Watchdog with bite: Icac claims another premier with demise of Gladys Berejiklian

Written by Christopher Knauss. Originally published in the Guardian on October 2

The premier’s anger was palpable, her target familiar.

Like so many politicians before her, Gladys Berejiklian laid the blame for her untimely demise squarely at the feet of the Independent Commission Against Corruption.

She accused it of pursuing her over “historic matters” that had already been investigated and explained, all at a time when the state was in the grips of a deadly Covid-19 outbreak.

“My resignation as premier could not occur at a worse time, but the timing is completely outside of my control, as the Icac has chosen to take this action during the most challenging weeks of the most challenging times in the state’s history. That is the Icac’s prerogative.” she said.

Her comments are likely to trigger the usual barrage from Icac’s critics. That it is out of control, that it destroys the careers of otherwise good leaders and expands investigations well beyond their initial remit.

For others, like former Icac counsel assisting Geoffrey Watson, SC, the case is a perfect example of the commission’s unparalleled strength and independence.

Icac, he says, has again shown its dedication to pursuing allegations of corruption, regardless of the political and public pressure it brings upon itself in doing so.

Delaying the timing of its announcement, he says, would have been a political act, one that a truly independent body like the NSW Icac cannot countenance.

“It’s just got such a very strong spirit – I know this personally – a strong spirit of ‘we’re going to follow the facts wherever they go, we don’t give a bugger about the politics’,” Watson told the Guardian.

“When I was there, I never heard anyone express a political view, that’s the way that it works, so that when it’s making decisions, those sorts of considerations go out the window. They’re not there, and that’s so important.”

The resignation of Berejiklian adds yet another scalp to the list of NSW politicians brought down by the Icac, the longest running corruption commission in the country.

Armed with strong powers and skilled investigators and lawyers, the commission has pursued Liberal and Labor figures with equal vigour in recent years.

The last major scandal involved a $100,000 bag of cash being dropped off at Labor party headquarters by Chinese billionaire Huang Xiangmo.

The various revelations at that public inquiry engulfed the state Labor branch and dragged in federal MPs, including Bill Shorten, before forcing the suspension and resignation of the NSW general secretary, Kaila Murnain.

Five years earlier, in 2014, Icac forced the resignation of Liberal premier Barry O’Farrell who famously fell on his sword after misleading the inquiry about receiving a $3,000 bottle of Grange Hermitage, albeit unintentionally.

Tony Harris, the former NSW auditor general, said the Berejiklian resignation shows the continued “bite” that the Icac continues to rightly exhibit.

“It shows you not only that everybody needs an Icac, including the federal parliament, but it also shows you that you have to be always alert to the misuse of power, even if it’s only to use a taxpayer’s money to buy their election results,” he told the ABC.

‘Fearless’: endemic corruption and the birth of the Icac

On 26 May 1988, premier Nick Greiner stood in NSW parliament and laid out the case for a strong anti-corruption body.

There was little equivocation from the Liberal leader. He was “appalled” at the reputation NSW had garnered, not just in Australia but across the world, for its corruption.

In the years preceding its establishment, a minister had been jailed for bribery, two more ministers had faced corruption inquiries, and a magistrate had been imprisoned for perverting the course of justice. Police commissioners and deputy commissioners had been charged with criminal offences, and judicial figures had been caught up in a series of investigations and court cases.

“No government can maintain its claim to legitimacy while there remains the cloud of suspicion and doubt that has hung over government in New South Wales,” Greiner said.

“I am determined that my government will be free of that doubt and suspicion; that from this time forward the people of this state will be confident in the integrity of their government, and that they will have an institution where they can go to complain of corruption, feeling confident that their grievances will be investigated fearlessly and honestly.”

That fearlessness was immediately on display. In its first year, it investigated donations to the National party, implicating the Nationals leader and bringing significant political pressure upon itself.

But the body Greiner created would soon come back to bite him.

In 1992, he became the first premier forced to resign due to an Icac investigation, after being accused of misusing his position to secure an independent MP’s resignation for political advantage.

Icac’s adverse finding against Greiner was later overturned on appeal. Since the affair, Greiner has publicly defended the Icac from its detractors.

Chair of the Centre for Public Integrity and former Icac assistant commissioner, Anthony Whealy, said the Icac’s long history was one of its many strengths.

“You’ve got good investigative teams, good commissioners, and, I think, a fearless approach to investigating integrity,” he told the Guardian.

“Whether it’s a premier, or whether it’s a senior politician or a bureaucrat at a high level, or just a public servant pushing paper across a desk, it makes no difference to Icac.”

“It’s looking at the issue of whether corruption has been involved.”

Funding concerns and the ‘star chamber’ criticism

In 2019, chief commissioner Peter Hall delivered a stark warning about the future of Icac.

A looming shortfall in funding was threatening to undermine the commission’s ability to do its work. The back office had been cut and cut to cope with prior funding reductions, Hall said. Now there was a risk to its “investigators, lawyers and other key staff”.

“Something must be done, it must be done quickly,” he said.

Hall has also repeatedly voiced concern about the tension created by relying on the usual budget process to dole out money to the commission.

Icac was left reliant for money on the very government it was supposed to investigate.

“If the commission’s funding under the persuasion or influence of the executive of government, or for any other reason, is reduced or constrained, that of course would inflict considerable damage to the commission’s ability to function.”

Nothing has been done in the years since Hall’s warnings. Earlier this year, Hall again described the ongoing funding arrangement as both unsatisfactory and unlawful.

“We’re still here with an independent commission meant to be protecting the public interest,” he said. “However, that is still subject to control and influence from the executive government.”

The risk to state-based anti-corruption bodies from their political masters was thrown into sharp relief in South Australia this week.

Responding to a string of failed prosecutions, the SA parliament rushed through legislation gutting the Icac’s powers and potentially shielding politicians from the operations of the state’s Icac Act.

A collection of eminent former judges and Icac commissioners warned the changes had decimated the body’s ability to investigate corruption.

Whealy says, for the most part, NSW governments have avoided similar knee-jerk legal reactions.

“I think that it’s a good thing that that hasn’t happened in NSW,” Whealy said.

But the work of the NSW Icac has also faced criticism from the federal sphere.

Assistant attorney general Amanda Stoker, in justifying the Coalition’s much-criticised proposed anti-corruption commission, painted the NSW body as a star chamber, which undermined the presumption of innocence.

“The NSW Icac’s sweeping powers and public processes flip that model, unfairly destroying reputations and careers, often in the pursuit of the base political advantage of a public scandal,” she wrote.

It’s a persistent grievance aired by the Icac’s critics.

Another is that the Icac inquiries shift their focus, again and again, until they end up investigating matters they were never initially contemplating, like the Maguire grants, and taking down targets who were never intended, like O’Farrell in 2014.

Watson has an easy retort.

“I’ve been there when things have started to creep. The question is: what are you going to do, turn your back on it? It’s so important to follow where the facts take you.

“One of the great benefits of public inquiries in particular is that people come forward, sometimes they come forward and they’re pretty scared to do so. Some of them have got real fear of revealing information,” he said. “You find out more and more, it’s good, I take that to be a very positive side .”

Read the original article in the Guardian here