The Corruption and Crime Commission has released a series of explosive reports over the past three years, yet independent reviews of its findings have repeatedly reached contrary conclusions.
Malcolm McCusker QC didn’t mince his words when he reviewed the CCC’s finding of misconduct against Planning and Infrastructure Department executive Paul Frewer.
“There was no justification for the commission’s finding,” Mr McCusker’s report says.
Mr Frewer was one of several public servants who became the subject of an adverse finding by the CCC, arising from its inquiry into Canal Rocks’ proposed Smith’s Beach development.
Former Environmental Protection Authority chairman Wally Cox and a second DPI executive, Mike Allen, also had a case to answer, the CCC concluded.
Like Mr Frewer, they have also been cleared by subsequent inquiries.
Dr Cox’s alleged wrondoing was to have attended a private lunch with Canal Rocks lobbyists Brian Burke and Julian Grill in May 2006, when the CCC said the Canal Rocks environmental assessment was before him and his agency.
Mr Allen was found to have complied with the wishes of Mr Burke and his client when a certain departmental officer was appointed to write a report.
Mr Frewer was found to have sought the deferral of a planning scheme amendment at the request of Mr Burke.
The CCC made these, and many other, adverse findings after using its extraordinary powers of surveillance and investigation, which included extensive telephone tapping and covert surveillance.
Despite this, it made some fundamental errors.
In Mr Frewer’s case, for instance, it used the written minutes of a crucial planning committee meeting but did not check the tape recording of the same meeting.
The CCC’s findings are “patently inconsistent with the audio recording of the discussion”, Mr McCusker concluded.
Mr McCusker said the CCC mistakenly assumed that if a public officer had been lobbied, and subsequently voted in a way that coincided with the wishes of the lobbyist, it followed that the public officer had acted at the request of the lobbyist and not with integrity or impartiality.
In his capacity as parliamentary inspector of the CCC, Mr McCusker is pushing for changes to the way the CCC undertakes its inquiries.
In particular, he wants the CCC to conduct its inquiries privately, and make its recommendations privately, in cases where there are reasons to suspect misconduct.
Mr McCusker said this would protect people like Mr Frewer, who has suffered “particularly serious prejudice” and stood “convicted” in the public mind for more than a year.
State parliament’s joint standing committee on the CCC is also reviewing the efficacy of public hearings.
If Mr McCusker’s suggestion was accepted by CCC commissioner Len Roberts-Smith, the CCC would partially revert to the mode of the old Anti-Corruption Commission.
It means the public would not know anything about the recent inquiry into former Health Department boss Neale Fong’s dealings with Mr Burke.
While the CCC has had little to say on most of the independent reviews, it has challenged the review of Dr Cox’s case.
Agriculture Department head Ian Longson gave Dr Cox a clean bill of health.
Mr Longson found that the Smith’s Beach environmental review was not before Dr Cox or the EPA board at the time of the infamous lunch.
He also found there was no evidence that Dr Cox attempted to interfere with the environmental review process and there was no evidence that Dr Cox was influenced in his role as chairman of the EPA by Mr Grill or Mr Burke.
Mr Longson said Dr Cox’s conduct did not breach the Public Sector Code of Ethics.
‘‘On this basis, Mr Longson formed the view that Dr Cox’s actions did not constitute misconduct under the Corruption and Crime Commission Act,” a statement said.
The CCC fired back with its own statement.
It said Mr Longson’s department does not have the legal authority to make findings under the CCC Act.
The CCC also accused Mr Longson of setting up a straw man.
“The commission did not say that Dr Cox attempted to interfere with the SEA process nor that he was influenced in his role as Chairman of the EPA by Mr Grill and Mr Burke,” it said.
The commission said (on p60) “...the impropriety, with regard to Dr Cox, is in the acceptance of the invitation and attendance at this private lunch when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd SEA was before him and his agency”.