NSW Independent Commission Against Corruption Summons – What You Need To Know About ICAC

What is the NSW Independent Commission Against Corruption?

The New South Wales Independent Commission Against Corruption (‘ICAC’) is an independent commission which seeks to investigate and prevent corruption in the public sector. This is distinct from the crime commission watchdog.

ICAC was established in 1988 and is governed by the Independent Commission Against Corruption Act 1988 (NSW).

Matters investigated by the Commission must involve ‘corrupt conduct’ alleged to involve or affect a public official or public authority in NSW.

Examples of public officials include NSW Magistrates, Judges, local councillors, and members of Parliament.

It also includes those employed by the Parliament, government departments, statutory authorities, and local councils in NSW.

However, ICAC is generally unable to examine the conduct of NSW police officers, unless the alleged corruption also involves other public officials who are not police.

The Law Enforcement Conduct Commission is responsible for investigating incidents related to NSW Police and officers of the NSW Crime Commission.

Generally, ICAC is unable to investigate matters related to the federal government or its officers, interstate, or foreign matters, or the conduct of private sector companies or individuals, unless the conduct also involves NSW public officials.

Public authorities include state government agencies, administrative offices, or teaching services as well as local government authorities.

The Act defines ‘corrupt conduct’ as:

1. Any conduct of a public official that constitutes or involves the dishonest or biased exercise of any of their official functions,
2. Any conduct 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,
3. Any conduct of a public official or former public official that constitutes or involves a breach of public trust,
4. Any conduct of a public official or former public official that involves the misuse of information or material that they acquired in the course of their official functions, whether or not for their benefit or for the benefit of any other person.

It provides that corruption could involve bribery, blackmail, obtaining or offering secret commissions, fraud, theft, perverting the course of justice, embezzlement, election fraud, tax evasion, and forgery.

It also provides that it could involve collusive tendering, fraud in relation to applications for licences, permits or other authorities, dishonestly obtaining or benefiting from the application of public funds, defrauding the public revenue, and fraudulently obtaining employment as a public official.

However, the Commission is limited to investigating and monitoring matters which could constitute or involve:

• a criminal or disciplinary offence,
• conduct that could result in the dismissal of a public official,
• conduct considered a substantial breach of the code of conduct applicable to Parliament.

When a matter of alleged corruption arises, ICAC may request that the agency alleged to be involved in the matter conducts an internal investigation, provide corruption prevention advice to the concerned agency, and make any further assessments regarding whether further action is required.

ICAC may commence a formal investigation, which can involve public and private hearings where witnesses can be compelled to give evidence.

What Happens if ICAC Summons Me?

When considering whether to hold a public or private inquiry, the Commission will consider the benefit of exposing the issue to the public, the seriousness of the allegation or complaint being investigated, any risk of undue prejudice to a person’s reputation and preserving their privacy.

Section 35 of the Act provides the Commission with the power to summon a person to appear before the Commission at a compulsory examination or public inquiry to give evidence and/or to produce such documents or other things.

It is compulsory to attend once you have received such a summons, with the Commissioner able to issue an arrest warrant if they are satisfied you will not attend and may be making arrangements to leave the State.

A maximum penalty of a $2,200 fine and/or 2 years imprisonment is applicable for a failure to attend, as per section 86.

You will also be required to answer any question relevant to an investigation put to you or produce any document or other thing in your custody or control, as required by the summons.

In NSW, there is generally a right to silence permitting accused persons to refuse to conduct a formal interview with police, answer their questions, provide a statement, information or give evidence at court.

However, this is not relevant to ICAC proceedings, meaning you will be required to answer questions truthfully, even if this may lead to self-incrimination.

A maximum penalty of a $22,000 fine and/or 5 years imprisonment is applicable to providing false or misleading evidence that you know is false, misleading, or untrue, as per section 87.

As per section 37(2), a witness summoned by the Commission is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate them, on any other ground of privilege, on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

Notably, any answers provided, or document or other thing produced by a witness is generally not admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

Despite this, if the witness does not object to giving the answer or producing the document or other thing, any answer, document, or other thing provided is not inadmissible in any civil or criminal proceedings or in any disciplinary proceedings.

As well as compel witnesses, ICAC is also able to enter properties occupied by a public authority or public official to inspect and copy documents, obtain warrants to search properties, and use surveillance devices and intercept telephone calls.

At the end of an investigation, if ICAC deems that a public official has acted corruptly, the matter will be referred to the Director of Public Prosecutions to consider whether criminal charges should be laid.

This is due to the fact that ICAC does not have the power to prosecute people and will instead rely on the DPP to conduct proceedings once they have reviewed material provided by the Commission.

Is There a Federal ICAC?

All Australian states and territories have similar organisations to ICAC, however a main difference identified when compared to NSW is that they hold fewer public inquiries and have less scope to make findings of corruption.

