Posted on August 24, 2015 by Sue Puckeridge

Review of the ICAC Act

The findings of the Independent Review Panel’s (Review Panel) review of the scope of the powers of the Independent Commission Against Corruption (ICAC) have been released in a recently published report entitled ‘Independent Panel – Review of the Jurisdiction of the Independent Commission Against Corruption: Report, 30 July 2015’  (Report). This review was commissioned by the Baird government in May this year.

The Report sets out four key recommendations.

Two of these recommendations, which are considered in this post, relate to the definition of ‘corrupt conduct’ and the basis for the ICAC making a finding of ‘corrupt conduct’, and seek to resolve issues arising from ICAC’s investigation of Margaret Cuneen SC and the High Court decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14 (Cunneen).

Definition of Corrupt Conduct

The Report proposes that the instances of ‘corrupt conduct’ under the current section 8 of the Independent Commission Against Corruption Act 1988 (Act) be broadened by inserting a new subsection to include the conduct connected with public administration being ‘conduct of any person (whether or not a public official) that impairs or could impair public confidence in public administration’, which could include:

• collusive tendering;
• fraud in or in relation to applications for licences, permits or clearances under statutes designed to protect health and safety or designed to facilitate the management and commercial exploitation of resources;
• dishonestly obtaining or assisting or benefiting from the payment or application of public funds or the disposition of public assets for private advantage;
• defrauding the revenue;
• fraudulently obtaining or retaining employment as a public official (See Recommendation 1 of the Report at page xi)

Significantly, this recommended addition seeks to overcome the difficulties of interpreting what constitutes ‘corrupt conduct’ by a private individual in connection with the exercise of official functions by a public official or public authority under section 8(2) of the Act.

The meaning of ‘adversely affects’ on the exercise of official functions in section 8(2) of the Act was determined in Cuneen, as discussed in our previous post,  Corrupt conduct – what is an ‘adverse affect’ on the exercise of official functions?, but the Review Panel considered that the High Court had dealt with this issue authoritatively and section 8(2) should not be amended.

Instead the Review Panel considers that the uncertainty in the current Act can be resolved by the amendment proposed.

Finding of Corrupt Conduct  

The Report also recommends that the power of the ICAC to make a finding of ‘corrupt conduct’, as applies to all matters including the conduct of public authorities and/or public officials, and not just that of private individuals, should only be exercised in a case of “serious” corrupt conduct. However, the power to investigate would not be so limited.

Section 12A of the Act currently requires ICAC “as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct”. However, the Act provides no sanction for a departure from this function.

This is because the power of the ICAC to investigate corrupt conduct constitutes just one of the multiple functions of the ICAC, as set out in section 13 and 14 of the Act, which extend beyond a quasi-judicial function to include educational, advisory and preventive functions in relation to corrupt conduct.

The recommendation to make “serious” corrupt conduct the focus of ICAC’s power to make findings of corrupt conduct reflects the need to ensure that public perception subsequent to such a finding is justified. This notion of degree and the need for a sliding scale into what is and is not sufficient to constitute corrupt conduct for the purpose of the Act was at the heart High Court majority’s judgment in the Cuneen case.

The intent behind the recommendation is to “tighten up” the consistency of the Act by requiring the ICAC to discharge its function under s12A and reinforces a core responsibility of ICAC.

Way Forward for the ICAC 

The Report reinforces the need to shore up and clearly define the type of conduct that can be subject to an ICAC investigation, as well as the basis for making a finding of ‘corrupt conduct’ in order to deal with the implications of Cuneen.

Relevantly, the recommendations of the Report discussed above revisit earlier changes that were proposed by a Joint Parliamentary Committee review of the Independent Commission Against Corruption Act 1988 (the Act) in 2005.

These proposed changes were not implemented. While it remains to be seen whether the current Parliament will be prepared to pass legislation addressing these matters, given the findings Cuneen and the implications which that case has for other highly political ICAC findings, it is considered that these recommendations are more likely to proceed in some form.

No announcement has been made by the Government as to when the process of implementing the recommended changes will take place.

Prepared by Sue Puckeridge and Angelique Williams