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'Walking ATM' Jeff McCloy the latest pip made to squeak by Icac 'Walking ATM' Jeff McCloy the latest pip made to squeak by Icac
(about 3 hours later)
Wealthy business and political figures don’t like the inquisitorial process, not one little bit.Wealthy business and political figures don’t like the inquisitorial process, not one little bit.
Many of the traditional ways in which business and affairs are conducted in NSW have been upended by the Independent Commission Against Corruption (Icac). Now the commission is meeting determined resistance to its methods.Many of the traditional ways in which business and affairs are conducted in NSW have been upended by the Independent Commission Against Corruption (Icac). Now the commission is meeting determined resistance to its methods.
Related: Icac powers to be limited after Margaret Cunneen case, Mike Baird announcesRelated: Icac powers to be limited after Margaret Cunneen case, Mike Baird announces
Newcastle property developer Jeff McCloy is the latest to take exception to being hauled in for a non-adversarial fact-finding mission. He’s asking the supreme court of NSW to prevent Icac and its commissioner, Megan Latham, from finalising its report into prohibited and undisclosed political donations.Newcastle property developer Jeff McCloy is the latest to take exception to being hauled in for a non-adversarial fact-finding mission. He’s asking the supreme court of NSW to prevent Icac and its commissioner, Megan Latham, from finalising its report into prohibited and undisclosed political donations.
He cites the “two might” apprehended bias rule: that a fair minded observer might reasonably apprehend that commissioner Latham might not bring an impartial and unprejudiced mind to the resolution of the questions and the findings to be made as part of operation Spicer.He cites the “two might” apprehended bias rule: that a fair minded observer might reasonably apprehend that commissioner Latham might not bring an impartial and unprejudiced mind to the resolution of the questions and the findings to be made as part of operation Spicer.
His summons, filed in the court on Tuesday, claims that commissioner Latham failed to restrain counsel assisting, Geoffrey Watson SC, from making prejudicial and sarcastic remarks during the Spicer inquiry between April and September last year.His summons, filed in the court on Tuesday, claims that commissioner Latham failed to restrain counsel assisting, Geoffrey Watson SC, from making prejudicial and sarcastic remarks during the Spicer inquiry between April and September last year.
Unusually, he is not asking Latham to disqualify herself in the normal recusal process. He is asking the court to do it for her.Unusually, he is not asking Latham to disqualify herself in the normal recusal process. He is asking the court to do it for her.
The high court is currently reserved on McCloy’s application that the NSW electoral funding laws, which prohibit certain categories of political donations, including funds from property developers, is unconstitutional.The high court is currently reserved on McCloy’s application that the NSW electoral funding laws, which prohibit certain categories of political donations, including funds from property developers, is unconstitutional.
McCloy admitted to Icac that he gave tens of thousands of dollars to state Liberal party candidates, to such an extent that he felt “like a walking ATM”. Some of the money was passed through the back window of his parked Bentley.McCloy admitted to Icac that he gave tens of thousands of dollars to state Liberal party candidates, to such an extent that he felt “like a walking ATM”. Some of the money was passed through the back window of his parked Bentley.
Liberal MPs Tim Owen and Andrew Cornwell both resigned from parliament after admitting to receiving money from McCloy. Garry Edwards, the Liberal member for Swansea, moved to the crossbenches after it emerged that McCloy gave him the contents of his wallet (about $1,800) as a “straight cash donation”. Edwards subsequently lost his seat to the Labor party at the March state elections.Liberal MPs Tim Owen and Andrew Cornwell both resigned from parliament after admitting to receiving money from McCloy. Garry Edwards, the Liberal member for Swansea, moved to the crossbenches after it emerged that McCloy gave him the contents of his wallet (about $1,800) as a “straight cash donation”. Edwards subsequently lost his seat to the Labor party at the March state elections.
McCloy is pleading what seems to be a pent-up litany of resentments about counsel assisting, including his “suggested hostility towards the Liberal party of Australia”; his remarks suggesting the Free Enterprise Foundation was an extremist organisation (“it sounds like Ayn Rand wrote this”); interrupting witnesses with rhetorical questions and “gratuitous” remarks; shouting at a witness; insulting counsel for a government minister (“he’s getting a bit whingey now”); sarcastically referring to McCloy, who was lord mayor of Newcastle, as “Mr Mayor” or “Mayor McCloy”; and making irrelevant references to to McCloy’s Bentley.McCloy is pleading what seems to be a pent-up litany of resentments about counsel assisting, including his “suggested hostility towards the Liberal party of Australia”; his remarks suggesting the Free Enterprise Foundation was an extremist organisation (“it sounds like Ayn Rand wrote this”); interrupting witnesses with rhetorical questions and “gratuitous” remarks; shouting at a witness; insulting counsel for a government minister (“he’s getting a bit whingey now”); sarcastically referring to McCloy, who was lord mayor of Newcastle, as “Mr Mayor” or “Mayor McCloy”; and making irrelevant references to to McCloy’s Bentley.
