Core allegation underpinning ICAC’s Ryde inquiry unravels

ICAC bungled ‘undisclosed political donations’ allegation, accusing councillors three months before the disclosure deadline

ICAC realised its bungle and removed allegation from its public statement before ambushing councillors with a new, replacement allegation, announced the day of the Ryde report’s release and depriving them the right to respond through legal submissions, as per the accepted process

ICAC buried its justification on page 59 of the Ryde report, using nonsensical, creative accounting to assess the value each of six councillors benefited from a $4,180 joint advertisement in a desperate attempt to reach the $1,000 threshold.

Instead of dividing the amount by six, ICAC said councillors each benefited by the full advertisement value of $4,180

ICAC ignored the fact that all councillors had reported the expenditure by the disclosure deadline

To put it succinctly, ICAC jumped the gun when it accused several Ryde councillors of “receiving undisclosed political donations” when ample time – almost three months – still remained for them to make the disclosures. Ultimately, those disclosures were made and made on time.

When ICAC realised its bungle, it moved the goalposts, accusing six councillors of a completely different offence to the original one spearheading its accusations against them.

More importantly, it circumvented the process of submissions in response to those of Counsel Assisting (which are kept secret from public and in this case were a disgraceful and desperate work of fiction in an attempt to save face).

Flawed and implausible logic was used to justify the new allegation, which was otherwise void of any reasonable evidentiary basis.

To reach the $1,000 threshold required to establish a breach of the electoral rules, ICAC did not divide the value of the joint advertisement in question - $4,180 – by six, which would have amounted to just under $700. It said each councillor received the full value of $4,180, an illogical and ridiculous conclusion.

It also chose to completely ignore that all councillors had reported their expenditure on the advertisements.

The allegation against the Ryde councillors didn’t appear in ICAC’s public statement and media release about its Ryde inquiry on 19th June, 2013, but did make an ill-fated debut in ICAC’s public statement and media release on Friday, 12th July, 2013

For clarity, the allegation – highlighted on the previous page -is the accusation ICAC made in its July 12 media release, three days prior to the July 15 start of the public inquiry: “…..whether Cr Petch and City of Ryde councillors Victor Tagg, Jeffrey Salvestro-Martin, Terry Perram, Michael Butterworth and Justin Li received undisclosed political donations in the form of election advertising in the lead up to the September 2012 local government elections.”

The key term here is “undisclosed political donations” meaning a reportable political donation was

involved and that the reportable political donation was not disclosed within the disclosure period and before the disclosure deadline.

Generally speaking, electoral income and expenditure reporting follows the financial year cycle with reporting deadlines set to September 22, give or take a few days.

For the Local Government Elections in September 2012, campaign income and expenditure after June 30, 2012 fell into the 2012/2013 disclosure period and its reporting was required by September 23, 2013.

Campaign income and expenditure before June 30 fell into the 2011/2012 disclosure period and needed to be reported by September 22, 2012.

The expenditure applicable to each councillor’s share of advertisements that appeared in The Weekly Times newspaper in the lead-up to the September 2012 Local Government elections, took place AFTER June 30, 2012 and therefore fell into the 2012/2013 disclosure period and was reportable by September 23, 2013.

All five affected persons, Cr Petch, Cr Li, Cr Salvestro-Martin, Cr Perram and former Cr Tagg made their declarations or had their agents make declarations within the declaration period set by the NSW EFA, specifically September 23, 2013.

ICAC’s “undisclosed political donations” allegation clearly attempted to introduce something more substantive in its claims against several councillors, who were on one side of what it knew to be a bitter, 2 ½ year political dispute on Ryde Council, over a deeply unpopular, controversial proposed redevelopment.

The “undisclosed political donations” allegation targeted councillors who were fierce political opponents on Ryde Council to two witnesses on whose evidence ICAC chose to rely – former GM John Neish and councillor/lobbyist Bill Pickering.

Despite the clear implications and ramifications of these allegations, ICAC proceeded to introduce them in a seemingly-rushed and ill-considered manner with indications it was aware of insurmountable legal difficulties with this aspect of the case/inquiry.

ICAC most – if it hadn’t deliberately levelled the baseless accusation - likely realised its mistake in the period that immediately followed, but didn’t declare it or disclose publicly that it had made a baseless claim against the councillors. The allegation was removed from its Media Alert on 30th August, 2013 and similarly, was nowhere to be seen in ICAC’s Media Alert on 19th September, 2013.

The next media release issued on 26th June, 2014, alerting media to the impending release of the inquiry’s report also made no mention of any allegation.

But ICAC decided to ‘move the goalposts’ and the media release that went out with the Ryde investigation report, introduced the substitute allegations against the five affected councillors without any further explanation, detailing its seriously flawed logic only for those sufficiently interested to actually read almost completely through (p59) of its not very interesting or worthwhile, 71-page Ryde investigation report.

ICAC Media Release On Day Ryde Report Was Released – June 30th, 2014

Apart from persisting with its abuse of power in pursuing councillors with no case to answer, ICAC also circumvented the processes and undertakings it outlines on p8 of its 'Information for Witnesses' booklet which states: “Ordinarily, orders will be made requiring counsel assisting to provide written submissions within 14 days of the close of evidence and all other parties to provide their written submissions 14 days thereafter”.

Page 8 of ICAC's 'Information for Witnesses' Booklet

Those with the stamina to read to page 59 of ICAC’s Ryde investigation report would have been rewarded with some entertaining reading in the form of ICAC’s flawed logic in a desperate attempt to save face over core allegations in its inquiry for which it was led down the garden path by two witness on which it unwisely chose to rely.

ICAC now alleged the five councillors accepted an indirect campaign contribution under s 96E of the EFED Act. This is despite ICAC producing no evidence of the supposed source of the advertisements and selectively dealing with evidence to support what appears to be a pre-determined conclusion.

ICAC at this point reveals the value of the four half-page advertisements – for which it has unreasonably dragged a group of councillors through the ignominy of the ICAC investigation and public inquiry process – is $4,180.

It has persisted in its attempts to penalise the councillors despite each declaring their contribution to the shared advertisements within the guidelines of the NSW Electoral Funding Authority and certainly before their September 23, 2013 deadline.

Flawed allegations detailed in ICAC's Ryde investigation report in which it presents a dishonest and concocted narrative, almost

certainly a symptom of serious political interference with ICAC processes

In fact, ICAC also acknowledges that s 96E of the EFED Act stipulates the value of an indirect campaign contribution must exceed $1,000 before it can be considered unlawful. The portion attributed to each councillor’s share of the advertisements, which in turn were reported, fell under the $1,000 threshold.

But ICAC applies a strange logic – part of what appears to have been an overall exercise in obfuscation - attributing the full value of the advertising to each of the affected councillors. It does this rather than the more just approach of removing these allegations from the report, especially in view of their likely rejection by the DPP.

It is worth taking a peep at ICAC’s justification (above) to prove – at the very least- the type of behaviour which represents a clear abuse of its powers: “Each councillor received the full benefit of the advertising it promoted the re-election of each councillor. The value of the advertising to each councillor exceeded $1,000 because that is what it would have cost the individual councillor had he placed an advertisement of that size in the newspaper promoting his re-election.”

In any case, the affected councillors had already treated this campaign expenditure and declared it to the NSW EFA as is compulsorily required for income or expenditure of more than $1,000 in value and as an added measure of certainty, despite the value of advertising received by each, based on logical calculations, not having reached the $1,000 threshold.