The establishment of the Independent Commissioner Against Corruption (ICAC) is a recent development for South Australia.
ICAC has extensive powers to undertake the investigation of corruption and maladministration by public officials. The ICAC’s impact will not, however, be limited to the public sector. Significantly for the private sector, its powers will extend to contractors working for a public authority.
Background
In December 2012, the Government passed the Independent Commissioner Against Corruption Bill 2012 (Act).
The Act establishes the ICAC, whose functions are as follows:
- Identify and investigate corruption in public administration.
- Assistance to inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration.
- The conduct of educational programs designed to prevent or minimise corruption, misconduct and maladministration in public administration.
Key Terms under the Act
“Misconduct” and “maladministration” are key terms under the Act that are explored in more detail below:
- Misconduct in public administration means contravention of a code of conduct by a public officer while acting in their capacity as a public officer that constitutes a ground for disciplinary action against the officer; or other misconduct of a public officer while acting in their capacity as a public officer.
- Maladministration in public administration relates to conduct by a public officer that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources, or involves substantial mismanagement in relation to the performance of official functions.
Office of Public Integrity
An Office of Public Integrity (OPI) has also been established to assist the ICAC in carrying out its functions. OPI will be the point of contact for the receipt and assessment of complaints and reports about public administration. In addition, OPI will make recommendations as to whether there is a need to further investigate the complaint or report.
Who can be investigated by the ICAC
ICAC can investigate the conduct of a public officer. In some cases an investigation of the conduct of a private individual or business would occur where the conduct raises a potential issue of public corruption. Conduct of a private individual or business that can be investigated includes bribery or corruption of a public officer. In addition, an investigation could be undertaken where there is a threat made against a public officer.
Powers of the ICAC
The ICAC has similar powers to the Australian Crime Commission, on which the South Australian ICAC is based, which include the ability to issue warrants to enter, search, seize and retain property.
At any time during an investigation, ICAC may refer a matter to the relevant law enforcement agency for further investigation and potential disciplinary action or prosecution.
An examination may be conducted by ICAC for the purpose of an investigation into corruption in public administration. The examination is conducted in private. Persons giving evidence before an examiner are entitled to legal representation.
In an examination, legal professional privilege will apply. The privilege against self-incrimination will not apply, but any answers or documents provided will not be admissible as evidence against the person in most criminal or civil proceedings provided that, before answering, the person claims their answer might lead to self-incrimination.
Implications for Employers
Early detection is vital in order to limit the spread of corrupt conduct within a business and to minimise the damage that it can cause. Supervisors and managers can often detect possible corrupt conduct through supervision and checking processes. Identifying the risks of corruption that your business is exposed to, and developing strategies to manage these risks effectively, is the first step to preventing corruption.
Effective corruption risk management and corruption prevention depends on commitment from the leadership of the business, a sound organisational culture, clear and appropriate organisational values and standards, and a comprehensive policy framework.
DW Fox Tucker Lawyers can assist your business with the development of policies, procedures and administrative systems to support efficient management and good governance following the recent commencement of the ICAC.
