James Paterson (Victoria, Liberal Party) Share this | Hansard source

I am delighted to participate in this debate and I thank the Greens for bringing it before the Senate. In my view there are a number of good arguments against an anticorruption commission, but I am going to focus in my contribution today on one which I would have thought or would have hoped would appeal to the Greens as sympathetic to their way of thinking. That is, of course, the issue in the area of civil liberties and legal rights and the way in which anticorruption commissions have, sadly but, I think, because of their very nature inevitably, trampled upon them. I am indebted to Senator Di Natale, who mentioned the New South Wales ICAC, and I intend to come back to that in a moment and talk about some of the ways in which that body has abused its powers, trampled on people's legal rights and trampled on their civil liberties. There has been a very grave threat to people's individual freedoms in the state of New South Wales.

Before I do so, I wanted to begin with a general, broad philosophical point here. Of course corruption is a terrible thing. We all want to see corruption-free government, and Australia has a remarkably good, clean record on this. It is not a perfect record, but by world standards it is an outstanding record on corruption. We achieved that without an anticorruption commission at the federal level and with anticorruption commissions only at the state level in recent years. It is not because of the existence of anticorruption bodies that Australia is a relatively corruption-free country; there are many other reasons for that, which we can come to in a minute.

The prospects for corruption in government inevitably increase the bigger government gets, the more weight it places on society, the more it intervenes in people's lives and the more it intervenes in the economy. A big government, a government which lords it over everything, which has its fingers in every single pie, is a government which is extremely prone to corruption, because when people are subject to the force and influence of government they have an interest in influencing that government. If a regulation or a subsidy is going to make or break their business, of course they are going to go, in some cases, to extreme lengths to ensure that that regulation is favourable, that that subsidy exists, that their competitor is disadvantaged. So the Greens have an inconsistency here. They say they are going against corruption but the very philosophy that they promote in this place of government playing a greater role in the economy and a greater role in people's lives gives the incentive that is necessary for people to seek corrupt means to influence government. A government which treaded much more lightly on the economy and much more lightly on people's lives would be a government that people would have much less interest in influencing. They would spend much less time thinking about what we do in Canberra, because it would be of much less consequence to them and their lives, leaving people to run their own businesses and to live their own lives. To not interfere with them is the best method, if we want to discourage interest in corruption.

I turn now to the New South Wales Independent Commission Against Corruption, because I think it provides a very salutary lesson on why we should be concerned about setting up these bodies in perpetuity, with extraordinary legal powers, and what the natural consequences are that flow from that. It is not because the people running the New South Wales ICAC in themselves are necessarily bad but because of the very nature of setting up a corruption body, giving it powers, giving it a budget and allowing it to exist in perpetuity inevitably leads to a culture and a behaviour which is going to trample on the legal rights of its suspects. The reason for that is that all of these bodies exist, once they are created, to perpetuate themselves, to justify their own existence. If there were no corruption in New South Wales, the New South Wales Independent Commission Against Corruption would have to find corruption in order to justify its own existence, in order to perpetuate the salaries of its employees and in order to justify its purpose. Although I certainly would not argue that there is no corruption in New South Wales, even with the corruption that has existed in New South Wales we have seen the New South Wales Independent Commission Against Corruption pursue many unjust cases, trample on people's legal rights and behave, in my view, in an appalling manner.

I am going to quote a number of newspaper articles on the New South Wales ICAC, because I think it provides a salutary lesson for us at the federal level. I will flag in advance that many of them are from TheAustralian newspaper. I want to congratulate them on the great level of scrutiny they have focused on this issue, because bodies with great power deserve great scrutiny. It is a tribute to The Australian that they have taken this issue so seriously. I am going to quote now from an article published in The Australian on 12 September 2016. It was by Anthony Klan, and it is about a case against the Kazal family. The headline is 'ICAC hid evidence against Kazal family'. It begins:

The NSW Independent Commission Against Corruption hid key evidence that supported the case of people it was seeking to label as corrupt in another of its operations.

