The ferocious battle over the future of the New South Wales anti-corruption body the Independent Commission Against Corruption will resume on September 8 at an all-party parliamentary inquiry. At stake is whether ICAC will remain Australia’s most successful corruption-fighting agency — or not.

The 11-member committee, chaired by anti-abortion Liberal MP Damien Tudehope, will question seven witnesses over two days before submitting a report to Parliament in November. MPs announced today that their first witness will be ICAC inspector David Levine QC, who provoked widespread outrage by calling for two highly controversial changes to the ICAC Act:

  • The ending of ICAC hearings in public and the introduction of hearings held in private [behind closed doors] to avoid the “undeserved trashing of reputations”; and
  • The introduction of an “exoneration protocol” to allow those against whom the ICAC made a finding of corrupt conduct, but who were not convicted by any court, to apply to the Supreme Court to have the record expunged or have the findings set aside.

When Parliament’s ICAC committee invited comments on Levine’s report it was inundated with high-powered submissions from legal big wigs savaging his proposals. After Levine takes the witness stand MPs will hear evidence from director of public prosecutions Lloyd Babb SC, Bruce McClintock SC, acting NSW ombudsman John McMillan, former ICAC inspector Graham Kelly, ICAC commissioner Megan Latham and former ICAC counsel assisting Geoffrey Watson SC.

Fireworks will be unavoidable as Liberal, National, Labor and Green MPs interrogate the legal identities about Levine’s master plan to impose tighter controls on the commission. MPs have already received a scathing seven-page submission from former ICAC commissioner David Ipp, a former NSW Supreme Court judge (Levine and Latham also sat on the Supreme Court). On Levine’s call for private hearings, Ipp wrote:

“Our system of democratic government demands open justice, justice that occurs in public, with appropriate media access.

“The notion that ICAC could properly expose corruption by secret proceedings is absurd.

“The ultimate worth of ICAC is bound up with the publicity that its hearings attract and the public has a substantial and legitimate interest in knowing what is happening before the commissioner.”

Ipp goes on to rubbish Levine’s “exoneration protocol”, saying that “nowhere is the inspector’s [Levine’s] failure to understand the practical and legal operation of the ICAC Act more apparent”.

Ipp said ICAC was prohibited from making a finding that an individual had committed a criminal offence and therefore it was “an absurd proposition” that a person should be allowed to expunge a corrupt conduct finding simply because there was no evidence admissible in a criminal court to support a finding of a criminal offence. “This would truly be a case of testing the quality of apples by reference to oranges,” he remarked.

Ipp maintained that Levine’s plan to place the ICAC inspector in a expanded role of overseeing the watchdog’s operations should be “consigned to oblivion”. He said a far more pressing issue arising from Levine’s report was: “Who is going to inspect the inspector?” And he added the brutal observation:

“Past history relating to the current inspector suggests that a censor of the inspector’s conduct would be appropriate.”

In his written submission, barrister Geoffrey Watson rejected the introduction of private hearings saying:

“The only [his emphasis] way in which to regain the confidence of the public is by exposing the corruption. This can only be secured by public inquiries.”

Watson, who is listed to give evidence to MPs at its final session on September 9, will face aggressive questioning over his full-throttle approach to questioning witnesses at recent inquiries. Watson gave notice that he did not resile from his adversarial approach:

“It is important to observe that those persons propounding this kind of approach [hearings in private] are the same group of disaffected persons whose conduct was corrupt, or who have lost money as a result of ICAC foiling their corrupt arrangements.”

Watson also opposed the “exoneration protocol”, writing with scarcely concealed sarcasm:

“The idea of an ‘exoneration protocol’ is a novel one. I know of no precedent for it. None is cited. It reflects a misunderstanding of the ICAC’s role.”

The committee’s next hearings will be in public. They will feature lawyers squabbling over future powers of ICAC and MPs arguing whether to tame its ability to tackle high-level public corruption.

Meanwhile, outside in the real world, corruption practitioners will be getting on with their nefarious business.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey