DIRECTIONS AND GUIDELINES

Section 20 of the Independent Commissioner Against Corruption Act 2012 (the ICAC Act) required the Commissioner to publish Directions and Guidelines governing the reporting obligations of public officers, public authorities and inquiry agencies.

You are invited to download a free copy of the Directions and Guidelines, or to collect a copy from the reception of the Office for Public Integrity (OPI) at Level 1, 55 Currie Street, Adelaide.

ICAC for Authorised Examiners

The Independent Commissioner Against Corruption has the role of identifying and investigating corruption in public administration and preventing or minimising misconduct and maladministration in public administration.

Authorising people as competent to hold a driver’s license is an important function of public administration. This means the Commissioner is interested in the way we conduct ourselves.

At the request of the Commissioner, the ICAC Regulations were changed in October 2015 to capture Authorised Examiners as public officers. As public officers each of us now has a mandatory obligation to report any conduct that we reasonably suspect to be corruption or serious or systemic misconduct or maladministration to the Office for Public Integrity, which is overseen by the Commissioner.

The Commissioner expects that all public officers conduct themselves with honesty and integrity. He also expects that we fulfil our reporting obligation if we become aware of instances when this is not happening.

For more information about ICAC please consult their website and watch this induction film.

FREQUENTLY ASKED QUESTIONS

ROLES, FUNCTIONS & DEFINITIONS

WHAT IS THE INDEPENDENT COMMISSIONER AGAINST CORRUPTION?

The Independent Commissioner Against Corruption (‘the Commissioner’) has been established to identify and investigate corruption in public administration, and prevent or minimise corruption, misconduct and maladministration in public administration.  The Commissioner is independent and is not subject to the direction of any person in relation to any matter.

WHO IS THE COMMISSIONER?

The Commissioner, the Honourable Bruce Lander QC, was appointed for a seven-year term commencing 1 September 2013. The Commissioner is a senior legal practitioner of more than 40 years’ standing and was most recently a Justice of the Federal Court of Australia.

WHAT WILL THE COMMISSIONER DO?

The Commissioner and members of the staff of the Commissioner form a law enforcement body. The Commissioner has significant powers to investigate allegations of corruption in public administration, including powers under warrant to enter and search premises, seize and retain items and hold compulsory examinations. The Commissioner’s functions include:

• to identify and investigate corruption in public administration
• to assist in identifying and dealing with misconduct and maladministration in public administration
• prevent or minimise corruption, misconduct and maladministration in public administration through education and evaluation of practices, policies and procedures.

The primary object of the Commissioner is to:

• investigate serious or systemic corruption in public administration and
• to refer serious or systemic misconduct or maladministration in public administration to the relevant body, giving directions or guidance to the body or exercising the powers of the body as the Commissioner considers appropriate.

WHAT IS THE OFFICE FOR PUBLIC INTEGRITY?

The Office for Public Integrity (OPI) is responsible to the Commissioner. The OPI receives complaints and reports about corruption, misconduct and maladministration in public administration, and assesses those matters. Following assessment of a complaint or report the OPI will make a recommendation to the Commissioner about what action should be taken. The Commissioner is not bound by a recommendation of the OPI. Matters raising a potential issue of corruption must be investigated by the Commissioner, or referred to South Australia Police (SAPOL), the Police Ombudsman or other law enforcement agency. Matters raising a potential issue of misconduct or maladministration may be referred to another inquiry agency (the Ombudsman or Police Ombudsman), public authority or public officer.

WHO CAN BE INVESTIGATED BY THE COMMISSIONER?

The Commissioner can investigate conduct of a public officer and in some cases the conduct of a private individual, where the conduct raises a potential issue of corruption. Conduct of a private individual that can be investigated includes bribery or corruption of a public officer, or a threat against a public officer. WHO IS A PUBLIC OFFICER? Schedule 1 of the Independent Commissioner Against Corruption Act 2012 lists the public officers for the purposes of the Independent Commissioner Against Corruption Act 2012.

Public officers include:

• Members of Parliament;
• members of the judiciary;
• police officers;
• public service employees;
• councillors;
• council employees;
• persons contracted to perform work for a public authority or the Crown.

WHAT IS A PUBLIC AUTHORITY?

Schedule 1 of the Independent Commissioner Against Corruption Act 2012 lists the public authorities for the purposes of the Independent Commissioner Against Corruption Act 2012. Public authorities include: »» the Governor; »» both Houses of Parliament; »» South Australian government departments, agencies and statutory authorities; »» local councils. WHAT IS CORRUPTION? Corruption in public administration is defined in the Independent Commissioner Against Corruption Act 2012 as conduct that constitutes one of a number of criminal offences, including bribery or corruption of public officers, threats or reprisals against public officers and abuse of public office. The definition also includes offences against the Public Sector (Honesty and Accountability) Act 1995 and the Public Corporations Act 1993. Corruption in public administration also includes any other offence committed by a current or former public officer while acting in his or her capacity (or former capacity) as a public officer.