The Australian has obtained a sworn statement provided to ICAC’s Operation Vesta—well before it held public examinations or handed down its findings—that seriously undermined the watchdog’s case but which never saw the light of day.

Operation Vesta, launched after ICAC received one complaint and following a series of articles in The Sydney Morning Herald, focused on allegations that Sydney's Kazal family had bribed a government employee.

The Kazals operate a string of businesses in Sydney's The Rocks from buildings they lease from the government's Sydney Harbour Foreshore Authority.

The allegations were that Charif Kazal had paid for a business trip for then authority employee Andrew Kelly in return for favourable treatment on lease deals on buildings, in particular 100 George Street.

ICAC interviewed and took a statement from Paul Neilsen, who worked as the foreshore authority's manager of property services when Mr Kelly gave the alleged favourable treatment.

In contrast to the thrust of ICAC's thesis, Mr Neilsen told ICAC that Mr Kelly had had "no direct involvement" in the 100 George Street lease. It was in fact Mr Neilsen who had dealt with the Kazals in the negotiations.

Further, Mr Neilsen said the outcome at the site was the "best outcome" for the authority and the NSW government.

But ICAC did not submit any of this evidence to the Operation Vesta public inquiry into the Kazals, nor did it provide Mr Neilsen's affidavit to the legal teams handling the case.

I make no judgement about the guilt or innocence of any of the people in this case, but I do make a judgement about the way in which ICAC handled this case. They found evidence which appeared to be contradictory to their case and they did not provide it to the relevant public inquiry, which would have assisted the inquiry in its work but might not have assisted ICAC in its case.

I want to turn to another article published in The Australian. This one is by Chris Merritt, the crusading legal affairs editor of The Australian and, might I say, someone who has a great appreciation for the legal rights and freedoms of Australians and has been a terrific advocate for them. In this article, entitled 'ICAC raids given go-ahead despite lack of protocol', he writes:

The NSW government's anti-corruption agency spent years obtaining search warrants from the same court official before the practice was authorised by formal guidelines.

A protocol was issued only in April 2014, requiring the Independent Commission Against Corruption and other agencies to approach deputy registrar Stephen Lister when they wanted permission to conduct raids.

But documents obtained by The Australian show that, in the three years before the protocol came into effect, Mr Lister had authorised eight of the agency's most high-profile raids. Before April 2014, he had given ICAC permission to conduct raids on businessman Charif Kazal, the family of former NSW politician Eddie Obeid, former NSW politicians Darren Webber, Chris Spence and Chris Hartcher, businessman Nick Di Girolamo, and former emergency services commissioner Murray Kear and his deputy Steve Pearce.

ICAC Commissioner Megan Latham has supplied a copy of the protocol to a committee of the NSW parliament after being asked about Mr Lister's role in ICAC's failed investigation of prosecutor Margaret Cunneen SC.

Three months after the protocol was issued he approved an ICAC raid of Ms Cunneen's home in July 2014, and the seizure of her mobile phone despite the fact that it was already in ICAC's possession.

The search warrant gave ICAC permission to "break open any receptacle in or on the premises"—

Which is a pretty extraordinary allowance. It goes on:

Ms Latham told a public hearing of the committee last month that the search warrant to seize Ms Cunneen's phone had been granted by "a judicial officer independent of the commission who was satisfied of the legitimacy of the grounds for the warrant".

Mr Lister had issued other search warrants for ICAC because "he is the nominated registrar at the Downing Centre for the purposes of agencies like us when we apply for search warrants".

I could go on, but I think the point is clear. This may seem, on the face of it, to be a small matter, but it is one of many matters that ICAC has been found to be engaging in in unorthodox ways.

I will move to another article by Mr Merritt, this time concerning one of the star barristers, as Mr Merritt calls him, Geoffrey Watson SC. This article was published on 23 June 2016:

The star barrister of the NSW anti-corruption agency, Geoffrey Watson SC, has been found to have engaged in unsatisfactory professional conduct because of statements he made in a newspaper about "the bloody Liberal Party".

