Committee on the Independent Commission Against Corruption

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REVIEW OF THE 2013-2014 ANNUAL REPORTS OF THE ICAC AND THE INSPECTOR OF THE ICAC COMMENTARY 135. In short, in accepting that the <strong>Committee</strong>’s oversight role does not extend to reconsidering decisions of the ICAC, investigating a matter itself, or acting as an appeal mechanism and a complaints body, the <strong>Committee</strong> is specifically charged under section 64(1)(e) with the authority to examine the functions, structures and procedures of the ICAC and it can sometimes be helpful, and it is entirely proper, to refer to a specific matter to do so. A narrow interpretation of section 64(2) of the ICAC Act would hamper the work of the <strong>Committee</strong> just as the activities of the NCA <strong>Committee</strong> were curtailed. 136. Applied to recent events, the <strong>Committee</strong> is concerned that at the public hearing on 7 August 2015, the Commissioner did not fully respond to certain questions put by members. The <strong>Committee</strong> notes that the Commissioner’s opening remarks did provide the <strong>Committee</strong> with a description of the assessments process undertaken for complaints received by the ICAC. However, to perform its statutory review function, it is necessary for the <strong>Committee</strong> to obtain sufficient information to determine whether the ICAC’s current functions, structures and procedures are adequate. There can be value in seeking to understand, by aid of reference to a particular matter, whether the ICAC’s decision making procedures and policies are in need of refinement or review. 137. In saying this, the <strong>Committee</strong> did not, and does not, seek to reconsider or further examine the events investigated by the ICAC in Operation Hale. In exercising its review functions, the <strong>Committee</strong> acknowledges that it is not entitled to weigh up the evidence before the Commissioner in a particular matter or to consider the Commissioner’s state of belief as to the significance of the evidence, or his or her motives in deciding whether or not to investigate a matter. The focus is seeking information to elucidate the Commission’s operational processes and methodologies. 138. Recent changes to the ICAC Act following the report of the Independent Panel, and discussed earlier in this report, provide that, going forward, the ICAC is limited to making corruption findings in cases of serious corrupt conduct. These legislative changes provide a further compelling argument for the <strong>Committee</strong> to be provided with sufficient information to understand the ICAC’s decision making processes. This includes how the ICAC arrives at a decision to progress a complaint to investigation and the grounds for determining whether to hold a hearing in public or private. This will allow the <strong>Committee</strong> to ensure that the ICAC is operating within the limits of the legislation. 139. In conducting its oversight role, the <strong>Committee</strong> has no wish to compromise the work of the ICAC or the security of its staff. While the <strong>Committee</strong>’s recent questions to the ICAC were on the public record, it is open to officers of the ICAC to request that proceedings be conducted in private if they consider that responses to <strong>Committee</strong> questions are of a confidential nature. In short, the current confidentiality and secrecy provisions of the ICAC Act are appropriate to ensure the <strong>Committee</strong> is able to receive information to effectively oversight the ICAC without compromising the safety of individuals or organisations, or the integrity of investigations. MARCH 2016 27
COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION COMMENTARY <strong>Committee</strong> conclusions 140. The <strong>Committee</strong> has broad and expansive powers to oversight the ICAC and will use them robustly to monitor and review the exercise by the ICAC of its functions. 141. While the <strong>Committee</strong> acknowledges the constraints imposed by section 64(2) of the ICAC Act on its monitoring and review role, it is concerned that, narrowly interpreted and applied, section 64(2) of the ICAC Act may constrain the <strong>Committee</strong> from properly exercising its statutory functions. 142. The ICAC Act allows the <strong>Committee</strong> to ask questions relating to particular conduct or investigations in undertaking its oversight role, where such questions are for the purpose of monitoring and reviewing the way in which the ICAC conducts its functions. The <strong>Committee</strong> does not consider it appropriate to question the ICAC on matters that are currently under investigation or in cases where findings have not yet been made. However, the <strong>Committee</strong> is not similarly limited with regard to matters that have concluded. 143. In reviewing the operational processes underpinning concluded ICAC findings and determinations, the <strong>Committee</strong>’s work complements that of the Inspector, who can examine current matters and investigate individual complaints. The <strong>Committee</strong> fully endorses the role of the Inspector in examining matters that are currently the subject of investigation by the ICAC, responding to individual complaints and undertaking audits and investigations to ensure that the ICAC complies with the law. 144. The <strong>Committee</strong> acknowledges that questioning the ICAC on historic cases as part of its monitoring and review role may lead to a degree of tension between the <strong>Committee</strong> and the ICAC. However, the <strong>Committee</strong> considers that this is a legitimate outcome when acting to ensure the accountability of the ICAC. 28 REPORT 1/56
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