The ICAC Disaster !

Australia's highest legal body has delivered a four to one ruling that has rocked the tenets of justice in New South Wales. The High Court found that ICAC  "had no power to investigate " Deputy Crown Prosecutor Margaret Cunneen, vindicating Cunneen's dogged search for legal justice through the lower courts.

This strange case evolved when Cunneen's son and his girl friend were involved in a car accident. An anonymous complaint was lodged with ICAC claiming that Cunneen coached her son's girlfriend to claim chest pains to avoid a breath test - and that this constituted corruption. This young woman was taken to hospital by ambulance, where blood was automatically taken and analysed for alcohol - returning  a negative result.

Cunneen was a high profile prosecutor and her success obviously created enemies.  She claimed that this was a malicious accusation, but ICAC raided her home in the full glare of the media and seized not only her phone, but also the phones of the paramedics who attended the accident.  It quickly gained the notoriety of a "get " Cunneen witch hunt.   ICAC refused to divulge the name of the person who lodged the complaint.

The exact input of that High court decision probably eludes those not trained in the law but it seems that it revolved around the fact that "no police officer acted dishonestly " in processing the accident scene, and therefore the decision to investigate Cunneen fell outside the ICAC mandate.

This individual case has already racked up costs in excess of a million dollars - which will go against ICAC - but the possible ramifications of the finding could run to a cricket score of costs.  ICAC was originally set up by then NSW Premier Nick Greiner twenty-five years ago to root out corruption.  Greiner himself fell foul of it on a technicality and resigned as premier.   More recently, Barry O'Farrel quit the states top post over contradictory evidence over a bottle of wine.

There is a huge brief of cases handled by ICAC or in due process and obviously the entire legal profession will be culling through this finding to see if it applies to their clients.  High profile actions include the Australian Water Holdings case, the Liberal Party donations scandal,  and of course the coal licensing fiasco involving both Eddie O'Bied and Ian McDonald.   The ramifications may be extensive.

It seems that the legislation to set up ICAC decades earlier was flawed if it placed limitations on it's ability to instigate investigations - or it was wisely framed to stop misuse which seems to be the motivation in the Cunneen case.   There are mutterings about consolidating ICAC by merging it with other legal units but probably the wisest course would be to scrap it - and start again.

The damage is already done in that past ICAC findings will be subjected to this new ruling and compensation will run to millions of dollars.   No doubt individual cases will trickle through the courts for years, cleaning up this mess.  Trying to patch up a botched legal framework is an invitation for further high court challenges.

What we need is a brand new ICAC act in which the intent of the body is clearly spelled out and the parameters are clearly defined.   Anything less will simply prolong the agony !