Independent Commission Against Corruption (New South Wales)
|Independent Commission Against Corruption|
Logo of the Independent Commission Against Corruption
|Annual budget||A$25 million (2012-2013)|
|Legal personality||Governmental: Government agency|
|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)|
|Specialist jurisdiction||Anti corruption.|
|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,
|* 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).
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.
Structure and operation
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. 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. 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. 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, 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. 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.
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.
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:
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.
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.
In 2008, the ICAC documented entrenched corruption within RailCorp. A range of offences were investigated, involving staff at many levels, and A$19 million was found to have been improperly allocated.
The ICAC began focusing on ministerial level corruption from 2010. 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.
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.
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. However, Premier Mike Baird required him to resign.
On 15 April 2015 in a 4:1 majority ruling in relation to an ICAC investigation into alleged conduct of Margaret Cunneen SC, the High Court of Australia found that the ICAC had exceeded its authority based on a misinterpretation of "corrupt conduct" in the Act. Section 8(2) of the Act defined "corrupt conduct" as conduct that "adversely affects, or that could adversely affect ... the exercise of official functions by any public official". The High Court found that, in this context, "adversely affect" means "adversely affect or could adversely affect the probity of the exercise of an official function by a public official" and not "adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case". The Court ruled that Cunneen's alleged conduct might have affected the official's choice of action but would not have affected the official's probity in making that choice. The Court accepted that the alleged conduct of Cunneen, a senior public prosecutor, would have been in a private and not an official capacity. The Cunneen decision raised questions about whether ICAC exceeded its powers in some earlier and current high-profile corruption investigations. Nonetheless, in May 2015 the ICAC referred the allegations against Cunneen to the New South Wales Director of Public Prosecutions; in July 2015 the Solicitor General determined that a prosecution was not warranted.
Some of those investigations into governmental corruption had led to ICAC reports that recommended legislation to cancel certain mining licences without compensation and such legislation had been enacted by the New South Wales parliament. Simultaneously with the Cunneen decision, the High Court unanimously rejected challenges to the validity of that legislation. The Cunneen decision, while not affecting that legislation itself, raised questions about the validity of the investigations that led to those reports.
The ICAC disagreed with the High Court's interpretation of the act, as "contrary to the legislative intention" and to "the ordinary meaning of the words used in the section"; it urged the NSW government to legislate to broaden its powers respectively, so as to legalise its earlier actions as well as current investigations. However, the Inspector of the ICAC, former Supreme Court judge David Levine QC, criticised the ICAC's response as a "blustering" statement by a "poor loser" and "an improper and dismissive attack on the judgment of the highest court in the land", and warned against "any knee-jerk legislative reaction that will serve to render the ICAC a second police force or crime commission". NSW premier Mike Baird stated that "NSW will continue to have a strong ICAC. And we will take every action necessary to ensure that's the case." Former ICAC Commissioner David Ipp, although criticising the Cunneen investigation, strongly supported retrospective legislation to restore the ICAC's general powers.
On 6 May 2015 the NSW government rushed through the parliament, with all-party support, a bill to amend the Independent Commission Against Corruption Act; the amendments were brought into effect immediately. The Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) does not simply reverse the Cunneen decision. It amends the principal act so as to validate retrospectively the investigations that had led to the recent convictions, as well as the convictions themselves so far as affected by the Cunneen interpretation of the ICAC's powers. It also retrospectively validates other investigations by the ICAC up to that decision, and confirms that the ICAC is able to refer those investigations and any evidence gained by them to some other, unspecified person or body. The future of the ICAC's powers will be considered by a review, which premier Baird had announced on 5 May, to be headed by former federal chief justice Murray Gleeson and to report by 10 July.
Following the Cunneen decision, the ICAC confirmed that it would agree to court orders that would declare invalid its findings against mine owner Travers Duncan and other businessmen involved in a mining venture over the Obeid family's farm. The number of earlier investigations affected has been estimated at between eight and at least 50.
Duncan challenged the 2015 amendment act, claiming that it infringed the separation of powers established in the federal constitution, which as settled in Kable flows through to the NSW courts by cross-vesting. On 9 September 2015, the High Court unanimously dismissed that appeal, awarding costs against Duncan.
