INTRODUCTION TO THE NEW SOUTH WALESINDEPENDENT COMMISSION AGAINST CORRUPTION
By John Pritchard*

I. INTRODUCTION
The New South Wales (NSW) Independent Commission Against Corruption is a statutory bodyestablished by the Independent Commission Against Corruption Act 1988 (“the Act” or “the ICAC Act”) by
the NSW (State) Parliament.
It is not a national body and its jurisdiction is limited to the state of New South Wales, the largest state in
the Commonwealth of Australia.
There are similar bodies in the states of Western Australia (the Corruption and Crime Commission) andQueensland (the Crime and Misconduct Commission).
In NSW there is also a Crime Commission, an Ombudsman and a Police Integrity Commission, all ofwhich have separate jurisdiction over varying aspects of misconduct, criminal conduct and corruption.
The Commission is headed by a Commissioner who is appointed for a term not exceeding five years andwhich cannot be renewed. The ICAC Act also provides for the appointment of Assistant Commissioners (ofwhich the writer is one) who assist the Commissioner in the exercise of the Commission’s powers and theoverall management of the organization. Assistant Commissioners may also only be appointed for a nonrenewable period of up to five years. The Commissioner or an Assistant Commissioner presides at hearingsof the Commission.
To be eligible for appointment as a Commissioner or Assistant Commissioner, a persons must be
admitted as a barrister and/or solicitor and be eligible for appointment as a Judge of the NSW Supreme Courtor the Federal or High Court of Australia.

II. THE ESTABLISHMENT OF THE ICAC
The comments made in the Second Reading speech of the Independent Commission Against Corruption
Bill in May 1988 by the Hon. Nick Greiner, MP, the then NSW Premier, Treasurer and Minister for Ethnic
Affairs, describes the background leading to the establishment of the Commission:

There was a general perception that people in high office in this State were susceptible to impropriety
and corruption. In some cases that has been shown to be true.
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 inthe courts on a criminal charge; the former Deputy Commissioner of Police charged with bribery; aseries 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.1* Deputy Commissioner, Independent Commission Against Corruption Sydney, Australia.
1 Hansard, 26 May 1988 (Volume 507, pp. 672-678).

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As spelled out in the Second Reading speech, the major points or strategies underlining theestablishment of the Commission were as follows:•

Restoring the integrity and accountability of public administration through:reform of practices and procedures for awarding government contracts
reform and clarification of the criminal law in relation to corruption, graft and perverting thecourse of justicereview of codes of conduct operating across the public sector.

•

Establishing a body charged with the responsibility not just to investigate public corruption but also
the very specific purpose of preventing corruption and enhancing integrity in the public sector.

•

Giving to it an extensive jurisdiction that applies across the entire ambit of the public sector
including Ministers, Members of Parliament, the judiciary, all holders of public offices and all
employees of departments and authorities, local government members and employees.

•

Establishing a body truly independent from the Executive, with the discretion to decide what it will
investigate and how it will be investigated, subject only to being required to investigate mattersreferred to it by both Houses of Parliament.

•

Acknowledging the secretive nature of corruption and the associated difficulty in detecting it, the Act
would vest the Commission with very formidable powers akin to the coercive powers of a Royal
Commission.

•

Obliging and empowering the Commission to make definite findings about persons directly andsubstantially involved in allegations of corrupt conduct and not simply to allow such persons’
reputations to be impugned publicly by allegations without coming to some definite conclusions.

Having enunciated these underlying principles or objectives, Mr Greiner commented:

The bottom line is simply this; the people of this State are fed up with half hearted and cosmetic
approaches to preventing public sector corruption. This legislation will establish an institution that has
strong and effective powers and has jurisdiction to look at the entire public sector. That is what thepeople expect. It is our responsibility to ensure that that expectation is met and not disappointed.2
It is also clear that Mr Greiner saw the Commission as having a continued existence beyond responding
to the immediate public sector integrity problems of the late 1980s:

Indeed, in the long term I would expect its primary role to become more and more one of advising
departments and authorities on strategies, practices and procedures to enhance administrative integrity.
In preventing corruption in the long term, the educative and consultancy functions of the commission will
be far more important than its investigatory functions.
Although the then Premier envisioned the primary role of the Commission would over time become thatof corruption prevention, it is clear from the experience of the Commission that the investigation andprevention roles are mutually complementary functions, both of which are needed for an anti-corruption
organisation to effectively meet the responsibility of monitoring and improving integrity in the public sector
and to deal effectively with an ever-changing public sector landscape.
Following assent given to the Independent Commission Against Corruption Act 1988 (“the Act”) on 6
July 1988, the Commission commenced operations with a public sitting on 13 March 1989.

A. Fifteen Years of Operation of the ICAC
Since commencement the Commission has received over 25,000 complaints or reports. It is relevant
here to note that in its first year of operation the Commission reported receiving 1,091 complaints while in
2 Hansard ibid.

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the last financial year (2003-2004) the Commission received 1,884 complaints or reports relating tocorruption. It is clear that there continues to be a demand for the investigative, corruption prevention andeducation functions of the Commission.
To date the Commission has:3• published over 90 formal investigation reports• made over 800 corruption prevention recommendations4 in Commission publications, the majority ofwhich have been implemented5• held over 2,000 days of hearings• published over 60 corruption prevention reports and resources• published over 25 research reports• provided formal corruption prevention advice in response to over 3,000 requests• delivered over 1,000 training sessions and public presentations.
In addition to the above, Commission investigations which have exposed corrupt conduct by an individual
have been followed by their resignation – in terms of outcomes, removal of a corrupt public official frompublic office is an important outcome regardless of whether it is achieved through a disciplinary process orresignation.
Since the inception of the Commission, public administration in New South Wales has undergone
significant cultural change and improvement – this has been due in no small part to the efforts and successesof the Commission.
ICAC research has also shown that wide ranges of public sector organisations have adopted corruption
prevention strategies and the implementation of these types of strategies across organisations continues toincrease. Similarly the broader community see a continuing role for the Commission.

B. The ICAC Today
The Commission currently has a budget of $16.45 million and employs approximately 118 staff.6 The
organisational structure is based on the principal functions of the Act and is comprised of five sections:• Strategic Operations Division• Corruption Prevention, Education and Research Division• Legal Division• Corporate Services Division• Assessments
The operational areas comprise staff from a wide range of professions and disciplines including criminal
investigators, intelligence and financial analysts, research and policy officers, forensic accountants andlawyers.
The jurisdiction of the Commission extends to over 130 public sector organisations, employing over
300,000 people across the State. This is approximately 12 per cent of the entire NSW labour force.7 In
addition, the Commission has jurisdiction over some 159 NSW Councils, comprising approximately 1,800
Councillors and more than 40,000 employees8, as well as NSW-based universities and NSW Boards andCommittees.9

3 These figures are approximate only. Data sources are annual reports (including unpublished data for the 2003-2004 period),internal figures for the period 1 July 2004 to 16 August 2004, and the ICAC Publication List.
4 Corruption prevention recommendations range from those concerning changes to legislation to those concerning the internal

policies and procedures of an organisation.
5 Recommendation for corruption prevention action - RECOS (ICAC website).
6 NSW Budget Estimates 2004-05, Budget Paper No. 3 - Volume 1 Page 2-61. Budget is for 2004-2005. Staff number

represents the estimated average full time equivalent staff for 2004-05.
7 Source: NSW Premiers Department – Public Employment Office. Site visited 16 August 2004.

http://www.premiers.nsw.gov.au/WorkAndBusiness/WorkingForGovernment/.
8 Source: Local Government and Shires Association. Site visited 16 August 2004. http://www.lgsa.org.au/site/councils.html.
9 There are 10 universities within the ICAC jurisdiction and it is estimated there are over 1000 NSW boards and committees.

