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EXCLUSIVE
Journalists and media outlets campaigning against anti-corruption bodies are actively spreading a “massive trove of misinformation” and appear to be running a “deliberate campaign to mislead people”, says one of the nation’s top former judges.
Former NSW Court of Appeal Judge Anthony Whealy QC said arguments that anti-corruption regulators were “star chambers” that unfairly damaged political reputations were “quite wrong” and not supported by the evidence.
Whealy is chair of the Centre for Public Integrity, an independent think-tank created by a group of former top judges and integrity experts in response to the lack of a federal anti-corruption regulator, and to highlight flaws in political donation laws.
Other members include former Federal Court of Australia Judge Tony Fitzgerald QC, former Victorian Court of Appeal Judge Stephen Charles QC, and former Police Integrity Commissioner Geoffrey Watson SC.
Whealy, a one-time assistant commissioner of the NSW Independent Commission Against Corruption (ICAC), has been examining the handful of examples – of “hundreds” of ICAC decisions over more than three decades – put forward by critics as evidence of overreach or unfair outcomes.
None of them stack up.
“It’s basically a massive trove of misinformation,” said Whealy.
“When it’s uttered by politicians it’s usually because they don’t understand the processes or what’s going on.
“But when it’s advocated in the media, as it is quite often, I think it almost amounts to a deliberate campaign to mislead people,” he said.
Former NSW Court of Appeal Judge Anthony Whealy QC. Source: Supplied
“It almost amounts to a deliberate campaign to mislead people” — Anthony Whealy QC
Whealy made the comments in an interview conducted before Liberal Prime Minister Scott Morrison on Thursday doubled-down on his earlier attacks against ICAC.
Despite offering no evidence, Morrison, in Federal Parliament, described ICAC as a “kangaroo court” that pursues “political vendettas” and referenced NSW Liberal Premier Gladys Berejiklian.
Berejiklian voluntary resigned last month after it emerged she was being investigated by ICAC over millions of dollars worth of allegedly corrupt government grants.
The grants were in connection to Daryl Maguire, the disgraced former NSW member for Wagga Wagga, who Berejiklian had been in a secret relationship with for at least five years.
Morrison’s comments have been widely condemned by legal experts.
Fellow member of the Centre for Public Integrity, senior barrister Geoffrey Watson SC, who is also a former ICAC counsel assisting, told ABC Radio he was “appalled” by Morrison’s comments, describing them as “deeply insulting”, “wrong” and deliberately misrepresenting the regulator.
The Law Council of Australia called for “respect for Australia’s legal institutions”.
“The structure and powers of any commission are important topics for discussion, but any commentary must be tempered by fairness and balance,” said Law Council of Australia President Dr Jacoba Brasch QC.
Maguire and Berejiklian before Maguire was forced to resign from NSW Parliament in disgrace in 2018. Source: Supplied
NSW ICAC was created under a NSW Liberal Government, in 1988. The current ICAC Chief Commissioner; its two part-time/deputy commissioners; and its CEO were all appointed by Berejiklian herself, after she revamped the commission in 2017.
(Last year ICAC appointed former NSW Supreme Court Judge Ruth McColl SC to preside over the public hearings of Operation Keppel, the code name for the investigations into Maguire and Berejiklian).
The issue of a federal corruption regulator is set to be one of the central issues in the upcoming federal election, which Morrison must hold by May.
Justice Whealy said attacks on ICAC by sections of the media were not supported by the evidence.
“They say that reputations have been unfairly damaged, but that’s quite wrong,” Justice Whealy said.
“They say that reputations have been unfairly damaged, but that’s quite wrong” — Anthony Whealy QC
“If you go to each of the cases you’ll find that it’s misleading to say that those illustrations prove anything deleterious about ICAC”.
In each case, those who were found to have engaged in corrupt conduct, “were deserving of those findings”.
“When you actually examine the four or five examples that are always trotted out – and there are usually only about four or five, they’re the same ones – if you understand them, examine them, and go into depth, you find (the claims) are quite wrong,” Whealy said.
