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ICAC needs to clean up its dirty deeds

The most extraordinary thing about corruption in NSW is that some of the worst incidents have taken place inside the agency that is supposed to be that state’s chief corruption buster. It’s as if Eliot Ness had gone rogue.

Case 1: Officers of the Independent Commission Against Corruption withheld exculpatory evidence from the Director of Public Prosecutions and came close to sending Murray Kear — an innocent man — to prison. That happened in 2016 and Kear, a former NSW emergency services commissioner, is still waiting for some answers.

Two judgments by Magistrate Greg Grogin that point to the problem have been on the record since March 16 and May 25 of that year.

Case 2: At least one crook inside ICAC knew that Paul Gardner Brook, the star witness at a coal inquiry known as Operation Jasper, was suffering from brain damage and amnesia when he gave evidence. Yet the cognitive impairment of this unfortunate man was kept secret before, during and after his evidence. This misled parliament into enacting laws based on a 2013 report from that inquiry that praises his evidence and makes no mention of his mental health.

These documents on the public record lead to the unavoidable conclusion that ICAC officers, whose identities are unknown, were responsible for misleading parliament, the Director of Public Prosecutions and the Local Court.

Also unavoidable is the conclusion that these corrupt ICAC officers are more dangerous than most of the public servants who have been hauled before this commission for feathering their nests at taxpayers’ expense.

The most charitable view of the misconduct in the Kear case and the suppression of the truth about Gardner Brook is that it was aimed at making ICAC look good with reckless disregard for the harm inflicted on others.

So who was responsible? Nobody knows and it looks like the authorities in NSW are reluctant to find out. With few exceptions, the entire political class in that state seems cowed by ICAC’s past mastery at “managing” the media.

Because ICAC’s findings are not subject to merits review, the courts can rarely help. So unless more politicians grow a backbone the corrupt officers inside this government agency will remain untouchable — a lasting reminder about the danger of vesting any arm of the executive with little accountability and almost unfettered power.

Keep this in mind the next time NSW Premier Gladys Berejiklian or any politician from that state purports to have “zero tolerance for corruption”. Their inaction in the face of clear evidence of misconduct tells a different story.

In the interests of fairness, it needs to be emphasised that both these incidents took place years before chief commissioner Peter Hall and his other commissioners took charge of ICAC last year. The Jasper inquiry, which featured Gardner Brook, started on November 12, 2012.

Hall and his fellow commissioners, Patricia McDonald SC and Stephen Rushton SC, have been a breath of fresh air — just like Reg Blanch, who had been acting commissioner before Hall took over in August.

The truth about Gardner Brook would still be suppressed but for the fact that the new team gave the DPP a medical report in March that had been hidden inside the commission. They have also issued guidelines to staff on procedural fairness and the disclosure of exculpatory evidence.

When Hall and the others disclosed the medical report they would have known what it meant: if revealed during the Jasper inquiry, it would have destroyed Gardner Brook’s credibility and made ICAC a laughing stock.

If disclosed after the Jasper report went to parliament, it would have shattered parliament’s trust in a report that had called for the cancellation of coal exploration licences that had been issued by the previous Labor government.

The medical report, signed by a psychologist and a psychiatrist, is dated November 3, 2012, just nine days before Jasper’s public hearings.

The fact that it remained a secret for more than five years gives rise to a series of questions that need to be answered — either by ICAC or an independent judicial inquiry, preferably run by an interstate judicial officer.

Hall’s ICAC has provided an official “no comment” when presented with those questions. So here are the matters that should form the starting point for a judicial inquiry:

1) When was the report on Gardner Brook received by ICAC?

2) Who received it?

3) Who was aware of its existence?

4) Why was it not disclosed at the Jasper inquiry?

5) Why were its contents not mentioned in the Jasper report that went to parliament?

6) Why was it not disclosed during the discovery process in the (2016) civil case against ICAC that had been run by the Obeid family and which related to the credibility of Gardner Brook?

7) When — and how — did the current management of ICAC become aware of the existence of the medical report on Gardner Brook?

8) If it is not possible to provide answers, could you say if the commission has launched an internal inquiry into these matters?

Wylie on the move

In a recent move, Ian Wylie has been appointed special counsel in the Sydney office of William Roberts Lawyers. Before moving to William Roberts, Wylie was with Thomson Reuters and in that capacity he features in today’s edition of The Australian Legal Review.

Chris Merritt

Legal Affairs Editor

The Australian

(WTF) used with permission

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