AGY-778 | Independent Commission Against Corruption

Full description

The Independent Commission Against Corruption (ICAC) was established by the Independent Commission Against Corruption Act, 1988 (Act No. 35, 1988). (1) The Commission came into being on 13 March 1989. (2)

The purpose of ICAC was to use public hearings and publication of reports to investigate allegations of corruption; to prevent corruption by improving bureaucratic systems and procedures and reducing corruption opportunities; and to education the public about the detrimental effects of corruption and the benefits of reducing corruption.

The Act defines 'Corruption' widely and includes dishonesty or favouritism in the exercise of official duties, misuse of official information, breach of public trust and offences such as bribery, blackmail, fraud and perverting the course of justice. To be judged corrupt under the Act, conduct must also constitute or involve a criminal or disciplinary offence, or reasonable grounds for dismissing a public official.

Allegations of corrupt conduct may originate from members of the public, chief executives of public authorities, the parliament, or inquiries initiated by the Commission itself. ICAC’s investigative powers include - the power to search and seize documents, to compel witnesses to attend hearings and answer questions, and with Commonwealth warrants intercept telephone calls. (3) ICAC officers may also apply to the New South Wales Supreme Court for warrants under the Listening Devices Act 1984 to conduct electronic surveillance of targets.

ICAC’s charter permits it to investigate the conduct of any public official in the Parliament, government departments, statutory authorities and local councils in New South Wales, as well as elected officials, judges, and magistrates. Its jurisdiction extends to individuals in the private sector and general community who deal with the public sector.

State Owned Corporations and their subsidiaries are defined as public authorities and their directors, officers and employees are public officials for the purposes of the ICAC Act (4) Incorporated Hospitals and Separate Institutions listed in the Second and Third Schedules of the Public Hospital Act 1929 were brought within the Commission’s jurisdiction in 1992 (5), and the Chief Executive Officers of these hospitals, their Area Health Services, and Ambulance Service Boards were required to report corrupt conduct to the Commission. In 1993 the Sydney Organising Committee for the Olympic Games was declared to be a public authority for the purposes of the ICAC Act. (6)

The ICAC's jurisdiction to investigate police matters ceased following the passage of the Police Integrity Commission Act, 1996 (Act No. 28, 1996) (7) although the Commission retained its role in relation to the Police Service in the area of corruption prevention and education. (8)

The Commissioner is appointed by the Governor for a non renewable five year term. The Commission has the power to fix salaries and conditions of employment of its staff in so far as these are not fixed by another law, and to engage consultants. Directly employed staff are not subject to the provisions of the Public Sector Management Act 1988.

While independent, the ICAC is not autonomous. It is accountable to two statutory bodies and to parliament itself. The eight member Operations Review Committee examines any ICAC decision not to act on a complaint or discontinue an investigation; while the Parliamentary Joint Committee reviews ICAC's activities and reports. The Commission reports to Parliament annually and with respect to any investigation that involves a public hearing.

In light of the decision of the High Court of Australia in Cunneen, the NSW Government commissioned an Independent Panel comprising the Hon Murray Gleeson AC and Mr Bruce McClintock SC to review the ICAC Act and recommend whether any limits or enhancements should be applied to the exercise of the ICAC's powers. On 30 July 2015, the Independent Panel completed its report which made a number of recommendations to amend the ICAC Act. The Panel's recommendations were adopted in the drafting of the Independent Commission Against Corruption Amendment Bill 2015 (9); which was introduced into the Legislative Assembly on 8 September 2015, passed by Parliament on 16 September 2015 and assented to on 28 September 2015. (10)

The Independent Commission Against Corruption Amendment Act 2015 made a number of significant changes to the ICAC Act including: (i) clarifying the definition of corrupt conduct to include particular conduct that impairs or could impair public confidence in public administration; (ii) enhancing the Commission's functions of advice, education and prevention; (iii) expanding the Commission's functions to include investigating certain conduct referred to it by the Electoral Commission; and (iv) limiting the power of the Commission to make findings of corrupt conduct only in relation to cases where there is serious corrupt conduct. (11)

On 1 June 2016, the Parliamentary Committee on the ICAC commenced an inquiry in relation to two reports of the Inspector of the ICAC. The Committee published its report on 27 October 2016. On 15 November 2016, the Independent Commission Against Corruption Amendment Bill 2016 (12) was introduced to give effect to the Committee's recommendations. Parliament passed the Bill on 16 November 2016, it was assented to on 23 November 2016, and it commenced on 7 August 2017. The Independent Commission Against Corruption Amendment Act 2016 made the following changes: (i) the appointment of a Chief Commissioner and two part-time Commissioners who may exercise the functions of the Commission; (ii) the power to conduct a public inquiry must be authorised by the Chief Commissioner and at least one of the Commissioners; (iii) a requirement to issue public inquiry guidelines to ICAC staff and Counsel Assisting the Commission to ensure procedural fairness during public inquiries; (iv) a requirement to give a person an opportunity to respond before including an adverse finding or opinion about the person in an investigation report, and to include in the report a summary of the substance of any response if requested to do so; the appointment of a Chief Executive Officer responsible for the day to day management of the ICAC; and (v) allows the ICAC to exercise its formal powers under sections 21, 22, 23 and 40 of the ICAC Act after completion of an investigation where the Director of Public Prosecutions or the Electoral Commission requests such exercise for the purpose of gathering and assembling admissible evidence for a criminal prosecution. (13)

Endnotes
1. Assented to 6 July 1988, New South Wales Government Gazette, No.119, 22 July 1988, p.3875.
2. Independent Commission Against Corruption Annual Report for the year ended 30 June 1989, p.12.
3. This ability to intercept telephone calls is based on the legislative authority of the Telecommunications (Interceptions) (NSW) Act 1987 and the Commonwealth Telecommunications (Interceptions) Act 1979 which was amended by the Law and Justice Legislation Act 1989. On June 6 1990 the Commonwealth Attorney General, published a notice in the Commonwealth Gazette which declared ICAC as agency for the purpose of the Commonwealth law, so operational costs could be shared. It was only then, nearly 15 months after ICAC came into existence, that it became entitled to obtain telephone intercept material. Independent Commission Against Corruption Annual Report for the year ended 30 June 1990, p.83.
4. State Owned Corporations Act 1989.
5. Independent Commission Against Corruption Act 1988 Regulation - NSW Government Gazette No.130, 30 October 1992, p.7963.
6. Sydney Organising Committee for the Olympic Games Act, 1993 (Act No.67, 1993), s.64.
7. Assented to 21 June 1996, NSW Government Gazette No.77, 28 June 1996, p.3277.
8. Independent Commission Against Corruption Annual Report for the year ended 30 June 1996, p.32.
9. Independent Commission Against Corruption Amendment Bill 2015, NSW Legislation website, 28 September 2015.
10. Independent Commission Against Corruption website, https://www.icac.nsw.gov.au/about-the-nsw-icac/legislation/history-and-development-of-the-icac-act, (accessed 16/11/2022).
11. Ibid.
12. Independent Commission Against Corruption Amendment Bill 2016, NSW Legislation website, 14 November 2016.
13. Independent Commission Against Corruption website, https://www.icac.nsw.gov.au/about-the-nsw-icac/legislation/history-and-development-of-the-icac-act, (accessed 16/11/2022).