ICAC: purpose without follow through

What is the purpose of the Independent Commission Against Corruption? Its own remit is available on its own site: "Extensive powers allow the ICAC to uncover, investigate and report on corrupt conduct in the NSW public sector." Its stint investigating the public administration of NSW began in 1989, with its primary function to "investigate and expose corrupt conduct in the NSW public sector." But it also has a pedagogic function – educating "the NSW community and public sector about corruption and its effects" while also seeking to "prevent corruption through advice and assistance."

There is little doubt that the body has been rather busy, exposing an array of corrupt practices in NSW, be it through the lobby system, or the use by politicians of public and private partnerships that have covered a whole array of muddied transactions. "The suggestion," poses Peter van Onselen, "is that members of the [previous] Labor government may have sought personal benefit from decisions made by cabinet."

There is also little doubt that monumental impacts have been had. The notable scalp of the Coalition's Barry O'Farrell, here one day, gone the next, ensured that the Coalition government did not get away scot-free. O'Farrell claimed a "massive memory fail" in the context of receiving a $3,000 bottle of wine in 2011 from Australian Water Holdings (AWH) executive Nick Di Girolamo. The connection, or so ICAC allege, is that O'Farrell was lobbied by AWH over an agreement with Sydney Water linked to water infrastructure.

The stew was even richer for the fact that AWH was also linked to the stellar target of ICAC proceedings, MP Eddie Obeid, over accusations of corruptly billing Sydney Water for expenses and using proceeds for political donations and executive salaries.

The powers of ICAC involve some procedural teeth – compelling the production of documents; witnesses to answer questions under compulsory examination and public inquiries; public authorities and public individuals to provide information; the power to obtain warrants to search properties; the use of surveillance devices.

These powers are not exercised in a vacuum – search warrants do have judicial oversight, though the ICAC Commissioner does have the power by virtue of the position to issue search warrants. Telephone intercept measures must take place via an application under the Telecommunications (Interception and Access) Act 1979 (Cth) and approved by a Member of the Administrative Appeals Tribunal. The same goes for surveillance device applications, which must be approved by a judge of the NSW Supreme Court.

This does make it a legal oddity, a body with considerable stretch and power on the one hand, without the prosecutorial bite that could be expected. The default position, it would seem, is one of blame and shame – an extended, intense trial by commentary, questioning and media. Individuals exposed are given the chance to fall on their own sword through resignation and contrition, or they assert that they are the victims of a Salem witch hunt backed by political prejudice and Star Chamber proceedings. The Liberals, for instance, are fuming at the sudden resurgence of ICAC enthusiasm after 16 years of Labor government. Political rot tends to lack ideological colour, but some politicians believe otherwise.

The Sydney Morning Herald pointed out some of the pressing issues of ICAC's functions in an editorial last year. Obeid was found corrupt by ICAC, his conduct revealing as truly corrupt and debilitating to the political establishment. "Yet ICAC is not a court of law, and trial by media has no legal standing. He remains, like everyone else, innocent of any crime until charged and convicted, and he has not even been charged." This brings vital questions of justice and administration to light: can change be affected through a formalised exposure within an intense pseudo-judicial setting? Or is change to happen through a concerted ruining of individuals for their conduct without the sanction of legal redress?

Obeid himself was placed under the hammer of financial insecurity, being given all the battering of law without actually having the legal means to disprove the case against him. There is, in fact, an uncomfortable sense that the onus at ICAC is reversed – guilt is presumed and must be dispelled by the accused. The prosecutor's burden, in other words, is not as onerous as it otherwise might be.

Much of its functions suggest that the juices are being stirred, the blood made to boil. But the follow through is never there. Such legal anomalies come with dangers and promise, and while ICAC has left its enduring mark, it has also reduced Australia's political classes to residual muck. It has placed Prime Minister Tony Abbott on the defensive, wary that ICAC's tentacles may start to creep into the Canberra establishment. "If people have got evidence of wrongdoing [in Canberra], let it come forward, but please, let's not be in the business of, as it were, casual smearing of the system because, for all its faults, if we are a great country – and I believe we are – the system can't be all that bad" (The Australian, May 6).

Public perception can be a dangerous thing, and here, it is one disposed to mistrusting political representatives while wondering what comes next. None of that should have been surprising, notably in the country's largest state, but the stain, without efforts to make amends, will remain.