If the need for an Independent Commission Against Corruption (ICAC) in NSW was obvious when it was established in 1989, a report released in 2010 showed why it is absolutely indispensible.
This was an ICAC study of registered lobbyists that found there were 272 individual lobbyists listed in NSW. They included 22 former state or federal MPs and 112 staffers and advisers — about half of all lobbyists.
For the ALP, this is a career path continuum that extends, post-politics, to lobbyist and company director. Of the 23 key lobbyists in the five mainland states, 17 have Labor connections. In NSW, the services of these lobbyists are used by more than 800 organisations.
There is something decidedly odd about ex-MPs setting themselves up as gatekeepers to sitting MPs for the benefit of private and public companies. For the parliament to condone it and for sitting MPs to facilitate it smacks of cartel-like behaviour. The ordinary person in the street is entitled to assume that it is, at the very least, unethical.
ICAC has done us all a service with its investigations and findings of corruption against MPs. But it is important to recognise that ICAC’s functions have never included the power to prosecute. It is limited to seeking the advice of the Department of Public Prosecutions (DPP) as to whether proceedings against persons for criminal offences can proceed. This can easily result in tension between the two bodies.
Last week, two former Labor ministers, Eddie Obeid and Ian Macdonald, were charged with “misconduct in public office”, a common law offence in NSW with no set penalty. It is an offence that ICAC has frequently recommended. However, the DPP has refused to use the charge against former Labor MPs Tony Kelly and Angela D’Amore, as well as an executive of the Sydney Harbour Foreshore Authority.
Although there are cases where the misconduct offence has resulted in convictions — including that of a Railcorp employee who received a four-year jail sentence — there seems to have only been four prosecutions.
Obeid and Macdonald have been summoned to appear in the Downing Centre Local Court on December 18, but it is highly unlikely that their cases will be determined until late next year.
It also appears that the DPP is using the Obeid misconduct case as something of a test for the other findings of corruption, which means that other court cases against him are likely to take years.
The other person required to attend court on December 18 is John Maitland, former leader of the mining division of the Construction Forestry Mining Energy Union. Maitland has been charged with two counts of being an accessory before the fact to the misconduct with which Macdonald is charged. He also faces charges of giving false and misleading evidence to ICAC, an offence that has a far more likely chance of securing a conviction.
These three cases, together with the likelihood of many more findings of corruption against politicians next year, raises the question as to what might be done to ensure that justice is served when findings of corruption are made.
One suggestion put forward by a former ICAC commissioner is that a separate body be established to investigate and prosecute criminal charges emanating from ICAC. Its objective would be to have criminal charges dealt with within weeks rather than years after exposure by ICAC.
But the response of Coalition Premier Mike Baird to the parade of ALP and Coalition MPs before ICAC has been to establish a parliamentary committee to examine ways of making prosecutions easier following ICAC findings — Caesar judging Caesar.
The only inquiry that can satisfy both due process and community concern is a public one. Anything less simply reinforces the commonly held notion that one of the perks that politicians from the major parties think they are entitled to is plundering the public purse.