Case Studies Highlighting the Flaws in ICAC
The best way to understand the flaws in NSW’s ICAC, is to see examples of real Australians who have not been treated fairly by ICAC.
The Rule of Law Institute of Australia has written extensive commentary about the flaws in the NSW ICAC Model- most recently in its Submission to the Committee on the Independent Commission Against Corruption: Inquiry into Reputational Damage on an individual being adversely named in the ICAC’s Investigations.
1. Case Study: Charif Kazal
The need for an exonerational protocol is illustrated in the case of businessman Charif Kazal which formed the basis for the extensive report by John Nicholson SC, Acting Inspector ICSC: Report by the Office of the Inspector of the Independent Commission Against Corruption on complaints by Andrew Kelly, Charif Kazal and Jamie Brown, tabled in the NSW parliament, June 29, 2017
Kazal was declared corrupt but was never prosecuted.
It would be a mistake, however, to view this absence of prosecution as beneficial for Kazal. Because there is no merits review of ICAC’s determinations, a criminal trial would have given him the opportunity to have the facts that led to the commission’s finding subjected to scrutiny. Instead, he has been damned as corrupt and denied access to the one forum that could have determined conclusively whether he was in fact guilty of wrongdoing: a criminal trial.
In the report by Nicholson is stated:
The consequence of that course, is that Charif Kazal will never have the opportunity to clear his name.
That finding [of corruption] having been made, however, leaves Charif Kazal with a stain upon his honour, reputation and his right to be considered as a person of good character with no means at law of being able to retrieve or recapture those qualities through recourse to the law or to have the findings of the Commission expunged from the records of ICAC and its publishings on the internet. It has impacted upon his presumption of innocence.
Nicholson’s report shows that he believes it is futile to complain to the office of ICAC’s independent inspector under provisions of the ICAC Act in an attempt to rectify an incorrect finding by ICAC.
An exoneration process is not simply about correcting the damage to individuals, but rebuilding ICAC’s public standing. Any legal institution that has no reputation for justice has no reputation.
In times of international uncertainty, Australia’s reputation for adhering to the rule of law would be reinforced by an exoneration protocol. ICAC’s work is important, but if the country is seen as failing to adhere to the rule of law, it will erode a source of pride and certainty in an uncertain world. Australians have a legitimate expectation that they will be treated justly by the institutions created by parliament.
Further article: Chris Merritt, when Legal Affairs Editor wrote in The Australian on 4 August 2017 ‘ICAC: Charif Kazal backs exoneration path for falsely accused’
2. Case Study: Murray Kear
Murray Kear was the head of the NSW State Emergency Service (“SES”) and in 2013 was investigated by ICAC for dismissing a staff member allegedly in reprisal for the staff member making allegations about the conduct about another staff member. In December 2013, ICAC held a public inquiry into the allegation and issued a report in January 2014 finding Mr Kear had engaged in corrupt conduct. In early 2015 Mr Kear was charged by ICAC with dismissing the Deputy substantially in reprisal for the making complaints.
In the case of Mr Kear the full force of ICAC was brought against him for dismissing his Deputy.
- First, the inquisitorial powers of ICAC, search warrants, the obligation to answer questions, the public hearing, the cherry picking of evidence and exclusion in the report of evidence favourable to Mr Kear.
- Then, the public report of ICAC condemning him as corrupt.
- Then, being forced to retire, disgraced without an ongoing wage and being unemployable.
- Then, all the powers and resources of ICAC in prosecuting him with an offense which presumed guilt unless Mr Kear proved his innocence.
Mr Kear’s case went to the Courts and his trial lasted for 16 days.
On 16 March 2016, Magistrate Grogin dismissed the charge against Mr Kear and found him innocent of the charge. In the course of his judgement he stated:
“113. I find that there were many factors behind the dismissal of Ms McCarthy by the Defendant. The inability of Ms McCarthy to assimilate into, co-operate within and lead the SES was, I find, the primary and substantial reason for her dismissal by the Defendant. I am satisfied that the Defendant did not dismiss Ms McCarthy as a reprisal, substantial or otherwise, for her making public interest disclosures. I find that there was no element of revenge, pay-back or retaliation against Ms McCarthy by the Defendant.”
This was a finding not simply that Mr Kear was not guilty but a positive finding of innocence. The effect of the Magistrate’s judgement was that ICAC’s findings of corrupt conduct by Mr Kear was wrong.
However, there was no apology or form on exoneration from ICAC.
Irrespective of the Court’s decision, ICAC believes that their findings of corrupt conduct still stands. In ICAC’s Report to the Premier: The Inspectors Review of ICAC, 12 May 2016 it states:
“Criminal courts do not operate as a mechanism for review of Commission findings. The fact that a person found to have engaged corrupt conduct is not prosecuted for a criminal offence or, if prosecuted, not convicted does not “exonerate” that person from a corrupt conduct finding. In any event, criminal proceedings do not “exonerate” a person from a criminal offence. In a criminal court persons are “acquitted” or found “not guilty”. They are not found “innocent” or “exonerated”.”
Rule of Law Australia Submission to the NSW Parliamentary Committee focusing on the Murray Kear Case and ICAC’s failure to presume innocence and provide fairness and justice
Miranda Devine writes in Daily Telegraph, ‘ICAC victims cleared but still left smeared’
3. Case Study: NuCoal
Chris Merritt outlines the story of Nucoal after ICAC made findings of corrupt findings. Merritt explains what happens when the presumption of innocence is cast aside, not just by a court, but more importantly by a Parliament.
4. Case Study: Margaret Cunneen SC
Read a Case Summary here by Timebase.com of ICAC v Margaret Cunneen  HCA 14 and also the Sydney Morning Herald article on 16 April 2015 by Barrister, Louise Clegg:
Never in the history of the ICAC, have the facts of a case in ICAC’s sights so comprehensively failed to meet the statutory injunction in section 12A. ICAC’s decision to investigate and pursue an allegation that Cunneen allegedly told her son to tell his girlfriend to fake chest pains to avoid a breathalyser test at the scene of a motor vehicle accident amounted to nothing more than a decision to investigate a lie told to a police officer. No one would condone the telling of a lie to a police officer. Nonetheless, it was the glaringly obvious triviality of the allegation that led the legal community to collectively scratch its head, that likely prompted the legal challenge to ICAC’s jurisdiction, and led to the High Court being required to grapple with the more technical issue of the meaning of corrupt conduct….
Why on earth, given Parliament’s insistence that ICAC should focus on serious or systemic corruption, was ICAC so intent on devoting scarce public resources to investigating an alleged lie told to a police officer at the scene of a motor vehicle accident?
In considering the Cunneen case, I Dobinson & L Houston wrote in ‘ICAC’s Operation ‘Hale’: A Low Point in the History of the Agency‘:
In a liberal democracy, conservatism demands that institutions that have served us well be protected: the rule of law, including procedural fairness, is amongst them.
One of the great things about Australians is our healthy skepticism of any institution which gains too much power, and if we’re honest with ourselves, isn’t that exactly what ICAC has become? (Dore2015) Certainly, the Inspector of the ICAC thought so. In his Report on Operation Hale (Levine2015), Inspector David Levine described the [Cunneen] case as‘ a low point in the history of the agency, and the watch dog had engaged in unreasonable, unjust, [and] oppressive maladministration’ (Levine2015,pp.50,56,63)