Attorney-General Mark Dreyfus is lying and deceiving the Australian public regarding the percentage of public hearings the NSW ICAC has in an attempt to justify secret hearings at the National Anti-Corruption Commission (NACC). Having secret hearings at the NACC is not about protecting reputations it is about helping criminals hide crimes.

Mark Dreyfus claims that the NSW ICAC only has 5% of their hearings in the public so I contacted the NSW ICAC, as per the emails below, and they sent me a link to their latest annual report for the 2020-2021 year. The report shows Mr Dreyfus has cooked the books and is lying.

Normally the opposition (Liberal and National Parties) would be very quick to point out such blatant public lies but they are working with the government to make sure voters rarely get to see the National Anti-Corruption Commission hearings in public. This should concern every Australian.

I recently published an article titled “Prime Minister Anthony Albanese’s fake National Anti-Corruption Commission fails whistleblowers” which is an important addition to this article as one of the things that give most whistleblowers protection is public scrutiny. (Click here to read the article)

Every court in Australia has public hearings, except in exceptional circumstances, on a daily basis so why are the politicians, Labor, Liberal and the Nationals, arguing they are special?

The reason why the Labor Party, Liberal Party and National Party do not want public hearings is simple. Watch former NSW Premier Gladys Berejiklian and former NSW Deputy Premier John Barilaro being destroyed publicly giving evidence at the NSW ICAC in 2021 in the video below.

Now compare the above video of Gladys Berejiklian and John Barilaro to the video of Victorian Premier Daniel Andrews giving evidence this year into Labor Party government corruption at the Independent Broad-based Anti-corruption Commission (IBAC). Well, you can’t compare them because in Victoria the IBAC only has public hearings in exceptional circumstances, so the Victorian Premier Dan Andrews was protected and all the federal Labor, Liberal and National politicians know that and that is what they want for themselves.

They want to be protected so we can’t see the looks on their faces when they are lying on the witness stand under oath as we all could with former NSW Premier Gladys Berejiklian and former NSW Deputy Premier John Barilaro when they gave evidence at the NSW ICAC.

I emailed the NSW ICAC the below questions:

From: SHANE DOWLING
Sent: Friday, 30 September 2022 1:17 PM
To: XXXXX
Subject: Media question: NSW ICAC public hearings

Hi XXXXX

I am writing an article on the new Federal ICAC and one point is that the federal Attorney-General Mark Dreyfus claims the NSW ICAC only has “five percent of its hearings in public”.

1. Can you confirm if the NSW ICAC only has five percent of its hearings in public?
2. And if that is true, is it because a lot of the hearings are individual witnesses giving evidence in private in preparation for public hearings like what has happened with Operation Keppel and other investigations?

Regards

Shane Dowling

The NSW ICAC responded:

From: XXXXX
Sent: Friday, 30 September 2022 2:29 PM
To: SHANE DOWLING
Subject: RE: Media question: NSW ICAC public hearings [SEC=UNCLASSIFIED]

Hi Shane

ICAC annual reports include information on the number of matters the Commission receives in a year, and the number of compulsory examinations (which are held in private) and public inquiries it holds.

Please see below link to the 2021-22 annual report for further information.

Regards

XXXXX

https://www.icac.nsw.gov.au/ArticleDocuments/617/ICAC%20Annual%20Report%202020-2021.pdf.aspx

A quick read of the report and it says:

On page 6 of the NSW ICAC’s 2020-2021 report it has the below diagram:

On page 37 of the NSW ICAC 2020-2021 report, it says: “In 2020–21, the Commission conducted 85 compulsory examinations and three public inquiries (operations Keppel, Witney and Paragon) over 68 days.” (Click here to see the NSW ICAC 2020-2021 report)

NSW had 3 hearings in 2020-2021 and all three were public hearings which means 100% of their hearings were public. If what Mark Dreyfus said was true and NSW ICAC only had 5% of their hearing in the public, then that would mean that the NSW ICAC had 57 private hearings that the NSW ICAC report does not mention anywhere nor would they have the resources to conduct that many hearings.

What Mark Dreyfus has done is use the 85 “compulsory examinations” and claim they are private hearings and add the 3 public hearings, and round the 3 up, to get 5 percent are public hearings.

But the “compulsory examinations” are not hearings at all, and they are not called that in the NSW ICAC Report. They are private interviews with witnesses in preparation for the public hearings. So, for example, one of the public hearings “Operation Kepple” would have included 20 to 30 of the “compulsory examinations” as part of the initial investigation before they had the public hearing.

