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  HCA 14).
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;
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.
The NSW Premier Mr Baird has defended the ICAC Amendment Bill from criticism by arguing on ABC radio that it would:
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:
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.
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.
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Independent Commission Against Corruption Amendment Bill 2016 (NSW) and supporting materials as reported in the TimeBase LawOne Service.
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