WHAT IS MISCONDUCT IN PUBLIC ADMINISTRATION?

Misconduct occurs when a public officer contravenes a Code of Conduct or is involved in any other misconduct while acting in his or her capacity as a public officer.

WHAT IS MALADMINISTRATION IN PUBLIC ADMINISTRATION?

Maladministration includes irregular and unauthorised use of public money or substantial mismanagement of public resources. It also includes substantial mismanagement in or in relation to the performance of official functions and conduct resulting from impropriety, incompetence or negligence.

WHAT IS SERIOUS OR SYSTEMIC?

The Directions and Guidelines create obligations on inquiry agencies, public authorities and public officers to report matters of misconduct or maladministration that are ‘serious or systemic’. What is serious or systemic misconduct or maladministration is a matter of judgement. Relevant factors to consider in an assessment of whether the matter is serious or systemic may include: »» the nature and circumstances of the allegations (including the number of allegations, the degree of organisation and planning – e.g. steps taken to cover up conduct); »» the status of the person(s) involved; »» the harm (or potential harm) to an individual or government resulting from the matter, including physical, financial or other harm; and »» whether the matter is widespread, involves more than one agency and/ or occurs on a frequent basis. A matter may be considered serious if it: »» involves a senior public officer; »» involves alleged misconduct or maladministration that has resulted in a substantial loss or damage to assets; »» involves allegations that would, if proved, bring an agency or the Crown into disrepute; or »» is otherwise of particular prominence or importance. A matter may be considered systemic if it: »» causes widespread disruption to services or programs; »» affects a number of persons; »» is spread throughout an agency or authority or is otherwise accepted or condoned; or »» involves a large sum of public money.

WHO DOES THE COMMISSIONER REPORT TO AND HOW IS HE HELD ACCOUNTABLE?

The Commissioner is held accountable through a number of measures including the requirement to prepare an Annual Report that is laid before both Houses of Parliament. The Independent Commissioner Against Corruption Act 2012 also provides for an independent person to conduct an annual review of the Commissioner’s powers, practices and procedures. The Commissioner is required to publish standard operating procedures governing the exercise of powers by investigators for the purposes of an investigation under the Independent Commissioner Against Corruption Act 2012. These standard operating procedures will be available for inspection by members of the public on the Commissioner’s website and at the OPI.

DOES THE COMMISSIONER HAVE A ROLE IN PREVENTING CORRUPTION AS WELL AS INVESTIGATING IT?

Yes. The Commissioner has the function to evaluate the practices, policies and procedures of inquiry agencies and public authorities to advance comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration in public administration. The Commissioner will conduct or facilitate the conduct of education programs designed to prevent or minimise corruption, misconduct and maladministration in public administration.

WHAT IS THE ROLE OF THE OMBUDSMAN, THE POLICE OMBUDSMAN, SAPOL ANTICORRUPTION BRANCH AND THE AUDITOR-GENERAL?

These agencies will continue to play an important role in promoting and enforcing public integrity. The Commissioner may refer appropriate matters to these inquiry agencies.

POWERS & INVESTIGATIONS

WHAT POWERS DOES THE COMMISSIONER HAVE? The Commissioner has a number of powers, including powers to: »» appoint staff, including investigators; »» initiate and conduct investigations into corruption in public administration; »» refer matters relating to misconduct and maladministration to inquiry agencies or public authorities for further action; »» exercise the powers of an inquiry agency; »» issue directions and guidance to inquiry agencies and public authorities; »» request the Auditor-General to examine accounts; »» make recommendations to inquiry agencies and public authorities.

CAN THE COMMISSIONER INVESTIGATE MATTERS THAT OCCURRED BEFORE THE INDEPENDENT COMMISSIONER AGAINST CORRUPTION ACT 2012 CAME INTO OPERATION?

Yes. The Commissioner’s powers under the Independent Commissioner Against Corruption Act 2012 can be exercised in relation to conduct that occurred before the Act came into force.

HOW WILL AN INVESTIGATION BE TRIGGERED?

An investigation into corruption in public administration can be triggered by: »» a complaint made by a member of the public to the OPI; »» a report made by an inquiry agency, public authority or public officer to the OPI; »» the Commissioner acting on his own initiative; »» the Attorney-General reporting a matter directly to the Commissioner. The Commissioner will have absolute discretion to investigate or not investigate a particular matter, or to refer it to another agency.

WILL THE COMMISSIONER INVESTIGATE EVERY REPORT OF SUSPECTED CORRUPTION?

