Mike Baird should abolish the ICAC

Bookmark and Share Legal Rights Project | Simon Breheny
The Australian 22nd April, 2015

The NSW Independent Commission Against Corruption is Australia's biggest kangaroo court. It is adept at taking down political figures who fail to declare bottles of wine on the pecuniary interests register. But it is comparatively incompetent at uncovering cases of serious corruption. This is despite the fact ICAC is given coercive powers and routinely flouts the rule of law.

ICAC should be abolished.

This week, ICAC released a statement in response to the decision handed down by the High Court of Australia. The case hadn't gone ICAC's way and it lashed out at the highest court in the land, demanding retrospective laws to effectively reverse the court's decision.

The crux of the decision was an interpretation of section 8 of the Independent Commission Against Corruption Act 1988, which defines corrupt conduct. The provision is couched in broad terms and includes a lengthy list of matters that the corrupt conduct could "involve".

Deputy Crown Prosecutor Margaret Cunneen was investigated by ICAC for an incident in late 2014, where Cunneen allegedly counselled her son's girlfriend on how to avoid taking a breath test.

Cunneen sought a declaration in the NSW courts that ICAC did not have the power to conduct an inquiry, as her actions did not amount to "corrupt conduct" under the ICAC Act.

The High Court agreed, finding that the definition of corrupt conduct does not extend to conduct that merely affects the efficacy of the exercise of an official function by a public official.

It is worth pointing out that the High Court was merely interpreting the legislation that gives ICAC its power to conduct investigations into alleged corrupt conduct.

ICAC is a statutory authority and it is limited by the terms of the legislation which authorises its creation.

The statement released by ICAC on Monday reveals a deep malaise within the organisation.

For too long the commission has operated with extraordinary and coercive powers. ICAC runs roughshod over some of our most deeply held legal rights.

ICAC is given the power to extinguish the right to silence by forcing witnesses to answer questions or produce documents under section 24, and it is given the authority to override the privilege against self-incrimination under section 26.

Perhaps the coercive powers bestowed upon the commission have helped to shape a culture within the organisation that makes the individuals within it feel they are above the law. Perhaps it's the belief they're going after the bad guys.

Whatever the reason, the demand for retrospective legislation is a shameful attempt to smash the pillars of justice that support our legal system. ICAC has taken it up on itself to revisit 800 years of English common law.

Apparently the giants of the common law such as jurist and judge Sir William Blackstone, leading constitutional theorist AV Dicey, and barrister and judge Sir Edward Coke got it wrong.

Government agencies aren't created by parliament so they can turn around and lobby the parliament for more power. ICAC should always have been operating within the limits of the law rather than skirting the line only to be reined in by the High Court.

Not only should Premier Mike Baird and the NSW government ignore ICAC's desperate and illegitimate demand to increase its own powers, they should hear the alarm bells and abolish the commission entirely.