According to the Independent Commission Against Corruption (ICAC), current laws are not enough to prosecute public figures who are accused of protecting their own financial interests.
The head of the ICAC, Megan Latham, recently requested that the Crimes Act be amended to allow for charges of misconduct in office to be laid against those who are found to be guilty of corrupt conduct.
What is the ICAC?
The ICAC is an independent regulatory body that was set up by the state government in 1989 to help ensure the integrity of public administration in NSW.
The ICAC’s powers extend to all NSW public service departments, except for the NSW Police Force, and include local councils, government departments, members of parliament, and the judiciary.
Although the ICAC takes on a variety of different roles, it mainly deals with preventing corruption through advice and assistance, and investigating and exposing corruption and corrupt conduct throughout the NSW public service sector.
The ICAC is also involved in educating the public about corruption and its potential effects.
What is corrupt conduct?
According to the ICAC, corrupt conduct is a wrongdoing, which is intentional and deliberate and not done through negligence or error.
To be categorised as corruption for the purposes of the Independent Commission Against Corruption Act 1988, the wrongdoing has to involve a public official or public sector organisation.
Although there are many different types of corrupt behaviour, some examples include:
- When a public official breaches the trust of the public, misuses material and information obtained during their official capacity, or dishonestly or improperly exercises their official functions.
- When a public official uses or tries to use the resources, knowledge or power of their position improperly for the advantage of others or for personal gain.
Corruption charges can also be brought against members of the public in cases where they have tried to influence, successfully or otherwise, a public official to use their position dishonestly, or in a way that’s biased or a breach of public trust.
If the ICAC is going to investigate an allegation of corruption, the matter needs to fulfil at least one of a certain number of criteria, which include:
- The matter needs to involve a disciplinary offence.
- The matter needs to involve a criminal offence.
- The matter needs to be serious enough to constitute reasonable grounds for dismissing or terminating the employment of a public officer.
- Where the person being investigated is a local government official or a member of the NSW parliament, it has to be considered a substantial breach of their code of conduct.
Why does the ICAC want the law to be changed?
The calls for changes to the law have come after a number of recent hearings and high-profile cases where individuals have been found to be abusing their public office for the sake of their own financial interests.
As a result of one investigation, former NSW Labor powerbroker Eddie Obeid has been branded as corrupt by the ICAC, but with no appropriate criminal charges available, he has so far escaped criminal liability.
This could change if the criminal law was amended to include charges of corruption and misconduct.
Some of the current cases that the ICAC is undertaking include the investigation into John Cassidy, the former under chancellor of the University of New England (UNE) who allegedly used confidential or sensitive information obtained in the course of his public duties to benefit himself and/or his business partner Darrell Hendry.
In other investigations, the ICAC is examining allegations involving a number of NSW public officials and members of parliament for corrupt conduct involving Australian Water Holdings Pty Ltd, and other allegations of receiving, soliciting and concealing payments.
The results of this investigation are due to be finalised in January, but so far the commission has heard that Australian Water Holdings billed Sydney Water for a number of illegitimate expenses, including executive wages, corporate boxes at sporting events and limousine hire.
The ICAC’s recent investigations have had a significant impact on politics in NSW, with 10 Liberal MPs moving to the crossbenches, two MPs quitting parliament altogether, and the ousting of Barry O’Farrell as premier.
What are the changes that have been suggested?
Among the legislative changes suggested by the ICAC, the charge of misconduct in office would relate to public officials who have an interest in a private business and who are found to have used their official capacity to obtain an advantage, financial or otherwise, for their private interest.
Other suggested changes include protection for people who voluntarily come forward with information about cases or people who aren’t currently being investigated by the ICAC.
Currently there are protections in place for those who provide information when requested by the ICAC, but not for those who come forward of their own accord.
The suggested protections would include protection from civil, criminal or disciplinary liability.
The Queensland Criminal Code currently has a provision for offences where a public official holds or acquires a private interest in a contracted agreement within their department.
The maximum penalty for those found guilty of this offence is three years’ imprisonment.
Without a similar provision in NSW, some say that the ICAC may not be able to act effectively on its findings and corrupt public officials may be able to escape penalties for their corrupt behaviour.
What do you think?
Should there be a specific criminal offence in NSW for corruption or misconduct?