Special powers handed to the New South Wales corruption watchdog to use illegally obtained recordings have been described as “concerning”, with the opposition and members of the crossbench vowing to try to stop them from proceeding.
The government granted the powers to the Independent Commission Against Corruption on Wednesday to assist it with an ongoing investigation in response to a request from its chief commissioner, John Hatzistergos.
A source with knowledge of the matter confirmed the request was made after the commission found illegal recordings as part of its investigation into the Sydney developer and fugitive Jean Nassif, his company Toplace and branch stacking.
The opposition leader, Mark Speakman, said on Thursday he would work to stop or change the powers to ensure they could apply to just the one Icac investigation.
“This is reckless drafting. It should have been subject to proper scrutiny of parliament where we could have finessed the drafting … but this hasn’t been done,” he said. “You have an Icac and a government that have made this reckless and outrageous and outlandish and over-the-top power grab.”
The former supreme court judge Anthony Whealy KC said the powers should be used sparingly and transparently.
“As a one-off, it’s tolerable, but the idea that authorities can get access to illegally obtained intercepts is rather concerning,” he said. “The power has been exercised or is about to be exercised transparently. That is, at least we all know that this power has been specially conferred, so that’s a good thing.
“I would like to see it used only sparingly and in exceptional cases.”
Whealy, who also serves as the chair for the Centre for Public Integrity, said there would likely be problems if a matter was referred from Icac to the director of public prosecutions if the initial case involved illegally collected phone taps.
“In a criminal prosecution, I think they’d be hard-pressed to get admitted into evidence,” he said.
The Liberal Democrats upper house member, John Ruddick, will attempt to garner support from other MPs over the next two weeks to overturn the new power when parliament returns for its next sitting fortnight.
“It will provide an incentive for people to take secret recordings of phone calls with … all sorts of enemies and hand them over to Icac and this is appalling.
“I’d be prepared to pay the cost of having a few criminals going free for the rest of us to have more civil liberties.”
Ruddick said it would “come down to the Greens” to achieve the simple majority required to block the new power.
Hatzistergos wrote to the premier, Chris Minns, the special minister of state, John Graham, and the attorney general, Michael Daley, on 9 August.
According to a statement by Graham and Daley, Hatzistergos’s letter “indicated” that Icac had obtained evidence that appeared to be recordings of private conversations made by a third party.
“In his letter, the chief commissioner advised that the Icac wishes to lawfully obtain, possess, publish and communicate the recordings and reports of the recordings as part of an ongoing investigation,” the statement read.
The government has given Icac an exemption through a regulatory change, which is different to legislation in that it did not require the majority support of parliament to be enacted.
The powers will automatically be revoked at the end of 2025.