The OPI will assess every report of corruption received and make recommendations to the Commissioner. The Commissioner will then decide whether to investigate, refer the matter elsewhere, or take no further action.

WILL INVESTIGATIONS BE MADE PUBLIC?

Investigations into corruption in public administration conducted by the Commissioner will be conducted in private, as is currently the case with criminal investigations undertaken by SAPOL. It must be remembered that a person involved in an investigation may not have been charged with any criminal offence and might only be assisting with a line of inquiry. All examinations conducted by the Commissioner as part of an investigation must also be held in private. The Commissioner may make a public statement in connection with a particular matter if, in the Commissioner’s opinion, it is appropriate to do so, weighing the public interest against the prejudicial effect upon a person’s reputation. In some cases, a public statement might be made to benefit the investigation or allay public concern. The Commissioner is required to consider whether making a public statement might adversely affect a potential prosecution.

WHAT IS AN EXAMINATION?

Examinations are proceedings held in private where persons may be summonsed to give evidence or to produce documents or other things for the purposes of an investigation into corruption in public administration. Evidence may be taken on oath or affirmation.

CAN I BE COMPELLED TO GIVE EVIDENCE?

Yes. Any person who has been summonsed to appear as a witness at an examination and who fails to appear at that examination or who refuses or fails to answer a question at an examination commits an offence. The maximum penalty for such an offence is a fine of $20,000 or imprisonment for four years. A person who appears as a witness is in contempt of the Commissioner if he or she refuses or fails to answer a question that he or she is required to answer by the examiner. The examiner may apply to the Supreme Court for the person to be dealt with in relation to the contempt by the Supreme Court of South Australia.

COMPLAINTS & REPORTS

WHAT COMPLAINTS AND REPORTS CAN BE MADE TO THE OFFICE FOR PUBLIC INTEGRITY?

Complaints about corruption, misconduct or maladministration in public administration should be made to the OPI. Inquiry agencies, public officers and public authorities have obligations under the Independent Commissioner Against Corruption Act 2012 to report suspected corruption, misconduct and maladministration in public administration. The minimum reporting obligations are identified in the Directions and Guidelines issued under the Independent Commissioner Against Corruption Act 2012, which are available on the Commissioner’s website and from the OPI.

WHAT HAPPENS ONCE I’VE MADE A COMPLAINT OR REPORT?

The OPI will assess your complaint or report and make a recommendation to the Commissioner about how it should be dealt with. If the matter is assessed as raising a potential issue of corruption, then the Commissioner will determine whether to investigate the matter or refer it to an appropriate agency for investigation. If the matter is assessed as raising a potential issue of misconduct or maladministration in public administration, the Independent Commissioner Against Corruption may refer the matter to an inquiry agency, such as the Ombudsman or the Police Ombudsman, or to a public authority. When making a referral, the Independent Commissioner Against Corruption may issue directions or guidance to the inquiry agency or public authority in respect of the matter.

CAN I MAKE AN ANONYMOUS COMPLAINT?

Yes. The OPI will receive anonymous complaints and assess them in the usual way. However, if you wish to remain anonymous, you must understand that if the information you provide is not sufficient for the OPI to make a proper assessment of the matter, the OPI will not be able to contact you for further information. This may mean that your complaint will not be progressed.

IF I MAKE A COMPLAINT, WILL MY IDENTITY BE KEPT CONFIDENTIAL?

The OPI and the Commissioner’s staff must not disclose information you have provided in your complaint except in certain circumstances. Examples of when information may have to be disclosed include for the purpose of the administration or enforcement of the Independent Commissioner Against Corruption Act 2012, for the purposes of criminal proceedings, or for the performance of the functions of the Commissioner under legislation. Such information can include your identity and personal details as well as details of the complaint itself. If you are making a complaint as a whistleblower under the Whistleblowers Protection Act 1993, then the details relating to your identity will remain confidential except where it is required to be disclosed to ensure a proper investigation. If you are unsure of whether your complaint falls within the whistleblowers’ regime, please contact the OPI or seek legal advice.

WHAT DETAILS WILL I NEED TO MAKE A COMPLAINT?

When making the complaint, provide as much information as possible, including: »» the names and positions of the parties involved; »» the names and contact details of private citizens and companies and how they are involved; »» the specific allegations, including when the alleged conduct occurred, why you believe corruption, misconduct or maladministration is involved and how and when you became aware of the matter; »» names and contact details of any witnesses; »» whether you have contacted other agencies about the matter; and »» details or copies of any documentary evidence you may have. If you identify yourself we can inform you about the action (if any action is taken) in respect of the matter.

HOW DO I MAKE A COMPLAINT OR REPORT?

Complaints or reports regarding corruption, misconduct or maladministration can be made to the Office for Public Integrity in the following ways: The information contained in this document is for general information only and does not constitute legal advice.