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Major investigations conducted by the Commission have revealed extensive and systemic corrupt
conduct resulting in corrupt conduct findings against a number of different individuals, recommendations forconsideration of prosecution action arising from those findings and recommendations for changes tolegislation and improvements to corruption prevention and risk management systems, policies andprocedures.
The functions of investigation and public reporting play an important role in corruption prevention andeducation. While these functions are often referred to in the context of the Commission “exposing” corrupt
conduct, this term is not used in the ICAC Act. The focus of the Commission’s investigative and reporting
work is broader than simply the exposure of corrupt conduct and corrupt individuals.
The duality of functions to “expose” corruption continues today to be an important element as problemsof corruption and serious systemic issues continually emerge. Most recently, the Commission has heard in
public hearings evidence to suggest systemic and possible widespread problems in the area of building
licensing. Another soon to be released report will highlight the systemic issues in the production of false
trade and vocational qualifications and fraudulent documents. In both cases the Commission will have asignificant corruption prevention response.
As an integral part of investigating and reporting on specific instances of corrupt conduct, theCommission investigates and reports on any systems deficiencies that may have provided opportunities forthe corrupt conduct to occur. The Commission makes detailed recommendations to the relevant public
sector organisations to help them redress these deficiencies. The Commission also seeks to analyse andemphasise the impact of corrupt conduct upon public sector systems.
A clear example is the Commission’s recent (June 2004) report on investigation into the fraudulent issueof competency and safety certification in the NSW construction industry. In investigating and reporting on
the corrupt conduct of a number of accredited assessors, the Commission also analysed and emphasised thesystems weaknesses that related to the actual conduct, and analysed the potential impact of the conduct on
public safety, including the potential for holders of fraudulent safety and competency certification to work
interstate under national accreditation arrangements.
Outside of investigations, the Commission undertakes other significant corruption prevention andeducation work, recent examples include:•

The delivery of a state-wide train-the-trainer programme for dealing with conflicts of interest in
Local Government.

•

A campaign to raise awareness of corruption issues in Non-English Speaking Backgroundcommunities.

•

The release of a number of publications including:
Developing a statement of business ethics.
Providing advice on corruption issues: A guide for Members of NSW Parliament.
Providing advice on corruption issues: A guide for NSW Government Councillors.
Fact-Finder. A 20-step guide to conducting an inquiry in your organisation.
Regulation of secondary employment for Members of the NSW Legislative Assembly:
Report to the Speaker of the Legislative Assembly.

The increasing trend for Governments to outsource and contract important public functions and vital
infrastructure has opened up different and challenging issues calling for the attention of the Commission.
Similarly, continual changes to systems of administration, restructuring of government infrastructure andtrends toward greater reliance on information technology systems creates new corruption risks that require
identification and attention.
One important issue to note is that the jurisdiction of the Commission does not cover sworn police
officers of the NSW Police Service. In 1996, following the Royal Commission into the NSW Police, the Police
Integrity Commission (“the PIC”) was established.

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Under its Act the PIC is now responsible for dealing with complaints of misconduct and corrupt conduct
involving sworn officers of the NSW Police. The definition of “public official” under the ICAC Act howeverstill includes “police officer” and the corruption prevention and education function for the NSW Police still
remains with the Commission. The Commission also retains responsibility for investigating corrupt conduct
concerning civilian employees of the NSW Police.

C. Functions of the ICAC
The principal functions of the Commission are set out under section 13 of the Act and can be summarised
as follows:•

To investigate allegations of corrupt conduct and where appropriate report the results of thoseinvestigations.

•

To provide advice and assistance to the public sector on preventing and eliminating corrupt conduct
and to do so in co-operation with public authorities and public officials.

•

To advise and educate the public sector and the community at large on strategies to eliminate andprevent corrupt conduct and to generally enlist and foster public support in the task of doing so.

The “other functions” set out in section 14 of the Act include assembling evidence that may be
admissible in subsequent criminal proceedings, furnishing this evidence to the Director of Public
Prosecutions and providing other evidence or information as appropriate to other authorities.

III. MEASURING THE ICAC’S EFFECTIVENESS
For agencies like the ICAC it is sometimes suggested that the success of its activities may be measured
by the success of prosecutions arising from its investigations.
Advocating the use of conviction rates to measure the overall effectiveness of the Commission inachieving its objectives or functions demonstrates a failure to understand that the Commission is first andforemost a fact–finding and investigative body. This fails to understand the synergy between the functions ofinvestigation, prevention and education in respect to corrupt conduct and that these functions are
inextricably linked.
In noting the importance of this duality of objectives, Mr Greiner in his Second Reading Speechcommented as follows:

Honourable members will note that the Commission is given specific functions to educate and advise
public authorities and to co-operate with the Auditor General … and similar bodies. For these sorts ofreasons it would be crass and naive to measure the success of the … Commission by how many
convictions it gets or how much corruption it uncovers. The simple fact is that the measure of its successwill be enhancement of integrity and most importantly of community confidence in public administrationin this State.10
While it is impossible to quantitatively measure the extent to which integrity in public administration in
New South Wales has been enhanced or to measure the prevalence of corruption, it is possible to commenton some indirect measures relating to implementation of key corruption prevention policies and procedureswith New South Wales public sector organisations. Comment can also be made on community perception
about corruption in NSW.

A. Implementation of Corruption Resistance Strategies and Corruption Prevention Recommendations
In late 2001, the Commission commenced a major research project to develop a snapshot of corruptionrelated issues facing the diverse NSW public sector. The subsequent report published in January 2003
showed a generally healthy picture of the NSW public sector’s current identification and management ofcorruption risks – among the positive findings, it was particularly significant that a wide range of public
10 Hansard ibid.

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sector organisations had, or were in the process of, implementing a range of corruption resistance strategies
that have been promoted by the Commission.
In 2004 the Commission commenced further research to follow up on its findings in the January 2003
report. Preliminary unpublished results indicate that since publication of the report:11
•
•
•
•
•
•

implementation of a Code of Conduct had increased from 82% to 93%, with an additional 1% oforganisations in the process of implementation
implementation of a Risk Management Strategy had increased from 56% to 66%, with an additional
12% of organisations in the process of implementation
implementation of an Internal Audit Plan had increased from 78% to 88%
implementation of an Internal Auditor had increased from 72% to 86%, with an additional 1% oforganisations in the process of implementation
implementation of a Gifts and Benefits Policy had increased from 69% to 83%, with an additional 3%of organisations in the process of implementation
implementation of an internal investigation system had increased from 82% to 93%, with anadditional 4% of organisations in the process of implementation.

The Commission has also sought to follow up on the corruption prevention recommendations made in
ICAC investigation reports. A review of the information available indicates the majority of recommendations
have been implemented in some form by the public sector organisations concerned.12

B. Public Perceptions of Corruption and the ICAC
Since 1993, the Commission has conducted a series of surveys of the NSW community to ascertain
perceptions of corruption and its effects. It is relevant to note that in 1993 92% of respondents thought
corruption to be a problem in NSW as opposed to 82% in 2003 – it is very difficult to change public
perception on such issues, so this decrease is very positive. Another important element is the proportion of
respondents who perceived corruption to be a “major” problem in NSW versus a “minor” problem in NSW.
As the following table demonstrates, while there is still concern about corruption in NSW there has been ashift in the perception of how serious that problem is.
Date

Major Problem

Minor Problem

Total

1993

55%

37%

92%

2003

31%

51%

82%

Source: Community attitudes to corruption and the ICAC (December 2003).

The public perception that “the ICAC is a good thing for the people of NSW” has remained stable overtime (93% in 1993 and 94% in 2003). The public perception is that the ICAC has also succeeded in exposing
corruption in NSW (80% in 1993 and 74% in 2003). Similarly, the public perception of the Commission’s
success in reducing corruption has also remained stable (53% in 1993 and 55% in 2003).

C. ICAC Recommendations for Consideration of Prosecution
The above two sections highlight the achievements of the ICAC in the context of prevention and public
perception. This is not to ignore however the prosecution action resulting from ICAC investigations, but torecognise that prosecution is not a principal function of the Commission under the Act – nor should it be.
Section 14(1)(a) of the Act provides as one of the “other functions” of the Commission to assemble briefs

11 Preliminary unpublished data, August 2004. The recent example does not include boards or committees or Local

Government organisations.
12 Recommendation for corruption prevention action - RECOS (ICAC website).

