The age-old criticisms resurfaced within days of Gladys Berejiklian’s resignation as NSW premier on 1 October 2021.
The Independent Commission Against Corruption was derided as a “star chamber” and a “kangaroo court”.
The commission, according to then prime minister Scott Morrison, had treated his party’s NSW leader disgracefully. It was more interested in headlines than integrity, due process or the rule of law, he said. Some of Morrison’s MPs went even further.
“The NSW Independent Commission Against Corruption is an obscenity,” then Liberal MP Jason Falinski said. “It is star chamber, kangaroo court, crowd-sourced McCarthyism all rolled into one.”
It’s a familiar pattern.
Three premiers have resigned while under Icac’s unforgiving scrutiny.
Barry O’Farrell resigned after Icac found a thank-you note that contradicted his emphatic denials of having received a $3,000 bottle of Grange from the chief of the company lobbying intensively for a water contract. Nick Greiner, whose administration created Icac, was forced out due to Icac findings over the appointment of a former minister to a public service role, which were later successfully appealed.
Each big name scalp precipitated furious political backlash.
Anthony Whealy, a former NSW supreme court judge turned integrity campaigner, says Icac’s proven ability to resist the pressure shows its strength and its success.
“An organisation like this has to possess independence, impartiality, be incorruptible, and it must be fearless,” he says. “By that I mean it must not pay any heed to whether it receives praise or condemnation for its findings.”
When Greiner established the Icac 35 years ago, he trumpeted the importance of its independence of executive government. Its independence and its strong powers, equivalent to those of a standing royal commission, gave it the fearlessness it needed to rid the state of corruption, he believed.
Greiner acted after a seemingly never-ending string of corruption scandals: a state minister jailed for bribery; two ministers facing a corruption inquiry; a magistrate charged with perverting the course of justice.
In setting up Icac, Greiner was clear-eyed about the perennial dilemma it would face: how does such a body balance the inevitable tension between the right of an individual to the presumption of innocence and to privacy, with the need to robustly and transparently ensure governments are free from corruption?
Greiner predicted the commission would come under attack for “unjustified interference with the rights of individuals”.
His retort? Corruption was by its nature secretive, difficult to uncover and a crime of the powerful, with no obvious victim willing to complain.
It required strong investigative powers to root it out, as long as they were focused on the public sector and kept in check by parliamentary committee.
“The bottom line is simply this: the people of this state are fed up with half-hearted and cosmetic approaches to preventing public sector corruption,” he said.
‘Worse than the Spanish inquisition’
On 5 July 2018, the disgraced MP Daryl Maguire called his then secret lover, Berejiklian, and let loose on the corruption watchdog.
His phone was being tapped.
Maguire, who had just been summoned by Icac to explain his property dealings, told Berejiklian it was “worse than the Spanish fucking inquisition”.
He told her he couldn’t even “meet with a developer” and said “what they’re doing is marginalising the art of politics”.
“And big brother, you know, they can, they can tap into every phone conversation there is, absolutely unfettered power, no one has any privacy,” he said. “They could probably actually listen to any calls that were being made between me and this phone and any individual that I choose to talk to including you.”
Berejiklian responded: “Is that going to be a problem?”
It was a problem. Quite a significant problem, for both Maguire and Berejiklian.
On Thursday both were found by Icac to have engaged in corrupt conduct. Maguire may face charges, but Icac has not recommended charges be pursued against Berejiklian. She may also appeal against the findings.
The wire taps, as intrusive as they were, played a key role in establishing the commission’s findings.
They showed time and again how the undisclosed relationship between Maguire and Berejiklian crossed a line, interfering in her public duties and clouding her support of two lucrative funding commitments sought by her then secret lover, one for a gun club and another for a music conservatorium.
The taps also showed Berejiklian’s awareness of Maguire’s land dealings, the commissions he was receiving while in office, and the importance of his private property brokering in digging himself out of personal debt. It was something Icac found Berejiklian should have raised with the anti-corruption watchdog.
The findings triggered familiar criticisms of Icac.
Some – most notably, the criticism of delay – are shared across the political spectrum and are likely to lead to reform.
Others suggested Icac had gone too far and needed to be brought into line. The former Liberal MP Jason Falinski said on Twitter Icac had made a finding of corruption with “no evidence of corruption” and suggested the delivery of the findings was “mostly a made for media event, not the proceedings of a proper corruption body”.
The former NSW auditor-general Tony Harris says Operation Keppel, if nothing else, has shown that “no one is above being investigated for corruption”.
“Not even the most powerful member of the executive.”
Harris, while airing concerns about the delay, says the constant criticisms of Icac are ill-founded because they ignore the model the commission follows and the checks and balances that surround it.
“Clearly the Icac is no star chamber, if only because those suspected of corruption have lawyers to help them, often paid for by the taxpayer,” he says. “And, unlike the original star chamber, the Icac is answerable to Parliament, not the chief minister or king.
“Moreover, the Icac is not a court and cannot declare a person guilty. The only adverse finding allowed of the Icac is that it can find a person engaged in corrupt, not necessarily illegal, activity.”
He says the body can act as a model for corruption watchdogs in other jurisdictions, including the National Anti-Corruption Commission, which is officially established from Saturday.
“The Icac was established under, at the time, model legislation,” he says. “And this legislation has been improved by amendments.
“This legislation is a good start for jurisdictions wanting a similar body.”
