Monday’s guilty verdict by the Supreme Court in the long-running corruption case against former NSW ministers Eddie Obeid and Ian Macdonald shows that the state continues to need a strong, well-resourced and independent anti-corruption body. Sadly, this is not a universally held view.
Since its creation there has been a persistent campaign against the ICAC in sections of the media, the legal fraternity and the parties that form the current NSW government. Its detractors say the ICAC operates a “parallel system of justice” outside the rules and protections of the criminal justice system.
This overlooks the whole reason we need ICAC. Its powers were designed to get to the truth of matters where law-enforcement authorities and the criminal law may not be able to, given the secretive nature of corruption.
Some have suggested the ICAC should not be able to make corruption or other adverse findings against people unless they are found to have committed a specific criminal offence on evidence that establishes this beyond reasonable doubt. This confuses the different purposes of the criminal justice system and the ICAC.
There are even proposals for a so-called “exoneration protocol”, under which people found by the ICAC to have been corrupt – or criticised by it for other blameworthy conduct – would have those findings set aside if there was no subsequent criminal conviction against them.
Given the relatively few criminal convictions arising from ICAC findings, this would undo most of the commission’s work. It would also set aside findings against people where misconduct is clearly established but where the evidence proving it is not admissible in court, or where court proceedings cannot be brought.
A committee of the NSW Parliament is currently investigating these issues. Its report may result in significant proposals to reform the ICAC. In considering any changes we must not lose sight of ICAC’s purpose: to deter corruption among politicians and other public officials by publicly exposing it.
While there is no doubting the impact of ICAC findings on the careers and reputations of individuals, unlike court judgments they have no legal effect. The ICAC does not sentence anyone to prison, or decide the future of anyone’s employment. Not all material used in support of the ICAC’s findings can be used in court, due to different admissibility rules and standards of proof.