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of evidence that may be admissible in the prosecution of a person for an offence in connection with corrupt
conduct and to provide that evidence to the Director of Public Prosecutions (“the DPP”). This complements
the function of the Commission to form opinions as to whether consideration should be given to, amongst
other things, prosecution action against particular persons. Further, when preparing investigation reports
under section 74A of the Act, in respect of “affected” persons,13 the report must include a statement as towhether or not in all the circumstances the Commission is of the opinion that consideration should be given
to the prosecution of the persons for a specified criminal offence.
These provisions emphasise the role that the Commission plays in the prosecution process relating tocorrupt conduct – to recommend consideration of prosecution action by the independent body charged withthe statutory duty of making that decision and conducting those proceedings, being the DPP.

IV. PRINCIPAL FUNCTIONS - SECTION 13 ICAC ACT
Section 13 of the Act sets out the principal functions of the Commission:

13. Principal functions(1) The principal functions of the Commission are as follows:(a) to investigate any allegation or complaint that, or any circumstances which in the Commission’s
opinion imply that:(i) corrupt conduct, or(ii) conduct liable to allow, encourage or cause the occurrence of corrupt
conduct, or(iii) conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur,(b) to investigate any matter referred to the Commission by both Houses of Parliament,(c) to communicate to appropriate authorities the results of its investigations,(d) to examine the laws governing, and the practices and procedures of, public authorities andpublic officials, in order to facilitate the discovery of corrupt conduct and to secure the revisionof methods of work or procedures which, in the opinion of he Commission, may be conducive tocorrupt conduct,(e) to instruct, advise and assist any public authority, public official or other person (on the requestof the authority, official or person) on ways in which corrupt conduct may be eliminated,(f) to advise public authorities or public officials of changes in practices or procedures compatible
with the effective exercise of their functions which the Commission thinks necessary to reduce
the likelihood of the occurrence of corrupt conduct,(g) to co-operate with public authorities and public officials in reviewing laws, practices andprocedures with a view to reducing the likelihood of the occurrence of corrupt conduct,(h) to educate and advise public authorities, public officials and the community on strategies tocombat corrupt conduct,(i) to educate and disseminate information to the public on the detrimental effects of corrupt
conduct and on the importance of maintaining the integrity of public administration,(j) to enlist and foster public support in combating corrupt conduct,(k) to develop, arrange, supervise, participate in or conduct such educational or advisory

13 As defined in section 74A(3).

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programmes as may be described in a reference made to the Commission by both Houses ofParliament.
(2) The Commission is to conduct its investigations with a view to determining:(a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has
occurred, is occurring or is about to occur, and(b) whether any laws governing any public authority or public official need to be changed for the
purpose of reducing the likelihood of the occurrence of corrupt conduct, and(c) whether any methods of work, practices or procedures of any public authority or public official
did or could allow, encourage or cause the occurrence of corrupt conduct.
(3) The principal functions of the Commission also include:(a) the power to make findings and form opinions, on the basis of the results of its investigations, inrespect of any conduct, circumstances or events with which its investigations are concerned,
whether or not the findings or opinions relate to corrupt conduct, and(b) the power to formulate recommendations for the taking of action that the Commission considers
should be taken in relation to its findings or opinions or the results of its investigations.
(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which
section 74B (Report not to include findings, etc. of guilt or recommending prosecution) prevents theCommission from including in a report, but this section is the only restriction imposed by this Act on
the Commission’s powers under subsection (3).
(5) The following are examples of the findings and opinions permissible under subsection (3) but do notlimit the Commission’s power to make findings and form opinions:(a) findings that particular persons have engaged, are engaged or are about to engage in corrupt
conduct,(b) opinions as to whether consideration should or should not be given to the prosecution or thetaking of other action against particular persons,(c) findings of fact.
These principal functions (or objectives) as set out above are valid and appropriate for an anti-corruption
agency - that is to investigate, prevent and educate. The Commission was created because of a need torespond to issues of public concern that could not be dealt with through traditional law enforcement/criminal
investigation and criminal courts processes – to suggest that the primary objectives or functions of theCommission should align to such processes would defeat the very purpose for which the Commission wasestablished.
It is the balance of investigating, examining laws, work practices and procedures of public authorities andpublic officials and exposure that enable the Commission to operate so effectively. Since the commencementof the Commission there is now general acceptance, both at a community level and by other investigativeand complaint handling agencies, that the Commission through the experience, knowledge and expertisethat it has accumulated on the subject, is the premier or lead agency ideally placed to deal with allegations ofpublic sector–related corruption, in terms of investigation and corruption prevention and education,
regardless of whether the alleged conduct could amount to a criminal offence.
The ever-increasing numbers of complaints of corruption and requests for corruption prevention advice
and training that the Commission receives suggests that the Commission is considered the lead agency for
dealing with allegations and issues of corruption or other misconduct within the public sector. It would befair to say that the Commission has successfully created a branding that associates its name with these209

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functions in the public mind. Reinforcing the importance of the branding associated with the “ICAC” are theresults of the most recent Community Attitude Survey. Most respondents (88%) were able to recognise the“ICAC” name when they heard it. In addition, most respondents recognised the ICAC to be independent of
the government of the day and to also have jurisdiction in respect of corruption in local government andMembers of Parliament.14
The Commission also provides information and assistance to counterpart bodies interstate and overseas,
as well as providing input to the development of transnational legal instruments such as the UN Convention
against Corruption. The level and frequency of requests for information, advice and collaboration that theCommission receives testifies to the Commission’s profile and reputation as a lead anti-corruption agency.
Directly linked with the principal function of investigating allegations of corrupt conduct is theCommission’s function to make findings or reach conclusions about the truth or otherwise of the allegations
that are referred to it as provided for in section 13(3) of the Act.
The complementary nature of the functions to investigate allegations and reach conclusions on thoseallegations was highlighted during the Second Reading speech on the Bill. In the course of that speech Mr.
Greiner noted the importance of empowering a fact-finding agency such as the Commission to make definite
findings about persons directly and substantially involved in allegations of corrupt conduct and not simply toallow such persons’ reputations to be impugned publicly by allegations without coming to some definite
conclusions.15
The efforts of the Commission in dealing with specific allegations of corruption through a dual process ofinvestigation and corruption prevention, however, has been balanced against the other principal functions ofproviding advice and assistance more generally on corruption prevention and education/community
awareness outside of investigations. In this respect, as the PJC has recently noted, the Commission is
widely respected for its role and activity in corruption prevention by building corruption resistance in the
New South Wales public sector.16
The Commission’s proactive corruption prevention and education functions, that is those which are notinitiated as part of the Commission’s response to specific corruption allegations, are based on informationand intelligence drawn from a range of sources. These sources include complaints and reporting data,
information acquired during investigations and enquiries, research activity and other intelligence
information.
The effective discharge of all the Commission’s principal functions relies on the fact that relevant
information and activities are housed together in the one organization – this ensures the resources that areavailable for proactive prevention and education work are strategically directed toward the most significant
and current corruption issues.

V. OTHER FUNCTIONS OF THE COMMISSION - SECTION 14 ICAC ACT
Section 14 sets out the “other” or secondary functions of the Commission.

14. Other functions of the Commission(1) Other functions of the Commission are as follows:(a) to assemble evidence that may be admissible in the prosecution of a person for a criminal
offence against a law of the State in connection with corrupt conduct and to furnish any such
evidence to the Director of Public Prosecutions,

14 ICAC, Community Attitudes to Corruption and the ICAC. December 2003.
15 Hansard, 26 May 1988 (Volume 507, pp. 672-678).
16 PJC Report No 1/53 May 2004 – at paragraph 3.10.