There was also an interview with Geoffrey Watson in The Australian Financial Review in which he was photographed posed in the corner of a boxing ring. McCloy claims that a fair minded observer might reasonably conclude that counsel assisting was “promoting himself publicly as a hero ... was consciously adopting an aggressive or pugilistic approach to operation Spicer”.There was also an interview with Geoffrey Watson in The Australian Financial Review in which he was photographed posed in the corner of a boxing ring. McCloy claims that a fair minded observer might reasonably conclude that counsel assisting was “promoting himself publicly as a hero ... was consciously adopting an aggressive or pugilistic approach to operation Spicer”.
Further, he says that commissioner Latham condoned or encouraged counsel assisting’s conduct, and confined the role of barristers for other witness while allowing Watson more latitude. The plaintiff also complains that the commissioner asserted that some of the rules that traditionally apply to barristers’ conduct, didn’t apply to counsel assisting.Further, he says that commissioner Latham condoned or encouraged counsel assisting’s conduct, and confined the role of barristers for other witness while allowing Watson more latitude. The plaintiff also complains that the commissioner asserted that some of the rules that traditionally apply to barristers’ conduct, didn’t apply to counsel assisting.
Completion of operation Spicer’s findings on political donations has been delayed as a result of the challenge to Icac’s jurisdiction launched by state prosecutor Margaret Cunneen, with the high court in in April limiting the interpretation of “corruption” under the Icac Act. Completion of operation Spicer’s findings on political donations has been delayed as a result of the challenge to Icac’s jurisdiction launched by state prosecutor Margaret Cunneen. The high court in April limited the interpretation of “corruption” under the Icac Act.
The court found that as far as private individuals are concerned, corruption only arises when criminal conduct adversely affects the “probity” of public officials, but not their “efficacy”.The court found that as far as private individuals are concerned, corruption only arises when criminal conduct adversely affects the “probity” of public officials, but not their “efficacy”.
Nonetheless, the Baird government expressed strong support for the work of Icac, rushed through legislation that validated past findings that otherwise would have run foul of the high court’s narrower interpretation.Nonetheless, the Baird government expressed strong support for the work of Icac, rushed through legislation that validated past findings that otherwise would have run foul of the high court’s narrower interpretation.
The premier also commissioned a review led by former high court chief justice Murray Gleeson into “the appropriate scope for Icac’s jurisdiction”. The findings of that report have now been turned into amending legislation clarifying, confining and in some cases restoring the anti-corruption body’s powers. In the interim, plutocrats and captains of industry are unhappy that their corporate affairs and interaction with the governmental process have been probed and publicly ventilated.The premier also commissioned a review led by former high court chief justice Murray Gleeson into “the appropriate scope for Icac’s jurisdiction”. The findings of that report have now been turned into amending legislation clarifying, confining and in some cases restoring the anti-corruption body’s powers. In the interim, plutocrats and captains of industry are unhappy that their corporate affairs and interaction with the governmental process have been probed and publicly ventilated.
Investors in Cascade Coal, which won exploration licences at Mount Penny in the Belong Valley, were found to have acted corruptly by concealing from public officials the involvement of the Obeids in the coal tenement. Some of the investors in Cascade Coal, which won exploration licences at Mount Penny in the Belong Valley, were found to have acted corruptly by concealing from public officials the involvement of the Obeids in the coal tenement.
Those investors challenged the corruption findings in the courts, and the only one to have successful overturned an adverse finding is former Rams Home Loans founder John Kinghorn. John Kinghorn, Travers Duncan, John McGuigan, John Atkinson and Richard Poole challenged the corruption findings in the courts, and the only one, so far, to have succeeded is Kinghorn, the former Rams Home Loans founder.
Businessman Travers Duncan was the last of those investors still fighting. He ended up in the high court arguing that the retrospective validating legislation was invalid and this week he learned that he had been unsuccessful. Icac is now trying to have its original determination in relation to Kinghorn restored by the NSW Court of Appeal, while Duncan, McGuigan, Atkinson and Poole are asking the appeal judges to reverse the original determinations.
