Independent Commission Against Corruption (New South Wales)

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Independent Commission Against Corruption
Abbreviation ICAC
ICAC (New South Wales) logo.jpg
Logo of the Independent Commission Against Corruption.
Agency overview
Formed 1988
Annual budget A$25 million (2012-2013)
Legal personality Governmental: Government agency
Jurisdictional structure
Operations jurisdiction* State of New South Wales, Australia
Legal jurisdiction As per operations jurisdiction.
Governing body Government of New South Wales
Constituting instrument Independent Commission Against Corruption Act 1988 (NSW)
General nature
Specialist jurisdiction Anti corruption.
Operational structure
Headquarters Level 21, 133 Castlereagh Street, Sydney, New South Wales, Australia
Elected officer responsible Hon. Mike Baird MP,
Premier of New South Wales
Agency executive Megan Latham,
Commissioner
Website
www.icac.nsw.gov.au
Footnotes
* Divisional agency: Division of the country, over which the agency has usual operational jurisdiction.

The Independent Commission Against Corruption (ICAC), an independent agency of the Government of New South Wales, is responsible for minimising corrupt activities and enhancing the integrity of the public administration in the state of New South Wales, Australia. The Commission was established in 1989, pursuant to the Independent Commission Against Corruption Act 1988 (NSW).[1]

It is led by a sole Commissioner appointed for a fixed five-year term, presently The Honourable Justice Megan Latham. The Commissioner submits a report on the activities of the Commission to the Parliament of New South Wales and whilst independent of the politics of government, reports informally to the Premier of New South Wales. The commission is charged with educating public authorities, officials and members of the public about corruption.[2]

Structure and operation[edit]

The ICAC has jurisdiction over state and local government in New South Wales. This extends to parliamentarians, local councillors, the Governor of New South Wales, public servants, and staff of universities and state-owned corporations.[3] Anyone can refer a matter to the commission. According to Professor Adam Graycar less than one per cent out of around 3,000 complaints annually result in a public hearing.[2] The commission has the coercive powers of a Royal Commission and can compel witnesses to testify. Public hearings are designed to act as a preventative measure against corruption.[2] Where the ICAC rules that an official has acted corruptly, the charges are referred to the criminal justice system for consideration by the Director of Public Prosecutions to lay criminal charges.

There are only limited controls on admissible evidence,[4] which may be obtained by compulsion and coercion or other means that would make it inadmissible in a court of law. Often evidence used in ICAC cases cannot subsequently be used in related criminal proceedings.[5] There is no right to silence for witnesses called to the Commission and failure to testify (along with misleading the commission) can lead to five year jail terms. While the ICAC cannot impose custodial sentences (other than for procedural matters), it can recommend that criminal charges be considered by the Department of Public Prosecution. In practice it has achieved very few convictions following its investigations and has had key findings such as that against former Premier Greiner found as going beyond its powers. The ICAC has telephone intercept powers.[6]

The ICAC is led by a single commissioner, who, although the agency belongs within the New South Wales Premier's Department, reports directly to the presiding officers of the Parliament of New South Wales. The commissioner serves a single five-year term and cannot be dismissed except by the Governor.

Development[edit]

The 1980s saw a number of corruption scandals break around Australia, involving the Labor administrations in New South Wales, Victoria and Western Australia (WA Inc), the Liberal government in Tasmania and the Nationals administration in Queensland (Fitzgerald Inquiry).

In 1988, Nick Greiner, a Liberal, ran against Labor in New South Wales on an anti-corruption platform and won. Introducing legislation to establish the ICAC, Greiner told Parliament:[7]

In recent years, in New South Wales we have seen: a Minister of the Crown gaoled for bribery; an inquiry into a second, and indeed a third, former Minister for alleged corruption; the former Chief Stipendiary Magistrate gaoled for perverting the course of justice; a former Commissioner of Police in the courts on a criminal charge; the former Deputy Commissioner of Police charged with bribery; a series of investigations and court cases involving judicial figures including a High Court Judge; and a disturbing number of dismissals, retirements and convictions of senior police officers for offences involving corrupt conduct.... No government can maintain its claim to legitimacy while there remains the cloud of suspicion and doubt that has hung over government in New South Wales.

Nick Greiner, as Premier of New South Wales, 1988.

History[edit]

The ICAC's first task was to investigate activities of the previous Wran and Unsworth governments. No charges were recommended by the commission.