The NSW Bar Council, the governing body of the Bar Association, has issued a caution to Mr Watson, the public face of the Independent Commission Against Corruption during a series of spectacular hearings.

It goes on to say:

The Bar Council found that Mr Watson, while ICAC's counsel assisting, had breached a rule that prohibits barristers from taking "any step" towards having the media publish material about their current cases. The ruling, which covers just more than five pages, indicates that Mr Watson has persuaded the Bar to drop an earlier proposal to refer his conduct to the NSW Civil and Administrative Tribunal. That proposal, from the Bar's professional conduct committee, could have exposed him to the risk of penalties ranging from a fine to the cancellation of his practising certificate.

Again, perhaps in the view of some this is a minor matter, but it is certainly one which contributes to a general perception in New South Wales that ICAC has acted as a law unto itself.

There was a very substantial and important article published by Sharri Markson in The Australian in August this year. It was about Mike Gallacher, someone who has been relentlessly pursued by ICAC, and, in the end, unsuccessfully. But it has had an enormous impact on his life and on his career, and it seems to me on the available evidence that he is one of the clear victims of ICAC and its behaviour. I will quote from this article, which quotes Mr Gallacher about the impact that this commission has had on his life:

“It’s like that nightmare that you have, that we’ve all had, where you feel you’re being chased and you want to scream but nothing’s coming out and no one is listening to you and no one really wants to listen to you.”

Mike Gallacher, former NSW police minister, is speaking at a cafe in Sydney’s Hyde Park, detailing for the first time the futility of trying to clear your name once the Independent Commission Against Corruption has you in its claws.

Gallacher, a former policeman, had been expecting to be entirely exonerated yesterday. ICAC had advised him there would be no corruption findings against him in its investigation into whether the NSW Liberal Party and MPs had been funnelling illegal donations from property developers.

And there weren’t. But while the thick ICAC report cleared him of corruption, it found he had intended to evade laws that banned donations from property developers in NSW.

That is an interesting view of a future crime. I think there was a movie about that. The article continues:

ICAC ruled Gallacher, along with former energy and resources minister Chris Hartcher and others, were parties to an arrangement where property developers made payments of $66,000 and $53,000 for the NSW election campaign. The report also says Gallacher sought a $7000 political donation from a property developer for a New Year’s Eve fundraiser. And, it claims his evidence was “untruthful”.

The damage to his reputation was so great. Premier Mike Baird declared Gallacher would not return to cabinet, nor to the Liberal Party. Gallacher has enjoyed an esteemed career. He was awarded a police commendation in 2010 …

I am sorry—my article has been cut off there so I will have to jump across:

He spent a large part of his career in internal affairs exposing corrupt police officers and even took on the appearance of a junkie in Kings Cross, which resulted in the smashing of a major drug ring involving a senior police officer.

Now his career is in tatters. Worse. “It’s destroyed, it’s gone now,” Gallacher says. He is a man without a portfolio, without a party.

Later in the article he goes on to talk more about how this has affected his life:

“We’d go to the shops, and I’d assist Judy with the shopping, people would look at you, and you knew what they were thinking because the allegation was this guy took money in exchange for developers getting developments through. You knew it wasn’t true but you couldn’t defend yourself.”

I will not go on with Mr Gallacher's case. It is pretty clear that he is a victim of an organisation which does great damage to the people it pursues—sometimes without any successful outcome, as it was in this case.

There are many more, and I could go on, but this is just a small snapshot of the way in which these independent commissions against corruption, whether they be at the state level or, as the Greens propose, at the federal level, can really seriously breach people's legal rights and freedoms, and damage their reputations. And for no good aim—most spectacularly, I think, in the Cunneen case, which I think is very well-known.

I think that is a really salutary lesson for us here in federal parliament to consider very seriously. If we were to establish a federal anticorruption body it could very easily—and I would not be at all surprised if it did—go down the same road as the New South Wales body against corruption. Although it may have had some success, it has come at a very high price for some people who are, obviously now, clearly innocent.

I would urge all senators to consider that very sincerely as they contemplate this Greens proposal for a federal anticorruption body.