Gifts and benefits — a timely reminder

5 December 2017

In our role as key advisers and contractors to Local Government, we attended the Independent Commissioner Against Corruption Contractor Awareness Training session yesterday.

In a most timely reminder for this time of year, the ICAC discussed, amongst other things, the concept of receiving gifts and benefits under the Code of Conduct for Council Employees. Not surprisingly, the referred to the often quoted misconception in Local Government that a cup of coffee with a legal advisor would be the type of activity that might trigger the interest of the ICAC.

In fact, nothing could be further from the truth. The ICAC is firmly of the opinion that such advice/recommendation is “too conservative.” Indeed, the ICAC is of the view that if “all” gifts and benefits were deemed inappropriate, “that would make the business of local government very difficult indeed”.

The ICAC confirmed that the acceptance of a cup of coffee, a glass of wine, or other (reasonable) level of hospitality, freely given, with no intention to create a sense of obligation or to influence the officer in carrying out their public duty, is a very different situation to that created by a contractor offering the same “gift”, in the expectation that there may be some type of reciprocity. Clearly, these statements raise consideration of a whole range of subjectivity considerations!

The ICAC is of the view that the seniority and role of the recipient public officer is also a relevant factor to take into consideration. By way of example, it was explained that the CEO “has to be able to deal with people who deal with the council, and it might be that they have to know that person on a semi social basis, ” in order to effectively discharge their role and responsibilities. By contrast, a procurement officer who regularly meets with a contractor on a semi social basis, may find him/herself in a situation that would give the ICAC pause for further consideration.

The ICAC is of the view that, as in all things, it is necessarily “a matter of judgement” and the offer of any “gift” or “benefit” from a contractor to a public officer must always be considered objectively. A good rule of thumb is: “will it pass the pub test”. That is, as long as the public officer does not seek a gift or benefit of any kind, and that the offer of such is not made with the intent to create a sense of obligation or influence, it will not be an activity that falls to be considered under the ICAC Act.

Of course, consistent with our previous advices on the topic of gifts and benefits, in the interests of transparency and accountability, any gift or benefit received by a council employee should be disclosed in the gifts and benefits register, which may, depending on the circumstances, also include those gifts and benefits below the value as prescribed and published in the Gazette.

Merry Christmas but be careful, not too much ho, ho, ho.

For more information contact Tracy Riddle on 8113 7106 or at triddle@kelledyjones.com.au or Michael Kelledy on 8113 7103 or at mkelledy@kelledyjones.com.au.