Damage control: does the corruption watchdog go too far?

In disclosing she had been in “a close personal relationship” with former MP Darryl Maguire, whom ICAC is currently examining for whether he misused his parliamentary position for personal gain, NSW Premier Gladys Berejiklian joined a prolific list: those who begin their evidence to the Commission with watertight job security yet leave fearing everything is about to crumble underneath them.

Some of ICAC’s most high-profile investigations – such as those involving current or former ministers – have attracted scores of observers eager for a public gallery seat to watch the witness-box squirming and mortification up close.

Forget the Sydney Theatre Company: ICAC knows how to deliver a must-see performance.

Across both the major political parties, the status of the scalps is high. In 2014, then-NSW Premier Barry O’Farrell resigned on the same day he gave evidence to an inquiry about a bottle of Grange he had received from Liberal fundraiser Nick Di Girolamo.

Former Labor Ministers Eddie Obeid and Ian Macdonal are currently before the NSW Supreme Court for a judge-alone trial, alleging they conspired about a coal licence for the Obeid family farm, Cherrydale Park near Mudgee, when Macdonald was resources minister. The pair have pleaded not guilty to charges of misconduct in public office.

Berejiklian is not under investigation by ICAC for wrongdoing, but the dramatic flourishes available to the Commission – frequently unveiled with a finessed “play the tape” phone intercept reveal – often subject its high-profile witnesses to trial-level scrutiny.

And for those who are investigated and adversely identified in findings, such as having a corrupt finding made against them, the consequences can be life-altering and particularly bitter to swallow if the matter never sees a day in court or the prosecution is unsuccessful.

A NSW Parliamentary Committee is currently considering the reputational impact on an individual being adversely named in ICAC investigations. In announcing the inquiry in May, the Government said in a statement: “we will examine the adequacy of current safeguards and remedies to protect individuals from impacts to their reputation from being adversely named in an ICAC investigation”.

“The Committee will also consider whether an exoneration protocol [where a record would be expunged if the person was found corrupt by ICAC but acquitted of a criminal prosecution] is needed,” the statement said.

In 2014, former Police Minister Mike Gallacher resigned after ICAC heard allegations he helped to disguise donations to the Liberal Party by property developers, which evaded electoral funding laws. Gallacher consistently denied wrongdoing and said publicly that serial killer Ivan Milat had received a fairer process in being able to respond to allegations against him in a timely manner. It took until 2019 before Gallacher was publicly absolved of any corrupt conduct. His political career and reputation had been left in tatters.

“There are serious shortcomings in ICAC’s approach to providing subsequent information about those who have been adversely named in its investigations,” MP and Speaker in the NSW Legislative Assembly Jonathon O’Dea told the committee.

“I recommend that a positive obligation on ICAC be introduced whereby ICAC must make clarifying statements on their website at regular intervals as to the latest status of any person who is adversely named by ICAC investigations.”

In its submission to the inquiry, the Law Society of NSW argued the current laws and procedures strike the right balance between the watchdog fulfilling its duties objectively and managing the risk to the reputations of witnesses. It did not support the exoneration protocol.

“We acknowledge that the ICAC has broad powers, given that ‘corruption is by its nature secretive and difficult to elicit’. It is a crime of the powerful. It is a consensual crime, with no obvious victim willing to complain,” the Society’s submission said.

“While there may be instances where corrections of the record would be appropriate, the Law Society does not support a presumption that anyone found corrupt by ICAC (or through another civil forum) has the right to exoneration if a criminal prosecution is not successful.

“There is merit in considering a mechanism to enable public acknowledgement where a person has suffered significant reputational damage due to an ICAC investigation, in circumstances where criminal proceedings are never instituted. Current procedural fairness measures should continue to be afforded to witnesses involved in the ICAC’s investigations.”

In the ICAC’s own submission to the parliamentary committee, it argued “no additional safeguards and remedies are needed”.

“It is not necessary to develop a specific exoneration protocol to deal with reputational impact,” the submission said.

“Not every investigation will produce findings of corrupt conduct or even adverse factual findings. The purpose of an investigation is to determine the truth or otherwise of the allegations under investigation.

“Under the ICAC Act, the risk of undue prejudice to a person’s reputation is one of the factors the Commission must take into account in determining whether to conduct a public inquiry. It is not the sole consideration and must be balanced with other public interest considerations.

“In some cases, the Commission may also conduct a public inquiry where the evidence indicates there is no likelihood of corruption but that it considers it is in the public interest to “clear the air” of unfounded allegations that are in the public domain.

“It is the Commission’s contention that current safeguards and remedies referred to above are appropriate and adequate to protect reputations from unwarranted adverse impact. In these circumstances, no additional safeguards or remedies are required.”

Former DPP and current President of the NSW Council of Civil Liberties Nicholas Cowdery wrote in a personal submission: “In criminal proceedings and ICAC proceedings reputations are necessarily and justifiably harmed when misconduct is exposed.

“The central issue is the nature of the measures that may be able to be put in place to help avoid unwarranted adverse naming and harm mitigation measures that may help repair reputation where the adverse naming later turns out to have been unwarranted.”

The Committee will publish its report next year. But as the NSW Premier stares down calls to resign over the “personal stuff-up” relationship revelation, it is likely Federal MPs – amid public urging to introduce a federal corruption watchdog – will be watching this space.