NSW Government's Independent Commission Against Corruption Overhaul Passes Parliament

Thursday 17 November 2016 @ 1.31 p.m. | Crime | Legal Research

On 15 November 2016, the Independent Commission Against Corruption Amendment Bill 2016 (the ICAC Amendment Bill) passed through the NSW lower house and was introduced into the upper house on 16 November 2016 where it has also passed with the support of the cross-benchers. The ICAC Amendment Bill flows from a flood of recent controversy surrounding ICAC , the most well known of these being the case involving Ms Margaret Cunneen SC (a senior prosecutor in NSW) which reached the High Court (see ICAC v Margaret Cunneen [2015] HCA 14).

Purpose of the ICAC Amendment Bill

The objects of the ICAC Amendment Bill are stated as being to change the structure, management and procedures of ICAC to give effect to recommendations made by the Joint Parliamentary Committee on ICAC in its report entitled “Review of the Independent Commission Against Corruption: Consideration of the Inspector’s Reports” (the Report) which was tabled in the NSW Legislative Assembly on 27 October 2016.

The ICAC Amendment Bill is directed to making amendments to five areas of the existing legislation - these areas are described as follows;

  • Amendments relating to the structure, governance and management of the ICAC;
  • Amendments relating to procedural fairness during public inquiries and before the publication of adverse findings;
  • Amendments permitting ICAC to exercise investigative powers after referring matters to the Director of Public Prosecutions (DPP) or the Electoral Commission; and
  • Amendments allowing disclosure of evidence despite non-publication order.

Key among the changes the ICAC Amendment Bill makes is that ICAC will be reconstituted as a three-member Commission, comprising a chief commissioner and two other commissioners and in order for a public hearing to be held as part of any corruption investigation, the chief commissioner and at least one other commissioner must agree.

Further, the ICAC Amendment Bill makes changes that will also mean the Commission will have to publish guidelines relating to public inquiries that ICAC staff and the Counsel Assisting the ICAC must follow; and that, the Commission will be required to give those caught up in inquiries "a reasonable opportunity" to respond before making adverse findings against them, and must include the response in its report if the person requests it.

The ICAC Amendment Bill also makes amendments to the Independent Commission Against Corruption (Commissioner) Act 1994 (NSW No 61) to extend the Act's operation from one to three Commissioners.

Reaction and Comment 

The NSW Premier Mr Baird has defended the ICAC Amendment Bill from criticism by arguing on ABC radio that it would:

". . . deliver a stronger and fairer anti-corruption watchdog . . . We are implementing the recommendations of a bipartisan committee that was unanimous in its recommendations that were supported by Labor, . . " 

Noting that under the amendments made by the ICAC Amendment Bill incumbent Chief Commissioner, Ms Megan Latham, will be required to reapply for her position, the NSW Opposition Leader Mr Luke Foley is reported as saying that:

 ". . . the legislation [w]as a blatant attempt to sack [Commissioner] Ms Latham, for overseeing an investigation into the Liberal Party donations scandal which resulted in 11 MPs being sidelined . . .   This is the lowest point in several decades when it comes to the fight against corruption, . . ." 

It is also reported that the proposed reforms have also "alarmed" two prominent former chiefs of ICAC, namely; Anthony Whealy and David Ipp, who are said to be of the view that the amendments will ". . . severely weaken the watchdog", with Mr Whealy being critical, that even if they are not intended to be, the reforms will be seen as payback by the community, from the Liberal Party against Commissioner Latham for her part in the Liberal Party donation matters investigated by ICAC.

What's Next

As already noted, the legislation  was introduced in parliament on Tuesday (15 November 2016), and moved through both houses in less than two days with the support of the cross-benchers. Passed in such haste that it is reported that a copy of the new legislation was only provided to ICAC at 3:30pm on Tuesday afternoon. Given this, it will be interesting to see how ICAC's ongoing matters are affected by the changes and whether anything is lost in the process. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


Related Articles: