Peter Hall to lead the new ICAC structure he doesn’t support

By Stephen Easton

Friday April 21, 2017

The New South Wales government has put forward Peter Hall as the new chief commissioner of the reformed Independent Commission Against Corruption and the opposition will not stand in his way.

Assuming his appointment is rubber-stamped by the watchdog’s parliamentary oversight committee, Hall will be supported by two assistant commissioners and need the support of at least one to hold the public investigative inquiries that have made ICAC a household name.

Hall replaces his former NSW Supreme Court colleague Megan Latham, after the former commissioner’s role was effectively dissolved and she declined to apply for a position on the new three-commissioner ICAC panel for legal reasons.

Retired judge and inaugural NSW director of public prosecutions Reg Blanch has been acting commissioner as the reforms are carried through. According to Premier Gladys Berejiklian’s office:

“Proposed appointments for the other Commissioner and Inspector roles will be announced in due course. The reconstituted ICAC is expected to commence operations as soon as all key appointments are approved.”

Hall took silk in 1992, and joined the Supreme Court bench in 2005, retiring last year. He has experience presiding over Royal Commissions and other special inquires and authored a legal textbook, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry Powers and Procedures.

The 2004 book is “compulsory reading for any practitioner” appearing at ICAC, according to a review by defence lawyer Keith Chapple.

Premier Gladys Berejiklian said he could bring “world-class expertise” to the top job at the “reconstituted” ICAC and that the choice reflected a “commitment to the highest levels of integrity in the public sector” on the part of her government.

The government was forced to defend the appointment process almost immediately after The Daily Telegraph suggested the chair of the selection panel, Roger Gyles, had a conflict of interest as he was once a professional colleague and mentor to Hall.

Incoming CEO expected to build independent organisational culture

In the new setup, a chief executive officer will run the administrative side of the agency and be responsible for organisational culture, according to the oversight committee’s chair, Damien Tudehope.

Tudehope, who defended the reforms to an audience containing some of their most ardent critics at the National Integrity conference earlier this year, said creating a CEO’s office to “stand between the commissioner and the administration” was a key initiative copied from the Victorian Independent Broad-based Anti-corruption Commission.

“I have to say that’s pretty desirable, because lawyers generally aren’t good administrators,” Tudehope said.

“And I think the idea of having a CEO, which determines the culture of the organisation and takes the culture of the organisation away from the determinations of the commissioner, has been a really good decision.”

Damien Tudehope

A significant group of ICAC supporters believe the reforms have watered down the watchdog’s powers and several eminent jurists, including former ICAC commissioners, have actively opposed them.

Hall himself told the oversight committee he did not support a panel of three commissioners, in a detailed submission he sent the committee at Tudehope’s request.

“There is a need to question any suggestion that the special powers of the Commission under the ICAC Act would be better controlled or exercised by a different “organisational design” involving a panel of commissioners rather than by any other approach.

“In particular, any suggestion that the substitution of a panel of commissioners as the preferred model should be adopted as a means of or in order to ensure appropriate decision making in the exercise of the powers of the Commission is questionable. It assumes that decision making by a single commissioner is in some way less secure or desirable.

“No material has been identified that suggests or supports any such assumption. The appointment of a sole commissioner with appropriate qualifications and experience has proven over many years to be an appropriate means of ensuring sound decision making in the exercise of the special powers vested in the ICAC.”

The three new commissioners will soon need to produce a new set of rules and standard practices regarding how they conduct public inquiries, to be published.

“There is a perception that those practices, in some form or other, are not fair to the people who are the subject of inquiries,” said Tudehope, explaining the recommendation was about ensuring fairness for all witnesses in future.

It appears the exercise is more about consistency between how different inquiries are conducted than prescribing new practices. The committee will probably accept whatever rules the commissioners come up with, according to its chair.

“If they come back and say everything’s OK … if they come back and say the process is [already] right then I’m sure my committee will be persuaded by that.”

The intense publicity surrounding the controversial inquires that respectively scrutinised the behaviour of Murray Kear and Margaret Cunneen — which led to the reforms more than any others — had “blurred all the really good stuff that ICAC does” according to Tudehope.

The way a lesser-known inquiry into Botany Bay Council had been handled was exemplary, he said.

“It was well handled, the witnesses were in fact given every opportunity of giving their explanation and the manner in which the inquiry was conducted was in many respects, beyond reproach.”

Vicious political witchhunt or sensible bipartisan reform process?

One interstate counterpart, the Western Australian Corruption and Crime Commission’s John McKechnie, backs the view that Megan Latham was subjected to “a sustained, personal, vituperative attack” from “a powerful media organisation” among others.

One might guess he was referring to News Corporation, whose Sydney staff were involved in a “blood feud” with their rivals at Fairfax Media, according to ICAC inspector David Levine’s colourful description, which Tudehope borrowed in his conference speech.

According to the Sydney MP, the truth was “somewhere in the middle” of the opposing views that “ICAC can do no wrong” and that “everything it does is wrong” which, he said, the respective publishers presented.

Some critics say the NSW Liberals and their supporters developed an animus towards Latham following an inquiry into illegal political donations from property developers being allegedly channelled through third-party front organisations which resulted in 10 of the party’s MPs resigning or going to the backbench. The opposition and cross-benchers attacked Tudehope’s appointment as chair of the oversight committee in 2015, as he is from the same faction as several of them.

But Tudehope, in bridge-building mode, said the reforms hammered out in the committee had strong bipartisan support across the NSW parliament.

“I have to say that I think there was a need at the time to ensure that public confidence in ICAC was retained,” he said, to murmurs of dissent from the audience and one loud interjection suggesting the reforms could do the opposite.

He suggested the process was a model of how such committees should work: “There was argy-bargy in relation to some of the recommendations, and I … was in the camp which wanted tougher restrictions. Better minds than mine persuaded me that perhaps we ought to move in a different direction.”

The committee process showed that “no side of politics supports corruption” according to Tudehope, and he followed up with the contestable claim that in NSW parliament, ICAC and its findings have been “generally supported on both sides” of politics.

“I think everyone supports a process which ensures that we do our best to make government transparent, and that we in fact have a system and agencies which are always improving to ensure that we get the correct corruption outcomes,” he said.

But while it is easy to support accountability, transparency and integrity systems in general, the debate always centres on how much power they should have over elected officials, public servants and other citizens.

WA’s watchdog McKechnie also said in his speech in December: “Everyone loves the idea of a corruption agency. I am not so sure though that everyone loves an effective corruption agency to the same degree.”

Turning to the growing calls for a federal ICAC, Tudehope implored the National Integrity conference delegates not to “embark on a process where we say the Labor party doesn’t support it, or the Liberal party doesn’t support it, or alternatively, the Greens are the only ones that do support it”.

Although, one might observe, all three statements are broadly true at this point.

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