Premier's ICAC Review Panel Delivers its Findings

Earlier this year, we reported on the Independent Commission Against Corruption Amendment (Validation) Bill/Act 2015 (the validation legislation) which was rushed through both houses of the NSW Parliament in a single day in an attempt to preserve previous findings of the Independent Commission Against Corruption (ICAC) from the prospect of being overturned by court challenges following the decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14 (see our article Retrospective ICAC Validation Bill Rushed Through Parliament and Assented In Single Day).

Now the expert review panel appointed by the NSW Premier has reported and made recommendations on the way ICAC is to operate going forward.

To Recap - Reasons for the Review Panel

The validation legislation was for the purpose of  validating action taken by ICAC before 15 April 2015, on the previous understanding of the ICAC Act with respect to the words "corrupt conduct" -  where such were understood to extend to relevant criminal conduct that adversely affected in any way the exercise of official functions and, accordingly, validated action taken by others in reliance on action taken by ICAC. The validation legislation  did not authorise the continuation of investigations or inquiries by ICAC which were  held by the High Court in the Cunneen Case to exceed ICAC's jurisdiction.

Instead, ICAC’s future, it was announced in May 2015 by the Premier, was to be reviewed by a panel constituted by former High Court Chief Justice Murray Gleeson assisted by senior barrister Bruce McClintock SC, who were in broad terms to examine the “appropriate scope” for ICAC’s jurisdiction and report back by to the NSW Government by July 2015.

Panel's Terms of reference

The Panel's Terms of Reference required it to ensure that ICAC had the powers and resources required to fulfil its functions in light of the decision of the High Court in the Cunneen Case. To this end the Panel was to consider and report to the NSW Premier on:

• the appropriate scope for ICAC’s jurisdiction;
• any legislative measures required to provide ICAC with the appropriate powers to prevent, investigate and expose serious corrupt conduct and/or systemic corrupt conduct involving, or affecting, public authorities and/or public officials; and
• whether any limits or enhancements, substantive or procedural, should be applied to the exercise of ICAC’s powers, taking into account:
• the jurisdiction, responsibilities and roles of other public authorities and/or public officials in the prevention, detection, investigation, determination, exposure and prosecution of corrupt conduct; and
• the report of the Inspector of ICAC which will include consideration of:
  
• the conduct of past and current investigations of ICAC;
• whether ICAC’s powers, and its exercise of its powers, are consistent with principles of justice and fairness;
• the extent to which ICAC investigations give rise to prosecution and conviction; and
• whether any limits or enhancements, substantive or procedural, should be applied to the exercise of ICAC’s powers.

Panel's Findings and Reaction

The final report delivered by Justice Gleeson and Mr McClintock supports the High Court in its reasoning on the Cunneen Case and recommends that ICAC’s power may only be exercised in “ . . . the case of serious corrupt conduct . . .”, which appears to be limiting its application. It also recommended however, expanding ICAC's operational scope:

Further, the review set out specific circumstances where "corrupt behaviour" could be alleged, which included, collusive tendering, fraud in relation to licence applications, dishonestly obtaining payment from public fund or assets, defrauding revenue or fraudulently obtaining employment as a public official.

It is reported that in announcing his response to the expert panel's recommendations, the Premier, Mr Baird, said he wanted ICAC to ". . . get cracking". However, he also indicated the government ". . . would legislate to ensure ICAC can only make findings of corruption in cases of serious corrupt conduct after its failed pursuit of Deputy Senior Crown Prosecutor Margaret Cunneen, SC".

The planned legislative changes, it is reported, will specifically make breaches of donations and lobbying laws matters which ICAC can investigate and potentially make findings of corrupt conduct. The proposed legislation, it is reported, will empower the NSW Electoral Commission to refer breaches of electoral or lobbying rules to ICAC and allow ICAC to assume this has already been done in the case of the suspended Operation Spicer - which involved alleged Liberal Party rorting of donations laws.

The review panel, it is also reported, "sensibly" rejected calls for disgruntled persons targeted by ICAC investigations to have the right to a "merits review in court on questions of fact, rather than only on questions of law, saying this would involve an inappropriate confusion of administrative and judicial powers".

The NSW Opposition leader Luke Foley is reported to have welcomed the panel's report saying that, subject to seeing the planned legislation, Labor would co-operate with its enactment.

For the Greens, MP Jamie Parker is reported as saying that his party was concerned that ". . . the list of matters ICAC could investigate in relation to private citizens did not include planning and development matters".

The reaction of the NSW Law Society is reported as being that the ". . . revised powers would restore public confidence in the watchdog's work". The society's executive officer Michael Tidball is reported as saying the public did not want ICAC to pursue trivial matters:

What Next

It will be interesting to see the planned legislation and the actual extent to which it will impose ". . . a handbrake" on ICAC's watchdog powers as recommended by the review panel so that it will only be able to make findings of corrupt conduct in "serious" cases. 

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ICAC review: NSW corruption watchdog will only have power to make corrupt findings in 'serious cases' (ABC News -11 August 2015)

ICAC powers limited to 'serious corruption': Baird (Lawyers Weekly - 12 August 2015)

Mike Baird urges ICAC to 'get cracking' in major corruption investigations (SMH - 12 August 2015)

ICAC review strikes a sensible balance (SMH - 11 August 2015)