Sydney silk says articles in The Australian about ICAC reflect adversely on him … Complaint to Australian Press Council … Incorrect assertions … Failure to check … Bias … Puzzling claims that findings of corrupt conduct have been overturned … “Exoneration” that doesn’t exist … Zealotry 

The articles were both published on October 25, 2019: 

Watson ‘crossed line’ at ICAC; and
Overhaul needed to weed out zealotry before it takes root. 

The articles reported and commented on a session with ICAC Inspector Bruce McClintock SC and the NSW joint parliamentary committee on the Independent Commission Against Corruption. 

Merritt wrote: 

“Former NSW police minister Mike Gallacher was forced from office after counsel assisting at the Independent Commission Against Corruption, Geoffrey Watson SC, made accusations of corruption that have now been found to be unwarranted. 

This assessment of Mr Watson’s conduct, from ICAC’s independent inspector Bruce McClintock SC, has triggered moves to help Mr Gallacher clear his name.” 

The second article about weeding out zealotry urged readers not to forget former emergency services commissioner Murray Kear and businessmen Charif Kazal and John McGuigan – “all were wrongly accused”. 

“ICAC’s allegations against Kazal were thrown out by the DPP. Like McGuigan and his associates, Kear was exonerated in court.” 

Watson complains to the APC that the articles are published without Merritt contacting him for comment; they contain numerous serious errors; that Merritt is a biased journalist, who has written a series of articles that contain falsehoods and unnecessary personal abuse. 

The Gallacher story arose from ICAC’s Operation Spicer, an investigation into misconduct by the Liberal Party in the 2011 election campaign, involving breaches of the election funding laws. 

Operation Spicer found that Gallacher and four others were “party to an arrangement” to hide payments by interests associated with Newcastle businessman Nathan Tinkler to the Liberal Party. Gallacher “acted with the intention of evading laws under the Election Funding, Expenditure and Disclosures Act relating to the disclosure of political donations and the ban on donations from property developers”. 

Apart from breaching the disclosure requirements, there were three other instances where Gallacher either sought, or entered into arrangements to seek, illegal donations to the Liberal Party. 

There was also a finding that the former police minister was not always a truthful witness and little reliance could be placed on his evidence. 

When the evidence of Gallacher’s involvement in the funding illegalities came to light at ICAC, the minister resigned. The premier, Mike Baird, said that “ICAC is doing its job”. 

The Australian and The Telegraph have long been champions of Gallacher and keep insisting, contrary to the commission’s undisturbed findings, that he has been done nothing wrong. 

As a result of the High Court reinterpretation of the meaning of “corrupt conduct” in the Cunneen case, counsel assisting Watson submitted to ICAC that conduct that relies on breaches of the electoral funding laws is “not capable of constituting corrupt conduct for the purposes of the ICAC Act”. 

Consequently, while there were findings of fact in relation to Gallacher’s intention to evade the election funding laws, there was no finding of corruption against him. 

Merritt’s article suggested that Watson was in breach of bar rules by putting a proposition to a witness from a property development company when there was no evidence to support the proposition. 

In fact, ICAC found that this witness Darren Williams, from Nathan Tinkler’s Buildev, had arranged with Gallacher to disguise payments to the Liberal Party, which in reality were political donations. 

Watson explains to the Press Council that he could have told Merritt, had he been contacted by the reporter, that a committee of the NSW bar found he had not breached the bar’s rules or ethics. 

In any event, McClintock who has expressed sympathy for Gallacher, says he has “unresolved concerns about Mr Watson’s conduct in asking the impugned question”.

The Tamil has a habit of peddling imprecisions and blurring the edges when exercising his unhealthy obsession about ICAC. As a result, his readers are liable to be confused.

The story of John McGuigan is an example of this. Merritt that McGuigan was “wrongly accused” by ICAC and was “exonerated in court”. Watson, in his complaint to the Press Council, said this is untrue. 

Operation Jasper was an investigation into alleged corrupt conduct involving coal deposits at Mt Penny in the Bylong Valley of NSW. 

McGuigan, who had been the global head of Baker & McKenzie, was a director of Cascade Coal, which acquired an exploration licence in an area of land owned by the Obeids. Cascade agreed to sell its shares to White Energy, a public company in which McGuigan was also a director and where he stood to make tens of millions of dollars with this transaction. 

An independent board committee at White Energy, comprising Graham McCubbin, was to scrutinise the proposed share sale, however ICAC found that McGuigan and others had failed to disclose to him the Obeid family involvement. 

McGuigan was furious that the independent director was asking questions about the Obeids’ involvement and was heard in a phone intercept saying to another Cascade director: 

“This prick McCubbin … he’s going to have his nuts on the fucking quarter-mast.” 

ICAC found McGuigan and other directors, including Travers Duncan and John Atkinson had deceived public officials and that this amounted to corrupt conduct. McGuigan and his fellow directors made multiple court challenges to the findings, all unsuccessful. 

The ACCC later took cartel proceedings against Cascade over an expression of interest conducted by the NSW Department of Primary Industries for exploration of the Mt Penny and Glendon Brook areas. 

Cascade and other companies entered into an informal agreement which saw one of the companies withdraw from the EOI process. As part of the agreement an Obeid related company was quietly to receive a 25 percent interesting the coal release area. 

The ACCC was unsuccessful in the Federal Court proceedings and Merritt somehow elided this into claiming it amounted to McGuigan’s exoneration from ICAC’s corruption findings. 

The ACCC’s proceedings were not a recommendation of ICAC and it made no findings on anti-competitive conduct on the part of McGuigan and his associates. 

None of ICAC’s findings related to the ACCC’s case in the Federal Court and the cartel conduct allegation had no bearing on whether McGuigan and his colleagues concealed the involvement of the Obeids in the Mt Penny transaction. 

Nonetheless, Merritt suggested the Federal Court has exonerated McGuigan from the corruption findings. 

Similarly, Watson submitted to the Press Council it was incorrect for Merritt to claim that former commissioner of the State Emergency Service, Murray Kear, and businessman Charif Kazal were “wrongly accused and exonerated”. 

Kear’s acquittal on a criminal charge, he said, provides no basis for concluding that ICAC was wrong in finding that the former emergency services commissioner had engaged in corrupt conduct. 

The criminal findings “did not overlap” with the conduct that ICAC said was corrupt, they were based on a different standard of proof, different evidence and did not have the effect of overturning ICAC’s findings. 

Similarly, the corrupt conduct findings against Mr Kazal have been upheld in the courts. He has not been exonerated and ICAC’s findings against him still stand. 

This complaint about Merritt will be quite something for the print media’s Watch Poodle to chew on. 

For more see : 

Behind the plot to kill ICAC (AFR) 
Nuts on the quarter-mast (Justinian) 
Cascade Coal – vindication for ICAC (Justinian) 
Inspector McClintock gives ICAC a clean bill of health (Justinian)