Independent Commission Against Corruption (ICAC) NSW
The NSW ICAC is a comission established in 1988 to interrupt and expose corrupt conduct in the NSW public sector. Protection of the public interest is the paramount concern of the commission and it operates independently of parliament, NSW Police or any other law enforcement agency. However, it can, and often does, refer matters to law enforcement agencies for prosecution where there is evidence of criminal activity including corruption or abuse of power.
The commission was created pursuant to Independent Commission Against Corruption Act 1988 (ICAC Act). This same Act also confers special powers upon ICAC to inquire and conduct hearings into allegations of corruption to achieve its functions.
There are wide ranging powers conferred on ICAC allowing it to investigate NSW public sector agencies or any public official functions. These powers include the power to:
- obtain information, such as requiring an authority or official to produce a statement of information;
- obtain documents etc;
- enter public premises;
- conduct investigations including interviewing persons, applying for and executing warrants;
- conduct compulsory examinations; and
- hold public enquiries.
How an investigation is to be a conducted is largely influenced by the nature of the conduct alleged, whether the alleged conduct is current or past, whether there are witnesses and/or documents to provide support to the allegations, and the seriousness of the conduct alleged.
The normal process of an investigation would be for the commission to:
- interview individuals;
- compel the production of documents or other things;
- compel a public authority or public official to provide information;
- enter properties occupied by a public authority or public official to inspect and copy documents;
- obtain warrants to search properties;
- use surveillance devices and intercept telephone calls;
- hold compulsory examinations (private hearings); and/or
- hold public inquiries.
Failure to Comply with ICAC Demands
Part 9 of the Independent Commission Against Corruption Act provides a number of offences that a person may be charged with, including but not limited to:
- failing to comply with any lawful requirement of the commission;
- making a false statement or misleading the commission;
- failing to comply with a notice issued by the commission including for information or to produce a document or other thing.
- failing to attend a compulsory hearing or public enquiry, or failing to answer any relevant questions puts to them during the hearing or enquiry.
Each of the above are criminal offences which can be dealt with by fine and/or a term of imprisonment.
Compulsory Examinations vs. Inquiry
The majority of ICAC investigations are conducted in private, and can involve compulsory examinations.
A compulsory examination is essentially a hearing conducted in private where the commission may provide a direction regarding person who may be present. The person may be required to participate in an interview and answer questions – even if to do so may incriminate themselves. For this reason, it is important to get legal advice.
Conversely, a public inquiry does not restrict the persons who may be present, and the information, date and location of public inquiries to be held is freely available on the ICAC’s website. The public inquiry is conducted in a similar fashion to a criminal trial with counsel assisting the commissioner calling evidence from relevant witnesses and producing relevant evidence. a person or people who are the subject of the inquiry can also be compelled to give evidence, and are usually represented when doing so.
Decisions about whether to conduct a compulsory hearing or a public enquiry are made by the commission based upon how the public interest is best served.
Despite the above, the ICAC Act also provides for protection against self-incrimination which states:
- that where the ICAC requires any person-
- to produce any statement of information, or
- to produce any document or other thing.
- if the statement, document or other thing incriminates the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person but that they may however be used for the purposes of the investigation concerned, despite any objection.
In practice this means that a person cannot refuse to produce a document or thing, or answer a question at a compulsory hearing or public enquiry on the basis that it incriminates them. However, a person who is required to comply with the demands of the commission, and objects to providing the answer or document, is protected against that document or answer being later used in any civil, disciplinary or criminal proceedings against them. This does not however prevent the answers given from forming the basis for further investigation or evidence gathering by law enforcement agencies.
Types of matters investigated
As outlined above, the commission typically investigates allegations of corruption.
Examples of corrupt conduct include:
- a public official using their position improperly to benefit themselves or another person;
- a council official voting a particular way, having not disclosed a financial interest;
- political parties not declaring received political donations as required;
- a public official receiving bribes, kickbacks or a benefit for exercising a power in a particular way; and
- a public official dishonestly exercising their powers in awarding contracts without declaring any financial benefits that would be obtained.
As a preliminary condition, the commission can only investigate matters of alleged corruption involving a NSW public official or public authority. However, there are some further conditions that must also be satisfied before the commission can commence investigation, being that the conduct constitutes or involves:
- a criminal offence, or
- a disciplinary offence, or
- constitutes reasonable grounds for dismissing or otherwise terminating the services of a public official, or
- in the case of a member of the NSW Parliament or local government councillor, a substantial breach of an applicable code of conduct.
A possible consequence of the commission conducting an investigation into corrupt conduct is that the matter can be referred to the Office of the Director of Public Prosecutions for advice regarding whether any charges can be laid, and criminal prosecution commenced. Any decision to prosecute is made by the Prosecution alone, based on the material provided by the comissiom.
Where a person is concerned with a notice to produce or appear, or is concerned that they are being investigated by Independent Commission Against Corruption (ICAC), legal representation should always be sought.
If you require legal advice regarding an independent commission against corruption (ICAC) Investigation or any other legal matter, please contact Armstrong Legal.