The implications of NSW ICAC on my political career


On 20 November 2019, the Federal Attorney General, the Hon Christian Porter MP, addressed the National Press Club. His speech canvassed a wide range of issues, however, the one that rang a chord with me, was his thoughts about a proposed Commonwealth Integrity Commission.

Few people would argue with the value of a body that provides oversight over government and those who interface with it. Many states have their own so-called integrity bodies such as the Independent Commission Against Corruption of  NSW (NSW ICAC). However, as Christian Porter states, many of these bodies “have fallen well short of long accepted standards of justice and fairness”. There is no presumption of innocence. The mere footage of an individual walking into a public hearing carries with it a stigma that can never be erased.

Some of these bodies hold public hearings as part of their inquiry process. These are an opportunity for counsel assisting to make allegations with statutory protection from defamation. These allegations regularly ruin the reputations of anyone unfortunate enough to be called to give evidence, even if they are not a person of interest. With this, the rights of the individual are irrecoverably removed.  

The NSW ICAC currently has statutory protection to make findings in relation to criminality.  These findings should be made to the criminal standard of “beyond reasonable doubt” rather than the civil standard of “balance of probabilities”. Anything less is just a licence to defame. Allegations are made that never withstand the scrutiny of the justice system. This is the reason they have a reputation as “toothless tigers”.

Allegations are published as truth. Evocative language by counsel assisting dominates news cycles. It is an intoxicating mix and creates a temptation for counsel to push the boundaries rather than be more measured in their approach.

As a former NSW ICAC Commissioner said in relation to inquisitorial bodies, that it “is fantastic, you are not confined by the rules of evidence, you have a free kick, you can go anywhere you want to go and it’s a lot of fun”. 

When the Inspector of the NSW ICAC Mr Bruce McClintock SC was recently asked what impact the appointment of a zealot to run the ICAC would have, he responded “If you appoint people like that you will have problems”.

When referring to the improvements he has seen in the NSW ICAC in recent years Mr McClintock said that “I think the choice of counsel assisting is being done differently and better, which I think has cured, resolved or removed a whole series of problems that were there”.

Christian Porter points out that the legislative framework needs to be crafted with great care. He identifies that we need to learn from the failures of many of the state based ICAC’s where “reputations have been unfairly damaged”.

Sadly, there have been some recent glaring examples that justify these concerns.

The outrageous pursuit of Margaret Cunneen in 2014 by the NSW ICAC backfired spectacularly when the High Court ruled that the case did not even sit within their jurisdiction.

ICAC’s response was to issue a press release (long since removed from their website) that effectively claimed the High Court “got it wrong”. It was like a dentist claiming they should still be allowed to conduct brain surgery. Organisational arrogance somehow allowed them to justify in their own minds conduct that was outside their powers.

In my case, I had always placed great faith in both the NSW ICAC and the individuals associated with it.  Unfortunately, my trust was betrayed.

In 2014, the ICAC held a public inquiry into political donations during the 2011 NSW state election. I was a newly elected MP at that election. Along with many other state MPs at the time, I was asked to give evidence in private about my campaign.

As an MP, and as a father, I was determined to be utterly truthful and transparent.  I gathered all relevant documents together and provided a statement to Counsel Assisting that outlined matters in my campaign that may be relevant to the inquiry.

What happened next is on the public record.

I was invited to attend counsel assisting’s chambers. Counsel assisting served two bottles of wine to the people present including ICAC staff. Counsel assisting told me he would stake his reputation on protecting my reputation. I was given a written undertaking that this information would not be used against me.  

Unbelievably it was.  

Ultimately, despite all of the wild allegations, I was cleared. However, this took four long years. 

The model being proposed by the federal government is one where the new organisation will be tasked with building a brief of evidence to send to the Commonwealth Director of Public Prosecutions rather than making value judgements on individual’s conduct.

I believe this will result in improved oversight of government without trampling over the rights of individuals as we have seen in NSW.

