Appearing before the Independent Commission Against Corruption (ICAC) – What you may need to know.

To receive a summons or be requested to attend an interview by Independent Commission Against Corruption (ICAC) can be an alarming experience. We strongly recommend that you obtain legal advice before attending.

Johnston Withers Lawyers has acted for a number of people who have been involved in ICAC related matters. In our experience, it is very important to try and obtain 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 be potentially faced with an allegation of corruption, misconduct or mal-administration.

he Independent Commissioner Against Corruption who is 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 mal-administration 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 which may be applicable to an investigation. It is important to know which legislation is relevant as that 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).
• Ombudsman Act 1972 (SA).
• Royal Commissions Act 1917 (SA).
• Whistle Blowers Protection Act 1993 (SA).
• Public Sector Act 2009 (SA).
• Public Sector (Honesty and Accountability) Act 1995 (SA)
• Local Government Act 1999 (SA)
• 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 mal-administration 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 (e.g. the Oakden inquiry).

Importantly, the Commissioner himself does not have the power to prosecute individuals. Rather findings found by the Commissioner may be referred to the DPP or police for prosecution.

Corruption, misconduct and mal-administration

The ICAC Act sets out definitions of corruption, misconduct and mal-administration. In summary:

Corruption

Involves a criminal offence or potential criminal offence. That could include bribery or corruption of public officers, threats or reprisals against public officers and abuse of public office. It may include any other offences (e.g. theft) committed by a current or former public officer.

Misconduct

Concerns a contravention of a code of conduct (e.g. public sector Code of Ethics or Local Government Code of Conduct).

When one examines the Public Sector Code of Ethics and Local Government Code of Conduct, it would appear that this could 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 judgment. We consider that it means wrongful, improper or unlawful conduct which is motivated by an intentional purpose. A recent New South Wales Supreme Court Decision (Maitland v R; McDonald v R [2019] NSW CCA32 (25 February 2019)) gave some explanation as to the meaning of misconduct in the context of a criminal prosecution alleging a common law offence i.e. 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.

Mal-administration – Relates to mismanagement or poor performance of a public officer’s duties. This could be conduct arising from negligence or incompetence on a significant level.

Generally an investigation concerning misconduct or mal-administration will only occur where the alleged conduct is “serious or systematic”. This may include:

1. The nature the circumstance of the allegations (including the number of allegations)
2. The status of the person or persons involved
3. The harm (or potential harm) to an individual or public authority
4. To what extent the matter is widespread e.g. whether it involves more than one agency or has occurred over a period of time.
5. Whether the matter is of particular public importance (e.g. the Oakden inquiry).

Conclusion

In some cases where Johnston Withers Lawyers has represented clients, we have seriously questioned whether the alleged offence could be in any way be considered to be significant and justifying the amount of public resources put into the investigation and prosecution.

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 and monies were spent on this case. The matter went to a jury trial and the officer was found to be not guilty of the offence. 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. Contact Johnston Withers Lawyers for a free initial appraisal today.