Opinion
Appearing before the Independent Commission Against Corruption (ICAC) – What you may need to know
25th Jul 2019
To receive a summons or be requested to attend an interview by the Independent Commission Against Corruption (ICAC) can be an alarming experience. If this happens to you, we strongly recommend that you obtain legal advice before attending.
Johnston Withers Lawyers has acted for a number of South Australians who have been involved in ICAC-related matters. In our experience, it is very important to try and learn the full context of the investigation and what your role in the context of that investigation may be before attending an interview. In particular, it is important to try and find out whether you may face an allegation of corruption, misconduct or maladministration.
The Independent Commissioner Against Corruption, presently the Hon Bruce Lander QC, has a wide range of powers relating to the state public sector and to local government in SA to investigate corruption, misconduct and maladministration in public administration.
An Office for Public Integrity (OPI) has also been established, which is responsible to ICAC and is the central point of contact for receiving and assessing initial complaints and reports.
Relevant Legislation
There are a number of state Acts that may apply to an investigation. It is important to know which legislation is relevant, as it may well govern the structure of the investigation in relation to your matter.
Relevant legislation could include:
- Independent Commissioner Against Corruption Act 2012 (SA) (and proposed amendments) (ICAC Act);
- Ombudsman Act 1972 (SA);
- Royal Commissions Act 1917 (SA);
- Whistleblowers Protection Act 1993 (SA);
- Public Sector Act 2009 (SA);
- Public Sector (Honesty and Accountability) Act 1995 (SA);
- Local Government Act 1999 (SA); and
- Development Act 1993 (SA) (concerning a regional development assessment panel or council development assessment panel).
Jurisdiction and Powers
ICAC has broad jurisdiction and powers to investigate public officers such as public servants, local council members and local council employees, members of Parliament, members of the judiciary and police officers. It may also investigate private individuals contracted to perform work for a public authority or the Crown.
The Commissioner may initiate and conduct investigations himself or refer matters relating to misconduct and/or maladministration to other public authorities such as the Ombudsman or the Auditor General. The Commissioner may also issue directions and provide guidance to public authorities and report to Parliament about matters (for example, the Oakden inquiry).
Importantly, the Commissioner himself does not have the power to prosecute individuals. Rather, the Commissioner’s findings may be referred to the Office of the Director of Public Prosecutions (DPP) or police for prosecution.
Corruption, misconduct and maladministration
The ICAC Act sets out definitions of corruption, misconduct and maladministration. In summary:
Corruption
Involves a criminal offence or potential criminal offence, including bribery or corruption of public officers, threats or reprisals against public officers and abuse of public office. It may include any other offences (for example, theft) committed by a current or former public officer.
Misconduct
Concerns a contravention of a code of conduct (for example, public sector code of ethics or local government code of conduct).
The public sector code of ethics and local government code of conduct indicate that ‘misconduct’ can cover a very wide range of possible contraventions, no matter how minor the impact.
Exactly what constitutes misconduct can be a matter for substantial argument. It is the view of Johnston Withers, however, that ‘misconduct’ means more than mistakes or errors in judgement. We consider that it means wrongful, improper or unlawful conduct which is intentional. A recent New South Wales Supreme Court Decision (Maitland v R; McDonald v R [2019] NSWCCA 32 (25 February 2019)) gave some explanation as to the meaning of misconduct in the context of a criminal prosecution alleging a common law offence, that is, wilful misconduct in public office. In that case, the Court referred to a number of previous authorities which distinguished administrative fault from criminal culpability. The Court found that the mental element of the offence should have been that the alleged culprit could only have been found to have committed the crime if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on a certain person and on a company associated with the alleged culprit.
Maladministration
Relates to mismanagement or poor performance of a public officer’s duties. This could be conduct arising from negligence or incompetence at a significant level.
Generally, an investigation concerning misconduct or maladministration will occur only where the alleged conduct is ‘serious or systematic’. This may include:
- the nature the circumstance of the allegations (including the number of allegations);
- the status of the person or persons involved;
- the harm (or potential harm) to an individual or public authority;
- the extent to which the matter is widespread (for example, whether it involves more than one agency or has occurred over a period of time); and
- whether the matter is of particular public importance (for example, the Oakden inquiry).
Conclusion
In some cases where Johnston Withers Lawyers has represented clients, we have seriously questioned whether the alleged offence was considered to be significant enough to justify the amount of public resources put into investigating and prosecuting it.
For example, we recently represented a public officer who was accused of unlawfully gaining a benefit from certain consumable items worth less than $100. The officer was suspended from duty for over four years on full pay. Substantial resources were spent on this case. The matter went to a jury trial and the officer was found to be not guilty of the offence. You can find further details about the case here.
Nevertheless, any ICAC investigation can have serious consequences for the continuing employment and reputation of the individual. It is very important to obtain proper legal advice at the outset and to be well prepared for such a process.
This is an edited version of an article originally published on the Johnston Withers Lawyers website, which can be found here.
Graham Harbord, Director at Johnston Withers Lawyers, is one of South Australia’s most respected lawyers, with a strong background in employment law, industrial law and workers’ compensation. While Graham practices across a wide spectrum of the law, much of his time is spent advising employees, and some employer bodies, on employment law issues. This includes unfair dismissal claims, employment contract issues, underpayment of wages, discrimination issues, bullying and harassment claims and workers’ compensation. Graham has also had considerable success representing unions in industrial relations cases. It was his work that helped achieve a substantial pay rise and professional status for the Ambulance employees association and paramedics in South Australia.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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