It is just over 800 years since the Magna Carta was signed by King John of England establishing inalienable rights to citizens that still exist today.  These rights have been grimly defended over the subsequent centuries and should not be abandoned to pander political opportunism.

I look forward to the federal parliament following the counsel of the Attorney General and creating an organisation befitting our democracy.

Andrew Cornwell is a former NSW MP for the seat of Charlestown. His opinions are his own. 

How the nanny state is harming Australia’s economic prosperity


From city slickers to countrymen there is one commonality that unites us all in this land girt by sea. No, it’s not the Baggy Green. It’s this country’s ridiculous laws.  

The term ‘nanny state’ gets thrown around a lot in relation to modern Australian life. Our ‘nanny’ implies being cared for, nurtured, rocked back and forth and softly sung to while mummy has her third chardonnay with the girls on the patio. It wouldn’t be a stretch to say that many small businesses across the country feel far from any of those things. 

With Sydney’s notorious lock out laws set to be withdrawn (mostly) in January (2020) following the sudden and shocking realisation by the NSW Premier that they were negatively impacting the night-time economy, it felt more than appropriate to take a look at some other laws helping businesses across the land thrive(!) to their fullest and most prosperous potential. 

Consider for a moment, the good ol’ Aussie sausage sizzle. Save for Russell Crowe and Rolf Harris, what could be more Australian than a public sausage sizzle? Some would say the bread, onions, and sauce combination elevate the barbequed sausage to a national dish frontrunner. As a new business owner, it is also a stellar way to draw immediate attention to your business, raise some quick money, and get your name out there. 

But selling food in Victoria is a particularly risky business. Setting up a sausage sizzle stall requires a Food Act registration application to be made to your local council. If the application is approved, then a Statement of Trade will need to be lodged to the council that you’ll be trading within. Once these two processes are completed and are done to the standard detailed in the Act then – and only then – may you, the humble temporary food provider, sizzle your sausages. 

There are copious fact sheets and online resources to guide business owners smoothly through the process. 

There’s a lot of controversy on the correct way to build a sausage snag; with onions, without onions, with sauce, without sauce. But if you’re unfortunate enough to like eggs, or bacon with your sausage sizzle there’s a price you’ll have to pay. The above regulatory process only applies to traditional sausage sizzles which are deemed a ‘class 4 food’. The traditional sausage is officially defined as a combination of the sausage, bread, sauce and onions. Eggs, bacon and vegetarian patties however are a ‘class 3 food’ which have stricter regulations on their sale and a more extensive application process!

The sausage sizzle is just one example of the many, many, strange laws and regulations that plague this spacious land. Opening a business has never been harder and accidentally committing a minor offence has never been easier. A brave new world indeed. 

Of course, you’re probably wondering, why is this so? Why do Victorians have such onerous laws about cooking sausages? 

The truth is, we live under many thousands of ridiculous laws. Most of them have become so commonplace that like the story of the boiled frog, we’re unaware we’re being cooked ourselves. 

Modern Western democratic governance is extremely risk averse. Governments get punished in the short term when someone gets sick from a dodgy sausage sizzle, but the costs of such regulation are spread over time and millions of people. Eventually, one day folks look back at the silly laws and repeal them, but not before everyone has suffered without even realising it. 

For example, NSW required travel agents to be licensed between 1986 and 2014. Western Australia required barbers to be licensed until 2009. Presumably both sets of legislation were the product of someone getting a poor consumer experience and some media moral panic. 

It all leads back at the end of the day to what the role of government is. Sadly, most Australians today believe it’s the government’s job to protect them from any risk. 

I can’t possibly understand why anyone would want a bunch of folks who can’t even build a canoe to decide what is best for them. Anyone who’s ever run a business knows that governments just put up roadblocks to success. Certainly, they mostly mean well. But the road to ruin has always been paved by good intentions. 

The key therefore, is to get back to that rugged individualism that Australians have always been famous for. We rely on those we trust. Governments should exist to provide us with police, courts and the armed forces. Let’s keep it limited to that please.  

Kyle Kutasi is a solicitor with Solve Legal,