Margaret Cunneen

NSW Parliament will host the nearest thing to a cage fight tomorrow when three “star” contestants go head-to-head over the fate of the Independent Commission Against Corruption.

The all-party ICAC committee will grill three witnesses — ICAC commissioner Megan Latham and ICAC inspector David Levine, both former NSW Supreme Court judges, and NSW director of public prosecutions Lloyd Babb SC — during the day-long hearing.

All three normally operate in the shadows of the legal system, dispensing wisdom from their immense libraries of leather-bound law books. But their brawl has gone public and caught the rapt attention of lawyers, politicians, academics and the media.

First, the immediate background. On December 4 Levine handed Parliament his sensationally worded review of the ICAC’s Operation Halewhich investigated allegations that deputy senior Crown prosecutor Margaret Cunneen SC might have perverted the course of justice.

To all intents and purposes the Cunneen controversy ended late last year when she won NSW Supreme Court and High Court judgments, thwarting ICAC’s proposed public hearings into misconduct allegations against her.

Enter Levine. He had originally raised questions about ICAC’s interest in Cunneen in a formal letter to Latham on October 31, 2014. In it, he suggested ICAC should leave the Cunneen investigation to the NSW police, a point of view that has since been widely endorsed by the legal profession.

In his 96-page Operation Hale report last December, Levine described the Cunneen episode as a “low point” in ICAC’s history and concluded that “nothing like it must happen again”.

He accused ICAC of engaging in “unreasonable, unjust and oppressive maladministration”. It amounted to the ICAC inspector stating that he had lost confidence in the anti-corruption agency.

The response was swift and brutal. “I don’t think she [Latham] has any choice,” said National Party MLC Trevor Khan, a member of Parliament’s ICAC committee. “She should stand down.”

Damien Tudehope, a hard-right Liberal who chairs the 11-member committee, said that if Latham refused to answer MPs’ questions at the committee’s next hearing, she could face the sack.

In a face-saving move he wrote to Latham this week giving notice of questions that might arise at tomorrow’s hearing, but he hasn’t resiled from other comments that he wants the power to “look over her shoulder” and have access to ICAC files.

Gary Sturgess, one of the authors of the 1989 ICAC legislation, said Latham should stand down and a replacement appointed until the parliamentary committee completed its report.

One of Levine’s other targets was the DPP’s Lloyd Babb, who gave the ICAC copies of private text messages from Cunneen’s mobile phone. “This is one of the more distasteful components of the whole affair,” Levine wrote in his December report.

MPs will grill Babb, who previously worked alongside Cunneen as a crown prosecutor at the DPP, about why he sent the text messages to ICAC and whether it was legal or not.

Tudehope, who succeeded former attorney-general Greg Smith as MP for Epping, is from the hardline Christian fundamentalist faction and front man for the anti-abortion, anti-gay Australian Family Association.

His campaign against ICAC has brought him a host of admirers, including broadcaster Alan Jones, Labor “fixer” Graham “Richo” Richardson and the entire commentariart of The Australian.

Neil Chenoweth, peerless investigator with the Fin Review, has calculated The Australian ran 198 articles, totalling 120,000 words, on the ICAC’s troubles in 2015, with 68 of them saying the ICAC was “out of control” and another 21 that Premier Mike Baird “must act”.

So ringside reports from Sharri (“I’m Israel’s best friend”) Markson, Chris Merritt, Mark Coultan, Anthony Klan et al will jam the pages of the Oz on Friday and the weekend.

In Canberra, the Greens are campaigning for a national ICAC to tackle Commonwealth corruption, but the Coalition is opposed to the proposal and Bill Shorten’s Labor Party seems distinctly uninterested. What a victory for corruption in high places if the same bipartisanship could abolish the publicly admired NSW ICAC or tame it.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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