Last Friday, 1 October 2021, Gladys Berejiklian resigned as Premier of NSW and as the MP for Willoughby following news that the NSW Independent Commission Against Corruption (ICAC) will hold an investigation into amongst other things, whether she engaged in conduct that constituted or involved a breach of public trust.
The public reaction to her resignation has been strong and has prompted a backlash against the NSW ICAC. Voices of Wentworth spoke to His Honour Anthony Whealy QC, Chair of the Centre for Public Integrity and former judge of the NSW Supreme Court of NSW Court of Appeal and former NSW ICAC Commissioner for clarification about what has happened and what this event means for calls for a Federal ICAC.
In summary,
NSW ICAC Process
Last year the NSW ICAC had 2,495 complaints lodged with it each of which has to be scrutinised and subjected to a preliminary investigation.
Of all of those complaints, only 9 matters were assessed as requiring further and full investigation last year.
This led to 30 private compulsory hearings and then just 3 public hearings
So behind the decision to hold a public hearing, there is a massive amount of work and process in determining whether the matter should be fully investigated
Even at that point, there are very stringent public interest tests imposed by the legislation to determine whether it is in the public interest to hold a public hearing including consideration of the nature of the alleged conduct, the magnitude of the possible corrupt conduct, the impact it would have on public confidence and the damage to reputation that might be unfairly caused by holding a public hearing
Timing of the Announcement
The investigation surrounding Daryl McGuire has been going on for nearly two years now and it’s well known that interviews have been going on
The pandemic has meant that ICAC has not been able to hold any public hearing
It is likely that the ICAC’s internal investigations have now completed and all private hearings have taken place so that ICAC is now satisfied that there are some questions that the Premier has to answer.
Her position as Premier of NSW meant that the hearing would need to be held in public.
“I know of no reason to suggest other than that ICAC has done this at the first available opportunity once their investigation has completed and I think that’s the correct thing for them to do.” His Honour Anthony Whealy QC Ms Berejiklian’s resignation
Whilst it was appropriate for Ms Berejiklian to step aside, (because that’s the standard she herself set for other parliamentarians) there was no requirement through the ICAC’s processes or her to resign.
“If there is anyone who could survive this inquiry without having to resign, it was Gladys.” His Honour Anthony Whealy QC Supervision of the ICAC
The activities of ICAC are strictly supervised by an inspector of ICAC appointed by the government of the day - the current inspector of ICAC is Bruce McClintock QC
The inspector’s job is to scrutinise every activity of ICAC and also to receive any complaints and to investigate those, write a public report and to appear before parliament
There is also a multi-party parliamentary committee and its job is to supervise
ICAC’s decisions are also subject to Administrative Law Appeals that can be brought to the Supreme Court.
Federal ICAC
Any justifiable criticisms of the NSW ICAC demonstrated either by a report from the inspector or some other proper form of oversight should be taken into account in the model for a Federal ICAC.
In creating a Federal model we should learn lessons from other ICACs around Australia, to improve without impairing the effectiveness of the proposed anti-corruption body.
“We all agree that we don’t want to see reputations damaged unfairly, we don’t want to see politicians hounded for political reasons, we don’t want to see any unfairness in the process but we do want to uncover corruption.” His Honour Anthony Whealy QC
Voices of Wentworth extends our great thanks to Anthony Whealy for his generosity of time and insights.