Justice David Ipp, a Supreme Court Judge and advocate for negligence and tort law reform, last week was nominated to be the next Commissioner of NSW’s Independent Commission Against Corruption.Apart from a brief announcement in the next day’s papers, there has been no subsequent assessments or commentary on his nomination.
It’s an odd appointment. There’s nothing in his public record to indicate an interest in the sorts of matters that come ICAC’s way. Before his appointment, the current Commissioner, Jerrold Cripps, had acted as an assistant commissioner in several ICAC hearings and was conducting a review of the ICAC Act at the time.
Premier Rees voiced the opinion that Ipp would continue the “high standards” set by Cripps. Perhaps he was thinking that the relatively politically pain-free term of Cripps might be continued by appointing another 70-something judge.
Perusing speeches and papers delivered by Ipp, he comes across as the very model of a “Bar and Bench” man; that Australians are indebted to barristers for the continuance of democracy and justice; although he deigns to concede that there have been “several” examples of solicitors who made suitable judges.
Aside from the visible role of presiding over hearings, the Commissioner is required to lead and manage an organisation with an $18 million budget, a staff of more than 120 and facing testing times, shared by other oversight agencies in NSW. It is not clear what record of achievement Ipp brings to this regard.
Ipp’s nomination is subject to possible veto by the Parliamentary Joint Committee (PJC) on the ICAC. It’s not necessarily a formality. In 1999, the PJC was instrumental in killing off the proposal that Irene Moss be ICAC Commissioner and Ombudsman.
Ipp’s nomination should not escape scrutiny. He comes to the task of corruption-buster having expressed distaste for the sorts of methods employed by bodies such as ICAC.
In a 1999 case before the WA Supreme Court, Ipp and his fellow judges slammed the Anti-Corruption Commission, condemning its methods in conducting private hearings and making findings of misconduct.
As this week’s judgment on the Military Court shows, judges generally have no time for non-judicial bodies with all the trappings of a court. In their early years, most of Australia’s anti-corruption bodies were curtailed and their governments reprimanded in High Court judgments for this very breach.
Ipp objected to the methods employed in ACC’s private hearings to question persons of interest, saying that a body charged with investigating and reporting on corruption “might lack the qualities of objectivity and detachment” while there was “no question of justice being seen to be done”.
Furthermore, the publication of findings reached by the ACC was “capable of causing far-reaching prejudice to those affected”.
At the time, Brian Toohey reported Ipp saying: “It is a long time since investigative bodies were also allowed to make findings”, and making “an unflattering comparison with the Spanish Inquisition”.
Should Ipp be confirmed, he inherits an organisation in less than robust health. Later this year, ICAC faces a broad ranging Parliamentary review on the occasion of its 20th year of existence. There’s no shortage of angles to pursue.
Three quarters of the ICAC’s $18 million budget is allocated to employee-related expenses. On that score alone, 4% salary increases for the next three years take a big chunk when you only get a 2% budgetary increase.
NSW Ombudsman Bruce Barbour has said he expects to lose 20 investigators over the next three years due to the demand for efficiency dividends and partially unfunded salary increases. The ICAC is not in much better shape.
Last Friday, Barbour wrote to every MP relating the cuts that would have to be made to the Ombudsman’s core activities unless more funding was made available. Two weeks ago, Cripps gave the ICAC’s Parliamentary Committee a copy of his submission to Treasury, seeking their support.
The Ombudsman and the ICAC, and the other watchdogs, are hamstrung by being unable to engage in the free for all cajoling and lobbying that ministers and departments undertake to look after their own interests. The price of independence.
The suggestion from the Greens that they take a leaf from the DPP’s example was shot down in flames at the weekend when a pre-emptive strike from the Attorney-General on waste and mismanagement within the DPP was launched.
The ICAC has indicated that over the next year it will complete only 40 investigations within a 12-month timeframe, down from 80 for the previous few years. There are 25 investigators for the whole organisation — equivalent to what might be allocated to a police taskforce assigned to a single matter.
Complex cases such asd the ongoing exposure of corruption in RailCorp and high profile matters such as the Wollongong City Council investigation can involve much of the investigation capacity of ICAC at any one time.
And the risk from the resulting “catch and release” shows up in delayed prosecutions. On average, the ICAC takes just over 380 days to get a brief of evidence to the DPP for possible prosecution. The DPP shows similar lack of alacrity in the one third of the matters on which it has provided final advice, taking an average of 480 days to do so.
Cripps has noted that his well-regarded deputy, Theresa Hamilton, will leave soon after him. A new Windows-based complaint and case management system due to come online this month has had teething problems. And even the building security requires capital expenditure.
The Opposition has vowed to increase ICAC’s budget and give it “more teeth”. But that’s partly due to their disappointment that ministers aren’t facing ICAC in leg irons and shackles every other week. (Now if only there was a Commission Against Incompetence, they’d be struggling for cell space).
For sure, these are tough times. But cutting into the sinew of the watchdogs isn’t going to leave NSW in a better state.
Disclosure: Stephen Murray was executive officer to Commissioner Irene Moss and to Commissioner Jerrold Cripps on several occasions between 2000 and 2005.