Posted on October 8, 2015 by Anna Sinclair

Parliament passes legislation to strengthen and tighten ICAC

The NSW Parliament has enacted legislation which amends the  Independent Commission Against Corruption Act 1988 (ICAC Act). The Independent Commission Against Corruption Amendment Act 2015 (Amendment Act) was assented to and commenced on 28 September 2015. The Amendment Act clarifies the jurisdiction and powers of the Independent Commission Against Corruption (ICAC) following the decision of the High Court in Independent Commission Against Corruption v Cunneen [2015] HCA 14 (Cunneen), and gives the ICAC new powers to investigate criminal offences under electoral and lobbying laws.

The Amendment Act enacts all of the recommendations made by the Independent Review Panel (Review Panel) contained in its report entitled Independent Panel – Review of the Jurisdiction of the Independent Commission Against Corruption: Report, 30 July 2015′.

‘Corrupt conduct’

New s8(2A) extends the definition of ‘corrupt conduct’ to include ‘conduct of non-public officials that could impair public confidence in public administration’ and which could involve any of the following:

• collusive tendering,
• fraud in relation to applications for certain licences or permits,
• dishonestly obtaining or benefiting from the payment of public funds or disposition of public assets,
• defrauding the revenue, and
• fraudulently obtaining or retaining employment or appointment as a public official.

New s74BA expressly limit the ICAC’s power to make findings of, or express opinions as to,  ‘corrupt conduct’ to cases of  ‘serious corrupt conduct’.

‘Serious corrupt conduct’

The amendments do not define ‘serious corrupt conduct’.  This accords with the recommendation of the Review Panel that it would be undesirable to place any potential limits on ICAC’s ability to investigate. The Review Panel specifically endorsed a submission made to it by the ICAC that ‘Any attempt to provide a prescriptive definition of these terms is likely to lead to claims at an early stage by those involved in investigations that their conduct does not come within the relevant definitions.’

Corrupt conduct by non-public officials

The amendments clarify that the ICAC can only investigate the conduct of private individuals where it involves serious fraud for private gain practiced upon the public administration, which undermines or could undermine confidence in public administration.

One-off cases of misconduct by private persons which do not have that essential ingredient of bringing the public administration into disrepute, will fall outside of ICAC’s ambit. These types of matters may be properly dealt with under other criminal or civil offence legislation.

Criminal offences under electoral & lobbying laws

The Amendment Act also gives the ICAC jurisdiction to investigate possible criminal offences under electoral and lobbying laws that are referred to it by the Electoral Commission.

At the time of Cunneen, the ICAC’s Operation Spicer was investigating a range of matters, including whether certain members of Parliament solicited, received and failed to disclose political donations. An aspect of this investigation was put on hold following the decision, due to a concern that the ICAC lacked jurisdiction.

The Review Panel’s basis for recommending that the ICAC should have the power to investigate offences under electoral and lobbying laws is that:

• breaches of such laws strike at the heart of the democratic process and have a connection with public administration that warrants special consideration, and
• the ICAC also has the resources, willingness and operational experience to carry out these types of investigations.

The Amendment Act refines the circumstances in which the Electoral Commission can refer conduct to the ICAC for investigation. It can only be where the Electoral Commission has reasonable grounds to suspect that the conduct may involve a possible criminal offence that is specified, or the conduct is related to possible corrupt conduct that the ICAC is already investigating. The Electoral Commission must also take into account a range of matters to determine whether the ICAC or it, is the best body to investigate the potential offence, such as the seriousness or systematic nature of the matter and the complexity of the matter.

The Amendment Act also allows the Electoral Commission to refer conduct to the ICAC that it is statute-barred from prosecuting.

ICAC education, advisory and prevention functions

Finally, the Amendment Act provides that the ICAC’s education, advisory and prevention functions can be used not only for eliminating corrupt conduct, but also for the purpose of ‘promoting the integrity and good repute of public administration’. This change broadens ICAC’s education, advisory and prevention functions.