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be admissible in the prosecution of a person for a criminal offence against a law of another State,
the Commonwealth or a Territory) to the Attorney General or to the appropriate authority of
the jurisdiction concerned.
(1A) Evidence of the kind referred to in subsection (1) (b) may be accompanied by any observations that
the Commission considers appropriate and (in the case of evidence furnished to the Attorney
General) recommendations as to what action the Commission considers should be taken in relation
to the evidence.
(1B) A copy or detailed description of any evidence furnished to the appropriate authority of anotherjurisdiction, together with a copy of any accompanying observations, is to be furnished to the
Attorney General.
(2) If the Commission obtains any information in the course of its investigations relating to the exerciseof the functions of a public authority, the Commission may, if it considers it desirable to do so:(a) furnish the information or a report on the information to the authority or to the Minister for theauthority, and(b) make to the authority or the Minister for the authority such recommendations (if any) relating
to the exercise of the functions of the authority as the Commission considers appropriate.
(2A) A copy of any information or report furnished to a public authority under subsection (2), together
with a copy of any such recommendation, is to be furnished to the Minister for the authority.
(3) If the Commission furnishes any evidence or information to a person under this section on theunderstanding that the information is confidential, the person is subject to the secrecy provisions ofsection 111 in relation to the information.
These “other” functions of the Commission are secondary to the principal functions set out in section 13of the Act. These functions permit the Commission to provide information to other bodies or agencies that is
appropriate to the broader landscape of law enforcement, public sector accountability and criminal
prosecution.
The Commission has the power to compel witnesses to answer questions when summoned to appear
before the Commission, regardless of whether the answers will tend to incriminate the witness, on the basisthat in doing so, their answers are not admissible against them in any later civil or criminal proceedings17 this reflects the primacy of the Commission’s fact–finding function compared to other functions, as set out in
the Act.
The Commission’s ability to assemble admissible evidence in support of prosecution action would begreater if evidence it received under compulsion such as answers to questions or documents produced
during hearings was admissible in subsequent criminal proceedings. However, long-established andfundamental principles of the criminal justice system, particularly the privilege against self–incriminationand the requirement that admissions and confessions be made voluntarily, would have to be set aside inorder to allow the admissibility of such evidence.
Section 17 of the Act also provides that the Commission is not bound by the rules or practice of evidence
and can inform itself on any matter in such manner as it consider appropriate. This section also reflects therole of the Commission as a fact–finding body and assists in avoiding unnecessary formalism in the manner itgoes about this task especially during the conduct of its hearings.
The Commission is like any other investigative agency that collects information or evidence with a view

17 Section 37 of the Act.

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to supporting prosecution action. The Commission also has available to it other extensive means forcollecting admissible evidence in later prosecution proceedings such as powers under the Listening Devices
Act 1984 (NSW), the Telecommunications (Interception) Act 1979 (Cth) and search warrant powers underthe ICAC Act.

VI. PUBLIC INTEREST TO BE PARAMOUNT - SECTION 12 ICAC ACT
Section 12 of the Act states:

In exercising its functions, the Commission shall regard the protection of the public interest and theprevention of breaches of public trust as its paramount concerns.

VII. DEFINITION OF CORRUPT CONDUCT – SECTIONS 8 AND 9 ICAC ACT
The definition of corrupt conduct is provided for in sections 8 and 9 of the Act.
The definition is very broad and covers a wide range of conduct not necessarily amounting to criminal
conduct.
Section 8(1) provides a follows;

8. General nature of corrupt conduct(1) Corrupt conduct is:(a) any conduct of any person (whether or not a public official) that adversely affects, or that could
adversely affect, either directly or indirectly, the honest or impartial exercise of official functions
by any public official, any group or body of public officials or any public authority, or(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of
any of his or her official functions, or(c) any conduct of a public official or former public official that constitutes or involves a breach of
public trust, or(d) any conduct of a public official or former public official that involves the misuse of information ormaterial that he or she has acquired in the course of his or her official functions, whether or notfor his or her benefit or for the benefit of any other person.
(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely
affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by
any public official, any group or body of public officials or any public authority and which could
involve any of the following matters:(a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance,
malfeasance, oppression, extortion or imposition),(b) bribery,(c) blackmail,(d) obtaining or offering secret commissions,(e) fraud,(f) theft,(g) perverting the course of justice,(h) embezzlement,(i) election bribery,(j) election funding offences,(k) election fraud,(l) treating,(m) tax evasion,(n) revenue evasion,(o) currency violations,(p) illegal drug dealings,(q) illegal gambling,212

SEVENTH COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICEVISITING EXPERTS(r) obtaining financial benefit by vice engaged in by others,(s) bankruptcy and company violations,(t) harbouring criminals,(u) forgery,(v) treason or other offences against the Sovereign,(w) homicide or violence,(x) matters of the same or a similar nature to any listed above,(y) any conspiracy or attempt in relation to any of the above.
The second limb - or test of seriousness - of the definition is provided for in section 9 of the Act. It
provides a follows:

9. Limitation on nature of corrupt conduct(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve:(a) a criminal offence, or(b) a disciplinary offence, or(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating theservices of a public official, or(d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament---a
substantial breach of an applicable code of conduct.
(2) It does not matter that proceedings or action for such an offence can no longer be brought orcontinued, or that action for such dismissal, dispensing or other termination can no longer be taken.
(3) For the purposes of this section:“applicable code of conduct” means, in relation to:(a) a Minister of the Crown---a ministerial code of conduct prescribed or adopted for the purposesof this section by the regulations, or(b) a member of the Legislative Council or of the Legislative Assembly (including a Minister of the
Crown)---a code of conduct adopted for the purposes of this section by resolution of the House
concerned.
“criminal offence” means a criminal offence under the law of the State or under any other law
relevant to the conduct in question.
“disciplinary offence” includes any misconduct, irregularity, neglect of duty, breach of disciplineor other matter that constitutes or may constitute grounds for disciplinary action under any law.
The key concepts behind this definition are honesty, impartiality and upholding the public trust. These
remain as relevant today as when the ICAC Act was first enacted.
The current definition of corrupt conduct is not limited to conduct that could constitute or involve a
criminal offence.
As recognised by those who drafted the original legislation, and those responsible for subsequent
amendments, notions of corrupt conduct are wider than the commission of a crime.
Whilst the commission of a crime, within the context of ss. 8 and 9 of the ICAC Act, continues to be an
important indicator of corrupt conduct, there is other conduct which, although not necessarily amounting tocriminal conduct, may, depending on the circumstances, nevertheless be widely regarded as no less corrupt.
For example, the intentional release of confidential tendering information by a public official to a privatecompany, which allows that company to gain an unfair advantage over its competitors, may not necessarily
constitute a criminal offence. Nevertheless, such conduct would likely involve a disciplinary offence orgrounds for termination of employment and would be regarded by ordinary members of the community as
being corrupt. It is certainly the type of conduct that the Commission should have jurisdiction to investigate
and determine.

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A. Capacity to Make Corrupt Conduct Findings
Under section 13 of the Act as set out above, the Commission is specifically empowered to make findingsof corrupt conduct.
The ability to make findings of corrupt conduct is highly relevant to the Commission’s deterrent andeducative roles.
The ability to make findings as to whether or not particular conduct is corrupt has become wellestablished in the public mind. Any removal or diminution of this power is likely to create public unease.
Furthermore, the seriousness of the conduct in question, and the effect of that conduct, cannot be
determined exclusively by reference to whether or not it may, in all the circumstances, constitute a criminal
offence.
It is often argued that the use of a two-track system may avoid criticism that the “stigma” of corrupt
conduct may be attached to individuals whose actions are relatively minor. What constitutes “minor”
conduct, in the context of corruption, is largely subjective. As demonstrated below the process adopted by
the Commission in considering whether a finding of corrupt conduct is available is unlikely to produce unjust
results or to be based on “minor” conduct. In any event it is not clear that labelling a person’s conduct as“official misconduct” etcetera would ultimately produce any less of a “stigma”.
Some of the concerns previously expressed about the ability of the Commission to make findings ofcorrupt conduct appear to arise out of a concern that conduct might be labelled as corrupt conduct where it“technically” comes within the definition, even though the person whose conduct is in question acted
innocently and without any corrupt intention. These concerns however do not reflect the reality of theprocess that the Commission must follow in order to form an opinion that corrupt conduct has occurred.

