Appointment of new ICAC commissioners in NSW … Widely regarded Supreme Court nominee overlooked as chief commissioner in favour of an undistinguished District Court judge … Interviewed after the decision about the successful candidate had already been made … Appointment process riddled with oddities 

Last month we ran this story about the new commissioner appointments and questioned Hatzistergos suitability for the job, given his expressed inclination against holding corruption investigations in public. 

For all the world, the government has found someone who won’t push ICAC too far. Hatzistergos, a former Labor attorney general, prefers a change of direction “to achieve a better balance … and a more effective overall outcome” – whatever that means. 

The two other nominated ICAC commissioners are Helen Murrell the former chief justice of the ACT Supreme Court, and the Hungarian locksmith Paul Lakatos, also from the District Court. 

The nominations panel comprised people that hold significant government appointments – former chief justice Tom Bathurst, former Federal Court judge Annabelle Bennett and two senior public servants – the head of the Department of Premier and Cabinet and the head of the department of Communities and Justice. 

The former president of the Law Society, Juliana Warner, was also a member of the panel. 

Hatzistergos, Murrell and the Locksmith probably nominated themselves. Yet, it is known that a Supreme Court judge (name withheld), widely regarded as a superior candidate for the chief commissioner’s job, was interviewed but not selected. 

The timing is curious. The Supreme Court judge was interviewed on June 7, one day before legislation amending the ICAC Act came into parliament. 

The amendments extended a provision that related to people appointed as commissioners from the Supreme Court, so it could also apply to judges appointed from the District Court – namely that their judicial position will revive immediately after they cease to hold office at ICAC and that the continuity of their pensions is unaffected. 

The amendments to the legislation were drafted before the Supreme Court judge had his ICAC interview, which suggests that the amending legislation about entitlement to resume office at the District Court was prompted by the knowledge that Hatzistergos was the likely pea for chief commissioner and maybe the Locksmith for assistant commissioner. 

The Bill was prepared on the cusp of the interviewing process getting underway, with the amendments introduced into parliament even before the Supreme Court judge’s referees were spoken to. 

The Bill passed on June 23, one day after the proposed appointments were announced. 

Attorney General Mark Speakman in his second reading speech on June 8 made some rosy noises about District Court judges: 

“Senior members of the bar and highly experienced legal practitioners are frequently appointed to the District Court. Judges of the District Court have varied expertise and experience that would be of benefit to the ICAC and the LECC [Law Enforcement Conduct Commission] in performing their statutory functions.” 

Hatzistergos has had eight years as a judge of the District Court. He had not been considered for promotion to the Supreme Court while Bathurst was CJ, yet it appears that the former chief justice preferred him over a well-regarded former colleague from his own court. 

The time period for objections to these appointments by the joint parliamentary committee on ICAC has passed, so presumably they can now take up their new jobs. 

Like other top-end government jobs in NSW the process has the appearance of a sham. 

We’ve approached the attorney general for comment. 

At least Mark Latham, One Notion member of of the Legislative Council, is not impressed: 

— Real Mark Latham (@RealMarkLatham) June 24, 2022

Justinian put to the AG details of the Supreme Court judge’s application and the timing of the legislation and the interviews. We asked about the amending legislation and whether it was promped in advance by knowledge that District Court judges would be prospective commissioners. 

This is the reply from a spokesperson from the Department of Premier and Cabinet: 

Advertisements for the roles of Chief Commissioner and Commissioner of the ICAC were published in print and online media during the week commencing 18 April 2022. Applications for the roles closed on 15 May 2022. 

During the recruitment process for the roles, inconsistencies in certain provisions as they applied to Supreme Court and District Court judges were identified.

The purpose of the ICAC and LECC Legislation Amendment Act 2022 (Act) was to address those discrepancies and ensure that the relevant statutory provisions applied consistently to judges of both courts.

If such a change were not made, meritorious applicants may have been discouraged from accepting an appointment. This is of particular significance in circumstances where the holder of a judicial office is required to resign prior to being appointed as a Commissioner of the ICAC.

The recruitment process for the Chief Commissioner and Commissioners was led by a nominations panel consisting of the immediate past chief justice of New South Wales, the Hon. Thomas Bathurst, AC, QC; retired Federal Court of Australia judge the Hon. Dr Annabelle Bennett, AC, SC; the immediate past president of the Law Society of NSW, Ms Juliana Warner; the Secretary of the Department of Premier and Cabinet, Mr Michael Coutts‑Trotter; and the Secretary of the Department of Communities and Justice, Mr Michael Tidball, who considered applications and made recommendations to the Government on candidates suitable for appointment.