Thursday’s release of Icac’s Operation Keppel report will leave many scratching their heads. The report makes serious findings including of corrupt conduct levelled against former New South Wales premier Gladys Berejiklian. But it also includes a finding that Icac is “not of the opinion that consideration should be given to obtaining the advice of the DPP with respect to the prosecution of Ms Berejiklian for any offence”, to use its words.
There is legitimate anger that this report, which changed the course of NSW history, has taken an unacceptably long time to reach its finality. These are delays that have united some of Icac’s strongest defenders in the legal profession and on both sides of politics in concern about its processes in concluding this inquiry.
To be completely transparent, I count Gladys Berejiklian as a longstanding and close personal friend. I have always found her to be scrupulously honest and decent and this report does not reflect the person I know and admire.
What I hope I can objectively comment on are two aspects arising from this investigation which go to Icac’s procedures and the assumption of innocence for the broader body politic.
When allegations of corruption levelled against former NSW Labor premier Neville Wran became too hard to ignore for even his legendary teflon political skills, Wran relented and established a royal commission and promptly stood aside. The allegations, first aired by the ABC’s Four Corners program in 1983, suggested Wran had interfered in the proceedings of a court case against the then head of rugby league in NSW. Within three months eminent jurist Sir Laurence Street had conducted his royal commission which included two months of intense public hearings. Exonerated, Wran was able to resume his position as premier.
Pre-Icac, royal commissions were often deployed to test allegations of serious corruption. What is relevant about the Wran example is that such a major investigation was able to be conducted within a set and relatively short timeframe.
Apart from its internal KPIs, the NSW Icac is subject to no legislative requirements about the duration of its own investigations. We have seen some of its inquiries, such as the Berejiklian example, take years and leave those subject to allegations in limbo. For those holding public office, such uncertainty means that adopting the Wran approach of temporarily standing aside is effectively impossible. This must change.
Following a recent NSW parliamentary committee report, the new state government has indicated its willingness to consider requirements for Icac to self-publish timeframes for the completion of its investigations. While a step forward, I would argue that it can go further and place a hard six-month deadline on completing reports at the conclusion of public hearings. Extensions might legitimately be required for complex inquiries but the onus for these should be on Icac to establish either before its inspector general or a supreme court judge.
This case also highlights the presumption of innocence afforded to elected representatives and public servants subject to Icac investigations. On Thursday, the NSW premier, Chris Minns, rightly opened debate on whether we should automatically expect politicians such as Berejiklian to stand aside as soon as an inquiry is announced.
It’s a complex issue that goes well beyond the political class as we see attacks on the presumption of innocence in many forms, including knee-jerk changes to bail laws in some states responding to law-and-order campaigns.
For politicians, there is an unwritten rule that investigations of these types or, separately criminal proceedings, effectively means sudden death for a political career – certainly at the ministerial level or indeed a person’s capacity to continue in parliament. Those with legislative responsibility for defending a fundamental right such as the presumption of innocence are reluctant to do so for themselves because of the perceived political consequences.
Whether that view is shared within the community is hard to test. One recent example is the voters of the NSW state seat of Kiama who re-elected their MP in March this year despite knowing criminal proceedings were pending against that member. Voters were perhaps instinctively striking a blow for that presumption of innocence.
We need a much broader and mature discussion about how we defend the rights that are at the cornerstone of our legal system.
The establishment of independent corruption commissions, which started in NSW and will conclude with the commencement of its federal counterpart next month, have undoubtedly strengthened our capacity as a nation to deal with corruption. Such bodies however cannot be immune from reform and improvement if justice itself can be better served.
Trent Zimmerman is the former federal member for North Sydney