B. Findings of Fact and Findings of Corrupt Conduct
In accordance with the judgement of the NSW Court of Appeal, Mahoney JA in Greiner -v- ICAC (1992)
28NSWLR125 (in particular pages 155-158, 167-169), the process by which a determination of corrupt
conduct is made in a particular case involves three essential steps. First, findings need to be made as to thebasic facts. Secondly, there is a need to classify the factual matters in order to be able to determine whether
the conduct in question falls within one of the categories in s. 8(1) and/or s. 8(2) of the ICAC Act. The third
stage is to determine whether the conduct then satisfies s. 9 of the ICAC Act.
Findings of fact are only made after taking into account the totality of evidence before the Commission,and those affected by that evidence have been afforded an opportunity to respond to that evidence. Those
responses are part of the material considered in drawing conclusions as to the factual matters. In reachingsuch conclusions, the civil standard of proof is applied however, the degree of persuasion necessary toestablish findings on the balance of probabilities will vary according to seriousness of the issues involved(see Briginshaw –v- Briginshaw (1938) 60CLR336).
While often referred to as the civil standard of proof it is by no means an easy standard to meet. The
Commission recently expanded upon this standard and what it involved:

As has already been observed, the ICAC does not sit as a criminal or civil court. It does not determine
the rights of any person. Nevertheless, a finding of corrupt conduct against an individual is a serious
matter. It may affect the individual’s reputation. It is appropriate to observe that the standard of proof tobe applied by the ICAC in making findings of fact and findings of corrupt conduct is the civil standard,
proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be
determined. The test has been said to be whether the issue has been proved to the reasonablesatisfaction of the Tribunal, such satisfaction not being produced by inexact proofs, indefinite testimony
or indirect inferences: Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 362; Rejfek -v- McElroy (1965)
112 CLR 517 at 521. Before an adverse finding of fact is made or a finding of corrupt conduct is reached,
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Bannister -v- Walton (1993) 30 NSWLR 699 and 711-712 (at p13)18.
Findings of fact are only made after taking into the account the seriousness of the issues and the degreeof persuasion required to reach such conclusions.
Partiality and the exercise of official functions is potentially a broad concept. A decision which favours aperson may be regarded as “partial” but should not come within s.8(1) simply because it is “wrong” inadministrative law terms, or negligent in a civil law sense. In considering s.8, the Commission takes into
account the state of mind of each person whose conduct is in question.
The Commission considers whether there was an actual or imputed appreciation that what was being
done was, in the context in which it was done, carried out for a reason that is unacceptable (see Mahoney JA
at 162 in Greiner). This does not, however, mean that simply because a person does not at the relevant time
believe that his or her conduct is corrupt, the Commission is precluded from making an adverse finding (seeGleeson CJ at 140 in Greiner). Apart from dishonest conduct, conduct beyond negligence but not amounting
to dishonesty in the accepted meaning of that term, may be conduct within s.8(1) of the ICAC Act if, forexample, it amounts to a reckless disregard of indicators of dishonest or partial behaviour of others. Conflict
between an official’s duty and his personal interest is also significant. Emphasis was placed on this latteraspect by Gleeson CJ in Greiner.
Finally, it is necessary to consider s.9 of the ICAC Act. It is appropriate to apply the provisions of s.9 to
conduct found to be in s.8 in accordance with the approach of Priestley JA outlined in Greiner where by theword “could” was construed as meaning “would if proved”. In relation to s.9(1), the approach is to consider
whether, in the case of a criminal charge which would be tried before a jury, the facts found by theCommission would, if the jury were to accept them as proved beyond reasonable doubt, constitute theoffence charged. The approaches required in relation to s.9(1)(b), s.9 (1)(c) and s.9(d) are similar.
The above illustrates the seriousness and care with which the Commission approaches its capacity tomake findings of corrupt conduct.

VIII. JURISDICTION OF THE ICAC
The key definitions relating to the jurisdiction of the Commission under the ICAC Act are “public official”
and “public authority which are to be found in section 3 of the Act. They are defined as follows:“Public authority” includes the following:
(a)
(b)
(c)
(d)

a Government Department, Administrative Office or Teaching Service,a statutory body representing the Crown,a declared authority under the Public Service Act 1979,
a person or body in relation to whom or to whose functions an account is kept of administration or
working expenses, where the account:(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or(ii) is required by or under any Act to be audited by the Auditor-General, or(iii) is an account with respect to which the Auditor-General has powers under any law, or(iv) is an account with respect to which the Auditor-General may exercise powers under a law
relating to the audit of accounts if requested to do so by a Minister of the Crown,(e) a local government authority,(f) the Police Force,(g) a body, or the holder of an office, declared by the regulations to be a body or office within thisdefinition.

“Public official” means an individual having public official functions or acting in a public official capacity,and includes any of the following:

18 Report into conduct of the Hon. J Richard Face, (June 2004) at p 46.

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(a)
(b)
(c)
(d)
(e)

the Governor (whether or not acting with the advice of the Executive Council),a person appointed to an office by the Governor,a Minister of the Crown, a member of the Executive Council or a Parliamentary Secretary,a member of the Legislative Council or of the Legislative Assembly,
a person employed by the President of the Legislative Council or the Speaker of the Legislative
Assembly or both,(f) a judge, a magistrate or the holder of any other judicial office (whether exercising judicial, ministerial
or other functions),(g) an officer or temporary employee of the Public Service or a Teaching Service,(h) an individual who constitutes or is a member of a public authority,(i) a person in the service of the Crown or of a public authority,(j) an individual entitled to be reimbursed expenses, from a fund of which an account mentioned inparagraph (d) of the definition of “public authority” is kept, of attending meetings or carrying out thebusiness of any body constituted by an Act,(k) member of the Police Force,(k1) an accredited certifier within the meaning of the Environmental Planning and Assessment Act 1979,(l) the holder of an office declared by the regulations to be an office within this definition,(m) an employee of or any person otherwise engaged by or acting for or on behalf of, or in the place of, oras deputy or delegate of, a public authority or any person or body described in any of the foregoingparagraphs.

The Commission was established to investigate, prevent and educate in respect of corruption affecting
the NSW public sector. This role continues to remain relevant.
To fulfil this role the Commission was given jurisdiction not only over public officials and publicauthorities but also over others whose conduct could or does adversely affect either directly or indirectly thehonest or impartial exercise of official functions by a public official or public authority. It is important to itsrole that the Commission continue to have jurisdiction to examine the conduct of those who seek to corrupt
public officials or public authorities.

A. Government Businesses
As in other jurisdictions throughout the world a number of Government service providers have been
corporatised (e.g. electricity generators, water, rail services). In NSW the State Owned Corporations Act
1989 covers State owned corporations. Section 36(2) of that Act provides:
For the purposes of the Independent Commission Against Corruption Act 1988:(a) State owned corporations and their subsidiaries are public authorities, and(b) directors, officers and employees of State owned corporations or their subsidiaries are public
officials,
but s.23 of (the ICAC Act) does not apply in relation to a Company State Owned Corporation or any of its
subsidiaries or to persons who are public officials by virtue of their connection with a Company State
Owned Corporation or any of its subsidiaries.
Schedule 1 of the State Owned Corporations Act operates as a list of “Company State Owned
Corporations”. Presently, it does not appear that there are any such organisations.
The Auditor General also has certain powers in respect to State owned corporations (e.g. s.24 and s.24Aof the State Owned Corporations Act) which, irrespective of s.36, would bring State owned corporations
within the definition of “public authority” in s.3 of the ICAC Act.
Although set up as corporations, these organisations remain in public ownership and are accountable tothe public, through the State Government, for the way in which they exercise their functions and utilise
their resources. Whilst these organisations continue to be in public ownership it is appropriate that theCommission continue to have jurisdiction over them.

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B. Outsourced Government Functions
The current trend for contracting and tendering out Government services, and for privatising or
corporatising Government enterprises, raises general questions about the continuing accountability for
those services.
In considering the Commission’s jurisdiction over contracted–out Government services, care needs to betaken to ensure that there remains a nexus between the conduct being investigated and public official
functions. It is not, and should not be, the role of the Commission to investigate conduct in the private sector
where such conduct has no nexus with the exercise of public official functions.
In this context it is also important to note that the meaning of “public official functions” is changing.
Some services, which were traditionally seen as the province of Government are being or have been
completely privatised. The former State Bank of NSW is an example. Since its sale by the Government,
however, the State Bank ceased to be a public authority and accordingly, and appropriately, the Commission
no longer has jurisdiction.
In other cases, however, the position will be less clear. This is particularly the case where a Government
agency remains responsible for the provision of services to the public but elects to contract–out to theprivate sector the provision of those services. In these instances the provision of the services remains apublic function.
Corruption in the provision of such services is likely to undermine confidence in the public sector agency
responsible for the service, and may have a flow-on detrimental effect on the confidence of the community inthe processes of the public sector and Government as a whole. Given that public money is being paid toprivate sector organisations to provide public services, it is important that the State have a role inoverseeing how the money is utilised and ensuring that the appropriate corruption prevention andinvestigation mechanisms are in place. This argues strongly that the Commission should continue to have arole in this area.
Contracted–out services are likely to fall within the Commission’s current jurisdiction given thedefinition of “public official” in s.3 of the ICAC Act.
This definition includes an individual having public official functions or acting in a public official capacity
and includes “…an employee of or any person otherwise engaged by or acting for or on behalf of, or in placeof, or as deputy or delegate of, a public authority or any person or body described in any of the foregoingparagraphs”.
An example of this extended definition is instructive.
The Commission also recently examined the role of WorkCover NSW outsourced accredited assessors
responsible for assessing the competency of operators of certain heavy plant and equipment (Report on
Investigation into Safety Certification and Training in the NSW Construction Industry – June 2004).
Although not directly employed by WorkCover, these assessors were fulfilling WorkCover responsibilities
and accordingly the Commission found they were exercising “public official functions” within the meaning ofs.3(1) of the ICAC Act and undertook assessments on behalf of WorkCover within the meaning of s.3(1)(m)of the ICAC Act. The Commission was also satisfied that WorkCover accredited trainers are “public officials”
as they exercise public official functions and do work on behalf of WorkCover.

