Premier Introduces Legislation to Implement the ICAC Review Panel Findings

Recently, we reported on the findings of the the expert review panel appointed by the NSW Premier (see Premier's ICAC Review Panel Delivers its Finding) and as we noted in that article that the panel reported and made recommendations on the way the Independent Commission Against Corruption (ICAC) is to operate going forward.

On Tuesday (8 September 2015) the NSW Premier introduced into the NSW Parliament the Independent Commission Against Corruption Amendment Bill 2015 the key objective of which is to amend the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) to implement all of the recommendations of the report made on 30 July 2015 by the Independent Panel established to review the jurisdiction of ICAC.

Background

The need for the NSW government to review its ICAC legislation arose from the widely reported decision of the High Court of Australia in Independent Commission Against Corruption v Cunneen [2015] HCA 14 and its resulting decision that excluded certain conduct of private persons from the definition of “corrupt conduct” under the ICAC Act, conduct that had previously been believed to be within the ambit of ICAC’s jurisdiction.

Following on from that decision, the NSW government enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (Act No. 1 of NSW) to deal with any problems of validity that might arise for past and on going ICAC investigations (see our article Retrospective ICAC Validation Bill Rushed Through Parliament and Assented In Single Day and see also Duncan v Independent Commission Against Corruption [2015] HCA 32: Review of Act - which challenged the validity of the Validation legislation). The NSW government then commissioned the Hon Murray Gleeson AC (Chair) and Mr Bruce McClintock SC as an expert panel to conduct a more extensive review of ICAC's jurisdiction on 27 May 2015.

Panel Recommendation Implemented by the Proposed Legislation

In his second reading speech, the Premier indicated that the proposed legislation did ". . . not support the broader definition of 'corrupt conduct' proposed by ICAC", but also would not confine the definition as narrowly as the High Court had, but would instead, adopt the "fresh approach" proposed by the expert panel.

This sees the existing definition of "corrupt conduct" in the ICAC Act remain but also ". . . supplemented by a new limb . . . " which includes ". . . certain conduct by any person that could impair public confidence in public administration". The is done in the proposed legislation by the insertion of a new subsection 8(2A) into the ICAC Act, which defines the "General nature of corrupt conduct".

This new provision, it is said by the Premier in his second reading speech:

Specific recommendations made by the expert review panel and implemented by the proposed legislation are:

• the extension of ICAC’s jurisdiction in respect of “corrupt conduct” to include certain specified actions of non-public officials that could impair public confidence in public administration;
• the provision that ICAC’s education, advisory and prevention functions can be used generally for the purpose of promoting the integrity and good repute of public administration; and
• the limitation of ICAC’s power to make findings of “corrupt conduct” against an individual to cases where the corrupt conduct is serious.

The expert panel also recommended that ICAC be given the jurisdiction to investigate possible criminal offences under electoral and lobbying laws (without extending the meaning of “corrupt conduct”) should Parliament consider that breaches of those laws should be made the subject of ICAC’s
jurisdiction.

The proposed legislation takes up that recommendation in the following ways:

• it provides that conduct that may involve possible criminal offences under the Parliamentary Electorates and Elections Act 1912 (NSW), the Election Funding, Expenditure and Disclosures Act 1981 (NSW) or the Lobbying of Government Officials Act 2011 (NSW) may be referred to ICAC for investigation by the Electoral Commission, which has responsibility for the administration and enforcement of compliance with those Acts. Such referral requires that there are reasonable grounds to suspect that the conduct may involve possible criminal offences of a designated kind, or that the conduct is related to possible corrupt conduct that ICAC is already investigating. Further, ICAC would be required to discontinue an investigation if, after a preliminary investigation, the conduct does not involve possible criminal offences of the designated kind and is not related to possible corrupt conduct that ICAC is already investigating.
• it also provides that conduct that may involve possible criminal offences under any of those Acts that is already under investigation by ICAC in the investigations known as "Operation Spicer" and "Operation Credo" are taken to have been referred to ICAC so that ICAC can complete and report on those investigations.

Under the proposed legislation, persons who seek public office may be engaged in corrupt conduct for the purposes of ICAC’s jurisdiction in respect of any proposed future exercise of their functions as public officials even if they do not succeed in being elected or appointed to the public office.

What Next

The proposed legislation is in its early stages but is expected to pass through to enactment without any great delay. It will be interesting to see if any further challenges arise to ICAC's jurisdiction in the future. As well, there is also the prospect of further legislation arising from the matter of the ". . . initiation of criminal prosecution on the recommendation of the DPP . . ." raised by the expert panel - of this in his second reading speech the NSW Premier said that:

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Independent Commission Against Corruption Amendment Bill 2015 NSW and supporting materials as reported in the TimeBase LawOne Service.