Independent Commission Against Corruption (ICAC)
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Chapter 6: The Australian approach – The Role of ICAC in AustraliaIntroductionThe anti-corruption strategies that have been implemented in Australia to preventcorruptionhave been successfully implemented by the government of Australia throughvarious agencies and its strategies. These strategies include Eg Whistle-blower legislationunder the Corporations Law and in state jurisdictions such as NSW, Public InterestDisclosures Act 1994 and unaccounted proceeds provisions. Independent Commission Against Corruption (ICAC) The purpose of examiningthe NSW Commission is whether Libya can learn from the experience of the NSW ICAC infighting corruption. Libya like Australia is a federated system with political authority dividedinto Central/Federal and State/Local authority levels. This chapter is divided into two parts. The first part will examine ICAC structures, functions, powers, and its accountability mechanisms. The second part will investigate the various types of strategies employed in past years and the drivers that have controlled and led to the amending these strategies over time.6.1 The NSW Independent Commission Against Corruption6.1.1 Overview of the NSW Integrity SystemAustralia's 'National Integrity Systems' are the aggregate of organizations, laws,systems, practices and states of mind that empower and encourage honesty. New SouthWales is Australia's largest state. It was the first British settlement built up in 1788, gettingcapable government in 1855 NSW has been selected for discussion as the largest state with
the largest numbers of public sector employees and the importance of ICAC to preventingand combating corruption. The sector is governed by the Public Sector Employment andManagement Act 2002 (NSW).The NSW part of the National Integrity System assessment investigated 23 different integrityagencies and organisations, divided into three main categories.On the other hand, the same studyfootnote the study found deficiencies that could hamperpublic sector integrity, including: 1.Concerns about the independence and the capacity of the Electoral Funding Authority thatsupervised financial donations, the funding and the spending by political candidates1. Theseconcerns were built around two of this Authority’s members being nominated by the Premierand the Opposition leader. This was a problem because there would have been a conflict ofinterest between the interest of the Authority and the interest of the opposition and rulingparty. These members may have worked for the interest of the parties and not the authority.2.The absence of a legislative framework that would identify the required basic public sectoremployees’ ethical conduct, particularly after the elimination of the Public Service Board(PSB) in 1988. This left NSW the only state government that did not have a statutory code ofconduct for its public sector.23. Questions regarding the efficiency of the overall number of integrity agencies3. Fewerinstitutions would reduce repetition and increase effectiveness.4NSW investigative andintegrity agencies can be divided into three groupsthe first group with general investigativepowers are the ICAC, the Ombudsman and the Audit Office. Also important areadministrative, legal and official organizations, courts and police, and the Premier's12017.Promoting Integrity: Evaluating and Improving Public Institutions. Pp- 233-2452Ibid3Australian Commission of Law Enforcement, Police Integrity Commission, Criminal Justice Commission 4Ibid
Divisionand the Administrative Decisions Tribunal. The third group the InformationCommissioner) and in relation to particular areas, the Law Enforcement ConductCommission (formerly the Police Integrity Commission) and Health Care ComplaintsCommission.4. The lack of cooperation between the integrity institutions due to the political, legal andbudgetary limitations.55. The need for a sensible balanced approach between investigation, enforcement, educationand prevention to address public sector corruption.6These factors will be important to the consideration by Libya about what measures to put inplace to deal with corrupt practices in Libya. The next section examines the jurisdiction andeffectiveness of the NSW ICAC.6.1.2 The Independent Commission Against Corruption (ICAC) ICAC was established in 1988 and is central to prevention of corruption in NSW.ICAC commenced operations in March 1989. ICAC was formed as part of the governmentefforts to preserve and maintain the integrity of the NSW public sector7.Premier Greiner said,in introducing the ICAC Act into the Parliament that the purpose of the legislation wastorestore the integrity of the public administration and public institutions in NSWNothing ismore destructive of democracy than a situation where the people lack confidence in thoseadministrators and institutions that stand in a position of public trust. If a liberal anddemocratic society is to flourish we need to ensure that the credibility of public institutions is5IbidSmith, above n 6Brown, above n ; Smith, above n 7 Lethbridge, Henry J. Hard graft in Hong Kong: Scandal, corruption, the ICAC. Oxford University Press, 1985.
restored and safeguarded, and that community confidence in the integrity of publicadministration is preserved and justified.8Its other principal function is to prevent of such corruption through education andresearch.The ICAC’s jurisdictionis limited to the public sector only, unless such acts by theprivate sector cause an act of corruption by a public servant. This has caused issues such as inthe Cuneen caseAnother difference between both the bodies is that The Hong Kong ICAC puts strong focuson deterrence against corruption and on the other hand there is not much emphasis put by theNSW ICAC on deterrence against corruption.6.1.2.1 The organisational structure of NSW ICACThe Independent Commission Against Corruption Act 1988is the statute establishingICAC, its structure and powers. The details of the establishment of ICAC are important toany recommendations for an ICAC style body for Libya. The first year was devoted tosetting up the regulatory structure. It was always designed to be relatively small with staffnot to exceed 150.9ICAC shall consist of a Chief Commissioner and two other commissioners. The ChiefCommissioner and the Commissioners are assisted by the chief executive officer, and suchother number of directors for its divisions.In relation to the organisational structures, the Commission’s first organisationalcharter begun with the four main positions: Director of Operations, Director ofAdministration and Public Affairs, Commission Secretary and the General Counsel. Together8 Griffith, G., 2015.ICAC v Cunneen: the power to investigate corrupt conduct. NSW Parliamentary Research Service9Ian Temby, 'ICAC-Working in the Public Interest' (1990) 2 Current Issues Crim. Just. 11
with the Commissioner and Assistant Commissioner, this group served as the ‘seniormanagement group’ charged with planning for the Commission, implementing work systemsand appointing staff.10Over the years, there have been changes to the Commission’s structures. The first ofthe challenges was the appropriate balance between investigation and prevention. In 1995,ICAC’s undertook its first 3 yearStrategic Plan 1995–199811. This was in response to theincreased demands on the Commission to detect corruption which continued to consume mostof its resources. Under this plan, the Commission gavepriority to an ‘integrated approach’involving both prevention and education. An example of this approach is the investigation ofthe former State Rail Authority (SRA), which found the SRA to be rife withcorruption. TheICAC recommended for the establishment of a proper framework to combat corruption.Consequently, not only did the new SRA management positively take into consideration theCommission’s recommendations, but also it worked cooperatively with other agencies likeFreightcorp and Railway Service Australia to formulate preventative measures and setting uptime-limits to implement such strategies.12 These changescombined both the corruptionprevention and the education functions of the Commission into one program.13This providesimportant lessons for Libya in its consideration of whether an ICAC style body should beadopted for Libya.In 2001, the Commission undertook another major ‘structural and functional’ review.This review led to restructuring the Corporate Service Division into three units instead of theprevious seven units. The Operation Division was restructured to promote financialinvestigation skills and strategic risk assessment. This structural and functional10Ibid11Doig, Alan, David Watt, and Robert Williams. "Hands‐on or hands‐off? Anti‐corruption agencies in action,donor expectations, and a good enough reality." Public Administration and Development 26.2 (2006): 163-172.12ICAC, '1998–1999 Annual Report ' ( Independent Commission Against Corruption, Sydney, 1999), p. 3.13ICAC, 'Community Attitudes to Corruption and the ICAC 1995' ( Independent Commission Against Corruption, 1996)
rearrangement was followed by evaluating the Commission staff skills, conducted in 2001 byErnst and Young. This examination showed deficiencies in areas such as leadership and riskassessment. In response to this, the ICAC introduced the ‘Learning and Development’program to improve and upgrade its staff skills.14This is also important in assessing whether astatutory anti-corruption body should be implemented in Libya. 6.1.2Legislation and JurisdictionSection 13 of the current ICAC Act sets out in detail the Commission’s functions. Thefunctions can be categorised into five major categories: Investigating corruption complaints,reviewing policy, work procedures and laws, providingan advisory role and performing aneducative function. It is also responsible for communicatingthe results of its investigationstoappropriate authorities.15 The Act defies corrupt conduct as intentional and moral wrongdoingrather than mistake or negligence. “Corrupt conduct, as defined in theIndependent Commission Against Corruption Act 1988("the ICAC Act"), is deliberate or intentional wrongdoing, not negligence or a mistake. It has to involve or affect a NSW public official or public sector organisation.While it can take many forms, corrupt conduct occurs when:a public official improperly uses, or tries to improperly use, the knowledge, power or resources of their position for personal gain or the advantage of othersa public official dishonestly exercises his or her official functions, or improperly exercises his or her official functions in a partial manner, breaches public trust or misuses information or material acquired during the course of his or her official functionsa member of the public influences, or tries to influence, a public official to use his or her position in a way that is dishonest or partiala member of the public engages in conduct that could involve one of the matters set out in section 8(2A) of the ICAC Act where such conduct impairs, or could impair, public confidence in public administration.The NSW community expects public officials to perform their duties with honesty and in the best interests of the public. Corrupt conduct by a public official involves a breach of public trust that can lead to inequality, wasted resources or public money and reputational damage.Some examples of corrupt conduct are:a local councillor voting in favour of a development in which the councillor has an undisclosed financial interesta member of the public bribing an official to pass a drivers licence testa former public official selling confidential information gained while working in an official capacity.14 FIRST NAME Masters, A.B. and Adam Graycar, , 2016. Making corruption disappear in local government.Public Integrity,18(1), pp.42-58. Is this a book or where can it be found????15The Independent Commission Against Corruption Act, 1988 Australia
For the ICAC to be able to pursue a matter (that is, for the matter to be within ICAC jurisdiction), the corruption must involve or affect a NSW public official or public authority.If the ICAC is to consider investigating the matter, the conduct must also meet the conditions set out in section 9 of the ICAC Act. These conditions are that the conduct could constitute or involve:a criminal offence, ora disciplinary offence, orconstitute reasonable grounds for dismissing or otherwise terminating the services of a public official, orin the case of a member of the NSW Parliament or local government councillor, a substantial breach of an applicable code of conduct.”JURISDICTION OF ICACThe ICAC’s jurisdiction is set out under the Act. The principal section is section 8which provides: SECTION 8 OF THE ICAC Act states “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 honestor 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 or material that he or she has acquired in the course ofhis or her official functions, whether or not for 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 groupor body of public officials or any public authority and which could involve anyof 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,(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.(2A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:(a) collusive tendering,(b) fraud in relation to applications for licences, permits or other authoritiesunder legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources,
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