Richard Ackland
Why does the right hate ICAC?

It’s a little bit exciting that we have a fresh outbreak of the culture wars around the meaning of “corruption” and what the New South Wales Independent Commission Against Corruption stands for.

Conservative analysts think it is a good idea that the High Court has knocked ICAC off its perch, because the outfit was too big for its boots, to mix a metaphor, particularly after it started going after Liberal politicians.

The “Green/Left”, as Fairfax and the ABC are referred to, think it’s a good idea to have a corruption fighter with royal commission powers to clean out the state’s self-replenishing Augean stables. They want investigators to continue investigating, while the conservatives want to confine the investigations into the Green/Left receiving interesting news leaks relating to allegations of corrupt conduct.

Already the damage is evident with ICAC indicating that it will consent to orders by the NSW Court of Appeal setting aside findings of corruption against Travers Duncan, John McGuigan, Richard Poole and John Atkinson.

ICAC found that they had corruptly intended to deceive relevant government authorities about the involvement of the Obeids in the Mount Penny coal tenement. 

The commission will also withdraw its appeal in the case of John Kinghorn, who managed to overturn at first instance the corruption finding against him.

ICAC was set up by the Liberals in 1988 and it seems its sole purpose was to go after crooked Labor politicians. It has now turned into Frankenstein’s monster, devouring its creators. Indeed, its first significant scalp was Liberal premier Nick Greiner.

Much of the hand-wringing was in response to a rather straight statement issued by ICAC on the Monday after the High Court sharply restricted the meaning of corruption, as found in the ICAC Act.

The statement said the “narrow construction” adopted by the High Court majority is contrary to the legislative intention and “substantially damages the commission’s ability to carry out its corruption investigation and corruption prevention functions”.

It added that it has made a submission to the government to consider, “as a matter of priority”, retrospectively amending the definition to ensure the provision operates “in accordance with its intended scope”.

This put one of the nation’s leading thinkers, Janet Albrechtsen, into a fine lather: “This star chamber seems to think it’s part of some kind of tin-pot dictatorship where it can expect government cronies to bolster its power.”

Naturally, it is perfectly acceptable to have star chambers running into trade unions or pink batts, but for pity’s sake leave the captains of industry and their political sidekicks alone.

The man who writes on legal affairs for Mr Murdoch’s broadsheet was no less insistent that ICAC is a “rogue agency” and that NSW Premier Mike Baird must not “buckle” to demands to amend the legislation in the wake of the High Court decision.

Even David Levine, a former judge appointed to keep an inspector’s eye on ICAC and the Police Integrity Commission, and who before that was classifying the security of the state’s serious offenders, has shown his conservative credentials by saying that the corruption fighter was a “poor loser” and that its “blustering ... statement ... was an improper and dismissive attack on the judgement of the highest court in the land”.

God almighty. When are these people going to get a grip on themselves? It’s nice for Levine to be able to give vent with ex cathedra statements, when at the same time he’s auditing ICAC and its handling of the Margaret Cunneen case.

Only days earlier he was asking for ICAC to issue a statement and explain itself, adding that the public standing of the watchdog was, “to say the least, unhappy”. Now he’s unhappy with what ICAC said. Former commissioner David Ipp had a different perspective, as he told The Sydney Morning Herald in August last year: “I can tell you that my experience is the ordinary man and woman in the street are very satisfied with what ICAC has done.”

Anyway, there’s no need to read Levine’s report because we now know already what’s going to be in it.

It also makes a pleasant change for News Corp hacks to be defending the perfection of the High Court. It should not be forgotten that they are the very ones who bored us to tears about the dreadfulness of the High Court’s “activism”, viz Mabo and the implied constitutional freedom of expression on government and political affairs.

But a couple of things, for the sake of context. First, what the High Court decided in ICAC v Cunneen was not a constitutional matter, it was a case of statutory interpretation. Consequently, “the highest court in the land” does not have the last word – that is the preserve of the parliament of NSW. In fact, the High Court doesn’t even have to get it right, although it tries hard to. It is simply litigants’ last port of judicial call.

