Written by Nicholas Cowdery QC. Nicholas is a member of the Centre Public Integrity National Integrity Committee, a member of the NSW Council for Civil Liberties and a former Director of Public Prosecutions for NSW. This article was originally published in the Sydney Morning Herald on November 30 2021
There was an obvious amount of political bluster in Prime Minister Scott Morrison's unfortunate rant against the NSW Independent Commission Against Corruption in question time last week, in which he labelled the ICAC a "kangaroo court" and its inquiry involving Gladys Berejiklian "an absolute disgrace".
It seems to have been an opportunity for the Prime Minister to signal to potential voters in NSW his support for the former Liberal premier, who surveys have shown still commands a level of respect and admiration in NSW despite the circumstances of her resignation and her proven track record. The Prime Minister wanted to be seen to be siding with them so they might side with him.
But his assertions about the ICAC need to be examined. There have been no "shameful attacks" on Berejiklian by the NSW ICAC, as he claimed. It has initiated an inquiry into whether:
- Berejiklian breached public trust because of a conflict of interest;
- her conduct in relation to decisions about funding grants was dishonest;
- she breached public trust by failing to report matters to the ICAC; and
- her conduct could have allowed or encouraged corrupt behaviour by former Wagga Wagga MP Daryl Maguire.
The ICAC has a legal duty to inquire into such matters once grounds are demonstrated. It does not have a choice to ignore or defer for consideration matters that go to the integrity of government and ministerial standards, regardless of the immediate political consequences.
There is nothing shameful in that - quite the contrary. Nothing "done to" Berejiklian was a disgrace - she is a witness in the investigation and has been treated appropriately.
The ICAC has not sought to "publicly humiliate" Berejiklian, as Morrison claimed. She has been asked relevant questions and treated with all due respect. The matters on which she has been questioned are directly relevant to the issues before the Commission. The ICAC's powers have not been abused and if Berejiklian's integrity has been damaged, that is a consequence of her answers.
There was no abuse of process. Surely a "kangaroo court" would have jumped to a conclusion on the spot, without proper grounds, rather than now taking the time to assess the evidence and reach reasoned conclusions. Berejiklian was not "chased out of office" by the ICAC or anyone else - she chose to resign after private hearings; well knowing, or at least suspecting, what was to come.
A proper assessment of Berejiklian's experience of the ICAC provides no basis, as the Prime Minister asserts, for withholding a federal anti-corruption commission or designing one that is intended to prevent political corruption from being exposed, as the government would have it.
The flaws in the government's model first promised in December 2018 (and as presently known) include different treatment for law enforcement bodies compared to public sector entities, including politicians, who would be subject to a deliberately different and weaker mode of oversight.
In the latter case, whistleblowers and the public would be unable to initiate consideration of an inquiry, an investigation could not be conducted unless first a prima facie case of a listed criminal offence had been made out (but not all corruption is criminal), no public hearings could be conducted, no findings of corruption or criticism could be made and no reports could be made public. The public would hear about it only if prosecuted by the Commonwealth Director of Public Prosecutions.
As Bridget Archer said when speaking in support of the model put forward by independent Helen Haines, and supported by the opposition: "There is a place for politics … but on something as important as trust and confidence in elected officials - that is not it."
Nicholas Cowdery QC is a member of the NSW Council for Civil Liberties and a former Director of Public Prosecutions for NSW.
