Opinion piece by Neil Chenoweth originally published in the Australian Financial Review 7th September 2019.
The disconcerting feature of NSW’s remade anti-corruption body, as it tackles its first major donations scandal, is its determined lack of curiosity.
There’s been no shortage of salacious detail in the past two weeks as the Independent Commission Against Corruption has probed a mysterious Aldi bag of cash that Chinese billionaire Huang Xiangmo allegedly carried into NSW Labor’s Sussex Street head office after a fundraising dinner in March 2015.
But there are lines in this inquiry that, it seems, Chief Commissioner Peter Hall, QC, and counsel assisting, Scott Robertson, are unwilling to cross.
Huang is not just any donor. On December 5 last year, the government cancelled his residence visa after ASIO advised that Huang was “amenable to conducting acts of foreign interference”.
“The whole of Australia should be watching this with eagle eyes because this is a really important point that’s being debated here,” said Geoffrey Watson, SC, a director of the Centre for Public Integrity who previously acted as counsel assisting in some of ICAC’s most high-profile investigations.
Watson, who called for a federal ICAC, told the ABC’s 7.30 program: “It’s talking about the influence exerted over an Australian election by the Chinese government, if it goes that high. That’s what we’ve got to look at. Does it go that high?”
It’s not the job of a state anti-corruption body to investigate issues of national security (and it’s not suggested that any of those before ICAC had any role in political interference).
But although Huang is the central figure in ICAC’s Operation Aero, in two weeks of hearings he has seemed curiously absent.
Huang has declined to testify, even by video link, though he told the AFR Weekend that the money given to Labor wasn’t his – he has never shopped in an Aldi supermarket, let alone handled an Aldi shopping bag.
Hall slapped down Huang’s statement on Friday as unacceptable, given his refusal to appear. Even so, the inquiry keeps bumping into traces of Huang – meetings with him, phone calls that were made. Yet there have been no questions about these conversations.
In fact, Huang was almost overlooked when the NSW Electoral Commission put the case together. Its interest was triggered when Labor banked $100,000 from the March 2015 fundraiser for Chinese Friends of Labor a month after the dinner.
The money was attributed to what the NSWEC concluded was a string of straw donors, which its investigation spent nearly two years tracking. Finally, on June 22, 2017, NSWEC investigators interviewed the man who had banked the money, Labor community relations director Kenrick Cheah.
Cheah blithely told them that Huang had handed the $100,000 to the then state Labor secretary Jamie Clements at head office.
But Cheah pronounced Huang’s name the Chinese way, as Wong, which investigators initially appear to have mistaken for a reference to state MP Ernest Wong, one of the organisers of the dinner, so they ignored the revelation.
It was only at the very end of the interview that Cheah clarified it was Huang Xiangmo who carried in the money. The name was unfamiliar to the NSWEC investigators.
It was important, a sign of “face”, for Huang to directly pass the money to Clements, Cheah said. But it was that gesture, to bring the money in a bag a month after the dinner, that had triggered the inquiry, which the Electoral Commission passed to ICAC in December 2017.
Four months earlier, Hall had been appointed Chief Commissioner of a corruption body that had been substantially reinvented, with restricted scope, after intense lobbying following its investigation into Liberal donations and its failed pursuit of public prosecutor Margaret Cunneen.
ICAC inquiries are theatre. The real work is done in private hearings, which develop a case that is tied up in a bow and staged as public hearings: discrete, confined performances where public servants and minor political figures are pounded into oblivion.
But the most effective ICAC investigations – the multiple inquiries into Labor’s Eddie Obeid, into Australian Water Holdings, and into Liberal donations (Operation Spicer) – have been where the hearings went off track, following up leads as they emerged.
This is the litmus test for a corruption body: dealing with the unexpected. But as former commissioner Megan Latham found, there are political risks in where inquiries may take you.
On August 20, the Tuesday before the public hearing began, Clements’ successor, Kaila Murnain, asked for a second private hearing to add to what she had told ICAC at her first appearance on July 29.
Murnain said she now recalled that at 6.45pm on Friday, September 16, 2016, two days after the NSWEC had sent out demands for documents, she had met a distraught Ernest Wong, who told her Huang was behind the donations.
She had spoken to then senator Sam Dastyari, who had lost his job as a frontbencher a week earlier over his link to Huang, and he told her to ask Labor’s outside counsel, Holding Redlich senior partner Ian Robertson, for advice.
She said she met him at 7.21pm, and he told her to forget about her conversation with Wong.
Murnain’s claims cost the Labor secretary her job. They also transformed the inquiry. But where does it go from here?
Dastyari, interviewed by ICAC on August 22, confirmed he spoke to Murnain about the donor crisis for up to 90 minutes in his car on that night in September 2016, and he urged her to seek legal advice from Robertson. They never talked about it again, he said.
A private chat
But Dastyari’s account doesn’t seem to make sense. Phone records show that although Dastyari did speak to Murnain before the meeting, he picked her up for the long talk only after the meeting with Robertson. How could he be telling her to go to speak to him?
Robertson, through his lawyer, furiously denies Murnain’s account. So does Wong, whose phone records show he was trying to call his friend Huang Xiangmo at 7.51pm, just as Murnain was sliding into Dastyari’s car.
Counsel assisting showed no interest in what Wong might have said to Huang. It was Arthur Moses, counsel for the Labor Party, who induced Wong to say he did not “wilfully” tell Huang about the donations investigation, but it might have come up in conversation.
Dastyari told ICAC that in hindsight he has “serious questions” about whether Huang was an agent of influence for the Chinese government, and that he last met him in “August-September 2016”. Reportedly it was “several weeks” after returning to the backbench on September 7 that he went to Huang’s home and told him to speak in the garden after turning off his phone, because Huang was under surveillance by ASIO and US intelligence.
That makes it days after speaking with Murnain in the car that Dastyari wanted a private chat with Huang, and after Wong had been calling him. What did they talk about?
ICAC had no questions. Where is the focus on Huang’s ties to Labor’s money men? So far most of the canvas remains blank.