This speech was delivered on 16.11.2016 in the NSW Upper House. You can read the full debate online here.

Mr DAVID SHOEBRIDGE: Like my Greens colleagues, I oppose the Independent Commission Against Corruption Amendment Bill 2016. It is extraordinarily unfortunate that on the second last sitting day this year the Government has introduced a bill with less than 24 hours notice that seeks to reform fundamentally the single most important anticorruption body in the country. The bill contains two key provisions that will politicise the Independent Commission Against Corruption [ICAC] for the next two years leading up to the 2019 election. There was an opportunity here, if the Government had not been so arrogant and so insistent, to have 95 per cent of this bill passed unanimously by both Houses of Parliament. No doubt it has been captured by a right-wing element in the Government party room that insisted on the political execution of the current ICAC commissioner. It is trying to push through a narrow political agenda. Instead, we have a government that simply does not learn.

Members opposite think they have the numbers—the numbers are all that matter—to ram through the legislation to achieve their narrow political ends. This legislation represents an attempt—I will not put it higher than an attempt—to use a backdoor method to abolish the statutory appointment of the Independent Commission Against Corruption commissioner, whose term is five years and who can be removed under the existing law by an address from both Houses of Parliament to the Governor. To try to achieve that by sleight of hand is genuinely disgraceful. To finish the year nobbling the most respected anticorruption agency in the country—one of the most respected anticorruption bodies anywhere in the world—is a new low for the Baird Government. This will come back to haunt it over the last two years that it is in office leading up to the 2019 election. People on the streets of Sydney and throughout New South Wales have a great deal more confidence in ICAC than they have in the New South Wales Parliament. There is a great deal more confidence in the integrity of ICAC than there is in the Cabinet, the lower House, and the upper House. To seek to abolish the office of the commissioner in the way that this Government has will produce a significant public backlash.

I will deal with the way in which the Government is attempting to remove the commissioner. When I first received the bill, I read it through carefully because I saw in the Government’s media release and heard in the Premier’s second reading speech that the office would be abolished and that Commissioner Latham would have to reapply for her job. I searched the bill to find the provision dealing with that issue. Members should remember that Commissioner Latham is appointed as a statutory officer with a guaranteed minimum term of five years. As I said, under the law, a commissioner can be removed only by a joint address of both Houses of Parliament to the Governor. I found that there was nothing in the bill providing for the office of the commissioner to be abolished. There is no provision expressly stating that the office that was created by statute will be vacant by reason of this legislation. The closest it gets is in schedule 1, page 10, new section 41, subsection (1), which states:

The abolition of the office of the former Commissioner as a result of the substitution of Part 2 of this Act by the amending Act does not affect the identity of the Commission.

Schedule 1, part 15 does not do it; it simply refers back to the substitution of part 2. However, the substitution of part 2 contains nothing that expressly abolishes the statutory office that was created under the Act. Undoubtedly this is because the Premier thought it would look hideously bad for the Government to have an express statutory provision that abolishes the office of the commissioner. It would stand out as a political stiletto wielded by the Government. It has therefore failed to do it; it has not included it in the bill. It will be for better legal minds than mine to work out whether this underhanded, indirect sleight of hand by the Government is effective in removing Commissioner Latham from office.

It is an office created by statute from which the office holder can only be removed by a joint address of the two Houses of Parliament, and there is no provision in this bill that expressly vitiates that. Why is Commissioner Latham being singled out by the Government? It is clear that Commissioner Latham is a robust character. I would not want to appear in front of Commissioner Latham on behalf of somebody.

The Hon. Adam Searle: Or to otherwise be in the dock.

Mr DAVID SHOEBRIDGE: Or to otherwise be in the dock, as the Leader of the Opposition says. There are real reasons to put in place provisions such as those that are found in this bill that require procedural fairness guidelines to be adopted by ICAC. It is a longstanding failure of the organisation to expressly state what kind of procedural fairness individuals who come before ICAC can expect. As the Hon. Trevor Khan said in his careful presentation, we cannot impose the same kinds of procedural fairness in a standing royal commission as we have in a court. Issues are addressed in a standing royal commission because our existing civil and criminal courts have been ineffective at rooting out the corruption. We must have extraordinary powers to deal with entrenched corruption. We must have extraordinary powers to root out those people who have significant power in our political system and to hold them to account.

If we replicate the criminal courts, we will have an ineffective anti-corruption body. They appear before ICAC because our criminal courts have failed to hold people such as Obeid to account. Without ICAC, Eddie Obeid might still be sitting in this Chamber and might still have a position in the New South Wales Labor Party. Without ICAC, a cricket team of coalition MPs, who by and large were found unambiguously to have flouted our election laws and taken illegal donations, might still be sitting in the lower House. ICAC has been crucial to root out corruption. It would have been unable to do that if it had had to follow the strict procedures of a criminal court. Quite clearly our police or criminal justice system failed to bring any of those criminals to account; we needed ICAC to do that.

As I said in my contribution to the Law Enforcement Conduct Commission Bill, individuals who appear before those kinds of standing royal commissions have a reasonable expectation that they will be afforded as much procedural fairness as is consistent with the organisation being able to undertake its work. That is why The Greens support the provisions that address procedural fairness guidelines. The commission should issue the guidelines. Those who appear before ICAC should refer to them. However, there will be cases where it will be inappropriate to provide witnesses with all the evidence against them before they sit in the dock because it will make the inquiry ineffective. We cannot import the criminal justice procedural fairness guidelines into a standing royal commission and assume it will work.