C. Members of Parliament
From the time of its inception the ICAC Act was intended to apply to Members of Parliament. The
definition of “public official” specifically includes Ministers and members of the Legislative Council andLegislative Assembly, being the two houses of the NSW Parliament. This inclusion is clearly in line with
community expectations that Members of Parliament be in the same position as other public officials for the
purpose of the Commission’s jurisdiction.
Section 9(3) of the Act provides that a substantial breach of the applicable code of conduct shall bring
Members of Parliament under the jurisdiction of the Commission for the purposes of section 9(1)(b).

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Sections 9(4) and (5) apply only to Members of Parliament.
The Commission has a unique relationship with the Parliament and its Members. The nature of thisrelationship was considered by the Commission in its Report on investigation into conduct of the Hon. J
Richard Face (June 2004). In that report Assistant Commissioner Johnson quoted (p.42) with approval thefollowing comments of the current Clerk of the Legislative Assembly;

The ICAC has a special relationship with the Parliament. In general terms the Parliament created the
ICAC to protect the public interest, prevent breaches of public trust and guide the conduct of public
officials. The legislation gives the ICAC significant powers and discretion to expose corruption throughinvestigations, to prevent corruption by giving advice and developing resistance to corrupt practices inpublic sector organisations, and to educate the public sector and the community about corruption and therole of the Commission. Viewed from one perspective, the ICAC Commissioner is one among a numberof public officials who assist the Parliament to carry out its role of scrutinising the executive and thereby
holding it accountable. Such officials are often referred to as ‘officers of Parliament’ as they perform thework that the House, if it wished, might perform. The ICAC reports to Parliament and there is oversightof its work by a parliamentary committee. On the other hand, under section 3 of the ICAC Act theCommission has jurisdiction over all Members of Parliament, their staffs and the staff of Parliament
generally. In respect to the Parliament therefore the ICAC plays a number of distinct roles, including anactive role in educating members of Parliament about their rights and obligations.19
It is appropriate that the Commission continue to be able to investigate allegations of corruption
involving Members of Parliament to help maintain public confidence in our political administration andsystem of government.

IX. POWERS OF THE ICAC
Under its Act, the Commission is entrusted with extensive and coercive powers. These powers are
essential to the Commission’s performance of its functions under the Act. In particular they also reflect thenature of the Commission’s role or function as a fact–finding body charged with getting to the truth ofallegations and complaints that are referred to it. As the Commission said in its Report on the Investigation
into North Coast Development (Volume 5): 20

The rules that apply in our courts, particularly in our criminal courts, are not designed to ferret out thetruth. They serve a different purpose. From time to time, matters arise which cause concern in thecommunity, and lead to a decision that other methods are necessary. It is felt that it is more important to
get to the truth, than simply to pursue offenders. Disclosure and control are the prime goals, rather thanconviction and punishment. The opportunity for conviction and punishment will not be lost, if what isrevealed can lead to criminal proceedings, within the constraints imposed by the system, and the need tomaintain scrupulous fairness in the prosecution and trial process. But they are not the main objective.
A number of matters disclosed in the course of this Inquiry, had been the subject of rumour for years.
Traditional methods of criminal investigation lacked the powers necessary to uncover them. That is why
it was appropriate for the Commission to undertake the investigation, with the special powers conferred
by Parliament for the control of corruption in the public sector. It is the same approach that leads, fromtime to time, to the establishment of Royal Commissions.
The objective was more limited. It was to disclose sufficient to enable corrupt practices, and practices
conducive to corruption, to be identified. That disclosure enables the problem to be met, not only bychanges to the law, as are recommended, but also by public awareness, which provides the opportunity
for public attitudes to be developed, and community expectations to be made clear to all in public life.

19 “Constitutional and Parliamentary Reform Issues in the Reform of Parliament” contained in Peace, Order and Good
Government: State Constitutional and Parliamentary Reform (edited by Macintyre and Williams), Wakefield Press, 2003, at
261-262.
20 1990, pp 35-36.

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Amongst other things, the Commission is empowered to:
•
•
•
•
•
•

compel public officials to produce a statement of information (section 21)
compel any person or agency to produce documents and other material (section 22)
enter the premises occupied by a public authority and inspect and copy documents (section 23)
conduct private and public hearings (section 30)
summon witnesses to appear before its hearings (section 35) andapply for and obtain search warrants (section 40).21

The Commission may also apply for listening devices under the Listening Devices Act 1984 and fortelephone intercepts under the Telecommunications (Interception) Act 1979.

A. Power to Obtain Information – Section 21 ICAC Act
Section 21 of the Act gives the Commission the power to require, by notice in writing, a public authority
or public official to produce a statement of information. Section 21 notices are often used to obtain details ofa person’s financial situation so that the Commission can prepare a financial profile. Public officials can writein the relevant information in answer to the questions in the notice. It is not necessary for them to provide
original documentation such as bank statements, receipts, etc. For persons who are not public officials, a
section 22 notice requiring the production of relevant original documentation can be issued, however thisrequires the recipient to locate and produce original documentation, thereby causing possible inconvenienceto the individual concerned.
B. Power to Enter Public Premises - Section 23 ICAC Act
Section 23 empowers the Commission to enter public premises, inspect documents and take copies of
those documents. It provides as follows:
23. Power to enter public premises(1) For the purposes of an investigation, the Commissioner or an officer of the Commission authorisedin writing by the Commissioner may, at any time:(a) enter and inspect any premises occupied or used by a public authority or public official in thatcapacity, and(b) inspect any document or other thing in or on the premises, and(a) take copies of any document in or on the premises.
(2) (Repealed)(3) The public authority or public official shall make available to the Commissioner or authorised officer
such facilities as are necessary to enable the powers conferred by this section to be exercised.
Section 23 is potentially a very useful power. This is especially so where the Commission wishes toobtain highly relevant documents and material quickly but unlike a search warrant, it does not require any
threshold of belief or suspicion to be satisfied about the existence of documents or material on the premises
before it may be issued. It also lends itself to be executed covertly where the Commission does not wish its
interest in a matter to be known. Unlike a section 22 notice it also allows the Commission to obtain the
documents or material directly through its own inspections without having to rely on the searches of a third
party.

