INDEPENDENT COMMISSION AGAINST CORRUPTION (COMMISSIONER) BILL
Debate resumed from 15 September.
(Maroubra - Leader of the Opposition) [7.43]: This bill has only one object: the appointment of Mr Justice O'Keefe as Independent Commission Against Corruption commissioner. Let me say, after all due deliberation, that Mr Justice O'Keefe is not acceptable to the Labor Party to be Commissioner of the Independent Commission Against Corruption. The starting principle in this debate ought to be that anyone who holds this important post should have the respect of both sides of politics. I do not believe the ICAC can work unless that is the case. I suggest to members on the other side of the House that if they transposed themselves to this side of the Chamber - and after question time today, that is probably easier than ever for them to do - they would understand our reservations. For that reason, the Opposition is opposed to the appointment of Mr Justice O'Keefe and to the legislation that makes his appointment possible. We oppose legislation that he says is necessary for him to accept the job.
I must ask this question: why is this Government prepared to undermine the ICAC to secure Mr Justice O'Keefe's appointment? The three non-aligned Independents in this Parliament ought to weigh, among other things, Mr Justice O'Keefe's attitude to the capacity of the ICAC to be given power to investigate politicians, Ministers and judges. In the Sydney Morning Herald
on 20 September the Premier was quoted as saying, "At a very brief meeting I have had with Mr Justice O'Keefe he has expressed reservations about touching section 9". That is section 9 of the ICAC legislation.
If the Independents imagine that by supporting the legislation that will follow this bill and that by supporting this legislation a satisfactory ICAC will emerge, they should think again. This legislation is designed to facilitate the appointment of someone who is not prepared to work with an ICAC that has the power to investigate politicians, Ministers and judges, that is, the power that it had before the Court of Appeal decision in the Greiner case in late 1992. The reason we oppose Mr Justice O'Keefe's appointment is clear from previous debate in this House. Our opposition relates to his behaviour during the Parramatta by-election campaign when he did something that was blazingly partisan or blazingly indiscreet and ill-judged. Whichever interpretation one opts for, one or the other or a combination of the two, it is not in the interests of a strong and effective ICAC to have this man as its head.
Members on both sides of the House are familiar with the material I am referring to: the letter that was distributed on 19 August, about a week before polling day in the Parramatta electorate. The letter commenced, "Dear National Trust member" and read, "Great news for Parramatta!" There followed
three paragraphs of praise for the State Government. If Mr Justice O'Keefe did not realise that this was a hard-fought and important by-election, if he did not realise that his intervention as President of the National Trust would be regarded as breathtakingly partisan, if he did not realise that there was a case, all things considered, for having someone else in the National Trust send out the letter, he has not the judgment required to head the ICAC. It is as simple as that. When the House considered this matter earlier I said that with the best will in the world the Labor Party could not bring itself to agree that he was an appropriate appointment. In an editorial on this matter on 19 September 1994 the Sydney Morning Herald
said that letter:
. . . should have been signed by another office-bearer. Justice O'Keefe has denied claims by the Leader of the Opposition, Mr Carr, that the letter was sent at the request of the Government. That should be accepted without question . . .
The editorial went on to say that the sending of the letter by Mr Justice O'Keefe was a terrible lapse of judgment on his part. In that assessment the Sydney Morning Herald
editorialist was absolutely right. This bill facilitates the appointment of someone who had a terrible lapse of judgment, having been designated as the appointee to a position that requires, above all else, great judgment. What other post is there that it is within the capacity of the State Government to fill that requires more judgment than the head of the ICAC? It is rivalled only by the post of Ombudsman or Chief Justice in the requirement for sound judgment. The editorial in the Sydney Morning Herald
Mr Carr has now said that with the best will in the world nobody on the Labor side of politics could support Justice O'Keefe's appointment. Without the confidence of both sides of politics how effective can he be as commissioner?
That is the nub of it: how effective can he be? Government members might suggest that Mr Temby was appointed despite in earlier days having been a Labor candidate for a State seat in Western Australia. My reply to that is that he was appointed by a non-Labor Government and he had demonstrated in the period since he was a Labor candidate in Western Australia a ferocious independence from party politics, in spectacular fashion. As the Federal Director of Public Prosecutions he handled prosecutions in the Lionel Murphy case, so reservations about his appointment were from the Opposition side of the House. The Opposition accepted his appointment, but expressed two reservations.
This is an entirely different matter. I have had someone say to me - and I am not going to press the matter because I have not been able to confirm it - that in the last State elections Mr Justice O'Keefe sent a letter of endorsement for two Liberal candidates in Sydney's north shore. I hope that is not the case. If it is the case, it confirms the Opposition's reservations about the validity of this appointment. Any objective observer would accept that the Opposition is entitled to have these reservations. We are happy to accept someone with a conservative background in the position of the Commissioner of the ICAC - someone, yes, with a private school tie and all the inherited prejudices of a true-blue son or daughter of the establishment, if he or she has the judgment to measure and curb any existing political prejudices. In all these considerations I have to say that the appointment of Mr Justice O'Keefe is not acceptable to Opposition members and we will not be able to work with him in government. It is as simple as that.
What about in opposition?
The embarrassing thing about recent trends in by-elections is the exponential growth in the swing to Labor: 5 per cent in The Entrance, 10 per cent in Parramatta, 21 per cent in Cabramatta. Spare us from another electoral test! We will bring you peace of mind, above all else, and you will accept that in Opposition. Over here in Opposition you can luxuriate, month after month, under your blankets and your cushions. I will send the Red Cross ladies in with cups of hot tea and mugs of soup. You will be happy: we will look after you in every sense. The legislation is here for one reason: to facilitate the appointment of someone whose appointment damages the credibility of the ICAC. I happen to believe in this body. I happen to think in handling complaints about police, local government and the public service it has proved its value. The Opposition believes that any sensible government will want an ICAC with appropriate powers, and that the existence of an effective ICAC will be of benefit to a government trying to do the right thing by the people of this State. But you do not help yourself, and you do not help the ICAC, by appointing someone who lacks the judgment and the impartiality to do the job by the organisation and by the people of New South Wales.
(Ashfield) [7.54]: It is a most interesting debate when Government members are not defending the appointment of Mr Justice O'Keefe as the commissioner of the Independent Commission Against Corruption. Opposition members know that the Government is sorely divided on many issues but now we realise how divisive the present Government is on this very important matter. I listened with a great deal of interest to the speech of the Leader of the Opposition and one word stood out: judgment. The judgment of the person the subject of this bill is clearly in dispute. That a judge, wearing another hat as chairperson of the National Trust could send a letter that is so politically designed could draw only one conclusion, that is, that his judgment is impaired.
During a recent debate in this Parliament I referred to a well-researched book on ethics in relation to judicial officers. The whole of that professional text stated that judges should not become embroiled in political controversy. Directly or indirectly, judges should not become embroiled in political controversy. When they are appointed as judges of the High Court, District Court or Supreme Court, or magistrates in the Local Court, the people
of this State and, indeed, the whole nation, expect them to exercise at all times impartiality second to none. There can be no bias. One must also ask the question asked so validly by the Leader of the Opposition: why was it that Mr Justice O'Keefe entered into the political controversy in relation to the by-election in Parramatta? There is no other answer -
On a point of order: while I understand this bill obviously has considerable relevance to Mr Justice O'Keefe, it will also amend the legislation to provide for a judge of the Supreme Court to take up this office and for an automatic right of reply. The Leader of the Opposition did not refer at all in his speech to the actual terms of the bill. The honourable member for Ashfield is continuing in the same vein. I understand that Opposition members seek to make that attack, and it is not within my province or the province of the Acting-Speaker to stop that. However, there must be some link to the provisions of the bill.
On the point of order: in reply to the Minister's inane point of order, the direct link is a document entitled, "Parliament of New South Wales: Committee on the Independent Commission Against Corruption". I refer also to the resolution of the House that "This House refers the matter of Mr Justice O'Keefe's proposed appointment as Independent Commission Against Corruption Commissioner to the Joint Committee on the Independent Commission Against Corruption for reconsideration". This document has been published and a parliamentary committee is considering Mr Justice O'Keefe's appointment to this very position. No other matter in this State has been the subject of such public deliberations. It is ridiculous for the Minister to try to curb debate and suggest that the commissioner to be appointed by the Government is not Mr Justice O'Keefe, otherwise the Parliament has been misled.
Further to the point of order: it is all very well for the honourable member for Ashfield to refer to documents that have been mentioned in relation to Mr Justice O'Keefe, but this bill is about changing the legislation to provide not only for the term of office of Mr Justice O'Keefe but for future incumbents of this office. I ask that there be some link in the debate between the comments made by Opposition members and the bill.
