BRET Walker and Geoffrey Watson have been advising NSW’s anti-corruption commission on restorative amendments to the ICAC Act to repair the damage wrought by the High Court in the Cunneen case.
According to a statement issued on April 20, ICAC has made a submission to the government seeking amendments to the contentious s.8(2), “to ensure that the section can operate in accordance with its intended scope and making any such amendment retrospective”.
The announcement set off a barrage of complaint from Murdoch hacks (Albrechtsen, Merritt, Devine) where there was muddled stuff about due process, along with an unfounded allegation that ICAC was leaking to The Sydney Morning Herald.
This is a reflection that News is highly peeved that Fairfax made all the running on the Obeid corruption story.
Joining the Cunneen Defence League was ICAC inspector, former Supremo judge, David Levine. He thought ICAC’s statement was “as blustering a statement by a poor loser as it was an improper and dismissive attack on the judgment of the highest court in the land”.
Further, Levine warned against, “any knee-jerk legislative reaction that will serve to render the ICAC a second police force or crime commission”.
However, it appears that Inspector Dave’s warning may have falled on deaf ears. Premier Mike Baird today (April 24) said:
“I can assure anyone who thinks they can get away with corrupt activity in this state that they are wrong. So we’re going to do everything we possibly can to have the strongest possible ICAC we can.”
Inspector Dave is supposed to be doing an audit of ICAC’s Cunneen-related activities. Doubtless a report will follow. Wouldn’t it be better for the auditor to keep schtumm and let his report do the talking?
ICAC has every right to request a restorative amendment – after all it’s not as though the fallout from the High Court’s April 15 decision hasn’t been distressing.
The commission advised the NSW crown solicitor that corruption findings against five of the coal “robber barons”, should no longer be defended in the Court of Appeal.
The alluring Travers Duncan, former Baker boys John McGuigan and John Atkinson, along with wheeler-dealer Richard Poole, thought they were off the hook, but amending legislation may make that a short-lived prospect.
ICAC had found in Operation Jasper they intended to mislead government authorities about the involvement of the Obeids in the Mt Penny coal tenement.
ICAC said it will also withdraw its appeal against Justice McDougall’s decision last July quashing the corruption finding against John Kinghorn.
White Energy was proposing to purchase Cascade Coal for $500 million. Among the now newly non-corrupt contingent there were cross directorships and shareholdings in Cascade and White.
McGuigan alone stood to reap about $60 million if the deal went ahead, but it was crucial that the Obeids’ interest in Cascade be concealed from the other White shareholders.
Evidence before the commission showed McGuigan getting most upset when independent White Energy director Graham Cubbin started investigating rumours that the Obeids’ sticky fingers were in the pie.
Phone intercepts picked up McGuigan saying to Greg Jones, another shareholder in on the wheeze:
“This prick Cubbin … he’s going to have his nuts on the fuckin’ quarter mast.”
There was also a golden moment, when McGuigan denied to ICAC’s counsel assisting that he regarded the White takeover of Cascade as “the shortest distance to a pot of money” – only for Watson to switch on the tape of the intercept and the whole hearing room heard McGuigan say that the takeover as “the shortest distance to a pot of money”.
Other investigations are on now hold for now, including aspects of Operation Credo, which concerns the Obeid-linked Australian Water Holdings and evidence that people associated with the company, including Liberal Party bag men Arthur Sinodinos and Nick Di Girolamo, took financial advantage of the State-owned Sydney Water.
One element of the Credo investigation may survive – the extraordinary revelation that public officials falsified a cabinet minute, the effect of which was to try to secure a public private partnership proposal that would benefit AWH.
On the day of the High Court’s judgment in the Cunneen case, Robert Newlinds, counsel for Senator Sinodinos, said his client …
“has had his good name dragged through the mud and it’s now known that the context in which it happened was beyond the jurisdiction of ICAC. I hope ICAC acknowledge it quickly so he can get on with his life.”
The “good name” presumably didn’t extend to Senator Sinodinos’s involvement as a director of the Obeid-linked Australian Water Holdings on a salary of $200,000 a year with a total working commitment of between 25 and 45 hours per annum. He managed to make a single visit to a worksite.
He also stood to make $20 million if AWH won a lucrative contract with the state-owned Sydney Water company.