I appeared as a solicitor for a construction union in the Cole royal commission. Some royal commissions and standing commissions of inquiry adopt greater degrees of procedural fairness than others. I was aggrieved at the lack of procedural fairness that was granted to witnesses who appeared before the Cole royal commission. As a lawyer, I found it offensive. We have seen cases in which royal commissions have used those extraordinary powers with enormous tact, subtlety and competence and they have achieved the right balance. The Wood royal commission into police is a case in point, as the Hon. Trevor Kahn made clear. Another royal commission I suggest we should look to is the royal commission into sexual abuse in institutions—a royal commission of gold standard. While the necessary procedural fairness is provided to ensure that the commission is not seen as a witch‑hunt, flexibility allows institutions and individuals to be held to account.

Consensus could also have been achieved on the adoption of a three-commissioner model. Too often in the past ICAC has been seen through the prism of whoever is the commissioner of the day. In the time of Commissioner Temby, it was often thought that the commission was too rugged and robust. In the time of Commissioner Irene Moss, it was sometimes thought to be too timid because there were too many private hearings and not enough public hearings to hold people to account. Many people thought that Justice Ipp was more aggressive and more in line with the Temby model. People have been critical of Commissioner Latham, suggesting she also is too aggressive. That is the inevitable consequence of having only one personality directing the entire workings of ICAC.

There are good arguments for having three commissioners. It will enable a collective decision-making process and that collective responsibility de-personalises the functions of ICAC—at least in the eyes of the public and those who come before it. We must ensure that the institution will work. The chief commissioner must have confidence in the deputy commissioners that are appointed. That is where the Government bill fails; it does not require the chief commissioner to concur with the appointment of the deputies. The chief commissioner has to be consulted, but they may then say, “I cannot work with these people. We have a fundamentally different view about how the organisation works”, and if that happens—

The Hon. Adam Searle: One way to get rid of them.

Mr DAVID SHOEBRIDGE: —one of two things will result. I note the interjection of the Leader of the Opposition. The chief commissioner will resign because they will realise they are unable to do their job, or the organisation will grind to a halt because the necessary majority will not be obtained to conduct investigations and undertake public inquiries. Either of those outcomes should not be contemplated by this Parliament, but that will be the effect of the passage of this bill. Both of those outcomes are on the cards because of the defective structure that has been proposed. The Government could readily fix it by getting consensus on the bill. It could adopt the formulation put forward by the Opposition and it could adopt the formulation that was included recently in the Law Enforcement Conduct Commission Bill. It appears that will not happen because some kind of payback or gotcha mentality is operating in the Government and it wants to be able to do a job on a commissioner in the future. It is an unfortunate outcome.

The argument put forward by the Government is that this bill implements the recommendations from the committee. In respect of procedural fairness, it does. The bill also provides for an executive officer to be appointed so that somebody can do the day-to-day administration work of a complex organisation such as ICAC. The Greens support that. The fact of the matter is that judges often are not the best administrators. Sometimes they are; more often they are not. Having a professional executive officer in ICAC will enhance the workings of the body. Axing the commissioner by default, however, will not.

If the Government wanted to get rid of Commissioner Latham, the proposition should be tabled in both Houses and we can debate its merits. That is the appropriate way to do it. If the Government has lost confidence in Commissioner Latham, it should be honest and table the proposition and we can argue it on its merits. It is fair to say that the comments that Commissioner Latham made to the Bar Association offended many people.

The idea that there would be some kind of celebration in having such a one-sided process where one can basically do whatever one likes with a witness in front of one offends people. I am certain that if we asked the commissioner whether or not she regretted making those statements there would be a loud and resounding yes.

I will not pretend otherwise; those comments raised my concerns about the lack of procedural fairness that has been applied in the ICAC. But of course this Parliament gave the commission those powers and more often than not they have been exercised to root out genuine corruption. Think of the Table of Knowledge in Wollongong. I went looking for it the other day and I am glad to say it has now disappeared. Think of the likes of Mr Obeid and that whole bunch of Coalition members of Parliament who received money in brown paper bags from property developers. If it were not for the ICAC those issues would not have been properly exposed. The ICAC is essential. The powers it now has that have been so criticised were essential for rooting out that corruption. But there needs to be restraint and balance and we believe that the guidelines get it right.

What is the ICAC’s political crime in New South Wales? Is it not being 100 per cent fair all the time? I do not think so. I was reviewing the swag of Ombudsman’s reports we have had in the past 12 months about police stepping well outside lawful bounds in the exercise of their consorting powers. There has been not one word from any Government member about the many occasions on which those powers have been abused, but the sky is falling down because of the way in which one notice to produce is issued by the ICAC. We have many instances where the police overstepped the mark on their firearm prohibition orders but not one word was said about it by any Government members.

Recently we saw a detailed and damning report from the Ombudsman about the police use of Restricted Premises Act provisions. In a report issued just weeks ago 90 people were unlawfully searched and a series of possessions unlawfully seized by police. But not a word has been spoken by anyone in the Government because the people being targeted are not powerful in New South Wales. Political forces in New South Wales rally around to protect the powerful from the ICAC but they never rally around to protect young Aboriginal people in rural New South Wales who have had their rights repeatedly abused by misuse of the consorting laws. It is not a question of principle from Government members; it is a question of convenience and listening to power, as so often happens. Commissioner Latham’s crime is holding powerful people to account. Her crime is trying to deal with some of the systemic corruption in New South Wales. Those parts of the bill that are causing division should be withdrawn. I commend the Opposition’s amendments to the Committee.