Nothing is more destructive of democracy than a situation where the people lack confidence in those administrators and institutions that stand in a position of public trust.
No government can maintain its claim to legitimacy while there remains the cloud of suspicion and doubt that has hung over government in New South Wales. Nick Greiner Premier of NSW Australia 1988
These quotes are a background to then NSW (Australia) Premier Nick Greiner’s bold plan to deal with public corruption in that state. The commission was established with a very specific purpose which is to prevent corruption and enhance integrity in the public sector.
In the years leading up to the establishment of the ICAC, in 1988, corruption perceptions reached an alarming level, driven by a number of high profile cases:
* A Minister of the Crown jailed for bribery;
* An inquiry into a second, then a third, former Minister for alleged corruption;
* The former Chief Stipendiary Magistrate jailed for perverting the course of justice;
* A former Commissioner of Police in the courts on a criminal charge;
* The former Deputy Commissioner of Police charged with bribery;
*A series of investigations and court cases involving judicial figures including a High Court Judge;
* Dismissals, retirements and convictions of senior police officers, for offences involving corrupt conduct.
The independent commission was not established to be a tribunal of morals, but to enforce only those standards established or recognised by law. Jurisdiction extends to corrupt conduct which may constitute a criminal offence, a disciplinary offence or grounds for dismissal.
The commission’s jurisdiction covers all public officials
The term public official has been very widely defined to include members of Parliament, the Governor, judges, Ministers, all holders of public offices, and all employees of departments and authorities. Local government members and employees are also included. In short, the definition in the legislation has been framed to include everyone who is conceivably in a position of public trust. There are no exceptions and there are no exemptions.
In establishing an effective anti-corruption agency, Greiner’s promise was to:
* Embrace a whole range of areas all aimed at restoring the integrity and accountability of public administration.
* Reform practices and procedures for awarding government contracts;
* Reform and clarify the criminal law on corruption, graft and perverting the course of justice;
* Introduce a code of conduct for Ministers and to ministerial staff;
* Introduce freedom of information legislation;
* Strengthen financial accountability through reforms to the methods of public accounting;
* Sytematically review and reform public management in the State.
There is specific provision to allow the commission to refer to matters to other investigatory agencies to be dealt with. The commission will monitor those investigations and will retain only the most significant and serious allegations of corruption.
The commission also has a clear charter to play a constructive role in developing sound management practices and making public officials more aware of what it means to hold an office of public trust and more aware of the detrimental effects of corrupt practices.
There was an expectation its primary role would become more and more one of advising departments and authorities on strategies, practices and procedures to enhance administrative integrity. In preventing corruption in the long term, the educative and consultancy functions of the commission being far more important than investigatory functions.
Importantly, the Commission has the coercive powers of a Royal commission. The coercive powers of the commission are concentrated on the public sector. The commission, like the Ombudsman, will be able to override claims of privilege by public officials in obtaining documents and other things from private persons, where these may be relevant to the investigation.
The commissioner has the power to apply to a justice for a search warrant, or to issue a search warrant himself. The commission will have power to apply for warrants for listening devices under the Listening Devices Act.
The commission has the power to apply for an injunction from the Supreme Court in circumstances where conduct which is about to occur could cause irreparable harm. There is power to apply to the court for restraining orders under the Crimes (Confiscation of Profits) Act.
The commissioner or an assistant commissioner can also hold hearings in a similar way to a Royal commissioner, and with comparable powers. Hearings are to be held in public unless the commission is satisfied it is in the public interest that the hearing be held in private for reasons connected with the subject-matter of the investigation, or the nature of the evidence to be given. At the hearing the person presiding is to announce the general scope and purpose of the hearing. Persons who are substantially and directly interested in a hearing may be given leave to appear and to be represented by a specified legal practitioner.
The commission does not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action.
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