On the point of order: to deny that there is any link between this bill and the appointment of Mr Justice O'Keefe is a straight-out lie. There is no doubt that there is a very strong link. The Leader of the House has a point in this respect, that the bill also provides for any judge of the Supreme Court to be appointed. It should not and must not preclude discussion of the suitability of the appointment of Mr Justice O'Keefe and the financial involvement of the public purse in the provision of the pension. It is true that a link should be established between Mr Justice O'Keefe's appointment and the general provisions of the bill. In my view it is true also that a member should not use this opportunity solely to attack Mr Justice O'Keefe. However, Mr Justice O'Keefe's appointment is inimical to the Opposition's attitude to the bill and therefore forms a substantial part of the debate.
On the point of order: the honourable member for Ashfield sought to link his remarks to the bill by producing a copy of a report of a parliamentary committee that was the subject of debate in this House some weeks ago. It is the bill that is under discussion by this House. The honourable member must establish a nexus between his remarks and the bill.
On the point of order: the object of the bill is to enable a judge of the Supreme Court to be appointed commissioner under the Independent Commission Against Corruption Act 1988 with a right to automatic reappointment as a judge at the end of his or her term as a commissioner and without prejudice to his or her rights to a judicial pension. That measure is designed to accommodate one person and one person only. That is what the debate is about. Therefore members must be able to debate in full the integrity of the person to be accommodated by this bill.
Mr ACTING-SPEAKER (Mr Rixon):
Order! I have heard sufficient on the point of order. Those who have spoken in the debate so far have emphasised that the bill is specific in nature. Members should confine their remarks to the subject matter of the bill and make only passing reference to peripheral matters.
As the Leader of the Opposition said, this whole issue is about the judgment of the person to be appointed by this bill. That person has appeared before the Committee on the Independent Commission Against Corruption of this Parliament. Even the report of that committee indicated the sensitivity of the Government on this matter because the committee was forced to make a pre-emptive decision without calling many available witnesses. The Leader of the Opposition, by way of interjection, commented on the appointment of Mr Temby. Mr Temby was a former Labor Party candidate in Western Australia, but his appointment resulted after consultation between the Leader of the Opposition and the former Premier of New South Wales.
That consultation was by way of a simple phone call in which the former Premier said to the Leader of the Opposition, "I am going to appoint Temby. What is your attitude? You can talk to Temby to find out the background about his appointment." There was consultation on the appointment of Mr Temby. But on the appointment of Mr Justice O'Keefe there was no consultation at all. The New South Wales Opposition learned about the proposed appointment of Mr Justice O'Keefe as chair of the Independent Commission Against Corruption - someone who should be fiercely independent - not through consultation with the Leader of the Labor Party in New South Wales but through rumour and innuendo in the press gallery about the likely appointee.
Make no mistake, there were half a dozen equally well qualified persons who could have been appointed as chair of the Independent Commission Against Corruption. Mr Justice O'Keefe was but one of those. As I have said before, it is the view of the Opposition that his judgment in relation to this matter was impaired. Lawyers and community leaders have written to me expressing concern about the attitude of Mr Justice O'Keefe. Most say that his appointment is inappropriate because of the Government's attitude on this matter. Many say that it is not right that the Government should appoint a judge of the Supreme Court.
When the Independent Commission Against Corruption Bill was first debated in this Parliament one of the strong arguments put was that the person appointed to head that commission should not be a judicial officer. The main reason for that contention was that the most serious case that could be dealt with by the commission is corruption of judicial officers. This bill would exempt Supreme Court judges from appearing before the Committee on the Independent Commission Against Corruption of this Parliament for analysis and cross-examination, privately or publicly, in relation to the investigation of the private activities of judges that may be deleterious to the operation of the law in New South Wales. That is another objection that must be sustained.
The New South Wales Bar Association indicated in a press release its great regard for the fact that judges, particularly Supreme Court judges, should not be appointed to hold the position of chair of the Independent Commission Against Corruption because if that were to occur they would sit in judgment of their colleague judges. Judges stick together like members of an old network. How could members expect a judge to pass an objective test on the examination of a complaint against one of that judge's brother judges. Not only would this bill bring into disrepute the Independent Commission Against Corruption because of the lack of judgment of the person the subject of the bill, but it would bring into question the integrity of the whole of the Supreme Court of New South Wales.
I do not know the attitude of many judges, but I would be horrified if the majority of judges do not believe that one of their kind should not be appointed to be the Commissioner of the Independent Commission Against Corruption in New South Wales. So I strongly support the opposition to this bill. One other thing must be said. Mr Temby's appointment to head the Independent Commission Against Corruption was done expeditiously because it was done with consultation. When the name Mr Justice O'Keefe was first mentioned this dithering Premier and members of his Government, who have been in office so long that they have forgotten what day it is -
Seven long years.
I thank my colleague for reminding me. I thought it was a lot longer. The dithering Premier and his colleague Ministers have been here so long that they have lost the plot. The essence of the plot is consultation. If the consultation process had been adopted we would have been warned about the appointment of a person to this very important position. We would have been warned also about the personality involved. I repeat, there were half a dozen well-credentialled and eminently qualified applicants that I know of who applied to become the chair of the Independent Commission Against Corruption. Yet, in a shroud of secrecy the Government, for reasons best known to itself, decided to appoint Mr Justice O'Keefe.
The Opposition has its suspicions about the circumstances of this appointment. Those suspicions are confirmed by documents of a political nature that issued from Mr Justice O'Keefe. The Government, without consultation, and because of the dithering of the Premier, has for months kept this State waiting on an announcement regarding the appointment of the new commissioner. The reappointments of Mr Mant and of Mr Justice Holland bear testimony to what I am saying. The proposed appointment has caused a serious erosion of morale and considerable uncertainty within the Independent Commission Against Corruption. I want to know why the Government has taken so long to come to the conclusion that Mr Justice O'Keefe should be appointed. This has been an absolute mess from the time it started. The future of the Independent Commission Against Corruption is put in jeopardy by the Government's lack of consultation. It is offside with the majority of the legal fraternity, who do not believe that Supreme Court judges should sit in judgment of other judges.
(South Coast) [8.09]: I oppose the bill. I do so after careful consideration. It is well known that I am a member of the parliamentary committee that oversights the Independent Commission Against Corruption. I strongly support the commission as an institution. I strongly supported Mr Temby - until his resignation, when I became heavily involved in bitterly opposing his representing the Police Service and the Commissioner of Police. I was absent overseas on a parliamentary study tour when the committee considered the possible appointment of Mr Justice O'Keefe. The processes behind that proposed appointment were very disturbing.
The bill is outrageous in my opinion for what is does not do. I was outraged that the Government would bring a bill before the House to make provision for the appointment of a Supreme Court judge. The Leader of the House said on a point of order that the provisions apply to all Supreme Court judges. The Premier openly admitted outside the House that pension provisions for a Supreme Court judge will be made, yet the ICAC legislation does not embrace the "great and the powerful" as was envisaged by Premier Greiner. In his second reading speech introducing the Independent Commission Against Corruption Bill, he said:
The independent commission is not intended to be a tribunal of morals. It is intended to enforce only those standards established or recognised by law. Accordingly, its jurisdiction extends to corrupt conduct which may constitute a criminal offence . . .
He then went on to say:
The term public official has been very widely defined to include members of Parliament, the Governor, judges, Ministers, all holders of public offices, and all employees of departments and authorities. Local government members and employees are also included. In short, the definition in the legislation has been framed to include everyone who is conceivably in a position of public trust. There are no exceptions and there are no exemptions.
Of course, the way the Act was framed clearly exempted the Premier himself and the then Minister for the Environment, Mr Moore. I believe that it was not intended to exempt them. The first priority of the Government should have been to amend the ICAC Act. Before it worried about giving somebody a pension or making way for a particular class of person to be the Commissioner of the ICAC the Government should have made sure that the commission covered the great and the powerful and that everybody was equal before the law. In June 1993 the ICAC committee made that recommendation. Eighteen months went by and nothing was done. In November 1993 the committee recommended that the Government get on with it and get the appointment process going: Mr Temby QC was going to leave in April and he had expressed the wish of working in partnership with the new incumbent.
The Government did nothing about it and the whole process of appointment has been flawed. I suspect that there has been an arrangement - call it a deal if you like - that Mr Justice O'Keefe would take the job, his pension would be looked after and he would not touch section 9 of the Act. I think that is borne out by the unwise comments made by the Premier as quoted in the Sydney Morning Herald
and referred to by the Leader of the Opposition: that Mr Justice O'Keefe expressed reservations about touching section 9. As the Premier and the Leader of the House are well aware, the non-aligned Independents have taken a very tough stand, saying that we would not agree to the passage of the bill unless something was done to ensure members of Parliament are covered by the ICAC.
Have you got that in writing?
We have that in writing from the Premier in a signed letter and we have the form of words. I am satisfied that the Government is doing the right thing, and I thank it for doing the right thing. But it was not an easy process, and everybody now knows why. Premier Greiner would have gone to the Leader of the Opposition to discuss any proposed appointment so that there could be bipartisan support. This is particularly important in the case of an appointment of a judge. How can a judge do the job and retain a reputation for impartiality if it is known that he will return to the bench with political baggage? That is what is going to happen in this case, and that is another reason I oppose the bill.
