Update February 2018 – Independent Commissioner Against Corruption – NT ICAC

Independent Commissioner Against Corruption Act 2017

Independent Commissioner Against Corruption (Consequential and Related Amendments Bill 2017

The following is intended to provide commentary and general information only in relation to this topic.  Every effort is made to ensure the content is accurate; but no warranty is made as to the accuracy, currency or completeness of its content at any time.

This year, the Northern Territory of Australia is likely to have it first office and staff of the Independent Commissioner Against Corruption (ICAC).  The law establishing the ICAC passed Parliament in November 2017; and the Commissioner is expected to commence operations in June 2018.

The ICAC will be very powerful, with extensive and broad powers. Whilst completely independent, the ICAC will be overseen by an Inspector to ensure the Commissioner acts within powers.

The legislation, Explanatory Memorandum, Explanatory Notes, and the Report of the Parliamentary Committee looking into the matter, comprise close to 400 pages of reasonably complicated reading.  Part one of the legislation itself is also reasonably complex, comprising more than 120 pages with some 160 plus provisions.

In the following, we will try and provide you a high level appraisal of how this works and how it may affect you.

What is it about?

The ICAC legislation (Independent Commissioner Against Corruption Act 2017) was passed as a law by the Parliament of the Northern Territory of Australia in November 2017 appointing a Commissioner ‘to investigate and bring light to any corruption in the Northern Territory.’

Part two of the package, the Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017, is expected to be introduced into Parliament and passed in February 2018.

This Bill will amend several pieces of legislation to give the ICAC the necessary powers, including amending the:

  • Witness Protection (Northern Territory) Act to provide that witnesses for the ICAC can be considered for the witness protection program; and the ICAC can apply to the court for a witness to be given an assumed identity.
  • Telecommunications (Interception) Northern Territory Act to give the ICAC the power to intercept telecommunications.
  • Criminal Code to update relevant offences and penalties.
  • Surveillance Devices Act to give the ICAC the power to apply for warrants to use, and install, surveillance devices.
  • Legislative Assembly (Disclosure of Interests) Act to provide access to the register of interests for the Legislative Assembly.

Regardless of other laws in the NT that finalise a matter, or something is investigated elsewhere, the Commissioner can still investigate if he or she has information that tends to show, if true, ‘improper conduct’ (or matters directly or indirectly connected with improper conduct) has occurred or is at risk of occurring.  The Commissioner may ‘collect or receive information from any source.’

The ICAC:

  • can investigate any public officer, including Members of the Legislative Assembly, and can do so of his or her own motion.  Investigations can be conducted covertly.
  • is not limited to investigate only conduct that could amount to criminal behaviour.  The Commissioner is also required to look into conduct that may warrant termination of employment or disciplinary action.
  • has coercive powers, including searching government agencies without a warrant; and can apply for warrants to search private premises.
  • can apply for injunctions and orders regarding passports.

In relation to investigations, examinations and inquiries, the ICAC is not bound by the rules of evidence.

Although the Commissioner is subject to judicial review, he or she cannot be restrained ‘from commencing, or continuing to conduct, or to compel the ICAC to commence, or continue to conduct, an investigation or public inquiry.’  Access to ICAC premises is restricted; and staff will be carefully vetted.

The ICAC’s jurisdiction is fully retrospective; and not limited to conduct in the Territory.  The Commissioner can investigate any conduct within its remit, including past conduct and historical matters; and whether or not a person has ceased employment with the government.  There is no time limit as to how far back the ICAC can go.

What do you need to know?

The ICAC is an individual rather than an organisation.  The Commissioner will have staff; and the legislation provides for some detailed vetting of individuals.

The Commissioner is given power to investigate a wide range of ‘improper conduct’ in the broader public sector and connected to ‘public affairs’.  The ICAC can conduct random audits of compliance or review the practices, policies or procedures of a public body or public officer to identify whether improper conduct has occurred, is occurring; or is at risk of occurring.

The legislation covers a wide range of people and organisations; including Government Agencies and statutory authorities; local government entities; contract service providers; and recipients of Northern Territory Government funding.

It also applies to:

  • Government Owned Corporations, including the Power and Water Corporation; Territory Generation; and Jacana Energy.
  • Ministers; MLA’s; electorate staff and ministerial advisers.
  • Judges; Courts, hospitals; and universities.
  • off duty conduct if related to public resources.
  • any body ‘whether incorporated or not that receives, directly or indirectly, public resources; or performs a public function on behalf of the Territory’; for example NGOs in receipt of government grants; or contractors who are public bodies by virtue of their contractual work.

