What is ICAC?
The NSW Independent Commission Against Corruption (ICAC) is an independent commission which aims to reduce corrupt activities to ensure that public confidence is maintained and protected. ICAC also monitors the conduct of NSW public officials in the public sector.
The ICAC was established in 1988 and is governed by the Independent Commission Against Corruption Act 1988 (NSW).
Defining corruption
The Independent Commission against Corruption Act 1988 defines corrupt conduct as deliberate or intentional wrongdoing involving or affecting a NSW public official or public sector organisation.
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, for personal gain or the advantage of others.
- 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 may be in poor taste for a public official to engage in, the Independent Commission against Corruption 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.
ICAC structure
The ICAC conducts independent operations and investigations. This means that politicians (including political parties), government officials, state corporations and even government ministers, do not mandate the investigations conducted by the ICAC.
The ICAC is divided into four divisions: Investigation, Corporate Services, Corruption, and a Legal Division.
Depending on what matters are bought before the Commission, the ICAC may either:
- Ask the agency that is the subject of the complaint to investigate the matter and report back to the ICAC.
- Refer the matter to another agency if the ICAC does not have the authority to deal with it, for example the Law Enforcement Conduct Commission.
- Make assessment enquiries to decide whether to take further action.
- Give corruption prevention advice to a concerned agency.
- Officially commence an investigation.
If the ICAC finds that an official has acted corruptly, the charges will be referred to the Director of Public Prosecutions (DPP) for criminal charges to be laid under the criminal justice system.
What power does the ICAC have to compel witnesses to give evidence?
The ICAC has powers similar to those of a Royal Commission and can compel witnesses to testify in both public and private hearings. There is no right to silence for witnesses called to the Commission. Failure to appear before the ICAC can lead to a two year jail term, while giving false or misleading evidence is punishable with a five year prison sentence.
There are only limited controls on admissible evidence, which may be obtained by compulsion and coercion or other means that would make the evidence inadmissible in a court of law.
Jurisdiction of the ICAC
The ICAC helps to protect the public interest, prevent breaches of public trust, and guide the conduct of public officials in the NSW public sector.
It is not able to investigate matters relating to Australian Government public officials such as ministers, parliamentarians and their staff, and staff members of Commonwealth agencies. The National Anti-Corruption Commission (NACC) has jurisdiction for such matters.
Whistleblower protections
The ICAC seeks to protect whistleblowers as outlined in the Independent Commission Against Corruption Act and the Public Interest Disclosures Act 1994 (NSW). Information provided to the ICAC 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.
How can we help you?
If you receive a summons to give evidence at a compulsory examination or public inquiry, it is important to seek legal advice.
While answering questions and producing documents might incriminate you, it is a criminal offence to fail to attend the hearing or to refuse to answer relevant questions.
There are rights to object to certain questions. Nyman Gibson Miralis can represent you at the hearing and ensure protection of your rights. We have extensive experience appearing in ICAC inquiries, and we may be able to help you avoid criminal charges.
Contact us if you require assistance.
