The Independent Commission Against Corruption (ICAC) continued to generate controversy in 2014.
Public hearings
The year opened with public hearings in Operation Spector, an investigation into solicitation of funds by a RailCorp employee and a FACS employee. This was followed by Operation Credo in March and April concerning allegations of corrupt conduct involving public officials and persons with an interest in Australian Water Holdings Pty Ltd (AWH). Operation Credo led to Barry O'Farrell resigning as NSW Premier over his " massive memory fail" as to the receipt of a bottle of Grange from AWH's Nick Girolamo.
With public hearings which commenced in April and captivated the state over the months following, Operation Spicer examined whether certain members of parliament solicited, received and failed to disclose political donations from prohibited donors. The revelations in Operation Spicer led to a number of NSW Liberal MPs standing aside from the Parliamentary party and to Arthur Sinodinos, Assistant Treasurer in the Abbott Ministry, standing aside, later to resign. These revelations have also led to the NSW Parliament passing new electoral funding laws.
In July the ICAC held public hearings into allegations concerning the former chancellor of the University of New England in connection with the sale of the Tattersall's Hotel ( Operation Verdi).
Reports
ICAC released investigation reports regarding:
- the conduct of the commissioner of the NSW State Emergency Service;
- Operation Cyrus (conduct of the Hon Edward Obeid MLC and others concerning Circular Quay retail lease policy);
- Operations Cabot and Meeka (conduct of the Hon Edward Obeid MLC and others in relation to influencing the granting of water licences and the engagement of Direct Health Solutions Pty Ltd);
- Operation Cavill (conduct of certain City of Ryde councillors and others);
- Operation Spector (see above);
- Operation Yaralla (concerns that Sydney Local Health District engaged consultants at the Yaralla Estate because of political donations and links to the NSW Liberal Party); and
- Operation Verdi (see above).
Proceedings
Applications to the NSW Supreme Court were made following the release in 2013 of ICAC's reports in Operations Jasper and Acacia, each of which were subject of decisions by the Court in 2014.
The proceedings brought by Travis Duncan and others (the Duncan proceedings) variously sought declarations that the findings made against individual plaintiffs were nullities and that the recommendations made in respect of the exploration licence held by Cascade Coal Pty Ltd (Cascade Coal) were nullities. The result was mixed for the individual plaintiffs, with Mr Kinghorn successful on his application on the basis that there lacked an essential jurisdictional fact necessary before there could be a finding of corrupt conduct. Cascade Coal was unsuccessful on the basis that the recommendations subject of its application did not amount to a decision susceptible to review.
Following ICAC's success in the Duncan proceedings, it applied to summarily dismiss proceedings brought by NuCoal Resources Ltd (NuCoal) in the NSW Supreme Court in which NuCoal sought judicial review of findings and recommendations made by the ICAC in Operation Acacia. The Court refused ICAC's application, holding that there was a triable issue regarding reputational damages.
The fall out from Operations Jasper and Acacia continued, with the NSW Government introducing legislation to cancel the exploration licences for Doyles Creek, Mt Penny and Gendon Brook in January 2014 ( read more) resulting in constitutional challenges being launched by each of Cascade Coal and NuCoal. The NSW Government also introduced amendments to the Criminal Assets Recovery Act as part of its response to Operations Jasper and Acacia ( read more).
In an application by a developer for an order of mandamus to require the Council to determine a development application (DA), the Land and Environment Court held in November that it was appropriate for Woollahra Council to defer its decision on the DA pending an ICAC investigation of conduct in relation to the obtaining of landowner's consent over Crown land ( read more). In refusing to make the order of mandamus, the Court held there was no constructive failure to determine the DA by Woollahra Council and that Woollahra Council did not act unreasonably.
More recently and most controversially, a pre-emptive application to the Court was made before the commencement of public hearings in Operation Hale where the ICAC had been investigating allegations that deputy senior Crown Prosecutor Margaret Cunneen SC had counselled her son's partner, Sophia Tilley, with the intention to pervert the course of justice to prevent investigating police officers from obtaining evidence of Ms Tilley's blood alcohol level at the scene of a motor vehicle accident. Initially the plaintiffs sought a declaration that the ICAC was exceeding its jurisdiction in conducting the investigation and that the decision to hold a public inquiry was invalid and a nullity. The initial orders sought were refused and an appeal followed. The NSW Court of Appeal allowed the appeal holding that conduct is not corrupt unless it satisfies both criteria under s 8(2) of the ICAC Act. ICAC is seeking leave to appeal to the High Court.
The ICAC has stated that the decision of the Court in relation to Operation Hale has fundamentally altered the basis of its powers with respect to significant parts of Operations Credo and Spicer and, pending the outcome of the special leave application to the High Court, it will not complete its reports in respect of those investigations.
Prosecutions
To round off the year, Eddie "less than 1% chance" Obeid was charged with misconduct in public office following from the ICAC's investigation in Operation Cyrus.
Prosecutions have also commenced against former NSW Minister for Natural Resources, Ian Macdonald, and the former chairman of Doyles Creek Mining Pty Ltd, John Maitland, for misconduct in public office and being an accessory before the fact (respectively), following the ICAC's investigation in Operation Acacia.
Perhaps these high profile prosecutions will once and for all change the public perception that recommendations and referrals from ICAC investigations do not result in prosecutions. This is a theme taken up by the Hon Megan Latham in her foreword to the ICAC's most recent annual report (2013-2014), noting that from the 9 public inquiries, 41 persons were subject to corrupt conduct findings and 11 were prosecuted.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
