Leaks, Latham and Levine … NSW parliamentary committee on ICAC gets to work … Transcript released … Putting “free kicks and butterflies” in context … Questions that ICAC need not answer … Frisson on display … Alex Mitchell ringside
AT last the transcript has been released of the most recent spiky session in which the NSW parliamentary joint committee that oversights ICAC came to grips with Inspector Dave Levine and Hon Megan Latham.
And what a fun time the ICAC inspector and commissioner had with the pollies in the wake of the High Court’s shakedown of the corruption fighter’s powers.
Inspector Levine was first up and told the assortment of Liberal, Labor and others from Cockies Corner in the upper and lower houses that he didn’t want to make an opening statement and didn’t want to share his preliminary views with them about his investigation into the way the Cunneen case had been handled by ICAC.
When pressed about alleged leaks from ICAC Levine said he wasn’t fussed about them:
“Realistically, Mr Chairman and members of the committee, the issue of leaks is intractable and at times risible, and is evidence in my mind – for me – of a blood feud between News Limited and Fairfax Media Limited.
It is a futile task for me to embark upon trying to deal with any allegations by one side or another which has been publicly made or by any one individual to determine whether there has been a leak and, if so, by whom and to whom and of what. It is futile.”
When chairman Damian Tudehope MP, a devoted Christian with nine children, pointed out that ICAC leaks carried serious criminal penalties, Levine remained unmoved:
“I am not prepared to undertake it. It would be a waste of time for me to constitute myself as a quasi royal commission and invite journalists to come along and ask them, ‘Where did you get it?’ I know what the response would be. Or to invite members of commission staff or officers of the commission to say, ‘Did you give X to Y?’
I think allegations of leaks is a fact of bureaucratic and political life in this state. From my own professional experience over the past 40-odd years, I have some acquaintance with what I have been calling the futility of trying to chase that hare.”
The inspector said he saw his role as keeping watch on the commission’s sense of proportion, citing as an example the nine or so MPs who had to move to the cross-benchers after ICAC had a go at them:
“That was big-time stuff. Then out of left field comes the motor vehicle accident [Cunneen]. That is the context of bearing a sense of proportion that I am talking about.”
Levine said he needs the advice of counsel and to resolve issues over his access to telephone intercepts before he can complete his audit of the Cunneen case (Operation Hale).
He added that if he was to exercise his functions and powers to the fullest extent possible he would “really almost have to be a mirror image of ICAC itself or piggy-back or be there every day, looking over their shoulders at everything.
“That is totally unrealistic and it is a course I would reject.”
“They are not for me to investigate. That is for the inspector to investigate because a leak from an officer of the commission constitutes misconduct under the Act and that is within the inspector’s jurisdiction.”
Latham’s 40-minute opening statement was not met with universal enthusiasm. Tudehope, some of whose right wing Liberal colleagues have been pitched forked out of politics owing to ICAC probes said:
“Can I put on the record, commissioner, that a lot of the material you have addressed is contained in your report and you can assume that the members of this committee have read your report. To the extent that you felt it necessary to re-read parts of your report to us, you probably underestimate the ability of the committee members to have read that report …”
Latham was quizzed about her remarks at a February 2014 bar workshop on cross-examination, when she was still a Supreme Court judge and before she was appointed to ICAC, where she said:
“If any of you get tired of adversarial litigation, inquisitorial litigation is fantastic. You are not confined by the rules of evidence; you have a free kick. You can go anywhere you want to go and it is a lot of fun.”
She added that the role of counsel assisting was akin to, “pulling the wings of butterflies”.
It was all a matter of context, she explained to the MPs – a talk to a room of reasonably young advocates where she told them that if they wished to experience something other than adversarial litigation, “then inquisitorial processes offered an alternative experience”.
“The free kick is simply a reference to the fact that you are not constrained by rules of evidence and you are not constrained by the issues in dispute.”
Trevor Khan MLC, from the Nats, and a former country solicitor, was becoming increasingly toey:
“Commissioner, tell me again how you perceive the role of counsel assisting as being akin to a person pulling the wings off butterflies.”
Moments later Khan wanted answers about former ICAC counsel assisting, Geoffrey Watson SC:
“Do you think you could be discomforted at the very least if reports are in the paper … that Mr Geoffrey Watson is attending social functions with journalists?
Another National Party MP, Adam Marshall, who took over the Northern Tablelands seat from disgraced MP Richard Torbay, was also hot under the collar about alleged leaks.
He wanted to know why The Sydney Morning Herald had a story about former Liberal minister Chris Hartcher being the subject of two ICAC inquiries, two months before the inquiries were announced by the commission. Latham came straight to the point:
“I cannot give you an answer.”
Labor MP Ron Hoenig threw in his two bobs worth, observing that members of parliament gave ICAC wide statutory, inquisitorial powers and are now complaining when the commission uses them.
There were sparky exchanges over ICAC’s media release of May 27 this year. That was the announcement that ICAC had referred aspects of the Cunneen case to the DPP, with a view to possible charges of perverting the course of justice and giving false evidence.
Latham told the committee that the press release involved an operational matter and was outside the politicians’ inquiry remit. See, s.64(2) ICAC Act.
Chairman Tudehope said he disagreed with the proposition that the press release was an “operational matter”.
Was Latham aware at the time the media release that Cunneen was about to appear as the prosecutor in a murder trial and that this resulted in her withdrawing from the trial?
The MPs then wanted to know whether the commissioner felt she was conflicted in pursuing the Cunneen inquiry, because she had been a colleague of the senior crown prosecutor and a prosecutor herself.
Did this relationship “occur to her” when the Cunneen investigation arose?