Support and criticism
While the ICAC has received support from some sections of the media, it received substantial criticism in the wake of the Greiner and O'Farrell resignations. In 1994, former Premier Neville Wran suggested that 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. 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". Professor Peter van Onselen also questioned the "Star Chamber" nature of the Commission and its history of "besmirching reputations". Former Victorian Premier Jeff Kennett suggested that the ICAC's actions with regard to O'Farrell had been "entrapment", while Chris Merritt of The Australian suggested that the investigation had been "ludicrous" and that it was Geoffrey Watson (counsel assisting the ICAC) who should have resigned instead. 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. The Cunneen investigation was criticised, in the light of the eventual High Court decision, as having been heavy-handed from the start.
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. Likewise, Australian Greens Senator Lee Rhiannon renewed the Greens' long-standing call for a national equivalent to ICAC. 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. 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.
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||12 March 1994||4 years, 364 days|
|2||The Honourable Barry O'Keefe AM QC||14 November 1994||13 November 1999||4 years, 364 days|
|3||Irene Moss AO||14 November 1999||13 November 2004||4 years, 365 days|
|4||The Honourable Jerrold Cripps QC||14 November 2004||13 November 2009||4 years, 364 days|
|5||The Honourable David Ipp AO QC||16 November 2009||24 January 2014||4 years, 69 days|||
|6||The Honourable Megan Latham||28 January 2014||incumbent||666 days|||
- Nick Greiner
- Nola Fraser
- Orange Grove affair
- Karyn Paluzzano and Angela D'Amore
- Eddie Obeid and Ian Macdonald
- Rear Admiral Geoffrey Smith
- "NSW Legislation". nsw.gov.au.
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- But not now police: since 1996 the NSW Police Force has been subject to the Police Integrity Commission.
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- Mining Act 1992 (NSW), Schedule 6A "Cancellation of certain authorities", inserted by Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW).
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- Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW)
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- Nicholls, Sean; Whitbourn, Michaela (23 April 2015). "ICAC findings against Travers Duncan and others to be overturned". The Sydney Morning Herald. Retrieved 24 April 2015.
- Whitbourn, Michaela (26 April 2015). "At least 50 ICAC findings in doubt following High Court Cunneen ruling". The Sydney Morning Herald. Retrieved 27 April 2015.
- Whitbourn, Michaela (8 May 2015). "ICAC findings: Travers Duncan and associates in constitutional challenge". The Sydney Morning Herald. Retrieved 8 May 2015.
- Whitbourn, Michaela (10 September 2015). "High Court rejects bid by mining mogul Travers Duncan to overturn laws passed to bolster ICAC's powers". The Sydney Morning Herald. Retrieved 10 September 2015.
- Duncan v Independent Commission Against Corruption  HCA 32, in AustLII.
- Ackland, Richard (16 April 2014). "ICAC architect Gary Sturgess should be a household name". The Sydney Morning Herald. Retrieved 18 April 2014.
- McClymont, Kate (17 April 2014). "Was ICAC or O'Farrell wrong? McClymont vs Henderson". The Age (from ABC Lateline). Retrieved 18 April 2014.
- Hartcher, Peter (16 April 2014). "Barry O'Farrell takes the fall but ICAC cops the heat". The Age. Retrieved 18 April 2014.
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- Van Onselen, Peter (22 March 2014). "Modern star chamber must be brought to account". The Australian. Retrieved 18 April 2014.
- Hatch, Patrick (17 April 2014). "O'Farrell fall was entrapment, says Kennett". The Age.
- Massoud, Josh (10 August 2014). "Nick Di Girolamo: ‘How I’m hitting back at the ICAC’". Sunday Telegraph (Australia). Retrieved 12 August 2014.
- Glegg, Louise (16 April 2015). "Important questions remain unanswered in Margaret Cunneen case". The Sydney Morning Herald. Retrieved 17 April 2015.
- Dempster, Quentin (17 April 2015). "Cunneen ruling: High Court created a hair, then split it". The Sydney Morning Herald. Retrieved 17 April 2015.
- "ICAC's strengths put forward convincing case for federal equivalent". The Sydney Morning Herald. 17 April 2014. Retrieved 19 April 2014.
- Rhiannon, Lee (17 April 2014). "It's high time for a national corruption commission". The Guardian (Australian edition). Retrieved 21 April 2014.
- Hawker, Bruce (22 April 2014). "The Coalition whinging about Icac is nothing new". The Guardian (Australian edition). Retrieved 22 April 2014.
- Nicholls, Sean; Whitbourn, Michaela (24 October 2013). "ICAC commissioner David Ipp announces retirement". The Sydney Morning Herald. Retrieved 23 January 2013.
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