ICAC warns abolishing public hearings would 'seriously weaken' its work

The Independent Commission Against Corruption has flatly rejected a call by its Inspector, David Levine, for its hearings to be in private, warning such a move would "seriously weaken" the commission's effectiveness.

The watchdog has also rejected Mr Levine's call for an "exoneration protocol", whereby people found corrupt but not later criminally convicted could apply to the Supreme Court to have the finding set aside and ICAC records expunged.

The ICAC says this recommendation "ignores the fact that commission investigations are separate from criminal proceedings".

ICAC Inspector David Levine has called for an "exoneration protocol". Photo: Peter Rae

The comments are contained in the ICAC's formal response to Mr Levine's report to Premier Mike Baird on the watchdog's powers.

Mr Levine was asked by Mr Baird to review ICAC's powers following the report of an expert panel comprised of former chief justice of Australia Murray Gleeson and barrister Bruce McClintock, SC, in July last year.

It followed the ICAC's aborted inquiry into whether crown prosecutor Margaret Cunneen attempted to pervert the course of justice by counselling her son's girlfriend, Sophia Tilley, to fake chest pains after a car accident to avoid a breath test. Ms Cunneen has always denied having done so. 

The ICAC aborted the inquiry after the High Court ruled it was outside its jurisdiction and the NSW department of public prosecutions did not proceed with charges.

In its submission to Mr Baird, the ICAC says it does not support key recommendations made by Mr Levine and that all but two are "unnecessary" as they are covered by its legislation and internal policies.

The ICAC argues the recommendation to abolish public hearings "is fundamentally inconsistent with the established principle of open justice."

"It is a recognised principle of Australian law that proceedings involving the administration of justice and inquisitorial proceedings should be conducted in public," the response says.

The call for an exoneration protocol "demonstrates an apparent misunderstanding on the part of the Inspector of the basis upon which corrupt conduct findings are made under the ICAC Act", ICAC says.

The agency also takes aim at a recommendation that it be prohibited from making factual commentary about the conduct of investigation subjects and restricted to making findings of serious corruption.

This change would "seriously compromise the commission's effectiveness," it argues.

It says prohibiting ICAC from making commentary about an investigation subject's conduct "is an absurd position".

"It would mean, for example, that the commission could not make a factual finding exonerating a person from alleged conduct," the watchdog argues.

"It would mean that if the evidence established that a person had engaged in wrongdoing, the commission would be precluded from making a factual finding to that effect.

"It would also preclude factual findings in relation to persons whose conduct does not amount to serious corrupt conduct but whose conduct is integral to an appreciation of the context of a serious corrupt conduct finding against another person."

Mr Levine's report and the ICAC's response will be considered by the parliamentary oversight committee for the ICAC, which is due to report later this year.