When the head of the Cabinet Office at the time, Mr Sturgess, framed the bill he had in mind not having a judge as the head of the ICAC because he did not want the ICAC tainted as a quasi-judicial body, an inquisitorial body, rather than a body which is based on common law. He did not want as the head of it a judge who would return to the bench after making decisions on very sensitive political matters referred to him. We have already seen in the history of the ICAC that when something tough comes up the Parliament refers it to the ICAC for the commissioner to make judgments. Another reason I oppose the appointment of Mr Justice O'Keefe is that I cannot be convinced that the President of the Local Government Association, the Mayor of Mosman, did not have the political acumen to know that as a possible appointee of the ICAC he should not get involved in a by-election. That is totally ridiculous and I do not accept that. There are a number of very sound reasons for strongly opposing the bill. I oppose it in principle. I oppose having a judge as head of the ICAC.
Let somebody convince me that a well-qualified, competent, impartial Queen's Counsel could not be found to do the job for the sort of money that Mr Temby received, even with what QCs earn. Mr Temby was receiving in the order of $240,000 to $250,000 a year plus 32 per cent for a lump sum pension entitlement, which on my calculation would have made him eligible for $400,000. In fairness to the Government, we have taken a strong stand on the issue. I believe the bill will be passed by the House - not with my support, because the Government has agreed to amendments which will be dealt with in the bill to follow this one which will embrace MPs. I congratulate the Government on this. It could not happen in a more important week, with the presentation of the Niland report about the honourable member for Georges River. It will establish a code of conduct and it will have an overarching clause. The ICAC committee has always made its decisions on a bipartisan basis. Over the years it has acted with efficacy and great care and professionalism in handling highly confidential matters. Yet the Premier did not trust that committee to handle this appointment. He torpedoed it. He embarrassed the committee. He hijacked the process. He said, "This is the person we are going to appoint", knowing that he put the committee under great strain.
I wrote to the chairman of the committee expressing my grave concerns about this. I wanted to know whether the committee, as a committee, protested about that. I did not get a satisfactory response - there was reference to the fact that the committee had examined Mr Justice O'Keefe for so many hours. The confidentiality provisions mean that I cannot reveal the process anyhow but I am most unhappy with the process. When the matter was dealt with in the House by way of an urgency motion the ICAC committee could not reconsider the appointment because the statutory period had passed; all we could do was deal with whether it was appropriate to appoint someone with the judgment exhibited in relation to the Parramatta by-election, someone politically partial. I have been a member of the ICAC committee since day one and this is the first time that there has not been bipartisan support - the committee has been split.
That is not good enough. There is nothing more important to this Parliament, or to the heart of John Hatton, than an effective Independent Commission Against Corruption. For that ICAC to be effective the appointee has to come to that appointment with bipartisan support. The appointment must be the result of consultation and the appointee must be beyond question - there should be no division on that. I now turn to the important question of the pension. Mr Justice O'Keefe was appointed to the Supreme Court in 1993. He turned 60 the next day. His salary was $160,000 with no contribution to the pension, as with all judges. The State pays the pension on retirement and he cannot receive a pension if he voluntarily retires as a member of the Supreme Court before he turns 70. Subject to the Act's provisions, if he is retired due to ill health at any time, he gets a pension of either $40,000 or $96,000 - in accordance with the Act that covers Supreme Court judges. If he dies in office, his widow receives $32,000 or $40,000. If he stays at the Supreme Court, he can retire at age 70 on a pension of $96,000.
If Mr Justice O'Keefe goes to the ICAC without pension entitlements and returns to the Supreme Court, his pension on retirement at the age of 70 will be only $40,000. If he goes to the ICAC with or without pension rights, the pension rights must apply to the replacement judge - so there is an additional cost involved there. If he goes to the ICAC with pension continuance and then returns to the Supreme Court, his salary will not be in the order of $240,000-$250,000 as it was for Mr Temby. By granting, as this bill does, Mr Justice O'Keefe a pension continuance at the ICAC, as opposed to appointing someone without pension rights, the additional cost to the State will be $96,000 less the $40,000 for which he would normally have qualified - and he would not get the $96,000 until he was 70 - leaving an amount of $56,000 per annum. If he retires as a member of the ICAC under an illness provision, he will get the full $96,000.
I am loath to impugn improper motives to a judge, but I am very concerned about this whole process. I am concerned about the way it was bungled, and I am concerned that the Government, because some of its Ministers were stung by the ICAC, did not want the ICAC provisions to apply to members of Parliament or to Ministers unless a code of conduct was determined by members of Parliament and Ministers. That is not acceptable to people generally. If the ICAC determined that a public servant engaged in activity that required his removal from office, the public servant could be found guilty of corrupt conduct and so labelled. However, because of the decision of the Supreme Court, members of Parliament and Ministers were put outside that provision. In terms of the code of conduct, the only way that the label "corrupt" would apply is if the member concerned breached the code of conduct set by the parliamentarians. That is not acceptable to me. The series of events that have occurred over the last 18 months clearly show the careful program this Government embarked upon to undermine the strength of the ICAC and to highjack the appointment process. I hope that the next bill will do something to restore that. [Time expired.
(Campbelltown) [8.24]: This bill is designed to facilitate the appointment of a judge of the Supreme Court to head the Independent Commission Against Corruption. The bill did not just materialise out of thin air; it has been introduced openly at the behest of Mr Justice O'Keefe. Indeed it is a condition precedent to his taking the job. Of course, we find that of itself a remarkable exercise. It is quite interesting to compare what is being done for Mr Justice O'Keefe with this legislation, so he can head the ICAC, and what was not done for Mr Justice Wood to head the royal commission into the Police Service. Perhaps the single most important ICAC style issue to be dealt with by anybody in the next few years will be dealt with by a judge of the Supreme Court on the salary and conditions of a judge of the Supreme Court. This bill is designed to allow a special arrangement for Mr Justice O'Keefe.
Because Mr Justice O'Keefe is the first person that the Government is to appoint under this legislation I will deal first with matters to do with Mr Justice O'Keefe. Later I will deal with other judges that the Government intends to appoint under this legislation. The Australian Labor Party opposes the legislation because it opposes the appointment to the ICAC of Mr Justice O'Keefe. He does not meet the criteria for any person, whether a judge of the Supreme Court or not, to be appointed as the ICAC commissioner. The first and most obvious criterion is honesty. One would expect the ICAC commissioner to be honest. That is a necessary but not sufficient condition. After all, we expect all members of the police force to be honest, we expect all judges to be honest, and we expect members of Parliament to be honest, but that would not qualify each and every one of those people to be the ICAC commissioner.
The second criterion is that the person must have ability, indeed extraordinary abilities because it is a complex and difficult job. It requires intellect, the capacity for hard work and a range of forensic and analytical skills. Again, it is a necessary but not sufficient criterion for the job. The third test that needs to be met is the test of judgment. Judgment is an important issue in the ICAC because most of the matters that come before the ICAC are not black and white. They are not simply matters where somebody is accused of taking a big brown paper bag full of money. The cases against Nick Greiner, the Treasurer, the honourable member for Barwon and the honourable member for Maitland did not involve buckets full of money - although one came fairly close to it. They were much more complex cases.
The ICAC commissioner has to determine what is the contemporary community standard. The community standard about what is corrupt is changing. It is a bit like community standards on obscenity; it is not a fixed and static concept. What
Nick Greiner did may well have been regarded as acceptable politics 10 years ago. However, what he did in the context of a few years ago was widely regarded by the community and by the ICAC commissioner as corrupt. But that involves a question of judgment. Mr Justice O'Keefe fails abysmally any test on the criterion of judgment because the letter that he wrote, ostensibly on behalf of the National Trust, perhaps on behalf of the Liberal Party, during the Parramatta by-election showed a gross error of judgment. It showed an error of judgment that nobody who is fit to hold the ICAC commissioner's position should be able to show. Mr Justice O'Keefe is not some neophyte who knows nothing about the political process. He is not somebody who could say, "I did not know how it all works. I have nothing to do with politics, I am just a judge of the Supreme Court. This is a terrible shock and surprise to me".
Mr Justice O'Keefe is a longstanding politician on the Mosman Council; he was mayor of Mosman for a number of years. He was actively involved in politics in the Local Government Association, a level of devious, tough politics that often makes the parliamentary Labor Party and National Party look like a teddy bears picnic. He was a longstanding practitioner within the political process. If anybody knew the implications of that letter, it was Mr Justice O'Keefe. For him to write such a letter shows that his judgment is awry and he is not suitable for the job.
The fourth criterion is that the person has to be seen to be fair. It is not enough just to be fair; it is essential to be seen to be fair in this job. That is why Nick Greiner, when he was appointing the first Independent Commission Against Corruption commissioner, Ian Temby, telephoned the Leader of the Opposition and said, "I want to appoint Temby. What do you think about that?" Nick Greiner was looking for bipartisan acceptance of the appointment because he knew, to his credit - and it may have been to his detriment, subsequently - that the job was untenable unless the commissioner had bipartisan support and was seen to be fair. If Mr Justice O'Keefe heads the ICAC, his position will be seen as unfair and, worse than that, it will be seen as illegitimate.