Cascade Coal also wants to scrap Icac’s recommendation that its coal licence be revoked. Litigation stretches ahead, as far as the eye can see.
Icac’s work on operations Credo (the Obeids and Australian Water Holdings) and Spicer is still on hold until the Gleeson amendments are passed by parliament. There will probably be further submissions from the affected parties before final reports are sent to parliament.Icac’s work on operations Credo (the Obeids and Australian Water Holdings) and Spicer is still on hold until the Gleeson amendments are passed by parliament. There will probably be further submissions from the affected parties before final reports are sent to parliament.
Eddie Obeid and members of his family have also launched civil proceedings against Icac, its former commissioner David Ipp, seven members of its staff, including its chief lawyer Roy Waldon, and Geoffrey Watson.Eddie Obeid and members of his family have also launched civil proceedings against Icac, its former commissioner David Ipp, seven members of its staff, including its chief lawyer Roy Waldon, and Geoffrey Watson.
The Obeids’ 65-page statement of claim contends that the defendants have engaged in misfeasance in public office and that Icac reports and findings which besmirch their names should be declared a nullity and that the commission be permanently restrained from issuing the Spicer and Credo reports that relevantly affect the plaintiffs.The Obeids’ 65-page statement of claim contends that the defendants have engaged in misfeasance in public office and that Icac reports and findings which besmirch their names should be declared a nullity and that the commission be permanently restrained from issuing the Spicer and Credo reports that relevantly affect the plaintiffs.
They contend that Icac planted and manipulated evidence, acted outside the scope of search warrants and did secret deals with witnesses.They contend that Icac planted and manipulated evidence, acted outside the scope of search warrants and did secret deals with witnesses.
Further, they say that “Geoffrey Watson was aware that he was neither a fit and proper person, not suitable to act as counsel assisting in operations Credo and Spicer”. The pleadings say that Watson yelled at Eddie Obeid in an unbarristerial manner, pointed his finger at him, made sarcastic comments and interrupted him. Further, they say that “Geoffrey Watson was aware that he was neither a fit and proper person, nor suitable to act as counsel assisting in operations Credo and Spicer”. The pleadings say that Watson yelled at Eddie Obeid in an unbarristerial manner, pointed his finger at him, made sarcastic comments and interrupted him.
Watson went on the record to respond: “These allegations are the greatest bunch of rubbish that I have ever read.”Watson went on the record to respond: “These allegations are the greatest bunch of rubbish that I have ever read.”
These outbreaks of litigious warfare have been accompanied in the Murdoch press by support for the cause favoured by Icac’s opponents: Icac has too much power and wields it injudiciously.These outbreaks of litigious warfare have been accompanied in the Murdoch press by support for the cause favoured by Icac’s opponents: Icac has too much power and wields it injudiciously.
This sudden concern for the “rule of law” ignores the fact that over the years parliaments in NSW have supported the work of Icac and given it powers to do its vital job.This sudden concern for the “rule of law” ignores the fact that over the years parliaments in NSW have supported the work of Icac and given it powers to do its vital job.
Related: Unfortunately for outraged journalists, the high court was right to rein in Icac | Andrew TiedtRelated: Unfortunately for outraged journalists, the high court was right to rein in Icac | Andrew Tiedt
While Icac has inflicted damage on both sides of politics, nonetheless the political imperative is for governments to support its mission.While Icac has inflicted damage on both sides of politics, nonetheless the political imperative is for governments to support its mission.
Icac itself cannot send anyone to jail. It can only make reports to parliament and refer material to the DPP. In that sense, it does not offend the usual precepts of the “rule of law”. The commission is a truth seeking body, not an adversarial one where the rules allow for evidence to be omitted and hidden.Icac itself cannot send anyone to jail. It can only make reports to parliament and refer material to the DPP. In that sense, it does not offend the usual precepts of the “rule of law”. The commission is a truth seeking body, not an adversarial one where the rules allow for evidence to be omitted and hidden.
What has evolved is wide community acceptance that corrupt conduct can most effectively be fought by a fact-finding body with wide, but certainly not draconian, powers to seize evidence, bug premises and cross-examine witnesses. No wonder the pips are squeaking.What has evolved is wide community acceptance that corrupt conduct can most effectively be fought by a fact-finding body with wide, but certainly not draconian, powers to seize evidence, bug premises and cross-examine witnesses. No wonder the pips are squeaking.