In 1992, the ICAC ruled that Premier Greiner's offer of a government job to former minister Terry Metherell was an act of "technical" corruption. Although the charges were later dismissed by the courts, the four independent MPs on whom the premier relied for a majority in the Legislative Assembly indicated that they would no longer support his leadership. Greiner resigned and was replaced by John Fahey.[8]

In 2008, the ICAC documented entrenched corruption within Rail Corporation New South Wales.[9] A range of offences were investigated, involving staff at many levels, and A$19 million was found to have been improperly allocated.[9]

The ICAC began focusing on ministerial level corruption from 2010.[6] In November 2010, the commission released a report titled Investigation into Corruption Risks Involved in Lobbying. It recommended the implementation of a new lobbying regulatory scheme to provide transparency and to reduce both the risk of corruption and public distrust.[10]

In 2014, the ICAC investigated alleged corrupt activities relating to a water infrastructure company. It called Premier Barry O'Farrell as a witness and asked if he recalled being sent a gift of a $2,978 bottle of wine by the CEO of the company. O'Farrell said he had no recollection of such a gift. When a thank-you note in O'Farrell's handwriting was produced the next day, O'Farrell immediately announced that he would resign as party leader and as Premier.[11]

Later during the same case, NSW Police Minister Mike Gallacher voluntarily stood down as minister after counsel assisting alleged that he been involved in obtaining an illegal political donation.[12] However, Premier Mike Baird required him to resign.[13]

Support and criticism[edit]

While the ICAC has received support from some sections of the media,[14][15] it received substantial criticism in the wake of the Greiner and O'Farrell resignations.[16][17][18][19][20] In 1994, former Premier Neville Wran suggested the then-Government should consider, "[ridding] the ICAC legislation of its glaring abuses of civil rights". In the wake of the findings of corruption against Eddie Obeid and Ian Macdonald, Graham Richardson, a former Labor Senator opined that the ICAC had caused "collateral damage" to innocent people, citing Eric Roozendaal as an example.[21] After O'Farrell's resignation, Bruce Baird, a former State Deputy Liberal Leader who voted for the ICAC establishing legislation, was quoted on ABC TV describing the Commission as a "Star Chamber" that "trashes peoples' reputations".[22] Professor Peter van Onselen also questioned the "Star Chamber" nature of the Commission and its history of "besmirching reputations".[23] Former Victorian Premier, Jeff Kennett, suggested the ICAC's actions with regard to O'Farrell had been "entrapment"[24] while Chris Merritt, of The Australian suggested the investigation had been "ludicrous" and that it was Geoffrey Watson (counsel assisting the ICAC) who should have resigned instead.[18] Nick Di Girolamo, a witness before the ICAC in proceedings that led to the resignation of O'Farrell, lodged a compliant in 2014 with the NSW Bar Association about Watson's behaviour during the hearings.[25]

On the other hand, in an editorial in the wake of the O'Farrell resignation, the Sydney Morning Herald quoted new NSW Premier Mike Baird that "ICAC is doing exactly what it should do and it is something that I will sign up to 100 per cent"; the newspaper advocated creation of a federal equivalent.[26] Likewise, the Australian Greens Senator Lee Rhiannon renewed their long-standing call for a national equivalent to ICAC.[27] Calls for changes to how the ICAC operates following O'Farrell's resignation were rejected by Professor Anne Twomey, an expert in public and constitutional law at the University of Sydney, because it was O'Farrell who misled the ICAC, breached the parliamentary code of conduct and failed to properly declare pecuniary interests.[2] A more historical defence of the ICAC has been that it was set up by a Liberal government in an expectation, shared fearfully by the Labor opposition, that it would be in effect "a standing royal commission into Labor", and that Coalition members and supporters have been appalled that it has not turned out that way.[28]

Commissioners[edit]

The ICAC is led by a single commissioner, who serves for a non-renewable term of five years. The following individuals have been appointed as commissioner since the commission's establishment:

Order Commissioner Term start Term end Term in office Notes
1 Ian Temby QC 13 March 1989 (1989-03-13) 12 March 1994 (1994-03-12) 4 years, 364 days
2 The Honourable Barry O'Keefe AM QC 14 November 1994 (1994-11-14) 13 November 1999 (1999-11-13) 4 years, 364 days
3 Irene Moss AO 14 November 1999 (1999-11-14) 13 November 2004 (2004-11-13) 4 years, 365 days
4 The Honourable Jerrold Cripps QC 14 November 2004 (2004-11-14) 13 November 2009 (2009-11-13) 4 years, 364 days
5 The Honourable David Ipp AO QC 16 November 2009 (2009-11-16) 24 January 2014 (2014-01-24) 4 years, 69 days [29]
6 The Honourable Megan Latham 28 January 2014 (2014-01-28) incumbent 327 days [30]

High-profile cases[edit]

See also[edit]

References[edit]