“People who have findings made against them of corrupt conduct, were people whose conduct deserved those findings.
“People who have findings made against them of corrupt conduct, were people whose conduct deserved those findings” — Anthony Whealy QC
“It’s just misinformation quite frankly,” he said.
The explosive comments put yet more pressure on an embattled commercial media landscape, as former prime ministers Kevin Rudd and Malcolm Turnbull push for a Royal Commission into media diversity, largely due to highly-unethical practices allegedly engaged in by News Corporation Australia.
Australia has one of the most highly-concentrated media sectors in the democratic world and News Corporation controls about 70% of the newspaper market – including The Australian, The Daily Telegraph, The Herald Sun and The Courier Mail – as well as TV outlet Sky News, which is seeking to replicate Fox News in the US.
The outlets have long attacked NSW ICAC and are campaigning against the introduction of a national integrity commission.
A petition by Rudd for a Royal Commission attracted more than 500,000 supporters, more than any other in Australian history.
No Evidence
Regarding one case regularly put forward by ICAC critics, Whealy said the only reason a politician did not have criminal charges proceed – despite ICAC having determined he engaged in corrupt conduct – was because of the death of the main witness.
“I’m looking at one case today, there was a well-known example of a person who was found to be taking donations from property developers, and this fellow was running as a candidate,” Whealy said.
ICAC found that doing so was corrupt conduct, because property developers are not allowed to make political donations.
“So that finding was totally justified,” Whealy said.
“The matter was referred to the director of public prosecutions, but before the matter went to trial, the principal witness that was able to describe these payments being made, died.”
Given there was no principal witness left, the DPP dropped the charges.
“Now that’s put forward as an example of someone who’s reputation has been unfairly damaged, and I just don’t agree that it’s true,” Whealy said.
“The evidence was there before the Independent Commission Against Corruption, and so the findings were justified.
“Had that evidence been available in a criminal trial there would have been a conviction.
“So it’s just a typical example of misinformation being peddled,” he said.
“It’s just a typical example of misinformation being peddled” — Anthony Whealy QC
NSW ICAC had been making findings of corrupt conduct for almost 35 years, since it was founded under a NSW Liberal government in 1988.
“There are hundreds of cases, and no-one’s suggests that those cases have any problem with them,” Whealy said.
“And we’ve seen recently, Mr Obeid and Mr McDonald in NSW have been convicted of crime and were originally the subject of adverse findings by ICAC.”
(The NSW Supreme Court last month jailed former NSW Labor Government ministers Eddie Obeid and Ian McDonald over a corrupt $30 million coal deal, saying the serious of their conspiracy “was one of the highest order”.)
“No-one says there’s anything bad about that, so I think it’s just misinformation quite frankly,” Whealy said.
Berejiklian as NSW Premier “reconstituted” the anti-corruption regulator in 2017.
Her 2017 appointment of former Supreme Court judge Peter Hall QC as the “inaugural Chief Commissioner of the reconstituted Independent Commission Against Corruption” reflected “the Government’s commitment to the highest levels of integrity in the public sector”, Berejiklian said at the time.
On Thursday Morrison’s Federal Coalition prevented a cross-bench effort to hold debate over the introduction of a national integrity commission, something Morrison promised almost three years ago but has failed to deliver.
Tasmanian Liberal MP Bridget Archer crossed the floor to support a motion by independent MP Helen Haines.
Haines, who has proposed a robust version of a federal ICAC, had called for parliament to discuss the issue.
The push was unsuccessful – laws introduced by Morrison ostensibly related to Covid-19 mean a greater proportion of votes is required than usual for such requests to proceed.
ALP leader Anthony Albanese asked Morrison why the government had failed to introduce a national integrity commission “over 1000 days” since promising one.
Morrison responded that Berejiklian had been “done over” by NSW ICAC.
“Those opposite want to support the sort of show which has seen the most shameful attacks on the former premier of NSW, Gladys Berejiklian,” he said.
