A motion to disallow the extraordinary powers given to the NSW corruption watchdog to illegally access recorded phone calls has failed.
But all sides of government have questioned the process in which the ICAC was allowed to illegally access recorded phone calls, with MPs questioning why it wasn’t presented to parliament.
Last month, the NSW Attorney-General Michael Daley approved a request from the Independent Commission Against Corruption’s (ICAC) chief commissioner John Hatziestergos to lawfully obtain, possess, publish and communicate the recordings as part of Operation Rosny.
As a result the watchdog was granted the ability to use the powers in relation to evidence uncovered during a probe into disgraced Toplace developer Jean Nassif, with the regulation also applicable on all investigations until December 31, 2025.
Mr Nassif, who is currently evading authorities in rural Lebanon, was implicated in accusations that were made by former Liberal MP Ray Williams under parliamentary, which alleged his company paid senior Liberal members and Liberal state executive members to approve developments.
Although an upper house disallowance motion launched by Liberal Democratic MP John Ruddick failed 15 to 24 on Tuesday evening, even Labor’s own Cameron Murphy said it would have been “preferable” for the motion to have been debated before it was approved.
The former NSW Council for Civil Liberties’ president questioned why the scope of the extended powers weren’t just allowed for a single investigation. He was also concerned over the scope of the legislation which would allow unlawfully obtained evidence by ICAC to become lawful.
However Mr Murphy said the parliament needed to “trust” that ICAC required the ”extraordinary powers,” which had to be acquired through an expedited regulation process.
Animal Justice Party MP Emma Hurst, who also voted in favour of the motion, also said she thought was a “better way that this could (have been) done”.
“I once again call in on the NSW government introduce the public interest exemption into the NSW Surveillance Devices Act so we can address the systemic issues,” she said.
Putting forward the motion, Mr Ruddick said the government had “improperly bypassed powers” by not seeking parliamentary approval before allowing the regulation, and feared it set an “alarming precedent”.
“We want corruption stamped out but we want proper oversight as well,” he said while moving the motion in parliament.
“This regulation gives ICAC the power to listen to all recordings for any investigation for the next two and a quarter years.”
However Special Minister John Graham called upper house members to vote against the motion, and said the regulation was a “limited intervention”.
Mr Graham also quoted correspondence between Mr Hatziestergos and the Attorney General, in which the commissioner said there was a “real risk” wouldn’t be able to establish “key elements to the investigation” without access to the evidence.
“The commission would not be fulfilling its statutory remit to investigate and expose the serious allegations of corruption in this matter if it were to ignore swathes of potentially highly relevant information,” said Mr Graham, quoting the ICAC commissioner.
Mr Graham also defended granting extending the powers to cover all investigations up until December 31, 2025, as the government didn’t want to seen as “targeting a specific investigation,” or “risk the appearance of politicising” the watchdog.
Upper house Labor MP Bob Nanva also said Labor had complied with a high-profile ICAC investigation when their members where in the spotlight.
Mr Nanva suggested the opposition had opposed the regulation because Liberal Party members had become implicated in the probe.
“What I see in this disallowance motion, is an unfortunate rejection of the chance to reckon with the matters,” said Mr Nanva.
“If those concerns are held for no other reason other than to avoid scrutiny … than that is no poor reflection on the commission but for those who make the argument.”
Advocating for support of the regulation, leader of the opposition in the upper house Damien Tudehope said the government had failed to “properly draft a regulation”.
“The only body which has undermined the ICAC are those who drafted the regulations,“ Mr Tudehope said.
“We need to rewrite this because it goes way too far.
“This could be fixed and an arrogant government has to refused to fix what was clearly a problem.”
Former One Nation MP turned independent MP Rod Roberts also said the powers were “illegal and contrary to good law, regardless of whether it was for the use of ICAC of not”.
“What we have are recordings made by an individual, not an investigative or law enforcement body, but an individual in clear breach (of the law),” he said.
The Bill will continue to a vote after 6.30pm.
Opposition pushes for regulation change
While Coalition members supported the Bill, they have proffered an alternative regulation.
Opposition Leader Mark Speakman said shadow attorney-general Alister Henskens has written to Attorney-General Michael Daley requesting ICAC only be given the additional powers to oversee their investigation into Mr Nassif.
“We did not want to obstruct in any way whatsoever that operation so we’re content for a regulation that allows the commissioner until 2025 to use surveillance recordings that have been done illegally, but limited to this operation,” Mr Speakman said.
If allowed, Mr Daley will put the regulation to parliament for a vote.
Previously Mr Speakman accused ICAC of a “reckless, outrageous, (and) over-the-top power grab”.
“This is reckless drafting. It should have been subject to proper scrutiny of parliament where we could have finessed the drafting if it was thought appropriate,” he said.
Mr Daley’s office was contacted for comment.