I ask honourable members to consider a hypothetical situation. It is the middle of next year and the new Leader of the Opposition, Peter Collins, has made an allegation about a Labor government Minister. Leaders of the Opposition do that from time to time; it is part of the business of being in Opposition. Sometimes those allegations are true; sometimes they do not have the substance it was first thought they had. The allegations of the Opposition in recent times have increasingly been seen to be true, particularly in the case of Government Ministers and members. Let us assume that in the middle of next year the new Leader of the Opposition, Peter Collins, makes an allegation. The Premier, Bob Carr, will say, "I will send this allegation to the ICAC".
What will Mr Justice O'Keefe do? If he finds against the Minister, everyone in the Labor Party will say, "We told you so. He is not impartial, he is a rort for the Liberal Party and he is exercising partisan judgment". His decision will be seen to be illegitimate. Conversely, if Mr Justice O'Keefe finds in favour of the Minister and against the allegation made by Peter Collins, members of the Liberal Party and the National Party, the community and the media will be saying, "Barry O'Keefe has bent over backwards for the Labor Party because he did not want to look like he was partisan. It looks like he has been intimidated by all the speeches Bob Carr and other people made in the Parliament".
The bottom line is, whatever Mr Justice O'Keefe does, no-one will accept his decisions as legitimate and impartial. His appointment will be tainted from day one. Maybe he will say, "I will not deal with any of the allegations about members of Parliament. I will flick that off to an assistant commissioner or a temporary commissioner". That would make a joke of the system if the head of the ICAC has to disqualify himself from dealing with any of the major allegations that might come before the commission. Even if he flicks the issue off to another commissioner, he will still be the head of the institution and, in some ways, will be seen to have his imprimatur on the decision, whatever it might be.
I wish to address a few words, through the Parliament, to Mr Justice O'Keefe. I am sure that he is following this debate with a great deal of interest. I say to Mr Justice O'Keefe: I have met you, but I do not know you well. You seem to be a reasonable sort of bloke on the limited contact that I have had with you. I do not think you are a spiv. I think you are a suitable person to be a judge of the Supreme Court. I am not even sure whether in your private life you are a raging supporter of the Liberal Party. But, what I know and what you must know is that you cannot take this job. You cannot do this job effectively as a result of not only your actions but the subsequent events that have happened in the Parliament, in the media and in the public life of New South Wales.
Why would you take the position? Sure, this legislation will pass through the Parliament because the Government has done a deal - some would say a fairly sleazy deal. Why would you bat on with it, knowing that you cannot take the job and do it effectively? Is it ego? Is it money? Are you seeking some form of vindication? When this bill passes through the Parliament, you will have two choices. First, you can be sensible and not take the job - you would have your vindication as a result of the legislation going through, but you would know that your position was so compromised by the process that got you there as to damage the institution. Second, you could say that you will take the job until the Government finds a replacement and do a very short term in the position and get out.
Knowing that you cannot do the job, if you take the job it will be very damaging to your self-respect; it must be appalling for your dignity; and, above all,
it will damage the future of the ICAC. Nothing will turn the ICAC into an illegitimate institution in this State more than appointing Mr Justice O'Keefe. It would be an illegitimate appointment; a tainted appointment. If it is the Government's intention to weaken the ICAC, that is exactly the sort of appointment that should be made. If, like the Labor Opposition, the ICAC is to be strong, viable, independent, impartial and fair, Barry, for God's sake, show some common sense and do not take the job.
(The Hills) [8.36]: As we have heard, the bill before the House seeks to change the Independent Commission Against Corruption Act to permit a sitting judge with the Supreme Court - not just a retired or resigned judge - to become the ICAC commissioner. Despite what the honourable member for Campbelltown has just said, I would have thought that most members of this House would regard that as being entirely appropriate. It will allow judges to take on the challenging task of running the ICAC, without prejudicing their pensions or entitlements, and to return to the bench after serving their term. One would think that a judge of the Supreme Court would be a suitable person to take the appointment and that these amendments would receive bipartisan support, to ensure the short- and long-term future and stability of the ICAC. It is clear from the events of the past few weeks and what we have heard tonight from the honourable member for Campbelltown and the honourable member for Ashfield, that is not the case. We have heard that the appointment of a judge from the Supreme Court will weaken the Independent Commission Against Corruption; that his appointment would be tainted. I refer to Hansard
of 15 September, when the Leader of the Opposition stated:
In the middle of all this, on 19 August, the President of the National Trust, Justice Barry O'Keefe, sent the following letter to National Trust members - not to the whole body - in Parramatta. I am told that the mailing list was expanded to include people whose membership had been defunct for several years.
It sounds like the Labor Party bringing out the dead vote. The Leader of the Opposition continued:
Hundreds of copies of this letter were sent out. It was not approved by the executive of the National Trust. It was sent out only in Parramatta.
I remember the Leader of the Opposition standing here, gesticulating to the video camera, talking about the fact that it was sent out only in Parramatta. He repeated his assertion. It is the Goebbels maxim: if the lie is big enough and you tell it often enough, people will believe it. The Leader of the Opposition continued:
. . . he should engage in undisguised electioneering, only to National Trust members in Parramatta . . .
The honourable member for Ashfield stated in Hansard
of 15 September:
Is it coincidental that all the other groups in the Parramatta National Trust, but only those in Parramatta, got the letter? In the electorate of the honourable member for Granville none of the members of the National Trust got the letter, though they were in the Parramatta National Trust area.
I am here to say that that letter did not go only to members of the National Trust in Parramatta. To say it did would be a complete fabrication of the truth, an absolute falsehood. The honourable member for Ashfield may be guilty, as he often is, of not getting his facts right, but the Leader of the Opposition is guilty of deliberately misleading this House. I have a statutory declaration from my mother, who is 76 years old. She has been a guardian at old Government House attending every second week, religiously, for the last 20 years. The statutory declaration states:
On August 20th, 1994 (or thereabouts) I received a letter from The Hon. Mr Justice Barry O'Keefe regarding a Government grant of $675,000 for work on Old Government House, Parramatta, where I have been a Guardian for the past 20 years. I was delighted at the news, as I had been lobbying my son (and MP) Michael since last year about the sorry state of repair of the building. The original letter is attached to this declaration. I am not and never have been an elector of the State seat of Parramatta.
That statutory declaration is signed by Edith Margaret Richardson of 24 Finlay Avenue, Beecroft - miles outside the electorate of Parramatta. My aunt, who lives in Marsfield, is a member of the National Trust and she received the letter. I have received representations from constituents in Castle Hill and Kenthurst who also received it. I seek leave to table the letter.
Mr ACTING-SPEAKER (Mr Hazzard):
Order! Only Ministers are able to table documents.
My understanding is that the letter was sent to a total of 2,500 people, 800 of whom were in Parramatta, and that it was in accordance with National Trust practice. Honourable members heard the Treasurer say, on 15 September, that a letter had been received from the President of the National Trust, Mr Justice O'Keefe, addressed to the Director-General of the Cabinet Office, Robert Wilkins. He quoted from that letter as follows:
The letter accords with the practice which I have adopted in relation to events which touch upon a particular branch or geographic area in which the Trust operates. An example of this is a letter which I sent to the Blue Mountains Branch members concerning the resolution of a problem at the Trust property.
Mr Justice O'Keefe was referring to a trust property known as "Everglades" at Leura. The latest letter was sent to a wide range of people. Obviously, people in the Parramatta electorate received it because they have an interest in Old Government House at Parramatta. Old Government House is one of the most important historic buildings in Australia. The first building on the site was erected by Governor Phillip in 1790. It was wattle and daub which did not last. The existing building was constructed by Governor Hunter and finished in 1799. It was extended by Lachlan Macquarie in 1812. The extensions were designed by John Watts and supervised by Richard Rouse. The front portico and offices of the house were ascribed to Francis Greenway. The house was used by a number of Governors - Brisbane, Darling, Bourke, Gipps and
Fitzroy. Governor Brisbane's two children were born there. It remained the country seat of government for the colony of New South Wales until 1857.
On a point of order: I am surprised the Minister for Police, and Minister for Emergency Services has not jumped up. I presume he has fallen asleep. He was very quick on his feet to complain that members of the Opposition were talking about Mr Justice O'Keefe, and questioned whether that was within the ambit of the bill. Members of the Opposition argued quite persuasively that it was, but I am surprised that the honourable member for The Hills appears to be somewhat preoccupied with the architecture of Old Government House and intent on a long liturgy on that subject, rather than dealing with the substance of the bill.
Order! Before I address the point of order I advise the honourable member for Campbelltown that standing orders provide that members who seek the call should wait for acknowledgment from the Chair before commencing their contributions. Members should not move to the lectern and commence speaking before that acknowledgment.
On the point of order: I am attempting to delineate for honourable members the importance of the building and the reason the letter was sent. I believe that is germane to the bill.