The bodies in South Australia and the Northern Territory are similarly referred to as an Independent Commissions Against Corruption, whereas in the ACT and Tasmania their respective bodies are called Integrity Commissions.

In Queensland and Western Australia, they have Crime and Corruption Commissions, and in Victoria it is the Independent Broad-based Anti-corruption Commission.

Discussions of instituting a federal commission to investigate corruption were a focal point at the last federal election, with Prime Minister Anthony Albanese promising to do so.

The legislation to establish the ‘National Anti-Corruption Commission’ was passed through parliament at the end of 2022 and is set to be established by mid-2023.

The National Anti-Corruption Commission (‘NACC’) will investigate corrupt conduct with respect to public officials such as parliamentarians, staff members of Commonwealth agencies, and the Commission itself.

It is also able to investigate Commonwealth agencies including parliamentary offices, Commonwealth entities, the High Court, and other federal organisations.

Examples of NSW ICAC Cases Investigated

Operation Keppel

The most prominent recent investigation by ICAC has been ‘Operation Keppel’ which probed the conduct of former Wagga Wagga MP Daryl Maguire, as well as former premier Gladys Berejiklian.

Berejiklian resigned in October 2021, after ICAC’s investigation extended to her, following the revelation that she had been in a secret relationship with Maguire.

Officers of the Commission had been monitoring and investigating Maguire since 2018, with the investigation made public in 2020 with various hearings.

Berejiklian was questioned at public hearings, with allegations put to her including that she failed to report Maguire’s alleged corrupt conduct to authorities, and that she had engaged in a conflict of interest when she utilised her power as Treasurer and Premier to decide money requests by Maguire.

In a tapped phone call to Maguire, Berejiklian was heard remarking: “I’ll throw money at Wagga, lots of it, don’t you worry about that.”

The main focus of the investigation was Maguire’s conduct during his tenure as the member for Wagga Wagga, which ceased in 2018.

ICAC have released that the report detailing its findings will not be prepared prior to the next state election in March and will be released until the second quarter of 2023.

Despite this, Maguire has already been charged with his involvement in a ‘cash-for-visas’ scheme.

Prosecutors will allege that he assisted in submitting visa applications false or misleading statements or information, allowing non-citizens to remain in Australia between 2013 – 2015.

Other allegations put to Maguire during the course of proceedings include that he would secure funding for projects, where he would personally receive payments from those involved.

Berejiklian has maintained that she performed her duties with ‘integrity’ and that she did not have knowledge of the full extent of Maguire’s business dealings.

Operation Spicer

Operation Spicer investigated alleged illegal donations by developers to the NSW Liberal party on the Central Coast.

The public inquiries revealed various improper payments including former Liberal MP Andrew Cornwell being offered $10,000 in a brown paper bag by the Newcastle mayor and developer, Jeff McCloy prior to the 2011 state election.

Cornwell also revealed that he had given Hilton Grugeon, another developer, a painting for Christmas which Grugeon offered to instead purchase for $10,120.

ICAC also investigated a business ‘EightbyFive’ which was found to have been utilised to disguise banned political donations, as a result of the operation.

Liberal MP and Central Coast powerbroker Chris Hartcher was the main figure connected with the business and was found by the Commission to have sought to bypass laws banning political donations from property developers, as well as caps on donations and required disclosures.

The investigation led to Cornwell stepping down from parliament, however, no one was formally charged as a result of the inquiries – despite ICAC finding 20 involved persons had broken the law.

Operation Credo

Operation Credo investigated dealings between Australian Water Holdings (‘AWH’) and Sydney Water Corporation and led to three former members of Parliament facing criminal charges.

ICAC made findings of corrupt conduct against former New South Wales Labor ministers Eddie Obeid, Joe Tripodi and Tony Kelly, as well as Kelly’s former chief of staff Gilbert “Laurie” Brown.

It found that Mr Obeid knew that a successful outcome for AWH in the proposed public-private partnership with Sydney Water Corporation would financially benefit the Obeid family in the event shares were acquired in AWH.

It also found that Obeid misused his position as a Minister to promote AWH’s desire to be granted the partnership, and rights to water infrastructure in parts of north-western Sydney.

Other findings included that Mr Tripodi, Mr Kelly, and Mr Brown were involved in preparing a Cabinet minute which aimed to achieve AWH’s (and thus Mr Obeid’s) desires. The minute was found to contain false aspects and misleading omissions.

Notably, the proposal was never granted and the then premier, Kristina Keneally stopped the minute from proceeding. If it had been agreed to, the value of AWH would have increased from about $47 million to $156 million.

Obeid, Tripodi and Kelly were all charged with misconduct in public office in 2022, with the matter currently proceeding before Downing Centre Local Court.

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