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LG Alert – Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2016 (December 22nd, 2016)

The Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2016 (“the Amendment Act”) was proclaimed by the Governor on 15 December 2016.

The Amendment Act, as its name suggests, amends the Independent Commissioner Against Corruption Act 2012 (“the ICAC Act”) and was introduced for the purposes of “refining and improving” the operation of that Act.

Whilst the majority of the provisions under the Amendment Act commenced on 15 December 2016, several clauses will come into operation on 1 April 2017, whilst others have been suspended until a day or time to be fixed by proclamation.

We summarise below the key changes of importance to councils:

Primary Objects of the ICAC Act

The Amendment Act clarifies that the primary object of the Commissioner is to investigate serious or systemic corruption in public administration and to refer misconduct or maladministration in public administration to an inquiry agency, public authority or public officer (in most circumstances).

However, in certain circumstances, the Commissioner may exercise the powers of an inquiry agency in dealing with “serious or systemic” misconduct or maladministration in public administration and the ICAC Act will contain a definition for what will be termed “serious or systemic” in this regard.

From 1 April 2017, these amendments will effectively reduce the remit of the matters that fall within the Commissioner’s jurisdiction, ensuring that only the most serious of corruption allegations (or “serious or systemic” misconduct or maladministration) are investigated by the Commissioner.

Corruption, Misconduct and Maladministration

The Amendment Act has made two (2) further changes to the definitions of corruption, misconduct and maladministration in public administration.

The definition of “corruption” will be supplemented from 1 April 2017 to encompass an offence against the Lobbyists Act 2015, (or an attempt to commit such an offence) and from 15 December 2016, section 5(6) of the ICAC Act clarifies that a breach of a statement of principles applicable in relation to the conduct of Members of Parliament cannot be investigated by the Commissioner.

Office for Public Integrity (“OPI”)

From 15 December 2-016, the OPI is able to refer complaints and reports to inquiry agencies, public authorities and public officers in certain circumstances, without first having to make a recommendation for referral to the Commissioner, as was previously the case. This amendment was proposed to streamline the referral and reporting process, with a view to managing complaints more efficiently.

Police Officers

The Commissioner may now issue a warrant authorising a police officer (not just an investigator appointed under the ICAC Act) to enter and search a place or vehicle and seize items during that search. The amendment came into effect on 15 December 2015 and was made to facilitate joint investigations.

OmbudsmanSA

Previously a matter referred to the OmbudsmanSA (“the Ombudsman”) by the Commissioner for investigation was subject to significant oversight by the Commissioner.

From 15 December 2016, these oversight provisions have been deleted and, following the taking of reasonable steps to obtain the views of the Ombudsman before referring, the matter will be deemed to be a complaint under the Ombudsman Act 1972, to be dealt with exclusively by the Ombudsman.

Commissioner’s Power to Report

The Commissioner has been given broader powers to prepare public reports regarding completed investigations or other matters that the Commissioner considers to be in the public interest to disclose.

Importantly, the Amendment Act imposes a requirement that a report setting out findings or recommendations resulting from a completed investigation into a potential issue of misconduct or maladministration in public administration must not identify any person involved in the matter, unless that person consents.

A copy of any such report must now be provided to the public authority responsible for any public officer to whom the report relates, (as well as to the Minister responsible for that public authority, the Attorney General and the Parliament).

Whilst this amendment is important for councils, as it requires that the council, (as well as any council subsidiary), be kept informed of any investigation and subsequent report into a potential issue of maladministration or misconduct in public administration which pertains to a public officer for which it is responsible, unless that public officer consents, their identity will not be made known.

Reviews of the Commissioner

The Amendment Act provides for wider ranging provisions for review of the operations of the Commissioner and the OPI.

It also provides for reviews to be undertaken upon receipt of a “relevant complaint”, being a complaint made in accordance with any requirements prescribed by the regulations relating to an alleged abuse of power, impropriety or other misconduct on the part of the Commissioner, or employees of the Commissioner or of the OPI. Currently, the Regulations do not prescribe any requirements.

This is an important amendment as it adds an additional layer of accountability to the Commissioner’s activities, as well as his employees and the employees of the OPI. It recognises the fundamental requirement that there be an avenue for review of matters in certain circumstances.

Interestingly though, the sections under the Amendment Act introducing this amendment have been suspended until a day or time to be fixed by proclamation.

Confidentiality

Of particular importance to councils and elected members, a new confidentiality provision has been inserted into the ICAC Act.

Under the now repealed provisions, a person (or council) who received information in the course of the administration of the ICAC Act, in connection to a matter that formed, or was the subject of a complaint, was unable to disclose the information to their legal advisors, without first obtaining an authorisation from the Commissioner.

However, from 15 December 2016 this provision was amended so that a person (or council) will no longer be required to obtain an authorisation to disclose confidential information, as long as the disclosure of that information is for the purposes of obtaining legal advice or legal representation, or for the purposes of determining whether a person is entitled to an indemnity for legal costs.

This amendment is significant as it will not only enable matters to be dealt with more efficiently, but will also reduce the administrative requirements for councils and consequently streamline the process of responding to allegations.

Claims of Privilege

The Amendment Act has inserted a new Schedule 3 into the ICAC Act to make provision for claims of privilege when search powers are being exercised pursuant to a warrant.

When a claimant raises such a claim, the searcher must cease exercising the power under the warrant in relation to the document (or other thing over which the claim is made) or require the claimant seal the document (or thing) and give it to the searcher, after which, the Commissioner must be notified as soon as reasonable practicable.

Where the document (or thing) remains in dispute, the Supreme Court is to determine the claim of privilege.

Whilst we understand that this was already the practice of the investigators, the amendment clarifies the requirements expected in such situations.

If you have any questions regarding the above, or require any assistance with matters related to the administration of the ICAC Act, please contact Tracy Riddle on 8113 7106 or triddle@kelledyjones.com.au or Michael Kelledy on 8113 7103 or mkelledy@kelledyjones.com.au