Order! It would seem that some latitude has been given to all members who have participated in this debate. I suggest, however, that perhaps the member is approaching the limit of that latitude. He should return to the ambit of the bill as soon as possible.
It is arguably the most important building in New South Wales, outside Macquarie Street. The problem was that though the building had been renovated at the beginning of this century, it had been poorly done. Replastering was necessary, and the paint would not adhere to the old plaster because there was too much salt in it. Cracks were appearing in all the walls. Members of the Cabinet attended Old Government House in March and saw that for themselves, and very properly agreed that some money should be put into restoring the building. I might add that, given the number of years that the building had been in decay and the strong feelings of members of the National Trust for it, it was not surprising also that when $675,000 was granted to restore the building, the President of the National Trust, Mr Justice O'Keefe, should have written to National Trust members who were interested in it. The letter was actually a cry of exultation. It was like Premier John Fahey jumping when Sydney won the Olympic Games bid. The piece of literature that most resembles the tone of the letter is Jabberwocky:
And thou hast slain the Jabberwock?
Come to my arms my Beamish Boy.
Oh frabjous day, calloo, callay!
He chortled in his joy.
But there were no mythical monsters slain by the posturing, preening and grandstanding of the Leader of the Opposition in front of the video camera a few weeks ago. He merely impugned the integrity of a Supreme Court judge. Let me refer to Mr Justice O'Keefe's career. He is the Chief Judge of the commercial division of the Supreme Court of New South Wales; a member of the legal profession disciplinary tribunal; President of the Bar Council; Mayor of Mosman - as honourable members have heard; President of the Local Government Association; lecturer and teaching fellow; a member of the Law Faculty; President of the National Trust since 1991; and a Queen's Counsel since 1974.
Mr Justice O'Keefe is a man of impeccable credentials as the ICAC commissioner and also, obviously, as a justice of the Supreme Court. Murray Tobias, President of the New South Wales Bar Association said of Mr Justice O'Keefe, "But he will do what he feels is right at any cost. He has no association with any party and is extremely impartial and impervious". Let me contrast that with what the Leader of the Opposition had to say about him: "At the very least, Mr Justice O'Keefe has been guilty of a serious error of judgment. With the best will in the world, nobody on the Labor side of politics could support his appointment after this error of judgment, or alternatively, this demonstration of partisanship".
Who would the Labor Party seek to appoint as an alternative? Chris Murphy, perhaps? Tim Robertson? Perhaps it would seek to reappoint Ian Temby? Do these people exhibit all the characteristics that the honourable member for Campbelltown mentioned - honesty, integrity, judgment and a sense of fair play? Ultimately, Mr Justice O'Keefe's letter should be seen for what it is: the ingenuous act of an apolitical person; not the disingenuous act of a political animal. There is no person currently available more suitable to take on the role of commissioner of the Independent Commission Against Corruption. The bill makes that possible. Safeguards are involved in the appointment, which would mean that, if Mr Justice O'Keefe were to be reappointed, the instrument appointing him as commissioner must expressly declare that the provisions of the bill are to apply, and the judge must consent in writing to the application of those provisions. The bill is fair and will enable a very worthy candidate to accept the role of ICAC commissioner. I support the bill.
(Newcastle) [8.48]: This bill is a travesty. It continues the travesty this Government put in place with its whole approach to the ICAC and to the commissioner of the ICAC. I find particularly distasteful the manner in which it has been brought to this House. This bill and the Independent Commission Against Corruption (Amendment) Bill have been joined in an attempt to ensure Mr Justice O'Keefe unimpeded passage to the position of commissioner of the ICAC.
The Independent Commission Against Corruption (Amendment) Bill was introduced at the insistence of the Independents, who would not support this bill
unless there were some significant changes made to the Independent Commission Against Corruption Act. I am amazed that honourable members have not been shown those proposed amendments to the Act prior to debating and voting upon a bill that should more correctly be entitled the Barry O'Keefe pension bill. This bill is the result of negotiations between Premier Fahey and Mr Justice O'Keefe. Let us not beat about the bush, this bill has nothing whatsoever to do with any other justice of the Supreme Court; it is clearly and unequivocally linked to the nomination of Mr Justice O'Keefe for the position of ICAC commissioner.
Mr Justice O'Keefe made it clear that he would not continue to seek the position unless he could be assured of returning to his position of Chief Justice of the Commercial Division of the Supreme Court. As has been pointed out by the honourable member for South Coast, he would have to serve continuously as a Supreme Court judge until he was 70 years of age before he would be entitled to his full pension rights. That meant that if he was appointed ICAC commissioner, he would be disadvantaged. He negotiated with the Government in relation to his appointment. Parliament should not enact law on the basis of an individual's need to secure his position. In its desperation the Government obviously felt itself pushed towards the decision it has made. I say "in its desperation" because undoubtedly the Government was determined to approach the replacement of the commissioner in a way that would weaken the ICAC.
As I said in a previous debate, the Government did not take the necessary steps to ensure that Mr Temby was replaced as ICAC commissioner within due time. A previous speaker mentioned that Mr Temby, when reporting to the ICAC committee in November 1993, made it clear that he was concerned that no steps had been taken by the Government to ensure the effective appointment of a replacement commissioner at the conclusion of his term on 13 March 1994. It was not until January that the Government decided to advertise the position. No due process was followed, although the Premier knew, because of his involvement for the seven long years of the Government's term of office, that Mr Temby would retire on 13 March. He could have and should have set in train a process to nominate a replacement commissioner. The nomination should have been placed before the ICAC committee so that the committee could, if necessary, exercise its power of veto or, after discussion with the Leader of the Opposition, as was done in relation to the appointment of Mr. Temby, ensure the bipartisan appointment of a commissioner who would effectively lead the ICAC in a non-political fashion.
The Government prejudiced the whole process from the beginning. The process was also prejudiced by the Premier's announcement of Mr Justice O'Keefe as the nominee before the committee had the opportunity to consider the nomination and, if necessary, exercise its power of veto. I was most concerned by the processes followed by the committee at its confidential meeting. The significant event of August was the letter containing the great news for Parramatta. The sending of that letter by Mr Justice O'Keefe in his position as President of the National Trust was either an extremely naive decision or an extremely political statement. Whichever is the case, the sending of the letter by Mr Justice O'Keefe seriously called into question his capacity to lead the ICAC with the unqualified bipartisan support of this House.
The Opposition makes no bones about the fact that it was grievously offended by the release of that letter so close to the Parramatta by-election, a by-election that was pivotal to the chances of success of both the Labor Party and the Liberal Party at the 1995 general election. The by-election was a litmus test, and in that highly sensitive situation Mr Justice O'Keefe, for one reason or another, thought it was reasonable for him to introduce into the by-election campaign a letter praising the Government for allocating the unprecedented amount of $675,000 to the electorate. That process had been set in train some time before when the Minister for Planning, during visits to the area, made it clear that he would look favourably at funds flowing to the marginal electorate of Parramatta.
Within one week of a crucial by-election the "great news for Parramatta" letter was sent either by an extremely naive person or by a person behaving in an inexplicably political fashion. In the opinion of the Opposition that calls into question the fitness of Mr Justice O'Keefe for the role of Commissioner of the Independent Commission Against Corruption. Following a reference from both Houses of Parliament the ICAC committee was called upon to make a judgment. The meeting of the committee caused me and other Opposition members of the committee, as well as the honourable member for South Coast, a great deal of concern. We felt strongly that the matter was not fully canvassed and that another process should have been available. The report of the committee reveals that the committee deliberated for more than two hours before the confidential hearing with Mr Justice O'Keefe took place. The Opposition members of the committee could not support the motion moved at the end of the deliberative meeting and, because of the letter to the constituents of the Parramatta electorate, voted against a full endorsement of Mr Justice O'Keefe.
The Government has been tardy and negligent in reviewing the Independent Commission Against Corruption Act. The necessity for that review was raised by Mr Temby in the 1993 annual report of the ICAC. He made it clear that he was greatly concerned that the Government had not acted on the unanimous recommendations made by the ICAC committee for substantial changes to the Act. The Government did not send to the Law Reform Commission the references that were unanimously called for by the committee. However, the Government has managed to bring together this trifling piece of legislation and to insult the committee and members of this House by deciding that in order to facilitate the appointment of Mr Justice O'Keefe it
will deal with changes to the Independent Commission Against Corruption Act, changes about which the committee was unaware, as I am sure were most honourable members. The 1994 Annual Report of the Independent Commission Against Corruption, tabled in this House today, refers to the Government's approach to changes to the Independent Commission Against Corruption Act. The new acting commissioner at page 6 of the foreword said:
In last year's Annual Report Commissioner Temby welcomed the prospect of amendments to the Act in a manner generally consistent with the May 1993 report by the Parliamentary Committee on the ICAC.
In concluding, it is necessary for me to note that notwithstanding the May 1993 report there had been no apparent progress at 30 June 1994 in adopting or implementing its recommendations. At the time of furnishing this Report it is noted that the matter is under consideration in the Parliament.
