ICAC's DPP links cloud its independence THE AUSTRALIAN I MARCH 11 . 2016 12:00AM

Chris Merritt Legal Affairs Editor Sydney

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Former head of the NSW Independent Commission Against Corruption David lpp QC.

Fresh doubts have emerged about the independence of the NSW anti-corruption watchdog after the state government revealed previously undisclosed links with key parts of the criminal justice system.

For more than two years, officials seconded from the Director ofPublic Prosecutions and the Crown Solicitor's Office worked alongside staff from the Independent Commission Against Conuptiion on one of its most important inquiries, Operation Jasper.

Their involvement, which was not made public during the inquiry, has come to light after internal government documents detailed other undisclosed links between ICAC and senior levels ofthe state goverrunent during the same inquiry.

Before these disclosures, the Jasper inquiry was best known for its sensational findings concerning the way the previous Labor govermnent had awarded coal exploration leases.

But while that inquiry was under way, ICAC was involved in private exchanges wi1th the Coalition government that must now cast a new light on the "independence" of the anti-conl1ption agency.

It is now known that this agency provided confidential policy advice to the highest levels of the government, had discussions with govemment officials a bout the implications of recommendations from the incomplete inquiry, conm1issioned legal advice and passed it on to the govemment, ananged with the government for extra staff from other law enforcement agencies and, when the time came to run crin1inal prosecutions, it provided administrative support for at least one of those agencies.

 

The state government has pointed out that there is nothing unlawful about officials from other agencies being posted to ICAC. Litigation alleging bias because of the secret contacts with the state government has also failed.

But while these undisclosed links are lawful, they risk reigniting debate about whether an agency that has been party to such atTangements is sufficiently independent to be vested with the power to initiate crin1inal prosecutions.

Of greater significance is the fact that the DPP, while officially independent, developed a close working relationship with an agency that had undisclosed links to the highest levels of the state government.

lntemal govemment documents show that former ICAC commissioner David Ipp, who is now retired, had talks with govemment officials about proposed recommendations while the Jasper inquiry vvas still under way. A briefing note on those talks, dated January 15 , 2013, was sent to BatTy O'FalTell, who was then NSW premier, by Paul Miller, general counsel of the Department ofPremier and Cabinet.

The documents show that Mr lpp had other talks during the inquiry with Community Services Minister Brad Hazzard, who was then planning minister; and with Chris Eccles, who was then director-general of the Department of Premier and Cabinet.

Mr Eccles made a file note of the talks, dated January 31, 2013.

A spokesman for Premier Mike Baird confmned that officers from other agencies had been seconded to ICAC and said the seriousness of the conduct uncovered by Operation Jasper fully justified the resources invested in that inquiry.

"An individual employed by the Crown Solicitor 's Office and an individual employed by the DPP were seconded to the ICAC for Operation Jasper, between July 2012 and November 2014," the spokesman said in a statement.

Two officers from the state Audit Office had also been seconded to ICAC in 2012 but they left after four months.

While the DPP assessed ICAC's work from that inquiry, there is no suggestion that the personnel exchange undermined the integrity of the DPP's work.

A spokeswoman for the DPP said the lawyer who had worked with ICAC during the Jasper investigation had no role in assessing the material assembled during the inquiry and left the office of the DPP soon after the secondment ended.

"DPP staff are able, like all state employees to take a secondment with other agencies," the spokeswoman said.

However, the disclosure of this arTangement, and other links bet\veen the agencies, means last year's parliamentary compromise that granted ICAC new powers might be seen in a new light.

That compromise, which relied on the DPP acting as a check on ICAC, meant the power of the anti-conuption agency to initiate prosecutions for statutory criminal offences was expanded to include common law offences - so long as the commission first obtained the concutTence of the DPP.

Since 2013, the DPP has had a special ICAC unit known as Group Six, made up of DPP lawyers, that deals with matters on refen al from ICAC.

A spokeswoman for the DPP said the unit's work was not influenced by any other agency.

 

But ICAC's deputy commissioner, Theresa Hamilton, meets regularly with the head of Group Six, according to this week's report by a committee of the NSW parliament that monitors the anti-conl.lption agency.

Midway through last year, one of the rising stars in Group Six, solicitor Lisa Munro, 33, resigned after being anested in Kings Cross and charged with possession of cocame.

She was later given a 12-month good behaviour bond. No conviction was recorded.

Another link between the two agencies concems ICAC investigator Paul Grainger who helped re-enact the seizure of telephones from prosecutor Margaret Cunneen SC.

The telephones had been unlawfully seized by ICAC a week earlier, according to a report by the agency 's independent inspector, David Levine.

The DPP has been using Mr Grainger to organise witnesses for one of the crin1inal prosecutions triggered by the Jasper inquiry - a practice that the DPP considers to be similar to arrangements it has with other agencies including the Police Integrity Commission.

Mr Grainger's involvement with the DPP was revealed last year when he served a subpoena on a potential witness, Newcastle businessman Andrew Poole, who had earlier been cleared of wrongdoing by the Supreme Comi after ICAC had accused him of conuption.

Mr Poole said Mr Grainger had told hin1 he was doing "admin work" for the DPP.

Mr Baird's spokesman said the ICAC Act gave the anti-com1ption agency the authority to organise secondments from any government department or public authority after obtaining approval from the premier and the minister responsible for the relevant department or authority.

The secondments during the Jasper inquiry were organised when former attorney­general Greg Smith had portfolio responsibility for the DPP and the Crown Solicitor; and Mr O'Fanell was premier. Both have since left parliament.

Mr Ipp has acknowledged in ICAC's annual reports that the commission received outside help during the Jasper inquiry but the involvement of officers from the DPP and the Crown Solicitor's office was not mentioned.

ICAC and Mr Ipp did not respond when asked to identify any occasion on which the secondment of officers from the DPP and the Crown Solicitor's office had been disclosed.