What is ‘improper conduct’?

Improper conduct includes:

  1. corrupt conduct. Any potential offence for which the penalty is at least 2 years imprisonment.  Includes conduct that constitutes reasonable grounds for dismissing or terminating the services of the public officer (eg dishonesty; failure to manage conflict of interest; inappropriate use of official information; serious breach of public trust (this one is aimed at ensuring elected officials can be investigated by ICAC); collusive tendering; recklessly providing misleading information regarding a licence or permit; misusing public resources; dishonestly obtaining or retaining employment as a public officer).
  2. misconduct. Wrongful conduct by an individual that is less serious than corrupt conduct; any potential offence that attracts a fine or imprisonment for less than two years.  Includes conduct constituting reasonable grounds for taking disciplinary action against the officer (short of dismissal or termination of appointment) or varying the terms of the officer’s appointment.
  3. unsatisfactory conduct. This relates to illegality or impropriety; or negligence; or incompetence that results in substantial mismanagement of public resources; the inappropriate or significantly inefficient use of public resources; or substantial mismanagement in relation to the performance of official functions.  Conduct by an individual or group that results in significant public harm and which also features behaviour that was so significantly incompetent or negligent that no reasonable person in that position would have engaged in the conduct.  Judicial officers are excluded, but only in relation to performing judicial functions.

The ICAC can also investigate anti-democratic conduct – certain offences in relation to elections and the electoral process under the Electoral Act and electoral provisions in the Local Government Act; ‘offences relating to improper handling of political donations or attempting to more broadly influence the outcome of an election.’

Of the above, the Commissioner is required to ‘give priority to’ matters involving corrupt conduct or serious anti-democratic conduct.

In relation to misconduct and unsatisfactory conduct, ‘unless there is good reason for the ICAC to deal with the matter’, the ICAC is to look at transferring those to someone else; for example, the Ombudsman, police; or specialist bodies such as the Children’s Commissioner or Anti-Discrimination Commissioner.

In deciding and triaging investigations, noting the Commissioner is ‘not subject to any direction by any person’ about how she goes about her job, or the priority given by her to ‘any particular matters’; the ICAC may perform functions ‘in any manner the ICAC considers appropriate’; the Commissioner has to act in the public interest and take into account a long list of matters set out in a Schedule.

What tools and powers have been given to the Commissioner?

The Commissioner can do many things to chase down improper conduct (including corrupt conduct; misconduct; and unsatisfactory conduct).

The Commissioner has powers to enter public sector premises without a warrant; private premises with a warrant; and to compel witnesses to attend and give evidence on oath.

Subject to suspecting on reasonable grounds there is evidence of improper conduct, ICAC and staff can search premises, including by force; take photographs, or make films or audio, video or other recordings, of anything on the premises or found on a person; and seize anything found on the premises, or on a person.

Once the ICAC has an evidentiary basis to commence an investigation, the ICAC has a wide range of coercive powers.  The legislation provides for a raft of comprehensive tools to allow the ICAC to go about his or her job.  The Commissioner can:

  1. create a mandatory reporting scheme, including directions and guidelines.   The ICAC must have this up and running within six months of commencement.  There could be higher reporting requirements for persons at senior classifications, or in certain agencies.   Once the direction is issued, public servants must report those matters (but still may report any suspected improper conduct).  The aim is to encourage a reporting culture within the Public Service.
  2. undertake audits, investigations, joint investigations; and use the information to commence or progress an investigation.
  3. give protection to whistle blowers and determine ‘protected persons’ ie persons protected from civil, criminal, or disciplinary action, as well as from defamation proceedings; or any claim of breach of confidentiality; and protect them from retaliation.  An individual may apply to the ICAC for a declaration that an action taken by the individual that involves an allegation of improper conduct is a protected communication. As long as information tends to show improper conduct has occurred, is occurring, or is at risk of occurring, there is no restriction on reporting hearsay information or credible rumour; save reporting information you know to be false or misleading (including by omission) is an offence and would not result in protection.
  4. direct the Commissioner of Police to provide protection to a person at risk of intimidation, harassment, or harm; or provide personnel or facilities to the ICAC for the provision of protection to the person, including involvement in the Witness Protection Program.
  5. make recommendations.  For example, if it becomes apparent to the ICAC money is inappropriately disappearing from a public body due to poor accounting practices, the ICAC can make appropriate recommendations.
  6. put together briefs of evidence; recommend disciplinary action; or refer matters to other agencies or the Police.
  7. require people to attend ICAC for compulsory examinations; and require a person to answer questions and provide information; produce documents; and verify the information on oath.
  8. inspect financial records of deposit holders (eg banks or pawn brokers).
  9. prevent improper conduct through education; advice and reports.

