The NSW anti-corruption body, ICAC, made a serious error of judgment in deciding on an investigation into a senior NSW Crown prosecutor, Margaret Cunneen, QC, after a girlfriend of Ms Cunneen's son became involved in a traffic accident. Ms Cunneen was said to have told the girl to feign chest pain, to avoid being subjected to a breath test. Ms Cunneen vehemently denies this, and, in any event, routine hospital blood tests showed no presence of alcohol. If true the allegation against Ms Cunneen could have amounted to an attempt to pervert the course of justice. But, on its face, it involved no abuse by her of her office or connections, or any attempt to corrupt the institutions of the state, or its guardians. It is with such abuse that ICAC was set up to deal. The long list of NSW corruption scandals since its inception has shown that it has had much raw material. There is, alas, no evidence that fundamental problems in the politics and public administration have as yet been dealt with, and that it is time for the ICAC dog to be muzzled.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
The High Court has stopped the inquiry as beyond ICAC's legal power. It has drawn a distinction between a duty to investigate the probity or honesty of actions by a public official, and, on the other hand, the efficacy of the exercise. One involves the honesty of an official's conduct or decision. The other could involve whether outsiders, by deceit or the withholding of information, effectively prevented the right action or decision, perhaps by a completely honest official. The High Court majority thinks that giving extraordinary coercive powers to such bodies in efficacy cases would take ICAC's powers into areas ranging well beyond the ordinary understanding of corruption in public office.
It is by no means clear that the distinction drawn by the court is satisfactory, whether in general practical consequences, or for the particular problem. ICAC's mistake in deciding on an Cunneen inquiry was not so much about its jurisdiction, or right to have one. It was, instead, about its judgment and priorities. In NSW in recent times ministers have been seen to be giving favours worth millions to mates and cronies; lobbyists to have extraordinary access to and influence over the actions of ministers; politicians have abused their public trust to secure huge favours; others have made private profits from inside information; others have overridden professional advice to do the bidding of plainly venal insiders. Public servants and council workers have received bribes and kickbacks, sometimes from all comers, sometimes from small clubs of insiders. Against this, the offence Ms Cunneen committed, if she committed any at all, was small beer and for the ordinary courts. It hardly suggested a systemic problem in the smooth and honest running of the state.
But the real question is not about fairness to Ms Cunneen. It is about sleazy people who may now seem to escape scot-free on her coat-tails. ICAC investigated plainly crooked decisions to hand out mining leases to cronies. They found inside knowledge and trading by the notorious Eddie Obeid, and attempts by others to conceal Obeid's involvement, abuse of office and of the public interest. ICAC made adverse decisions about the conduct of some businessmen in dealings with the leases; as a result the leases were cancelled. If the High Court is right, such findings will have to be vacated.
Perhaps an over-busy or over-inquisitive ICAC could go too far in tracking down a web of intrigue, conspiracy and attempt to corrupt public officials. But most members of the public would think such overreach was not a problem in these inquiries. Nor in other inquiries into Obeid, Ian MacDonald and an array of corrupt and corrupted NSW ALP figures, or, later, into secretive attempts by people associated with Australian Water Holdings to improperly influence official so they could rip off the public treasury.
There are, of course, powerful figures with an interest in promoting the idea of an out-of-control investigative body going too far. They are joined, in the ACT administration as much as the federal government, by those who blandly deny that anything is wrong, and who pretend to worry whether a standing anti-corruption body might be an overreaction or prove a nuisance by being over-inquisitive. There is, always, a risk of overreach, and a need for checks and balances. But severe truncation of an ICAC's powers, on the basis of its errors so far, is playing only into the hands of those who want government wide open to abuse.
