ICAC - Independent Commission Against Corruption NSW

The Independent Commission Against Corruption (ICAC) is a Commission established in New South Wales in 1988 to investigate corrupt conduct. Protecting the public interest by investigating corruption in the government, public service and/or politics is the paramount concern of the Commission. 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. This most commonly occurs in relation to offences of Misconduct in Public Office, Fraud or other offences relating to corruption or abuses of power.

The Commission was created under the 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.

ICAC Powers

There are wide ranging powers conferred on ICAC allowing it to investigate NSW public sector agencies, employees or any public official functions. These powers include the power to:

• obtain information, including requiring an authority or official to produce a statement;
• obtain documents;
• conduct investigations including interviewing persons, applying for and executing warrants;
• conduct compulsory examinations; 
• hold public enquiries; and
• make and publish findings.

ICAC Investigations

ICAC has broad powers to investigate, and no two investigations will be the same. How an investigation is to be conducted is largely influenced by the nature of the conduct allegations, the likely evidence available and the seriousness of the conduct alleged.

The normal process of an investigation would be for the Commission to:

• review reports or intelligence about alleged conduct;
• compel the production of documents or other things;
• interview individuals;
• 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 or to 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 creates 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; or
• 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.

Inquiries and Compulsory Examinations

The majority of ICAC investigations are conducted in private, and involve compulsory examinations.

A compulsory examination is essentially a hearing conducted in private where the Commission summons a particular person to attend (and often, provide documents). The person may be required to participate in an interview and answer questions – even if they may incriminate themselves. For this reason, it is imperative to get legal advice immediately.

A public inquiry still involves a hearing where particular persons are required to appear, however it is conducted in public and does not restrict the persons who may attend and observe the proceedings. 

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. The person or people who are the subject of the inquiry are often represented (and indeed, some witnesses will be too). The people who are the subject of an inquiry can also be compelled to give evidence.

Self-incrimination

Despite the above, the ICAC Act provides protection against self-incrimination. Provided the person objects, then their evidence or documents produced in the hearings cannot be used in any other proceedings against them (except for proceedings relating to providing false or misleading evidence in the hearing). 

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; 
• a disciplinary offence;
• 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.

Criminal Charges

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 consideration of charges and prosecution. Any decision to prosecute is made by the Prosecution alone, based on the material provided by the commission.

Legal Representation

Where a person receives a notice to produce or appear, or is concerned that they are being investigated by the 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.