“Influence peddling in New South Wales has been a problem forever,” Chris Uhlmann informed AM‘s listeners as a prelude to questioning Planning Minister Brad Hazzard just before Easter. The subject under discussion, of course, was the dramatic resignation of the Premier Barry O’Farrell and the implications for the governance of the state to be drawn from the probings of Independent Commission Against Corruption.
Uhlmann’s statement goes to the heart of concerns of the ordinary man in the street as to how decisions are arrived at, and why some individuals enjoy preferred access to put their plans and submissions. On the face of it, most of us can’t understand why this American-style lobby industry has been allowed to grow and prosper; why personal access is not forbidden and all proposals are not required to be put in writing for formal consideration.
That the system of influential access can percolate down to the most banal level, with the potential for unfortunate and unfair consequences, was demonstrated to me at a personal level a year or so ago. I had instituted actions against the management committee of our strata units in the NSW Consumer Trader and Tenancy Tribunal (CTTT), alleging mismanagement and failure to recoup moneys wrongly charged by a contractor. Naturally this led to bitter recriminations over long, drawn-out proceedings.
During the lengthy process, the chairman of the committee (a member of the Liberal Party’s local branch) had a quiet word in the ear of the relevant state minister at a social function. He asked what could be done to stop what he called “vexatious” actions by owners of strata units. Instead of saying straightforwardly that he could not intervene in a legal dispute, the minister asked him to supply details of the problem.
The minister was given a lengthy complaint outlining the legal dispute in biased and prejudicial terms, and identifying me by name. About six weeks later he replied, properly but sanctimoniously, that it was not for him to interfere in the conduct of the tribunal or matters before it.
However, in what could be taken as an indication of sympathy for the submission, he referred to forthcoming amendments to the Strata Act, including one on “how to deal with vexatious litigations or those owners who lodge repeated applications.” He said he “looked forward” to examining any proposals on this issue during the review of the legislation. To my eyes it amounted to a ‘nudge-nudge, wink-wink’ message to his party supplicant.
How do I know this? Because I obtained all the documents of the approach to the minister and his ultimate written response from a search of the strata records.
Of course I wrote to the minister challenging the allegations made against me. Imagine my surprise when he replied, avoiding all discussion of the issue, but informing me he had referred my letter to the Chairman of the CTTT “for examination.” To my mind this was an intimidatory response.
I asked ICAC to investigate. Whatever might have been said in private, the minister had been careful not to put anything in writing that could be interpreted as an intention to interfere, let alone influence a matter before a tribunal. But in my view his conduct had been questionable. S.8(1)(a) of the Independent Commission Against Corruption Act 1988 defines corrupt conduct, inter alia as:
…any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority…
For me, the proof was in the chairman’s final report to the committee noting that his submission to the minister had failed.
Well, what happened? ICAC explained that 95% of the complaints it receives are not considered appropriate for investigation. The approach to the minister was not improper because he was merely seeking legal advice. (This despite having spent many thousands of dollars of the owners’ money on legal advice to suppress dissent).
ICAC’s letter concluded: “The conduct of xxxxxx, absent any information involving corrupt conduct by any NSW public official or NSW public agency is not for the Commission to consider.”
This extraordinary statement implied that, as a general principle, corruption cannot be corrupt unless it can be shown to have succeeded!
This little story is not to plead a personal angle in a complicated piece of strata litigation, nor is it a complaint against ICAC or its officers. It is, however, a grass-roots demonstration of how politics works, how some people want it to work and try to use it, and how ICAC and similar bodies cannot cope.
The public is entitled to know why and on what basis the 95% of complaints to ICAC are rejected. The Act may have teeth but they seem to be kept for the big fish and provide little or no protection for the small people.