That is an indictment of the Government and its whole approach to the ICAC committee, and the commission, and to dealing with the issue thrown up in the Greiner-Metherell affair about the Independent Commission Against Corruption Act not having application to Ministers of the Crown, the Premier or members of Parliament. The Government is absolutely determined to have the bill pass through the House following some deal made about changes to the Act which have not had the benefit of full discussion, expert witnesses, committee discussion or debate in the House. That is a disgrace. I cannot understand how honourable members, particularly the Independents, can treat the processes of the House in that fashion. While the Opposition is committed to a strong, effective ICAC, it is also committed to the view that the person nominated for the position should have the confidence of both sides of the House. As a result, the approach taken by the Government has compromised Mr Justice O'Keefe in all aspects of his representation to this House - [Time expired
(Cronulla) [9.03]: After listening to the debate I am able to point out to all honourable members that this is not an unprecedented action. Mr Justice Stewart was appointed to a Federal royal commission.
Tell the truth about the entire appointment.
I will tell the truth about the entire appointment. The appointment related to the royal commission into the Age
tapes and Mr Justice Stewart sought to retain his judicial office. He came into conflict with the Chief Justice and a number of judges of the Supreme Court of New South Wales, who believed it was inappropriate for him to retain judicial office while exercising executive and investigative powers. However, the then Labor Government in New South Wales saw no conflict and the then Premier supported the appointment of Mr Justice Stewart. Further, when Mr Justice Stewart resigned his judicial commission in New South Wales he was immediately given a commission in the Federal Court in the Australian Capital Territory by a Labor Federal Government. So that matter went much further -
In the Australian Capital Territory, not the rest of Australia. Do not mislead the House.
The honourable member for Auburn reminds me that it was in the Australian Capital Territory, as I told the House earlier, and it was endorsed by a Federal Attorney-General. In this case Mr Justice O'Keefe is prepared to resign his judicial office. He is prepared to cease being the Chief Judge of the Commercial Division, but as the bill states, upon his return to the bench that position may not be available. If the truth be known, he is making considerable financial and professional sacrifices to serve the people of New South Wales.
No problem with that.
The honourable member for Auburn says he has no problem with that. Mr Justice O'Keefe is also a man of integrity.
The honourable member for Auburn says that he has no problems with that. Further, Mr Justice O'Keefe has served the community. I refer to a book that was written in relation to a series of murders that occurred in Mosman. Mr Justice O'Keefe was then the Mayor of Mosman and he caused a number of public meetings to be held in order to help the community. The book states that Mr Justice O'Keefe offered the task force every facility and that the Mosman Town Hall and the Mosman police station became the outpost for the Chatswood based investigation. He and his colleagues found themselves working long into the night to administer the safety systems that they established.
On a point of order: I appreciate what the honourable member for Cronulla is saying about what happened in the Mosman area but it should be clarified -
Mr ACTING-SPEAKER (Mr Hazzard):
Order! Is there a point of order?
The honourable member might address the Chair on the point of order.
Yes. The honourable member for Cronulla is misleading the House in regard to the letter that was written by Mr Justice O'Keefe in regard to the member for Willoughby -
Order! There is no point of order.
I believe that Mr Justice O'Keefe, given his commitment to the community, his ability, and his undoubted integrity, is suitable for the appointment of Commissioner of the Independent Commission Against Corruption. The bill, which enables a wider field to be available for appointment to that important office, should receive the support of all fair-thinking members of this House.
(Smithfield) [9.07]: I am astounded at the honourable member for Cronulla. He must have been speaking tongue in cheek this evening because even he could not seriously be putting to this House that Mr Justice O'Keefe is an appropriate appointment as Commissioner of the Independent Commission Against Corruption. Clearly this amendment is the O'Keefe amendment; in fact, it ought to be called just that because that is specifically what it is designed for - to facilitate the appointment of Mr Justice O'Keefe to head the Independent Commission Against Corruption.
The parliamentary Labor Party is firmly opposed to this legislation for reasons which have been enunciated by a number of my Opposition colleagues. I actually see disappointment as another milestone in the path of the Government's incompetent management of the Independent Commission Against Corruption. One need only consider the initial appointment and setting up of the Independent Commission Against Corruption, which the honourable member for Cronulla would concede has been a boomerang for this Government. I do not need to list the litany of characters and victims from the Government who have had to be paraded before the Independent Commission Against Corruption. However, this saga of appointing a new commissioner has gone on for months and months. I am astounded that the Government could not properly prepare for the latest appointment.
I can only assume that gross incompetence is behind this appointment or that something sly is afoot. I know we have had seven years of mismanagement of this State, but I happen to think that this is not an instance of gross mismanagement. However, those who look at it closely could be excused for thinking that gross incompetence is the most obvious explanation for the Government not being able to fill the position of Commissioner of the Independent Commission Against Corruption. I wonder whether something more sly is afoot. Was the Government having trouble finding a person to do its bidding on the Independent Commission Against Corruption?
I posit this question: are the Minister and the Chairman of the Committee on the Independent Commission Against Corruption seriously suggesting that there were not appropriately qualified people to take on the position of commissioner at a salary of $250,000 a year? Are they suggesting that after months and months of searching and heartache they were able to find only Mr Justice O'Keefe? I do not believe that. I think we in the Opposition are entitled to ask: why was Mr Justice O'Keefe selected? Why is he the only person put forward after months of due search and diligent inquiry? I can only assume that there is heartache in the Government over the appointment of Ian Temby.
I think the honourable member for Cronulla would regard Ian Temby as possibly the John Kerr appointment of this Government. They may have seen Mr Temby as a person who was friendly to the Government and therefore suitable for appointment to investigate so-called wrongdoings by former members of the Wran and Unsworth administrations. However, Temby did the wrong thing. He investigated members of this Government. I think the Government is concerned to ensure that with this new appointment it gets someone who is friendly to the Government. I believe the Government considers Mr Justice O'Keefe a person friendly to this administration. One has only to read the press release of 14 June 1994 issued by the Premier:
Through his public and professional career he has gained an understanding of the structure and processes within the New South Wales public sector, including the State Government.
He is probably not a member of the Liberal Party and I do not know whether he parades as an undisguised devotee of the Liberal Party, but I do know that as an independent mayor of Mosman he could be nothing but a supporter of the Liberal Party. This Government knows that. The crux of the concern of the Opposition is what Mr Justice O'Keefe did just prior to the Parramatta by-election. He used his position to positively harm the election chances of the parliamentary Labor Party. We therefore are well justified in making strong complaint. Are we expected to sit back and remain silent after what he did?
Mr Justice O'Keefe used his position as head of the National Trust to try to endear 800 voters to the Government, in the hope that they would possibly vote for Wendy Jones and defeat the working women of Parramatta. Are we supposed to feel that that had nothing to do with the Parramatta by-election? Are we supposed to accept that this action by a judge of the Supreme Court, on the eve of a by-election of crucial significance, was pure coincidence? He must have known the significance of that by-election. One does not have to be a political genius to realise the import of a win for the Government. The result would have been government in its own right - no more Peter Macdonald, no more Clover Moore and no more John Hatton. A by-election victory would have enabled the coalition to govern in its own right. That was the significance of the Parramatta by-election.
The Government got Mr Justice O'Keefe to send a no more Peter Macdonald, no more Clover Moore and no more John Hatton letter. If members on the Government side are suggesting that it was coincidental that he sent that letter a week before the by-election, they must be acknowledging that Mr Justice O'Keefe had a serious lapse of judgment. Are they really suggesting that Mr Justice O'Keefe's political acumen is minus 50? If they are, he is not competent for the job. His judgment so lapsed on that day that I am left to wonder whether or not he has the professionalism to properly fill the position of Commissioner of the Independent Commission Against Corruption.
I suspect that something more sinister occurred - that the judge was acting under riding instructions. He either wished to ingratiate himself with the
Government or he had been asked to write the letter. Either way, he is a person not fit to hold the position of Commissioner of the Independent Commission Against Corruption. An incompetent political campaign or a deliberate attempt to undermine the parliamentary Labor Party is good reason to oppose this legislation. We will not abide Mr Justice O'Keefe being the Commissioner of the Independent Commission Against Corruption. I say to Mr Justice O'Keefe: while we have some respect for you as a judge, stay where you are. You dared tread on the ground of politics; and, having trod there, you will have to accept the consequences. Having trod there and participated as an ally of Wendy Jones, you will have to accept that we will not tolerate you as Commissioner of the Independent Commission Against Corruption. We are happy for you to continue as a judge, withdrawing to the cloistered rooms of the judicial system, but do not venture into the world of politics because you must accept the consequences for what you did.
As a lawyer I recall - as Mr Acting-Speaker and the honourable member for Cronulla would appreciate - the honourable member for Cronulla talking about the separation of powers. I am a little intrigued as to how he would explain his support of the principle of the separation of powers while wanting to second a judge as Commissioner of the Independent Commission Against Corruption. He would know that in the debate on the appointment of Mr Justice Stewart there was furious argument about the separation of powers. The honourable member for Cronulla, being brighter than Joh Bjelke-Petersen, would understand what I am talking about.
