Update April 2018 – Independent Commissioner Against Corruption – NT ICAC (Consequential changes)

The following is intended to provide general information and raise awareness. It is not legal advice. While every effort is made to ensure the information is accurate, no representation is made about the accuracy or currency of the content.

In November 2017, the Parliament of the Northern Territory of Australia (NT) passed the Independent Commissioner Against Corruption Act 2017 (ICAC Act); and the NT became the latest Australian jurisdiction to install an Independent Commissioner Against Corruption (ICAC).  This was discussed in the RLA Update February 2018.

Below, we set out information about the second piece of legislation referred to in our previous Update, the Independent Commissioner Against Corruption (Consequential and Related Amendments) Act 2018 (ICAC Consequential).  This became a law of the NT in February 2018.  It is important legislation giving the ICAC extensive powers designed to facilitate the ICAC to do his or her work.

To ensure the ICAC has the right powers of investigation; and the criminal laws are ready, 14 pieces of other NT legislation are amended, including the Criminal Code, Surveillance Devices Act; and the Telecommunications (Interception) Northern Territory Act.

Among other things, the ICAC Consequential makes changes to:

• permit the use and installation of surveillance devices; interception of telecommunications (including Commonwealth cooperation under relevant federal telecommunications laws); and facilitate cross border investigations.
• the definition of ‘law enforcement officer’ in the Police (Special Investigative and Other Powers) Act to include the ICAC and authorised officers.  This will allow the ICAC and his or her officers to acquire and use assumed identities in investigations.
• allow access to the register of interests for the Legislative Assembly.
• provide the ICAC access to Correctional premises; and to prisoners, as required.
• allow for witnesses to be considered for the Territory Witness Protection Program.
• clarify the offence of giving or receiving benefits, including gifts that might influence; abuse of public office including dishonesty and arbitrary public service conduct affecting others.
• make it an offence to fail to disclose private interests; and increasing the penalties significantly for those public officers benefiting from secret interests.

The ICAC Act revolves around 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.

The definition of public officer is very broad.  A ‘public officer’ includes include a minister and advisors; an MLA; a judicial officer; and ‘a member, officer or employee of a public body’ (and ‘public body’ itself is widely defined and includes eg a local council).   Government contract service providers and grant recipients are also covered.

In relation to public officers, the ICAC Consequential makes important changes to the Criminal Code and associated penalties.  These changes include:

1. definition of ‘gain’ and ‘benefit’. These terms are broadly defined.    You can ‘gain’ property; or services provided free of cost, or less than the usual cost.  To ‘gain’ includes temporary gain; and gain by keeping what one has.  Obtaining ‘anything of financial worth is a gain, irrespective of whether it is a gain that can be simply enjoyed rather than being bought or sold.’   A ‘benefit’:

• is distinct from a ‘gain’ (which is a pecuniary benefit only); and includes a benefit of any kind; or a promise of a future benefit.  By way of example, this definition could include ‘inappropriate relationships, sexual relationships or being given priority in a selection process.’
• includes a benefit obtained for another person.  For example, the public officer could arrange for the benefit ‘to pass to a spouse or friend in an attempt to hide the corrupt conduct.’

2. corruption; giving or receiving benefits. It is an offence for a public officer to accept or request a bribe for the performance of the officer’s powers or functions.    A public officer commits an offence if the officer intentionally requests or knowingly obtains a benefit; and the officer knows the benefit is an inducement to influence the officer’s performance of the officer’s powers or functions; or a reward for the officer having performed the officer’s powers or functions in a particular way or for a particular result; and the conduct is improper.
3. other corrupting benefits; such as accepting gifts. This new provision makes it an offence to intentionally request, or knowingly obtain, a benefit which the public officer knows would be ‘an inducement to influence the officer’s performance of the officer’s powers or functions.’    This is designed to capture situations where a public officer:

• ‘accepts a benefit that would tend to cause the public officer to act corruptly, but where the particular benefit cannot be causally linked to a particular instance of corruptly exercising powers.’
• ‘is compromised by accepting gifts that raise inherent conflicts for that officer, even if a particular favour has not yet been called in.’

In the Second Reading Speech to Parliament, the Attorney General stated the ‘government is of the view that public officers should not be accepting gifts that clearly have inappropriate strings attached, given their role as a public officer. Accepting such gifts undermines the public officer’s ability to be impartial and creates a perception in the community that public officers expect and accept bribes.’

