NSW Greens Introduce Bill To Expand Protection For ICAC Whistleblowers
Monday 21 November 2016 @ 11.21 a.m. | Legal Research
NSW Greens MP Jamie Parker has introduced a bill to expand protections for individuals who disclose information to the NSW Independent Commission Against Corruption (the ICAC). The Bill would protect people who give voluntary statements or produce documents in good faith to ICAC from civil or criminal liability and disciplinary proceedings. The Private Member's Bill follows the controversial changes to the ICAC made by the NSW Parliament last week (for more information, see TimeBase’s earlier article). Introducing the Bill into Parliament, Mr Parker said that his proposal:
“in no way seeks to amend those proposals, even though we may want to. The intention of the bill is to strengthen the ICAC. I take the Government at its word when it says that it is interested in improving the work of the Independent Commission Against Corruption in order to expose and deal with corruption…”
He went on to say:
"This amendment to the Independent Commission Against Corruption Act 1988 is a commonsense and simple amendment that will protect individuals who voluntarily disclose information to the commission from criminal or civil liability in connection with that disclosure. The bill will make it easier for the Independent Commission Against Corruption [ICAC] to obtain evidence. It will give confidence to persons who provide information to the ICAC and it will bring the arrangements of the Independent Commission Against Corruption in line with other jurisdictions.”
The Bill’s Details
The Bill would insert new subsections into Section 109, Protection from liability:
“(5) A person is not subject to any criminal or civil liability for compliance, or purported compliance, with a requirement of this Act and no action, claim, demand or disciplinary action may be taken against or made of the person in relation to that compliance or purported compliance.
(6) A person who voluntarily gives any statement of information or produces any document or thing to the Commission in good faith in connection with a complaint made to, or an investigation conducted by, the Commission about a matter that concerns or may concern corrupt conduct is not subject to any criminal or civil liability for giving the statement of information or producing the document or thing and no action, claim, demand or disciplinary action may be taken against or made of the person in relation to the statement or production.
(7) This section has effect despite any duty of secrecy or confidentiality or any other restriction on disclosure (whether or not imposed by an Act) applicable to the relevant person.”
Currently, a person is protected under section 26 from self-incrimination where the Commission requires a person to produce a statement or document, and the person objects to it on the grounds that it tends to incriminate the person. The Bill proposes to repeal section 26 and insert a new section 109A that would include voluntary disclosures and information provided prior to the commencement of an investigation:
(1) This section applies where a natural person gives any statement of information or produces any document or thing to the Commission in good faith:
(a) in connection with a complaint made to, or an investigation conducted by, the Commission about a matter that concerns or may concern corrupt conduct, or
(b) pursuant to a requirement of the Commission under section 21 or 22.
(2) If the statement, document or thing tends to incriminate the person and the person objects to the giving or production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or except as provided by section 114A (5)).
(3) The statement, document or thing may however be used for the purposes of the complaint or investigation concerned, despite any such objection.
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Sources:
Independent Commission Against Corruption Amendment (Disclosure of Information) Bill 2016 (NSW) - Bill and Explanatory Note & Second Reading Speech, available from TimeBase's LawOne service
