Features Australia

ICAC makes a (fake) tit of itself

NSW’s notorious Star Chamber is undermining the very causes it is meant to promote

9 January 2016

9:00 AM

9 January 2016

9:00 AM

‘I am determined that my Government will be free of… doubt and suspicion; that from this time forward the people of this State will be confident in the integrity of their Government.’ So said then NSW Premier Nick Greiner in his Second Reading speech on the Independent Commission Against Corruption Bill 1988. The same thematic thread runs through the ICAC Act (‘to promote the integrity and accountability of public administration’) and the ICAC’s own corporate documents (‘to protect the public interest, prevent breaches of public trust and guide the conduct of public officials’). For the politicians, lawyers, and activists who genuflect at the altar of Anti-Corruption, these documents are Holy Scriptures; these phrases, holy writ.

But amongst all the moralistic buzz-words, despite the publication of more tracts than the most proselytising of churches, and notwithstanding its commissioners and staff being held out as paragons of virtue, ICAC is beginning to look like the proverbial child-molesting priest. Integrity, for ICAC, is more a case of ‘do as I say’ than ‘do as I do’.

The hypocritical irony is that ICAC – and here let me include kindred star chamber crime commissions, integrity commissions and the like, established as they were with grandiose triumphalism, and the promise of fulfillment of the hopes and dreams of the well-intentioned – have done the opposite of what they were supposed to achieve. Instead of promoting the ‘integrity and accountability’ of government, ICAC vindicates anyone who has ever had ‘doubts and suspicions’ about the public sector, and champions foolishness and recklessness in government, starting with itself. Of course, there are instances of corruption in parliament, the executive, the public service, the police, and the judiciary, but the ICAC investigations – and the minor prosecutions that have resulted from them – pale into insignificance alongside its own now patent problems of vindictiveness, arrogance, and incompetence. The thread that should be running through our government, and certainly through our legal system, is not that of obsessive corruption hunting, which of course finds minor infringements around every departmental corner. Rather it should be the Rule of Law, which says that laws must be applied equally, consistently, and fairly; that they must be open to criticism, especially by those who have been wronged by them; that people are presumed innocent unless proven otherwise; and that they should not be adversely affected by retrospective changes of law. A forthright and unwavering defense of these precepts will increase confidence in the integrity of government; a commission which happily and routinely sets aside these precepts will not.


And yet that is what ICAC has become known for. That, and besmirching reputations. The first person to unfairly fall foul of ICAC was none other than Nick Greiner. In the 1992 ‘Metherell affair’, a matter Greiner himself referred to the Commission, it found that he had not acted corruptly or illegally, but went on to criticise his conduct anyway. The Premier challenged in the Court of Appeal ICAC’s competency to make such a finding, but before the case was decided, he was forced to resign by the independents in parliament. Eventually the Court of Appeal found, in what would be a harbinger of later jurisdictional overreach by ICAC, that the Commission ‘exceeded its jurisdiction’ in its ruling, and granted ‘declaratory relief that the Commission’s report was wrong in law’. But never mind legal trivialities and technicalities, in Greiner’s case, and in the case of Deputy Senior Crown Prosecutor (and occasional Spectator Australia columnist) Margaret Cunneen, and in the case of sitting and former Liberal MPs Chris Spence, Garry Edwards, Darren Webber, Michael Gallagher and Marie Ficarra, the damage is done not by successful prosecution, or even by a finding that goes unchallenged in the courts, but by public tarnishing of reputation. And from ICAC, these people receive nary a word of apology.

In the absence of a mea culpa, however, the Liberals did receive, by fax about 6pm on the Friday before Christmas, a letter from the Commission confirming that it cannot in fact make corruption findings against them. Of course, every silver lining has a cloud, and in this case it was the attached gentle reminder that, despite their public inquisitions, their humiliation being broadcast far and wide, and ICAC’s lack of legal jurisdiction, they remain sworn to secrecy, and are still not allowed to speak publically about the matter. It’s unconscionable, but it’s illegal for them now to clear their names.

Margaret Cunneen’s case is at least slightly humorous. The much publicised accusation that she counseled her son’s fake-breasted girlfriend, Sophia Tilley, to feign chest pains so as to avoid a drink driving investigation after being involved in a minor motor accident can now be seen for what it is. Firstly, it is inexplicable because Cunneen would have known that if the young lady were hospitalized after an accident (as she was, due to actual chest pains), blood samples would be taken as a matter of course. Secondly, it’s unlikely that one of the state’s top barristers – one with, unlike ICAC, an unblemished record of integrity – would risk her career and reputation for what is, in the whole scheme of things, a minor criminal offence. Thirdly, it’s laughable. A phone tap directed at a tow truck driver (this time by a different secretive star chamber) did indeed pick up Cunneen saying ‘fake chest pains’. However ‘fake’ was not a verb, much less an imperative; it was an adjective and an indicative – Tilley didn’t just have chest pains, she had ‘fake chest’ pains. Her fake chest was the subject of a long running semantic joke between Cunneen and her mechanic/drinking buddy.

So much for confidence in government! Not only did the sherlockian geniuses at ICAC completely misinterpret the conversation their colleagues intercepted, but the legal eagles who work there gave their imprimatur to proceed with the investigation and inquiry, despite it being, once again, outside the Commission’s jurisdiction. It is no wonder ICAC had to issue a Friday-before-Christmas letter to the Liberals, nor that the High Court found in favour of the respected Crown Prosecutor. It’s no wonder ICAC’s independent Inspector has described ‘unreasonable, unjust, [and] oppressive maladministration’ in the Cunneen case. The only surprise is that, given how easily and undeservedly their own reputations could be destroyed by an immoral and illegal ICAC witch-hunt, more people don’t wonder whether a star chamber that sits above the Rule of Law really is the best way to promote confidence in the integrity of the government.

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  • Gerry Flower

    Comparing ICAC to a child-molesting priest…

    Classy.

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