“What was done to Gladys Berejiklian, the people of NSW know, was an absolute disgrace.
“I’m not going to have a kangaroo court taken into this Parliament. These matters should be looking at criminal conduct, not who your boyfriend is,” Morrison said.
Senior barrister Geoffrey Watson SC later that day told ABC Radio that he was “just deeply appalled” by the comments.
Geoffrey Watson SC. Source: The Centre for Public Integrity
“Why trivialise matters of public importance such as corruption in the public sector by saying that?” he said.
“He (Morrison) said it was an investigation into who (Berejiklian’s) boyfriend was. It was false, he was wrong, he must have known that that was wrong.
“He’s the Prime Minister of Australia, we deserve better than this,” Watson said.
“It was false, he (Morrison) was wrong, he must have known that that was wrong” — Geoffrey Watson SC
It was also wrong to say Berejiklian was ousted by ICAC, as leaving was entirely her decision.
“She (Berejiklian) could have stayed in that position, stood aside temporarily and she could have resumed it by now,” Watson said.
“But she knew what was coming and she made the decision to resign.
“That was her decision, it wasn’t ICAC,” he said.
Morrison’s claim that NSW ICAC was pursuing a “political agenda” was “really, deeply insulting,” Watson said.
“These are fair-minded people who are trying to do a decent job. He shouldn’t have said that.”
Morrison was also making “premature statements” about ICAC’s processes, which other politicians, such as former NSW Premier Bob Carr, had “got into a lot of trouble” with ICAC for in the past.
“He’s (Morrison) saying people pushing political agendas. He’s the one who was doing it. I don’t know why he said all of these things,” Watson said.
“This is a serious issue, about which a lot of Australians want a serious debate.”
“This is a serious issue, about which a lot of Australians want a serious debate” — Geoffrey Watson SC
Polls consistently show overwhelming support from the public for an independent federal anti-corruption body, with strong support among both Coalition and ALP voters.
An Essential poll last month found 78 per cent of voters, and 77 per cent of Coalition supporters, back such a move – other polls put support among conservative voters as high as 88 per cent.
“This whole thing is a bit of a mess you know,” Watson told ABC Radio.
“This is parliament. He’s the prime minister of Australia. I saw him, he was standing there, he was red faced, he was shouting, he was waiving his arms around. (Video here).
“He was behaving more like a man in a pub angry because his footy team was losing. This isn’t right.”
“He was behaving more like a man in a pub angry because his footy team was losing” — Geoffrey Watson SC
Watson said he “can’t remember Mr Morrison getting to his feet and complaining that the Labor Party of NSW had been treated unfairly by ICAC”.
“I can’t remember Mr Morrison getting to his feet and complaining about what Julia Gillard went through at a Royal Commission or what Bill Shorten went through at a Royal Commission. He was silent then,” Watson said.
Morrison’s comments on Thursday followed a similar attack early last month when he told David Koch on morning television program Sunrise that NSW ICAC was “never a model we have contemplated at a federal level”.
“I’m sure there are millions of people who’ve seen what’s happened to Gladys Berejiklian and will understand that’s a pretty good call not to follow that model,” Morrison said.
Of all the proposed models of a national integrity commission, Morrison’s version is the weakest and many experts, including The Centre for Public Integrity, say it would effectively serve to cover-up corruption by federal politicians.
Archer was reportedly “ambushed” after she crossed the floor Thursday.
Treasurer Josh Frydenberg took Archer to his office only to then take her to a meeting with Morrison and Foreign Minister Marise Payne.
“I spent the first half of the conversation crying and apologising. I just really felt that I would have liked to have had the conversation later in the day,” Archer said.
Watson said Archer should be commended for her actions.
“I hope Bridget Archer is listening to this, that was a moment all Australians should be proud of, what she did today,” he told ABC Radio.
“She jeopardises her political career, her future, standing on a point of principal.
“I admire Bridget Archer,” he said.
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