Justinian revisits the fragile excuses advanced by ICAC for failing to investigate the Botany bribery scandal ... Contrary to commissioner Temby's report, Botany alderman had a clear memory of the attempted bribe over a land zoning proposal that affected Rupert Murdoch's interests ... Those were the days, when Rupert owed the Labor Party ... From our bulging archive, February 1990
Trevor Haines: upset at Temby's aspersionsA matter that has kept me tossing and turning is the annual report of the Independent Commission Against Corruption.
When it came down towards the end of last year one of the issues of greatest fascination was ICAC commissioner Ian Temby's declaration that he was not going to pursue the Botany Council case and the role in the bribery scandal of former Wran government minister and federal aspirant Laurie Brereton.
Two things are worth noting: The reasons Temby gave for not doing a thorough investigation into this long standing sleazy case (see below); and the outburst that Temby's analysis of the internal handling of the case evoked from my old friend Trevor Haines AO, head of the Attorney General's Department in NSW.
Temby suggests in his report that either Attorney General Frank Walker had misled parliament over internal advice about not taking further action against Brereton, despite an ex officio indictment that the Solicitor General directed during their term of the previous Liberal government, or that Haines' notes on the advice were inaccurate.
The report could also be read as suggesting that Haines had insufficiently briefed or advised Walker as to what should be done with Brereton and the indictment.
That's just the sort of thing to set Trev off, and in a confidential letter to Temby he gave the small, but perfectly sculptured former West Australian, a blast - virtually accusing Temby of sloppiness.
Haines said:
"Traditionally the department has never tendered advice in such matters ... It would be regarded as quite inappropriate for the department to tender advice or to express an opinion in law in respect of matters where the Attorney is acting in the discharge of his traditional common law duties.
Whilst the departmental file was made available to the commission (ICAC), I am unaware of any approach by the commission for advice as to procedures, or to supplement, confirm or question the information contained in the file. No questions were directed in respect of this particular case."
He also declared that he is a great note keeper.
"One only has to look at my evidence before the Wran Royal Commission to seek confirmation of that practice, or make enquiries of me and see the material on hand in my office."
Haines indicated that Walker's failure to take advice from either the private bar or crown law was not the department's fault.
Meanwhile, Brereton sails on blissfully towards a career in the federal parliament.
Memories far from faded in bribery case
Temby: looked the other wayTemby's reasons for not taking the Brereton bribery matters further are instructive, particularly because this case is still the greatest unresolved public scandal involving the NSW Labour Party.
The ICAC report gives two main reasons for not pushing on with finding out whether Mr Brereton was a crook or not.
First, on the basis of decisions such as Herron v McGregor, Whitbread v Cook, Watson v Attorney General and Cook v Purcell, proceedings against Brereton cannot be taken.
These cases have made it clear that a prosecution will be stayed as an abuse of process if brought after long and unexplained delay. Temby's report said:
"It is too late to rectify the situation now. It would be quite wrong to proceed further against him."
Secondly, ICAC itself was not keen to pursue the matter:
"The prospects of the commission now discovering the truth - whether as to the original alleged corrupt conduct, or subsequent events - are quite remote.
With the passage of time memories do fade; sometimes they are converted to a more convenient or less embarrassing position than accords with historical fact. The purpose of investigation is to ascertain the truth.
That cannot now be done, and it must be doubted whether any very useful purpose would be served by making the attempt."
Well, a couple of points about that:
1. The useful purpose of such an attempt would be to discover whether Brereton had attempted to bribe Botany Council alderman. If so then it would be inappropriate for him to be a member of any parliament. That in itself would be a useful purpose.
2. Some memories are far from faded and are still convinced of the truth.
Temby did not discuss the extent of faded memories with such former alderman as Jim Slattery and Owen Davis both of whom are quite crystal clear on the matter.
They remember being summonsed to Brereton's house where they say the bribe was offered to secure their vote to stop the change to land use zoning which would adversely affect some Murdoch-owned land in the municipality.
Jim Slattery was kind enough to call up to my office the other day. He told me that ICAC had not discussed the state of his memory with him and as far as he's concerned his recollection of those events is good.
Owen Davis is in retirement up near Wyong and said he will "never forget" what happened.
He wrote to the Premier's Department about the matter some time ago and his enquiry was passed onto ICAC. He received a letter back from the corruption commission, which he described as "one of the most shithouse letters I have ever read".
"I told then, 'if you want information just look at hansard' ... The whole thing is one of the greatest injustices."
Henry Morris is president of South Sydney Junior Rugby League Club and he says he wasn't approached by anyone from Temby's team to test whether his memory had faded.
NB: The alleged bribe to vote the "right way" was $5,000 for each alderman. This was followed by threats of loss of preselection, threats which in due course were carried out.