NSW Premier Mike Baird should pick up the telephone and talk to one of his predecessors, Nick Greiner, about the Independent Commission Against Corruption.
When Greiner created ICAC he had a very clear view that this arm of the executive branch of government should not have the power to initiate criminal prosecutions.
That view was shared by his attorney-general, John Dowd, who now leads the Australian branch of the International Commission of Jurists.
Baird thinks otherwise and — at the time of writing — was persisting with a bill aimed at allowing ICAC to launch criminal proceedings. This proposal has already been approved by the lower house of the NSW parliament and its fate now rests with the upper house.
If approved, it would neutralise one of the most beneficial elements of the recent reforms from a panel chaired by former High Court Chief Justice Murray Gleeson.
The main element of the Gleeson plan — resisted by ICAC — has subjected this organisation to an expanded system of judicial review to ensure its findings of serious corruption involve matters that truly meet that description.
ICAC has been in strife over its idiosyncratic methods. Gleeson’s simple change has the potential to bring it closer to the mainstream of the justice system.
It would never get away with a focus on trivia — such as gossip about what was said after traffic accidents, the core of its ludicrous pursuit of prosecutor Margaret Cunneen SC. But if ICAC is empowered to launch prosecutions, Gleeson’s safeguard would be emasculated.
There would be nothing to prevent it from making its own adverse findings and immediately initiating criminal proceedings in order to stymie any possible use of the Gleeson mechanism. A court dealing with judicial review would be reluctant to proceed while the same facts were before the criminal courts.
If ICAC had a perfect record, it would still be a step backwards to give it a way of exempting itself from the new system of accountability. NSW has a perfectly good Director of Public Prosecutions that is charged with independently assessing ICAC’s work before initiating proceedings.
Remember, ICAC thought untested evidence from an incomplete inquiry proved Cunneen attempted to pervert the course of justice.
CHRIS MERRITT
THE AUSTRALIAN (30.10.2015)
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