Written by Stephen Rice in the Australian October 3 2021
The NSW anti-corruption watchdog faces a determined push to curb its powers, following its decision to investigate Gladys Berejiklian over whether she allowed or encouraged her former boyfriend Daryl Maguire to engage in corrupt activity.
As the fallout continues from the premier’s resignation, NSW Health Minister Brad Hazzard suggested the Independent Commission Against Corruption should be forced to hold initial inquiries “behind closed doors”.
Saying he had “strong views” about how ICAC should be fixed, Mr Hazzard publicly questioned the corruption fighter’s power to conduct public hearings.
“There is no question that we need an ICAC, but whether it is something that is closer to the Hong Kong model, where these matters are dealt with behind closed doors until there is actually a sufficient case, is a matter I think the community will look at,” Mr Hazzard said on Sunday.
“It’s fair to say I have strong views, as the former attorney-general, in relation to how ICAC should operate, but those are views best left for our party and for government to discuss in due course.”
Chair of the Centre for Public Integrity and former ICAC assistant commissioner Anthony Whealy QC said he was concerned by the moves to limit the watchdog’s powers. “I’m disappointed to hear him come out with this argument, which has been well and truly traversed before, and rejected,” he said.
“Bear in mind that (former chief justice of the High Court) Murray Gleeson, and (ICAC inspector) Bruce McClintock have both said public hearings are absolutely essential to uncover corrupt practices in the public service and among politicians.
“It would be harking back to the dark old days to suggest that we go into private sessions completely.
“We do have private sessions and I have no doubt that between last October and now there have been quite a few private hearings.
“Now they’re having a public hearing and it’s perfectly appropriate that they should. To think of the investigation into the Premier of NSW being conducted secretly, it just exposes what a hollow argument that is.”
Legal experts have warned that Ms Berejiklian may face common law criminal charges as well as charges that she breached the ministerial code of conduct, as ICAC probes whether she misused her public office.
Ms Berejiklian could also face charges under section 316 of the Crimes Act of concealing a crime if Mr Maguire was charged or convicted of committing a crime.
Griffith University professor of public policy and law AJ Brown said there was clearly a potential breach of ministerial standards.
“What’s emerged in the public domain already is that she was the minister responsible for the making of the grants at the time that Daryl Maguire was both the proponent of the grants and was intending to benefit personally from them. So in those circumstances for her to leave her own personal interests undeclared and undisclosed would fail to meet anyone’s normal standards in respect of disclosing and managing a conflict of interest.”
Professor Brown said that alone would permit an ICAC inquiry. ” I know it’s very difficult for people to accept that an inquiry would be justified in the absence of very compelling evidence of a criminal offence but in fact for the purposes of an ICAC inquiry, that’s not the threshold.”
“The whole purpose of the obligation is to force other public officials to apply a test: when they see behaviour that is of potential concern, to do something about it without waiting to see cash in a brown paper bag or a body on the floor.”
ICAC has gone further, investigating a potential breach of trust and the criminal offence of failing to disclose knowledge of apparent or suspected corruption.
The common law offence of misconduct in public office, a criminal offence dating back to British common law in the 1800s, was used to charge and convict former Labor ministers Eddie Obeid and Ian Macdonald on corruption charges.