Author: Nyman Gibson Miralis
Keywords: ICAC, corruption public sector, public officials, whistleblowers, expose corruption, prevent corruption, ICAC public inquiries.
The Independent Commission against Corruption (ICAC) was launched in 1988 in order to investigate and prevent – or at least minimise – any corruption in the NSW public sector.
What are the intentions of the ICAC?
Specifically, the ICAC aims to:
- Investigate and expose corruption.
- Provide advice and assistance in order to prevent corruption.
- Educate all residents of NSW, whether in public service or otherwise, about corruption.
The primary legislative instrument governing the ICAC, the Independent Commission against Corruption Act 1988 (NSW), defines corruption to include “deliberate or intentional wrongdoing involving or otherwise affecting a public official or Authority ” within the state of NSW.
The ICAC is also governed by the Independent Commission against Corruption Amendment Act 2015 (NSW).
Although far from an exhaustive list, examples of corruption could include:
- Inducing or encouraging a public official to misuse or abuse their official role.
- The improper use by a public official of information known to them by virtue of their position.
- A public official acting in such a manner that the public’s view of state functions or administration is negatively affected, including by fraud or collusive tendering.
While there are many behaviours that it may be in poor taste for a public official to engage in, the Act only governs actions which:
- Involve a criminal or disciplinary offence.
- Could result in the dismissal of the public official.
- Are considered a substantial breach of the code of conduct applicable to members of parliament.
Similarly, the ICAC’s primary purview is to focus on eradicating serious or systemic conduct, and not necessarily individual instances of inappropriate behaviour.
With the exception of the NSW Police Force, which comes under the eye of the Police Integrity Commission, all other components of the public service including the State Governor and the judiciary fall within the potential jurisdiction of the ICAC.
How does the ICAC function?
An individual can report suspect behaviours engaged in by public officials. These are set out in the ICAC fact sheet Blowing the Whistle and include:
- Corrupt conduct.
- Very poor administration.
- Serious and substantial waste.
- Government information contravention.
- Pecuniary interest breaches.
The ICAC is set up with the intention of protecting whistleblowers, with the terms of the Public Interest Disclosures Act 1994 such that any information provided is considered a public interest disclosure, and not a breach of privacy laws. The effect of the public interest disclosure protection is such that whistleblowers cannot be subjected to any adverse reprisal action, such as dismissal or demotion, as a punishment for the disclosure.
Depending on the nature of the information received, the ICAC Assessment Panel may elect to commence a formal investigation, or alternatively to pass the information to another agency such as the NSW Ombudsman.
What are the procedural rules governing ICAC public inquiries?
As set out in the Independent Commission against Corruption Standard Directions for Public Inquiries, the following key rules govern ICAC investigations:
- Hearings are run on ordinary business days, between 10am to 4pm.
- On the Authority of and the terms dictated by the ICAC, a person who is “substantially and directly interested” in the outcome of an inquiry may be Authorised to appear during the investigation.
- Again with the Authority of the ICAC, a person may be legally represented.
- Witnesses may provide evidence orally or in writing, as directed by the ICAC.
- A person deemed by the ICAC to have a sufficient interest in the inquiry may elect to cross-examine any witnesses, subject to restraints and conditions imposed as the ICAC sees fit.
- Documents intended to be tendered as evidence may be provided to persons directly interested in the outcome of the inquiry prior to the commencement of the inquiry.
- Persons concerned about the release of their names or identifying personal information can apply to the ICAC for a suppression order.
- Evidence or materials provided during the investigation process are publicly available, including to media sources (subject to certain restrictions), unless the ICAC has made a contrary order.
- Inquiries are generally finalised by the tendering of written submissions, which are generally subject to ordinary submission orders.
- The ICAC is to be corresponded with via the relevant ICAC lawyer.
The ICAC is intended to assist NSW residents by tackling and ideally preventing corruption in the public service, as well as ensuring that appropriate education regarding corruption is available. In so doing, the ICAC aims to ensure that hopefully even those at the highest levels of public office in NSW are duly held to account for their actions and cannot consider themselves to be “above the law.”
Nyman Gibson Miralis specialise in all aspects of corruption and ICAC-related investigations. If you require assistance, contact one of our expert criminal defence lawyers