  1. ^ "Independent Commission Against Corruption Act 1988". NSW Legislation. Retrieved 21 April 2014. 
  2. ^ a b c d Whitbourn, Michaela (19 April 2014). "ICAC under threat of being silenced". WAtoday (Fairfax Media). Retrieved 19 April 2014. 
  3. ^ But not now police: since 1996 the NSW Police Force has been subject to the Police Integrity Commission.
  4. ^ Independent Commission Against Corruption Act 1988 (NSW) s 17(1)
  5. ^ Independent Commission Against Corruption Act 1988 (NSW) s 37(3)
  6. ^ a b Dempster, Quentin (17 April 2014). "The star chamber that took down a premier". The Drum (Australian Broadcasting Corporation). Retrieved 17 April 2014. 
  7. ^ Greiner, Nick (26 May 1988). "Independent Commission Against Corruption Bill" (PDF). Hansard. Parliament of New South Wales. p. 673. Retrieved 23 January 2014. 
  8. ^ Snow, Deborah (16 April 2014). "Ghosts of past misdeeds lurk behind a career cut short". Sydney Morning Herald. Retrieved 18 April 2014. 
  9. ^ a b Graycar, Adam; Prenzler, Tim (2013). Understanding and Preventing Corruption. Palgrave Macmillan. p. 16. ISBN 1137335092. Retrieved 17 April 2014. 
  10. ^ "ICAC recommends legislative changes to better manage lobbying". Media Release. Independent Commission Against Corruption. 10 November 2010. Retrieved 11 April 2014. 
  11. ^ Grattan, Michelle (16 April 2014). "Barry O'Farrell quits as NSW Premier over ICAC ‘memory fail’". The Conversation. Retrieved 17 April 2014. 
  12. ^ Whitbourn, Michaela; McClymont, Kate (2 May 2014). "Police Minister Mike Gallacher steps down after ICAC hears he was involved in 'corrupt scheme' with Nathan Tinkler". Sydney Morning Herald. Retrieved 2 May 2014. 
  13. ^ Howden, Saffron (2 May 2014). "Mike Gallacher had to resign over ICAC claim, Mike Baird says". Sydney Morning Herald. Retrieved 2 May 2014. 
  14. ^ Ackland, Richard (16 April 2014). "ICAC architect Gary Sturgess should be a household name". Sydney Morning Herald. Retrieved 18 April 2014. 
  15. ^ McClymont, Kate (17 April 2014). "Was ICAC or O'Farrell wrong? McClymont vs Henderson". The Age (from ABC Lateline). Retrieved 18 April 2014. 
  16. ^ Hartcher, Peter (16 April 2014). "Barry O'Farrell takes the fall but ICAC cops the heat". The Age. Retrieved 18 April 2014. 
  17. ^ Van Onselen, Peter (17 April 2014). "Another victim of a commission out of control". The Australian. Retrieved 18 April 2014. 
  18. ^ a b Merritt, Chris (17 April 2014). "The wrong man has resigned". The Australian. Retrieved 18 April 2014. 
  19. ^ Loane, Sally (29 April 1994). "ICAC Laws blot on NSW". Sydney Morning Herald. Retrieved 18 April 2014. 
  20. ^ Moore, Matthew; Norington, Brad (21 August 1992). "ICAC in the hot seat". Sydney Morning Herald. Retrieved 18 April 2014. 
  21. ^ Richardson, Graham (2 August 2013). "Labor Party drowning in guilt by association thanks to ICAC findings". The Australian. Retrieved 4 May 2014. 
  22. ^ Ferguson, Sally (17 April 2014). "Mike Baird elected NSW premier after Barry O'Farrell resigns". Australian Broadcasting Corporation. Retrieved 17 April 2014. 
  23. ^ Van Onselen, Peter (22 March 2014). "Modern star chamber must be brought to account". The Australian. Retrieved 18 April 2014. 
  24. ^ Hatch, Patrick (17 April 2014). "O'Farrell fall was entrapment, says Kennett". The Age. 
  25. ^ Massoud, Josh (10 August 2014). "Nick Di Girolamo: ‘How I’m hitting back at the ICAC’". Sunday Telegraph (Australia). Retrieved 12 August 2014. 
  26. ^ "ICAC's strengths put forward convincing case for federal equivalent". Sydney Morning Herald. 17 April 2014. Retrieved 19 April 2014. 
  27. ^ Rhiannon, Lee (17 April 2014). "It's high time for a national corruption commission". The Guardian (Australian edition). Retrieved 21 April 2014. 
  28. ^ Hawker, Bruce (22 April 2014). "The Coalition whinging about Icac is nothing new". The Guardian (Australian edition). Retrieved 22 April 2014. 
  29. ^ Nicholls, Sean; Whitbourn, Michaela (24 October 2013). "ICAC commissioner David Ipp announces retirement". Sydney Morning Herald. Retrieved 23 January 2013. 
  30. ^ Hemsley, Paul (4 November 2013). "NSW officially names Justice Megan Latham as new ICAC". GovernmentNews.com.au. The Intermedia Group. Retrieved 23 January 2014. 

External links[edit]