It is unfortunate that he has already participated in the debate because I would have liked to hear him explain later his inconsistency of views on the separation of powers vis-a-vis the appointment of Mr Justice O'Keefe. I do not suggest hypocrisy; legalistic inconsistency is about the kindest way I can put it. The Labor Party will not provide bipartisan support for the appointment of Mr Justice O'Keefe. If he is forced upon us, then he must bear the consequences of having his opinions, decisions and judgments being viewed as those of the parliamentary Liberal Party and the parliamentary National Party. For those reasons, the Labor Party opposes the bill.
(Auburn) [9.17]: I had the great privilege as a member of this Parliament to sit in on the lengthy investigation of the appointment of Mr Justice O'Keefe arising from the infamous letter which began with the words, "Great news for Parramatta!" That letter was distributed just one week before the Parramatta by-election. Unlike my colleague the honourable member for Smithfield, who also is a lawyer, I give his honour the benefit of the doubt: maybe his actions were not for the purpose of supporting the Government's campaign to elect Wendy Jones, although it is hard to come to grips with those infamous words, "Great news for Parramatta!"
Concerns about Mr Justice O'Keefe's actions led to a committee of this Parliament examining the matter. That examination started at 6.15 p.m. - which I am sure the honourable member for Cronulla will verify - and for the first two and a half hours committee members argued over the legal niceties of what was to happen regarding the procedure of that committee. That resulted in great debate. I would not suggest that a lawyer would ever delay issues; in this instance it was important that the committee got the issues clear before His Honour came before it. Ultimately, Mr Justice O'Keefe did come before that committee and he explained his position.
I remember the words of His Honour but I cannot tell the House what he said because the proceedings were in camera. The honourable member for Cronulla nods his head in agreement, indicating that if I do not tell the House what was said I will not be prosecuted. I am the only alderman in the State of New South Wales who has ever been prosecuted under ordinance 1, clause 48 of the Local Government Act in regard to disclosing confidential information to the committee of a council - when I was 26 years of age. Tonight I am going to tell the House at least one question I asked and the answer I received from His Honour, then the committee and the Parliament can decide whether I can be prosecuted for such a transgression.
The question was, basically and in sum, "Judge, if you look at the letter that was written and the basic situation in regard to what occurred in retrospect, do you not believe that you should have thought very clearly and concisely about writing that letter because of the political consequences of what occurred?" I cannot read to the Parliament exactly what the question was because then there would be definitely something to prosecute me for but I think I can put that as being the basic question. The honourable member for Cronulla has not jumped up to object. The answer from His Honour was, "In retrospect I would say this, that yes, in retrospect and in hindsight, yes it was wrong that I wrote that letter".
The Minister for Police, and Minister for Emergency Services said, "Hear! Hear!" I will not talk about Christopher Skase and the rest of the answer except to say that there was a very sensitive situation at the time that his appointment was under consideration. His Honour knew that he was going to be a candidate, if not the candidate, for the position. He knew that the Opposition was concerned about one important area: his being a Supreme Court judge and problems which could be caused by his becoming commissioner of the ICAC and then going back to the Supreme Court. Correctly, the honourable member for Cronulla had talked about Mr Justice Stewart's appointment. When Mr Justice Stewart was reappointed he was reappointed not to the Federal Court in the sense that we understand it - for Western Australia, South Australia, Queensland, New South Wales and the Northern Territory - but to the Australian Capital Territory, that small thing with
about 280,000 people. It was a mechanism used by the Federal Government to get him appointed so that he would not lose his position as a justice of the Federal Court.
I had basically persuaded my colleagues, including the Leader of the Opposition, that we should forget about the problem. It was an important principle that maybe His Honour would have inside information but we accept that Mr Justice O'Keefe would exercise his discretion in not sitting on any matters relating to the Independent Commission Against Corruption. It was unkindly said by one of his fellow lawyers, a QC, "They will probably make him a bail judge or the judge for adjournments". Be that as it may, he could be reappointed. I had nearly persuaded my colleagues to agree to the appointment. Then one day I walked into the office of a colleague who held up to my nose a letter referring to great news for Parramatta. This caused me great consternation in view of the efforts and time I had put in to helping His Honour. The honourable member for Smithfield was very angry about the situation.
However, I raise a more serious matter, a matter of grave concern. It has come to my attention that a deal has been done for certain people to support the next bill to be debated if certain people support the Government's appointment of Mr Justice O'Keefe. In normal times that would be part of politics and no-one would worry about it. But yesterday a Government member put a folded piece of paper under my nose and said, "This is the code of conduct that you will now have to face because the Independents are demanding it". I was gravely concerned not so much because of the code of conduct which the Independents wish to have introduced but because it was put under my nose as if I had made a mistake.
Has a deal been structured to get the passage of the bill and the acceptance of a code of conduct which the Parliament has not seen? It would be a shame if this were the case. Perhaps the way to deal with these bills is to debate first the Independent Commission Against Corruption (Amendment) Bill, which reforms section 9 of the Act, and then to debate the appointment of Mr Justice O'Keefe. I do not take kindly to having pieces of paper stuck under my nose and being told that a code of conduct is being introduced. It is a code of conduct that I have never seen. It has never been discussed with me.
They dudded you.
I have been dudded. I have had a lot of dealings with the honourable member for South Coast. I am thankful for the good things that he has done over the last four years. If I have been dudded, the truth will come out in the final vote on the other bill. I will be very interested to see what people have to say about it. I heard the honourable member for South Coast inform the House that he would vote against this bill for the reasons he set out. He and I understand that extensive investigations have been done. I am indebted to him. If a code of conduct in relation to wheeling and dealing within the Parliament is to be introduced, what is the situation in relation to such wheeling and dealing being an effective part of government? If the vote on the next bill will be decided on the Mr Justice O'Keefe matter, where do we stand on the issue? Will the code of conduct allow no flexibility?
If in the end the ICAC decides that I, the honourable member for South Coast or the honourable member for Cronulla have somehow breached a code of conduct of the Parliament and we should be expelled from the Parliament, should we be expelled from the Parliament or should the matter be left in the hands of the three bodies that have decided such matters for a century: the people of New South Wales, the Parliament and - as was exemplified by what happened in the Parliament yesterday on allegations made against the honourable member for Georges River - the media? I do not mind there being a code of conduct for Parliament. The honourable member for Manly may object. The honourable member for South Coast and the honourable member for Cronulla will verify that I have attended committees and I have looked at codes of conduct elsewhere. I have looked at codes of conduct everywhere. I have raised the matter within the ICAC committee.
Mr ACTING-SPEAKER (Mr Hazzard):
Order! I do not want to interfere with the free flow of comments to the House by the honourable member for Auburn but his addressing the rear of the Chamber is causing Hansard difficulties which could be resolved by his directing his comments to the Chair.
Mr Acting-Speaker, being a great friend and supporter of Hansard, I would never want to do that.
They are great people.
Indeed they are. The honourable member for South Coast said this was a tough bill. Both bills are tough bills but government in this State has to work somehow. Let us assume for the purposes of dealing with the appointment of His Honour Mr Justice O'Keefe that there was a trade-off in regard to this bill for support of another bill. Assume that the Government decided to persuade people to vote for a particular bill on the basis that it would support a bill in regard to a code of conduct. That would create enormous problems for this Parliament. There is no doubt that Mr Justice O'Keefe is competent to be the Independent Commission Against Corruption commissioner. That is an issue that has never been disputed. The ICAC Annual Report 1994 states:
Acting Commissioner's Overview
In March 1994 Commissioner Ian Temby QC, the founding Commissioner, completed his five year term of office. Under his guidance and leadership the Commission rapidly developed into a vigorous and effective organisation. Staff and facilities were acquired and an organisational capacity to undertake unusual and difficult work was achieved. While the experience and advice of other individuals and organisations has been of assistance in that process, the Commissioner has largely had to establish its own strategic and operating processes.
It has been particularly unfortunate for the State of NSW that the Commission has been without a permanent Commissioner since March. Despite the delay the Commission has continued to energetically pursue its responsibilities. However, the delay has been undesirable and not without adverse impact.
Later, in the same report it is stated:
One of the key features of the Commission's specialised role is its ability to consider matters rapidly and efficiently. In September 1993 the Commission received Terms of Reference from the Parliament for an investigation into circumstances surrounding a defamation action between the Treasurer of New South Wales and a public servant. The Commissioner released the investigation report in January 1994.
The reason I extracted this from the report is significant. The Government knew for five years that it needed an ICAC commissioner. Late in 1993 the commission sought to find a new commissioner. Why has it taken so long to get a new commissioner? Why is it that at the end of October 1994, nearly one year after the Government sent out its head-hunters to find a person to be the commissioner, that this Parliament is debating this important issue? The reason is that the Government blames the Labor Party, but in real terms it did not want an ICAC commissioner to investigate many matters brought before this Parliament.
