Tuesday 29 November 2016

The Independent Commission Against Corruption (ICAC) - How the Liberals managed to destroy meaningful reform

It is unfortunate that the debate about principle all but disappeared when the NSW Parliament amended the Independent Commission Against Corruption Act, 1988, when parliament, in my view, in a misuse of legislative power, removed The Hon Justice Latham from her position as Commissioner.

It is contrary to principal for parliament to remove an independent statutory officer for no expressed reason. It would be just as improper for the parliament to remove the Solicitor-General, the Director of Public Prosecutions, a crown prosecutor, or a public defender by legislation, without reason. All the government managed to do was to leave it open to criticism that it was motivated by retribution because the ICAC had dealt with adversely a number of Liberal Party members of parliament.

The debate has been about the Liberal governments motive, with informed commentators like Richard Ackland asserting in an opinon piece published in The Guardian on 24 November 2016:

"The wounds run deep, especially after Barry O’Farrell shot his premiership to death by providing an incorrect answer to the commission in a separate but related matter.
Icac’s parliamentary oversight committee, dominated by politicians from the right of the spectrum, soon got to work. Its job was ably assisted by two other factors: Icac’s inspector, the former judge David Levine; and the commission’s attempted investigation into allegations against senior crown prosecutor Margaret Cunneen, which ended up being stuck down by the high court."
I am a member of the "ICAC parliamentary oversight committee" and together with my Labor colleagues spent more than 12 months listening to evidence, considering submission, and receiving briefings from the architects of ICAC some 28 years ago. I can assure the public in the words of Bruce McClintock SC who undertook a review of ICAC in 2005, and again with former Chief Justice of the High Court Murray Gleeson in 2015:
"Anyone who thinks that a weaker ICAC will result from these changes and is tempted to use an official position for private gain will be in for an unpleasant surprise."
As Mr McClintock said in an opinion published in the Sydney Morning Herald on 24 November 2016 entitled "The changes to the ICAC will make it more effective" at 
"Critically, the reform of the ICAC has not come at the expense of any of its powers to investigate, expose and prevent corruption. There is no watering down of the ICAC's extensive powers.

Change is rarely easy, and these reforms are no exception. However, once implemented, they will deliver a more effective and robust ICAC."

All the Liberal government has done, through its own incompetence, through the misuse of legislative power, brought the whole process into disrepute, as well as the very organisation that the community should have confidence in.

I wanted the parliament to debate principle. The video of my contribution to the debate is here: https://youtu.be/pytFHZg9twI