ICAC findings of corruption. They claim to acknowledge that in those cases, the findings made were beyond their power.
Do not be misled into thinking this is an act of contrition. As Chris Merritt noted today in The Australian, this latest action is most likely an attempt to pressure the state government to adopt the commissions earlier demands. After all, the government does not want to appear to go soft on corruption.
However, the rule of law should always prevail. For a government agency to seek retrospective approval for its own interpretation of its already broad powers, is shameful.
And yet, ICAC is not ashamed.
In the year of Magna Carta‘s 800th anniversary, it would be terribly disappointing if the NSW government acquiesced to ICAC’s demands. and rewarded their arbitrary misuse of power.
Instead, the commission should be abolished entirely.
UPDATE: Thanks to IPA Member malcolm for bringing our attention to Justice Heydon’s judgment in Kirk v Industrial Court of New South Wales (2010), which could readily be applied to ICAC:
[A] major difficulty in setting up a particular court… to deal with specific categories of work… is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up… [C]ourts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted. … [To say all this is] to raise a caveat about accepting too readily the validity of what specialist courts do — for there are general and fundamental legal principles which it can be even more important to apply than specialist skills.