(Manly) [9.32]: I had not intended to speak in this debate but I feel compelled to do so in view of some of the implications put around by the Labor Party; and I resent it. I really resent the fact that they are talking of deals having been done between the Independents and the Government. In a sense these two bills have travelled together and have a cognate nature about them but I believe - and I speak for myself - that it is an attempt by the Independents to use the balance of power in this House responsibly. I support the bill. I do not intend to undermine the process of the appointment of Mr Justice O'Keefe. I may have views about the suitability of Mr Justice O'Keefe, but we have a due process in this Parliament relating to that appointment. In this case I believe that, despite the fact that Government members were tardy in the way they went about it, the matter did go to the ICAC committee for proper consideration. I do not see it as my role in this Parliament - and the use of the power I may have - to either endorse him as an individual or not. I regret the character assassination that has occurred. I see this as evidence that the ALP is determined not to see this commissioner succeed.
I also add that I saw this bill as a golden opportunity to correct a wrong; that is, the question of amending the Independent Commission Against Corruption Act, specifically section 9, to bring politicians within the ambit of the Act. We all know that one of the outcomes of the appeal on the Greiner matter was that it was seen that politicians were dealt with differently from other public officials. Perhaps that was a fair judgment by the Court of Appeal. The committee on the ICAC recognised that section 9 needed to be amended. That recommendation was made 15 months ago, however, the Government has done absolutely nothing. This was a question of political opportunity, of using our positions in this place to try to correct a wrong, namely, that politicians were not covered by the ICAC. The direction taken by the Labor Party in this debate is quite unfortunate. The bill that is about to follow this bill is long overdue. The fact that it is coming after this bill, rather than before it, is of no importance. It is important that we are going to correct that wrong, that we are to bring politicians under the ambit of the ICAC. I make no apology for that whatsoever.
(Orange - Minister for Police, and Minister for Emergency Services [9.36], in reply: On behalf of the Premier I thank all honourable members for their contributions to this debate. It is clear that the Labor Party set out in this debate - [Quorum formed.
I repeat that it is quite clear that the Australian Labor Party entered the debate on this bill with one clear objective: to continue its character assassination of Mr Justice O'Keefe. What criteria will satisfy the Labor Party in this Parliament? That is clearly the message that we heard tonight. We heard suggestions of conspiracy. We heard suggestions about letters sent to the National Trust. We heard all sorts of complaints about why we cannot have a judge appointed as commissioner, let alone one individual judge whose character stands well in the community. The process of finding an Independent Commission Against Corruption commissioner to replace Mr Temby commenced formally early in December of last year. The intention was for the successor to work in concert with Mr Temby, as was referred to by the honourable member for South Coast. Because of the process involved and the demands of the job, the sorts of people who would fulfil this role were not those who were jumping through the doors of this Parliament. It was a long and painstaking exercise; it was frustrated by the Labor Party every step of the way.
It became clear that this bill was necessary. The bill has been introduced ostensibly under the guise of a request from Mr Justice O'Keefe. There was also consultation with the Chief Justice of the Supreme Court, where there is acknowledged to be a considerable pool of prospective appointees to the position of commissioner. These people hold Supreme Court positions; they are eligible and well suited to the job. However, not one of them would take on the job of ICAC commissioner if they were placed in a position of having to act partially towards the government of the day to secure their return to the bench. When they are elected to the bench it is a privilege and a right that they enjoy; it is bestowed on them for a long time. This bill will ensure that the ICAC has access to a pool of people of the calibre of those on the Supreme Court bench. The ALP has said that it has no confidence in Mr Justice O'Keefe; that it will not work with Mr Justice O'Keefe. That is incredible. The ALP believes that in order for someone to be an ICAC commissioner, they must
have some connection with the ALP. It has been stated by members of the ALP - it is on the record - that Mr Temby was formerly a Labor candidate in Western Australia. That was of considerable concern to members of the Government.
A number of Government members were equally concerned about the appointment of Mr Temby. There are members in this House today who were concerned about the decision which was made. Mr Temby was appointed the ICAC commissioner because we believed that he had the ability to do the job. He proved beyond fear and favour that he could deal with matters impartially. There are members of this House who were hurt - and one of those members has just walked out of the Chamber. There are members who do not support, and who have not supported, Mr Temby's role. The Labor Party should give Mr Justice O'Keefe the same opportunity to prove himself in the role of the ICAC commissioner. He should not be damned before he has that chance. I ask the Labor Party to seriously consider that. The Labor Party condemned Mr Justice O'Keefe right from the beginning. Mr Justice O'Keefe has been labelled for having some misjudgment with respect to a letter he sent out on behalf of the National Trust. As a private member of the National Trust, I have the greatest respect for Mr Justice O'Keefe in his position as president of that organisation. The people of this State would respect the way in which he conducts himself as the President of the National Trust. He has carried out his actions without fear or favour.
It has been convenient for the Labor Party to highlight an occasion when Mr Justice O'Keefe sent out a letter indicating something the Government might have done. If honourable members read through the National Trust magazines, they will find occasions when he, as president, has questioned the Government. He has called on the Government to support something that has been near and dear to the heart of the National Trust. Mr Justice O'Keefe is well suited to this task. His actions in that position will prove to be so. The ALP said that some deal has been stitched up in this regard, as was referred to by the honourable member for Manly. I also find that suggestion to be incredible. Quite clearly and unequivocally, there is a concern and a perception in the community that members of Parliament and Ministers of the Crown are not subject to the same requirements of the ICAC as members of the public and other public servants. Clearly, as a result of negotiations - some of which were painful - we have arrived at an agreed set of amendments to section 9. Those amendments will clearly deliver that result; a result which has not been without some pain. I believe it will be proved with the test of time: it will either work in the way in which it is designed or it will require modification. I do not believe it will require modification. I am prepared to give it a go; to give it a chance.
Tonight some honourable members have raised the issue of a code of conduct. Labor Party members obviously have not read the amendments to the legislation that we are going to deal with next, which are on the table. There is no code of conduct at this stage. The amendments provide for a mechanism to establish a code of conduct. That code of conduct will be reviewed in 12 months time after an ethics committee has considered and formulated a code of conduct for this House and the Legislative Council to consider, adopt and/or reject. Clearly, that is the option and the prerogative that this Parliament will have. If we deny that process at this stage, we will suffer public criticism for not being prepared to take that step.
This bill will provide measures whereby an enormous pool of considerable talent from within the Supreme Court can be eligible and available for this and for future appointments to the ICAC. The Government does not hide the fact that it will also provide the way for Mr Justice O'Keefe to take up his appointment. I challenge the ALP - in the same way members of the Government did when Ian Temby took up his position as the ICAC commissioner - to give Mr Justice O'Keefe the chance to sit in the position and see whether he can act impartially. If the Labor Party does not give him that chance, it is prepared to play politics to destroy the ICAC, contrary to its comments about supporting it. This bill and the following bill are the most important measures the House will consider this session, apart from the State Bank legislation. I ask all honourable members to support it.
Question - That this bill be now read a second time - put.
The House divided.
Mr Baird Mr W. T. J. Murray
Mr Beck Mr O'Doherty
Mr Blackmore Mr D. L. Page
Mr Causley Mr Peacocke
Mr Chappell Mr Petch
Mrs Chikarovski Mr Phillips
Mr Cochran Mr Richardson
Mrs Cohen Mr Rixon
Mr Cruickshank Mr Schipp
Mr Debnam Mr Schultz
Mr Downy Mrs Skinner
Mr Fraser Mr Small
Mr Glachan Mr Smith
Mr Hartcher Mr Souris
Mr Hazzard Mr Tink
Mr Humpherson Mr Turner
Dr Kernohan Mr West
Mr Kinross Mr Windsor
Mr Longley Mr Zammit
Mr Merton Tellers
Ms Moore Mr Jeffery
Mr Morris Mr Kerr
Ms Allan Mr McManus
Mr Amery Mr Markham
Mr Anderson Mr Martin
Mr A. S. Aquilina Mr Mills
Mr J. J. Aquilina Mr Moss
Mr Bowman Mr J. H. Murray
Mr Clough Mr Nagle
Mr Crittenden Mr Neilly
Mr Face Mr E. T. Page
Mr Gaudry Mr Price
Mr Gibson Mr Rogan
Mr Harrison Mr Rumble
Mr Hatton Mr Scully
Mr Hunter Mr Shedden
Mr Iemma Mr Sullivan
Mr Irwin Mr Thompson
Mr Knight Mr Whelan
Mr Knowles Mr Yeadon
Mr Langton Tellers
Mrs Lo Po' Mr Beckroge
Mr McBride Mr Davoren
Mr Armstrong Mr Carr
Mr Collins Mr Doyle
Mr Fahey Mrs Grusovin
Mr Griffiths Ms Harrison
Ms Machin Ms Nori
Mr Photios Dr Refshauge
Question so resolved in the affirmative.
Motion agreed to.
Bill read a second time and passed through remaining stages.