C. Hearings - Division 3 ICAC Act
Under its Act the Commission has the power to conduct hearings. These hearings may be either in public
or private or both. In considering whether to hold hearings as part of an investigation the Commission isrequired to have regard to what it considers relevant to the public interest under section 31 of the Act. That
section provides as follows:

21 The power for the Commissioner to issue search warrants under section 40(4) of the Act has never been exercised.

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31. Public and private hearings(1) A hearing may be held in public or in private, or partly in public and partly in private, as decided by
the Commission.
(2) Without limiting the above, the Commission may decide to hear closing submissions in private. Thisextends to a closing submission by a person appearing before the Commission or by a legal
practitioner representing such a person, as well as to a closing submission by a legal practitioner
assisting the Commission as counsel.
(3) In reaching these decisions, the Commission is obliged to have regard to any matters which it
considers to be related to the public interest.
(4) The Commission may give directions as to the persons who may be present at a hearing when it isbeing held in private. A person must not be present at a hearing in contravention of any suchdirection.
Significantly, contrary to the position with the common law applicable to the criminal courts of Australia,
the Commission during its hearings can compel a person to answer questions and produce documents
notwithstanding that to do so may tend to incriminate them in the commission of a criminal offence; in effectthe privilege against self incrimination is overridden and a witness must answers questions and produce
documents regardless.
This is provided for by section 37 of the Act as follows:

37. Privilege as regards answers, documents, etc.
(1) A witness summoned to attend or appearing before the Commission at a hearing is not entitled torefuse:(a) to be sworn or to make an affirmation, or(b) to answer any question relevant to an investigation put to the witness by the Commissioner orother person presiding at a hearing, or(c) to produce any document or other thing in the witness’s custody or control which the witness isrequired by the summons or by the person presiding to produce.
(2) A witness summoned to attend or appearing before the Commission at a hearing is not excused fromanswering any question or producing any document or other thing on the ground that the answer or
production may incriminate or tend to incriminate the witness, or on any other ground of privilege,or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(3) An answer made, or document or other thing produced, by a witness at a hearing before theCommission is not (except as otherwise provided in this section) admissible in evidence against theperson in any civil or criminal proceedings or in any disciplinary proceedings.
(4) Nothing in this section makes inadmissible:(a) any answer, document or other thing in proceedings for an offence against this Act or inproceedings for contempt under this Act, or(b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary
proceedings if the witness does not object to giving the answer or producing the document orother thing irrespective of the provisions of subsection (2), or(c) any document in any civil proceedings for or in respect of any right or liability conferred or
imposed by the document or other thing.
(5) Where:(a) a legal practitioner or other person is required to answer a question or produce a document orother thing at a hearing before the Commission, and(b) the answer to the question would disclose, or the document or other thing contains, a privileged
communication passing between a legal practitioner (in his or her capacity as a legal

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practitioner) and a person for the purpose of providing or receiving legal professional services inrelation to the appearance, or reasonably anticipated appearance, of a person at a hearing before
the Commission,
the legal practitioner or other person is entitled to refuse to comply with the requirement,
unless the privilege is waived by a person having authority to do so.
The qualification to this requirement is that any evidence given by the witness cannot be subsequently
used against them in any later criminal or civil proceedings.
A legal practitioner may be granted leave to appear on behalf of the witness who has been summonsed toappear before a hearing of the Commission.
The power to conduct hearings, particularly public hearings, has attracted considerable attention since
the Commission’s inception.
In particular, the decision whether to hold public hearings as part of an investigation is a significant one.
The Commission is well aware of the publicity and media attention that its public hearings attract and thepotential effects on the reputation of those appearing as witnesses before them. In this respect, when
conducting public hearings the Commission is obliged to observe the rules of natural justice. The
Commission’s obligation in this regard follows from the possibility that a hearing might result in an adverse
report and consequent harm to the reputation of persons against whom allegations are made.22
In determining whether to hold public hearings the Commission will have regard to such issues as:••••

the investigative purpose and value of hearings
their deterrent effecttheir educative value, particularly in addressing significant, widespread or systemic corruption
the accountability and transparency of the Commission in the conduct of its investigations.

In deciding to hold private hearings, the Commission may have regard to:••••

the need to define the issues to be further investigated
the integrity of the investigation, particularly the opportunity to test evidence to establish its
potential value to the investigation, and obtain evidence from a number of persons without them
being aware of evidence given by others
protection of reputations from unnecessary damage
potential impact on other investigations or proceedings.

In considering the role of public hearings for the Commission, it must be remembered that theCommission is not a judicial body. It is an investigative body, and hearings are conducted with that function inmind.
1. Public Versus Private Hearings
To assist in determining whether it is in the public interest to hold public hearings, the Commission has
regard to a list of possible considerations. These considerations include:•••

the integrity of the investigation (it may be prejudicial to the investigation to publicly divulge the fact
the Commission is conducting an investigation, to identify the witnesses or make known the extent
of evidence obtained)
protection of reputation from anticipated but untested or unverified evidence
whether information is being sought at a preliminary stage for the purposes of determining whether
further investigative effort is required. In this regard if it is ultimately decided not to proceed further
there is no requirement for the Commission to prepare a report in relation to the matter (see s.74(3)22 ICAC v. Chaffey (1993) 30 NSWLR 21 per Gleeson CJ at 30.

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•
•

•
•

of the ICAC Act)the need to protect the identity of a witness or an informant
the requirements of s.18(2) of the ICAC Act which requires that where there are proceedings for anindictable offence conducted by or on behalf of the Crown, in order to ensure that the accused’s rightto a fair trial is not prejudiced, the Commission must, to the extent it thinks necessary, ensure that,as far as practicable, any hearings are conducted in private during the currency of the proceedings
any application made by, or on behalf of those appearing before the Commission that it is in the public
interest for the hearing to be conducted in private
whether the hearing involves closing submissions. Section 31(2) of the ICAC Act provides that theCommission may decide to hear closing submissions in private.

The possible advantages of holding hearings in public include:
•
•
•
•
•
•

public hearings allow a wide exposure of corrupt conduct
public hearings are an important mechanism for educating the public about corruption
public hearings provide a mechanism for public officials to be publicly accountable for their actions
public hearings can be an important deterrent to corrupt conduct. If people know their conduct may
be subject to public exposure they may be less likely to engage in corrupt activity
public hearings sometimes encourage others to come forward with information, including
information relevant to the investigation
public hearings provide transparency to the Commission’s fact–finding process and as such enhance
public confidence in that process.

Private hearings allow the detection of inconsistencies in evidence given by different parties, as
witnesses give their evidence unaware of what else might have been said by other parties. This isparticularly the case where the investigation plan involves hearing from key individuals towards the end of ahearing to test their evidence against that provided by other witnesses earlier in the proceedings.
There have been occasions where witnesses have given much more full and frank evidence in private
than when they have been recalled to give evidence in public hearings. This may be due to concern or
trepidation about having their evidence exposed to colleagues and associates by way of a public forum. It has
also been observed that some witnesses at public hearings seem to play up to the media or the publicgallery.
Hearings are merely one tool in the investigative arsenal for the Commission. As previously indicatedthe Commission is not a court and nor does it attempt to operate like one (such as requiring the equivalent
standard of proof beyond reasonable doubt). The Commission’s hearings are part of the investigative
process. A court only hears matters at the conclusion of an investigation where there are grounds toconsider a case. As an investigative tool, it will not always be appropriate for the Commission to conducthearings in public.
2. Private Hearings – Public Reports
The Commission is required under its Act to prepare a report to Parliament of the results of its
investigation where it has conducted public hearings.
It should also be appreciated that the Commission has the capacity to conduct hearings in private but
produce a public report to account for the findings made in the matter.
The power to conduct public hearings is particularly important in carrying out the Commission’sfunctions. Public hearings are perhaps best used to highlight corrupt conduct that may be significant,systemic or widespread. Given that public hearings involve significant Commission resources, considerationmust also be given to maximizing the impact of public hearings, particularly in addressing systemic
corruption risks.
The Commission employs public hearings as appropriate, but undertakes other measures, including thecollection and dissemination of evidence to the appropriate authorities in individual instances, and the
conduct of systemic reviews of corruption risks, as a means of addressing and preventing corruption. The

