NSW ICAC Inspector Recommends Abolishing Public Hearings

Tuesday 17 May 2016 @ 9.55 a.m. | Legal Research

A report into NSW’s Independent Commission Against Corruption (ICAC) by the Inspector of the ICAC, David Levine, has called for future hearings to be held in private, in order to “prevent the undeserved trashing of reputations”.  The controversial argument has been rejected in a statement from ICAC, who issued a public statement saying:

“The Inspector’s “principal recommendation”, that the Commission should conduct all examinations in private, is contrary to the considered conclusions reached by the 2005 Independent Review of the ICAC conducted by Bruce McClintock SC and the more recent 2015 Independent Panel Review conducted by the Hon Murray Gleeson AC and Mr McClintock. The Commission agrees with the Independent Panel Review’s assessment that public inquiries “…serve an important role in the disclosure of corrupt conduct [and] in disclosing the ICAC’s investigative processes”.”

The Report

Premier Mike Baird asked Mr Levine to review  the ICAC following the now-infamous inquiry into Crown Prosecutor Margaret Cunneen.  Mr Levine notes that “[i]t was originally suggested that I prepare a comprehensive review of the ICAC from its inception… [s]uch a task if done “comprehensively” would be beyond the resources of myself as Inspector and my staff…”  Instead, he writes that the Report “is of necessity related to parochial matters”.

Recommendations

Mr Levine’s recommendations include:

  • Private examinations by ICAC
  • Legislative provisions requiring that people be aware of the nature of the allegation or complaint being investigated, except in exceptional circumstances
  • The introduction of an “exoneration protocol” that “should provide that in circumstances where there is an absence of a criminal conviction arising from any prosecution based upon the same or similar or cognate facts as warranted the making by the ICAC of a finding of corrupt conduct, the person against whom the finding was made may make an application to the Supreme Court for an expunging of the records of the ICAC or to have the findings set aside.”
  • Amending section 112 of the Independent Commission Against Corruption Act 1988 (NSW) (the “ICAC Act”) to enable persons to complain to the Inspector without breaching the section
  • The Inspector should be informed of all assessments made by the ICAC
  • The repeal of the Independent Commission Against Corruption (Commissioner) Act 1994 (NSW), with all provisions relating to the Commissioner to be incorporated into the main ICAC Act 
  • The Office of the Inspector to be a full time position, with the power to employ staff
  • The repeal of section 74BA(2), which is:

(2) The Commission is not precluded by this section from including in any such report a finding or opinion about any conduct of a specified person that may be corrupt conduct within the meaning of this Act if the statement as to the finding or opinion does not describe the conduct as corrupt conduct.

The ICAC has announced plans to make a detailed response to the report in the future.  Premier Mike Baird has said the report will be considered by the current parliamentary inquiry into the ICAC.

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