The Independent Commission Against Corruption (ICAC) in New South Wales (NSW) has now been in operation for over two decades. The ICAC's jurisdiction extends to all public sector agencies (except for the NSW Police Force) and it is important that public servants and others performing public functions or doing business with the public sector have an appreciation of its objectives, functions and powers. Similar standing bodies consider corruption issues in other states, for example, the Crime and Misconduct Commission in Queensland and the Corruption and Crime Commission in Western Australia. Last week, the Victorian Government has also announced that it will establish the Victorian Integrity and Anti-Corruption Commission as a step towards greater public sector integrity and accountability.
The ICAC was established by the NSW Government in 1989 under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) in response to growing community concern about the integrity of public administration in NSW. The principal objects of the ICAC Act are to:
- promote the integrity and accountability of public administration through an independent and accountable body
- investigate, expose and prevent corruption involving or affecting public authorities and public officials
- educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and
- confer on the ICAC special powers to inquire into allegations of corruption.
The primary function of the ICAC is to investigate and expose corrupt conduct in the NSW public sector. Other functions include preventing corruption through advice and assistance as well as educating the NSW community and public sector about corruption and its effects.
The general nature of "corrupt conduct", as defined in the ICAC Act, includes conduct that adversely affects the honest or impartial exercise of public functions or involves the dishonest or partial exercise of any public functions, a breach of public trust or the misuse of information or material acquired in the performance of public functions. Corrupt conduct is also defined by reference to specific matters, for example, official misconduct, bribery, blackmail, fraud, theft, embezzlement, election bribery, tax evasion and secret commissions.
The ICAC, like other corruption-fighting bodies, has broad-ranging information-gathering powers, including powers to obtain information and documents, enter public premises, issue search warrants and conduct private hearings (known as "compulsory examinations"). It may also conduct public inquiries, summon witnesses, authorise the examination or cross-examination of witnesses and override the privilege against self-incrimination. If a witness fails to attend in response to a summons, the ICAC is empowered to issue a warrant for their arrest. The use of surveillance devices and telephone intercepts is also available to the ICAC under the Surveillance Devices Act 2007 (NSW) and the Telecommunications (Interception and Access) Act 1979 (Cth) respectively.
The ICAC has considerable discretion as to the matters it investigates and how its investigations are conducted. In its investigation reports, the ICAC may include findings of corrupt conduct in relation to individuals investigated. If an allegation is found to be without substance, the ICAC may make findings to the effect that no corrupt conduct has been established. The ICAC may also include in its investigation reports, recommendations that consideration be given to the prosecution of, or taking of disciplinary or dismissal action against, individuals investigated as well as recommendations to agencies and public officials for changes in systems and procedures to prevent future corrupt conduct.
In light of the ICAC's extensive investigative powers, there is a clear need for accountability in respect of how these powers are exercised. The ICAC is accountable to the Parliament through a Parliamentary Joint Committee. Following a review of the ICAC Act, amending legislation was passed in 2005 to provide for the establishment of an independent agency to oversee the ICAC (known as the Inspector of the ICAC) and additional public reporting requirements in relation to ICAC investigations. Recently, regulations under the ICAC Act have been amended to provide, amongst other things, for security checks of, and financial disclosures by, ICAC staff and their associates (Independent Commission Against Corruption Regulation 2010 (NSW)).
Recently completed ICAC investigations that have been publicly reported include corrupt conduct findings against a former officer of a NSW department and a private individual for attempting to bribe an employee of a local council. In both cases, the ICAC recommended that consideration be given to the prosecution of those individuals for criminal offences.
Current ICAC investigations that have been made public include investigations into: the conduct of a Member of Parliament for falsely claiming parliamentary entitlements; a correctional officer for supplying drugs and other contraband to inmates in return for payment; and the alleged misuse of resources by officers of NSW Maritime.
Corrupt conduct is not always easy to define and those working in public authorities may fear reprisals in their workplace if they attempt to identify wrongdoing. However, there are legal protections for those who wish to make disclosures (under the Protected Disclosures Act 1994 (NSW)). It is also possible to report suspected corrupt conduct through the ICAC website.
If you would like any further information or advice relating to any ICAC matters, including investigations, feel free to contact us. In addition, further information about the ICAC can be found on its website. For information about the oversight of the ICAC visit the Inspector of the ICAC website and the Parliamentary Joint Committee website.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.