Second, it is not unusual at all for legislation to be retrospectively amended by parliament following a judicial outcome. ICAC took this case to the High Court, and in the process agreed in advance to pay Cunneen’s eye-watering costs of solicitors, a QC, an SC and a junior barrister, along with the costs of its own team, because it wanted to know where it stood after the adverse court of appeal findings about the meaning of corruption. For those who want to drill down, the relevant bits are sections 8(1) and 8(2) of the ICAC Act.

Now that we have a judicial determination, even a strained one, “with respect”, it is entirely proper for the commission to ask for a restorative amendment. To leave the situation as it now rests is to have a watchdog that can’t bark.

That’s exactly what conservative politicians and their media claqueurs would prefer. It started a while back when former premier Barry O’Farrell defenestrated himself after misinforming ICAC about a bottle of wine he received from Nick Di Girolamo, a Liberal Party bagman, log-roller and head of the Obeid-linked company Australian Water Holdings.

One of our most entertaining commentators, Gerard Henderson, told the nation that ICAC should hold its hearings in secret. David Ipp, again:

“The whole raison d’être of ICAC is the exposure of corruption. The idea of exposing corruption behind closed doors is oxymoronic.”

Moronic is right.

You’d think NSW didn’t need a strongarm corruption fighting body – a place with a persistent pong of misdeeds impacting on the state, stretching back to, as counsel assisting Geoffrey Watson reminded us, the Rum Rebellion, followed up in living memory by the Askin and Wran eras and, more recently, the plunder of state resources by the Obeids and other robber barons and recent evidence of prohibited donations being funnelled to Liberal politicians.

ICAC is now confined to working on cases where state officials have acted without probity – whether that be the dishonest or partial exercise of official functions, breaches of public trust or the misuse of information.

Newly off limits are the cases where the deception or fraud of others could impact on the state, and where public officials have been deceived without their knowledge.

As former commissioner Ipp put it, the decision by the High Court majority “gives dishonest people free rein to mislead innocent public officials. Even if they are misled to the advantage of the deceivers, the ICAC can’t investigate”.

In these circumstances the state can be taken down, public assets misused or misappropriated, frauds on public officials can be perpetrated, yet this is no longer the preserve of the anti-corruption body.

To get to that point required prolixity on an impressive scale by the majority judges. One slice will suffice. Here they are talking about the majority judgement of the NSW Court of Appeal in Cunneen v ICAC:

“It would be more accurate to say, however, that if there is any circularity in the majority’s reasoning, it is constituted of assuming the purpose of the Act and then reasoning, as if syllogistically, that, because a meaning of ‘adversely affect’ limited to an adverse effect on probity is more consonant with the assumed purpose of the Act, that meaning should be preferred.”

Good luck with that. Minority High Court justice Stephen Gageler gave succinct examples of where ICAC’s findings of corrupt conduct have been benched.

For instance, in 2003 there was a report on the use of forged documents provided to the Department of Fair Trading to fraudulently acquire building and trade licences and qualifications. The officials at the department were unaware of the forgeries, so under the new understanding of corruption an ICAC investigation would be off limits.

Similarly with another case where false academic qualifications were being peddled to acquire jobs in the state public service.

Both former premier Greiner and his cabinet secretary Gary Sturgess, who were the architects of ICAC, have said that their intention was that the commission’s work should be confined to large-scale systemic corruption. But even here, under the High Court’s thinking, that too would be out of bounds.

The commission would have no power, for example, to investigate, expose or prevent statewide endemic collusion among tenders seeking contracts from the government.

It’s not a case of the Baird government “buckling”; it’s a case of the Baird government restoring the mechanism to protect the state, and its people, from kleptomaniacs and fraudsters, a job not always within the competence of the NSW police.

This celebration of corrupt conduct by conservative-minded commentators opens up a fresh front, where robber barons can have an untrammelled lunge at public goodies, all in the name of “free markets”.

The right-left brickbats over ICAC and corruption shows what can happen when a culture war is waged by warriors without any understanding of cultural context.

This article was first published in the print edition of The Saturday Paper on April 25, 2015 as "Out of commission".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.

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