Independent Commission Against Corruption

Submission: National Integrity Commission

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Last week, Simon Breheny and myself sent this submission to the Senate’s select committee relating to the establishment of a ‘National Integrity Commission’.

Drawing on the historical experience with state level anti-corruption agencies, we argue that a “federal ICAC” would lack accountability, invite abuses of power and wield coercive powers which violate the legal rights of individuals.

Such a body would have characteristics that are inconsistent with democratic principles and the rule of law.

Read our submission here.

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An imbalance in NSW defamation laws

o-GAVEl

A very interesting pair of news items in today’s Australian. First, Sharri Markson reports that ICAC’s lawyer, Geoffrey Watson, has threatened to sue one of his critics for defamation:

Mr Watson, the Independent Commission Against Corruption’s senior counsel assisting, sent a legal letter to [radio host Alan] Jones on December 16 demanding he pull down from the 2GB website an interview where he describes the senior counsel as “this ego-tripping Geoffrey Watson” and says recent ICAC investigations are “one of the most disgraceful chapters in public administration”.

On another page, we learn that ICAC has cleared two “top targets” of charges of corruption, including Liberal senator Arthur Sinodinos. His parliamentary career has been under a cloud since he was embroiled in a major corruption inquiry in 2014.

Note the incongruity: While Jones is under threat of legal action for his statements regarding Watson and ICAC, Watson and ICAC remain at liberty to tarnish reputations, with scant regard to the truth.

The state government won’t abolish the ICAC (as it should), but it should be prepared to either remove ICAC’s exemption from state defamation laws, or at least create some balance by exempting ICAC’s critics from those same laws. Either of these options may be harmful to public policy, or a messy fix (as Sinclair Davidson identifies at the Catallaxy Files here), but would be a vast improvement on a flawed law.


UPDATE

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“Unreasonable”, “unjust”, “oppressive maladministration”: ICAC slammed in this latest report

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Inspector of the ICAC, David Levine

ICAC Inspector David Levine issued a scathing review of the New South Wales anti-corruption watchdog, in a report tabled in NSW parliament today.

In particular, ICAC Commissioner Margaret Latham is taken to task for the Commission’s conduct surrounding the controversial investigation of Margaret Cunneen.

Frankly, it is fascinating reading. Here are just some of the quotes from the report:

… It is of concern that the Commissioner issued the Notices… “to attend and produce forthwith” [mobile phones already in ICAC’s possession] given that this in fact rendered them unlawful. This amounts to an abuse of power and serious maladministration. [Page 18]

… I did not yield to the Commissioner’s expectation, I am not subject to the Commission in any respect… [Page 23]

… I can only assume that the Commission at that time had a view that its “independence” was particularly fragile if just stating its obligations to keep the public informed of the steps it proposed to take…  was seen as threatening. [Page 34]

… I find the ICAC email to be insulting, condescending and to border on insolent and reinforces views I have late I have lately expressed as to the breathtaking arrogance of the Commission [Page 34]

… a total lack of understanding of the role of the Inspector… [Page 39]

… This aspect of the conduct of the ICAC I describe, and I believe any ordinary reasonable person would describe, as unreasonable, unjust and oppressive. [Page 51]

… it is another example of unreasonable, unjust, oppressive maladministration on the part of the ICAC. It was a last ditch stance of defiance and… reflects poorly on its standing and objectivity. It is an abuse of the powers reposed in it. [Page 56-7]

To read these quotes in context, read Levine’s report here. Or you can read more ICAC coverage on FreedomWatch here.

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Another problem with the ICAC “reforms”

The NSW government assures us that ICAC won’t be able to initiate prosecutions without DPP approval. A report in today’s Australian reveals how problematic that still is:

The NSW corruption watchdog handed over evidence to the ­Director of Public Prosecutions that allegedly omitted statements made in favour of former NSW SES commissioner Murray Kear before his criminal trial.

State Emergency Service assistant commissioner Mark Morrow gave a long statement to ICAC that is understood to include material supporting Mr Kear that was then not provided to the DPP.

The evidence emerged … on October 14 in a case between ICAC and Mr Kear, who is charged with breaching the Whistleblowers Act. The alleged omission casts doubt over the ­effectiveness of NSW Premier Mike Baird’s compromise for the DPP to act as a check on ICAC.

The latest claim follows ICAC’s investigation into former Labor minister Ian Macdonald — who faces charges of misconduct in public office — where evidence ­favourable to him by Labor frontbencher Anthony Albanese was suppressed.

The practice of suppressing ­exculpatory evidence from public hearings could be even more widespread, with ICAC Inspector David Levine confirming he had received several complaints.

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ICAC’s “abuse of the process”

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From The Australian today:

ICAC investigator Paul Grainger arrived early on the morning of July 30 last year, with a “notice to produce” when he ordered sales associate Sophia Tilley and her boyfriend Stephen Wyllie to hand over their mobile phones.

ICAC officers Tim Fox and Sharon Loder took two mobile phones belonging to Ms Cunneen, a deputy senior crown prosecutor, using a similar form, signed by ICAC Commissioner Megan Latham on July 23 last year.

[Alan Sullivan QC] said the purpose of a “notice to produce” was to require a person’s attendance at a nominated time, at which point they would produce the requested materials.

It would be quite clearly, in my view, an abuse of the process to try to rely upon this document for an officer of ICAC to attend at someone’s house and then say, ‘I’m attending here, you give the documents to me’,” he said. The notice “cannot be used as a substitute for a search warrant“.

