ICAC comes to NT
“ICAC plan close to fruition” and “ICAC could peel layers off corrupt NT actions” were two headlines appearing on successive days in the NT News on 28 and 29 June 2017. Draft legislation for the establishment of an NT ICAC has been released for consultation. What does it contain and what does it mean for you?
The Northern Territory Government has released for consultation the draft legislation for the establishment of an Independent Commissioner Against Corruption (“ICAC”). In order to help understand the draft the Government has also released some Explanatory Notes. All of this can be found on the NT Attorney General’s website: www.justice.nt.gov.au. The closing date for comments/submissions is 26 July 2017.
Underpinning the intent of the legislation is a desire to prevent or minimise the occurrence of “improper conduct” and to improve public confidence that such conduct will be detected and dealt with. A Commissioner will be appointed who will have very broad powers to investigate, report and, if necessary, facilitate prosecutions. Because of the very broad definitions proposed as to what might amount to “improper conduct” the legislation has the potential to impact on anyone whose activities intersect with any arm of Government.
For instance, if you contract with or use the services of any public body, or even tender for public work, the legislation will apply. If you sit on a board or committee that has or seeks public funding, you need to be aware of what activities the legislation will cover. As currently drafted the legislation will also apply to conduct occurring even before the legislation becomes law. In other words past events can be the subject of scrutiny by ICAC.
What amounts to “improper conduct”? The legislation defines this to include:
- corrupt conduct;
- unsatisfactory conduct;
- anti-democratic conduct.
Corrupt Conduct: This can include in the case of public officers, dishonesty, failing to manage conflicts of interest, breach of public trust, illegal acts in the performance of official functions, inappropriate conduct in relation to official information and conduct that effects the honest and effective performance at official functions. However, even if you are not a public official you could be guilty of corrupt conduct if you engage in collusive tendering, provide false information, misappropriate public resources, benefit from the dishonest use of public resources or dishonestly obtain employment as a public officer.
Misconduct: This can involve conduct that would give rise to disciplinary action.
Unsatisfactory Conduct: Involved illegality, negligence and incompetence.
Anti-democratic Conduct: This is designed to target conduct surrounding elections at all levels of Government.
The ICAC will be given very broad powers to investigate. These include the power:
- to require information;
- inspect records;
- to require a person to attend for examination;
- to enter premises and execute search warrants.
Investigations can be conducted both in private and as part of a public inquiry. There is the ability to be legally represented but generally speaking you must answer all questions even if they tend to incriminate you. Confidentiality and privilege can only be claimed or maintained in very limited circumstances.
The ICAC must issue guidelines for mandatory reporting of improper conduct and can conduct reviews to determine compliance. It can issue reports as to the outcome of audits and/or the existence or otherwise of systemic issues it has identified as well as reporting on the outcome of investigations. These reports can be made to a Minister/Government/Parliament or even made public. It can make public statements and or recommendations as to prosecution or other action.
There are significant protections in the legislation for Whistleblowers including the ability to award compensation for retaliatory action if taken against a Whistleblower.
Whilst the concept of an ICAC is new in the NT, they do exist in other jurisdictions. As an example of the nature, extent and breadth of complaints and investigations that may be expected once the ICAC is up and running, in the 2015-16 year the South Australian ICAC received a total of 1063 complaints and reports. By far the vast majority related to complaints relating to state government instrumentalities with local government the next. The principle nature of matters investigated related to allegations of abuse of power with theft and misappropriation coming next. These figures have been increasing annually during the short life of the SA ICAC.
We encourage everyone who has an interest or concern as to what the ICAC may or can do to visit the Government website and review the legislation and avail themselves of the opportunity to raise those concerns during the consultation period. We expect that the NT ICAC will be up and running in the new year.