ICAC Act — Proposed Reform

12 February 2019

In May last year, the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 (“the First Bill”) was introduced into the Parliament.

The First Bill was intended to give effect to the Liberal Party election ‘promise’ to reform certain powers and functions under the Independent Commissioner Against Corruption Act 2012 (“the ICAC Act”).

One of the amendments proposed was to provide the ICAC with a discretionary power to hold public hearings in relation to investigations of serious or systematic maladministration or misconduct in public administration.

On 26 July 2018, the First Bill was referred to the Crime and Public Integrity Committee (“the Committee”), for consideration and subsequent report to the Parliament.

Following receipt, on 15 November 2018, of the Committee’s report into the First Bill, the First Bill was redrafted and then reintroduced into the Legislative Council as the Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill 2018 (“the Second Bill”).

The Second Bill seeks to adopt seven (7) of the eight (8) recommendations made by the Committee, either in part or in full and includes, amongst other things:

• the right to legal representation for all participants in public hearings;
• the creation of a privilege against self- incrimination;
• the ability for a person to claim legal professional privilege against complying with a requirement under the ICAC Act to answer a question, provide information or produce a document; and
• a requirement for the ICAC to publish a statement of reasons on any determination to hold a public hearing.

The Second Bill was adjourned following its introduction to Parliament late last year and has yet to be the subject of debate, with Parliament’s first session in 2019 commencing today, Tuesday 12 February 2019.

The Shadow Attorney-General, Kyam Maher M.P., was reported in  InDaily as stating that the Labor Party intends to introduce amendments seeking to ensure that procedural fairness and rules of evidence will apply to public hearings conducted by the ICAC, to ensure that the same protections are afforded to persons involved in public hearings as those afforded in public trials. It is reported that these proposed amendments are borne out of the submissions received during the Committee inquiry into the First Bill.

In addition, the Labor Party propose to include an amendment that would see the Committee undertake a further inquiry into the operation of the ICAC Act, with a further report to be returned to the Parliament by July 2020.

We will continue to keep readers updated in relation to the progression of the Second Bill.

If you have any questions in relation to the proposed amendments, or otherwise in relation to the operation of the ICAC Act, please contact Michael Kelledy on 8113 7103 or mkelledy@kelledyjones.com.au or Tracy Riddle on 8113 7106 or triddle@kelledyjones.com.au.