Mostly, investigations will be carried out in private.  However, there is provision for public inquiry.  The Schedule to the legislation sets out matters the ICAC is to consider in determining whether to hold a public inquiry.

Reports

Following investigation, ICAC can prepare a number of reports, including:

  • Brief of Evidence; to pass on evidence for the purposes of investigation of an offence, prosecution of an offence, or disciplinary action against a public officer.
  • Investigation Report; to make findings and reach conclusions in relation to whether improper conduct occurred.
  • Recommendations; to require steps to be taken to address or prevent improper conduct.
  • General report; to make public, matters of general concern in relation to systemic issues; or operational issues of public interest, such as necessary resourcing.
  • A public inquiry report of the outcome of a public inquiry.
  • A public statement.

Legal privilege and legal representation

There are provisions dealing client privilege; legal representation; confidentiality; use of statements and admissible material.

Generally speaking, client legal privilege (legal professional privilege) can be claimed by individuals, but not by public bodies.  The Territory’s legal advice must be disclosed to the ICAC, but legal advice of individuals and private entities remains protected.  Unless currently charged with, or facing criminal proceedings for, an offence, a witness is not entitled to refuse or fail to give evidence on the ground that the evidence might tend to incriminate the witness or make the witness liable to a penalty.

As the application of these provisions can be quite technical, people giving evidence to the ICAC should seek legal advice on these issues.

Comment

The ICAC Act revolves around reporting to the ICAC; and identifying and investigating ‘improper conduct’ of a ‘public officer’ or a public body that is connected to ‘public affairs.’  These terms have very wide definitions; and, combined, cover a wide range of conduct, people and bodies.

There has always been provision in the law relating to corrupt conduct; including the Criminal Code Act (‘Corruption and abuse of office’; ‘Corrupt and improper practices at elections’; ‘Selling and trafficking in offices’; ‘judicial corruption’); Public Interest Disclosure Act (improper conduct by public officials, investigations); Public Sector Employment and Management Act (and employment instructions); and the Inquiries Act.

The ICAC legislation either replaces, or enhances, the above.  The ICAC Act repeals the Public Interest Disclosure Act; and the ICAC (Consequential and Related Amendments) Bill, among other things, proposes amendments to the Criminal Code offences concerned with corruption in public office.

The legislation takes things further, including driving the right behaviours and instilling a reporting culture.

Although the ICAC is directed to give priority to dealing with matters that may involve corrupt conduct or serious anti-democratic conduct, it is recognised any ICAC investigation, including for misconduct and unsatisfactory conduct) can impose significant costs, and risk of reputational damage, on individuals.  This is balanced against the public policy requirement of uncovering improper conduct and promoting those dealing with public resources to act in the best interests of the people of the Northern Territory.

Some practical matters include the following.  A Dept officer with responsibility for developing the legislation, noted ‘the kind of corruption reported and the volume of reports received [will depend] on the culture and attitude of the community, the culture and attitudes within public bodies, and the reputation of the anti-corruption body, not on the details of the legislation itself. This is particularly true in the Territory, which has a close-knit community where much information passes by word of mouth.’

The Northern Territory Public Service Commissioner noted ‘the agencies from the government’s side will have to do a bit of work about getting prepared for the ICAC. There will be … some work around whistle-blower protections within agencies because I do not think the agencies are sophisticated in that space at the moment.’

For further information please get in touch with our lawyers at RLA

office@rousssoslegaladvisory.com
+61 8 8981 8783
www.roussoslegaladvisory.com
GPO Box 457 Darwin Australia 0801

We hope you enjoyed reading our update.  It is not a substitute for specific legal advice.  We would be pleased to assist you with your specific enquiry; in which case please contact us per the details above.   We cannot accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this summary.