Andrew L. Urban
Former NSW premiers Barry O’Farrell, Mike Baird and Dominic Perrottet all failed to protect the rule of law as it relates to ICAC; “The law was changed to protect wrongdoers,” and new Premier Chris Minns has a chance to right that wrong, argues CHRIS MERRITT (The Australian, April 21, 2023).
When Dominic Perrottet’s Coalition government lost office in NSW, it left a magnificent gift for the incoming Labor administration. It should not be ignored. Gathering dust in the government archives in Sydney are two reports from parliamentary committees that were shelved by the former government. And the reason? They would have required the Coalition to address two of the worst mistakes of former Liberal premiers Barry O’Farrell and Mike Baird. The first of those reports was completed in October 2019 by the law and justice committee of the Legislative Council. It called on the Coalition government to address the issue of compensation for innocent shareholders who had been stripped of coal exploration licences in 2014 without proof of wrongdoing when O’Farrell was premier.
O’Farrell’s government cancelled those licences on ICAC’s recommendation. But he ignored the fact that ICAC also said the government could consider compensating innocent parties who would be affected by the cancellations. He also overlooked the fact that the justice system, not parliament, has the exclusive right to decide guilt and innocent. ICAC is not a court and cannot make conclusive findings of guilt and innocence.
companies denied compensation
A wise government that respected property rights and the rule of law would therefore have waited until the justice system had done its work. Instead, O’Farrell placed undue emphasis on ICAC’s accusations and persuaded parliament that nobody should be compensated – a decision that is now at odds with reality. The two companies that were affected by those decisions were NuCoal Resources – which was not even accused of wrongdoing by ICAC – and Cascade Coal.
Now that the courts and prosecutors have examined this affair, nobody associated with either company – past or present – has a conviction against their name over the manner in which they obtained their licences. The other report that has been left for Chris Minns was handed down in November 2021 by the parliamentary committee on the Independent Commission Against Corruption. Recommendation seven from this report is the one that counts. It seeks to unwind, at least in part, one of the worst excesses of the Baird government. The parliamentary committee unanimously recommended that ICAC’s corruption declarations against four men should be assessed in court without the benefit of retrospective legislation known as the Independent Commission Against Corruption Amendment (Validation) Act
This act had been rushed through parliament in 2015 to “validate” actions by the commission that would otherwise have been unlawful. It amounts to a direct attack on some of the most important principles of the rule of law. It made a mockery of the doctrine that the law should be known in advance, should be applied equally and fairly, and that the legislature should not interfere in the work of the judiciary. Just before the Validation Act was enacted, ICAC had agreed in the Court of Appeal that it had no basis in law for declaring the four men corrupt.
men stripped of legal rights
A draft declaration confirming ICAC’s defeat had been prepared and circulated by Margaret Beazley, who was then president of the Court of Appeal and is now governor of NSW. But before the court could finalise its ruling by striking down ICAC’s unlawful findings, the government, then led by Baird, was lobbied by ICAC, which was then led by Megan Latham. Parliament was never told that the Validation Act would have the effect of changing the outcome of legal proceedings in which ICAC had already admitted liability. One of the four men who were stripped of their legal rights, Travers Duncan, died last year. The others, who have never stopped trying to clear their names, are businessmen John McGuigan, John Atkinson and Richard Poole.
Had Perrottet acted on these reports, he could have distanced his government from decisions that disregarded principles that should be second-nature to all Australians – particularly those elected to parliament. He could have drawn a line under some of the most contentious conduct of his predecessors and at least some of the unlawful conduct of ICAC. While recommendation seven from that 2021 report focused on restoring the legal rights of the four men who had already won admissions from ICAC, it would not amount to a complete solution. It later emerged 128 people had been adversely affected by inquiries and rulings by the commission that had no basis in law.
Perrottet’s timidity was not just bad in principle, it was terrible politics. It has handed the new Premier an opportunity not just to fix the Coalition’s mistakes, but to free ICAC, now led by former Labor attorney-general and judge, John Hatzistergos, from the taint of its association with those matters. Just consider what happened: under O’Farrell’s leadership, the Coalition used parliament to impose a financial penalty on people whose conduct has subsequently been shown to be entirely innocent. Under Baird’s leadership, the Coalition used parliament to retrospectively change the law midway through a court case so unlawful conduct by a government agency could be retrospectively rendered lawful.
That means victims of ICAC’s past misconduct have forever been denied access to the normal law. The law was changed to protect wrongdoers. Minns now has a chance to make it clear that nobody is above the law – least of all a government agency that is supposed to be the enemy of wrongdoing. These reports would give Minns the perfect platform to make defence of the rule of law one of Labor’s key points of distinction.
Chris Merritt is vice-president of the Rule of Law Institute of Australia.