He knew nothing about $75,000 paid by AWH in donations to the Liberal Party. As state treasurer of the Liberal Party he also knew nothing about banned donations from Westfield ($150,000), Brickworks ($125,000) and Walker Group ($100,000).
This month AWH settled a claim by Sydney Water for $1.7 million relating to “inappropriate billing” for limousines, funnelling money to Liberal log-roller Nick De Girolamo, dinners, and general snout in trough activities.
Operation Spicer will probably crash and burn, unless there are retrospective amendments. This is the investigation that saw 11 Liberal members of parliament cast into the wilderness after evidence that they received prohibited donations.
By excluding activities from the legislation’s definition of corruption in which public officials act in ignorance of fraud or deception by others, the High Court rendered Credo, Spicer and Jasper beyond ICAC’s power.
Turning Margaret Cunneen into a saint is one thing, but the upshot of her mission to close down ICAC’s investigation into the allegation she perverted the course of justice, is having horrible consequences.
Frauds against the state, perpetrated behind the backs of public officials, can proceed – at least for now – full-stead ahead, unhindered by ICAC.
ICAC’s effectiveness has been due in large part to the strategy that it doesn’t commence an investigation unless it pretty well knows in advance where it will end up.
This suggests that it had more in its locker than revealed by the bald statement it issued about Operation Hale on October 30 last year.
An allegation that a crown prosecutor has attempted to pervert the course of justice is not a trivial matter and on the pre-High Court understanding of its jurisdiction would have been well within ICAC’s brief.
The High Court may have made ICAC’s investigation in Cunneen go away, but the allegation remains.
Aspects of Cunneen’s explanations on the record raise more questions. The central allegation was that she counselled her son’s girlfriend, Sophia Tilley, to fake chest pains at the scene of a car accident to prevent the police determining her blood alcohol level.
In a soft ball interview with Ray Hadley on 2GB, two days after the High Court decision, she said that the “fundamental fact” of the case was that following the car crash Tilley was blood tested at Royal North Shore Hospital and returned results of “zero, zero, zero”.
She brushed away any suggestion that she could have been caught on the phone advising Tilley to fake chest pains. Instead, she says she got into the back of the ambulance where she asked the stricken lass whether her parents should be informed about the accident.
“I never spoke on the phone about this matter on that night at all, because Stephen [her son and Tilley’s boyfriend] rang his father about the accident and his father told me.”
That does not rule out that someone spoke telephonically, at some other point, about what happened.
Within days of the High Court judgment Kate McClymont in The Sydney Morning Herald revealed that a multi-agency task force investigating organised crime “formed the basis for ICAC’s ill-fated investigation into senior crown prosecutor Margaret Cunneen”.
One of the targets of the taskforce’s investigation was gambling identity Steve Fletcher, at one time a close personal friend of Cunneen’s and an employer of her son Stephen.
Information from those intercepts was passed onto ICAC. Cunneen said that the newspaper was trying “to give me another go on the ducking stool they used to use for witches”.
Late last year Cunneen claimed that her “malevent [sic] long-estranged sister”, Carol, took the “bare bones of the terrible crash that my father told her about” and dobbed her in.
Carol was not slow getting out of the blocks and denied any such thing.
“It was not me who was the complainant to ICAC. I knew nothing of the accident until I read of it in the press. She never asked me if I was responsible and I vehemently deny it.”
There was no follow-up explanation from Margaret Cunneen about this contradiction.
Then we have her claim that she scarcely knew the controversial Steve Fletcher, who had been banned from racetracks for receiving information from a jockey (since overturned on appeal).
“I am very careful never to break any laws or to be with people who do. I take that very, very seriously. Over the past 35 years I’ve made it my practice never to associate with people who are shady or dodgy.”
At the time Cunneen was denying a close association with Fletcher, the gambling man said he was great friends with the prosecutor and had seen her the previous day when she dropped her son off for work at his office.
Her association with infamous former copper Roger Rogerson, now facing a murder charge, must have been an exception to her no-dodgy-friends rule. She attended Rogerson’s book launch because she believed “in the power of redemption”.
There are more than a few loose edges in her various explanations.
Next week, ICAC commissioner Megan Latham, who has been on holiday in Japan, will meet with Mike Baird. The premier says he’s in a receptive mood.