4. advancing secret personal interests.  It is an offence for a public officer to fail to disclose a private interest where, by virtue of their function or duties, they could influence that private interest.  A private interest is defined to mean a legal or financial interest that is held directly or indirectly.    It ‘requires persons employed in the public sector to disclose any substantial conflicts of interest, whether or not they intend to act on that conflict of interest. This is important to ensure persons do not exert unofficial influence through close working relationships and reflects the kind of ethical obligations generally placed on public servants.’  A breach carries a maximum penalty of two years.

It is also an offence for a person who both keeps their private interest secret, and then uses their position as a public officer to advance that private interest to obtain a benefit.  This is a more serious offence attracting a maximum penalty of seven years.  For example, secretly holding an interest in a business; and being involved in a decision to award a government lease to that business.

The legislation sets out a list of the appropriate persons to whom disclosure of interest can be made. In the case of contract service providers or grant recipients, in relation to disclosure ‘it would usually be the case that there would be nominated persons tasked with handling communications between the private body and the Agency, although such arrangements may vary widely on a case by case basis.’

5. abuse of office – dishonesty; and making false claims as a public officer.  A public officer commits an offence if the officer intentionally provides, certifies or approves a document that is false in a material particular; or intentionally modifies a document so that it is false in a material particular in relation to someone’s rights; or in relation to the spending government money.
6. abuse of office – arbitrary and prejudicial conduct. It is an offence for a public officer to intentionally engage in conduct that is arbitrary or an abuse of process.  It is ‘an offence for a public officer to use their power arbitrarily to the detriment of another person.’  The explanatory statement provides this ‘charge cannot be made out in relation to a public officer who was trying to do the right thing but adopted a poor process, as such conduct would not be intentionally arbitrary or intentionally an abuse of process.  Poor practices are a matter for disciplinary action rather than criminal sanctions.’
7. confidentiality.  Disclosing confidential information is an offence.  The person must not disclose information that the person gained access to as a public officer; and this obligation continues after a public officer leaves their employment.

Safeguards

To ensure oversight of the ICAC’s broad and coercive powers, and their ‘potentially highly intrusive nature’, the Inspector has been given a number of powers to check on the ICAC.  This includes the power of regular inspection of the ICAC’s records to decide the extent of compliance with the ICAC Act.   The ICAC ‘must give, and ensure other ICAC officers give, the Inspector any assistance the Inspector reasonably requires to enable the Inspector to perform’ his or her functions.  The Inspector is then required to report to the Minister.

The ICAC is also required to monitor such things as warrants eg surveillance; and discontinue them when not required.

Another safeguard is that at a Court hearing, the ‘finder of fact’ (for example, a Judge) can find the conduct was not ‘improper’ (conduct that warrants criminal sanction) if the finder of fact is satisfied  the conduct is trivial; or the conduct has caused only minimal damage to the public interest; and the Judge is satisfied the conduct, in the circumstances, does not warrant criminal sanction.  In deciding this, the Judge has regard to a number of things, including whether the public officer behaved reasonably; whether the person acted in an honest and reasonable belief; the seriousness of the conduct; and whether the conduct was an isolated incident.  This provision allows a Court to return a not guilty verdict in those circumstances.  This discretion is provided in recognition of the broad and wide (i) range of people and (ii) scope of conduct that is captured by the ICAC Act, and the laws the ICAC Consequential adds to, or changes.

The policy behind this recognises that from time to time cases will arise which involve low-level conduct which technically meets the offence definition; but would be more appropriately dealt with through disciplinary and other measures, rather than criminal sanctions.

The Court can also in its discretion dismiss the case if the Court considers the offence is of a trivial or merely technical nature.

Other matters
In obtaining goods and services (such as investigative, legal and audit services), the ICAC is exempt from normal government procurement process.  This is so the ICAC ‘has complete independence as to whom it chooses to contract to conduct investigative and legal work.’

The ICAC is also exempt from the Criminal Records (Spent Convictions) Act to allow him or her, in the vetting process of employees, to check on an applicant’s spent convictions ‘for the purpose of ensuring that the staff of the ICAC are suitable persons to be employed or engaged by the ICAC.’

Commencement
ICAC Act and ICAC Consequential have now been assented to; and they are ready to go.  All we are waiting for is the start date; which is pending.   In its annual state budget for 2017 / 2018, the NT government made provision of ‘$3 million per annum to’ for the ICAC to ‘begin its work in 2018.’ In February 2018, the NT Attorney General said an independent panel was seeking a Commissioner for ICAC, with an announcement on the appointment ‘expected in the coming months.’

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.