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Statement regarding the Inspector of the ICAC's report

Friday 4 December 2015

The Inspector of the ICAC, the Hon David Levine AO RFD QC, has failed in his legal obligation to provide procedural fairness to the Commission and its officers in relation to the findings and observations in his Report Pursuant to Section 77A Independent Commission Against Corruption Act 1988 Operation "Hale" ICAC re Margaret Cunneen SC & Ors.

The Commission received a copy of the report via email at 10.42 am today. This is the first notice that the Commission received of the timing or the contents of the report, apart from unconfirmed media reports. A request from the Commissioner (reproduced in the letter at page 46 of the report) to Mr Levine for procedural fairness was ignored.

On reading the report, the Commission has found that it contains a number of errors and inaccuracies, some of which are set out below.

Factual errors
On page 3 of the report, the Inspector states that the Commission sought evidence about an E-Tag to aid in a determination of when it was that Ms Tilley "may have had her last drink (if she had any drink at all -  and that is not a matter for me to decide).". It is not clear why the Inspector has made this statement. He was provided with material from the Commission which showed that Ms Tilley admitted that she had consumed alcohol prior to the motor vehicle accident.

The Inspector's statements (pages 60 and 61) that there was "a professional and personal [relationship] for a period in excess of 25 years" and that "there is and has been for quite a considerable time a close personal and professional relationship" between Ms Cunneen and the Commissioner are rejected. The Commissioner's son has never been instructed in Taekwondo at all and does not know Ms Cunneen or her partner or any member of her family. There were no "frequent meetings" between the Commissioner and Ms Cunneen in Willoughby. The Inspector, on his own admission, did not seek confirmation of Ms Cunneen's "information" from the Commissioner. Had he done so, the Commissioner would have been able to comprehensively refute these statements.

Legal errors
At page 42, the Inspector questions whether the referral of material to the Director of Public Prosecutions (DPP) for consideration of disciplinary action against Ms Cunneen was permitted under section 53 of theIndependent Commission Against Corruption Act 1988, as the material related to matters that the Commission had not itself investigated. The Inspector has misunderstood the purpose of section 53, which allows the Commission to communicate to a relevant authority any information which the Commission has obtained during the investigation of conduct connected with the matter referred. It is not necessary that the Commission has itself investigated the matter referred. Section 53 is intended to allow the Commission to refer matters to other agencies where they might be relevant to the fitness of public sector officers to continue to serve or which might justify disciplinary action.

Opinions expressed about the strength or weakness of evidence in Operation Hale
In several places in the report, the Inspector has expressed views about the reliability or cogency of the evidence available to the Commission when considering whether to investigate this matter (for example, at page 62). This is despite the fact that, as the Inspector concedes in his report, he has not had access to crucial evidence relevant to this matter because it could not legally be provided to him. It is difficult to see how he could reasonably express any view on this issue in these circumstances.

Notice to produce
The Inspector appears to have found  that the notice to produce issued in respect of Ms Cunneen's phone and served by the Commission on 30 July 2014 was "contrary to law" (recommendation 3, page 64). The Commission does not accept the finding. The basis for that finding in law, or the facts upon which the finding was made, is not dealt with in the report in any of the quoted advice on the matter from Mr Blackburn SC and Mr Kulevski (page 17). Section 22 of the ICAC Act allows the Commission to require a person, upon whom such a notice is served, to produce a thing to a Commission officer at a time and place set out in the notice without any specific limitation on the time and the place that may be specified. To the extent that a reasonable time to produce a thing to the Commission may be required, the reasonable time is to be determined from all the circumstances, including the nature of the thing to be produced.

Telephone intercepts
The Inspector's report discloses in several places information about material provided to the Commission under section 68 of the Telecommunications (Interception and Access) Act 1979. The report also discloses the identity of the originating agency that provided the Commission with that material. Under theTelecommunications (Interception and Access) Act 1979, it is unlawful to disclose information about the issue of an interception warrant, the existence or non-existence of an interception warrant or any other information that is likely to enable the identification of the telecommunications service to which an interception warrant relates except for a purpose permitted by the Telecommunications (Interception and Access) Act 1979. This requirement is a matter that was specifically brought to the Inspector's attention by the Commission in its letter to him of 14 November 2014 (page 24). The Commission has never publicly confirmed or denied the existence of telephone intercept material in this matter.

Interaction with the Inspector
The Commission does not accept the Inspector's comments that it has exhibited towards him an insulting, condescending, insolent or arrogant attitude (pages 35 and 39). The particular statements in the correspondence to which the Inspector has taken offence were an attempt to do no more than stress the importance of maintaining both the appearance and the reality of independence on the part of the Commission and the Office of the Inspector, given that it was well-known that the Inspector was undertaking an investigation into Operation Hale. It was vital to the maintenance of the Commission's independence that consideration of the course it would take in the light of the passage of the Independent Commission Against Corruption Amendment (Validation) Act 2015 was uninfluenced by any decision that the Inspector might take with respect to the continuation or otherwise of his investigation. The Commission therefore regarded any discussion with the Inspector on the subject of the future of Operation Hale as a potential compromise of the independence of both organisations.

Moreover, the Report of the Independent Panel (30 July 2015) at 11.1.10 (page 73), stated that "the Inspector is not intended to act as a general review authority" and that the involvement of the Inspector in decisions taken by the Commission would be inappropriate and inconsistent with his statutory functions.

Contact: ICAC Manager Communications & Media, Nicole Thomas, 02 8281 5799 / 0417 467 801