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pre-occupation with the Commission’s public hearings must also be seen against the regularity with which
they are now held. As previously noted, for the 2002/03 reporting year, the Commission conducted just 18
days of public hearings involving four investigations.
A further relevant consideration is that public hearings are of little value unless sufficient evidence isgathered beforehand. Unless they are underpinned by effective prior investigative work, public hearings will
become a blunt tool for investigating corruption.
It is often said that the Commission’s hearing powers amount to no more than “naming and shaming”.
This suggestion fails to understand the roles that hearings play in the Commission meeting its objectives
and carrying out its functions under the Act, as outlined in this section.
The Commission submits that the current regime, where it must consider the public interest in making
the decision to hold hearings, as well as the requirements of procedural fairness established by the Courts23
is sufficient to ensure consideration is given to the protection of the rights of individuals. Furthermore, thedecision to hold a public hearing does not in itself involve a denial of natural justice.24
In deciding whether to hold public hearings, the Commission also gives consideration to the possibility ofinterfering with pending criminal proceedings. While the Commission is given authority by s.18 of the ICAC
Act to run public hearings alongside court proceedings, it is also required to ensure that as far as possible
Commission hearings do not prejudice proceedings for Crown prosecution of indictable offences.
Section 18 provides that:(1) The Commission may do any or all of the following:(a) commence, continue, discontinue or complete any investigation,(b) furnish reports in connection with any investigation,(c) do all such acts and things as are necessary or expedient for those purposes,
despite any proceedings that may be in or before any court, tribunal, warden, coroner, Magistrate, justiceof the peace or other person.
(2) If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the
Crown, the Commission must, to the extent to which the Commission thinks it necessary to do so toensure that the accused’s right to a fair trial is not prejudiced:(a) ensure that, as far as practicable, any hearing or other matters relating to the investigation are
conducted in private during the currency of the proceedings, and(b) give directions under section 112, having effect during the currency of the proceedings, and(c) defer making a report to Parliament in relation to the investigation during the currency of theproceedings.
(2A) Subsection (2) does not apply:(a) (in the case of committal proceedings) before the commencement of the committal hearing, thatis, the commencement of the taking of the evidence for the prosecution in the committal
proceedings, and(b) (in any other case) after the proceedings cease to be proceedings for the trial of a person before
a jury.
(3) This section has effect whether or not the proceedings commenced before or after the relevant
investigation commenced and has effect whether or not the Commission or an officer of theCommission is a party to the proceedings.
In practical terms, court proceedings are one of the matters given consideration in determining whether

23 ibid at ICAC v. Chaffey (1993) 30 NSWLR 21 per Gleeson CJ at 30.
24 ibid at 31.

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it is in the public interest to hold public hearings. In fact, in conducting its investigations prior to hearings,
the Commission has due regard to any relevant court proceedings that may be under way at the time.
It has been suggested that public hearings may operate to poison the evidence that may be relied upon inany subsequent prosecution proceedings. This suggestion appears to be based on the notion that the
publicity that public hearings attract somehow taints the evidence that might be adduced in any later
prosecution proceedings.
The Commission submits that it is highly unlikely that public hearings could have this effect on evidence
adduced at those hearings. There are different rules governing the admissibility of evidence during criminal
proceedings and there is often a considerable delay (often between one and two years) between theCommission’s public hearings, its report and any later criminal proceedings flowing from its
recommendations.

X. ACCOUNTABILITY MECHANISMS OF THE ICAC
As can be appreciated, the Commission is entrusted with extensive and significant coercive powers.
Those powers reflect the Commission’s role as a fact–finding body and are essential to assist theCommission in its primary functions of investigating and preventing corrupt conduct. As a corollary, theCommission accepts that it must be held accountable for the exercise of those powers.
Under the current provisions of the Act, there are two major mechanisms by which the Commission isheld accountable in exercising its powers under the Act. These are:••

The Parliamentary Joint Committee
The Operations Review Committee

There are other mechanisms of accountability or external supervision aside from those found in the Act
such as judicial review and legislative accountability (for example, various inspection powers given to the
NSW Ombudsman in relation to powers under other legislation such as the Telecommunications
Interception Act 1979 and the Law Enforcement (Controlled Operations) Act 1998.

A. The Parliamentary Joint Committee (“the PJC”)
The PJC is provided for under Part 7 of the Act. It is comprised of eleven members drawn from bothhouses of the NSW Parliament.
The primary functions of the PJC are to:
•
•
•
•
•

monitor and review the exercise by the Commission of its functions
report to both Houses of Parliament matters appertaining to the Commission or connected with theexercise of its functions to which, the attention of Parliament should be directed
examine each annual and other report of the Commission and report to both Houses of Parliament on
any matter appearing in, or arising out of, any such reportexamine trends and changes in corrupt conduct, and practices and methods relating to corrupt
conduct, and report to both Houses of Parliament any change which the Joint Committee thinks
desirable to the functions, structures and procedures of the Commission
inquire into any question in connection with its functions that is referred to it by both Houses ofParliament, and report to both Houses on that question.

In particular the provisions of s.64(2) of the Act should also be noted. That section provides as follows:(2) Nothing in this Part authorises the Joint Committee:(a) to investigate a matter relating to particular conduct, or(b) to reconsider a decision to investigate, not to investigate or to discontinue investigation of aparticular complaint, or(c) to reconsider the findings, recommendations, determinations or other decisions of theCommission in relation to a particular investigation or complaint.

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As the PJC itself has noted, the rationale for this is clear;

The Committee [PJC] does not have the ability to review the Commission’s decisions and findings, toinvestigate, or to examine the legality and propriety of the Commission’s actions with respect toparticular complaints. It is the Committee’s opinion that these statutory restrictions imposed upon theCommittee under s. 64(2) are appropriate. Committee members have neither the qualifications nor
expertise to conduct investigations, nor does the Committee have the resources to serve as an appeal
mechanism for individuals dissatisfied with the decisions and findings of the Commission.
Moreover, it is the Committee’s opinion that since Committee Members (in common with all Membersof Parliament) fall within the investigative jurisdiction of the ICAC, it would be inappropriate forMembers to be involved in investigating complaints against the ICAC. The Committee is concerned thatsuch a circular oversight system could give rise to allegations of either conflicts of interest or “paybacks”
for previous investigations (paragraph 2.2.3).
It would be undesirable for a class or category of public officials subject to the jurisdiction of the Act to bealso able to investigate or review particular investigative decisions taken by the Commission in relation topersons from that same class or category.

B. The Operations Review Committee (“the ORC”)
The ORC has eight members, comprising the Commissioner (chairperson), Assistant Commissioner
nominated by the Commissioner (the Deputy Commissioner), one 25 person appointed on therecommendation of the Attorney General and four26 persons appointed on recommendation of the Minister
and with the concurrence of the Commissioner. Pursuant to s.60 of the ICAC Act, the Commissioner of
Police is also a statutory member of the ORC. Under the provisions of the Police Act 1990, this function
cannot be delegated.
Under the current provisions of the Act the ORC operates as a consultative mechanism, providing advice
to the Commissioner on whether the Commission should investigate a complaint or discontinue theinvestigation of a complaint. The functions of the ORC are provided for under part 6 of the Act. Section 59(1)in particular provides as follows:(a) to advise the Commissioner whether the Commission should investigate a complaint madeunder this Act or discontinue an investigation of such a complaint;(b) to advise the Commissioner on such other matters as the Commissioner may from time to timerefer to the Committee.
It should be noted however that while the ORC must be consulted in relation to complaints made unders.10 of the Act there is no statutory requirement to consult the ORC regarding complaints referred to it byprincipal officers unders.11 of the Act nor any matter received by the Commission that is categorised as“Information” rather than as a complaint. The Commission itself makes the determination on classifying or
categorising a complaint.
It is also important to bear in mind that the ORC’s function is to provide advice, and that advice is notbinding on the Commissioner.
Notwithstanding these statutory provisions, it has been the practice of the Commission to refer s.11
complaints to the ORC where those complaints have proceeded to a formal investigation or what theCommission now refers to as a Category 1 investigation, that is the more serious and lengthier complex
investigations. A schedule of matters that are also classified as ‘Information’ is also provided at each meetingof the ORC.

25 Governor appointed position.
26 Governor appointed positions.

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Under the Act the Commissioner must also meet with the ORC at least every three months. Originally
the ORC met once every month, however, since March 2002 the ORC has met every two months, its
members noting the increased quality and high standard of reports that it now receives.
The statutory relationship between the ORC and the Commission has, however, been supplemented bybroad terms of reference which extends its functions beyond those provided for under the Act.

XI. CONCLUSIONThe ICAC continues to play an important and strategic part in public administration and the body politic
generally in New South Wales. Reference has already been made to the importance of the dual role ofcorruption investigation and prevention – the two activities are inextricably linked. The success of theprevention function depends on it being linked to that of investigation.
Bodies like the ICAC must however continue to be ever vigilant in identifying and anticipating new andchanging forms of corruption and be innovative in their response to dealing with this. They must also be
prepared to accept that their success in carrying out their functions and tasks will not always meet with
universal approval, often least of all from their political masters who create them. It remains, however, amost noble and essential pursuit necessary to any system of fair and equitable public administration.

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