Complaints against the NSW corruption watchdog dismissed … Magistrate made an elementary mistake about exculpatory evidence … ICAC is not a court, it is part of the executive government … Findings of corruption still stick despite bonkers beat-ups from News Corp hacks … Nick Bonyhady reports
With even ICAC Commissioner Peter Hall QC concerned that some in the media see his organisation as a “cowboy outfit”, exercising enormous powers irresponsibly, it is worth considering how ICAC is really faring.
One of McClintock’s recent decisions, concerning a complaint by former State Emergency Service Commissioner Murray Kear that ICAC had improperly in finding him to be corrupt, rebounded against the ex-SES boss, despite Kear being found not guilty of criminal charges by a magistrate in 2016.
Kear had submitted that ICAC had not put exculpatory evidence before the DPP, which would have convinced the DPP not to press criminal charges.
However, McClintock found:
“The evidence in question was not exculpatory of Kear but the contrary …
I regret to say that the learned magistrate does not seem to have understood this relatively obvious point. If he had, I doubt whether he would have acquitted Kear.”
McClintock stressed that he is not empowered to conduct a merits review of ICAC’s decisions, much less make findings about the guilt or innocence of anyone.
In a 2014 operation, ICAC found that Kear had engaged in corrupt conduct by not properly investigating serious misconduct claims by deputy commissioner Tara McCarthy, against another deputy commissioner Steven Pearce, a “mate” of the commissioner.
ICAC also found that Kear had fired McCarthy substantially for making the complaint.
Magistrate Greg Grogin found Kear not guilty of criminal charges in part on the basis that he had fired McCarthy because her relationship with Pearce had become “toxic”. In a widely reported judgment, Grogin awarded costs against the DPP and criticised ICAC. The decision was not appealed.
However, on McClintock’s analysis the relationship breakdown was caused by McCarthy’s belief that Pearce was corrupt and being protected by her boss.
“The team on which she was being asked to play was one where the captain was prepared to cover up serious wrongdoing on the part of her co-captain because of the friendship between them, so [McCarthy] was entitled to conclude.”
Magistrate Grogin’s decision had appeared to grant Kear a measure of rehabilitation. In 2016, Kear moved to the small town of Temora in the Riverina and took up a position running the local aviation museum. The Temora Independent ran an article on his appointment which included a line that he had been “found innocent of corruption” by Grogin.
ICAC responded with a letter to the editor noting that while Grogin had been found not guilty of criminal corruption, ICAC’s findings still stood. In her Daily Telegraph column, Miranda Divine called ICAC a “sinister disgrace” for sending the “vindictive letter”.
McClintock was not convinced.
“I suppose that some people might see ICAC’s decision to write such a letter as vindictive”, he wrote, but noted that its contents were “strictly accurate”.
“It is difficult to criticise the commission for exercising a right that is available to any citizen, that is, to write a letter to the Editor, provided it was accurate.”
Rounding out Kear’s complaints, McClintock found that even if the “exculpatory” evidence that Kear had wanted to call had not been self-defeating, it would not have helped him because he had admitted firing McCarthy for improper reasons in testimony.
“To be blunt, if he agreed that he sacked her in reprisal, what did it matter that other people said he had not? He was the only person in a position to know.”
Kear maintains that his words were misinterpreted and that he did not admit to firing McCarthy for improper reasons.
Finally, McClintock found that although Pearce had been found not to be corrupt by ICAC, Kear’s characterisation of Pearce’s actions as a mere “breach of ‘some NSW govt guidelines’,” was an understatement.
Pearce had been found by a NSW Public Service Commission to have engaged in “maladministration” and “misconduct”. McClintock said:
“I have difficulty seeing how there could be a satisfactory explanation for spending public monies on surf board racks and electric brakes for his trailer.”
In that context, McClintock held that the evidence of Kear’s failure to properly investigate Pearce made “a finding [of corrupt conduct] inevitable”.
ICAC found that businessmen Richard Poole and John McGuigan engaged in corrupt conduct. They had sought to hide from the NSW government “the Obeid family involvement in the Mount Penny tenement” in which their company, Cascade Coal, had invested.
McGuigan, a former global chairman of Baker & McKenzie and boss of Krispy Kreme in Australia, and his associate Poole, complained that ICAC had acted improperly by working with the NSW government on legislation to terminate Cascade’s Mount Penny tenement.
According to McClintock, this complaint was based on a fundamental misunderstanding of ICAC’s role. McClintock stressed that ICAC is not a court and its commissioner does not have a duty to avoid working with the executive branch (of which ICAC is part).
“Probably the best analogy of that”, he told ICAC’s parliamentary oversight committee, “is if you think about the FBI. Imagine an FBI with a specialist job of investigating corruption … and then the FBI went along with the President and said, ‘We have just found out that Senator X has been engaging in a bit of corruption’. Would there be something wrong with that? Of course not. It is the same situation.”
McClintock also dismissed another complaint by Poole and McGuigan that former ICAC Commissioner David Ipp QC saw ICAC’s role as destroying the reputations of people he believed to be corrupt.
After stepping down as commissioner in 2014, Ipp gave an interview to Sydney Morning Herald reporter Michaela Whitbourn. In it, Ipp said he was disturbed by calls to have ICAC hold its hearings in private. He described public exposure as one of ICAC’s “most important weapons”.
“The whole raison d’etre of ICAC is the exposure of corruption … the idea of exposing corruption behind closed doors is oxymoronic.”
Ipp’s words did not support Poole and McGuigan’s contention, McClintock found in a curt dismissal.
The only aspect of Poole and McGuigan’s complaint that McClintock left unresolved relates to Gardner Brook, an ICAC witness in Operation Jasper who suffered mental health issues at the time. “I am presently considering whether to commence an investigation under my own initiative” on the Brook issue, McClintock wrote.
McClintock’s other determinations have been less dramatic. He told the parliamentary committee in June that “a whole series of complaints” have been “vexatious” because they focussed on institutions like the Commonwealth government over which ICAC has no jurisdiction.
In findings that run contrary to the crusades of Chris (The Tamil) Merritt at The Australian, the anti-corruption body has been given a clean bill of health.