And yet, the NSW parliament is debating whether or not to give this lawless agency the power to launch its own prosecutions. The government has been pushed to amend a bill to specify that the power to launch a prosecution does not apply to ICAC unless it has approval from the Crown prosecutors, which is a marginal improvement to a bad law.

Let’s talk about abolition instead.

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ICAC: “We’re above the police”

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Sophia Tilley, the girlfriend of prosecutor Margaret Cunneen’s son Stephen Wyllie.

This exchange between ICAC officials and Sophia Tilley – the girlfriend of Margaret Cuneen’s son – is further evidence of the nature of this out of control organisation:

“There were these guys in suits. They were really solemn and they knew our names. They said, ‘We’re going to need to take your phones’,” Ms Tilley told The Australian in her first interview.

“We said, ‘We need our phones for work, who are you, why would we give you our phones?’

“They said, ‘We’re ICAC.’

“I said, ‘You’re not the police, I don’t know what ICAC is or who you are, we’re not going to give you our phones, why would we?’

“They said, ‘We’re above the police.’ They said ‘if you don’t you’ll face five years in prison’. They said, ‘Trust me, this is in your best interest to do what we say, we’re the guys who got Eddie Obeid.’ That’s how they tried to identify themselves.

“I don’t watch the news so I didn’t know who Eddie Obeid was.”

Initially thinking the ­ordeal was a practical joke, Ms Tilley asked the officers if the visit was to do with a friend who lived nearby.

“But they said, ‘No, it’s you’,” she said.

“We said, ‘Why? What have we done?’ and they said, ‘You’ll find out soon enough.'”

It’s worth reading the full exchange at The Australian here ($).

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Devine: close down ICAC

Miranda Devine lashes the NSW Independent Commission Against Corruption in her column today for the Daily Telegraph:

I hope the Baird government is making plans for regime change at ICAC. Better yet, close down the discredited star chamber and save the taxpayer $28 million a year.

The benefit of any corruption deterrence has been outstripped by ICAC’s abuse of its extraordinary powers, particularly when it comes to the ­malicious pursuit of NSW prosecutor Margaret Cunneen, SC.

There is no escaping David Levine’s lacerating assessment of the organisation led by commissioner Megan Latham, whom he has described previously as a “sore loser”.

In his annual report, released on Friday, Levine says ICAC displays “almost breathtaking arrogance in relation to its own powers, in relation to the people with whom it is dealing, in relation to other institutions of governance of the state, not least the parliament to which the ICAC itself is accountable”.

The former Supreme Court judge, whose role as inspector is to oversee ICAC, describes his relationship with the organisation as characterised by “hauteur”. He also refers to the “dysfunctionality and contradictions that exist in the environment of corruption and investigation in this state”.

And that’s just the appetiser.

Read on here ($).

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ICAC has their own ‘gotcha’ moment

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ICAC gets a taste of its own medicine. Chriss Merrit and Sharri Markson in The Australian:

The corruption watchdog’s playbook often involves playing a secret recording or sensational telephone intercept revealing the witness they are interrogating misled the court just moments earlier… The person of interest has been caught out. Red-faced. And has nowhere to hide.

This time, ICAC is the one caught out:

A film recording shows its investigators making a video ­record of a document outside the scope of their search warrant.

ICAC have now admitted they did not have the power to seize the document.

Yet, the video obtained by The Australian shows ICAC officers filming it page by page.

… Senior investigator Paul Grainger appeared to ignore a warning from [David Curd, the man behind the camera] that a document they were about to film did not “relate” to their raid in the Obeid offices.

Mr Grainger is the same officer named in a complaint to the ICAC Inspector, former judge David ­Levine, for allegedly videotaping a re-enactment of a seizure of Margaret Cunneen’s mobile phone when it had already been in ICAC’s possession for a week.


Watch the video on The Australian site here.

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NSW MP questions ICAC procedures

Damien Tudehope, Member for Epping

Damien Tudehope, Member for Epping

More on ICAC today. Liberal NSW MP Damien Tudehope has raised concerns about the questionable procedures followed by ICAC in the conduct of public hearings:

“If someone made a finding of corrupt conduct against a public official, it’d be the end of their career,” he said.

“Because [a finding of corrupt conduct] brings with it punitive penalties, should there be an element of procedural fairness that accompanies the manner in which ICAC conducts a public hearing?”

Mr Tudehope said ICAC would retain the power to conduct public hearings.

“But, if they do hold a public inquiry, should they as a matter or procedural fairness serve statements which they have taken in camera or otherwise in the course of their investigation on the solicitors or the person of interest?” he asked.

“So this would mean that the whole of the material in their possession is available to the person who is the subject of the inquiry.”

Mr Tudehope said that “a general inquiry about procedural fairness is worthwhile and I think that’s something the community would embrace.”

Tudehope’s concerns have led him to question the appropriateness of the most recent bill relating to ICAC’s already very significant powers. The bill seeks to provide the commission with the power to initiate its own criminal proceedings under the Criminal Procedure Act 1986 (NSW).

Quite apart from any concerns the public might have about a proliferation of government agencies that can initiate criminal proceedings, a more practical issue arises here: ICAC is not an agency deserving of reward.

Acting outside its powers, conducting ‘gotcha’ trials, ignoring basic legal rights, leaking to the media, and other dodgy practices are all causes for significant concern – not reasons to increase the role of this out of control organisation in the public sphere.

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