When we watch the NSW ICAC public hearings all the witnesses we see giving evidence have already done at least one, and sometimes 2 or 3, “compulsory examination” interviews with the NSW ICAC so they can gather the evidence for the public hearings.

That is what is called “cooking the books” by Mark Dreyfus.

“Cook the books” meaning: “alter facts or figures dishonestly or illegally” and “A metaphor based on cooking, whereby ingredients are changed, altered and improved. Thus financial statements can also be so modified to the benefit of the “cook”.”

If the Attorney-General needs to lie about such a basic fact that can be easily checked then that says he, and the government, are doing the wrong thing by the public and are desperate.

If Mark Dreyfus wants to stand by his lie he might want to explain how he calculated the 5% figure and explain why the latest NSW ICAC report for the 2020-2021 year shows 100% of their hearings, 3, were public hearings which lasted a total of 68 days.

Election promise lie – Public hearings

On the ALP website, it says on the page promoting “Labor’s Plan to tackle corruption in the Federal Government ” that the National Anti-Corruption Commission would “have the power to hold public hearings where the Commission determines it is in the public interest to do so”. (Click here to read more) And that is the promise that Anthony Albanese and the Labor Party went to the 2022 election with.

It makes no mention of only holding public hearings in “exceptional circumstances”. That is a clause that shows that Anthony Albanese and the Labor Party lied to voters at the 2022 election otherwise they can explain where it came from. In the video above Mark Dreyfus is asked where the “exceptional circumstances” clause came from, and he fails to answer the question.

Telling one lie might be justified as an accident but everything the government is saying trying to justify the secret hearings are lies to somehow justify the election promise backflip.

Exceptional circumstances – The big lie – Open Justice has been the cornerstone of legal hearings for decades 

The Australian Law Reform Commission says in relation to open justice:

Open justice is one of the fundamental attributes of a fair trial. That the administration of justice must take place in open court is a ‘fundamental rule of the common law’. The High Court has said that ‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances’.

In Russell v Russell, Gibbs J said that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’. Gibbs J went on to say:

Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court. (Click here to read more)

The common law has recognised a number of cases in which the principle of open justice may be limited in some circumstances, for example, to protect:

• secret technical processes;
• an anticipated breach of confidence;
• the name of a blackmailer’s victim;
• the name of a police informant or the identity of an undercover police officer; and
• national security. (Click here to read more)

Conclusion

Thousands of people around the country face charges in open court on a daily basis in Australia and a fair percentage of them are found not guilty but they don’t get secret hearings to protect their reputations which is what the federal politicians claim they are entitled to.

Politicians giving evidence at legal proceedings in public is not new. In 2014 the former Prime Minister Julia Gillard and in 2015 the then Labor Party leader Bill Shorten both gave evidence in public hearings at The Royal Commission into Trade Union Governance and Corruption. In 2014 former Prime Minister Kevin Rudd gave evidence at the Royal Commission into the Home Insulation Program.

Both Gillard and Shorten were accused of corruption when they gave evidence at The Royal Commission into Trade Union Governance and Corruption.

The NSW ICAC has hearings regularly with politicians at all levels of government, local, state and federal giving evidence in public. For example, in 2014 the then federal Senator Arthur Sinodinos gave evidence at NSW ICAC regarding corruption.

This year federal MP Andrew Hastie gave evidence at the defamation trial of Ben Roberts-Smith in the Federal Court of Australia regarding alleged war crimes.

If Julia Gillard, Bill Shorten, Kevin Rudd, Arthur Sinodinos and Andrew Hastie, to name just a few, can show up to Royal Commissions or the Federal Court of Australia or the NSW ICAC to give evidence publicly then the current federal politicians can do the same. To suggest otherwise is scandalous.

The Royal Commission into the Robodebt Scheme has just started. Will current politicians who are almost certain to be called to give evidence publicly, such as former Prime Minister Scott Morrison, now refuse to give evidence at the Royal Commission unless it is in private? What will the public think?

Having secret hearings at the National Anti-Corruption Commission (NACC) will set a bad example and have a negative impact across the board when it comes to shining a light on corruption.

The irony is Mark Dreyfus in law, and Peter Dutton in policing, who are both out front pushing for the secret hearings, both had long careers where open justice (public hearings) was not only expected but demanded except for in exceptional circumstances. Now they have done a backflip because it suits their agenda of protecting themselves and their mates in politics.

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